been in the possession of Elizabeth Dimaano if not given for her use by respondent Commanding General
of the Philippine Army.
EN BANC
G.R. No. 104768 July 21, 2003
REPUBLIC OF THE PHILIPPINES, Petitioner,
vs.
SANDIGANBAYAN, MAJOR GENERAL JOSEPHUS Q. RAMAS and ELIZABETH
DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)1 dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The
first Resolution dismissed petitioners Amended Complaint and ordered the return of the confiscated
items to respondent Elizabeth Dimaano, while the second Resolution denied petitioners Motion for
Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First Division) for further proceedings
allowing petitioner to complete the presentation of its evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA Revolution, then President
Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating the Presidential Commission on
Good Government ("PCGG"). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former
President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates. EO
No. 1 vested the PCGG with the power "(a) to conduct investigation as may be necessary in order to
accomplish and carry out the purposes of this order" and the power "(h) to promulgate such rules and
regulations as may be necessary to carry out the purpose of this order." Accordingly, the PCGG, through
its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board ("AFP Board") tasked to investigate
reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.2
Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of
respondent Major General Josephus Q. Ramas ("Ramas"). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan St.,
La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has an area
of 3,327 square meters.
The value of the property located in Quezon City may be estimated modestly at 700,000.00.
The equipment/items and communication facilities which were found in the premises of Elizabeth
Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by invoice
receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could not have
Aside from the military equipment/items and communications equipment, the raiding team was also able
to confiscate money in the amount of 2,870,000.00 and $50,000 US Dollars in the house of Elizabeth
Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army, stationed
at Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the mistress of respondent.
That respondent usually goes and stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay
Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses respondent.
That on February 25, 1986, a person who rode in a car went to the residence of Elizabeth Dimaano with
four (4) attache cases filled with money and owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income and
is supported by respondent for she was formerly a mere secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items seized
in her house on March 3, 1986 without the consent of respondent, he being the Commanding General of
the Philippine Army. It is also impossible for Elizabeth Dimaano to claim that she owns the 2,870,000.00
and $50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of respondent. There was an
intention to cover the existence of these money because these are all ill-gotten and unexplained wealth.
Were it not for the affidavits of the members of the Military Security Unit assigned at Camp Eldridge, Los
Baos, Laguna, the existence and ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by
the Boards consultant. Although the amount of 2,870,000.00 and $50,000 US Dollars were not
included, still it was disclosed that respondent has an unexplained wealth of 104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten
and unexplained wealth in the amount of 2,974,134.00 and $50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property." 3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 ("RA No.
1379") 4against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an Amended
Complaint naming the Republic of the Philippines ("petitioner"), represented by the PCGG, as plaintiff
and Ramas as defendant. The Amended Complaint also impleaded Elizabeth Dimaano ("Dimaano") as
co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army until
1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine Army,
assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The Amended
Complaint further alleged that Ramas "acquired funds, assets and properties manifestly out of proportion
to his salary as an army officer and his other income from legitimately acquired property by taking undue
advantage of his public office and/or using his power, authority and influence as such officer of the Armed
Forces of the Philippines and as a subordinate and close associate of the deposed President Ferdinand
Marcos."5
The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable
ground to believe that respondents have violated RA No. 1379. 6 The Amended Complaint prayed for,
among others, the forfeiture of respondents properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to the
Amended Complaint. In his Answer, Ramas contended that his property consisted only of a residential
house at La Vista Subdivision, Quezon City, valued at 700,000, which was not out of proportion to his
salary and other legitimate income. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-typist
in the office of Ramas from January-November 1978 only, Dimaano claimed ownership of the monies,
communications equipment, jewelry and land titles taken from her house by the Philippine Constabulary
raiding team.
After termination of the pre-trial,7 the court set the case for trial on the merits on 9-11 November 1988.
that the re-setting was without prejudice to any action that private respondents might take under the
circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had no
further evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60
days within which to file an appropriate pleading. The Sandiganbayan, however, warned petitioner that
failure to act would constrain the court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v. Migrino. 9 The Court held in
Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by reason
of mere position held without a showing that they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without pronouncement
as to costs. The counterclaims are likewise dismissed for lack of merit, but the confiscated sum of money,
communications equipment, jewelry and land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary
jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence
warrants. This case is also referred to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano in connection herewith.

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation for
trial and the absence of witnesses and vital documents to support its case. The court reset the hearing SO ORDERED.
to 17 and 18 April 1989.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to charge the
delinquent properties with being subject to forfeiture as having been unlawfully acquired by defendant In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition to
Dimaano alone x x x."8 which petitioner filed its Reply on 10 January 1992.

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for Reconsideration.
presentation of evidence on the ground that the motion for leave to amend complaint did not state when
petitioner would file the amended complaint. The Sandiganbayan further stated that the subject matter
of the amended complaint was on its face vague and not related to the existing complaint. The Ruling of the Sandiganbayan
Sandiganbayan also held that due to the time that the case had been pending in court, petitioner should
proceed to present its evidence.
The Sandiganbayan dismissed the Amended Complaint on the following grounds:

After presenting only three witnesses, petitioner asked for a postponement of the trial.
(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme
Court in Cruz, Jr. v. Sandiganbayan10 and Republic v. Migrino11 which involve the same issues.
On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to proceed
to trial because of the absence of other witnesses or lack of further evidence to present. Instead,
(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted
petitioner reiterated its motion to amend the complaint to conform to the evidence already presented or
to change the averments to show that Dimaano alone unlawfully acquired the monies or properties against Ramas and Dimaano.
subject of the forfeiture.
(3.) The evidence adduced against Ramas does not constitute a prima facie case against him.
The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly because
of its many postponements. Moreover, petitioner would want the case to revert to its preliminary stage (4.) There was an illegal search and seizure of the items confiscated.
when in fact the case had long been ready for trial. The Sandiganbayan ordered petitioner to prepare for
presentation of its additional evidence, if any.
The Issues

