Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170488 December 10, 2012
CMTC INTERNATIONAL MARKETING CORPORATION, Petitioner,
vs.
BHAGIS INTERNATIONAL TRADING CORPORATION, Respondents.
D E C I S I O N
PERALTA, J .:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing
the Resolutions dated August 19, 2005
1
and November 15, 2005
2
of the Former Special Twelfth
Division of the Court of Appeals in CA-G.R. CV No. 84742.
The facts of the case follow.
Petitioner instituted a Complaint for Unfair Competition and/or Copyright Infringement and Claim for
Damages with Prayer for Temporary Restraining Order and Writ of Preliminary Injunction against
respondent before the Regional Trial Court of Makati (trial court).
3

On February 14, 2005, the trial court rendered a Decision
4
dismissing the complaint filed by
petitioner. The fallo of said Decision reads:
WHEREFORE, premises considered, the Complaint for Unfair Competition and/or Copyright
Infringement and Claim for Damages is hereby DISMISSED without pronouncement as to cost.
SO ORDERED.
5

After receiving a copy of the trial courts Decision, petitioner seasonably filed a Notice of Appeal
before the Court of Appeals (appellate court) on March 4, 2005.
6

Thereafter, the appellate court issued a Notice to File the Appellants Brief on May 20, 2005, which
was received by the law office representing petitioner on May 30, 2005, stating as follows:
Pursuant to Rule 44, Sec. 7 of the 1997 Rules of Civil Procedure you are hereby required to file with
this Court within forty-five (45) days from receipt of this notice, SEVEN (7) legibly typewritten,
mimeographed or printed copies of the Appellants Brief with legible copies of the assailed decision
of the Trial Court and proof of service of two copies upon the appellee/s.
7

However, despite said notice, petitioner failed to file its appellants brief timely. Hence, on August 19,
2005, the appellate court issued a Resolution dismissing the appeal filed by petitioner. The full text
of said Resolution reads:
Considering the report of the Judicial Records Division dated 17 August 2005 stating that no
appellants brief has been filed as per docket book entry, the Court RESOLVES to consider the
appeal as having been ABANDONED and consequently DISMISS the same pursuant to Sec. 1(e),
Rule 50 of the 1997 Rules of Civil Procedure, as amended.
8

Upon receipt of the order of dismissal, petitioner filed its Motion for Reconsideration with Motion to
Admit Appellants Brief,
9
which was filed forty-two (42) days late from the date of its expiration on
July 15, 2005.
On November 15, 2005, the appellate court denied petitioners Motion for Reconsideration with
Motion to Admit Appellants Brief. It ruled that one of the grounds by which the Court of Appeals
may, on its own motion or that of the appellee, dismiss the appeal is the failure on the part of the
appellant to serve and file the required number of copies of his brief within the time prescribed by the
Rules of Court, viz.:
For this Court to admit the appellants brief after such wanton disregard of the Rules would put a
strain on the orderly administration of justice.
As held in the case of St. Louis University vs. Cordero, 434 SCRA 575, 587, citing Don Lino
Gutierres & Sons, Inc. v. Court of Appeals, 61 SCRA 87:
"It is necessary to impress upon litigants and their lawyers the necessity of strict compliance with the
periods for performing certain acts incident to the appeal and the transgressions thereof, as a rule,
would not be tolerated; otherwise, those periods could be evaded by subterfuges and manufactured
excuses and would ultimately become inutile.
WHEREFORE, the foregoing premises considered, the Motion for Reconsideration with Motion to
Admit Appellants Brief is perforce DENIED.
SO ORDERED.
10

Accordingly, petitioner filed a petition for review on certiorari before this Court questioning the
August 19, 2005 and November 15, 2005 Resolutions of the appellate court. Thus, petitioner
presents the following grounds to support its petition:
A.
THE COURT OF APPEALS GRIEVOUSLY COMMITTED A REVERSIBLE ERROR WHEN IT
SACRIFICED SUBSTANTIVE JUSTICE IN FAVOR OF PROCEDURAL TECHNICALITIES WITH
ITS DISMISSAL OF PETITIONERS APPEAL FOR FAILURE TO FILE THE APPELLANTS BRIEF
ON TIME WITHOUT CONSIDERING AT ALL WHETHER OR NOT PETITIONERS APPEAL
DESERVED FULL CONSIDERATION ON THE MERITS.
B.
IN THE INTEREST OF SUBSTANTIVE JUSTICE, PETITIONERS APPEAL SHOULD BE
REINSTATED CONSIDERING THAT THE ERRORS OF THE TRIAL COURT IN RENDERING ITS
APPEALED DECISION ARE EVIDENT ON THE FACE OF THE SAID DECISION AND MORE SO
AFTER AN EXAMINATION OF THE EVIDENCE ON RECORD.
1. The trial courts ruling that petitioner should have established actual confusion in the
minds of buyers is contrary to jurisprudence.
2. The trial court did not state the facts upon which it based its conclusion that petitioners
trademark is strikingly different and distinct from that of defendants.
3. Respondent labeled its products in a manner confusingly similar to that of petitioners.
4. The trial court erred in finding that respondent did not pass off its products as that of
petitioners.
11

Simply, the issue to be resolved is the propriety of the dismissal of petitioners appeal for its failure to
file the appellants brief within the reglementary period.
Petitioner asserts that the appellate court erred in dismissing its appeal, since dismissal of appeals
on purely technical grounds is frowned upon and the rules of procedure ought not to be applied in a
very technical sense, for they are adopted to help secure substantial justice.
For its part, respondent maintains that the appellate court did not err in dismissing petitioners appeal
for its failure to file the required appellants brief within the reglementary period. It stresses that in the
absence of persuasive reason to deviate therefrom, rules of procedure must be faithfully followed for
the prevention of needless delays and for the orderly and expeditious dispatch of judicial business.
We find merit in the instant petition.
Time and again, this Court has emphasized that procedural rules should be treated with utmost
respect and due regard, since they are designed to facilitate the adjudication of cases to remedy the
worsening problem of delay in the resolution of rival claims and in the administration of justice. From
time to time, however, we have recognized exceptions to the Rules, but only for the most compelling
reasons where stubborn obedience to the Rules would defeat rather than serve the ends of justice.
12

In Obut v. Court of Appeals,
13
this Court reiterated that it "cannot look with favor on a course of
action which would place the administration of justice in a straightjacket, for then the result would be
a poor kind of justice if there would be justice at all. Verily, judicial orders are issued to be obeyed,
nonetheless a non-compliance is to be dealt with as the circumstances attending the case may
warrant. What should guide judicial action is the principle that a party-litigant if to be given the fullest
opportunity to establish the merits of his complaint of defense rather than for him to lose life, liberty,
honor or property on technicalities."
The same principle was highlighted in Philippine National Bank and Development Bank of the
Philippines v. Philippine Milling Company, Incorporated, et al.[14 where the Court ruled that even if
an appellant failed to file a motion for extension of time to file his brief on or before the expiration of
the reglementary period, the Court of Appeals does not necessarily lose jurisdiction to hear and
decide the appealed case, and that the Court of Appeals has discretion to dismiss or not to dismiss
appellants appeal, which discretion must be a sound one to be exercised in accordance with the
tenets of justice and fair play having in mind the circumstances obtaining in each case.
Ergo, where strong considerations of substantive justice are manifest in the petition, the strict
application of the rules of procedure may be relaxed, in the exercise of its equity jurisdiction.
15
Thus,
a rigid application of the rules of procedure will not be entertained if it will obstruct rather than serve
the broader interests of justice in the light of the prevailing circumstances in the case under
consideration.
In the instant case, it is apparent that there is a strong desire to file an appellants brief on
petitioners part.
When petitioner filed its motion attaching therewith its appellants brief, there was a clear intention on
the part of petitioner not to abandon his appeal. As a matter of fact, were it not for its counsels act of
inadvertently misplacing the Notice to File Brief in another file, petitioner could have seasonably filed
its appellants brief as its counsel had already prepared the same even way before the receipt of the
Notice to File Brief.
It bears stressing at this point then that the rule, which states that the mistakes of counsel binds the
client, may not be strictly followed where observance of it would result in outright deprivation of the
clients liberty or property, or where the interest of justice so requires. In rendering justice, procedural
infirmities take a backseat against substantive rights of litigants. Corollarily, if the strict application of
the rules would tend to frustrate rather than promote justice, this Court is not without power to
exercise its judicial discretion in relaxing the rules of procedure.
16
]
Also, it must be stressed that petitioner had no participatory negligence in the dismissal of its
appeal.1wphi1 Hence, the ensuing dismissal of its appeal was completely attributable to the gross
negligence of its counsel. For said reason, the Court is not averse to suspending its own rules in the
pursuit of justice. Where reckless or gross negligence of counsel deprives the client of due process
of law, or when the interests of justice so require, relief is accorded to the client who suffered by
reason of the lawyers gross or palpable mistake or negligence.
17