During the trial on 23 March 1990, petitioner again admitted its inability to present further evidence.
Giving petitioner one more chance to present further evidence or to amend the complaint to conform to Petitioner raises the following issues:
its evidence, the Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan, however, hinted
 A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS EVIDENCE
CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS NO SHOWING OF
CONSPIRACY, COLLUSION OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO NOTWITHSTANDING THE FACT
THAT SUCH CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN
RENDERED PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE EVIDENCE OF THE
PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY THE
PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT AND THE AMENDED
COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT
IN CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289,
NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v. Migrino, supra,
are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil Case No. 0037
was cured and/or waived by respondents with the filing of their respective answers
with counterclaim; and
3. The separate motions to dismiss were evidently improper considering that they
were filed after commencement of the presentation of the evidence of the petitioner
and even before the latter was allowed to formally offer its evidence and rest its
case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND THINGS
SUCH AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO WERE ILLEGALLY SEIZED AND
THEREFORE EXCLUDED AS EVIDENCE.12
The Courts Ruling
First Issue: PCGGs Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan13 and Republic v. Migrino.14
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the
filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of AFP
personnel, whether in the active service or retired. 15 The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on the action to be taken based on its
findings.16 The PCGG gave this task to the AFP Board pursuant to the PCGGs power under Section 3 of
EO No. 1 "to conduct investigation as may be necessary in order to accomplish and to carry out the
purposes of this order." EO No. 1 gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the following
matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E. Marcos, his
immediate family, relatives, subordinates and close associates, whether located in the Philippines or
abroad, including the takeover and sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through nominees, by taking undue advantage
of their public office and/ or using their powers, authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the President may assign to the Commission
from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt practices of
AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No. 1. These are:
(1) AFP personnel who have accumulated ill-gotten wealth during the administration of former President
Marcos by being the latters immediate family, relative, subordinate or close associate, taking undue
advantage of their public office or using their powers, influence x x x; 17 or (2) AFP personnel involved in
other cases of graft and corruption provided the President assigns their cases to the PCGG. 18
Petitioner, however, does not claim that the President assigned Ramas case to the PCGG. Therefore,
Ramas case should fall under the first category of AFP personnel before the PCGG could exercise its
jurisdiction over him. Petitioner argues that Ramas was undoubtedly a subordinate of former President
Marcos because of his position as the Commanding General of the Philippine Army. Petitioner claims that
Ramas position enabled him to receive orders directly from his commander-in-chief, undeniably making
him a subordinate of former President Marcos.
We hold that Ramas was not a "subordinate" of former President Marcos in the sense contemplated under
EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a "subordinate" as this term is
used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:
A close reading of EO No. 1 and related executive orders will readily show what is contemplated within
the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-
gotten wealth amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and
close associates both here and abroad.
EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos and/or his
wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents, or
nominees have any interest or participation.
Applying the rule in statutory construction known as ejusdem generis that is-
[W]here general words follow an enumeration of persons or things by words of a particular and specific
meaning, such general words are not to be construed in their widest extent, but are to be held as applying
only to persons or things of the same kind or class as those specifically mentioned [Smith, Bell & Co, Ltd.
vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close association with
former President Marcos and/or his wife, similar to the immediate family member, relative, and close
associate in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government official or employee during
the administration of former President Marcos. There must be a prima facie showing that the respondent
unlawfully accumulated wealth by virtue of his close association or relation with former Pres. Marcos
and/or his wife. (Emphasis supplied)
Ramas position alone as Commanding General of the Philippine Army with the rank of Major
General19 does not suffice to make him a "subordinate" of former President Marcos for purposes of EO
No. 1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that business associates, dummies, agents or
nominees of former President Marcos were close to him. Such close association is manifested either by
Ramas complicity with former President Marcos in the accumulation of ill-gotten wealth by the deposed
President or by former President Marcos acquiescence in Ramas own accumulation of ill-gotten wealth
if any.
This, the PCGG failed to do.
Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner argues
that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP Board conducted
the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner asserts
that there is a presumption that the PCGG was acting within its jurisdiction of investigating crony-related
cases of graft and corruption and that Ramas was truly a subordinate of the former President. However,
the same AFP Board Resolution belies this contention. Although the Resolution begins with such
statement, it ends with the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as "Anti-Graft and Corrupt Practices Act" and RA
1379, as amended, otherwise known as "The Act for the Forfeiture of Unlawfully Acquired Property." 20
Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2,
14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any
relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments proves
fatal to petitioners case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the
properties Ramas allegedly owned were accumulated by him in his capacity as a "subordinate" of his
commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and suggested
that these properties were disproportionate to his salary and other legitimate income without showing
that Ramas amassed them because of his close association with former President Marcos. Petitioner, in
fact, admits that the AFP Board resolution does not contain a finding that Ramas accumulated his wealth
because of his close association with former President Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the
Philippines did not categorically find a prima facie evidence showing that respondent Ramas
unlawfully accumulated wealth by virtue of his close association or relation with former
President Marcos and/or his wife, it is submitted that such omission was not fatal. The
resolution of the Anti-Graft Board should be read in the context of the law creating the same and the
objective of the investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019 and
1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21(Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten
wealth was accumulated by a "subordinate" of former President Marcos that vests jurisdiction on PCGG.
EO No. 122 clearly premises the creation of the PCGG on the urgent need to recover all ill-gotten wealth
amassed by former President Marcos, his immediate family, relatives, subordinates and close associates.
Therefore, to say that such omission was not fatal is clearly contrary to the intent behind the creation of
the PCGG.
In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that fall under the jurisdiction of the PCGG
pursuant to EO Nos. 1, 2,24 14,25 14-A:26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of
Executive Order No. 14, shows what the authority of the respondent PCGG to investigate and prosecute
covers:
(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth
under Republic Act No. 1379, accumulated by former President Marcos, his immediate family,
relatives, subordinates and close associates, whether located in the Philippines or abroad,
including the take-over or sequestration of all business enterprises and entities owned or
controlled by them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority and influence,
connections or relationships; and
(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-
gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling
under the foregoing categories, require a previous authority of the President for the
respondent PCGG to investigate and prosecute in accordance with Section 2 (b) of Executive
Order No. 1. Otherwise, jurisdiction over such cases is vested in the Ombudsman and other
duly authorized investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state prosecutors. (Emphasis
supplied)
The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture petitions
not falling under EO No. 1 and its amendments. The preliminary investigation of unexplained wealth
amassed on or before 25 February 1986 falls under the jurisdiction of the Ombudsman, while the
authority to file the corresponding forfeiture petition rests with the Solicitor General. 27 The Ombudsman
Act or Republic Act No. 6770 ("RA No. 6770") vests in the Ombudsman the power to conduct preliminary
investigation and to file forfeiture proceedings involving unexplained wealth amassed after 25 February
1986.28
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence of
a prima facie finding that Ramas was a "subordinate" of former President Marcos. The petition for
forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1 and its amendments apply
to respondents. The AFP Board Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained wealth
and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of
private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
proceeding with the case, without prejudice to any action that may be taken by the proper prosecutory
agency. The rule of law mandates that an agency of government be allowed to exercise only the powers
granted to it.
Petitioners argument that private respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the first
place. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGGs powers
are specific and limited. Unless given additional assignment by the President, PCGGs sole task is only to
recover the ill-gotten wealth of the Marcoses, their relatives and cronies. 29 Without these elements, the
PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to investigate and prosecute
their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement of the Court
in Migrino. This case was decided on 30 August 1990, which explains why private respondents only filed
their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that the parties may raise lack
of jurisdiction at any stage of the proceeding.30 Thus, we hold that there was no waiver of jurisdiction in
this case. Jurisdiction is vested by law and not by the parties to an action. 31
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the
preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan.32 The right of the State to forfeit unexplained wealth under RA No. 1379 is not subject
to prescription, laches or estoppel. 33
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of the
presentation of petitioners evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner has only
itself to blame for non-completion of the presentation of its evidence. First, this case has been pending
for four years before the Sandiganbayan dismissed it. Petitioner filed its Amended Complaint on 11
August 1987, and only began to present its evidence on 17 April 1989. Petitioner had almost two years
to prepare its evidence. However, despite this sufficient time, petitioner still delayed the presentation of
the rest of its evidence by filing numerous motions for postponements and extensions. Even before the
date set for the presentation of its evidence, petitioner filed, on 13 April 1989, a Motion for Leave to
Amend the Complaint.34 The motion sought "to charge the delinquent properties (which comprise most
of petitioners evidence) with being subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x."
The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since petitioner
did not state when it would file the amended complaint. On 18 April 1989, the Sandiganbayan set the
continuation of the presentation of evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28 September 1989, petitioner manifested its
inability to proceed with the presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events because this case has
been ready for trial for over a year and much of the delay hereon has been due to the inability of the
government to produce on scheduled dates for pre-trial and for trial documents and witnesses, allegedly
upon the failure of the military to supply them for the preparation of the presentation of evidence thereon.
Of equal interest is the fact that this Court has been held to task in public about its alleged failure to
move cases such as this one beyond the preliminary stage, when, in view of the developments such as
those of today, this Court is now faced with a situation where a case already in progress will revert back
to the preliminary stage, despite a five-month pause where appropriate action could have been
undertaken by the plaintiff Republic.35
On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation on
the unexplained wealth of private respondents as mandated by RA No. 1379. 36 The PCGG prayed for an
additional four months to conduct the preliminary investigation. The Sandiganbayan granted this request
and scheduled the presentation of evidence on 26-29 March 1990. However, on the scheduled date,
petitioner failed to inform the court of the result of the preliminary investigation the PCGG supposedly
conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with the presentation
of its evidence and to inform the court of "what lies ahead insofar as the status of the case is concerned
x x x."37 Still on the date set, petitioner failed to present its evidence. Finally, on 11 July 1990, petitioner
filed its Re-Amended Complaint.38 The Sandiganbayan correctly observed that a case already pending for
years would revert to its preliminary stage if the court were to accept the Re-Amended Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure to complete the
presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish the
presentation of its evidence. The Sandiganbayan overlooked petitioners delays and yet petitioner ended
the long-string of delays with the filing of a Re-Amended Complaint, which would only prolong even more
the disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to dismiss
the case since the PCGG has no jurisdiction to investigate and prosecute the case against private
respondents. This alone would have been sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture case against private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before completion of the
presentation of petitioners evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from Dimaanos
house as illegally seized and therefore inadmissible in evidence. This issue bears a significant effect on
petitioners case since these properties comprise most of petitioners evidence against private
respondents. Petitioner will not have much evidence to support its case against private respondents if
these properties are inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant
captioned "Illegal Possession of Firearms and Ammunition." Dimaano was not present during the raid but
Dimaanos cousins witnessed the raid. The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The raiding team seized these items: one
baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of 2,870,000 and US$50,000, jewelry, and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the search and seizure
"on March 3, 1986 or five days after the successful EDSA revolution." 39 Petitioner argues that a
revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing that
President Aquino and Vice President Laurel were "taking power in the name and by the will of the Filipino
people."40 Petitioner asserts that the revolutionary government effectively withheld the operation of the
1973 Constitution which guaranteed private respondents exclusionary right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution. Petitioner contends that all
rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from Dimaano and use the same
in evidence against her since at the time of their seizure, private respondents did not enjoy any
constitutional right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquinos
Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was "done in defiance of the provisions
of the 1973 Constitution."41 The resulting government was indisputably a revolutionary government
bound by no constitution or legal limitations except treaty obligations that the revolutionary government,
as the de jure government in the Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of the
1973 Constitution during the interregnum, that is, after the actual and effective take-over of power by
the revolutionary government following the cessation of resistance by loyalist forces up to 24 March 1986
(immediately before the adoption of the Provisional Constitution); and (2) whether the protection
accorded to individuals under the International Covenant on Civil and Political Rights ("Covenant") and
the Universal Declaration of Human Rights ("Declaration") remained in effect during the interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the interregnum.
However, we rule that the protection accorded to individuals under the Covenant and the Declaration
remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were the supreme
law because no constitution limited the extent and scope of such directives and orders. With the
abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher than
the directives and orders of the revolutionary government. Thus, during the interregnum, a person could
not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor a
Bill of Rights during the interregnum. As the Court explained in Letter of Associate Justice Reynato S.
Puno:42
A revolution has been defined as "the complete overthrow of the established government in any country
or state by those who were previously subject to it" or as "a sudden, radical and fundamental change in
the government or political system, usually effected with violence or at least some acts of violence." In
Kelsen's book, General Theory of Law and State, it is defined as that which "occurs whenever the legal
order of a community is nullified and replaced by a new order . . . a way not prescribed by the first order
itself."
It was through the February 1986 revolution, a relatively peaceful one, and more popularly known as the
"people power revolution" that the Filipino people tore themselves away from an existing regime. This
revolution also saw the unprecedented rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as "an inherent right of a
people to cast out their rulers, change their policy or effect radical reforms in their system of government
or institutions by force or a general uprising when the legal and constitutional methods of making such
change have proved inadequate or are so obstructed as to be unavailable." It has been said that "the
locus of positive law-making power lies with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form of government without regard to the
existing constitution."
xxx
It is widely known that Mrs. Aquinos rise to the presidency was not due to constitutional
processes; in fact, it was achieved in violation of the provisions of the 1973 Constitution as a
Batasang Pambansa resolution had earlier declared Mr. Marcos as the winner in the 1986
presidential election. Thus it can be said that the organization of Mrs. Aquinos Government which was
met by little resistance and her control of the state evidenced by the appointment of the Cabinet and
other key officers of the administration, the departure of the Marcos Cabinet officials, revamp of the
Judiciary and the Military signaled the point where the legal system then in effect, had ceased to
be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the Philippine Commission on Good Government
("PCGG") before the adoption of the Freedom Constitution. The sequestration orders, which direct the
freezing and even the take-over of private property by mere executive issuance without judicial action,
would violate the due process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary government bound by
no constitution. No one could validly question the sequestration orders as violative of the Bill of Rights
because there was no Bill of Rights during the interregnum. However, upon the adoption of the Freedom
Constitution, the sequestered companies assailed the sequestration orders as contrary to the Bill of Rights
of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good Government, 43 petitioner
Baseco, while conceding there was no Bill of Rights during the interregnum, questioned the continued
validity of the sequestration orders upon adoption of the Freedom Constitution in view of the due process
clause in its Bill of Rights. The Court ruled that the Freedom Constitution, and later the 1987 Constitution,
expressly recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the validity and propriety
of sequestration, freeze and takeover orders, it should be dispelled by the fact that these particular
remedies and the authority of the PCGG to issue them have received constitutional approbation and
sanction. As already mentioned, the Provisional or "Freedom" Constitution recognizes the power and duty
of the President to enact "measures to achieve the mandate of the people to . . . (r)ecover ill-gotten
properties amassed by the leaders and supporters of the previous regime and protect the interest of the
people through orders of sequestration or freezing of assets or accounts." And as also already adverted
to, Section 26, Article XVIII of the 1987 Constitution treats of, and ratifies the "authority to issue
sequestration or freeze orders under Proclamation No. 3 dated March 25, 1986."
The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the
sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the arguments in defense of the
present amendment.
For instance, I have carefully studied Minister Salongas lecture in the Gregorio Araneta University
Foundation, of which all of us have been given a copy. On the one hand, he argues that everything the
Commission is doing is traditionally legal. This is repeated by Commissioner Romulo also. Minister
Salonga spends a major portion of his lecture developing that argument. On the other hand, almost as
an afterthought, he says that in the end what matters are the results and not the legal niceties, thus
suggesting that the PCGG should be allowed to make some legal shortcuts, another word for niceties or
exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special protection? The
answer is clear. What they are doing will not stand the test of ordinary due process, hence they are
asking for protection, for exceptions. Grandes malos, grandes remedios, fine, as the saying stands, but
let us not say grandes malos, grande y malos remedios. That is not an allowable extrapolation. Hence,
we should not give the exceptions asked for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to hasten
constitutional normalization. Very much at the heart of the constitutional normalization is the full
effectivity of the Bill of Rights. We cannot, in one breath, ask for constitutional normalization and at the
same time ask for a temporary halt to the full functioning of what is at the heart of constitutionalism.
That would be hypocritical; that would be a repetition of Marcosian protestation of due process and rule
of law. The New Society word for that is "backsliding." It is tragic when we begin to backslide even before
we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The committee report asks
for extraordinary exceptions from the Bill of Rights for six months after the convening of Congress, and
Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the committee report is
asking for is that we should allow the new government to acquire the vice of disregarding the Bill of
Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the vice begin to think
that they have a vested right to its practice, and they will fight tooth and nail to keep the franchise. That
would be an unhealthy way of consolidating the gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an argument that is
very disturbing. When it comes from a staunch Christian like Commissioner Salonga, a Minister, and
repeated verbatim by another staunch Christian like Commissioner Tingson, it becomes doubly disturbing
and even discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of Rights on
the auction block. If the price is right, the search and seizure clause will be sold. "Open your Swiss bank
account to us and we will award you the search and seizure clause. You can keep it in your private safe."
Alternatively, the argument looks on the present government as hostage to the hoarders of hidden
wealth. The hoarders will release the hidden health if the ransom price is paid and the ransom price is
the Bill of Rights, specifically the due process in the search and seizure clauses. So, there is something
positively revolving about either argument. The Bill of Rights is not for sale to the highest bidder nor can
it be used to ransom captive dollars. This nation will survive and grow strong, only if it would become
convinced of the values enshrined in the Constitution of a price that is beyond monetary estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete all of Section 8 of
the committee report and allow the new Constitution to take effect in full vigor. If Section 8 is deleted,
the PCGG has two options. First, it can pursue the Salonga and the Romulo argument that what the
PCGG has been doing has been completely within the pale of the law. If sustained, the PCGG can go on
and should be able to go on, even without the support of Section 8. If not sustained, however, the PCGG
has only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude with what another
Christian replied when asked to toy around with the law. From his prison cell, Thomas More said, "I'll
give the devil benefit of law for my nations safety sake." I ask the Commission to give the devil benefit
of law for our nations sake. And we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment excepting sequestration
orders from the Bill of Rights, the Constitutional Commission still adopted the amendment as Section
26,44 Article XVIII of the 1987 Constitution. The framers of the Constitution were fully aware that absent
Section 26, sequestration orders would not stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly
render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum
the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights
found in the Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government, assumed responsibility
for the States good faith compliance with the Covenant to which the Philippines is a signatory. Article
2(1) of the Covenant requires each signatory State "to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights45 recognized in the present Covenant." Under Article
17(1) of the Covenant, the revolutionary government had the duty to insure that "[n]o one shall be
subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence."
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that "[n]o one
shall be arbitrarily deprived of his property." Although the signatories to the Declaration did not intend it
as a legally binding document, being only a declaration, the Court has interpreted the Declaration as part
of the generally accepted principles of international law and binding on the State.46 Thus, the
revolutionary government was also obligated under international law to observe the rights 47 of individuals
under the Declaration.
The revolutionary government did not repudiate the Covenant or the Declaration during the interregnum.
Whether the revolutionary government could have repudiated all its obligations under the Covenant or
the Declaration is another matter and is not the issue here. Suffice it to say that the Court considers the
Declaration as part of customary international law, and that Filipinos as human beings are proper subjects
of the rules of international law laid down in the Covenant. The fact is the revolutionary government did
not repudiate the Covenant or the Declaration in the same way it repudiated the 1973 Constitution. As
the de jure government, the revolutionary government could not escape responsibility for the States
good faith compliance with its treaty obligations under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the directives and
orders of the revolutionary government became subject to a higher municipal law that, if contravened,
rendered such directives and orders void. The Provisional Constitution adopted verbatim the Bill of Rights
of the 1973 Constitution.48 The Provisional Constitution served as a self-limitation by the revolutionary
government to avoid abuses of the absolute powers entrusted to it by the people.
During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by
government officers were valid so long as these officers did not exceed the authority granted them by
the revolutionary government. The directives and orders should not have also violated the Covenant or
the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since
the revolutionary government did not repudiate it. The warrant, issued by a judge upon proper
application, specified the items to be searched and seized. The warrant is thus valid with respect to the
items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioners witnesses, the raiding team confiscated items not included in the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only for weapons. What else, aside from
the weapons, were seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars, some jewelries, land
titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house of Elizabeth Dimaano.
Do you know the reason why your team also seized other properties not mentioned in said search
warrant?
A. During the conversation right after the conduct of said raid, I was informed that the reason why they
also brought the other items not included in the search warrant was because the money and other
jewelries were contained in attach cases and cartons with markings "Sony Trinitron", and I think three
(3) vaults or steel safes. Believing that the attach cases and the steel safes were containing firearms,
they forced open these containers only to find out that they contained money.
xxx
Q. You said you found money instead of weapons, do you know the reason why your team seized this It is obvious from the testimony of Captain Sebastian that the warrant did not include the monies,
money instead of weapons? communications equipment, jewelry and land titles that the raiding team confiscated. The search warrant
A. I think the overall team leader and the other two officers assisting him decided to bring along also the did not particularly describe these items and the raiding team confiscated them on its own authority. The
money because at that time it was already dark and they felt most secured if they will bring that because raiding team had no legal basis to seize these items without showing that these items could be the
they might be suspected also of taking money out of those items, your Honor. 49 subject of warrantless search and seizure.52 Clearly, the raiding team exceeded its authority when it
Cross-examination seized these items.
Atty. Banaag
Q. Were you present when the search warrant in connection with this case was applied before the
Municipal Trial Court of Batangas, Branch 1? The seizure of these items was therefore void, and unless these items are contraband per se, 53 and they
A. Yes, sir. are not, they must be returned to the person from whom the raiding seized them. However, we do not
Q. And the search warrant applied for by you was for the search and seizure of five (5) baby armalite declare that such person is the lawful owner of these items, merely that the search and seizure warrant
rifles M-16 and five (5) boxes of ammunition? could not be used as basis to seize and withhold these items from the possessor. We thus hold that these
A. Yes, sir. items should be returned immediately to Dimaano.
xxx
AJ AMORES WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the Sandiganbayan
Q. Before you applied for a search warrant, did you conduct surveillance in the house of Miss Elizabeth dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the records of this case
Dimaano? to the Ombudsman for such appropriate action as the evidence may warrant, and referring this case to
A. The Intelligence Operatives conducted surveillance together with the MSU elements, your Honor. the Commissioner of the Bureau of Internal Revenue for a determination of any tax liability of respondent
Q. And this party believed there were weapons deposited in the house of Miss Elizabeth Dimaano? Elizabeth Dimaano, are AFFIRMED.
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor. SO ORDERED.
Q. But they did not mention to you, the applicant for the search warrant, any other properties or
contraband which could be found in the residence of Miss Elizabeth Dimaano?
Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
A. They just gave us still unconfirmed report about some hidden items, for instance, the communications
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring opinion.
equipment and money. However, I did not include that in the application for search warrant considering
that we have not established concrete evidence about that. So when Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Q. So that when you applied for search warrant, you had reason to believe that only weapons were in
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
the house of Miss Elizabeth Dimaano?
Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato Puno.
A. Yes, your Honor.50
Tinga, J., separate opinion reserved.
xxx
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and how many
ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the fiscals office who
charged Elizabeth Dimaano for Illegal Possession of Firearms and Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscals office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a Memorandum Receipt in
the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant, like for instance,
jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along also the jewelries
and other items, sir. I do not really know where it was taken but they brought along also these articles.
I do not really know their reason for bringing the same, but I just learned that these were taken because
they might get lost if they will just leave this behind.
xxx
Q. How about the money seized by your raiding team, they were not also included in the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was discovered to be contained
in attach cases.1wphi1 These attach cases were suspected to be containing pistols or other high
powered firearms, but in the course of the search the contents turned out to be money. So the team
leader also decided to take this considering that they believed that if they will just leave the money
behind, it might get lost also.
Q. That holds true also with respect to the other articles that were seized by your raiding team, like
Transfer Certificates of Title of lands?
A. Yes, sir. I think they were contained in one of the vaults that were opened. 51
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31195 June 5, 1973
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR TOLENTINO,
FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON, ASENCION PACIENTE,
BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization (hereinafter referred to as PBMEO) is a
legitimate labor union composed of the employees of the respondent Philippine Blooming Mills Co., Inc.,
and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion
Paciente, Bonifacio Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the
petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacaang on
March 4, 1969, in protest against alleged abuses of the Pasig police, to be participated in by the workers
in the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular second and third shifts (from 7
A.M. to 4 P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent Company
of their proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge Joaquin M. Salvador of the
respondent Court reproduced the following stipulation of facts of the parties parties
3. That on March 2, 1969 complainant company learned of the projected mass
demonstration at Malacaang in protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-2:00 PM) workers as well
as those working in the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00
PM) in the morning of March 4, 1969;
4. That a meeting was called by the Company on March 3, 1969 at about 11:00 A.M.
at the Company's canteen, and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department and section heads. For the
PBMEO (1) Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or deny said projected mass
demonstration at Malacaang on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the planned demonstration and
stated that the demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the demonstration
has nothing to do with the Company because the union has no quarrel or dispute
with Management;
6. That Management, thru Atty. C.S. de Leon, Company personnel manager,
informed PBMEO that the demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however, that any demonstration
for that matter should not unduly prejudice the normal operation of the Company.
For which reason, the Company, thru Atty. C.S. de Leon warned the PBMEO
representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the officers
present who are the organizers of the demonstration, who shall fail to report for
work the following morning (March 4, 1969) shall be dismissed, because such failure
is a violation of the existing CBA and, therefore, would be amounting to an illegal
strike;
7. That at about 5:00 P.M. on March 3, 1969, another meeting was convoked
Company represented by Atty. C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and Florencio Padrigano. In this
afternoon meeting of March 3, 1969, Company reiterated and appealed to the
PBMEO representatives that while all workers may join the Malacaang
demonstration, the workers for the first and regular shift of March 4, 1969 should
be excused from joining the demonstration and should report for work; and thus
utilize the workers in the 2nd and 3rd shifts in order not to violate the provisions of
the CBA, particularly Article XXIV: NO LOCKOUT NO STRIKE'. All those who will
not follow this warning of the Company shall be dismiss; De Leon reiterated the
Company's warning that the officers shall be primarily liable being the organizers of
the mass demonstration. The union panel countered that it was rather too late to
change their plans inasmuch as the Malacaang demonstration will be held the
following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a cablegram to the
Company which was received 9:50 A.M., March 4, 1969, the contents of which are
as follows: 'REITERATING REQUEST EXCUSE DAY SHIFT EMPLOYEES JOINING
DEMONSTRATION MARCH 4, 1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400 proceeded with the demonstration
despite the pleas of the respondent Company that the first shift workers should not be required to
participate in the demonstration and that the workers in the second and third shifts should be utilized for
the demonstration from 6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass
demonstration on March 4, 1969, with the respondent Court, a charge against petitioners and other
employees who composed the first shift, charging them with a "violation of Section 4(a)-6 in relation to
Sections 13 and 14, as well as Section 15, all of Republic Act No. 875, and of the CBA providing for 'No
Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit
of Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding
complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T. Tirona and Acting
Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did not violate the existing CBA
because they gave the respondent Company prior notice of the mass demonstration on March 4, 1969;
that the said mass demonstration was a valid exercise of their constitutional freedom of speech against
the alleged abuses of some Pasig policemen; and that their mass demonstration was not a declaration
of strike because it was not directed against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the parties, Judge Joaquin M.
Salvador, in an order dated September 15, 1969, found herein petitioner PBMEO guilty of bargaining in
bad faith and herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente,
Bonifacio Vacuna, Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered to have lost their
status as employees of the respondent Company (Annex "F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the aforesaid order (p. 11, rec.);
and that they filed on September 29, 1969, because September 28, 1969 fell on Sunday (p. 59, rec.), a
motion for reconsideration of said order dated September 15, 1969, on the ground that it is contrary to
law and the evidence, as well as asked for ten (10) days within which to file their arguments pursuant to
Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.), respondent Company
averred that herein petitioners received on September 22, 1969, the order dated September 17 (should
be September 15), 1969; that under Section 15 of the amended Rules of the Court of Industrial Relations,
herein petitioners had five (5) days from September 22, 1969 or until September 27, 1969, within which
to file their motion for reconsideration; and that because their motion for reconsideration was two (2)
days late, it should be accordingly dismissed, invoking Bien vs. Castillo,1 which held among others, that
a motion for extension of the five-day period for the filing of a motion for reconsideration should be filed
before the said five-day period elapses (Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written arguments dated October 11,
1969, in support of their motion for reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed the motion for reconsideration
of herein petitioners for being pro forma as it was filed beyond the reglementary period prescribed by its
Rules (Annex "J", pp. 74-75, rec.), which herein petitioners received on October 28, 196 (pp. 12 & 76,
rec.).
At the bottom of the notice of the order dated October 9, 1969, which was released on October 24, 1969
and addressed to the counsels of the parties (pp. 75-76, rec.), appear the requirements of Sections 15,
16 and 17, as amended, of the Rules of the Court of Industrial Relations, that a motion for reconsideration
shall be filed within five (5) days from receipt of its decision or order and that an appeal from the decision,
resolution or order of the C.I.R., sitting en banc, shall be perfected within ten (10) days from receipt
thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a petition for relief from the order
dated October 9, 1969, on the ground that their failure to file their motion for reconsideration on time
was due to excusable negligence and honest mistake committed by the president of the petitioner Union
and of the office clerk of their counsel, attaching thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order dated October 9, 1969, herein
petitioners filed on November 3, 1969, with the Supreme Court, a notice of appeal (Annex "L", pp. 88-
89, rec.).
I or rational relation between the means employed by the law and its object or purpose that the law is
There is need of briefly restating basic concepts and principles which underlie the issues posed by the
case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and worth of the human personality
is the central core as well as the cardinal article of faith of our civilization. The inviolable character of
man as an individual must be "protected to the largest possible extent in his thoughts and in his beliefs
as the citadel of his person."2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and security "against the
assaults of opportunism, the expediency of the passing hour, the erosion of small encroachments, and
the scorn and derision of those who have no patience with general principles." 3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights is to withdraw
"certain subjects from the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials, and to establish them as legal principles to be applied by the courts. One's rights
to life, liberty and property, to free speech, or free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." 4 Laski
proclaimed that "the happiness of the individual, not the well-being of the State, was the criterion by
which its behaviour was to be judged. His interests, not its power, set the limits to the authority it was
entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to petition are included among the
immunities reserved by the sovereign people, in the rhetorical aphorism of Justice Holmes, to protect the
ideas that we abhor or hate more than the ideas we cherish; or as Socrates insinuated, not only to protect
the minority who want to talk, but also to benefit the majority who refuse to listen. 6 And as Justice
Douglas cogently stresses it, the liberties of one are the liberties of all; and the liberties of one are not
safe unless the liberties of all are protected.7
(4) The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete fulfillment.
Thru these freedoms the citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public affairs as well as in the
discipline of abusive public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of human rights over property rights
is recognized.8 Because these freedoms are "delicate and vulnerable, as well as supremely precious in
our society" and the "threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions," they "need breathing space to survive," permitting government regulation only
"with narrow specificity."9
Property and property rights can be lost thru prescription; but human rights are imprescriptible. If human
rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against the tyranny of officials, of majorities,
of the influential and powerful, and of oligarchs political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred position
as they are essential to the preservation and vitality of our civil and political institutions; 10 and such
priority "gives these liberties the sanctity and the sanction not permitting dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by the fact that a mere reasonable
neither arbitrary nor discriminatory nor oppressive would suffice to validate a law which restricts or
impairs property rights. 12 On the other hand, a constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a grave and immediate danger of a substantive
evil which the State has the right to prevent. So it has been stressed in the main opinion of Mr. Justice
Fernando in Gonzales vs. Comelec and reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It
should be added that Mr. Justice Barredo inGonzales vs. Comelec, supra, like Justices Douglas, Black and
Goldberg in N.Y. Times Co. vs. Sullivan, 14believes that the freedoms of speech and of the press as well
as of peaceful assembly and of petition for redress of grievances are absolute when directed against
public officials or "when exercised in relation to our right to choose the men and women by whom we
shall be governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests test. 16 Chief Justice
Vinson is partial to the improbable danger rule formulated by Chief Judge Learned Hand, viz. whether
the gravity of the evil, discounted by its improbability, justifies such invasion of free expression as is
necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass demonstration was not a
declaration of strike, concluded that by their "concerted act and the occurrence temporary stoppage of
work," herein petitioners are guilty bargaining in bad faith and hence violated the collective bargaining
agreement with private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be sustained. The
demonstration held petitioners on March 4, 1969 before Malacaang was against alleged abuses of some
Pasig policemen, not against their employer, herein private respondent firm, said demonstrate was purely
and completely an exercise of their freedom expression in general and of their right of assembly and
petition for redress of grievances in particular before appropriate governmental agency, the Chief
Executive, again the police officers of the municipality of Pasig. They exercise their civil and political
rights for their mutual aid protection from what they believe were police excesses. As matter of fact, it
was the duty of herein private respondent firm to protect herein petitioner Union and its members fro
the harassment of local police officers. It was to the interest herein private respondent firm to rally to
the defense of, and take up the cudgels for, its employees, so that they can report to work free from
harassment, vexation or peril and as consequence perform more efficiently their respective tasks enhance
its productivity as well as profits. Herein respondent employer did not even offer to intercede for its
employees with the local police. Was it securing peace for itself at the expenses of its workers? Was it
also intimidated by the local police or did it encourage the local police to terrorize or vex its workers? Its
failure to defend its own employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby subject its lowly employees to
further indignities.
In seeking sanctuary behind their freedom of expression well as their right of assembly and of petition
against alleged persecution of local officialdom, the employees and laborers of herein private respondent
firm were fighting for their very survival, utilizing only the weapons afforded them by the Constitution
the untrammelled enjoyment of their basic human rights. The pretension of their employer that it would
suffer loss or damage by reason of the absence of its employees from 6 o'clock in the morning to 2
o'clock in the afternoon, is a plea for the preservation merely of their property rights. Such apprehended
loss or damage would not spell the difference between the life and death of the firm or its owners or its
management. The employees' pathetic situation was a stark reality abused, harassment and
persecuted as they believed they were by the peace officers of the municipality. As above intimated, the
condition in which the employees found themselves vis-a-vis the local police of Pasig, was a matter that
vitally affected their right to individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being broken in morale and
brutalized in spirit-can never be fully evaluated in monetary terms. The wounds fester and the scars
remain to humiliate him to his dying day, even as he cries in anguish for retribution, denial of which is
like rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights freedom of expression, of peaceful assembly and
of petition for redress of grievances over property rights has been sustained. 18 Emphatic reiteration
of this basic tenet as a coveted boon at once the shield and armor of the dignity and worth of the
human personality, the all-consuming ideal of our enlightened civilization becomes Our duty, if
freedom and social justice have any meaning at all for him who toils so that capital can produce economic
goods that can generate happiness for all. To regard the demonstration against police officers, not against
the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from employment of the demonstrating employees,
stretches unduly the compass of the collective bargaining agreement, is "a potent means of inhibiting
speech" and therefore inflicts a moral as well as mortal wound on the constitutional guarantees of free
expression, of peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the employees, according to the
respondent Court Industrial Relations, in effect imposes on the workers the "duty ... to observe regular
working hours." The strain construction of the Court of Industrial Relations that a stipulated working
shifts deny the workers the right to stage mass demonstration against police abuses during working
hours, constitutes a virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on such a slender ground.
The mass demonstration staged by the employees on March 4, 1969 could not have been legally enjoined
by any court, such an injunction would be trenching upon the freedom expression of the workers, even
if it legally appears to be illegal picketing or strike. 20 The respondent Court of Industrial Relations in the
case at bar concedes that the mass demonstration was not a declaration of a strike "as the same not
rooted in any industrial dispute although there is concerted act and the occurrence of a temporary
stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees to participate in the
demonstration and that they suggested to the Union that only the first and regular shift from 6 A.M. to
2 P.M. should report for work in order that loss or damage to the firm will be averted. This stand failed
appreciate the sine qua non of an effective demonstration especially by a labor union, namely the
complete unity of the Union members as well as their total presence at the demonstration site in order
to generate the maximum sympathy for the validity of their cause but also immediately action on the
part of the corresponding government agencies with jurisdiction over the issues they raised against the
local police. Circulation is one of the aspects of freedom of expression. 21 If demonstrators are reduced
by one-third, then by that much the circulation of the issues raised by the demonstration is diminished.
The more the participants, the more persons can be apprised of the purpose of the rally. Moreover, the
absence of one-third of their members will be regarded as a substantial indication of disunity in their
ranks which will enervate their position and abet continued alleged police persecution. At any rate, the
Union notified the company two days in advance of their projected demonstration and the company could
have made arrangements to counteract or prevent whatever losses it might sustain by reason of the
absence of its workers for one day, especially in this case when the Union requested it to excuse only
the day-shift employees who will join the demonstration on March 4, 1969 which request the Union
reiterated in their telegram received by the company at 9:50 in the morning of March 4, 1969, the day
of the mass demonstration (pp. 42-43, rec.). There was a lack of human understanding or compassion
on the part of the firm in rejecting the request of the Union for excuse from work for the day shifts in
order to carry out its mass demonstration. And to regard as a ground for dismissal the mass
demonstration held against the Pasig police, not against the company, is gross vindictiveness on the part
of the employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice. Because the refusal on the part of the
respondent firm to permit all its employees and workers to join the mass demonstration against alleged
police abuses and the subsequent separation of the eight (8) petitioners from the service constituted an
unconstitutional restraint on the freedom of expression, freedom of assembly and freedom petition for
redress of grievances, the respondent firm committed an unfair labor practice defined in Section 4(a-1)
in relation to Section 3 of Republic Act No. 875, otherwise known as the Industrial Peace Act. Section 3
of Republic Act No. 8 guarantees to the employees the right "to engage in concert activities for ... mutual
aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an employer interfere with,
restrain or coerce employees in the exercise their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by the workers of the respondent
firm on March 4, 1969, was for their mutual aid and protection against alleged police abuses, denial of
which was interference with or restraint on the right of the employees to engage in such common action
to better shield themselves against such alleged police indignities. The insistence on the part of the
respondent firm that the workers for the morning and regular shift should not participate in the mass
demonstration, under pain of dismissal, was as heretofore stated, "a potent means of inhibiting
speech." 22
Such a concerted action for their mutual help and protection deserves at least equal protection as the
concerted action of employees in giving publicity to a letter complaint charging bank president with
immorality, nepotism, favoritism an discrimination in the appointment and promotion of ban
employees. 23 We further ruled in the Republic Savings Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is not
necessary that union activity be involved or that collective bargaining be contemplated," as long as the
concerted activity is for the furtherance of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned order of respondent Court dated
September 15, 1969, the company, "while expressly acknowledging, that the demonstration is an
inalienable right of the Union guaranteed by the Constitution," nonetheless emphasized that "any
demonstration for that matter should not unduly prejudice the normal operation of the company" and
"warned the PBMEO representatives that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the officers present who are the
organizers of the demonstration, who shall fail to report for work the following morning (March 4, 1969)
shall be dismissed, because such failure is a violation of the existing CBA and, therefore, would be
amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce
the employees from joining the mass demonstration. However, the issues that the employees raised
against the local police, were more important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen to them was to lose a day's
wage by reason of their absence from work on the day of the demonstration. One day's pay means much
to a laborer, more especially if he has a family to support. Yet, they were willing to forego their one-day
salary hoping that their demonstration would bring about the desired relief from police abuses. But
management was adamant in refusing to recognize the superior legitimacy of their right of free speech,
free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to demand from the workers proof
of the truth of the alleged abuses inflicted on them by the local police, it thereby concedes that the
evidence of such abuses should properly be submitted to the corresponding authorities having jurisdiction
over their complaint and to whom such complaint may be referred by the President of the Philippines for
proper investigation and action with a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations found that the demonstration
"paralyzed to a large extent the operations of the complainant company," the respondent Court of
Industrial Relations did not make any finding as to the fact of loss actually sustained by the firm. This
significant circumstance can only mean that the firm did not sustain any loss or damage. It did not
present evidence as to whether it lost expected profits for failure to comply with purchase orders on that
day; or that penalties were exacted from it by customers whose orders could not be filled that day of the
demonstration; or that purchase orders were cancelled by the customers by reason of its failure to deliver
the materials ordered; or that its own equipment or materials or products were damaged due to absence
of its workers on March 4, 1969. On the contrary, the company saved a sizable amount in the form of
wages for its hundreds of workers, cost of fuel, water and electric consumption that day. Such savings
could have amply compensated for unrealized profits or damages it might have sustained by reason of
the absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and assembly as well as the right to
petition for redress of grievances of the employees, the dismissal of the eight (8) leaders of the workers
for proceeding with the demonstration and consequently being absent from work, constitutes a denial of
social justice likewise assured by the fundamental law to these lowly employees. Section 5 of Article II
of the Constitution imposes upon the State "the promotion of social justice to insure the well-being and
economic security of all of the people," which guarantee is emphasized by the other directive in Section
6 of Article XIV of the Constitution that "the State shall afford protection to labor ...". Respondent Court
of Industrial Relations as an agency of the State is under obligation at all times to give meaning and
substance to these constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless constitutional patter." Under the
Industrial Peace Act, the Court of Industrial Relations is enjoined to effect the policy of the law "to
eliminate the causes of industrial unrest by encouraging and protecting the exercise by employees of
their right to self-organization for the purpose of collective bargaining and for the promotion of their
moral, social and economic well-being." It is most unfortunate in the case at bar that respondent Court
of Industrial Relations, the very governmental agency designed therefor, failed to implement this policy
and failed to keep faith with its avowed mission its raison d'etre as ordained and directed by the
Constitution.
V especially for the aggrieved workers, who usually do not have the ready funds to meet the necessary
It has been likewise established that a violation of a constitutional right divests the court of jurisdiction;
and as a consequence its judgment is null and void and confers no rights. Relief from a criminal conviction
secured at the sacrifice of constitutional liberties, may be obtained through habeas corpus proceedings
even long after the finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of
an individual, who is convicted by final judgment through a forced confession, which violated his
constitutional right against self-incrimination; 25or who is denied the right to present evidence in his
defense as a deprivation of his liberty without due process of law, 26 even after the accused has already
served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm trenched upon these constitutional
immunities of petitioners. Both failed to accord preference to such rights and aggravated the inhumanity
to which the aggrieved workers claimed they had been subjected by the municipal police. Having violated
these basic human rights of the laborers, the Court of Industrial Relations ousted itself of jurisdiction and
the questioned orders it issued in the instant case are a nullity. Recognition and protection of such
freedoms are imperative on all public offices including the courts 28 as well as private citizens and
corporations, the exercise and enjoyment of which must not be nullified by mere procedural rule
promulgated by the Court Industrial Relations exercising a purely delegate legislative power, when even
a law enacted by Congress must yield to the untrammelled enjoyment of these human rights. There is
no time limit to the exercise of the freedoms. The right to enjoy them is not exhausted by the delivery
of one speech, the printing of one article or the staging of one demonstration. It is a continuing immunity
to be invoked and exercised when exigent and expedient whenever there are errors to be rectified,
abuses to be denounced, inhumanities to be condemned. Otherwise these guarantees in the Bill of Rights
would be vitiated by rule on procedure prescribing the period for appeal. The battle then would be reduced
to a race for time. And in such a contest between an employer and its laborer, the latter eventually loses
because he cannot employ the best an dedicated counsel who can defend his interest with the required
diligence and zeal, bereft as he is of the financial resources with which to pay for competent legal
services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for reconsideration of its order or writ should
filed within five (5) days from notice thereof and that the arguments in support of said motion shall be
filed within ten (10) days from the date of filing of such motion for reconsideration (Sec. 16). As above
intimated, these rules of procedure were promulgated by the Court of Industrial Relations pursuant to a
legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or seven (7) days from notice on
September 22, 1969 of the order dated September 15, 1969 or two (2) days late. Petitioners claim that
they could have filed it on September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2) days late defeat the rights of
the petitioning employees? Or more directly and concretely, does the inadvertent omission to comply
with a mere Court of Industrial Relations procedural rule governing the period for filing a motion for
reconsideration or appeal in labor cases, promulgated pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious in the light of the aforecited cases. To accord
supremacy to the foregoing rules of the Court of Industrial Relations over basic human rights sheltered
by the Constitution, is not only incompatible with the basic tenet of constitutional government that the
Constitution is superior to any statute or subordinate rules and regulations, but also does violence to
natural reason and logic. The dominance and superiority of the constitutional right over the aforesaid
Court of Industrial Relations procedural rule of necessity should be affirmed. Such a Court of Industrial
Relations rule as applied in this case does not implement or reinforce or strengthen the constitutional
rights affected,' but instead constrict the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court of Industrial Relations rule, promulgated as it was pursuant to a mere
legislative delegation, is unreasonable and therefore is beyond the authority granted by the Constitution
and the law. A period of five (5) days within which to file a motion for reconsideration is too short,
expenses therefor. In case of the Court of Appeals and the Supreme Court, a period of fifteen (15) days
has been fixed for the filing of the motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1,
Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the motion for reconsideration
could have been only one day if September 28, 1969 was not a Sunday. This fact accentuates the
unreasonableness of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated September 27, 1969, is based on
the ground that the order sought to be reconsidered "is not in accordance with law, evidence and facts
adduced during the hearing," and likewise prays for an extension of ten (10) days within which to file
arguments pursuant to Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex
"G", pp. 57-60, rec.); although the arguments were actually filed by the herein petitioners on October
14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period required for the filing of such
supporting arguments counted from the filing of the motion for reconsideration. Herein petitioners
received only on October 28, 1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the reglementary period (Annex "J", pp.
74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider is filed out of time, or where
the arguments in suppf such motion are filed beyond the 10 day reglementary period provided for by the
Court of Industrial Relations rules, the order or decision subject of 29-a reconsideration becomes final and
unappealable. But in all these cases, the constitutional rights of free expression, free assembly and
petition were not involved.
It is a procedural rule that generally all causes of action and defenses presently available must be
specifically raised in the complaint or answer; so that any cause of action or defense not raised in such
pleadings, is deemed waived. However, a constitutional issue can be raised any time, even for the first
time on appeal, if it appears that the determination of the constitutional issue is necessary to a decision
of the case, the very lis mota of the case without the resolution of which no final and complete
determination of the dispute can be made. 30 It is thus seen that a procedural rule of Congress or of the
Supreme Court gives way to a constitutional right. In the instant case, the procedural rule of the Court
of Industrial Relations, a creature of Congress, must likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the unfair labor practice charged against them and in
their defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered no less by the organic law, is a
most compelling reason to deny application of a Court of Industrial Relations rule which impinges on such
human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power to "suspend its own rules or
to except a particular case from its operation, whenever the purposes of justice require." 30-b Mr. Justice
Barredo in his concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added
that
Under this authority, this Court is enabled to cove with all situations without
concerning itself about procedural niceties that do not square with the need to do
justice, in any case, without further loss of time, provided that the right of the parties
to a full day in court is not substantially impaired. Thus, this Court may treat an
appeal as a certiorari and vice-versa. In other words, when all the material facts are
spread in the records before Us, and all the parties have been duly heard, it matters
little that the error of the court a quo is of judgment or of jurisdiction. We can then
and there render the appropriate judgment. Is within the contemplation of this
doctrine that as it is perfectly legal and within the power of this Court to strike down
in an appeal acts without or in excess of jurisdiction or committed with grave abuse
of discretion, it cannot be beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a court a quo which cannot
be exactly categorized as a flaw of jurisdiction. If there can be any doubt, which I
do not entertain, on whether or not the errors this Court has found in the decision
of the Court of Appeals are short of being jurisdiction nullities or excesses, this Court
would still be on firm legal grounds should it choose to reverse said decision here
and now even if such errors can be considered as mere mistakes of judgment or only
as faults in the exercise of jurisdiction, so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations rule in this particular case at
bar would an unreasoning adherence to "Procedural niceties" which denies justice to the herein laborers,
whose basic human freedoms, including the right to survive, must be according supremacy over the
property rights of their employer firm which has been given a full hearing on this case, especially when,
as in the case at bar, no actual material damage has be demonstrated as having been inflicted on its
property rights.
If We can disregard our own rules when justice requires it, obedience to the Constitution renders more
imperative the suspension of a Court of Industrial Relations rule that clash with the human rights
sanctioned and shielded with resolution concern by the specific guarantees outlined in the organic law.
It should be stressed that the application in the instant case Section 15 of the Court of Industrial Relations
rules relied upon by herein respondent firm is unreasonable and therefore such application becomes
unconstitutional as it subverts the human rights of petitioning labor union and workers in the light of the
peculiar facts and circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial Relations rules with reference
to the case at is also authorized by Section 20 of Commonwealth Act No. 103, the C.I.R. charter, which
enjoins the Court of Industrial Relations to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms ..."
On several occasions, We emphasized this doctrine which was re-stated by Mr. Justice Barredo, speaking
for the Court, in the 1970 case of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the petitioners in the motion for
new trial is not "newly discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such criterion is not binding upon
the Court of Industrial Relations. Under Section 20 of Commonwealth Act No. 103,
'The Court of Industrial Relations shall adopt its, rules or procedure and shall have
such other powers as generally pertain to a court of justice: Provided, however, That
in the hearing, investigation and determination of any question or controversy and
in exercising any duties and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case, without regard to technicalities
or legal forms and shall not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just and equitable.' By this
provision the industrial court is disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even restricted to the specific relief
demanded by the parties but may issue such orders as may be deemed necessary
or expedient for the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb. 17, 1940;
Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For these reasons, We
believe that this provision is ample enough to have enabled the respondent court to
consider whether or not its previous ruling that petitioners constitute a minority was
founded on fact, without regard to the technical meaning of newly discovered
evidence. ... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil. 578).
(emphasis supplied.)
To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in the instant case is
to rule in effect that the poor workers, who can ill-afford an alert competent lawyer, can no longer seek
the sanctuary of human freedoms secured to them by the fundamental law, simply because their counsel
erroneously believing that he received a copy of the decision on September 23, 1969, instead of
September 22, 1969 - filed his motion for reconsideration September 29, 1969, which practically is only
one day late considering that September 28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they ceased to be instruments of
justice, for the attainment of which such rules have been devised. Summarizing the jurisprudence on
this score, Mr. Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-f Stated:
 As was so aptly expressed by Justice Moreland in Alonso v. Villamor (16 Phil. 315
[1910]. The Villamor decision was cited with approval in Register of Deeds v. Phil.
Nat. Bank, 84 Phil. 600 [1949]; Potenciano v. Court of Appeals, 104 Phil. 156 [1958]
and Uy v. Uy, 14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and becomes its
great hindrance and chief enemy, deserves scant consideration from courts." (Ibid.,
p, 322.) To that norm, this Court has remained committed. The late Justice Recto in
Blanco v. Bernabe, (63 Phil. 124 [1936]) was of a similar mind. For him the
interpretation of procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their entirety, 'they
were adopted not as ends themselves for the compliance with which courts have
organized and function, but as means conducive to the realization the administration
of the law and of justice (Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice of substantial rights of a
litigant in altar of sophisticated technicalities with impairment of the sacred principles
of justice." (Potenciano v. Court of Appeals, 104 Phil. 156, 161 [1958]). As succinctly
put by Justice Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In the latest
decision in point promulgated in 1968, (Udan v. Amon, (1968, 23 SCRA citing
McEntee v. Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice Zaldivar was
partial to an earlier formulation of Justice Labrador that rules of procedure "are not
to be applied in a very rigid, technical sense"; but are intended "to help secure
substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were to be given effect, the dismissal
or termination of the employment of the petitioning eight (8) leaders of the Union is harsh for a one-day
absence from work. The respondent Court itself recognized the severity of such a sanction when it did
not include the dismissal of the other 393 employees who are members of the same Union and who
participated in the demonstration against the Pasig police. As a matter of fact, upon the intercession of
the Secretary of Labor, the Union members who are not officers, were not dismissed and only the Union
itself and its thirteen (13) officers were specifically named as respondents in the unfair labor practice
charge filed against them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-
30, rec.). Counsel for respondent firm insinuates that not all the 400 or so employee participated in the
demonstration, for which reason only the Union and its thirteen (13) officers were specifically named in
the unfair labor practice charge (p. 20, respondent's brief). If that were so, then many, if not all, of the
morning and regular shifts reported for work on March 4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain any damage.
The appropriate penalty if it deserves any penalty at all should have been simply to charge said
one-day absence against their vacation or sick leave. But to dismiss the eight (8) leaders of the petitioner
Union is a most cruel penalty, since as aforestated the Union leaders depend on their wages for their
daily sustenance as well as that of their respective families aside from the fact that it is a lethal blow to
unionism, while at the same time strengthening the oppressive hand of the petty tyrants in the localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from those who consciously seek
to destroy our system of Government, but from men of goodwill good men who
allow their proper concerns to blind them to the fact that what they propose to
accomplish involves an impairment of liberty.
... The Motives of these men are often commendable. What we must remember,
however, is thatpreservation of liberties does not depend on motives. A suppression
of liberty has the same effect whether the suppress or be a reformer or an outlaw.
The only protection against misguided zeal is a constant alertness of the infractions
of the guarantees of liberty contained in our Constitution. Each surrender of liberty
to the demands of the moment makes easier another, larger surrender. The battle
over the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the liberties of all are protected.
... But even if we should sense no danger to our own liberties, even if we feel secure
because we belong to a group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less fortunate that we in all honor
and good conscience must be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but a complete lack of sympathetic
understanding of the plight of its laborers who claim that they are being subjected to indignities by the
local police, It was more expedient for the firm to conserve its income or profits than to assist its
employees in their fight for their freedoms and security against alleged petty tyrannies of local police
officers. This is sheer opportunism. Such opportunism and expediency resorted to by the respondent
company assaulted the immunities and welfare of its employees. It was pure and implement selfishness,
if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where the petitioner Bank
dismissed eight (8) employees for having written and published "a patently libelous letter ... to the Bank
president demanding his resignation on the grounds of immorality, nepotism in the appointment and
favoritism as well as discrimination in the promotion of bank employees." Therein, thru Mr. Justice Castro,
We ruled:
It will avail the Bank none to gloat over this admission of the respondents. Assuming
that the latter acted in their individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged in concerted activity, in the
exercise of their right of self organization that includes concerted activity for mutual
aid and protection, (Section 3 of the Industrial Peace Act ...) This is the view of some
members of this Court. For, as has been aptly stated, the joining in protests or
demands, even by a small group of employees, if in furtherance of their interests as
such, is a concerted activity protected by the Industrial Peace Act. It is not necessary
that union activity be involved or that collective bargaining be contemplated.
(Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed the respondents to air
their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to discipline for what it calls the
respondents' libel in giving undue publicity to their letter-charge. To be sure, the
right of self-organization of employees is not unlimited (Republic Aviation Corp. vs.
NLRB 324 U.S. 793 [1945]), as the right of the employer to discharge for cause
(Philippine Education Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960)
is undenied. The Industrial Peace Act does not touch the normal exercise of the right
of the employer to select his employees or to discharge them. It is directed solely
against the abuse of that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177 [1941])...
xxx xxx xxx
 In the final sum and substance, this Court is in unanimity that the Bank's conduct,
identified as an interference with the employees' right of self-organization or as a
retaliatory action, and/or as a refusal to bargain collectively, constituted an unfair
labor practice within the meaning and intendment of section 4(a) of the Industrial
Peace Act. (Emphasis supplied.) 33

If free expression was accorded recognition and protection to fortify labor unionism in the Republic
Savings case, supra, where the complaint assailed the morality and integrity of the bank president no
less, such recognition and protection for free speech, free assembly and right to petition are rendered all
the more justifiable and more imperative in the case at bar, where the mass demonstration was not
against the company nor any of its officers.

WHEREFORE, judgement is hereby rendered:

(1) setting aside as null and void the orders of the respondent Court of Industrial Relations dated
September 15 and October 9, 1969; and

(2) directing the re instatement of the herein eight (8) petitioners, with full back pay from the date of
their separation from the service until re instated, minus one day's pay and whatever earnings they might
have realized from other sources during their separation from the service.

With costs against private respondent Philippine Blooming Company, Inc.

Zaldivar, Castro, Fernando and Esguerra, JJ., concur.

Makalintal, C.J, took no part.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-8974 October 18, 1957
APOLONIO CABANSAG, plaintiff,
vs.
GEMINIANA MARIA FERNANDEZ, ET AL., defendants.
APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V. MERRERA, respondents-
appellants.
Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and
Solicitor Troadio T. Quiazon, Jr., appellee.
Merrera and Merrera for appellants.
BAUTISTA ANGELO, J.:
This is a contempt proceeding which arose in Civil Case No. 9564 of the Court of First Instance of
Pangasinan wherein Apolonio Cabansag and his lawyers Roberto V. Merrera were found guilty and
sentenced the first to pay a fine of P20 and the last two P50 each with the warning that a repetition of
the of offense will next time be heavily dealt with.
Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of Pangasinan a complaint
seeking the ejectment of Geminiana Fernandez, et al. from a parcel of land. Defendants filed their answer
on January 31, 1947 and a motion to dismiss on February 2, 1947 and a motion of plaintiff's counsel, set
the case for hearing on July 30, 1947. The meeting was postponed to August 8, 1947. On that day only
one witness testified and the case was postponed to August 25, 1947. Thereafter, three incidents
developed, namely: one regarding a claim for damages which was answered by defendants, another
concerning the issuance of a writ of preliminary injunction which was set for on March 23, 1948, and the
third relative to an alleged contempt for violation of an agreement of the parties approved by the court.
Pleadings were filed by the parties on these incidents and the court set the case for hearing on October
27, 1948. Hearing was postponed to December 10, 1948. On this date, only part of the evidence was
received and the next hearing was scheduled for January 24,1949 when again only a part of the evidence
was received and the case was continued to October 4, 1949.
On October 4, 1949, the court, presided over by Judge Villamor upon petition of both parties, ordered
the stenographers who took down the notes during the previous hearings to transcribe them within 15
days upon payment of their fees, and the hearing was postponed until the transcript of said notes had
been submitted. Notwithstanding the failure of the stenographers to transcribe their notes, the hearing
was set for March 17, 1950. Two more postponements followed for March 23, 1950 and March 27, 1950.
On August 9, 1950, August 23, 1950, September 26, 1950 and November 29, 1950, hearings were had
but the case was only partly tried to be postponed again to January 30, 1951 and February 19, 1951.
Partial hearings were held on February 20, 1951, March 12, 1951 and June 6,1951. These hearings were
followed by three more postponements and on August 15, 1951, the case was partially heard. After this
partial hearing, the trial was continued on March 6, 1952 only to be postponed to May 27, 1952. No
hearing took place on said date and the case was set for continuation on December 9, 1952 when the
court, Judge Pasicolan presiding, issued an order suggesting to the parties to arrange with the
stenographers who took down the notes to transcribe their respective notes and that the case would be
set for hearing after the submission of the transcript. From December 9, 1952 to August 12, 1954, no
further step was taken either by the court or any of the contending parties in the case. .
On December 30, 1953, President Magsaysay assumed office, he issued Executive Order No. I creating
the Presidential Complaints and Action Commission (PCAC), which was later superseded by Executive
Order 19 promulgated on March 17, 1954. And on August 12, 1954 Apolonio Cabansag, apparently irked
and disappointed by the delay in the disposition of his case, wrote the PCAC, a letter copy which he
furnished the Secretary of Justice and the Executive Judge of the Court of First Instance of Pangasinan,
which reads:
We, poor people of the Philippines are very grateful for the creation of your Office. Unlike in
the old days, poor people are not heard, but now the PCAC is the sword of Damocles ready to
smite bureaucratic aristocracy. Poor people can now rely on PCAC to help them.
Undaunted, the undersigned begs to request the help of the PCAC in the interest of public
service, as President Magsaysay has in mind to create the said PACC, to have his old case
stated above be terminated once and for all. The undersigned has long since been deprived of
his land thru the careful maneuvers of a tactical lawyer. The said case which had long been
pending could not be decided due to the fact that the transcript of the records has not, as yet,
been transcribed by the stenographers who took the stenographic notes. The new Judges could
not proceed to hear the case before the transcription of the said notes. The stenographers who
took the notes are now assigned in another courts. It seems that the undersigned will be
deprived indefinitely of his right of possession over the land he owns. He has no other recourse
than to ask the help of the ever willing PCAC to help him solve his predicament at an early
date.
Now then, Mr. Chief, the undersigned relies on you to do your utmost best to bring justice to
its final destination. My confidence reposes in you. Thanks.
Most confidently yours,
(Sgd.) APOLONIO CABANSAG
Plaintiff
Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk of Court of First Instance
of Pangasinan instructing him to require the stenographers concerned to transcribe their notes in Civil
Case No. 9564. The clerk of court, upon receipt of this instruction on August 27, 1954, referred the
matter to Judge Jesus P. Morfe before whom the case was then informing him that the two stenographers
concerned, Miss Iluminada Abello and Juan Gaspar, have already been assigned elsewhere. On the same
date, Judge Morfe wrote the Secretary of Justice informing him that under provisions of Act No. 2383
and Section 12 of Rule 41 of the Rules of Court, said stenographers are not obliged to transcribe their
notes except in cases of appeal and that since the parties are not poor litigants, they are not entitled to
transcription free of charge, aside from the fact that said stenographers were no longer under his
jurisdiction.
Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for defendants, filed a motion before
Judge Morfe praying that Apolonio Cabansag be declared in contempt of court for an alleged scurrilous
remark he made in his letter to the PCAC to the effect that he, Cabansag, has long been deprived of his
land "thru the careful maneuvers of a tactical lawyer", to which counsel for Cabansag replied with a
counter-charge praying that Atty. Fernandez be in turn declared in contempt because of certain
contemptuous remarks made by him in his pleading. Acting on these charges and counter- charges, on
September 14, 1954, Judge Morfe dismissed both charges but ordered Cabansag to show cause in writing
within 10 days why he should not be held liable for contempt for sending the above letter to the PCAC
which tended to degrade the court in the eyes of the President and the people. Cabansag filed his answer
stating that he did not have the idea to besmirch the dignity or belittle the respect due the court nor was
he actuated with malice when he addressed the letter to the PCAC; that there is no single contemptuous
word in said letter nor was it intended to give the Chief Executive a wrong impression or opinion of the
court; and that if there was any inefficiency in the disposal of his case, the same was committed by the
judges who previously intervened in the case.
In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera and Rufino V. Merrera' also
submitted a written manifestation stating that the sending of the letter to their client to the PCAC was
through their knowledge and consent because they believed that there was nothing wrong in doing so.
And it appearing that said attorneys had a hand in the writing and remittance of the letter to the PCAC,
Judge Morfe on, on September 29, 1954, issued another order requiring also said attorneys to show
cause why they should not likewise be held for contempt for having committed acts which tend to impede,
obstruct or degrade the administration of justice.
Anent the charge for contempt preferred by Judge Morfe against Apolonio Cabansag, several incidents
took place touching on the right of the Special Counsel of the Department of Justice to appear as counsel
for Cabansag, which were however settled when the court allowed said Special Counsel to appear as
amicus curiae in his official capacity. In addition to this Special Counsel, other members of the local bar
were likewise allowed to appear for respondents in view of the importance of the issues involved. After
due hearing, where the counsel of respondents were allowed to argue and submit memoranda, the
decision finding respondents guilty of contempt and sentencing them to pay a fine as stated in the early
part of this decision. Respondents in due time appealed to this Court.
The issues involved in this appeal appear well stated in the decision of the trial Court. They are: (a) Did
the writing in the letter in question to the PCAC tend directly or indirectly to put the lower court into
disrepute or belittle, degrade or embarrass it in its administration of justice?; and (b) Did writing of said
letter tend to draw the intervention of the PCAC in the instant case which will have the effect of
undermining the court's judicial independence?
We agree that the trial court that courts have the power to preserve their integrity and maintain their
dignity without which their administration of justice is bound to falter or fail (Villavicencio vs. Lukban, 39
Phil., 778; Borromeo vs. Mariano, 41 Phil., 322). This is the preservative power to punish for contempt
(Rule 64, Rules of Court; Villavicencio vs. Lukban, supra). This power is inherent in all courts and
essential to their right of self-preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In order
that it may conduct its business unhampered by publications which tends to impair the impartiality of its
decisions or otherwise obstruct the administration of justice, the court will not hesitate to exercise it
regardless of who is affected. For, "as important as is the maintenance of unmuzzled press and the free
exercise of the rights of the citizen is the maintenance of the independence of the judiciary" (In re Lozano
and Quevedo, 54 Phil., 801).The reason for this is that respect of the courts guarantees the stability of
their institution. Without such said institution would be resting on a very shaky foundation (Salcedo vs.
Hernandez, 61 Phil., 724).
The question that now arises is: Has the lower court legitimately and justifiably exercised this power in
the instant case?
The lower court tells us that it has because in its opinion the act of respondents to put it belittle or
degrade or embarrass it in its administration of justice, and so it punished them for contempt to protect
its judicial independence. But appellants believe otherwise, for they contend that in sending the letter in
question to the PCAC, they did nothing but to exercise their right to petition the government for redress
of their grievance as guaranteed by our constitution (section 1, paragraph 8, Article III).
The very idea of a government, republican in form, implies a right on the part of its citizens to
meet peaceably for consultation in respect affairs and to petition for a redress of grievances."
The First Amendments of the Federal expressly guarantees that right against abridgement by
Congress. But mention does not argue exclusion elsewhere. For the right is one that cannot be
denied without violating those fundamental principles of liberty and justice which lie at the
base of all civil and political institutions,- principles which the Fourteenth Amendment embodies
in the general terms of its due process clause. (Emerson and Haber, Political and Civil Rights
in the United States, p. 419.).
We are therefore confronted with a clash of two fundamental rights which lie at the bottom of our
democratic institutions-the independence of the judiciary the right to petition the government for redress
of grievance. How to balance and reconcile the exercise of these rights is the problem posed in the case
before us.
. . . A free press is not to be judiciary, nor an independent judiciary to a free press. Neither
has primacy over the other; both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary through which that
freedom may, if necessary, be vindicated. And one of the potent means of assuring judges
their independence is a free press. (Justice Frankfurter, concurring in Pennekamp vs. Florida,
328 U.S. 354-356)
Two theoretical formulas had been devised in the determination of conflicting rights of similar import in
an attempt to draw the proper constitutional boundary between freedom of expression and independence
of the judiciary. These are the "clear and present danger" rule and the "dangerous tendency" rule. The
first as interpreted in a number of cases, means that the evil consequence of the comment or utterance
must be "extremely serious and the degree of imminence extremely high" before the utterance can be
punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this
evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule
in constitutional law. It provides the criterion as to what words maybe published. Under this rule, the
advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that
such advocacy will harm the administration of justice.
This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and ever since it has
afforded a practical guidance in a great variety of cases in which the scope of the constitutional protection
of freedom of expression was put in issue.1 In one of said cases, the United States Supreme Court has
made the significant suggestion that this rule "is an appropriate guide in determining the constitutionality
of restriction upon expression where the substantial evil sought to be prevented by the restriction is
destruction of life or property or invasion of the right of privacy" Thornhill vs. Alabama, 310 U.S. 88).
Thus, speaking of the extent and scope of the application of this rule, the Supreme Court of the United
States said "Clear and present danger of substantive evils as a result of indiscriminate publications
regarding judicial proceedings justifies an impairment of the constitutional right of freedom of speech
and press only if the evils are extremely serious and the degree of imminence extremely high. . . . A
public utterance or publication is not to be denied the constitutional protection of freedom of speech and
press merely because it concerns a judicial proceeding still pending in the courts, upon the theory that
in such a case it must necessarily tend to obstruct the orderly and fair administration of justice. The
possibility of engendering disrespect for the judiciary as a result of the published criticism of a judge is
not such a substantive evil as will justify impairment of the constitutional right of freedom of speech and
press." (Bridges vs. California, 314 U.S. 252, syllabi)
No less important is the ruling on the power of the court to punish for contempt in relation to the freedom
of speech and press. We quote; "Freedom of speech and press should not be impaired through the
exercise of the punish for contempt of court unless there is no doubt that the utterances in question are
a serious and imminent threat to the administration of justice. A judge may hold in contempt one who
ventures to publish anything that tends to make him unpopular or to belittle him. . . . The vehemence of
the language used in newspaper publications concerning a judge's decision is not alone the measure of
the power to punish for contempt. The fires which it kindles must constitute an imminent not merely a
likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S. 367, syllabi)
And in weighing the danger of possible interference with the courts by newspaper criticism against the
right of free speech to determine whether such criticism may constitutionally be punished as contempt,
it was ruled that "freedom of public comment should in borderline instances weigh heavily against a
possible tendency to influence pending cases." (Pennekamp vs. Florida, 328 U. S. 331).
The question in every case, according to Justice Holmes, is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger that they will bring about
the substantive evils that congress has a right to prevent. It is a question of proximity and degree
(Schenck vs. U. S.,supra).
The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty
is confronted determining where the freedom of expression ends and the right of courts to protect their
independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies
in that the freedom of speech and of the press, as well as the right to petition for redress of grievance,
while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations,
one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the
state has a right to prevent, then such words are punishable. It is not necessary that some definite or
immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite
persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable
effect of the utterance be to bring about the substantive evil the utterance be to bring about the
substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.).
It is a fundamental principle, long established, that the freedom of speech and of the press
which is secured by the Constitution does not confer an absolute right to speak or publish,
without responsibility, whatever one may choose, or an unrestricted and unbridled license that
gives immunity for every possible use of language, and prevents the punishment of those who
abuse this freedom. . . . Reasonably limited, it was said by story in the passage cited this
freedom is an inestimable privilege in a free government; without such limitation, it might
become the scourge of the Republic.
xxx xxx xxx
And, for yet more imperative reasons, a state may punish utterances endangering the
foundations of organized government and threatening its overthrow by unlawful means. These
imperil its own existence as a constitutional state. . . .
xxx xxx xxx
. . . And the immediate danger is none the less real and substantial because the effect of a
given utterance cannot be accurately foreseen. The state cannot reasonably be required to
measure the danger from every such utterance in the nice balance of a jeweler's scale. A single
revolutionary spark, may kindle a fire that, smoldering for a time, may burst into a sweeping
and destructive conflagration. It cannot be said that the state is acting arbitrarily or
unreasonably when, in the exercise of its judgment as to the measures necessary to protect
the public peace and safety it seeks to extinguish the spark without waiting until it has
enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer
the adoption of measures for its own peace and safety until the revolutionary utterances lead
to actual disturbances of the public peace or imminent and immediate danger of its own
destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its
incipiency. In People vs. Lloyd, supra, p. 35 (136 N. E. 505), it was aptly said: Manifestly, the
legislature has authority to forbid the advocacy of a doctrine until there is a present and
imminent danger of the success of the plan advocated. If the state were compelled to wait
until the apprehended danger became certain, than its right to protect itself would come into
being simultaneously with the overthrow of the government, when there would be neither
prosecuting officers nor courts for the enforcement of the law." Gitlow va. New York, supra.)
The question then to be determined is: Has the letter of Cabansag created a sufficient danger to a fair
administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come
under the two rules mentioned above?
Even if we make a careful analysis of the letter sent by appellant Cabansag to the PCAC which has given
rise to the present contempt proceedings, we would at once see that it was far from his mind to put the
court in ridicule and much less to belittle or degrade it in the eyes of those to whom the letter was
addressed for, undoubtedly, he was compelled to act the way he did simply because he saw no other
way of obtaining the early termination of his case. This is clearly inferable from its context wherein, in
respectful and courteous language, Cabansag gave vent to his feeling when he said that he "has long
since been deprived of his land thru the careful maneuvers of a tactical lawyer"; that the case which had
long been pending could not be decided due to the fact that the transcript of the records has not as yet,
been transcribed by the stenographer who took the stenographic notes", and that the new Judges could
not proceed to hear the case before the transcription of the said notes." Analyzing said utterances, one
would see that if they ever criticize, "the criticism refers, not to the court, but to opposing counsel whose
tactical maneuvers" has allegedly caused the undue delay of the case. The grievance or complaint, if
any, is addressed to the stenographers for their apparent indifference in transcribing their notes.
The only disturbing effect of the letter which perhaps has been the motivating factor of the lodging of
the contempt charge by the trial judge is the fact that the letter was sent to the Office of the President
asking for help because of the precarious predicament of Cabansag. While the course of action he had
taken may not be a wise one for it would have been proper had he addressed his letter to the Secretary
of Justice or to the Supreme Court, such act alone would not be contemptuous. To be so the danger must
cause a serious imminent threat to the administration of justice. Nor can we infer that such act has "a
dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely
exercised his constitutional right to petition the government for redress of a legitimate grievance.
The fact is that even the trial court itself has at the beginning entertained such impression when it found
that the criticism was directed not against the court but against the counsel of the opposite party, and
that only on second thought did it change its mind when it developed that the act of Cabansag was
prompted by the advice of his lawyers. Nor can it be contended that the latter is groundless or one
motivated by malice. The circumstances borne by the record which preceded the sending of that letter
show that there was an apparent cause for grievance.
Thus, the record shows that on January 13, 1947, or more than 8 years ago, appellant Cabansag filed
with the lower court a complaint against Geminiana Fernandez, et al. seeking to eject them from a portion
of land covered by a torrens title. On October 4, 1949, or two years thereafter, the court, Judge Villamor
presiding, issued an order requiring the stenographers who took down the notes to transcribe them within
15 days upon payment of their corresponding fees. On December 9, 1952, or almost 3 years thereafter,
the court, Judge Pasicolan presiding, issued a similar order requiring the stenographers to transcribe
their notes and decreeing that the case be set for hearing after said notes had been transcribed. No
further step was taken from his last date either by the by the court or by the opposing parties. Meanwhile,
the stenographers were given assignment elsewhere, and when this matter brought to the attention of
the court by its own clerk of court, said court in an indorsement sent to the Secretary of Justice expressed
its inability to take action in view of the fact that the stenographers were no longer under its jurisdiction.
And in said indorsement nothing was said about its readiness to continue the trial even in the absence
of the transcript of the notes.
Under such a state of affairs, appellant Cabansag cannot certainly be blamed for entertaining the belief
that the only way by which he could obtain redress of his grievance is to address his letter to the PCAC
which after all is the office created by the late President to receive and hear all complaints against officials
and employees of the government to facilitate which the assistance and cooperation of all the executive
departments were enjoined (Executive Order No. 1, as amended by Executive Order No. 19). And one of
the departments that come under the control of the President is the Department of Justice which under
the law has administrative supervision over courts of first instance.(Section 83, Revised Administrative
Code) The PCAC is part of the Office of the President. It can, therefore, be said that the letter of Cabansag
though sent to the PCAC is intended for the Department of Justice where it properly belongs.
Consequently, the sending of that letter may be considered as one sent to the Department of Justice and
as such cannot constitute undue publication that would place him beyond the mantle of protection of our
constitution.
. . . under the presidential type of government which we adopted and considering the
departmental organization established and continued in force by paragraph, section 12, Article
VII, of our Constitution, all executive and administrative organizations are adjuncts of the
Executive Department, the heads of the executive departments are assistants and agents of
the Chief Executive, and, except in cases where the Chief Executive is required by the
Constitution or the law to act in person or the exigencies of the situation demand that he act
personally, the multifarious executive and administrative functions of the Chief Executive are
 performed by and through the executive departments, and the acts of the secretaries of such
departments, performed and promulgated in the regular course of business, are unless
disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Villena vs. The Secretary of the Interior, 67 Phil., 451, 463.)