All told, petitioner should be afforded the amplest opportunity for the proper and just determination of
his cause, free from the constraints of technicalities.
Nevertheless, considering that this Court is not a trier of facts, the appropriate action to take is to
remand the case to the appellate court for further proceedings, for it to thoroughly examine the
factual and legal issues that still need to be threshed out.
WHEREFORE, premises considered, the instant petition is hereby GRANTED, insofar as this case
is REMANDEDto the Court of Appeals for further proceedings, subject to the payment of the
corresponding docket fees within fifteen (15) days from notice of this Decision.
Let the records and the CA rollo of this case be transmitted accordingly.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 192108 November 21, 2012
SPOUSES SOCRATES SY AND CELY SY, Petitioner,
vs.
ANDOK'S LITSON CORPORATION, Respondent.
D E C I S I O N
PEREZ, J .:
Assailed in this Petition for Review on Certiorari is the Decision
1
of the Court of Appeals dated 20
January 2010 in CA-G.R. CV No. 91942, as well as the Resolution
2
dated 29 April 2010, denying the
motion for reconsideration.
This is a case for rescission of contract filed by the lessee, now respondent, against the lessors, now
the petitioners.
Petitioner Cely Sy (Sy) is the registered owner of a 316 square-meter lot located at 1940 Felix
Huertas Street, Sta. Cruz, Manila. Respondent Andoks Litson Corporation (Andoks) is engaged in
the business of selling grilled chicken and pork with outlets all over the Philippines. On 5 July 2005,
Sy and Andoks entered into a 5-year lease contract covering the parcel of land owned by Sy.
Monthly rental was fixed at P60,000.00, exclusive of taxes, for the first 2 years and P66,000.00 for
the third, fourth and fifth year with 10% escalation every year beginning on the fourth year.
3

Per contract, the lessee shall, upon signing the contract, pay four (4) months of advance deposit
amounting to P240,000.00 and a security deposit equivalent to four (4) months of rental in the
amount of P240,000.00. Accordingly, Andoks issued a check to Sy for P480,000.00.
Andoks alleged that while in the process of applying for electrical connection on the improvements
to be constructed on Sys land, it was discovered that Sy has an unpaid Manila Electric Company
(MERALCO) bill amounting to P400,000.00. Andoks presented a system-generated statement from
MERALCO.
4
Andoks further complained that construction for the improvement it intended for the
leased premises could not proceed because another tenant, Mediapool, Inc. incurred delay in the
construction of a billboard structure also within the leased premises. In its letter dated 25 August
2005, Andoks first informed Sy about the delay in the construction of the billboard structure on a
portion of its leased property. Three more letters of the same tenor were sent to Sy but the demands
fell on deaf ears. Consequently, Andoks suffered damages in the total amount of P627,000.00
which comprises the advance rental and deposit, cost of money, mobilization cost for the
construction of improvement over leased premises, and unrealized income. The complaint for
rescission was filed on 13 February 2008, three years after continued inaction on the request to
have the billboard construction expedited.
In her Answer, Sy stated that she has faithfully complied with all the terms and conditions of the
lease contract and denied incurring an outstanding electricity bill.
5

On 14 April 2008, Andoks filed a motion to set the case for pre-trial.
The Regional Trial Court of Manila (RTC) sent a Notice of Pre-trial Conference to the parties on 28
April 2008 informing them that a pre-trial conference is set on 26 May 2008.
On 23 May 2008, an Urgent Motion to Reset Pre-Trial Conference was filed by Sys counsel on the
allegation that on the pre-trial date, he has to attend a hearing on another branch of the RTC in
Manila.
During the pre-trial conference, Sy and her counsel failed to appear. Sys urgent motion was denied,
and the RTC allowed Andoks to present its evidence ex-parte.
No motion for reconsideration was filed on the trial courts order allowing ex-parte presentation of
evidence. Thus, on the 2 June 2008 hearing, Andoks presented ex-parte the testimony of its
General Manager, Teodoro Calaunan, detailing the breach of contract committed by Sy.
On 24 July 2008, the trial court rendered a decision favoring Andoks, to wit:
WHEREFORE, consistent with Section 5, Rule 18 of the 1997 Rules of Civil Procedure, judgment is
hereby rendered in favor of the plaintiff, ordering the defendants to pay to the plaintiff (1)
P480,000.00 with legal rate of interest from March 11, 2006, (2) P1,350.00 for the comprehensive
insurance on the leased portion of the realty, and (3) P4,873.00 as contractors tax.
For lack of merit, defendants counterclaim is hereby dismissed.
6

On appeal, Sy decried deprivation of her right to present evidence resulting in a default judgment
against her. Sy denied that there was a breach on the lease contract.
On 20 January 2010, the Court of Appeals dismissed the appeal and affirmed the ruling of the RTC.
The appellate court held that the trial court correctly allowed the presentation of evidence ex-parte
as there was no valid reason for the urgent motion for postponement of the pre-trial filed by Sy. The
appellate court found that Sy repeatedly failed to comply with her obligation under the lease contract
despite repeated demands. The appellate court awarded damages for breach of contract.
After the denial of Sys motion for reconsideration, she filed the instant petition raising the following
grounds:
-A-
WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS IN AFFIRMING THE
TRIAL COURTS JUDGMENT FAILED TO NOTICE THAT THE DEFAULT JUDGMENT
STRAYED FROM JUDICIAL PRECEDENT AND POLICY, AND AMOUNTED TO AN
INFRINGEMENT OF THE RIGHT TO DUE PROCESS OF THE SPOUSES SY.
-B-
WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS IN AFFIRMING THE
TRIAL COURTS DEFAULT JUDGMENT FAILED TO APPRECIATE THAT THE
RESPONDENT ITSELF CONTRACTUALLY ASSUMED THE RISK OF DELAY, AND THUS
ANY DELAY COULD NOT BE A GROUND FOR THE RESOLUTION OR ANNULMENT OF
THE CONTRACT OF LEASE.
-C-
WITH ALL DUE RESPECT, THE HONORABLE COURT OF APPEALS ALLOWED A
DEPARTURE FROM JUDICIAL PRECEDENT WHEN IT SUSTAINED THE TRIAL
COURTS IMPOSITION OF LEGAL INTEREST ON THE MONETARY AWARD IN
RESPONDENTS FAVOR.
7

The affirmance by the Court of Appeals of the judgment of the trial court is correct.
Section 4, Rule 18 of the Rules of Court requires the parties and their counsel to appear at pre-trial,
thus:
Section 4. Appearance of parties. It shall be the duty of the parties and their counsel to appear at
the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor
or if a representative shall appear in his behalf fully authorized in writing to enter into an amicable
settlement, to submit to alternative modes of dispute resolution, and to enter into stipulations or
admissions of facts and of documents.
Section 5 of the same rule states the consequences of failure to appear during pre-trial, thus:
Section 5. Effect of failure to appear. The failure of the plaintiff to appear when so required
pursuant to the next preceding section shall be cause for dismissal of the action. The dismissal shall
be with prejudice, unless otherwise ordered by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to present his evidence ex-parte and the court to
render judgment on the basis thereof.
What constitutes a valid ground to excuse litigants and their counsels from appearing at the pre-trial
under Section 4, Rule 18 of the Rules of Court is subject to the sound discretion of a judge.
8
Such
discretion was shown by the trial court, which was correct in putting into effect the consequence of
petitioners non-appearance at the pre-trial. While Sy filed an Urgent Motion to Reset Pre-trial, she
cannot assume that her motion would be automatically granted. As found by the Court of Appeals,
the denial of petitioners motion for postponement is dictated by the motion itself:
A perusal of the Urgent Motion to Reset Pre-Trial Conference discloses that other than the allegation
that counsel will attend a hearing in another branch of the same court in Manila, yet, it failed to
substantiate its claim. It did not state the case number nor attach the Calendar of Hearing or such
other pertinent proof to appraise the court that indeed counsel was predisposed.
9

We cannot allow petitioners to argue that their right to due process has been infringed.
In The Philippine American Life & General Insurance Company v. Enario,
10
we reiterated that the
essence of due process is to be found in the reasonable opportunity to be heard and to submit any
evidence one may have in support of ones defense. Where the opportunity to be heard, either
through verbal arguments or pleadings, is accorded, and the party can present its side or defend its
interest in due course, there is no denial of procedural due process.
We next deal with the central issue of rescission.
Article 1191 of the Civil Code provides that the power to rescind obligations is implied in reciprocal
ones, in case one of the obligors should not comply with what is incumbent upon him.
A lease contract is a reciprocal contract. By signing the lease agreement, the lessor grants
possession over his/her property to the lessee for a period of time in exchange for rental payment.
Indeed, rescission is statutorily recognized in a contract of lease. Article 1659 of the Civil Code
provides:
Art. 1659. If the lessor or the lessee should not comply with the obligations set forth in articles 1654
and 1657, the aggrieved party may ask for the rescission of the contract and indemnification for
damages, or only the latter, allowing the contract to remain in force.
Article 1659 outlines the remedies for non-compliance with the reciprocal obligations in a lease
contract, which obligations are cited in Articles 1654 and 1657:
Article 1654. The lessor is obliged:
(1) To deliver the thing which is the object of the contract in such a conditions as to render it
fit for the use intended;
(2) To make on the same during the lease all the necessary repairs in order to keep it
suitable for the use to which it has been devoted, unless there is a stipulation to the contrary;
(3) To maintain the lessee in the peaceful and adequate enjoyment of the lease for the entire
duration of the contract.
Article 1657. The lessee is obliged:
(1) To pay the price of the lease according to the terms stipulated;
(2) To use the thing leased as a diligent father of a family, devoting it to the use stipulated;
and in the absence of stipulation, to that which may be inferred from the nature of the thing
leased, according to the custom of the place;
(3) To pay the expenses for the deed of lease. (Boldfacing supplied).
The aggrieved party is given the option to the aggrieved party to ask for: (1) the rescission of the
contract; (2) rescission and indemnification for damages; or (3) only indemnification for damages,
allowing the contract to remain in force.
11