We would only add one word in connection with the participation in the incident of Cabansag's co-
appellants, Attys. Roberto V. Merrera and Rufino V. Merrera. While the conduct of Cabansag may be
justified considering that, being a layman, he is unaware of the technical rules of law and procedure
which may place him under the protective mantle of our constitution, such does not obtain with regard
to his co-appellants. Being learned in the law and officers of the court, they should have acted with more
care and circumspection in advising their client to avoid undue embarrassment to the court or
unnecessary interference with the normal course of its proceedings. Their duty as lawyers is always to
observe utmost respect to the court and defend it against unjust criticism and clamor. Had they observed
a more judicious behavior, they would have avoided the unpleasant incident that had arisen. However,
the record is bereft of any proof showing improper motive on their part, much less bad faith in their
actuation. But they should be warned, as we now do, that a commission of a similar misstep in the future
would render them amenable to a more severe disciplinary action.

Wherefore, the decision appealed from is reversed, without pronouncement as to costs.

Bengzon, Paras, C.J., Padilla, Reyes, A., Labrador, Concepcion, Reyes, J.B.L., Endencia, and Felix,
JJ., concur.
 Republic of the Philippines The following day, petitioner sought reconsideration of the preventive suspension order, praying that
SUPREME COURT Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves
Manila from hearing the case.6 Two days after, however, petitioner sought to withdraw7 his motion for
EN BANC reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition, 8 docketed
G.R. No. 164785 April 29, 2009 as G.R. No. 164785, to nullify the preventive suspension order thus issued.
ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
Review and Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION
BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano
LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his
A. GAVINO, Respondents. program, "Ang Dating Daan".
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165636 April 29, 2009
ELISEO F. SORIANO Petitioner, Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby
vs. exonerated for lack of evidence.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE
AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and
SO ORDERED.9
FLORIMONDO C. ROUS, in their capacity as members of the Hearing and Adjudication
Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL M. Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed
SANDOVAL, and ROLDAN A. GAVINO, in their capacity as complainants before the as G.R. No. 165636.
MTRCB Respondents.
DECISION
VELASCO, JR., J.: In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.

In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to
nullify and set aside an order and a decision of the Movie and Television Review and Classification Board
(MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan.
Facts of the Case
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST
2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING
ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION

On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE
on UNTV 37, made the following remarks: OF PREVENTIVE SUSPENSION ORDERS;

Lehitimong anak ng demonyo; sinungaling; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;

Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae
yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong
(D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
ito.1 x x x

(E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION. 10

Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo
(INC),2 against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who In G.R. No. 165636, petitioner relies on the following grounds:
felt directly alluded to in petitioners remark, was then a minister of INC and a regular host of the TV
program Ang Tamang Daan.3 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16,
2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS
Daan.4 OF JURISDICTION x x x CONSIDERING THAT:

After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, I
preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section
3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES
Procedure.5The same order also set the case for preliminary investigation.
OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE
IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER
2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
II
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW;
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
III
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR
ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY
REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS.
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH 11
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive
suspension, although its implementability had already been overtaken and veritably been rendered moot
by the equally assailed September 27, 2004 decision.
It is petitioners threshold posture that the preventive suspension imposed against him and the relevant
IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to
issue preventive suspension.
Petitioners contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory,
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the
Constitution or by statute.12 They have in fine only such powers or authority as are granted or delegated,
expressly or impliedly, by law.13 And in determining whether an agency has certain powers, the inquiry
should be from the law itself. But once ascertained as existing, the authority given should be liberally
construed.14
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority
stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.The BOARD shall have the following functions, powers and duties:
xxxx
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x
x x exhibition and/or television broadcast of the motion pictures, television programs and publicity
materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary
Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous
tendency to encourage the commission of violence or of wrong or crime such as but not limited to:
xxxx
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether
living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs
and publicity materials, to the end that no such pictures, programs and materials as are determined by
the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied,
reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
xxxx
k) To exercise such powers and functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and
functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which
empowers the MTRCB to "supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition,
and/or television broadcast of all motion pictures, television programs and publicity materials, to the end
that no such pictures, programs and materials as are determined by the BOARD to be objectionable in
accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television."
Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and
supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied
from such mandate. Any other construal would render its power to regulate, supervise, or discipline
illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in
an administrative investigation.15 And the power to discipline and impose penalties, if granted, carries
with it the power to investigate administrative complaints and, during such investigation, to preventively
suspend the person subject of the complaint.16
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD
1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension
through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension
is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to
prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board
may issue a Preventive Suspension Order mandating the preventive x x x suspension of the
permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from
the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work
to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is
expressly empowered by statute to regulate and supervise television programs to obviate the exhibition
or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and,
corollarily, to prevent further violations as it investigates. Contrary to petitioners assertion, the
aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did
the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from
it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat,
to the MTRCBs duty of regulating or supervising television programs, pending a determination of whether
or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR
merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs
assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the
literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile,
when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, "To exercise such powers and functions as may be necessary or
incidental to the attainment of the purposes and objectives of this Act x x x." Indeed, the power to impose
preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers,
implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary
or fair implication of the enabling act.17 As we held in Angara v. Electoral Commission, when a general
grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one
or the performance of the other is also conferred by necessary implication. 18 Clearly, the power to impose
preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension
is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends
beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law
makes specific reference to the closure of a television network, the suspension of a television program is
a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD
1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions
petitioner envisages.
Just as untenable is petitioners argument on the nullity of the preventive suspension order on the ground
of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to
a written notice, appeared before that Board for a hearing on private respondents complaint. No less
than petitioner admitted that the order was issued after the adjournment of the hearing, 19 proving that
he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive
suspension shall issue "[a]ny time during the pendency of the case." In this particular case, it was done
after MTRCB duly apprised petitioner of his having possibly violated PD 1986 20 and of administrative
complaints that had been filed against him for such violation. 21
At any event, that preventive suspension can validly be meted out even without a hearing.22
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing
that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the
INC ministers.
Petitioners position does not persuade. The equal protection clause demands that "all persons subject
to legislation should be treated alike, under like circumstances and conditions both in the privileges
conferred and liabilities imposed." 23 It guards against undue favor and individual privilege as well as
hostile discrimination.24Surely, petitioner cannot, under the premises, place himself in the same shoes
as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For
another, he offers no proof that the said ministers, in their TV programs, use language similar to that
which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the
preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his
critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor
the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC
ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too
different to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious
speech, adding that words like "putang babae" were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioners utterances in question can come within the pale of
Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious profession and worship, without discrimination or
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political
rights.
There is nothing in petitioners statements subject of the complaints expressing any particular religious
belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements
in a televised bible exposition program does not automatically accord them the character of a religious
discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious
speech. Even petitioners attempts to place his words in context show that he was moved by anger and
the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, that some
INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV station does
not convert the foul language used in retaliation as religious speech. We cannot accept that petitioner
made his statements in defense of his reputation and religion, as they constitute no intelligible defense
or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have
chosen to contradict and disprove his detractors, but opted for the low road.
Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted
violation and the arguments holding such issue dovetails with those challenging the three-month
suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under
G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
G.R. No. 165636
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three
months on the main ground that the decision violates, apart from his religious freedom, his freedom of
speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:
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 grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.
We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
principles underlying the freedom of speech and expression.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come within
the broad protection of the free speech and expression clause. 25 Each method though, because of its
dissimilar presence in the lives of people and accessibility to children, tends to present its own problems
in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a
lesser degree of protection.26Just as settled is the rule that restrictions, be it in the form of prior restraint,
e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent
liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are
anathema to the freedom of expression. Prior restraint means official government restrictions on the
press or other forms of expression in advance of actual publication or dissemination. 27 The freedom of
expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may
be regulated to some extent to serve important public interests, some forms of speech not being
protected. As has been held, the limits of the freedom of expression are reached when the expression
touches upon matters of essentially private concern.28 In the oft-quoted expression of Justice Holmes,
the constitutional guarantee "obviously was not intended to give immunity for every possible use of
language."29From Lucas v. Royo comes this line: "[T]he freedom to express ones sentiments and belief
does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must
be expressed within the proper forum and with proper regard for the rights of others." 30
Indeed, as noted in Chaplinsky v. State of New Hampshire,31 "there are certain well-defined and narrowly
limited classes of speech that are harmful, the prevention and punishment of which has never been
thought to raise any Constitutional problems." In net effect, some forms of speech are not protected by
the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul
of the freedom of speech clause.32 A speech would fall under the unprotected type if the utterances
involved are "no essential part of any exposition of ideas, and are of such slight social value as a step of
truth that any benefit that may be derived from them is clearly outweighed by the social interest in order
and morality."33 Being of little or no value, there is, in dealing with or regulating them, no imperative call
for the application of the clear and present danger rule or the balancing-of-interest test, they being
essentially modes of weighing competing values,34 or, with like effect, determining which of the clashing
interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-
value expression refers to libelous statements, obscenity or pornography, false or misleading
advertisement, insulting or "fighting words", i.e., those which by their very utterance inflict injury or tend
to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioners statement can be treated as obscene, at least with respect to the average
child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless
stated the ensuing observations on the matter:
There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards
would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled
discretion in determining what is "patently offensive." x x x What remains clear is that obscenity is an
issue proper for judicial determination and should be treated on a case to case basis and on the judges
sound discretion.35
Following the contextual lessons of the cited case of Miller v. California, 36 a patently offensive utterance
would come within the pale of the term obscenity should it appeal to the prurient interest of an average
listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal that to
an average adult, the utterances "Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung
putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di
ba!" may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech
or merely a play on words. In the context they were used, they may not appeal to the prurient interests
of an adult. The problem with the challenged statements is that they were uttered in a TV program that
is rated "G" or for general viewership, and in a time slot that would likely reach even the eyes and ears
of children.
While adults may have understood that the terms thus used were not to be taken literally, children could
hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such
language as that of petitioner in a television broadcast could corrupt impressionable young minds. The
term "putang babae" means "a female prostitute," a term wholly inappropriate for children, who could
look it up in a dictionary and just get the literal meaning, missing the context within which it was used.
Petitioner further used the terms, "ang gumagana lang doon yung ibaba," making reference to the female
sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than
that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the
meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as
to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon
learning the meanings of the words used, young minds, without the guidance of an adult, may, from
their end, view this kind of indecent speech as obscene, if they take these words literally and use them
in their own speech or form their own ideas on the matter. In this particular case, where children had
the opportunity to hear petitioners words, when speaking of the average person in the test for obscenity,
we are speaking of the average child, not the average adult. The average child may not have the adults
grasp of figures of speech, and may lack the understanding that language may be colorful, and words
may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female
sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not
entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements
were made in a medium easily accessible to children. With respect to the young minds, said utterances
are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is
veritably one of first impression, it being the first time that indecent speech communicated via television
and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal
Communications Commission (FCC) v. Pacifica Foundation,37 a 1978 American landmark case cited
in Eastern Broadcasting Corporation v. Dans, Jr.38and Chavez v. Gonzales,39 is a rich source of persuasive
lessons. Foremost of these relates to indecent speech without prurient appeal component coming under
the category of protected speech depending on the context within which it was made, irresistibly
suggesting that, within a particular context, such indecent speech may validly be categorized as
unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered "filthy" words 40 earlier recorded in a monologue by a satiric
humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the
language used as "patently offensive" and "indecent" under a prohibiting law, though not necessarily
obscene. FCC added, however, that its declaratory order was issued in a "special factual context,"
referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting
on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in
the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive
medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add
that the monologue would be protected speech in other contexts, albeit it did not expound and identify
a compelling state interest in putting FCCs content-based regulatory action under scrutiny.
The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected speech
that is content-based and that which is content-neutral. A content-based restraint is aimed at the
contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time,
place, and manner of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-based restraint to
strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
perspective, permissible restriction. We make this disposition against the backdrop of the following
interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to
borrow from Gonzales v. Kalaw Katigbak,42 easily "reaches every home where there is a set [and where]
[c]hildren will likely be among the avid viewers of the programs therein shown"; second, the broadcast
was aired at the time of the day when there was a reasonable risk that children might be in the audience;
and third, petitioner uttered his speech on a "G" or "for general patronage" rated program. Under Sec.
2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is "[s]uitable for all ages,"
meaning that the "material for television x x x in the judgment of the BOARD, does not contain anything
unsuitable for children and minors, and may be viewed without adult guidance or supervision." The words
petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is
categorized as indecent, as in petitioners utterances on a general-patronage rated TV program, it may
be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography, 43 false or misleading
advertisement,44 advocacy of imminent lawless action, and expression endangering national security. But
this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going
into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the
aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against
censorship in the past, this particular case constitutes yet another exception, another instance of
unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected
speech, petitioners utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his
utterances must present a clear and present danger of bringing about a substantive evil the State has a
right and duty to prevent and such danger must be grave and imminent.45
Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech
tests, would not avail him any relief, for the application of said test is uncalled for under the premises.
The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or
spoken words may not be subject to prior restraint or subsequent punishment unless its expression
creates a clear and present danger of bringing about a substantial evil which the government has the
power to prohibit.46 Under the doctrine, freedom of speech and of press is susceptible of restriction when
and only when necessary to prevent grave and immediate danger to interests which the government
may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and
other crimes involving the overthrow of government. 47 It was originally designed to determine the
latitude which should be given to speech that espouses anti-government action, or to have serious and
substantial deleterious consequences on the security and public order of the community. 48 The clear and
present danger rule has been applied to this jurisdiction. 49 As a standard of limitation on free speech and
press, however, the clear and present danger test is not a magic incantation that wipes out all problems
and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and
which compels a court to release a defendant from liability the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster.50 As we observed in Eastern Broadcasting Corporation, the clear
and present danger test "does not lend itself to a simplistic and all embracing interpretation applicable
to all utterances in all forums."51
To be sure, the clear and present danger doctrine is not the only test which has been applied by the
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even
other evils which do not clearly undermine national security. Since not all evils can be measured in terms
of "proximity and degree" the Court, however, in several casesAyer Productions v. Capulong52 and
Gonzales v. COMELEC,53 applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in
Gonzales v. COMELEC, elucidated in his Separate Opinion that "where the legislation under constitutional
attack interferes with the freedom of speech and assembly in a more generalized way and where the
effect of the speech and assembly in terms of the probability of realization of a specific danger is not
susceptible even of impressionistic calculation,"54 then the "balancing of interests" test can be applied.
The Court explained also in Gonzales v. COMELEC the "balancing of interests" test:
When particular conduct is regulated in the interest of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the
two conflicting interests demands the greater protection under the particular circumstances presented.
x x x We must, therefore, undertake the "delicate and difficult task x x x to weigh the circumstances and
to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment
of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values and individual
interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the
basis for what has been called the "balancing-of-interests" test which has found application in more
recent decisions of the U.S. Supreme Court. Briefly stated, the "balancing" test requires a court to take
conscious and detailed consideration of the interplay of interests observable in a given situation or type
of situation.
xxxx
Although the urgency of the public interest sought to be secured by Congressional power restricting the
individuals freedom, and the social importance and value of the freedom so restricted, "are to be judged
in the concrete, not on the basis of abstractions," a wide range of factors are necessarily relevant in
ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the
specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the
restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few;
(c) the value and importance of the public interest sought to be secured by the legislationthe reference
here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific
restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by
some other measure less restrictive of the protected freedom. 55
This balancing of interest test, to borrow from Professor Kauper, 56 rests on the theory that it is the courts
function in a case before it when it finds public interests served by legislation, on the one hand, and the
free expression clause affected by it, on the other, to balance one against the other and arrive at a
judgment where the greater weight shall be placed. If, on balance, it appears that the public interest
served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the
court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that
constitutional freedoms are not absolute, not even those stated in the free speech and expression clause,
and that they may be abridged to some extent to serve appropriate and important interests. 57 To the
mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension
was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment
of his freedom of speech is ranged against the duty of the government to protect and promote the
development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the governments interest to protect and promote the interests
and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on
petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of
speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive
democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the
youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to
promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the
youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide
protection to the youth against illegal or improper activities which may prejudice their general well-being.
The Article on youth, approved on second reading by the Constitutional Commission, explained that the
State shall "extend social protection to minors against all forms of neglect, cruelty, exploitation,
immorality, and practices which may foster racial, religious or other forms of discrimination." 58
Indisputably, the State has a compelling interest in extending social protection to minors against all forms
of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest
in helping parents, through regulatory mechanisms, protect their childrens minds from exposure to
undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being
of the youth to better prepare them fulfill their role in the field of nation-building.59 In the same way, the
State is mandated to support parents in the rearing of the youth for civic efficiency and the development
of moral character.60
Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily
accessible to the children. His statements could have exposed children to a language that is unacceptable
in everyday use. As such, the welfare of children and the States mandate to protect and care for them,
as parens patriae,61 constitute a substantial and compelling government interest in regulating petitioners
utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who, because
of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written
message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacificas broadcast
could have enlarged a childs vocabulary in an instant. Other forms of offensive expression may be
withheld from the young without restricting the expression at its source. Bookstores and motion picture
theaters, for example, may be prohibited from making indecent material available to children. We held
in Ginsberg v. New York that the governments interest in the "well-being of its youth" and in supporting
"parents claim to authority in their own household" justified the regulation of otherwise protected
expression. The ease with which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of
the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way, television
reaches every home where there is a set. Children then will likely will be among the avid viewers of the
programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly
the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied
though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of
the young.62
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the
narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on
the following considerations: (1) the use of television with its unique accessibility to children, as a medium
of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the "G" rating of the Ang
Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the
following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve
a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan
comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x
x x The [FFCs] decision rested entirely on a nuisance rationale under which context is all important. The
concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The
content of the program in which the language is used will affect the composition of the audience x x x.
As Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in
the parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the
parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating
the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the
inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling
state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting
children are in the audience is, in the graphic language of FCC, a "pig in the parlor." Public interest would
be served if the "pig" is reasonably restrained or even removed from the "parlor."
Ergo, petitioners offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
television, and radio broadcast censorship in view of its access to numerous people, including the young
who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating
the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or
license before showing a motion picture or broadcasting a TV program. The Board can classify movies
and television programs and can cancel permits for exhibition of films or television broadcast.lavvphi1.net
The power of MTRCB to regulate and even impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Justice Reynato S. Puno, the Court wrote:
We thus reject petitioners postulate that its religious program is per se beyond review by the respondent
Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief.
Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that
the exercise of religious freedom can be regulated by the State when it will bring about the clear and
present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment
to the more overriding interest of public health, public morals, or public welfare. x x x
xxxx
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional
for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs
and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in
Sotto vs. Ruiz, viz:
"The use of the mails by private persons is in the nature of a privilege which can be regulated in order
to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless
of its character."63
Bernas adds:
Under the decree a movie classification board is made the arbiter of what movies and television programs
or parts of either are fit for public consumption. It decides what movies are "immoral, indecent, contrary
to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people,"
and what "tend to incite subversion, insurrection, rebellion or sedition," or "tend to undermine the faith
and confidence of the people in their government and/or duly constituted authorities," etc. Moreover, its
decisions are executory unless stopped by a court.64
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,65 it was held that the power of review and
prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech
guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are
required to get a permit before they air their television programs. Consequently, their right to enjoy their
freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
government regulations through the MTRCB became "a necessary evil" with the government taking the
role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory
scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters
will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect
waived their right to the full enjoyment of their right to freedom of speech in radio and television
programs and impliedly agreed that said right may be subject to prior restraintdenial of permit or
subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue
with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such
broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent
punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his
television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its
charter without running afoul of the free speech clause. And the imposition is separate and distinct from
the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be
availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC
teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting
does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for
petitioners exercise of his freedom of speech via television, but for the indecent contents of his
utterances in a "G" rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of
speech to regulation under PD 1986 and its IRR as television station owners, program producers, and
hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioners virtual inability to speak in his program during the period of suspension be
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension
is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a
lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine,
the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration
of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize
past speech made on prime-time "G" rated TV program; it does not bar future speech of petitioner in
other television programs; it is a permissible subsequent administrative sanction; it should not be
confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB, 66 sustained the
power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without
Board authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it
to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a "G"
rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, "the freedom of
television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media." The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate,
which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts
should be subject to some form of regulation, considering the ease with which they can be accessed, and
violations of the regulations must be met with appropriate and proportional disciplinary action. The
suspension of a violating television program would be a sufficient punishment and serve as a deterrent
for those responsible. The prevention of the broadcast of petitioners television program is justified, and
does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the
changing times, and craft jurisprudence to reflect these times.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law creating
the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. The
Court has earlier adequately explained why petitioners undue reliance on the religious freedom cannot
lend justification, let alone an exempting dimension to his licentious utterances in his program. The Court
sees no need to address anew the repetitive arguments on religious freedom. As earlier discussed in the
disposition of the petition in G.R. No. 164785, what was uttered was in no way a religious speech.
Parenthetically, petitioners attempt to characterize his speech as a legitimate defense of his religion fails
miserably. He tries to place his words in perspective, arguing evidently as an afterthought that this was
his method of refuting the alleged distortion of his statements by the INC hosts of Ang Tamang Daan.
But on the night he uttered them in his television program, the word simply came out as profane
language, without any warning or guidance for undiscerning ears.
As to petitioners other argument about having been denied due process and equal protection of the law,
suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no
need to further delve into the fact that petitioner was afforded due process when he attended the hearing
of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated against in the
MTRCB proceedings.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not
provide for the range of imposable penalties that may be applied with respect to violations of the
provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following
wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
delegate its legislative power to the two other branches of the government, subject to the exception that
local governments may over local affairs participate in its exercise. What cannot be delegated is the
authority under the Constitution to make laws and to alter and repeal them; the test is the completeness
of the statute in all its term and provisions when it leaves the hands of the legislature. To determine
whether or not there is an undue delegation of legislative power, the inquiry must be directed to the
scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it
describes what job must be done, who is to do it, and what is the scope of his authority. For a complex
economy, that may indeed be the only way in which the legislative process can go forward. A distinction
has rightfully been made between delegation of power to make laws which necessarily involves a
discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or
discretion as to its execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that
the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the
charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances
under which the legislative command is to be effected. It is the criterion by which legislative purpose
may be carried out. Thereafter, the executive or administrative office designated may in pursuance of
the above guidelines promulgate supplemental rules and regulations. 67
Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation
about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range
of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD
1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the
terms of the law.
Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption
being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties
for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of
power and functions, is charged with supervising and regulating, granting, denying, or canceling permits
for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity
materials to the end that no such objectionable pictures, programs, and materials shall be exhibited
and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the
MTRCB "to exercise such powers and functions as may be necessary or incidental to the attainment of
the purpose and objectives of [the law]." As earlier explained, the investiture of supervisory, regulatory,
and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize
the supervised or the regulated as may be proportionate to the offense committed, charged, and proved.
As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary
for the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute
does not specify the particular method to be followed or used by a government agency in the exercise of
the power vested in it by law, said agency has the authority to adopt any reasonable method to carry
out its function.68
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take
effective punitive action for violation of the law sought to be enforced. And would it not be logical too to
say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily
includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides
that agency with the power "[to] promulgate such rules and regulations as are necessary or proper for
the implementation of this Act, and the accomplishment of its purposes and objectives x x x." And Chapter
XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing
of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section
13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures,
television programs, and related promotional materials shall be penalized with suspension or cancellation
of permits and/or licenses issued by the Board and/or with the imposition of fines and other
administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties
attached without prejudice to the power of the Board to amend it when the need arises. In the meantime
the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions
of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the
MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB
cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a
guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be
applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion
pictures, television programs, and publicity materials "applying contemporary Filipino cultural values as
standard," and, from there, determine whether these audio and video materials "are objectionable for
being immoral, indecent, contrary to law and/or good customs, [etc.] x x x" and apply the sanctions it
deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a
particular statute.69 The grant of the rule-making power to administrative agencies is a relaxation of the
principle of separation of powers and is an exception to the non-delegation of legislative
powers.70 Administrative regulations or "subordinate legislation" calculated to promote the public interest
are necessary because of "the growing complexity of modern life, the multiplication of the subjects of
governmental regulations, and the increased difficulty of administering the law." 71 Allowing the MTRCB
some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions,
according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due
regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case
may be, would be consistent with its mandate to effectively and efficiently regulate the movie and
television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986,
its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-
defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the
Board empowered to suspend the program host or even to prevent certain people from appearing in
television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or
cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond
its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only
persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be
considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable
doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty
is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27, 2004 and
the subsequent order issued pursuant to said decision must be modified. The suspension should cover
only the television program on which petitioner appeared and uttered the offensive and obscene
language, which sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on
television without adverse consequences, under the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms.
To say "any act that restrains speech should be greeted with furrowed brows" is not to say that any act
that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of
freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may
restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby
AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus
modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE
(3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby
exonerated for lack of evidence.
Costs against petitioner.
 establish professionalism and excellence at all levels of the Bangko Sentral in accordance with
sound principles of management.

A compensation structure, based on job evaluation studies and wage surveys and subject to
the Board's approval, shall be instituted as an integral component of the Bangko
Sentral's human resource development program: Provided, That the Monetary Board shall
make its own system conform as closely as possible with the principles provided for under
Republic Act No. 6758 [Salary Standardization Act].Provided, however, That compensation
and wage structure of employees whose positions fall under salary grade 19 and
below shall be in accordance with the rates prescribed under Republic Act No.
6758. [emphasis supplied]

The thrust of petitioner's challenge is that the above proviso makes

EN BANC an unconstitutional cut between two classes of employees in the BSP, viz: (1) the BSP officers or
G.R. No. 148208 December 15, 2004 those exempted from the coverage of the Salary Standardization Law (SSL) (exempt class); and (2)
CENTRAL BANK (now Bangko Sentral ng Pilipinas) EMPLOYEES ASSOCIATION, the rank-and-file (Salary Grade [SG] 19 and below), or those not exempted from the coverage of the
INC., petitioner, SSL (non-exempt class). It is contended that this classification is "a classic case of class legislation,"
vs. allegedly not based on substantial distinctions which make real differences, but solely on the SG of the
BANGKO SENTRAL NG PILIPINAS and the EXECUTIVE SECRETARY, respondents. BSP personnel's position. Petitioner also claims that it is not germane to the purposes of Section 15(c),
Article II of R.A. No. 7653, the most important of which is to establish professionalism and excellence at
all levels in the BSP.1 Petitioner offers the following sub-set of arguments:
DECISION
a. the legislative history of R.A. No. 7653 shows that the questioned proviso does not appear
in the original and amended versions of House Bill No. 7037, nor in the original version of
PUNO, J.:
Senate Bill No. 1235; 2
Can a provision of law, initially valid, become subsequently unconstitutional, on the ground that
its continuedoperation would violate the equal protection of the law? We hold that with the passage of
the subsequent laws amending the charter of seven (7) other governmental financial institutions (GFIs), b. subjecting the compensation of the BSP rank-and-file employees to the rate prescribed by
the continued operation of the last proviso of Section 15(c), Article II of Republic Act (R.A.) No. 7653, the SSL actually defeats the purpose of the law3 of establishing professionalism and
constitutes invidious discrimination on the2,994 rank-and-file employees of the Bangko Sentral ng excellence at all levels in the BSP; 4 (emphasis supplied)
Pilipinas (BSP).

c. the assailed proviso was the product of amendments introduced during the deliberation of
I. Senate Bill No. 1235, without showing its relevance to the objectives of the law, and even
admitted by one senator as discriminatory against low-salaried employees of the BSP;5
The Case
d. GSIS, LBP, DBP and SSS personnel are all exempted from the coverage of the SSL; thus
within the class of rank-and-file personnel of government financial institutions (GFIs), the BSP
First the facts. rank-and-file are also discriminated upon;6 and

On July 3, 1993, R.A. No. 7653 (the New Central Bank Act) took effect. It abolished the old Central Bank
e. the assailed proviso has caused the demoralization among the BSP rank-and-file and
of the Philippines, and created a new BSP. resulted in the gross disparity between their compensation and that of the BSP officers'. 7

On June 8, 2001, almost eight years after the effectivity of R.A. No. 7653, petitioner Central Bank (now
BSP) Employees Association, Inc., filed a petition for prohibition against BSP and the Executive Secretary
of the Office of the President, to restrain respondents from further implementing the last proviso in
Section 15(c), Article II of R.A. No. 7653, on the ground that it is unconstitutional.
Article II, Section 15(c) of R.A. No. 7653 provides:
Section 15. Exercise of Authority - In the exercise of its authority, the Monetary Board shall:
xxx xxx xxx
(c) establish a human resource management system which shall govern the selection, hiring,
appointment, transfer, promotion, or dismissal of all personnel. Such system shall aim to
In sum, petitioner posits that the classification is not reasonable but arbitrary and capricious, and
violates the equal protection clause of the Constitution. 8 Petitioner also stresses: (a) that R.A. No. 7653
has a separability clause, which will allow the declaration of the unconstitutionality of the proviso in
question without affecting the other provisions; and (b) the urgency and propriety of the petition, as
some 2,994 BSP rank-and-file employeeshave been prejudiced since 1994 when the proviso was
implemented. Petitioner concludes that: (1) since the inequitable proviso has no force and effect of law,
respondents' implementation of such amounts to lack of jurisdiction; and (2) it has no appeal nor any
other plain, speedy and adequate remedy in the ordinary course except through this petition for
prohibition, which this Court should take cognizance of, considering the transcendental importance of the
legal issue involved.9
Respondent BSP, in its comment,10 contends that the provision does not violate the equal protection
clause and can stand the constitutional test, provided it is construed in harmony with other provisions of
the same law, such as "fiscal and administrative autonomy of BSP," and the mandate of the Monetary
Board to "establish professionalism and excellence at all levels in accordance with sound principles of
management."
The Solicitor General, on behalf of respondent Executive Secretary, also defends the validity of the
provision. Quite simplistically, he argues that the classification is based on actual and real differentiation,
even as it adheres to the enunciated policy of R.A. No. 7653 to establish professionalism and excellence
within the BSP subject to prevailing laws and policies of the national government. 11
II.
Issue
Thus, the sole - albeit significant - issue to be resolved in this case is whether the last paragraph of
Section 15(c), Article II of R.A. No. 7653, runs afoul of the constitutional mandate that "No person shall
be. . . denied the equal protection of the laws." 12
III.
Ruling
A. UNDER THE PRESENT STANDARDS OF EQUAL PROTECTION,
SECTION 15(c), ARTICLE II OF R.A. NO. 7653 IS VALID.
Jurisprudential standards for equal protection challenges indubitably show that the classification created
by the questioned proviso, on its face and in its operation, bears no constitutional infirmities.
It is settled in constitutional law that the "equal protection" clause does not prevent the Legislature from
establishing classes of individuals or objects upon which different rules shall operate - so long as the
classification is not unreasonable. As held in Victoriano v. Elizalde Rope Workers' Union,13 and
reiterated in a long line of cases:14
The guaranty of equal protection of the laws is not a guaranty of equality in the application of
the laws upon all citizens of the state. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be
affected alike by a statute. Equality of operation of statutes does not mean indiscriminate
operation on persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The Constitution does not
require that things which are different in fact be treated in law as though they were the same.
The equal protection clause does not forbid discrimination as to things that are different. It
does not prohibit legislation which is limited either in the object to which it is directed or by
the territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification
in law, as in the other departments of knowledge or practice, is the grouping of things in
speculation or practice because they agree with one another in certain particulars. A law is not
invalid because of simple inequality. The very idea of classification is that of inequality, so that
it goes without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for real
differences, that it must be germane to the purpose of the law; that it must not be limited to
existing conditions only; and that it must apply equally to each member of the class. This Court
has held that the standard is satisfied if the classification or distinction is based on a reasonable
foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over
matters within its jurisdiction, the state is recognized as enjoying a wide range of discretion.
It is not necessary that the classification be based on scientific or marked differences of things
or in their relation. Neither is it necessary that the classification be made with mathematical
nicety. Hence, legislative classification may in many cases properly rest on narrow distinctions,
for the equal protection guaranty does not preclude the legislature from recognizing degrees
of evil or harm, and legislation is addressed to evils as they may appear. (citations omitted)
Congress is allowed a wide leeway in providing for a valid classification. 15 The equal protection clause is
not infringed by legislation which applies only to those persons falling within a specified class. 16 If the
groupings are characterized by substantial distinctions that make real differences, one class may be
treated and regulated differently from another.17 The classification must also be germane to the purpose
of the law and must apply to all those belonging to the same class.18
In the case at bar, it is clear in the legislative deliberations that the exemption of officers (SG 20 and
above) from the SSL was intended to address the BSP's lack of competitiveness in terms of attracting
competent officers and executives. It was not intended to discriminate against the rank-and-file. If the
end-result did in fact lead to a disparity of treatment between the officers and the rank-and-file in terms
of salaries and benefits, the discrimination or distinction has a rational basis and is not palpably, purely,
and entirely arbitrary in the legislative sense. 19
That the provision was a product of amendments introduced during the deliberation of the Senate Bill
does not detract from its validity. As early as 1947 and reiterated in subsequent cases, 20 this Court has
subscribed to the conclusiveness of an enrolled bill to refuse invalidating a provision of law, on the ground
that the bill from which it originated contained no such provision and was merely inserted by the
bicameral conference committee of both Houses.
Moreover, it is a fundamental and familiar teaching that all reasonable doubts should be resolved in favor
of the constitutionality of a statute.21 An act of the legislature, approved by the executive, is presumed
to be within constitutional limitations.22 To justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal breach. 23
B. THE ENACTMENT, HOWEVER, OF SUBSEQUENT LAWS -
EXEMPTING ALL OTHER RANK-AND-FILE EMPLOYEES
OF GFIs FROM THE SSL - RENDERS THE CONTINUED
APPLICATION OF THE CHALLENGED PROVISION
A VIOLATION OF THE EQUAL PROTECTION CLAUSE.
While R.A. No. 7653 started as a valid measure well within the legislature's power, we hold that
the enactment of subsequent laws exempting all rank-and-file employees of other GFIs
leeched all validity out of the challenged proviso.
1. The concept of relative constitutionality.
The constitutionality of a statute cannot, in every instance, be determined by a mere comparison of its
provisions with applicable provisions of the Constitution, since the statute may be constitutionally valid
as applied to one set of facts and invalid in its application to another. 24
A statute valid at one time may become void at another time because of altered circumstances.25 Thus,
if a statute in its practical operation becomes arbitrary or confiscatory, its validity, even though affirmed
by a former adjudication, is open to inquiry and investigation in the light of changed conditions.26
Demonstrative of this doctrine is Vernon Park Realty v. City of Mount Vernon,27 where the Court of
Appeals of New York declared as unreasonable and arbitrary a zoning ordinance which placed the
plaintiff's property in a residential district, although it was located in the center of a business area. Later
amendments to the ordinance then prohibited the use of the property except for parking and storage of
automobiles, and service station within a parking area. The Court found the ordinance to constitute an
invasion of property rights which was contrary to constitutional due process. It ruled:
While the common council has the unquestioned right to enact zoning laws respecting the use
of property in accordance with a well-considered and comprehensive plan designed to promote
public health, safety and general welfare, such power is subject to the constitutional limitation
that it may not be exerted arbitrarily or unreasonably and this is so whenever the zoning
ordinance precludes the use of the property for any purpose for which it is reasonably
adapted. By the same token, an ordinance valid when adopted will nevertheless be
stricken down as invalid when, at a later time, its operation under changed
conditions proves confiscatory such, for instance, as when the greater part of its value is
destroyed, for which the courts will afford relief in an appropriate case. 28 (citations omitted,
emphasis supplied)
In the Philippine setting, this Court declared the continued enforcement of a valid law as
unconstitutional as a consequence of significant changes in circumstances. Rutter v.
Esteban29 upheld the constitutionality of the moratorium law - its enactment and operation being a valid
exercise by the State of its police power 30 - but also ruled that the continued enforcement of the
otherwise valid law would be unreasonable and oppressive. It noted the subsequent changes in
the country's business, industry and agriculture. Thus, the law was set aside because its continued
operation would be grossly discriminatory and lead to the oppression of the creditors. The landmark
ruling states:31
The question now to be determined is, is the period of eight (8) years which Republic Act No.
342 grants to debtors of a monetary obligation contracted before the last global war and who
is a war sufferer with a claim duly approved by the Philippine War Damage Commission
reasonable under the present circumstances?
It should be noted that Republic Act No. 342 only extends relief to debtors of prewar obligations
who suffered from the ravages of the last war and who filed a claim for their losses with the
Philippine War Damage Commission. It is therein provided that said obligation shall not be due
and demandable for a period of eight (8) years from and after settlement of the claim filed by
the debtor with said Commission. The purpose of the law is to afford to prewar debtors an
opportunity to rehabilitate themselves by giving them a reasonable time within which to pay
their prewar debts so as to prevent them from being victimized by their creditors. While it is
admitted in said law that since liberation conditions have gradually returned to normal, this is
not so with regard to those who have suffered the ravages of war and so it was therein declared
as a policy that as to them the debt moratorium should be continued in force (Section 1).
But we should not lose sight of the fact that these obligations had been pending since 1945 as
a result of the issuance of Executive Orders Nos. 25 and 32 and at present their enforcement
is still inhibited because of the enactment of Republic Act No. 342 and would continue to be
unenforceable during the eight-year period granted to prewar debtors to afford them an
opportunity to rehabilitate themselves, which in plain language means that the creditors would
have to observe a vigil of at least twelve (12) years before they could effect a liquidation of
their investment dating as far back as 1941. his period seems to us unreasonable, if not
oppressive. While the purpose of Congress is plausible, and should be commended, the relief
accorded works injustice to creditors who are practically left at the mercy of the debtors. Their
hope to effect collection becomes extremely remote, more so if the credits are unsecured. And
the injustice is more patent when, under the law, the debtor is not even required to pay interest
during the operation of the relief, unlike similar statutes in the United States.
xxx xxx xxx
In the face of the foregoing observations, and consistent with what we believe to be as the
only course dictated by justice, fairness and righteousness, we feel that the only way open to
us under the present circumstances is to declare that the continued operation and
enforcement of Republic Act No. 342 at the present time is unreasonable and
oppressive, and should not be prolonged a minute longer, and, therefore, the same
should be declared null and void and without effect. (emphasis supplied, citations
omitted)
2. Applicability of the equal protection clause.
In the realm of equal protection, the U.S. case of Atlantic Coast Line R. Co. v. Ivey32 is illuminating.
The Supreme Court of Florida ruled against the continued application of statutes authorizing the recovery
of double damages plus attorney's fees against railroad companies, for animals killed on unfenced railroad
right of way without proof of negligence. Competitive motor carriers, though creating greater hazards,
were not subjected to similar liability because they were not yet in existence when the statutes were
enacted. The Court ruled that the statutes became invalid as denying "equal protection of the law," in
view of changed conditions since their enactment.
In another U.S. case, Louisville & N.R. Co. v. Faulkner,33 the Court of Appeals of Kentucky declared
unconstitutional a provision of a statute which imposed a duty upon a railroad company of proving that
it was free from negligence in the killing or injury of cattle by its engine or cars. This, notwithstanding
that the constitutionality of the statute, enacted in 1893, had been previously sustained. Ruled
the Court:
The constitutionality of such legislation was sustained because it applied to all similar
corporations and had for its object the safety of persons on a train and the protection of
property. Of course, there were no automobiles in those days. The subsequent inauguration
and development of transportation by motor vehicles on the public highways by common
carriers of freight and passengers created even greater risks to the safety of occupants of the
vehicles and of danger of injury and death of domestic animals. Yet, under the law the
operators of that mode of competitive transportation are not subject to the same extraordinary
legal responsibility for killing such animals on the public roads as are railroad companies for
killing them on their private rights of way.
The Supreme Court, speaking through Justice Brandeis in Nashville, C. & St. L. Ry. Co. v.
Walters, 294 U.S. 405, 55 S.Ct. 486, 488, 79 L.Ed. 949, stated, "A statute valid when
enacted may become invalid by change in the conditions to which it is applied. The
police power is subject to the constitutional limitation that it may not be exerted arbitrarily or
unreasonably." A number of prior opinions of that court are cited in support of the statement.
The State of Florida for many years had a statute, F.S.A. 356.01 et seq. imposing
extraordinary and special duties upon railroad companies, among which was that a railroad
company was liable for double damages and an attorney's fee for killing livestock by a train
without the owner having to prove any act of negligence on the part of the carrier in the
operation of its train. In Atlantic Coast Line Railroad Co. v. Ivey, it was held that the changed
conditions brought about by motor vehicle transportation rendered the statute unconstitutional
since if a common carrier by motor vehicle had killed the same animal, the owner would have
been required to prove negligence in the operation of its equipment. Said the court, "This
certainly is not equal protection of the law."34 (emphasis supplied)
Echoes of these rulings resonate in our case law, viz:
[C]ourts are not confined to the language of the statute under challenge in determining
whether that statute has any discriminatory effect. A statute nondiscriminatory on its face
may be grossly discriminatory in its operation. Though the law itself be fair on its face
and impartial in appearance, yet, if it is applied and administered by public authority with an
evil eye and unequal hand, so as practically to make unjust and illegal discriminations between
 persons in similar circumstances, material to their rights, the denial of equal justice is still
within the prohibition of the Constitution.35 (emphasis supplied, citations omitted)
[W]e see no difference between a law which denies equal protection and a law which
permits of such denial. A law may appear to be fair on its face and impartial in appearance,
yet, if it permits of unjust and illegal discrimination, it is within the constitutional prohibition..
In other words, statutes may be adjudged unconstitutional because of their effect in
operation. If a law has the effect of denying the equal protection of the law it is
unconstitutional. .36 (emphasis supplied, citations omitted
3. Enactment of R.A. Nos. 7907 + 8282 + 8289 + 8291 + 8523
+ 9302 = consequential unconstitutionality of challenged proviso.
According to petitioner, the last proviso of Section 15(c), Article II of R.A. No. 7653 is also violative of
the equal protection clause because after it was enacted, the charters of the GSIS, LBP, DBP and SSS
were also amended, but the personnel of the latter GFIs were all exempted from the coverage of the
SSL.37 Thus, within the class of rank-and-file personnel of GFIs, the BSP rank-and-file are also
discriminated upon.
Indeed, we take judicial notice that after the new BSP charter was enacted in 1993, Congress also
undertook the amendment of the charters of the GSIS, LBP, DBP and SSS, and three other GFIs, from
1995 to 2004, viz:
1. R.A. No. 7907 (1995) for Land Bank of the Philippines (LBP);
2. R.A. No. 8282 (1997) for Social Security System (SSS);
3. R.A. No. 8289 (1997) for Small Business Guarantee and Finance Corporation, (SBGFC);
4. R.A. No. 8291 (1997) for Government Service Insurance System (GSIS);
5. R.A. No. 8523 (1998) for Development Bank of the Philippines (DBP);
6. R.A. No. 8763 (2000) for Home Guaranty Corporation (HGC);38 and
7. R.A. No. 9302 (2004) for Philippine Deposit Insurance Corporation (PDIC).
It is noteworthy, as petitioner points out, that the subsequent charters of the seven other GFIs
share this common proviso: a blanket exemption of all their employees from the coverage of the
SSL, expressly or impliedly, as illustrated below:
1. LBP (R.A. No. 7907)
Section 10. Section 90 of [R.A. No. 3844] is hereby amended to read as follows:
Section 90. Personnel. -
xxx xxx xxx
All positions in the Bank shall be governed by a compensation, position classification system
and qualification standards approved by the Bank's Board of Directors based on a
comprehensive job analysis and audit of actual duties and responsibilities. The compensation
plan shall be comparable with the prevailing compensation plans in the private sector and shall
be subject to periodic review by the Board no more than once every two (2) years without
prejudice to yearly merit reviews or increases based on productivity and profitability. The
Bank shall therefore be exempt from existing laws, rules and regulations on
compensation, position classification and qualification standards. It shall however
endeavor to make its system conform as closely as possible with the principles under Republic
Act No. 6758. (emphasis supplied)
+ 8763 xxx xxx xxx
2. SSS (R.A. No. 8282)
Section 1. [Amending R.A. No. 1161, Section 3(c)]:
xxx xxx xxx
(c)The Commission, upon the recommendation of the SSS President, shall appoint an actuary
and such other personnel as may [be] deemed necessary; fix their reasonable compensation,
allowances and other benefits; prescribe their duties and establish such methods and
procedures as may be necessary to insure the efficient, honest and economical administration
of the provisions and purposes of this Act: Provided, however, That the personnel of the SSS
below the rank of Vice President shall be appointed by the SSS President: Provided, further,
That the personnel appointed by the SSS President, except those below the rank of assistant
manager, shall be subject to the confirmation by the Commission; Provided further, That the
personnel of the SSS shall be selected only from civil service eligibles and be subject to civil
service rules and regulations: Provided, finally, That the SSS shall be exempt from the
provisions of Republic Act No. 6758 and Republic Act No. 7430. (emphasis supplied)
3. SBGFC (R.A. No. 8289)
Section 8. [Amending R.A. No. 6977, Section 11]:
xxx xxx xxx
The Small Business Guarantee and Finance Corporation shall:
xxx xxx xxx
(e) notwithstanding the provisions of Republic Act No. 6758, and Compensation
Circular No. 10, series of 1989 issued by the Department of Budget and Management, the
Board of Directors of SBGFC shall have the authority to extend to the employees and
personnel thereof the allowance and fringe benefits similar to those extended to and
currently enjoyed by the employees and personnel of other government financial
institutions. (emphases supplied)
4. GSIS (R.A. No. 8291)
Section 1. [Amending Section 43(d)].
 xxx xxx xxx
Sec. 43. Powers and Functions of the Board of Trustees. - The Board of Trustees shall have the
following powers and functions:
xxx xxx xxx
(d) upon the recommendation of the President and General Manager, to approve the GSIS'
organizational and administrative structures and staffing pattern, and to establish, fix, review,
revise and adjust the appropriate compensation package for the officers and employees of the
GSIS with reasonable allowances, incentives, bonuses, privileges and other benefits as may
be necessary or proper for the effective management, operation and administration of
the GSIS, which shall be exempt from Republic Act No. 6758, otherwise known as the
Salary Standardization Law and Republic Act No. 7430, otherwise known as the
Attrition Law. (emphasis supplied)
xxx xxx xxx
5. DBP (R.A. No. 8523)
Section 6. [Amending E.O. No. 81, Section 13]:
Section 13. Other Officers and Employees. - The Board of Directors shall provide for an
organization and staff of officers and employees of the Bank and upon recommendation of the
President of the Bank, fix their remunerations and other emoluments. All positions in the Bank
shall be governed by the compensation, position classification system and qualification
standards approved by the Board of Directors based on a comprehensive job analysis of actual
duties and responsibilities. The compensation plan shall be comparable with the prevailing
compensation plans in the private sector and shall be subject to periodic review by the Board
of Directors once every two (2) years, without prejudice to yearly merit or increases based on
the Bank's productivity and profitability. The Bank shall, therefore, be exempt from
existing laws, rules, and regulations on compensation, position classification and
qualification standards. The Bank shall however, endeavor to make its system
conform as closely as possible with the principles under Compensation and Position
Classification Act of 1989 (Republic Act No. 6758, as amended). (emphasis supplied)
6. HGC (R.A. No. 8763)
Section 9. Powers, Functions and Duties of the Board of Directors. - The Board shall have the following
powers, functions and duties:
xxx xxx xxx
(e) To create offices or positions necessary for the efficient management, operation and
administration of the Corporation: Provided, That all positions in the Home Guaranty
Corporation (HGC) shall be governed by a compensation and position classification system and
qualifications standards approved by the Corporation's Board of Directors based on a
comprehensive job analysis and audit of actual duties and responsibilities: Provided,
further, That the compensation plan shall be comparable with the prevailing
compensation plans in the private sector and which shall be exempt from Republic
Act No. 6758, otherwise known as the Salary Standardization Law, and from other
laws, rules and regulations on salaries and compensations; and to establish a Provident
Fund and determine the Corporation's and the employee's contributions to the Fund; (emphasis
supplied)
xxx xxx xxx
7. PDIC (R.A. No. 9302)
Section 2. Section 2 of [Republic Act No. 3591, as amended] is hereby further amended to read:
xxx xxx xxx
3.
xxx xxx xxx
A compensation structure, based on job evaluation studies and wage surveys and subject to
the Board's approval, shall be instituted as an integral component of the Corporation's human
resource development program: Provided, That all positions in the Corporation shall be
governed by a compensation, position classification system and qualification standards
approved by the Board based on a comprehensive job analysis and audit of actual duties and
responsibilities. The compensation plan shall be comparable with the prevailing
compensation plans of other government financial institutions and shall be subject to
review by the Board no more than once every two (2) years without prejudice to yearly merit
reviews or increases based on productivity and profitability. The Corporation shall therefore
be exempt from existing laws, rules and regulations on compensation, position
classification and qualification standards. It shall however endeavor to make its system
conform as closely as possible with the principles under Republic Act No. 6758, as amended.
(emphases supplied)
Thus, eleven years after the amendment of the BSP charter, the rank-and-file of seven other
GFIs were granted the exemption that was specifically denied to the rank-and-file of the
BSP. And as if to add insult to petitioner's injury, even the Securities and Exchange Commission (SEC)
was granted the same blanket exemption from the SSL in 2000! 39
The prior view on the constitutionality of R.A. No. 7653 was confined to an evaluation of its
classification between the rank-and-file and the officers of the BSP, found reasonable because
there were substantial distinctions that made real differences between the two classes.
The above-mentioned subsequent enactments, however, constitute significant changes in
circumstancethat considerably alter the reasonability of the continued operation of the
last proviso of Section 15(c), Article II of Republic Act No. 7653, thereby exposing
the proviso to more serious scrutiny. This time, the scrutiny relates to the constitutionality of the
classification - albeit made indirectly as a consequence of the passage of eight other laws - between
the rank-and-file of the BSP and the seven other GFIs. The classification must not only be
reasonable, but must also apply equally to all members of the class. Theproviso may be fair on its
face and impartial in appearance but it cannot be grossly discriminatory in its operation, so as
practically to make unjust distinctions between persons who are without differences. 40
Stated differently, the second level of inquiry deals with the following questions: Given that Congress
chose to exempt other GFIs (aside the BSP) from the coverage of the SSL, can the exclusion of the rank-
and-file employees of the BSP stand constitutional scrutiny in the light of the fact that Congress did not
exclude the rank-and-file employees of the other GFIs? Is Congress' power to classify so unbridled as to
sanction unequal and discriminatory treatment, simply because the inequity manifested itself, not
instantly through a single overt act, but gradually and progressively, through seven separate acts of
Congress? Is the right to equal protection of the law bounded in time and space that: (a) the right can
only be invoked against a classification made directly and deliberately, as opposed to a discrimination
that arises indirectly, or as a consequence of several other acts; and (b) is the legal analysis confined to
determining the validity within the parameters of the statute or ordinance (where the inclusion or
exclusion is articulated), thereby proscribing any evaluation vis--vis the grouping, or the lack thereof, (1) the education and experience required to perform the duties and responsibilities of the
among several similar enactments made over a period of time? positions;

In this second level of scrutiny, the inequality of treatment cannot be justified on the mere assertion (2) the nature and complexity of the work to be performed;
that each exemption (granted to the seven other GFIs) rests "on a policy determination by the
legislature." All legislative enactments necessarily rest on a policy determination - even those
that have been declared to contravene the Constitution. Verily, if this could serve as a magic wand to (3) the kind of supervision received;
sustain the validity of a statute, then no due process and equal protection challenges would ever prosper.
There is nothing inherently sacrosanct in a policy determination made by Congress or by the Executive; (4) mental and/or physical strain required in the completion of the work;
it cannot run riot and overrun the ramparts of protection of the Constitution.