While Andoks had complied with all its obligations as a lessee, the lessor failed to render the
premises fit for the use intended and to maintain the lessee in the peaceful and adequate enjoyment
of the lease.
The case of CMS Investments and Management Corporation v. Intermediate Appellate
Court
12
quoted Manresas comment on the lessors obligation to maintain the lessee in the peaceful
and adequate enjoyment of the lease for the entire duration of the contract, in this wise:
The lessor must see that the enjoyment is not interrupted or disturbed, either by others' acts x x x or
by his own. By his own acts, because, being the person principally obligated by the contract, he
would openly violate it if, in going back on his agreement, he should attempt to render ineffective in
practice the right in the thing he had granted to the lessee; and by others' acts, because he must
guarantee the right he created, for he is obliged to give warranty in the manner we have set forth in
our commentary on article 1553, and, in this sense, it is incumbent upon him to protect the lessee in
the latters peaceful enjoyment.
13

Andoks paid a total of P480,000.00 as advance deposit for four (4) months and security deposit
equivalent to four (4) months. However, the construction of its outlet store was hindered by two
incidents the unpaid MERALCO bills and the unfinished construction of a billboard structure
directly above the leased property.
Sy argues that per contract, Andoks had assumed the risk of delay by allowing MediaPool, Inc. to
construct a billboard structure on a portion of the leased premises. We reproduce the pertinent
provision for brevity:
10. That the LESSEE shall allow persons who will construct, inspect, maintain and repair all billboard
structures to be set up and constructed on the portion of the parcel of land excluded from this
contract, only upon approval of written request to LESSEE AND LESSOR from the billboard
LESSEE to avoid disruption of business operations of Andoks Litson Corporation and its affiliates.
14

True, Andoks agreed to allow MediaPool, Inc. to construct a billboard structure but it was
conditioned on Andoks and the lessors approval to avoid disruption of its business operation. Sy is
thus cognizant of the fact that the said billboard structure construction might disrupt, as it already
did, the intended construction of respondents outlet. It is thereby understood that the construction of
a billboard should be done within a period of time that is reasonable and sufficient so as not to
disrupt the business operations of respondent. In this case, Andoks had agreed to several
extensions for MediaPool, Inc. to finish its billboard construction. It had sent a total of four (4) letters
in a span of 8 months, all of which were merely ignored. Indeed, the indifference demonstrated by
Sy leaves no doubt that she has reneged on her obligation.
Sys disregard of Andoks repeated demands for the billboard lessee to finish the construction is a
violation of her obligation to maintain the lessee in peaceful and adequate enjoyment of the lease.
The delay in the construction had obviously caused disruption in respondents business as it could
not immediately commence its business operations despite prompt payment of rent.1vvph! 1
The attendant circumstances show substantial breach. The delay in the construction prevented
Andoks from using the leased premises for its business outlet. On top of the failure of Sy to address
the delay in the billboard construction, she also failed to resolve or explain the unpaid electricity bills.
Sy resorted to a blanket denial without however producing any proof that the said bill had been
settled. These incidents refer to the fundamentals of the contract for the lease of Sys premises. She
failed to comply with the obligations that have arisen upon Andoks payment of the amount
equivalent to eight months of the monthly rentals.
Anent the imposition of legal interest, the Court of Appeals is correct in stating that the award of
damages was warranted under the facts of the case and the imposition of legal interest was
necessary consequence thereof. We find applicable the pertinent guidelines provided in Eastern
Shipping Lines, Inc. v. Court of Appeals,
15
thus:
2. When an obligation, not constituting a loan or forbearance of money, is breached, an
interest on the amount of damages awarded may be imposed at the discretion of the court at
the rate of 6% per annum. No interest, however, shall be adjudged on unliquidated claims or
damages except when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty, the interest shall
begin to run from the time the claim is made judicially or extrajudicially (Art. 1169, Civil Code)
but when such certainty cannot be so reasonably established at the time the demand is
made, the interest shall begin to run only from the date the judgment of the court is made (at
which time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any case, be on
the amount finally adjudged.
3. When the judgment of the court awarding a sum of money becomes final and executory,
the rate of legal interest, whatever the case falls under paragraph 1 or paragraph 2, above,
shall be 12% per annum from such finality until its satisfaction, this interim period being
deemed to be by then an equivalent to a forbearance of credit.
16

Accordingly, legal interest at the rate of 6% per annum on the amounts awarded starts to run from
24 July 2008, when the trial court rendered judgment. From the time this judgment becomes final
and executory, the interest rate shall be 12% per annum on the judgment amount and the interest
earned up to that date, until the judgment is wholly sRepublic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-24153 February 14, 1983
TOMAS VELASCO, LOURDES RAMIREZ, SY PIN, EDMUNDO UNSON, APOLONIA RAMIREZ
and LOURDES LOMIBAO, as component members of the STA. CRUZ BARBERSHOP
ASSOCIATION, in their own behalf and in representation of the other owners of barbershops
in the City of Manila, petitioners-appellants,
vs.
HON. ANTONIO J. VILLEGAS, City Mayor of Manila, HON. HERMINIO A. ASTORGA, Vice-
Mayor and Presiding Officer of the Municipal Board in relation to Republic Act 4065, THE
MUNICIPAL BOARD OF THE CITY OF MANILA and EDUARDO QUINTOS SR., Chief of Police
of the City of Manila, respondents-appellees.
Leonardo L. Arguelles for respondent-appellant.

FERNANDO, C.J .:
This is an appeal from an order of the lower court dismissing a suit for declaratory relief challenging
the constitutionality based on Ordinance No. 4964 of the City of Manila, the contention being that it
amounts to a deprivation of property of petitioners-appellants of their means of livelihood without due
process of law. The assailed ordinance is worded thus: "It shall be prohibited for any operator of any
barber shop to conduct the business of massaging customers or other persons in any adjacent room
or rooms of said barber shop, or in any room or rooms within the same building where the barber
shop is located as long as the operator of the barber shop and the room where massaging is
conducted is the same person."
1
As noted in the appealed order, petitioners-appellants admitted
that criminal cases for the violation of this ordinance had been previously filed and decided. The
lower court, therefore, held that a petition for declaratory relief did not lie, its availability being
dependent on there being as yet no case involving such issue having been filed.
2

Even if such were not the case, the attack against the validity cannot succeed. As pointed out in the
brief of respondents-appellees, it is a police power measure. The objectives behind its enactment
are: "(1) To be able to impose payment of the license fee for engaging in the business of massage
clinic under Ordinance No. 3659 as amended by Ordinance 4767, an entirely different measure than
the ordinance regulating the business of barbershops and, (2) in order to forestall possible
immorality which might grow out of the construction of separate rooms for massage of
customers."
3
This Court has been most liberal in sustaining ordinances based on the general
welfare clause. As far back as U.S. v. Salaveria,
4
a 1918 decision, this Court through Justice
Malcolm made clear the significance and scope of such a clause, which "delegates in statutory form
the police power to a municipality. As above stated, this clause has been given wide application by
municipal authorities and has in its relation to the particular circumstances of the case been liberally
construed by the courts. Such, it is well to really is the progressive view of Philippine
jurisprudence."
5
As it was then, so it has continued to be.
6
There is no showing, therefore, of the
unconstitutionality of such ordinance.
WHEREFORE, the appealed order of the lower court is affirmed. No costs.
Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Melencio- Herrera, Plana, Escolin,
Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee, J., reserves his vote.
Aquino J., took no part.
Velasco vs. Villegas [G.R. No. L-24153 (120 SCRA),
February 14, 1983]
Post under case digests, Political Law at Sunday, February 26, 2012 Posted by Schizophrenic Mind
Facts: Petitioners herein are members of the Sta. Cruz
BarbershopAssociation. This is an appeal from the lower
court's(LC) order dismissing their suit for declatory relief.
They are challenging the constitutionality of Ord. No.
4964. They contend that it amounts to deprivation of
properties and their means of livelihood without due
process of law.

The assailed ordinance is worded thus: "It shall be
prohibited for any operator of any barber shop to conduct
the business of massagingcustomers or other persons in
any adjacent room or rooms of said barber shop, or in any
room or rooms within the same building where the barber
shop is located as long as the operator of the barber shop
and the room where massaging is conducted is the same
person."

Respondent in its reply, said that the Ordinance No. 4964
is constitutional and such is just an exercise of the state's
inherent power (police power).

Issue: Whether or not the assailed Ordinance violated the
petitioner's right to property and their means of livelihood.

Held: Ordinance is Constitutional. Petition is dismissed,
LC decision affirmed.

Enactment of such (Ordinance) is a valid exercise of
Police Power.