(5) nature and extent of internal and external relationships;

In fine, the "policy determination" argument may support the inequality of treatment between the rank-
and-file and the officers of the BSP, but it cannot justify the inequality of treatment between BSP rank-
and-file and other GFIs' who are similarly situated. It fails to appreciate that what is at issue in (6) kind of supervision exercised;
the second level of scrutiny is not the declared policy of each law per se, but the oppressive results
of Congress' inconsistent and unequal policy towards the BSP rank-and-file and those of the seven
(7) decision-making responsibility;
other GFIs. At bottom, the second challenge to the constitutionality of Section 15(c), Article II of Republic
Act No. 7653 is premised precisely on the irrational discriminatory policy adopted by Congress
in its treatment of persons similarly situated. In the field of equal protection, the guarantee that (8) responsibility for accuracy of records and reports;
"no person shall be denied the equal protection of the laws" includes the prohibition against enacting
laws that allow invidious discrimination, directly or indirectly. If a law has the effect of denying the
equal protection of the law, or permits such denial, it is unconstitutional. 41 (9) accountability for funds, properties and equipment; and

It is against this standard that the disparate treatment of the BSP rank-and-file from the other GFIs
cannot stand judicial scrutiny. For as regards the exemption from the coverage of the SSL, there exist
no substantial distinctions so as to differentiate, the BSP rank-and-file from the other rank-and-file of
the seven GFIs. On the contrary, our legal history shows that GFIs have long been recognized as
comprising one distinct class, separate from other governmental entities.
Before the SSL, Presidential Decree (P.D.) No. 985 (1976) declared it as a State policy (1) to provide
equal pay for substantially equal work, and (2) to base differences in pay upon substantive differences
in duties and responsibilities, and qualification requirements of the positions. P.D. No. 985 was passed
to address disparities in pay among similar or comparable positions which had given rise to dissension
among government employees.But even then, GFIs and government-owned and/or controlled
corporations (GOCCs) were already identified as a distinct class among government
employees. Thus, Section 2 also provided, "[t]hat notwithstanding a standardized salary system
established for all employees, additional financial incentives may be established by government
corporation and financial institutions for their employees to be supported fully from their corporate funds
and for such technical positions as may be approved by the President in critical government agencies." 42
The same favored treatment is made for the GFIs and the GOCCs under the SSL. Section 3(b) provides
that one of the principles governing the Compensation and Position Classification System of the
Government is that: "[b]asic compensation for all personnel in the government and government-owned
or controlled corporations and financial institutions shall generally be comparable with those in the private
sector doing comparable work, and must be in accordance with prevailing laws on minimum wages."
Thus, the BSP and all other GFIs and GOCCs were under the unified Compensation and Position
Classification System of the SSL, 43 but rates of pay under the SSL were determined on the basis of,
among others, prevailing rates in the private sector for comparable work. Notably, the Compensation
and Position Classification System was to be governed by the following principles: (a) just and equitable
wages, with the ratio of compensation between pay distinctions maintained at equitable levels;44 and (b)
basic compensation generally comparable with the private sector, in accordance with prevailing laws on
minimum wages.45 Also, the Department of Budget and Management was directed to use, as guide for
preparing the Index of Occupational Services, the Benchmark Position Schedule, and the following
factors:46
(10) hardship, hazard and personal risk involved in the job.
The Benchmark Position Schedule enumerates the position titles that fall within Salary Grades 1 to 20.
Clearly, under R.A. No. 6758, the rank-and-file of all GFIs were similarly situated in all aspects pertaining
to compensation and position classification, in consonance with Section 5, Article IX-B of the 1997
Constitution.47
Then came the enactment of the amended charter of the BSP, implicitly exempting the Monetary
Board from the SSL by giving it express authority to determine and institute its own compensation and
wage structure. However, employees whose positions fall under SG 19 and below were specifically limited
to the rates prescribed under the SSL.
Subsequent amendments to the charters of other GFIs followed. Significantly, each government
financial institution (GFI) was not only expressly authorized to determine and institute its own
compensation and wage structure, but also explicitly exempted - without distinction as to salary
grade or position - all employees of the GFI from the SSL.
It has been proffered that legislative deliberations justify the grant or withdrawal of exemption from the
SSL, based on the perceived need "to fulfill the mandate of the institution concerned considering, among
others, that: (1) the GOCC or GFI is essentially proprietary in character; (2) the GOCC or GFI is in direct
competition with their[sic] counterparts in the private sector, not only in terms of the provisions of goods
or services, but also in terms of hiring and retaining competent personnel; and (3) the GOCC or GFI are
or were [sic] experiencing difficulties filling up plantilla positions with competent personnel and/or
retaining these personnel. The need for the scope of exemption necessarily varies with the particular
circumstances of each institution, and the corresponding variance in the benefits received by the
employees is merely incidental."
The fragility of this argument is manifest. First, the BSP is the central monetary authority,48 and
the banker of the government and all its political subdivisions. 49 It has the sole power and
authority to issue currency;50provide policy directions in the areas of money, banking, and credit; and
supervise banks and regulate finance companies and non-bank financial institutions performing quasi-
banking functions, including the exempted GFIs.51 Hence, the argument that the rank-and-file
employees of the seven GFIs were exempted because of the importance of their institution's mandate
cannot stand any more than an empty sack can stand.
Second, it is certainly misleading to say that "the need for the scope of exemption necessarily varies with
the particular circumstances of each institution." Nowhere in the deliberations is there a cogent basis for
the exclusion of the BSP rank-and-file from the exemption which was granted to the rank-and-file of the
other GFIs and the SEC. As point in fact, the BSP and the seven GFIs are similarly situated in so far as
Congress deemed it necessary for these institutions to be exempted from the SSL. True, the SSL-
exemption of the BSP and the seven GFIs was granted in the amended charters of each GFI, enacted
separately and over a period of time. But it bears emphasis that, while each GFI has a mandate different
and distinct from that of another, the deliberations show that the raison d'tre of the SSL-exemption
was inextricably linked to and for the most part based on factors common to the eight GFIs, i.e., (1) the
pivotal role they play in the economy; (2) the necessity of hiring and retaining qualified and effective
personnel to carry out the GFI's mandate; and (3) the recognition that the compensation package of
these GFIs is not competitive, and fall substantially below industry standards. Considering further that
(a) the BSP was the first GFI granted SSL exemption; and (b) the subsequent exemptions of other GFIs
did not distinguish between the officers and the rank-and-file; it is patent that the classification made
between the BSP rank-and-file and those of the other seven GFIs was inadvertent, and NOT
intended, i.e., it was not based on any substantial distinction vis--vis the particular circumstances of
each GFI. Moreover, the exemption granted to two GFIs makes express reference to allowance and fringe
benefits similar to those extended to and currently enjoyed by the employees and personnel of other
GFIs,52 underscoring that GFIs are a particular class within the realm of government entities.
It is precisely this unpremeditated discrepancy in treatment of the rank-and-file of the BSP - made
manifest and glaring with each and every consequential grant of blanket exemption from the SSL to the
other GFIs - that cannot be rationalized or justified. Even more so, when the SEC - which is not a GFI -
was given leave to have a compensation plan that "shall be comparable with the prevailing compensation
plan in the [BSP] and other [GFIs],"53 then granted a blanket exemption from the SSL, and its rank-and-
file endowed a more preferred treatment than the rank-and-file of the BSP.
The violation to the equal protection clause becomes even more pronounced when we are faced with this
undeniable truth: that if Congress had enacted a law for the sole purpose of exempting the eight GFIs
from the coverage of the SSL, the exclusion of the BSP rank-and-file employees would have been devoid
of any substantial or material basis. It bears no moment, therefore, that the unlawful discrimination was
not a direct result arising from one law. "Nemo potest facere per alium quod non potest facere per
directum." No one is allowed to do indirectly what he is prohibited to do directly.
It has also been proffered that "similarities alone are not sufficient to support the conclusion that rank-
and-file employees of the BSP may be lumped together with similar employees of the other GOCCs for
purposes of compensation, position classification and qualification standards. The fact that certain
persons have some attributes in common does not automatically make them members of the same class
with respect to a legislative classification." Cited is the ruling in Johnson v. Robinson:54 "this finding of
similarity ignores that a common characteristic shared by beneficiaries and nonbeneficiaries alike, is not
sufficient to invalidate a statute when other characteristics peculiar to only one group rationally explain
the statute's different treatment of the two groups."
The reference to Johnson is inapropos. In Johnson, the US Court sustained the validity of the classification
as there were quantitative and qualitative distinctions, expressly recognized by Congress,
which formed a rational basis for the classification limiting educational benefits to military service
veterans as a means of helping them readjust to civilian life. The Court listed the peculiar characteristics
as follows:
First, the disruption caused by military service is quantitatively greater than that caused by
alternative civilian service. A conscientious objector performing alternative service is obligated
to work for two years. Service in the Armed Forces, on the other hand, involves a six-year
commitment
xxx xxx xxx
Second, the disruptions suffered by military veterans and alternative service performers are
qualitatively different. Military veterans suffer a far greater loss of personal freedom during
their service careers. Uprooted from civilian life, the military veteran becomes part of the
military establishment, subject to its discipline and potentially hazardous duty. Congress was
acutely aware of the peculiar disabilities caused by military service, in consequence of which
military servicemen have a special need for readjustment benefits55 (citations omitted)
In the case at bar, it is precisely the fact that as regards the exemption from the SSL, there are no
characteristics peculiar only to the seven GFIs or their rank-and-file so as to justify the
exemption which BSP rank-and-file employees were denied (not to mention the anomaly of the
SEC getting one). The distinction made by the law is not only superficial, 56 but also arbitrary. It is not
based on substantial distinctions that make real differences between the BSP rank-and-file and the seven
other GFIs.
Moreover, the issue in this case is not - as the dissenting opinion of Mme. Justice Carpio-Morales would
put it - whether "being an employee of a GOCC or GFI is reasonable and sufficient basis for exemption"
from R.A. No. 6758. It is Congress itself that distinguished the GFIs from other government
agencies, not once but eight times, through the enactment of R.A. Nos. 7653, 7907, 8282, 8289, 8291,
8523, 8763, and 9302. These laws may have created a "preferred sub-class within government
employees," but the present challenge is not directed at the wisdom of these laws. Rather, it is a legal
conundrum involving the exercise of legislative power, the validity of which must be measured not only
by looking at the specific exercise in and by itself (R.A. No. 7653), but also as to the legal effects brought
about by seven separate exercises - albeit indirectly and without intent.
Thus, even if petitioner had not alleged "a comparable change in the factual milieu as regards the
compensation, position classification and qualification standards of the employees of the BSP (whether
of the executive level or of the rank-and-file) since the enactment of the new Central Bank Act" is of no
moment. In GSIS v. Montesclaros,57 this Court resolved the issue of constitutionality notwithstanding
that claimant had manifested that she was no longer interested in pursuing the case, and even when the
constitutionality of the said provision was not squarely raised as an issue, because the issue involved not
only the claimant but also others similarly situated and whose claims GSIS would also deny based on the
challenged proviso. The Court held that social justice and public interest demanded the resolution of the
constitutionality of the proviso. And so it is with the challengedproviso in the case at bar.
It bears stressing that the exemption from the SSL is a "privilege" fully within the legislative prerogative
to give or deny. However, its subsequent grant to the rank-and-file of the seven other GFIs and continued
denial to the BSP rank-and-file employees breached the latter's right to equal protection. In other words,
while the granting of a privilege per se is a matter of policy exclusively within the domain and prerogative
of Congress, the validity or legality of the exercise of this prerogative is subject to judicial review.58 So
when the distinction made is superficial, and not based on substantial distinctions that make real
differences between those included and excluded, it becomes a matter of arbitrariness that this Court
has the duty and the power to correct.59 As held in the United Kingdom case of Hooper v. Secretary of
State for Work and Pensions,60 once the State has chosen to confer benefits, "discrimination" contrary
to law may occur where favorable treatment already afforded to one group is refused to another, even
though the State is under no obligation to provide that favorable treatment. 61
The disparity of treatment between BSP rank-and-file and the rank-and-file of the other seven GFIs
definitely bears the unmistakable badge of invidious discrimination - no one can, with candor and
fairness, deny the discriminatory character of the subsequent blanket and total exemption of the seven
other GFIs from the SSL when such was withheld from the BSP. Alikes are being treated as unalikes
without any rational basis.
Again, it must be emphasized that the equal protection clause does not demand absolute equality but it
requires that all persons shall be treated alike, under like circumstances and conditions both
as to privileges conferred and liabilities enforced. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be given to every person under
circumstances which, if not identical, are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion; whatever restrictions cast on some
in the group is equally binding on the rest.62
In light of the lack of real and substantial distinctions that would justify the unequal treatment between
the rank-and-file of BSP from the seven other GFIs, it is clear that the enactment of the seven subsequent
charters has rendered the continued application of the challenged proviso anathema to the equal
protection of the law, and the same should be declared as an outlaw.
IV.
Equal Protection Under International Lens
In our jurisdiction, the standard and analysis of equal protection challenges in the main have followed
the"rational basis" test, coupled with a deferential attitude to legislative classifications 63 and a
reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the
Constitution. 64
A. Equal Protection in the United States
In contrast, jurisprudence in the U.S. has gone beyond the static "rational basis" test. Professor
Gunther highlights the development in equal protection jurisprudential analysis, to wit: 65
Traditionally, equal protection supported only minimal judicial intervention in most contexts.
Ordinarily, the command of equal protection was only that government must not impose
differences in treatment "except upon some reasonable differentiation fairly related to the
object of regulation." The old variety of equal protection scrutiny focused solely on
the means used by the legislature: it insisted merely that the classification in the
statute reasonably relates to the legislative purpose. Unlike substantive due process,
equal protection scrutiny was not typically concerned with identifying "fundamental values"
and restraining legislative ends. And usually the rational classification requirement was
readily satisfied: the courts did not demand a tight fit between classification and purpose;
perfect congruence between means and ends was not required.
xxx xxx xxx
[From marginal intervention to major cutting edge: The Warren Court's "new equal
protection" and the two-tier approach.]
From its traditional modest role, equal protection burgeoned into a major intervention
tool during the Warren era, especially in the 1960s. The Warren Court did not abandon the
deferential ingredients of the old equal protection: in most areas of economic and social
legislation, the demands imposed by equal protection remained as minimal as everBut the
Court launched an equal protection revolution by finding large new areas for strict rather than
deferential scrutiny. A sharply differentiated two-tier approachevolved by the late 1960s:
in addition to the deferential "old" equal protection, a "new" equal protection, connoting strict
scrutiny, arose. The intensive review associated with the new equal protection imposed two
demands - a demand not only as to means but also one as to ends. Legislation qualifying
for strict scrutiny required a far closer fit between classification and statutory purpose than the
rough and ready flexibility traditionally tolerated by the old equal protection: means had to
be shown "necessary" to achieve statutory ends, not merely "reasonably related"
ones. Moreover, equal protection became a source of ends scrutiny as well: legislation in the
areas of the new equal protection had to be justified by "compelling" state interests, not merely
the wide spectrum of "legitimate" state ends.
The Warren Court identified the areas appropriate for strict scrutiny by searching
for two characteristics: the presence of a "suspect" classification; or an impact on
"fundamental" rights or interests. In the category of "suspect classifications," the Warren
Court's major contribution was to intensify the strict scrutiny in the traditionally interventionist
area of racial classifications. But other cases also suggested that there might be more other
suspect categories as well: illegitimacy and wealth for example. But it was the 'fundamental
interests" ingredient of the new equal protection that proved particularly dynamic, open-ended,
and amorphous.. [Other fundamental interests included voting, criminal appeals, and the
right of interstate travel .]
xxx xxx xxx
The Burger Court and Equal Protection.
The Burger Court was reluctant to expand the scope of the new equal protection,
although its best established ingredient retains vitality. There was also mounting
discontent with the rigid two-tier formulations of the Warren Court's equal protection doctrine.
It was prepared to use the clause as an interventionist tool without resorting to the strict
language of the new equal protection. [Among the fundamental interests identified during
this time were voting and access to the ballot, while "suspect" classifications included sex,
alienage and illegitimacy.]
xxx xxx xxx
Even while the two-tier scheme has often been adhered to in form, there has also been an
increasingly noticeable resistance to the sharp difference between deferential "old" and
interventionist "new" equal protection. A number of justices sought formulations that would
blur the sharp distinctions of the two-tiered approach or that would narrow the gap between
strict scrutiny and deferential review. The most elaborate attack came from Justice Marshall,
whose frequently stated position was developed most elaborately in his dissent in
the Rodriguez case: 66
The Court apparently seeks to establish [that] equal protection cases fall into one of two neat
categories which dictate the appropriate standard of review - strict scrutiny or mere
rationality. But this (sic) Court's [decisions] defy such easy categorization. A principled
reading of what this Court has done reveals that it has applied a spectrum of standards in
reviewing discrimination allegedly violative of the equal protection clause. This spectrum
clearly comprehends variations in the degree of care with which Court will scrutinize particular
classification, depending, I believe, on the constitutional and societal importance of the
interests adversely affected and the recognized invidiousness of the basis upon which the
particular classification is drawn.
Justice Marshall's "sliding scale" approach describes many of the modern decisions,
although it is a formulation that the majority refused to embrace. But the Burger Court's
results indicate at least two significant changes in equal protection
law: First, invocation of the "old" equal protection formula no longer signals, as it did with the
Warren Court, an extreme deference to legislative classifications and a virtually automatic
validation of challenged statutes. Instead, several cases, even while voicing the minimal
"rationality" "hands-off" standards of the old equal protection, proceed to find the statute
unconstitutional.Second, in some areas the modern Court has put forth standards for equal
protection review that, while clearly more intensive than the deference of the "old" equal
protection, are less demanding than the strictness of the "new" equal protection. Sex
discrimination is the best established example of an"intermediate" level of review. Thus,
 in one case, the Court said that "classifications by gender must serve important governmental
objectives and must be substantially related to achievement of those objectives." That
standard is "intermediate" with respect to both ends and means: where ends must be
"compelling" to survive strict scrutiny and merely "legitimate" under the "old" mode,
"important" objectives are required here; and where means must be "necessary" under the
"new" equal protection, and merely "rationally related" under the "old" equal protection, they
must be "substantially related" to survive the "intermediate" level of review. (emphasis
supplied, citations omitted)
B. Equal Protection in Europe
The United Kingdom and other members of the European Community have also gone forward in
discriminatory legislation and jurisprudence. Within the United Kingdom domestic law, the most extensive
list of protected grounds can be found in Article 14 of the European Convention on Human
Rights (ECHR). It prohibits discrimination on grounds such as "sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a national minority, property, birth or
other status." This list is illustrative and not exhaustive. Discrimination on the basis of race, sex and
religion is regarded as grounds that require strict scrutiny. A further indication that certain forms
of discrimination are regarded as particularly suspect under the Covenant can be gleaned from Article
4, which, while allowing states to derogate from certain Covenant articles in times of national emergency,
prohibits derogation by measures that discriminate solely on the grounds of "race, colour, language,
religion or social origin."67
Moreover, the European Court of Human Rights has developed a test of justification which varies with
the ground of discrimination. In the Belgian Linguistics case68 the European Court set the standard of
justification at a low level: discrimination would contravene the Convention only if it had no legitimate
aim, or there was no reasonable relationship of proportionality between the means employed and the
aim sought to be realised.69 But over the years, the European Court has developed a hierarchy of
grounds covered by Article 14 of the ECHR, a much higher level of justification being required
in respect of those regarded as "suspect" (sex, race, nationality, illegitimacy, or sexual
orientation) than of others. Thus, in Abdulaziz, 70 the European Court declared that:
. . . [t]he advancement of the equality of the sexes is today a major goal in the member States
of the Council of Europe. This means that very weighty reasons would have to be advanced
before a difference of treatment on the ground of sex could be regarded as compatible with
the Convention.
And in Gaygusuz v. Austria,71 the European Court held that "very weighty reasons would have to
be put forward before the Court could regard a difference of treatment based exclusively on the ground
of nationality as compatible with the Convention."72 The European Court will then permit States a very
much narrower margin of appreciation in relation to discrimination on grounds of sex, race, etc., in
the application of the Convention rights than it will in relation to distinctions drawn by states between,
for example, large and small land-owners. 73
C. Equality under International Law
The principle of equality has long been recognized under international law. Article 1 of the Universal
Declaration of Human Rights proclaims that all human beings are born free and equal in dignity
and rights. Non-discrimination, together with equality before the law and equal protection of the law
without any discrimination, constitutes basic principles in the protection of human rights. 74
Most, if not all, international human rights instruments include some prohibition on discrimination
and/or provisions about equality.75 The general international provisions pertinent to discrimination and/or
equality are the International Covenant on Civil and Political Rights (ICCPR); 76 the International Covenant
on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of all
Forms of Racial Discrimination (CERD);77 the Convention on the Elimination of all Forms of Discrimination
against Women (CEDAW); and the Convention on the Rights of the Child (CRC).
In the broader international context, equality is also enshrined in regional instruments such as the
American Convention on Human Rights;78 the African Charter on Human and People's Rights;79 the
European Convention on Human Rights;80 the European Social Charter of 1961 and revised Social Charter
of 1996; and the European Union Charter of Rights (of particular importance to European states). Even
the Council of the League of Arab States has adopted the Arab Charter on Human Rights in 1994, although
it has yet to be ratified by the Member States of the League. 81
The equality provisions in these instruments do not merely function as traditional "first
generation" rights, commonly viewed as concerned only with constraining rather than
requiring State action. Article 26 of the ICCPR requires "guarantee[s]" of "equal and effective
protection against discrimination" while Articles 1 and 14 of the American and European Conventions
oblige States Parties "to ensure ... the full and free exercise of [the rights guaranteed] ... without any
discrimination" and to "secure without discrimination" the enjoyment of the rights guaranteed. 82 These
provisions impose a measure of positive obligation on States Parties to take steps to eradicate
discrimination.
In the employment field, basic detailed minimum standards ensuring equality and prevention of
discrimination, are laid down in the ICESCR83 and in a very large number of Conventions administered
by the International Labour Organisation, a United Nations body. 84 Additionally, many of the other
international and regional human rights instruments have specific provisions relating to employment. 85
The United Nations Human Rights Committee has also gone beyond the earlier tendency to
view the prohibition against discrimination (Article 26) as confined to the ICCPR
rights.86 In Broeks87 and Zwaan-de Vries,88 the issue before the Committee was whether discriminatory
provisions in the Dutch Unemployment Benefits Act (WWV) fell within the scope of Article 26. The Dutch
government submitted that discrimination in social security benefit provision was not within the scope of
Article 26, as the right was contained in the ICESCR and not the ICCPR. They accepted that Article 26
could go beyond the rights contained in the Covenant to other civil and political rights, such as
discrimination in the field of taxation, but contended that Article 26 did not extend to the social, economic,
and cultural rights contained in ICESCR. The Committee rejected this argument. In its view, Article 26
applied to rights beyond the Covenant including the rights in other international treaties such as the right
to social security found in ICESCR:
Although Article 26 requires that legislation should prohibit discrimination, it does not of itself
contain any obligation with respect to the matters that may be provided for by legislation. Thus
it does not, for example, require any state to enact legislation to provide for social security.
However, when such legislation is adopted in the exercise of a State's sovereign power, then
such legislation must comply with Article 26 of the Covenant.89
Breaches of the right to equal protection occur directly or indirectly. A classification may be struck down
if it has the purpose or effect of violating the right to equal protection. International law recognizes
that discrimination may occur indirectly, as the Human Rights Committee90 took into account the
definitions of discrimination adopted by CERD and CEDAW in declaring that:
. . . "discrimination" as used in the [ICCPR] should be understood to imply any distinction,
exclusion, restriction or preference which is based on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin, property, birth or other
status, and which has thepurpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms. 91 (emphasis supplied)
Thus, the two-tier analysis made in the case at bar of the challenged provision, and its
conclusion of unconstitutionality by subsequent operation, are in cadence and in consonance
with the progressive trend of other jurisdictions and in international law. There should be no
hesitation in using the equal protection clause as a major cutting edge to eliminate every conceivable
irrational discrimination in our society. Indeed, the social justice imperatives in the Constitution, coupled
with the special status and protection afforded to labor, compel this approach. 92
Apropos the special protection afforded to labor under our Constitution and international law, we held in
International School Alliance of Educators v. Quisumbing: 93
That public policy abhors inequality and discrimination is beyond contention. Our Constitution
and laws reflect the policy against these evils. The Constitution in the Article on Social Justice
and Human Rights exhorts Congress to "give highest priority to the enactment of measures
that protect and enhance the right of all people to human dignity, reduce social, economic, and
political inequalities." The very broad Article 19 of the Civil Code requires every person, "in the
exercise of his rights and in the performance of his duties, [to] act with justice, give everyone
his due, and observe honesty and good faith."
International law, which springs from general principles of law, likewise proscribes
discrimination. General principles of law include principles of equity, i.e., the general principles
of fairness and justice, based on the test of what is reasonable. The Universal Declaration of
Human Rights, the International Covenant on Economic, Social, and Cultural Rights, the
International Convention on the Elimination of All Forms of Racial Discrimination, the
Convention against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation - all embody the general principle
against discrimination, the very antithesis of fairness and justice. The Philippines, through its
Constitution, has incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and labor are often skewed in favor of
capital, inequality and discrimination by the employer are all the more reprehensible.
The Constitution specifically provides that labor is entitled to "humane conditions of work."
These conditions are not restricted to the physical workplace - the factory, the office or the
field - but include as well the manner by which employers treat their employees.
The Constitution also directs the State to promote "equality of employment opportunities for
all." Similarly, the Labor Code provides that the State shall "ensure equal work opportunities
regardless of sex, race or creed." It would be an affront to both the spirit and letter of these
provisions if the State, in spite of its primordial obligation to promote and ensure equal
employment opportunities, closes its eyes to unequal and discriminatory terms and conditions
of employment.
xxx xxx xxx
Notably, the International Covenant on Economic, Social, and Cultural Rights, in Article 7
thereof, provides:
The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of just and [favorable] conditions of work, which ensure, in particular:
a. Remuneration which provides all workers, as a minimum, with:
i. Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions
of work not inferior to those enjoyed by men, with equal pay for equal
work;
xxx xxx xxx
The foregoing provisions impregnably institutionalize in this jurisdiction the long honored legal
truism of "equal pay for equal work." Persons who work with substantially equal qualifications,
skill, effort and responsibility, under similar conditions, should be paid similar salaries.
(citations omitted)
Congress retains its wide discretion in providing for a valid classification, and its policies should be
accorded recognition and respect by the courts of justice except when they run afoul of the
Constitution.94 The deference stops where the classification violates a fundamental right, or
prejudices persons accorded special protection by the Constitution. When these violations arise,
this Court must discharge its primary role as the vanguard of constitutional guaranties, and require a
stricter and more exacting adherence to constitutional limitations. Rational basis should not
suffice.
Admittedly, the view that prejudice to persons accorded special protection by the Constitution requires
a stricter judicial scrutiny finds no support in American or English jurisprudence. Nevertheless, these
foreign decisions and authorities are not per se controlling in this jurisdiction. At best, they are persuasive
and have been used to support many of our decisions. 95 We should not place undue and fawning reliance
upon them and regard them as indispensable mental crutches without which we cannot come to our own
decisions through the employment of our own endowments. We live in a different ambience and must
decide our own problems in the light of our own interests and needs, and of our qualities and even
idiosyncrasies as a people, and always with our own concept of law and justice. 96 Our laws must be
construed in accordance with the intention of our own lawmakers and such intent may be deduced from
the language of each law and the context of other local legislation related thereto. More importantly,
they must be construed to serve our own public interest which is the be-all and the end-all of all our
laws. And it need not be stressed that our public interest is distinct and different from others. 97
In the 2003 case of Francisco v. House of Representatives, this Court has stated that: "[A]merican
jurisprudence and authorities, much less the American Constitution, are of dubious application for these
are no longer controlling within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned....[I]n resolving constitutional disputes, [this Court] should not
be beguiled by foreign jurisprudence some of which are hardly applicable because they have been
dictated by different constitutional settings and needs." 98 Indeed, although the Philippine Constitution
can trace its origins to that of the United States, their paths of development have long since diverged. 99
Further, the quest for a better and more "equal" world calls for the use of equal protection as a tool of
effective judicial intervention.
Equality is one ideal which cries out for bold attention and action in the Constitution. The
Preamble proclaims "equality" as an ideal precisely in protest against crushing inequities in
Philippine society. The command to promote social justice in Article II, Section 10, in "all
phases of national development," further explicitated in Article XIII, are clear commands to
the State to take affirmative action in the direction of greater equality. [T]here is thus in the
Philippine Constitution no lack of doctrinal support for a more vigorous state effort towards
achieving a reasonable measure of equality.100
Our present Constitution has gone further in guaranteeing vital social and economic rights to marginalized
groups of society, including labor. 101 Under the policy of social justice, the law bends over backward to
accommodate the interests of the working class on the humane justification that those with less privilege
in life should have more in law.102 And the obligation to afford protection to labor is incumbent not only
on the legislative and executive branches but also on the judiciary to translate this pledge into a living
reality.103 Social justice calls for the humanization of laws and the equalization of social and economic
forces by the State so that justice in its rational and objectively secular conception may at least be
approximated.104
V. marketability, it is they - and not the officers - who have the real economic and
financial need for the adjustment This is in accord with the policy of the Constitution "to free the
people from poverty, provide adequate social services, extend to them a decent standard of living, and
A Final Word improve the quality of life for all."108 Any act of Congress that runs counter to this
constitutional desideratum deserves strict scrutiny by this Court before it can pass muster.
Finally, concerns have been raised as to the propriety of a ruling voiding the challenged provision. It has
been proffered that the remedy of petitioner is not with this Court, but with Congress, which alone has To be sure, the BSP rank-and-file employees merit greater concern from this Court. They
the power to erase any inequity perpetrated by R.A. No. 7653. Indeed, a bill proposing the exemption of represent the more impotent rank-and-file government employees who, unlike employees in the private
the BSP rank-and-file from the SSL has supposedly been filed. sector, have no specific right to organize as a collective bargaining unit and negotiate for better terms
and conditions of employment, nor the power to hold a strike to protest unfair labor practices. Not only
Under most circumstances, the Court will exercise judicial restraint in deciding questions of are they impotent as a labor unit, but their efficacy to lobby in Congress is almost nil as R.A. No. 7653
constitutionality, recognizing the broad discretion given to Congress in exercising its legislative power. effectively isolated them from the other GFI rank-and-file in compensation. These BSP rank-and-file
Judicial scrutiny would be based on the "rational basis" test, and the legislative discretion would be given employees represent the politically powerless and they should not be compelled to seek a
deferential treatment. 105 political solution to their unequal and iniquitous treatment. Indeed, they have waited for many
years for the legislature to act. They cannot be asked to wait some more for discrimination cannot be
given any waiting time. Unless the equal protection clause of the Constitution is a mere platitude, it is
But if the challenge to the statute is premised on the denial of a fundamental right, or the the Court's duty to save them from reasonless discrimination.
perpetuation of prejudice against persons favored by the Constitution with special protection,
judicial scrutiny ought to be more strict. A weak and watered down view would call for the abdication
of this Court's solemn duty to strike down any law repugnant to the Constitution and the rights it IN VIEW WHEREOF, we hold that the continued operation and implementation of the last proviso of
enshrines. This is true whether the actor committing the unconstitutional act is a private person or the Section 15(c), Article II of Republic Act No. 7653 is unconstitutional.
government itself or one of its instrumentalities. Oppressive acts will be struck down regardless of the
character or nature of the actor. 106 Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Azcuna, Tinga,
and Chico-Nazario, JJ., concur.
Accordingly, when the grant of power is qualified, conditional or subject to limitations, the
issue on whether or not the prescribed qualifications or conditions have been met, or the Panganiban, Carpio, Carpio-Morales, and Garcia, JJ., see dissenting.
limitations respected, is justiciable or non-political, the crux of the problem being one of legality Corona, and Callejo, Sr., JJ., on leave.
or validity of the contested act, not its wisdom. Otherwise, said qualifications, conditions or
limitations - particularly those prescribed or imposed by the Constitution - would be set at
naught. What is more, the judicial inquiry into such issue and the settlement thereof are the
main functions of courts of justice under the Presidential form of government adopted in our
1935 Constitution, and the system of checks and balances, one of its basic predicates. As a
consequence,We have neither the authority nor the discretion to decline passing upon
said issue, but are under the ineluctable obligation - made particularly more exacting
and peremptory by our oath, as members of the highest Court of the land, to support
and defend the Constitution - to settle it. This explains why, in Miller v. Johnson, it was
held that courts have a "duty, rather than a power", to determine whether another branch of
the government has "kept within constitutional limits." Not satisfied with this postulate, the
court went farther and stressed that, if the Constitution provides how it may be amended - as
it is in our 1935 Constitution - "then, unless the manner is followed, the judiciary as the
interpreter of that constitution, will declare the amendment invalid." In fact, this very Court -
speaking through Justice Laurel, an outstanding authority on Philippine Constitutional Law, as
well as one of the highly respected and foremost leaders of the Convention that drafted the
1935 Constitution - declared, as early as July 15, 1936, that "(i)n times of social disquietude
or political excitement, the great landmarks of the Constitution are apt to be forgotten or
marred, if not entirely obliterated. In cases of conflict, the judicial department is the only
constitutional organ which can be called upon to determine the proper allocation of powers
between the several departments" of the government. 107 (citations omitted; emphasis
supplied)