The objectives of the Ordinance are:

(1) To impose payment of license fees for engaging in the
business of massage clinics, and;

(2) To forestall possible immorality which might grow from
the construction of a separate room
for massaging customers.

This Court has been most liberal in
sustaining ordinances based on the general welfare
clause. And for that reason, the petitioners rights were not
violated and they are not deprived of the due processof
law.

Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 179031 November 14, 2012
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
BENJAMIN SORIA y GOMEZ, Accused-Appellant.
D E C I S I O N
DEL CASTILLO, J .:
This case involves a fathers detestable act of abusing his daughter through rape by sexual assault.
Factual Antecedents
Accused-appellant Benjamin Soria y Gomez (appellant) seeks a review of the December 29, 2006
Decision
1
of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01442 which affirmed with
modification the June 30, 2005 Judgment
2
of the Regional Trial Court (RTC) of Quezon City, Branch
94, in Criminal Case No. Q-01-98692. Said RTC Judgment found appellant guilty beyond reasonable
doubt of the crime of rape committed against his daughter "AAA",
3
as described in an
Information,
4
the relevant portion of which reads:
That on or about the 26th day of February, 2000, in Quezon City, Philippines, the said accused, who
is the father of private complainant "AAA", did then and there willfully, unlawfully, and feloniously with
force and intimidation commit an act of sexual assault upon the person of one "AAA", a minor, 7
years of age[,] by then and there inserting his penis into [the] genital of said complainant, all against
her will and consent, which act debases, degrades, or demeans the intrinsic worth and dignity of
said "AAA", as a human being, in violation of said law.
CONTRARY TO LAW.
5

Appellant pleaded not guilty to the crime charged. Pre-trial and trial thereafter ensued.
Version of the Prosecution
On February 26, 2000, "AAA" and her siblings enjoyed the spaghetti their father (appellant) brought
home for merienda. After eating, "AAA" went to the bedroom to rest. Thereafter, appellant also
entered the room and positioned himself on top of "AAA", took off her clothes and inserted his penis
into her vagina. "AAA" felt intense pain from her breast down to her vagina and thus told her father
that it was painful. At that point, appellant apologized to his daughter, stood up, and left the room.
This whole incident was witnessed by "AAAs" brother, "BBB".
The pain persisted until "AAAs" vagina started to bleed. She thus told her aunt about it and they
proceeded to a hospital for treatment. Her mother was also immediately informed of her ordeal.
Subsequently, "AAA" was taken into the custody of the Department of Social Welfare and
Development.
On March 15, 2000, Medico-Legal Officer Francisco A. Supe, Jr., M.D. (Dr. Supe) examined "AAA",
which examination yielded the following results:
GENERAL AND EXTRA-GENITAL: Fairly developed, fairly nourished and coherent female child.
Breasts are undeveloped. Abdomen is flat and soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full, convex, and coaptated with
light brown labia minora presenting in between. On separating the same, disclosed an elastic, fleshy
type, hyperemic and intact hymen. Posterior fourchette is sharp.
CONCLUSION: The subject is in virgin state physically. There are no external signs of application of
any form of physical trauma.
6

Version of the Defense
Appellant admitted that he was at home on the day and time of "AAAs" alleged rape but denied
committing the same. Instead, he claimed that the filing of the rape case against him was instigated
by his wife, whom he confronted about her illicit affair with a man residing in their community.
According to appellant, he could not have molested "AAA" because he treated her well. In fact, he
was the only one sending his children to school since his wife already neglected them and seldom
comes home.
Ruling of the Regional Trial Court
On June 30, 2005, the trial court rendered its Judgment
7
finding appellant guilty beyond reasonable
doubt of the crime of rape against "AAA", his daughter of minor age, as charged in the Information. It
ruled that the lack of tenacious resistance on the part of "AAA" is immaterial considering that
appellants moral ascendancy and influence over her substitute for violence and intimidation.
8
It also
held that his wife could not have instigated the filing of the rape case since as the mother of "AAA", it
would not be natural for her to use her child as a tool to exact revenge especially if it will result in her
embarrassment and stigma.
9
The trial court gave credence to the testimony of "AAA" and her
positive identification of appellant as her rapist, and rejected the latters defense of denial. The
dispositive portion of the Judgment reads as follows:
WHEREFORE, premises considered, judgment is hereby rendered finding the herein accused,
BENJAMIN SORIA Y GOMEZ GUILTY beyond reasonable doubt of the crime as charged and
sentences him to suffer the supreme penalty of DEATH and to indemnify the offended party the
amount of P75,000.00, to pay moral damages in the amount of P50,000.00, and the amount of
P25,000.00 as exemplary damages to deter other fathers with perverse proclivities for aberrant
sexual behavior for sexually abusing their own daughters.
SO ORDERED.
10

Ruling of the Court of Appeals
In its Decision
11
dated December 29, 2006, the CA found partial merit in the appeal. While the
appellate court was convinced that appellant raped "AAA", it nevertheless noted the prosecutions
failure to present her birth certificate as competent proof of her minority. Thus, the CA concluded
that the crime committed by appellant against his daughter was only simple rape and accordingly
modified the penalty imposed by the trial court from death to reclusion perpetua and reduced the civil
indemnity awarded from P75,000.00 to P50,000.00. The dispositive portion of the appellate courts
Decision reads as follows:
WHEREFORE, premises considered, the appeal is hereby GRANTED and the June 30, 2005
Decision of the Regional Trial Court of Quezon City, Branch 94, in Criminal Case No. Q-01-98692, is
hereby MODIFIED, in that, the penalty imposed is reduced to reclusion perpetua instead of death
and the civil indemnity to be paid by the offender to the victim is hereby reduced to the amount of
P50,000.00 instead of P75,000.00 pursuant to prevailing jurisprudence as explained in this decision.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal Procedure as amended by A.M.
No. 00-5-03-SC dated September 28, 2004, which became effective on October 15, 2004, this
judgment of the Court of Appeals may be appealed to the Supreme Court by notice of appeal filed
with the Clerk of Court of the Court of Appeals.
SO ORDERED.
12

Still insisting on his innocence, appellant comes to this Court through this appeal.
Assignment of Errors
Appellant adopts the same assignment of errors he raised before the appellate court, viz:
I. THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED GUILTY OF THE
CRIME OF RAPE DESPITE THE FAILURE OF THE PROSECUTION TO OVERTHROW
THE CONSTITUTIONAL PRESUMPTION OF INNOCENCE X X X.
II. ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE CRIME CHARGED,
THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE DEATH PENALTY UPON
HIM.
13

Appellant asserts that he should be acquitted of the crime of rape since there is no evidence that
would establish the fact of sexual intercourse. Aside from the prosecutions failure to prove penile
contact, "AAAs" testimony was also wanting in details as to how he took off her underwear or
whether she saw his penis during the incident despite leading questions propounded on the matter
by the prosecution. The medical report even revealed that "AAAs" hymen remained intact and that
there were no notable lacerations or external physical injuries thereon. Appellant therefore surmises
that his wife merely instigated "AAA" to file this baseless rape case against him in retaliation for his
act of confronting her about her illicit relationship with a neighbor.
Our Ruling
The appeal lacks merit.
The crime of rape under Article 266-A of
the Revised Penal Code (RPC).
Republic Act No. 8353, otherwise known as the Anti-Rape Law of 1997, classified the crime of rape
as a crime against persons. It also amended Article 335 of the RPC and incorporated therein Article
266-A which reads:
Article 266-A. Rape, When and How Committed. Rape is committed
1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:
a) Through force, threat or intimidation;
b) When the offended party is deprived of reason or is otherwise unconscious,
c) By means of fraudulent machination or grave abuse of authority;
d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present;
2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof,
shall commit an act of sexual assault by inserting his penis into another persons mouth or
anal orifice, or any instrument or object, into the genital or anal orifice of another person.
Thus, rape can now be committed either through sexual intercourse or by sexual assault. Rape
under paragraph 1 of the above-cited article is referred to as rape through sexual intercourse. Carnal
knowledge is the central element and it must be proven beyond reasonable doubt.
14
It is commonly
denominated as "organ rape" or "penile rape"
15
and must be attended by any of the circumstances
enumerated in subparagraphs (a) to (d) of paragraph 1.
On the other hand, rape under paragraph 2 of Article 266-A is commonly known as rape by sexual
assault. The perpetrator, under any of the attendant circumstances mentioned in paragraph 1,
commits this kind of rape by inserting his penis into another persons mouth or anal orifice, or any
instrument or object into the genital or anal orifice of another person. It is also called "instrument or
object rape", also "gender-free rape".
16

The Information did not specify whether
the crime of rape was committed through
sexual intercourse or by sexual assault.
The Information in this case did not specify with certainty whether appellant committed the rape
through sexual intercourse under paragraph 1 of Article 266-A, or rape by sexual assault as
described in paragraph 2 thereof. The Information stated that appellant inserted his penis into the
genital of "AAA," which constituted rape by sexual intercourse under the first paragraph of Article
266-A. At the same time, the Information alleged that appellant used force and intimidation to
commit an act of sexual assault. While these allegations cause ambiguity, they only pertain to the
mode or manner of how the rape was committed and the same do not invalidate the Information or
result in the automatic dismissal of the case. "[W]here an offense may be committed in any of the
different modes and the offense is alleged to have been committed in two or more modes specified,
the indictment is sufficient, notwithstanding the fact that the different means of committing the same
offense are prohibited by separate sections of the statute. The allegation in the information of the
various ways of committing the offense should be regarded as a description of only one offense and
the information is not thereby rendered defective on the ground of multifariousness."
17
Any objection
from the appellant with respect to the Information is held to have been waived failing any effort to
oppose the same before trial.
18
He therefore can be convicted of rape through sexual intercourse or
rape by sexual assault, depending on the evidence adduced during trial.
The findings of the RTC and the CA on
the credibility of "AAA" deserve respect
and great weight.
Both the trial court and the CA held that "AAA" was a credible witness. They ruled that her testimony
deserved credence and is sufficient evidence that she was raped by appellant. We find no cogent
reason to overturn these findings.
It would be highly inconceivable for "AAA" to impute to her own father the crime of raping her unless
the imputation is true.
19
In fact, it takes "a certain amount of psychological depravity for a young
woman to concoct a story which would put her own father in jail for the rest of his remaining life and
drag the rest of the family including herself to a lifetime of shame"
20
unless the imputation is true.
When a rape victims testimony on the manner she was defiled is "straightforward and candid, and is
corroborated by the medical findings of the examining physician as in this case, the same is
sufficient to support a conviction for rape."
21

Appellant is guilty of rape by sexual
assault and not through sexual
intercourse.
The trial courts conviction of the appellant was for rape through sexual intercourse under paragraph
1(a) of Article 266-A. The CA sustained the trial courts finding that appellant had sexual intercourse
with "AAA" against her will.
In determining whether appellant is indeed guilty of rape through sexual intercourse under paragraph
1 of Article 266-A, it is essential to establish beyond reasonable doubt that he had carnal knowledge
of "AAA". There must be proof that his penis touched the labia of "AAA" or slid into her female organ,
and not merely stroked the external surface thereof, to ensure his conviction of rape by sexual
intercourse.
22
1vvph! 1
We reviewed the testimony of "AAA" and found nothing therein that would show that she was raped
through sexual intercourse. While "AAA" categorically stated that she felt something inserted into her
vagina, her testimony was sorely lacking in important details that would convince us with certainty
that it was indeed the penis of appellant that was placed into her vagina.
When "AAA" was placed on the witness stand, she narrated that:
Q - The earlier statement which you made when you said that you wanted to explain something
about your father, is that true?
A - Yes, sir.
Q - So, you said that you wanted to explain something about your father, what was that?
A - What he did, sir.
Q - What was that?
A - I was raped, sir.
Q - What did he do when you said he raped you?
A - He laid on top of me, sir.
23

x x x x
Q - So when you said he laid on top of you, did you feel anything? Did you feel any pain in any part
of your body?
A - Yes, sir.
Q - In what part of your body did you feel pain?
A - I felt pain in my breast and my stomach.
Q - What about your private part?
A - Yes, sir.
Q - Did you know why your stomach as well as your body and your private part hurt or become
painful?
A - I dont know, sir.
Q - Did you feel something inserted into your private part?
A - Yes, sir.
Q - What is that, if you know?
A - The bird of my papa.
Q - Why did you know that?
A - Because my brother, "BBB", told me.
Q - Why? Was "BBB", your brother, present when your father was on top of you?
A - Yes, sir.
Q - Why do you know that he was there?
A - He told me so, sir.
Q - Who?
A - "BBB".
Q - Okay, when you felt pain as something was inserted [into] your private part, what did you say to
your father?
A - He left the room.
Q - Before he went away and left?
A - It was painful, sir.
Q - And what was the answer of your father?
A - He said sorry, sir.
Q - How long was he or how long were you in that position, you were lying down and your father was
on top of you?
A - I do not know, sir.
24

x x x x
Q - Earlier, you were making reference to your father whom you said abused you. I am asking you
now to tell us if your father is around?
A - Yes, sir.
Q - Will you please point x x x to him?
A - Yes, sir. (Witness pointing to a man who is wearing yellow t-shirt and maong pants who when
asked identified himself as Benjamin Soria.)
Q - Is he the same person who according to you laid on top of you and inserted something into your
vagina or private part?
A - Yes, sir.
25

It is evident from the testimony of "AAA" that she was unsure whether it was indeed appellants penis
which touched her labia and entered her organ since she was pinned down by the latters weight,
her father having positioned himself on top of her while she was lying on her back. "AAA" stated that
she only knew that it was the "bird" of her father which was inserted into her vagina after being told
by her brother "BBB". Clearly, "AAA" has no personal knowledge that it was appellants penis which
touched her labia and inserted into her vagina. Hence, it would be erroneous to conclude that there
was penile contact based solely on the declaration of "AAAs" brother, "BBB", which declaration was
hearsay due to "BBBs" failure to testify. Based on the foregoing, it was an error on the part of the
RTC and the CA to conclude that appellant raped "AAA" through sexual intercourse.
Instead, we find appellant guilty of rape by sexual assault. It cannot be denied that appellant inserted
an object into "AAAs" female organ. "AAA" categorically testified that appellant inserted something
into her vagina. She claimed to have suffered tremendous pain during the insertion. The insertion
even caused her vagina to bleed necessitating her examination at the hospital. Both the trial court
and the CA found "AAAs" testimony to be credible. We find no compelling reason not to lend
credence to the same.
This defilement constitutes rape under paragraph 2 of Article 266-A of the RPC, which provides that
rape by sexual assault is committed "by any person who, under any of the circumstances mentioned
in paragraph 1 hereof, shall commit an act of sexual assault by inserting x x x any instrument or
object, into the genital or anal orifice of another person."
Moreover, Dr. Supe corroborated her testimony as follows:
Q - Doctor, with respect to Exhibit A, the Medico-Legal Report pertaining to the entry into the genital,
which reads: On separating the hymen, disclosed was an elastic, fleshy type, hyperemic and intact
hymen. Will you please tell us, Doctor, what is this hyperemic hymen?
A - Hyperemic hymen, sir, means that at the time of examination, I found out that it was reddish in
color.
Q - Considering the age of the child or the patient, the victim whom you examined at that time who
was about 6 years old, will you be able to tell us, Doctor, what could have caused this kind of injury,
because this is an injury to the hymen?
A - Hyperemic, sir, is observed whenever there is friction applied to an area, such as in the form of
scratching.
Q - What about insertion of object, would this result into hyperemic hymen?
A - If the object is being rubbed, sir, there is a possibility.
Q - A finger will produce this kind of injury?
A - Possible, sir.
26

According to Dr. Supe, it is possible that "AAAs" hyperemic hymen may be the result of the insertion
of a finger or object. While Dr. Supe said that the injury could also be attributed to scratching,
"AAAs" testimony is bereft of any showing that she scratched her genital organ thus causing the
reddening. Appellant would also want to make it appear that the injury of "AAA" was the result of
friction from playing or riding a bicycle since the doctor testified that this was also possible. However,
there is likewise no evidence that friction was applied on "AAAs" female organ when she played
hide and seek with her playmates or that she actually rode a bicycle. On the other hand, "AAA" was
categorical in stating that in the afternoon of February 26, 2000, appellant removed her clothes, laid
on top of her, and that she felt something being inserted into her vagina and that thereafter she
experienced pain in her genitals. The foregoing thus proved that appellant inserted an object into
"AAAs" vagina against her will and without consent. Simply put, appellant committed the crime of
rape by sexual assault.
The following are the elements of rape by sexual assault:
(1) That the offender commits an act of sexual assault;
(2) That the act of sexual assault is committed by any of the following means:
(a) By inserting his penis into another persons mouth or anal orifice; or
(b) By inserting any instrument or object into the genital or anal orifice of another
person;
(3) That the act of sexual assault is accomplished under any of the following circumstances:
(a) By using force and intimidation;
(b) When the woman is deprived of reason or otherwise unconscious; or
(c) By means of fraudulent machination or grave abuse of authority; or
(d) When the woman is under 12 years of age or demented.
27

In the instant case, it was clearly established that appellant committed an act of sexual assault on
"AAA" by inserting an instrument or object into her genital. We find it inconsequential that "AAA"
could not specifically identify the particular instrument or object that was inserted into her genital.
What is important and relevant is that indeed something was inserted into her vagina. To require
"AAA" to identify the instrument or object that was inserted into her vagina would be contrary to the
fundamental tenets of due process. It would be akin to requiring "AAA" to establish something that is
not even required by law. Moreover, it might create problems later on in the application of the law if
the victim is blind or otherwise unconscious. Moreover, the prosecution satisfactorily established that
appellant accomplished the act of sexual assault through his moral ascendancy and influence over
"AAA" which substituted for violence and intimidation. Thus, there is no doubt that appellant raped
"AAA" by sexual assault.
Appellants contentions are untenable.
The failure of "AAA" to mention that her panty was removed prior to the rape does not preclude
sexual assault. We cannot likewise give credence to the assertion of appellant that the crime of rape
was negated by the medical findings of an intact hymen or absence of lacerations in the vagina of
"AAA". Hymenal rupture, vaginal laceration or genital injury is not indispensable because the same is
not an element of the crime of rape.
28
"An intact hymen does not negate a finding that the victim was
raped."
29
Here, the finding of reddish discoloration of the hymen of "AAA" during her medical
examination and the intense pain she felt in her vagina during and after the sexual assault
sufficiently corroborated her testimony that she was raped.
Likewise undeserving of credence is appellants contention that his wife merely instigated "AAA" to
file the charge of rape against him in retaliation for his having confronted her about her illicit affair
with another man. This imputation of ill motive is flimsy considering that it is unnatural for appellants
wife to stoop so low as to subject her own daughter to the hardships and shame concomitant with a
prosecution for rape, just to assuage her hurt feelings.
30
It is also improbable for appellants wife to
have dared encourage their daughter "AAA" to publicly expose the dishonor of the family unless the
rape was indeed committed.
31