In the case at bar, the challenged proviso operates on the basis of the salary grade or officer-employee
status. It is akin to a distinction based on economic class and status, with the higher grades as
recipients of a benefit specifically withheld from the lower grades. Officers of the BSP now receive higher
compensation packages that are competitive with the industry, while the poorer, low-salaried employees
are limited to the rates prescribed by the SSL. The implications are quite disturbing: BSP rank-and-file
employees are paid the strictly regimented rates of the SSL while employees higher in rank - possessing
higher and better education and opportunities for career advancement - are given higher compensation
packages to entice them to stay. Considering that majority, if not all, the rank-and-file employees
consist of people whose status and rank in life are less and limited, especially in terms of job
 Republic of the Philippines the operation thereof shall be liable: Provided, further, That in case of subsequent conviction for the
SUPREME COURT same offense, the business license of the guilty party shall automatically be cancelled.
Manila
EN BANC
G.R. No. 122846 January 20, 2009 SEC. 6. Repealing Clause. Any or all provisions of City ordinances not consistent with or contrary to this
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & measure or any portion hereof are hereby deemed repealed.
DEVELOPMENT CORPORATION, Petitioners,
vs. SEC. 7. Effectivity. This ordinance shall take effect immediately upon approval.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO S. LIM, Respondent.
DECISION
Tinga, J.: Enacted by the city Council of Manila at its regular session today, November 10, 1992.
With another city ordinance of Manila also principally involving the tourist district as subject, the Court
is confronted anew with the incessant clash between government power and individual liberty in tandem
Approved by His Honor, the Mayor on December 3, 1992.
with the archetypal tension between law and morality.

On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a city ordinance barring the
declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order (
operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition
TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent
at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering
City of Manila (the City) represented by Mayor Lim. 6 MTDC prayed that the Ordinance, insofar as it
short-time admission, as well as pro-rated or "wash up" rates for such abbreviated stays. Our earlier
includes motels and inns as among its prohibited establishments, be declared invalid and
decision tested the city ordinance against our sacred constitutional rights to liberty, due process and
unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was
equal protection of law. The same parameters apply to the present petition.
authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to
charge customers wash up rates for stays of only three hours.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure, which seeks the reversal of the
Decision3 in C.A.-G.R. S.P. No. 33316 of the Court of Appeals, challenges the validity of Manila City
On December 21, 1992, petitioners White Light Corporation (WLC), Titanium Corporation (TC) and Sta.
Ordinance No. 7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-Time Admission
Mesa Tourist and Development Corporation (STDC) filed a motion to intervene and to admit attached
Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar
complaint-in-intervention7 on the ground that the Ordinance directly affects their business interests as
Establishments in the City of Manila" (the Ordinance).
operators of drive-in-hotels and motels in Manila.8 The three companies are components of the Anito
Group of Companies which owns and operates several hotels and motels in Metro Manila.9
I.
On December 23, 1992, the RTC granted the motion to intervene. 10 The RTC also notified the Solicitor
The facts are as follows: General of the proceedings pursuant to then Rule 64, Section 4 of the Rules of Court. On the same date,
MTDC moved to withdraw as plaintiff.11

On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance.4 The
Ordinance is reproduced in full, hereunder: On December 28, 1992, the RTC granted MTDC's motion to withdraw. 12 The RTC issued a TRO on January
14, 1993, directing the City to cease and desist from enforcing the Ordinance. 13 The City filed an Answer
dated January 22, 1993 alleging that the Ordinance is a legitimate exercise of police power.14
SECTION 1. Declaration of Policy. It is hereby the declared policy of the City Government to protect the
best interest, health and welfare, and the morality of its constituents in general and the youth in
particular. On February 8, 1993, the RTC issued a writ of preliminary injunction ordering the city to desist from the
enforcement of the Ordinance.15 A month later, on March 8, 1993, the Solicitor General filed his Comment
arguing that the Ordinance is constitutional.
SEC. 2. Title. This ordinance shall be known as "An Ordinance" prohibiting short time admission in hotels,
motels, lodging houses, pension houses and similar establishments in the City of Manila.
During the pre-trial conference, the WLC, TC and STDC agreed to submit the case for decision without
trial as the case involved a purely legal question. 16 On October 20, 1993, the RTC rendered a decision
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly declaring the Ordinance null and void. The dispositive portion of the decision reads:
concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and
similar establishments in the City of Manila.
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the City of Manila is hereby declared
null and void.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate
for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or
any other term that may be concocted by owners or managers of said establishments but would mean Accordingly, the preliminary injunction heretofor issued is hereby made permanent.
the same or would bear the same meaning.
SO ORDERED.17
SEC. 5. Penalty Clause. Any person or corporation who shall violate any provision of this ordinance shall
upon conviction thereof be punished by a fine of Five Thousand (5,000.00) Pesos or imprisonment for
The RTC noted that the ordinance "strikes at the personal liberty of the individual guaranteed and
a period of not exceeding one (1) year or both such fine and imprisonment at the discretion of the court;
jealously guarded by the Constitution."18 Reference was made to the provisions of the Constitution
Provided, That in case of [a] juridical person, the president, the manager, or the persons in charge of
encouraging private enterprises and the incentive to needed investment, as well as the right to operate
economic enterprises. Finally, from the observation that the illicit relationships the Ordinance sought to
dissuade could nonetheless be consummated by simply paying for a 12-hour stay, the RTC likened the
law to the ordinance annulled in Ynot v. Intermediate Appellate Court,19 where the legitimate purpose of
preventing indiscriminate slaughter of carabaos was sought to be effected through an inter-province ban
on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme Court.20 The petition was docketed
as G.R. No. 112471. However in a resolution dated January 26, 1994, the Court treated the petition as
a petition forcertiorari and referred the petition to the Court of Appeals. 21
Before the Court of Appeals, the City asserted that the Ordinance is a valid exercise of police power
pursuant to Section 458 (4)(iv) of the Local Government Code which confers on cities, among other local
government units, the power:
[To] regulate the establishment, operation and maintenance of cafes, restaurants, beerhouses, hotels,
motels, inns, pension houses, lodging houses and other similar establishments, including tourist guides
and transports.22
The Ordinance, it is argued, is also a valid exercise of the power of the City under Article III, Section
18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the sanitation and safety, the furtherance
of the prosperity and the promotion of the morality, peace, good order, comfort, convenience and general
welfare of the city and its inhabitants, and such others as be necessary to carry into effect and discharge
the powers and duties conferred by this Chapter; and to fix penalties for the violation of ordinances which
shall not exceed two hundred pesos fine or six months imprisonment, or both such fine and imprisonment
for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void since it violates the right to privacy
and the freedom of movement; it is an invalid exercise of police power; and it is an unreasonable and
oppressive interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the constitutionality of the
Ordinance.24First, it held that the Ordinance did not violate the right to privacy or the freedom of
movement, as it only penalizes the owners or operators of establishments that admit individuals for short
time stays. Second, the virtually limitless reach of police power is only constrained by having a lawful
object obtained through a lawful method. The lawful objective of the Ordinance is satisfied since it aims
to curb immoral activities. There is a lawful method since the establishments are still allowed to operate.
Third, the adverse effect on the establishments is justified by the well-being of its constituents in general.
Finally, as held in Ermita-Malate Motel Operators Association v. City Mayor of Manila, liberty is regulated
by law.
TC, WLC and STDC come to this Court via petition for review on certiorari. 25 In their petition and
Memorandum, petitioners in essence repeat the assertions they made before the Court of Appeals. They
contend that the assailed Ordinance is an invalid exercise of police power.
II.
We must address the threshold issue of petitioners standing. Petitioners allege that as owners of
establishments offering "wash-up" rates, their business is being unlawfully interfered with by the
Ordinance. However, petitioners also allege that the equal protection rights of their clients are also being
interfered with. Thus, the crux of the matter is whether or not these establishments have the requisite
standing to plead for protection of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that party's participation in the case. More importantly,
the doctrine of standing is built on the principle of separation of powers,26 sparing as it does unnecessary
interference or invalidation by the judicial branch of the actions rendered by its co-equal branches of
government.
The requirement of standing is a core component of the judicial system derived directly from the
Constitution.27The constitutional component of standing doctrine incorporates concepts which concededly
are not susceptible of precise definition.28 In this jurisdiction, the extancy of "a direct and personal
interest" presents the most obvious cause, as well as the standard test for a petitioner's standing. 29 In a
similar vein, the United States Supreme Court reviewed and elaborated on the meaning of the three
constitutional standing requirements of injury, causation, and redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in the Philippines, the doctrine of transcendental
importance.31
For this particular set of facts, the concept of third party standing as an exception and the overbreadth
doctrine are appropriate. In Powers v. Ohio,32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties, provided three important
criteria are satisfied: the litigant must have suffered an injury-in-fact, thus giving him or her a
"sufficiently concrete interest" in the outcome of the issue in dispute; the litigant must have a close
relation to the third party; and there must exist some hindrance to the third party's ability to protect his
or her own interests."33 Herein, it is clear that the business interests of the petitioners are likewise injured
by the Ordinance. They rely on the patronage of their customers for their continued viability which
appears to be threatened by the enforcement of the Ordinance. The relative silence in constitutional
litigation of such special interest groups in our nation such as the American Civil Liberties Union in the
United States may also be construed as a hindrance for customers to bring suit.34
American jurisprudence is replete with examples where parties-in-interest were allowed standing to
advocate or invoke the fundamental due process or equal protection claims of other persons or classes
of persons injured by state action. In Griswold v. Connecticut,35 the United States Supreme Court held
that physicians had standing to challenge a reproductive health statute that would penalize them as
accessories as well as to plead the constitutional protections available to their patients. The Court held
that:
"The rights of husband and wife, pressed here, are likely to be diluted or adversely affected unless those
rights are considered in a suit involving those who have this kind of confidential relation to them." 36
An even more analogous example may be found in Craig v. Boren,37 wherein the United States Supreme
Court held that a licensed beverage vendor has standing to raise the equal protection claim of a male
customer challenging a statutory scheme prohibiting the sale of beer to males under the age of 21 and
to females under the age of 18. The United States High Court explained that the vendors had standing
"by acting as advocates of the rights of third parties who seek access to their market or function." 38
Assuming arguendo that petitioners do not have a relationship with their patrons for the former to assert
the rights of the latter, the overbreadth doctrine comes into play. In overbreadth analysis, challengers
to government actionare in effect permitted to raise the rights of third parties. Generally applied to
statutes infringing on the freedom of speech, the overbreadth doctrine applies when a statute needlessly
restrains even constitutionally guaranteed rights. 39 In this case, the petitioners claim that the Ordinance
makes a sweeping intrusion into the right to liberty of their clients. We can see that based on the
allegations in the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of
Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v.
Hon. City Mayor of Manila.40Ermita-Malate concerned the City ordinance requiring patrons to fill up a
prescribed form stating personal information such as name, gender, nationality, age, address and
occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was
precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to
the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-
Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the singularity
of the localities covered under the respective ordinances. All three ordinances were enacted with a view
of regulating public morals including particular illicit activity in transient lodging establishments. This
could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the
services offered by these establishments have been severely restricted. At its core, this is another case
about the extent to which the State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of Manila has held
that for an ordinance to be valid, it must not only be within the corporate powers of the local government
unit to enact and pass according to the procedure prescribed by law, it must also conform to the following
substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be
unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate
trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct business practices, namely wash rate admissions and
renting out a room more than twice a day. The ban is evidently sought to be rooted in the police power
as conferred on local government units by the Local Government Code through such implements as the
general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely veiled in general terms to
underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and
flexible response as the conditions warrant.42 Police power is based upon the concept of necessity of the
State and its corresponding right to protect itself and its people. 43 Police power has been used as
justification for numerous and varied actions by the State. These range from the regulation of dance
halls,44 movie theaters,45 gas stations46 and cockpits.47 The awesome scope of police power is best
demonstrated by the fact that in its hundred or so years of presence in our nations legal system, its use
has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments
for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and
certainly fall within the ambit of the police power of the State. Yet the desirability of these ends do not
sanctify any and all means for their achievement. Those means must align with the Constitution, and our
emerging sophisticated analysis of its guarantees to the people. The Bill of Rights stands as a rebuke to
the seductive theory of Macchiavelli, and, sometimes even, the political majorities animated by his
cynicism.
Even as we design the precedents that establish the framework for analysis of due process or equal
protection questions, the courts are naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are compelled to nullify executive or
legislative actions, yet another form of caution emerges. If the Court were animated by the same passing
fancies or turbulent emotions that motivate many political decisions, judicial integrity is compromised by
any perception that the judiciary is merely the third political branch of government. We derive our respect
and good standing in the annals of history by acting as judicious and neutral arbiters of the rule of law,
and there is no surer way to that end than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and far-reaching constitutional
questions of the day.
B.
The primary constitutional question that confronts us is one of due process, as guaranteed under Section
1, Article III of the Constitution. Due process evades a precise definition. 48 The purpose of the guaranty
is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals.
The due process guaranty serves as a protection against arbitrary regulation or seizure. Even
corporations and partnerships are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct
restrictions on government, "procedural due process" and "substantive due process." Procedural due
process refers to the procedures that the government must follow before it deprives a person of life,
liberty, or property.49 Procedural due process concerns itself with government action adhering to the
established process when it makes an intrusion into the private sphere. Examples range from the form
of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would arise absurd situation of
arbitrary government action, provided the proper formalities are followed. Substantive due process
completes the protection envisioned by the due process clause. It inquires whether the government has
sufficient justification for depriving a person of life, liberty, or property. 50
The question of substantive due process, moreso than most other fields of law, has reflected dynamism
in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can
be upheld. The vitality though of constitutional due process has not been predicated on the frequency
with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should
sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency
because of the sophisticated methodology that has emerged to determine the proper metes and bounds
for its application.
C.
The general test of the validity of an ordinance on substantive due process grounds is best tested when
assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the
legislature unless there is a discrimination against a "discrete and insular" minority or infringement of a
"fundamental right."52 Consequently, two standards of judicial review were established: strict scrutiny
for laws dealing with freedom of the mind or restricting the political process, and the rational basis
standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S.
Supreme Court for evaluating classifications based on gender 53 and legitimacy.54 Immediate scrutiny was
adopted by the U.S. Supreme Court in Craig,55 after the Court declined to do so in Reed v. Reed.56 While
the test may have first been articulated in equal protection analysis, it has in the United States since
been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection
challenges.57 Using the rational basis examination, laws or ordinances are upheld if they rationally further
a legitimate governmental interest.58 Under intermediate review, governmental interest is extensively
examined and the availability of less restrictive measures is considered. 59 Applying strict scrutiny, the
focus is on the presence of compelling, rather than substantial, governmental interest and on the absence
of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining
the quality and the amount of governmental interest brought to justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech,
gender, or race as well as other fundamental rights as expansion from its earlier applications to equal
protection.61 The United States Supreme Court has expanded the scope of strict scrutiny to protect
fundamental rights such as suffrage,62 judicial access63 and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on
the petitioners at bar, then it would seem that the only restraint imposed by the law which we are
capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant
the application of the most deferential standard the rational basis test. Yet as earlier stated, we
recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons
those persons who would be deprived of availing short time access or wash-up rates to the lodging
establishments in question.
Viewed cynically, one might say that the infringed rights of these customers were are trivial since they
seem shorn of political consequence. Concededly, these are not the sort of cherished rights that, when
proscribed, would impel the people to tear up their cedulas. Still, the Bill of Rights does not shelter
gravitas alone. Indeed, it is those "trivial" yet fundamental freedoms which the people reflexively
exercise any day without the impairing awareness of their constitutional consequence that accurately
reflect the degree of liberty enjoyed by the people. Liberty, as integrally incorporated as a fundamental
right in the Constitution, is not a Ten Commandments-style enumeration of what may or what may not
be done; but rather an atmosphere of freedom where the people do not feel labored under a Big Brother
presence as they interact with each other, their society and nature, in a manner innately understood by
them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to liberty which we upheld in City of
Manila v. Hon. Laguio, Jr. We expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include "the right to exist
and the right to be free from arbitrary restraint or servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the citizen, but is deemed to embrace the right of man
to enjoy the facilities with which he has been endowed by his Creator, subject only to such restraint as
are necessary for the common welfare."[65] In accordance with this case, the rights of the citizen to be
free to use his faculties in all lawful ways; to live and work where he will; to earn his livelihood by any
lawful calling; and to pursue any avocation are all deemed embraced in the concept of liberty.[ 66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought to clarify the meaning of
"liberty." It said:
While the Court has not attempted to define with exactness the liberty . . . guaranteed [by the Fifth and
Fourteenth Amendments], the term denotes not merely freedom from bodily restraint but also the right
of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men. In a Constitution for a free people, there can be no doubt that
the meaning of "liberty" must be broad indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior.
The City asserts before this Court that the subject establishments "have gained notoriety as venue of
prostitution, adultery and fornications in Manila since they provide the necessary atmosphere for
clandestine entry, presence and exit and thus became the ideal haven for prostitutes and thrill-
seekers."68 Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that
legitimate sexual behavior among willing married or consenting single adults which is constitutionally
protected69 will be curtailed as well, as it was in the City of Manila case. Our holding therein retains
significance for our purposes:
The concept of liberty compels respect for the individual whose claim to privacy and interference demands
respect. As the case of Morfe v. Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His separateness, his isolation, are
indefeasible; indeed, they are so fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are, broadly speaking, that his
experience is private, and the will built out of that experience personal to himself. If he surrenders his
will to others, he surrenders himself. If his will is set by the will of others, he ceases to be a master of
himself. I cannot believe that a man no longer a master of himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized in Morfe, the invasion of which should
be justified by a compelling state interest. Morfe accorded recognition to the right to privacy
independently of its identification with liberty; in itself it is fully deserving of constitutional protection.
Governmental powers should stop short of certain intrusions into the personal life of the citizen. 70
We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are
very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families
are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes.
In transit passengers who wish to wash up and rest between trips have a legitimate purpose for
abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable
private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can
legitimately look to staying in a motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving patrons of a product and the
petitioners of lucrative business ties in with another constitutional requisite for the legitimacy of the
Ordinance as a police power measure. It must appear that the interests of the public generally, as
distinguished from those of a particular class, require an interference with private rights and the means
must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive of
private rights.71 It must also be evident that no other alternative for the accomplishment of the purpose
less intrusive of private rights can work. More importantly, a reasonable relation must exist between the
purposes of the measure and the means employed for its accomplishment, for even under the guise of
protecting the public interest, personal rights and those pertaining to private property will not be
permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police measure shall be struck down as an arbitrary
intrusion into private rights. As held in Morfe v. Mutuc, the exercise of police power is subject to judicial
review when life, liberty or property is affected. 73 However, this is not in any way meant to take it away
from the vastness of State police power whose exercise enjoys the presumption of validity. 74
Similar to the Comelec resolution requiring newspapers to donate advertising space to candidates, this
Ordinance is a blunt and heavy instrument.75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons engaged in legitimate actions. Thus it
prevents legitimate use of places where illicit activities are rare or even unheard of. A plain reading of
section 3 of the Ordinance shows it makes no classification of places of lodging, thus deems them all
susceptible to illicit patronage and subject them without exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the Ermita-Malate area, its longtime
home,76 and it is skeptical of those who wish to depict our capital city the Pearl of the Orient as a
modern-day Sodom or Gomorrah for the Third World set. Those still steeped in Nick Joaquin-dreams of
the grandeur of Old Manila will have to accept that Manila like all evolving big cities, will have its problems.
Urban decay is a fact of mega cities such as Manila, and vice is a common problem confronted by the
modern metropolis wherever in the world. The solution to such perceived decay is not to prevent
legitimate businesses from offering a legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the dynamism of individuals that would bring
a new grandeur to Manila.
tension may often be left to the courts to relieve, it is possible for the government to avoid the
constitutional conflict by employing more judicious, less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals is REVERSED, and the
Decision of the Regional Trial Court of Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.
SO ORDERED