Penalty
Under Article 266-B of the RPC, the penalty for rape by sexual assault is prision mayor. However,
the penalty is increased to reclusion temporal "if the rape is committed by any of the 10
aggravating/qualifying circumstances mentioned in this article". The Information alleged the
qualifying circumstances of relationship and minority. It was alleged that appellant is the father of
"AAA". During the pre-trial conference, the parties stipulated that "AAA" is the daughter of
appellant.
32
During trial, appellant admitted his filial bond with "AAA".
33
"Admission in open court of
relationship has been held to be sufficient and, hence, conclusive to prove relationship with the
victim."
34

With respect to minority, however, the Information described "AAA" as a 7-year old daughter of
appellant. While this also became the subject of stipulation during the pre-trial conference, same is
insufficient evidence of "AAAs" age. Her minority must be "proved conclusively and indubitably as
the crime itself".
35
"There must be independent evidence proving the age of the victim, other than the
testimonies of prosecution witnesses and the absence of denial by the accused."
36
Documents such
as her original or duly certified birth certificate, baptismal certificate or school records would suffice
as competent evidence of her age.
37
Here, there was nothing on record to prove the minority of
"AAA" other than her testimony, appellants absence of denial, and their pre-trial stipulation.
38
The
prosecution also failed to establish that the documents referred to above were lost, destroyed,
unavailable or otherwise totally absent.
39

It is settled that "when either one of the qualifying circumstances of relationship and minority is
omitted or lacking, that which is pleaded in the information and proved by the evidence may be
considered as an aggravating circumstance."
40
As such, appellants relationship with "AAA" may be
considered as an aggravating circumstance.
In view of these, the imposable penalty is reclusion temporal which ranges from twelve (12) years
and one (1) day to twenty (20) years. Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor which ranges from six (6) years and one (1) day to twelve (12)
years. Hence, a penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of
reclusion temporal, as maximum, is imposed upon appellant.
Damages
In line with prevailing jurisprudence, the awards of P50,000.00 as civil indemnity, P50,000.00 as
moral damages and P25,000.00 as exemplary damages are each modified to P30,000.00.
41
"AAA" is
also entitled to an interest on all the amounts of damages awarded at the legal rate of 6% per annum
from the date of finality of this judgment until fully paid.
42

WHEREFORE, the December 29, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No.
01442 is AFFIRMED with MODIFICATIONS. Accused-appellant Benjamin Soria y Gomez is found
guilty beyond reasonable doubt of the crime of rape by sexual assault and is sentenced to suffer the
penalty of twelve (12) years of prison mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum. He is also ordered to pay "AAA" the amounts of P30,000.00 as civil indemnity,
P30,000.00 as moral damages, and P30,000.00 as exemplary damages. "AAA" is entitled to an
interest on all damages awarded at the legal rate of 6% per annum from the date of finality of this
judgment until fully paid.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 199082 September 18, 2012
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS; HON. LEILA DE LIMA, in her
capacity as Secretary of the Department of Justice; HON. SIXTO BRILLANTES, .JR., in his
capacity as Chairperson of the Commission on Elections; and the JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITTEE and FACT-FINDING TEAM, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of Justice; HON. SIXTO S. BRILLANTES,
JR., in his capacity as COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N. TAGLE,
ARMANDO V. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S. LIM AND AUGUSTO C.
LAGMAN, in their capacity as COMELEC COMMISSIONERS; CLARO A. ARELLANO, GEOUGE
C. DEE, JACINTO G. ANG, ROMEO B. FORTES AND MICHAEL D. VILLARET, in their capacity
as CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE JOINT DOJ-COMELEC
PRELIMINARY INVESTIGATION COMMITEE ON THE 2004 AND 2007 ELECTION
FRAUD,Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by Chairperson Sixto S. Brillantes, Jr.,
DEPARTMENT OF JUSTICE, represented by Secretary Leila M. De Lima, JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE, SENATOR AQUILINO M. PIMENTEL
III, and DOJ-COMELEC FACT FINDING TEAM, Respondents.
D E C I S I O N
PERALTA, J .:
The Court is vested with the constitutional mandate to resolve justiciable controversies by applying
the rule of law with due deference to the right to due process, irrespective of the standing in society
of the parties involved. It is an assurance that in this jurisdiction, the wheels of justice turn
unimpeded by public opinion or clamor, but only for the ultimate end of giving each and every
member of society his just due without distinction.
Before the Court are three (3) consolidated petitions and supplemental petitions for Certiorari and
Prohibition under Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo (Mike Arroyo) in G.R.
No. 199082, Benjamin S. Abalos, Sr. (Abalos) in G.R. No. 199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1) Commission on Elections (Comelec)
Resolution No. 9266 "In the Matter of the Commission on Elections and Department of Justice Joint
Investigation on the Alleged Election Offenses Committed during the 2004 and 2007 Elections
Pursuant to Law"
1
dated August 2, 2011; (2) Joint Order No. 001-2011 (Joint Order) "Creating and
Constituting a Joint DOJ-Comelec Preliminary Investigation Committee [Joint Committee] and Fact-
Finding Team on the 2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases"
2
dated August 15, 2011; (3) Rules of Procedure on the Conduct of Preliminary
Investigation on the Alleged Election Fraud in the 2004 and 2007 National Elections (Joint
Committee Rules of Procedure)
3
dated August 23, 2011; and (4) Initial Report of the Fact-Finding
Team dated October 20, 2011.
4
The consolidated petitions and supplemental petitions likewise
assail the validity of the proceedings undertaken pursuant to the aforesaid issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the surfacing of new witnesses indicating the
occurrence of massive electoral fraud and manipulation of election results in the 2004 and 2007
National Elections, on August 2, 2011, the Comelec issued Resolution No. 9266 approving the
creation of a committee jointly with the Department of Justice (DOJ), which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during the 2004 and 2007
elections.
5

On August 4, 2011, the Secretary of Justice issued Department Order No. 640
6
naming three (3) of
its prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint Order No. 001-2011 creating and
constituting a Joint Committee and Fact-Finding Team on the 2004 and 2007 National Elections
electoral fraud and manipulation cases. The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec. Section 2 of the Joint Order lays down the
mandate of the Joint Committee, to wit:
Section 2. Mandate. The Committee shall conduct the necessary preliminary investigation on the
basis of the evidence gathered and the charges recommended by the Fact-Finding Team created
and referred to in Section 4 hereof. Resolutions finding probable cause for election offenses, defined
and penalized under the Omnibus Election Code and other election laws shall be approved by the
Comelec in accordance with the Comelec Rules of Procedure. For other offenses, or those not
covered by the Omnibus Election Code and other election laws, the corresponding criminal
information may be filed directly with the appropriate courts.
7

The Fact-Finding Team,
8
on the other hand, was created for the purpose of gathering real,
documentary, and testimonial evidence which can be utilized in the preliminary investigation to be
conducted by the Joint Committee. Its specific duties and functions as enumerated in Section 4 of
the Joint Order are as follows:
a) Gather and document reports, intelligence information, and investigative leads from official
as well as unofficial sources and informants;
b) Conduct interviews, record testimonies, take affidavits of witnesses, and collate material
and relevant documentary evidence, such as, but not limited to, election documents used in
the 2004 and 2007 national elections. For security reasons, or to protect the identities of
informants, the Fact-Finding Team may conduct interviews or document testimonies
discreetly;
c) Assess and evaluate affidavits already executed and other documentary evidence
submitted or may be submitted to the Fact-Finding Team and/or Committee;
d) Identify the offenders, their offenses and the manner of their commission, individually or in
conspiracy, and the provisions of election and general criminal laws violated, establish
evidence for individual criminal and administrative liability and prosecution, and prepare the
necessary documentation, such as complaints and charge sheets for the initiation of
preliminary investigation proceedings against said individuals to be conducted by the
Committee;
e) Regularly submit to the Committee, the Secretary of Justice and the Chairman of the
Comelec periodic reports and recommendations, supported by real, testimonial and
documentary evidence, which may then serve as the Committees basis for immediately
commencing appropriate preliminary investigation proceedings, as provided under Section 6
of this Joint Order; and
f) Upon the termination of its investigation, make a full and final report to the Committee, the
Secretary of Justice, and the Chairman of the Comelec.
9

Pursuant to Section 7
10
of the Joint Order, on August 23, 2011, the Joint Committee promulgated its
Rules of Procedure.
The members of the Fact-Finding Team unanimously agreed that the subject of the Initial Report
would be the electoral fraud and manipulation of election results allegedly committed during the May
14, 2007 elections. Thus, in its Initial Report
11
dated October 20, 2011, the Fact-Finding Team
concluded that manipulation of the results in the May 14, 2007 senatorial elections in the provinces
of North and South Cotabato and Maguindanao were indeed perpetrated.
12
The Fact-Finding Team
recommended that petitioner Abalos and ten (10) others
13
be subjected to preliminary investigation
for electoral sabotage for conspiring to manipulate the election results in North and South Cotabato.
Twenty-six (26)
14
persons, including petitioners GMA and Abalos, were likewise recommended for
preliminary investigation for electoral sabotage for manipulating the election results in
Maguindanao.
15
Several persons were also recommended to be charged administratively, while
others,
16
including petitioner Mike Arroyo, were recommended to be subjected to further
investigation.
17
The case resulting from the investigation of the Fact-Finding Team was docketed as
DOJ-Comelec Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel III (Senator Pimentel) filed a Complaint-
Affidavit
18
for Electoral Sabotage against petitioners and twelve others
19
and several John Does and
Jane Does. The case was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas against petitioners in DOJ-
Comelec Case Nos. 001-2011 and 002-2011.
20
On November 3, 2011, petitioners, through counsel,
appeared before the Joint Committee.
21
On that preliminary hearing, the Joint Committee
consolidated the two DOJ-Comelec cases. Respondents therein were likewise ordered to submit
their Counter-Affidavits by November 14, 2011.
22

Thereafter, petitioners filed before the Court separate Petitions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.
23
The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a Motion to Defer Proceedings
24
before the Joint
Committee, in view of the pendency of his petition before the Court. On the same day, petitioner
GMA filed before the Joint Committee an Omnibus Motion Ad Cautelam
25
to require Senator
Pimentel to furnish her with documents referred to in his complaint-affidavit and for the production of
election documents as basis for the charge of electoral sabotage. GMA contended that for the crime
of electoral sabotage to be established, there is a need to present election documents allegedly
tampered which resulted in the increase or decrease in the number of votes of local and national
candidates.
26
GMA prayed that she be allowed to file her counter-affidavit within ten (10) days from
receipt of the requested documents.
27
Petitioner Abalos, for his part, filed a Motion to Suspend
Proceedings (Ex Abundante Ad Cautelam),
28
in view of the pendency of his petition brought before
the Court.
In an Order
29
dated November 15, 2011, the Joint Committee denied the aforesaid motions of
petitioners. GMA subsequently filed a motion for reconsideration.
30

On November 16, 2011, the Joint Committee promulgated a Joint Resolution which was later
indorsed to the Comelec.
31
On November 18, 2011, after conducting a special session, the Comelec
en banc issued a Resolution
32
approving and adopting the Joint Resolution subject to modifications.
The dispositive portion of the Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the Joint DOJ-COMELEC Preliminary
Investigation Committee in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC Case No. 002-
2011, upon the recommendation of the COMELECs own representatives in the Committee, is
hereby APPROVED and ADOPTED, subject to the following MODIFICATIONS:
1. That information/s for the crime of ELECTORAL SABOTAGE under Section 42 (b) of R.A.
9369, amending Section 27 (b) of R.A. 6646, be filed against GLORIA MACAPAGAL-
ARROYO, BENJAMIN ABALOS, SR., LINTANG H. BEDOL, DATU ANDAL AMPATUAN,
SR. and PETER REYES;
2. That the charges against MICHAEL C. ABAS, NICODEMO FERRER, REUBEN BASIAO,
JAIME PAZ and NORIE K. UNAS be subjected to further investigation;
3. That the charges against JOSE MIGUEL T. ARROYO, BONG SERRANO, ALBERTO
AGRA, ANDREI BON TAGUM, GABBY CLAUDIO, ROMY DAYDAY, JEREMY JAVIER,
JOHN DOE a.k.a BUTCH, be DISMISSED for insufficiency of evidence to establish probable
cause;
4. That the recommendation that ESTELITA B. ORBASE, ELIZA A. GASMIN, ELSA Z.
ATINEN, SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD, SALONGA K. EDZELA, RAGAH
D. AYUNAN, SUSAN U. CANANBAN, RUSSAM H. MABANG, ASUNCION CORAZON P.
RENIEDO, NENA A. ALID, MA. SUSAN L. ALBANO, ROHAIDA T. KHALID, ARAW M. CAO,
JEEHAN S. NUR, ALICE A. LIM, NORIJEAN P. HANGKAL, CHRISTINA ROAN M.
DALOPE, and MACEDA L. ABO be administratively charged be subjected to further review
by this Commission to determine the appropriate charge/s that may be filed against them;
5. That the findings of lack of probable cause against LILIAN S. SUAN-RADAM and YOGIE
G. MARTIRIZAR be REJECTED by reason of the pendency of their respective cases before
the Regional Trial Court of Pasay (Branch 114) and this Commission for the same offense
under consideration.
In the higher interest of justice and by reason of manifest attempts to frustrate the governments right
to prosecute and to obtain speedy disposition of the present case pending before the Commission,
the Law Department and/or any COMELEC legal officers as may be authorized by this Commission
is hereby ORDERED to IMMEDIATELY PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.
33
(Emphasis supplied.)
On even date, pursuant to the above Resolution, the Comelecs Law Department filed with the
Regional Trial Court (RTC), Pasay City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section 42 (b)(3) of Republic Act (R.A.)
No. 9369, amending Section 27 (b) of R.A. No. 6646, docketed as Criminal Case No. RPSY-11-
04432-CR.
34
The case was raffled to Branch 112 and the corresponding Warrant of Arrest was
issued which was served on GMA on the same day.
35

On November 18, 2011, petitioner GMA filed with the RTC an Urgent Omnibus Motion Ad
Cautelam
36
with leave to allow the Joint Committee to resolve the motion for reconsideration filed by
GMA, to defer issuance of a warrant of arrest and a Hold Departure Order, and to proceed to judicial
determination of probable cause. She, likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam
37
praying that its Resolution be vacated for being null and void. The RTC nonetheless
issued a warrant for her arrest which was duly served. GMA thereafter filed a Motion for Bail which
was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following grounds:
A. THE CREATION OF THE JOINT COMMITTEE VIA THE JOINT ORDER IS AT WAR
WITH THE DUE PROCESS AND EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION, HAVING BEEN CREATED WITH THE SOLE END IN VIEW OF
INVESTIGATING AND PROSECUTING CERTAIN PERSONS AND INCIDENTS ONLY,
SPECIFICALLY THOSE INVOLVING THE 2004 AND 2007 ELECTIONS TO THE
EXCLUSION OF OTHERS, IN VIOLATION OF THE DOCTRINE IN BIRAOGO V. TRUTH
COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT COMMITTEE TO CONDUCT
PRELIMINARY INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE, WHICH FUSES THE COMMISSION ON
ELECTIONS - A CONSTITUTIONALLY INDEPENDENT BODY - WITH THE DEPARTMENT
OF JUSTICE A POLITICAL AGENT OF THE EXECUTIVE DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON ELECTIONS AS PROVIDED IN ARTICLE
IX(A), SECTIONS 1 AND 2 AND IX(C) OF THE CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND PERSISTENT PUBLIC PRONOUNCEMENTS OF
THE PRESIDENT, HIS SPOKESPERSONS, THE HEADS OF THE DOJ AND THE
COMELEC, AND MEMBERS OF THE JOINT COMMITTEE THAT CASES SHOULD BE
FILED AGAINST PETITIONER AND HIS FAMILY AND ALLEGED ASSOCIATES BY THE
END OF 2011, THE PROCEEDINGS THEREOF SHOULD BE ENJOINED FOR BEING
PERSECUTORY, PURSUANT TO ALLADO V. DIOKNO AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE JOINT COMMITTEE TRAMPLES UPON
PETITIONERS RIGHT TO A FAIR PROCEEDING BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE RTC OF PASAY CITY, HAVE ASSUMED
JURISDICTION OVER THE SUBJECT MATTER SOUGHT TO BE INVESTIGATED BY THE
JOINT COMMITTEE, TO THE EXCLUSION OF ANY BODY, INCLUDING THE JOINT
COMMITTEE.
38

In G.R. No. 199085, petitioner Abalos raises the following issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING THE JOINT DOJ-COMELEC FACT-
FINDING TEAM AND PRELIMINARY INVESTIGATON COMMITTEE VIOLATE
PETITIONERS CONSTITUTIONAL RIGHT TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE JOINT DOJ-COMELEC FACT-
FINDING TEAM AND PRELIMINARY INVESTIGATION COMMITTEE VIOLATE
PETITIONERS CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE PRINCIPLE OF SEPARATION OF POWERS
BY CREATING THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE HAVE THE POWER AND LEGAL AUTHORITY TO
CONDUCT A PRELIMINARY INVESTIGATION OF THE SAME ELECTORAL SABOTAGE
CASES WHICH THE COMELEC HAD ALREADY TAKEN COGNIZANCE OF?
39