The behavior which the Ordinance seeks to curtail is in fact already prohibited and could in fact be
diminished simply by applying existing laws. Less intrusive measures such as curbing the proliferation of
prostitutes and drug dealers through active police work would be more effective in easing the situation.
So would the strict enforcement of existing laws and regulations penalizing prostitution and drug use.
These measures would have minimal intrusion on the businesses of the petitioners and other legitimate
merchants. Further, it is apparent that the Ordinance can easily be circumvented by merely paying the
whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and
prostitutes can in fact collect "wash rates" from their clientele by charging their customers a portion of
the rent for motel rooms and even apartments.

IV.

We reiterate that individual rights may be adversely affected only to the extent that may fairly be required
by the legitimate demands of public interest or public welfare. The State is a leviathan that must be
restrained from needlessly intruding into the lives of its citizens. However well-intentioned the Ordinance
may be, it is in effect an arbitrary and whimsical intrusion into the rights of the establishments as well
as their patrons. The Ordinance needlessly restrains the operation of the businesses of the petitioners as
well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a day with immorality without accommodating
innocuous intentions.

The promotion of public welfare and a sense of morality among citizens deserves the full endorsement
of the judiciary provided that such measures do not trample rights this Court is sworn to protect. 77 The
notion that the promotion of public morality is a function of the State is as old as Aristotle. 78 The
advancement of moral relativism as a school of philosophy does not de-legitimize the role of morality in
law, even if it may foster wider debate on which particular behavior to penalize. It is conceivable that a
society with relatively little shared morality among its citizens could be functional so long as the pursuit
of sharply variant moral perspectives yields an adequate accommodation of different interests. 79

To be candid about it, the oft-quoted American maxim that "you cannot legislate morality" is ultimately
illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted
as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes
about right and wrong.80 Our penal laws, for one, are founded on age-old moral traditions, and as long
as there are widely accepted distinctions between right and wrong, they will remain so oriented.

Yet the continuing progression of the human story has seen not only the acceptance of the right-wrong
distinction, but also the advent of fundamental liberties as the key to the enjoyment of life to the fullest.
Our democracy is distinguished from non-free societies not with any more extensive elaboration on our
part of what is moral and immoral, but from our recognition that the individual liberty to make the choices
in our lives is innate, and protected by the State. Independent and fair-minded judges themselves are
under a moral duty to uphold the Constitution as the embodiment of the rule of law, by reason of their
expression of consent to do so when they take the oath of office, and because they are entrusted by the
people to uphold the law.81

Even as the implementation of moral norms remains an indispensable complement to governance, that
prerogative is hardly absolute, especially in the face of the norms of due process of liberty. And while the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 178552 October 5, 2010
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South
Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS,
JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY
OF THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL
SECURITY ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND
THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178554
KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General Antonio C. Pascual, and CENTER
FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director Daisy
Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his
capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as
Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary of the Interior and
Local Government, GEN. HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and
DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP Chief of Staff, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178581
BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR
REFORMS, INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL
LIBERTIES (MCCCL), CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF
GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY),
SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN,
PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF
CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR DEMOCRACY (HEAD),
AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO CONSTANTINO, JR.,
SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA LICHAUCO, COL.
GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-ARAULLO,
RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO
CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALES, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT
OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE
SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL
CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178890
KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by
Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA, represented
by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary
Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA
DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato Continente and also on
his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE (EMJP), represented by
Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH PEOPLE'S RESPONSE,
represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT
OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE
SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE
NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF
INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-
MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON TRANSNATIONAL
CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR CALDERON, THE PNP,
including its intelligence and investigative elements, AFP CHIEF GEN. HERMOGENES
ESPERON, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179157
THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista,
COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL
and FORMER SENATORS SERGIO OSMEA III and WIGBERTO E. TAADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM
COUNCIL (ATC), Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179461
BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST,
KATIPUNAN NG MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK),
MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS,
ANAKBAYAN-ST, PAMALAKAYA-ST, CONFEDERATION FOR UNITY, RECOGNITION AND
ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE-ST), PAGKAKAISA'T UGNAYAN NG
MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN NG MGA MAMAMAYAN SA TABING
RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN MUNA-ST, KONGRESO NG
MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT LAKAS NG MGA
KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSOS
RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIO LAJARA,
TEODORO REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA,
JR., DELFIN DE CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL
GONZALEZ, DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT
OF NATIONAL DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF
FINCANCE SECRETARY MARGARITO TEVES, NATIONAL SECURITY ADVISER NORBERTO
GONZALES, THE NATIONAL INTELLIGENCE COORDINATING AGENCY (NICA), THE NATIONAL
BUREAU OF INVESTIGATION (NBI), THE BUREAU OF IMMIGRATION, THE OFFICE OF CIVIL
DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES (ISAFP),
THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE CENTER ON
TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.
DECISION
CARPIO MORALES, J.:
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372),
"An Act to Secure the State and Protect our People from Terrorism," otherwise known as the Human
Security Act of 2007,1signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement
Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen,
taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No.
178552. On even date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR), represented
by their respective officers3 who are also bringing the action in their capacity as citizens, filed a petition
for certiorari and prohibition docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance
Binding Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang
Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL),
Confederation for Unity, Recognition and Advancement of Government Employees (COURAGE), Kalipunan
ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students
(LFS), Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned
Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented by their
respective officers,4 and joined by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr.
Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz,
Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-
Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
petition for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan
ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for
Justice and Peace (EMJP), and Promotion of Church Peoples Response (PCPR), which were represented
by their respective officers5 who are also bringing action on their own behalf, filed a petition for certiorari
and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty
(CODAL),6Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmea III, and Wigberto E. Taada filed a
petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations
mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19,
2007 a petition for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations
raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the
time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary
Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Secretary and National Security Adviser Norberto Gonzales, Interior and Local Government Secretary
Ronaldo Puno, and Finance Secretary Margarito Teves as members. All the petitions, except that of the
IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and
Philippine National Police (PNP) Chief Gen. Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo
and the support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating
Agency, National Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence
Service of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational Crime, and the
PNP intelligence and investigative elements.
The petitions fail.
Petitioners resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial
functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial
functionshas acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted
without or in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack
or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a)
there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the question
of constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most essential, renders
the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure
that concrete adverseness which sharpens the presentation of issues upon which the court so largely
depends for illumination of difficult constitutional questions. 11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury as a result of the governmental act that is being
challenged. The gist of the question on standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must
show not only that the law or any governmental act is invalid, but also that it sustained or is in immediate
danger of sustaining some direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be denied some right or
privilege to which it is lawfully entitled or that it is about to be subjected to some burdens or penalties
by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it
has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct of
the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is likely to
be redressed by a favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the
government, especially the military; whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that
petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving
the constitutionality of penal legislation belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of harmful conduct, as will later be elucidated,
necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces
any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that
they have been subjected to "close security surveillance by state security forces," their members followed
by "suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with
military build." They likewise claim that they have been branded as "enemies of the [S]tate." 14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out
that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take
judicial notice of respondents alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National Peoples Army (NPA). The
tagging, according to petitioners, is tantamount to the effects of proscription without following the
procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same
allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be
one of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful
or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. The principal
guide in determining what facts may be assumed to be judicially known is that of notoriety. Hence, it can
be said that judicial notice is limited to facts evidenced by public records and facts of general notoriety.
Moreover, a judicially noticed fact must be one not subject to a reasonable dispute in that it is either:
(1) generally known within the territorial jurisdiction of the trial court; or (2) capable of accurate and
ready determination by resorting to sources whose accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of life, or they may be matters which are generally
accepted by mankind as true and are capable of ready and unquestioned demonstration. Thus, facts
which are universally known, and which may be found in encyclopedias, dictionaries or other publications,
are judicially noticed, provided, they are of such universal notoriety and so generally understood that
they may be regarded as forming part of the common knowledge of every person. As the common
knowledge of man ranges far and wide, a wide variety of particular facts have been judicially noticed as
being matters of common knowledge. But a court cannot take judicial notice of any fact which, in part,
is dependent on the existence or non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners
apprehension is insufficient to substantiate their plea. That no specific charge or proscription under RA
9372 has been filed against them, three years after its effectivity, belies any claim of imminence of their
perceived threat emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well
on their supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific
provisions of RA 9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of
America17(US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group
as foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US
and EU classification of the CPP and NPA as terrorist organizations. 19 Such statement notwithstanding,
there is yet to be filed before the courts an application to declare the CPP and NPA organizations as
domestic terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in effect for three
years now. From July 2007 up to the present, petitioner-organizations have conducted their activities
fully and freely without any threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino
Ocampo, Teodoro Casio, Rafael Mariano and Luzviminda Ilagan, 20 urged the government to resume
peace negotiations with the NDF by removing the impediments thereto, one of which is the adoption of
designation of the CPP and NPA by the US and EU as foreign terrorist organizations. Considering the
policy statement of the Aquino Administration 21 of resuming peace talks with the NDF, the government
is not imminently disposed to ask for the judicial proscription of the CPP-NPA consortium and its allied
organizations.
More important, there are other parties not before the Court with direct and specific interests in the
questions being raised.22 Of recent development is the filing of the first case for proscription under
Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial Court against the
Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by
alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then
Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and
Joel Virador, Teodoro Casio and Saturnino Ocampo of Bayan Muna. Also named in the dismissed
rebellion charges were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita
Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for the Communist
movement were petitioner-organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS
and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges
were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion
is defined and punished under the Revised Penal Code. Prosecution for rebellion is not made more
imminent by the enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under
RA 9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of
petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to
uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to
those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP
or any of its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under
the assailed statute revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL
have not pointed to even a single arrest or detention effected under RA 9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political
surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of
"political surveillance," the Court finds that she has not shown even the slightest threat of being charged
under RA 9372. Similarly lacking in locus standi are former Senator Wigberto Taada and Senator Sergio
Osmea III, who cite their being respectively a human rights advocate and an oppositor to the passage
of RA 9372. Outside these gratuitous statements, no concrete injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552
also conveniently state that the issues they raise are of transcendental importance, "which must be
settled early" and are of "far-reaching implications," without mention of any specific provision of RA 9372
under which they have been charged, or may be charged. Mere invocation of human rights advocacy has
nowhere been held sufficient to clothe litigants with locus standi. Petitioners must show an actual, or
immediate danger of sustaining, direct injury as a result of the laws enforcement. To rule otherwise
would be to corrupt the settled doctrine of locus standi, as every worthy cause is an interest shared by
the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer
suit is proper only when there is an exercise of the spending or taxing power of Congress, 28 whereas
citizen standing must rest on direct and personal interest in the proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and personal
interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not
establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality
of the Government.30(emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited
to actual cases or controversies to be exercised after full opportunity of argument by the parties. Any
attempt at abstraction could only lead to dialectics and barren legal questions and to sterile conclusions
unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe for
determination, not conjectural or anticipatory, lest the decision of the court would amount to an advisory
opinion.32
Information Technology Foundation of the Philippines v. COMELEC 33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciabledefinite and concrete, touching on the
legal relations of parties having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial thereof on the other hand;
that is, it must concern a real and not merely a theoretical question or issue. There ought to be an actual
and substantial controversy admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical state of facts.
(Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent events. 34 Similarly, a
petition that fails to allege that an application for a license to operate a radio or television station has
been denied or granted by the authorities does not present a justiciable controversy, and merely
wheedles the Court to rule on a hypothetical problem. 35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for failure to
cite any specific affirmative action of the Commission on Elections to implement the assailed resolution.
It refused, in Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein
petitioners based merely on a perceived potential conflict between the provisions of the Muslim Code and
those of the national law, there being no actual controversy between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad
infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any
constitutional interest suffices to provide a basis for mounting a constitutional challenge. This, however,
is qualified by the requirement that there must be sufficient facts to enable the Court to intelligently
adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project, 39 allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a
"credible threat of prosecution" and "should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief."40 The plaintiffs therein filed an action before a federal court to assail
the constitutionality of the material support statute, 18 U.S.C. 2339B (a) (1), 41 proscribing the provision
of material support to organizations declared by the Secretary of State as foreign terrorist organizations.
They claimed that they intended to provide support for the humanitarian and political activities of two
such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition
clearly shows that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do,
as there would then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No
demonstrable threat has been established, much less a real and existing one.
Petitioners obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist
fronts" in no way approximate a credible threat of prosecution. From these allegations, the Court is being
lured to render an advisory opinion, which is not its function. 43
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which
the Court has no original jurisdiction. Then again, declaratory actions characterized by "double
contingency," where both the activity the petitioners intend to undertake and the anticipated reaction to
it of a public official are merely theorized, lie beyond judicial review for lack of ripeness. 44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions
out of the realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the
exercise of any power granted by law may be abused.45 Allegations of abuse must be anchored on real
events before courts may step in to settle actual controversies involving rights which are legally
demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of
terrorism46under RA 9372 in that terms like "widespread and extraordinary fear and panic among the
populace" and "coerce the government to give in to an unlawful demand" are nebulous, leaving law
enforcement agencies with no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find
no application in the present case since these doctrines apply only to free speech cases; and that RA
9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of
thought on whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to
assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the
two doctrines to free speech cases. They particularly cite Romualdez v. Hon.
Sandiganbayan47 and Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 5 49 of the Anti-
Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that
"the overbreadth and the vagueness doctrines have special application only to free-speech cases," and
are "not appropriate for testing the validity of penal statutes." 50 It added that, at any rate, the challenged
provision, under which the therein petitioner was charged, is not vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial
invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness
analysis, and concluded that the therein subject election offense 53 under the Voters Registration Act of
1996, with which the therein petitioners were charged, is couched in precise language. 54
The two Romualdez cases rely heavily on the Separate Opinion 55 of Justice Vicente V. Mendoza in
the Estradacase, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial"
invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal
statute is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible"chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in
a single prosecution, the transcendent value to all society of constitutionally protected expression is
deemed to justify allowing attacks on overly broad statutes with no requirement that the person making
the attack demonstrate that his own conduct could not be regulated by a statute drawn with narrow
specificity." The possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred and perceived
grievances left to fester because of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect resulting
from their very existence, and, if facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the area of criminal law, the law cannot
take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of
the First Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked against
ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully, since
the challenger must establish that no set of circumstances exists under which the Act would be valid."
As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if it is
vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly proscribed
cannot complain of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is constitutional
will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to
other persons or other situations in which its application might be unconstitutional." As has been pointed
out, "vagueness challenges in the First Amendment context, like overbreadth challenges typically produce
facial invalidation, while statutes found vague as a matter of due process typically are invalidated [only]
'as applied' to a particular defendant." Consequently, there is no basis for petitioner's claim that this
Court review the Anti-Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected. It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness
doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of violation
of due process of law) or a speech regulation (under a claim of abridgement of the freedom of speech
and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.57 The overbreadth doctrine, meanwhile, decrees that a governmental purpose to control or
prevent activities constitutionally subject to state regulations may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. 58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will
understand what a statute prohibits and will accordingly refrain from that behavior, even though some
of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts affecting real litigants,
a facialinvalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the
basis of its actual operation to the parties, but also on the assumption or prediction that its very existence
may cause others not before the court to refrain from constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle 61 in his concurring opinion that the vagueness and
overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot
thus successfully mount a facial challenge against a criminal statute on either vagueness or overbreadth
grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect"
on protected speech, the exercise of which should not at all times be abridged. 62 As reflected earlier, this
rationale is inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize acts formerly considered
innocent and lawful, so long as it refrains from diminishing or dissuading the exercise of constitutionally
protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be challenged"
and "underscored that an on-its-face invalidation of penal statutes x x x may not be allowed." 64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other
fundamental rights may be facially challenged. Under no case may ordinary penal statutes be subjected
to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A strong criticism against
employing a facial challenge in the case of penal statutes, if the same is allowed, would effectively go
against the grain of the doctrinal requirement of an existing and concrete controversy before judicial
power may be appropriately exercised. A facial challenge against a penal statute is, at best, amorphous
and speculative. It would, essentially, force the court to consider third parties who are not before it. As
I have said in my opposition to the allowance of a facial challenge to attack penal statutes, such a test
will impair the States ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the States power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to
him.65(Emphasis and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable only
to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to
plot areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to
the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the concern
with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad laws "very existence may cause others not before the
court to refrain from constitutionally protected speech or expression." An overbreadth ruling is designed
to remove that deterrent effect on the speech of those third parties. 66 (Emphasis in the original omitted;
underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases, 67 observed
that the US Supreme Court has not recognized an overbreadth doctrine outside the limited context of
the First Amendment,68 and that claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held
that rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not
specifically addressed to speech or speech-related conduct. Attacks on overly broad statutes are justified
by the "transcendent value to all society of constitutionally protected expression." 71
Since a penal statute may only be assailed for being vague as applied to petitioners, a limited
vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual
or imminent chargeagainst them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness
test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no
basis to review the law "on its face and in its entirety." 72 It stressed that "statutes found vague as a
matter of due process typically are invalidated only 'as applied' to a particular defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment
must be examined in light of the specific facts of the case at hand and not with regard to the statute's
facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants claims that criminal statutes
are unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of
liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been
utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the Court brought
the doctrine into play in analyzing an ordinance penalizing the non-payment of municipal tax on
fishponds, the crime of illegal recruitment punishable under Article 132(b) of the Labor Code, and the
vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners in these
three cases, similar to those in the two Romualdezand Estrada cases, were actually charged with the
therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited provisions of
the Revised Penal Code, or under any of the enumerated special penal laws; (2) the commission of the
predicate crime sows and creates a condition of widespread and extraordinary fear and panic among the
populace; and (3) the offender is actuated by the desire to coerce the government to give in to
an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that
the element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through
some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually
committed to trigger the operation of the key qualifying phrases in the other elements of the crime,
including the coercion of the government to accede to an "unlawful demand." Given the presence of the
first element, any attempt at singling out or highlighting the communicative component of the prohibition
cannot recategorize the unprotected conduct into a protected speech.
Petitioners notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one
particle of an element of the crime. Almost every commission of a crime entails some mincing of words
on the part of the offender like in declaring to launch overt criminal acts against a victim, in haggling on
the amount of ransom or conditions, or in negotiating a deceitful transaction. An analogy in one U.S.
case78 illustrated that the fact that the prohibition on discrimination in hiring on the basis of race will
require an employer to take down a sign reading "White Applicants Only" hardly means that the law
should be analyzed as one regulating speech rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the
intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct and not
speech. This holds true a fortiori in the present case where the expression figures only as an inevitable
incident of making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances brought about
through speaking or writing. But it has never been deemed an abridgement of freedom of speech or
press to make a course of conduct illegal merely because the conduct was, in part, initiated, evidenced,
or carried out by means of language, either spoken, written, or printed. Such an expansive interpretation
of the constitutional guaranties of speech and press would make it practically impossible ever to enforce
laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed
injurious to society.79 (italics and underscoring supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a
prohibited conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial
analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject
penal statute as applied to the therein petitioners inasmuch as they were actually charged with the
pertinent crimes challenged on vagueness grounds. The Court in said cases, however, found no basis to
review the assailed penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal
statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of
prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means
of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecutionunder RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is
thus legally impermissible. The Court reminds litigants that judicial power neither contemplates
speculative counseling on a statutes future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.

G.R. No. 171396 May 3, 2006
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,
vs.
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
G.R. No. 171409 May 3, 2006
NIEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,
vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR GENERAL ARTURO
C. LOMIBAO, Respondents.
x-------------------------------------x
G.R. No. 171485 May 3, 2006
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,
vs.
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
G.R. No. 171483 May 3, 2006
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,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, 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
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA, AND DIRECTOR
GENERAL ARTURO LOMIBAO, Respondents.
G.R. No. 171489 May 3, 2006
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,
vs.
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
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
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.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are necessary. 1 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.
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 Macapagal-
Arroyo 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 20th 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-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 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 magnified by certain segments
of the national media;
WHEREAS, this series of actions is hurting the Philippine State by obstructing governance
including hindering the growth of the economy and sabotaging the peoples confidence 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 aclear and present danger to 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 duly-constituted 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;
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. Significantly, 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 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
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 20th anniversary 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 of Kilusang 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-list Akbayan.
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 to "cooperate" 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
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 Muna Representative 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) itis 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 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 415 of Article II, (b) Sections 1,16 2,17 and 418 of
Article III, (c)Section 2319 of Article VI, and (d) Section 1720 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,petitionerLoren 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; andfifth, 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:
A. 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) Whetherthe 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 in Marbury 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 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 case28 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;32third, 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 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 benefited 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.
Jordan41 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 inTileston 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 sufficient 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 Works47 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 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,55that in cases of transcendental importance, the cases must be settled
promptly and definitely 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) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that the
tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election law
in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) 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 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 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."1avvphil.net
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.
Baker70 and Montenegro v. Castaneda71 to the volatile era of Lansang v. Garcia,72 Aquino, Jr. v.
Enrile,73 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." 75Barcelon 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 final 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 ofLansang 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
diluted Lansang. 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 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. Zamora80 -- 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
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
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 characterFinal 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. . .
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
dictatorship99
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. Wh ile
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 the limiting 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 fight 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
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 infree 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,104the 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." InBroadrick 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 reflect 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."106Here, 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:
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. This, too, is unwarranted.
Related to the "overbreadth" doctrine is the "void for vagueness doctrine" which holds that "a law is
facially invalid if men of common intelligence must necessarily guess at its meaning and differ
as to its application."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:
"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 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 of habeas 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. Citing Integrated 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" (in Sanlakas) 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:
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 ofSanlakas, 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-in-
Chief only where there is a valid declaration of Martial Law or suspension of the writ of habeas 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.
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 Police118 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
lifted120 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 all decrees, 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."
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:
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.
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 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 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 first section of the first 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.131This 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 is threat from external aggression, for example, calamities or natural
disasters.
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
xxxxxx
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
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-and-death 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 assemblyunder 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 20th Anniversary of People Power I. The
arresting officers cited PP 1017 as basis of the arrest.
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
theimplementation, 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 misabused135 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.138This 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 efficientadministration 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:
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.
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 byreclusion 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
arenecessary 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 normally unreasonable 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 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 Account144 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.
880145 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 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, theDaily 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
Tribune except the security guard of the building; and fifth, policemen stationed themselves at the
vicinity of the Daily 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 outfit
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
Staff152 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 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
xxxxxxxxx
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.
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.
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 and unconstitutional. 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.
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
declared UNCONSTITUTIONAL.
No costs.

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. SO ORDERED.
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 the Tribune 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
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