In G.R. No. 199118, petitioner GMA anchors her petition on the following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH THE DOJ, OSTENSIBLY ACTING
"JOINTLY" WITH THE COMELEC, HAS ACTED BEYOND THE LIMITS OF THE
CONSTITUTION, IN THAT IT HAS COMPROMISED THE INDEPENDENCE OF THE
COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED ITS CONSTITUTIONAL MANDATE
"TO INVESTIGATE AND, WHERE APPROPRIATE, PROSECUTE CASES OF VIOLATIONS
OF ELECTION LAWS, INCLUDING ACTS OR OMISSIONS CONSTITUTING ELECTION
FRAUDS, OFFENSES, AND MALPRACTICES" (ARTICLE IX-C, SECTION 26, 1987
CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES) IN FAVOR OF THE
EXECUTIVE DEPARTMENT, ACTING THROUGH RESPONDENT JUSTICE SECRETARY
DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011 AND THE JOINT COMMITTEE RULES
HAVE NOT BEEN PUBLISHED PURSUANT TO TAADA V. TUVERA, G.R. No. L-63915
(29 DECEMBER 1986). AFTER ALL, AS THE HONORABLE COURT LIKEWISE
DECLARED IN REPUBLIC V. PILIPINAS SHELL PETROLEUM CORPORATION, G.R. No.
173918 (08 APRIL 2008), (SIC)
40

We deferred the resolution of petitioners Motion for the Issuance of a TRO and, instead, required
the respondents to comment on the petitions.
41

We likewise scheduled the consolidated cases for oral argument for which the parties were directed
to limit their respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and Constituting a Joint DOJ-COMELEC
Preliminary Investigation Committee and Fact-Finding Team on the 2004 and 2007 National
Elections Electoral Fraud and Manipulation Cases" is constitutional in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987 Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a constitutional body
II. Whether or not the COMELEC has jurisdiction under the law to conduct preliminary investigation
jointly with the DOJ.
A. Whether or not due process was observed by the Joint DOJ-COMELEC Fact-Finding Team and
Preliminary Investigation Committee, and the COMELEC in the conduct of the preliminary
investigation and approval of the Joint Panels Resolution.
42

The Court, thereafter, required the parties to submit their respective Memoranda.
43

The Courts Ruling
Procedural Issues
Respondents claim that Mike Arroyos petition is moot and that of GMA is moot and academic. They
explain that the Mike Arroyo petition presents no actual controversy that necessitates the exercise
by the Court of its power of judicial review, considering that he was not among those indicted for
electoral sabotage in the 2007 national elections as the Comelec dismissed the case against him for
insufficiency of evidence.
44
Anent the 2004 national elections, the Fact-Finding Team is yet to
complete its investigation so Mike Arroyos apprehensions are merely speculative and
anticipatory.
45
As to the GMA petition, respondents aver that any judgment of the Court will have no
practical legal effect because an Information has already been filed against her in Branch 112, RTC
of Pasay City.
46
With the filing of the Information, the RTC has already acquired jurisdiction over the
case, including all issues relating to the constitutionality or legality of her preliminary
investigation.
47
Respondents also claim that the issues relating to the constitutionality and validity of
the conduct of the preliminary investigation of GMA are best left to the trial court, considering that it
involves questions of fact.
48
Respondents add that considering that the RTC has concurrent
jurisdiction to determine a constitutional issue, it will be practical for the Court to allow the RTC to
determine the constitutional issues in this case.
49

We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of adjudication, there must be an actual
case or controversy, that is, one which involves a conflict of legal rights, an assertion of opposite
legal claims susceptible of judicial resolution.
50
The case must not be moot or academic or based on
extra-legal or other similar considerations not cognizable by a court of justice.
51

A case becomes moot and academic when it ceases to present a justiciable controversy so that a
declaration on the issue would be of no practical use or value.
52
However, a case should not be
dismissed simply because one of the issues raised therein had become moot and academic by the
onset of a supervening event, whether intended or incidental, if there are other causes which need to
be resolved after trial.
53

Here, the consolidated cases are not rendered moot and academic by the promulgation of the Joint
Resolution by the Joint Committee and the approval thereof by the Comelec. It must be recalled that
the main issues in the three petitions before us are the constitutionality and legality of the creation of
the Joint Committee and the Fact-Finding Team as well as the proceedings undertaken pursuant
thereto. The assailed Joint Order specifically provides that the Joint Committee was created for
purposes of investigating the alleged massive electoral fraud during the 2004 and 2007 national
elections. However, in the Fact-Finding Teams Initial Report, the team specifically agreed that the
report would focus on the irregularities during the 2007 elections. Also, in its November 18, 2011
Resolution, the Comelec, while directing the filing of information against petitioners Abalos and
GMA, ordered that further investigations be conducted against the other respondents therein.
Apparently, the Fact-Finding Teams and Joint
Committees respective mandates have not been fulfilled and they are, therefore, bound to continue
discharging their duties set forth in the assailed Joint Order. Moreover, petitioners question the
validity of the proceedings undertaken by the Fact-Finding Team and the Joint Committee leading to
the filing of information, on constitutional grounds. We are not, therefore, barred from deciding on the
petitions simply by the occurrence of the supervening events of filing an information and dismissal of
the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the issue of jurisdiction to conduct
preliminary investigation and at the same time with the propriety of the conduct of preliminary
investigation. In Cojuangco, Jr. v. Presidential Commission on Good Government (PCGG),
54
the
Court resolved two issues, namely: (1) whether or not the PCGG has the power to conduct a
preliminary investigation of the anti-graft and corruption cases filed by the Solicitor General against
Eduardo Conjuangco, Jr. and other respondents for the alleged misuse of coconut levy funds; and
(2) on the assumption that it has jurisdiction to conduct such a preliminary investigation, whether or
not its conduct constitutes a violation of petitioners right to due process and equal protection of the
law.
55
The Court decided these issues notwithstanding the fact that Informations had already been
filed with the trial court.
In Allado v. Diokno,
56
in a petition for certiorari assailing the propriety of the issuance of a warrant of
arrest, the Court could not ignore the undue haste in the filing of the information and the inordinate
interest of the government in filing the same. Thus, this Court took time to determine whether or not
there was, indeed, probable cause to warrant the filing of information. This, notwithstanding the fact
that information had been filed and a warrant of arrest had been issued. Petitioners therein came
directly to this Court and sought relief to rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of violation of the principle of hierarchy of
courts. This principle requires that recourse must first be made to the lower-ranked court exercising
concurrent jurisdiction with a higher court.
57
The Supreme Court has original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this
jurisdiction is shared with the Court of Appeals and the RTC, a direct invocation of this Courts
jurisdiction is allowed when there are special and important reasons therefor, clearly and especially
set out in the petition, as in the present case.
58
In the consolidated petitions, petitioners invoke
exemption from the observance of the rule on hierarchy of courts in keeping with the Courts duty to
determine whether or not the other branches of government have kept themselves within the limits of
the Constitution and the laws, and that they have not abused the discretion given to them.
59

It is noteworthy that the consolidated petitions assail the constitutionality of issuances and
resolutions of the DOJ and the Comelec. The general rule is that this Court shall exercise only
appellate jurisdiction over cases involving the constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in circumstances where the Court believes that
resolving the issue of constitutionality of a law or regulation at the first instance is of paramount
importance and immediately affects the social, economic, and moral well-being of the people.
60

This case falls within the exception. An expeditious resolution of the issues raised in the petitions is
necessary. Besides, the Court has entertained a direct resort to the Court without the requisite
motion for reconsideration filed below or without exhaustion of administrative remedies where there
is an urgent necessity for the resolution of the question and any further delay would prejudice the
interests of the government or of the petitioners and when there is an alleged violation of due
process, as in the present case.
61
We apply the same relaxation of the Rules in the present case
and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates the powers and functions of the
Comelec. Paragraph (6) thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987 Constitution, because the above-quoted
provision was not in the 1935 and 1973 Constitutions.
62

The grant to the Comelec of the power to investigate and prosecute election offenses as an adjunct
to the enforcement and administration of all election laws is intended to enable the Comelec to
effectively insure to the people the free, orderly, and honest conduct of elections. The failure of the
Comelec to exercise this power could result in the frustration of the true will of the people and make
a mere idle ceremony of the sacred right and duty of every qualified citizen to vote.
63

The constitutional grant of prosecutorial power in the Comelec was reflected in Section 265 of Batas
Pambansa Blg. 881, otherwise known as the Omnibus Election Code, to wit:
Section 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other prosecuting
arms of the government: Provided, however, That in the event that the Commission fails to act on
any complaint within four months from his filing, the complainant may file the complaint with the
office of the fiscal [public prosecutor], or with the Ministry Department of Justice for proper
investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct preliminary investigation is vested
exclusively with the Comelec. The latter, however, was given by the same provision of law the
authority to avail itself of the assistance of other prosecuting arms of the government.
64
Thus, under
Section 2,
65
Rule 34 of the Comelec Rules of Procedure, provincial and city prosecutors and their
assistants are given continuing authority as deputies to conduct preliminary investigation of
complaints involving election offenses under election laws and to prosecute the same. The
complaints may be filed directly with them or may be indorsed to them by the petitioner or its duly
authorized representatives.
66

Thus, under the Omnibus Election Code, while the exclusive jurisdiction to conduct preliminary
investigation had been lodged with the Comelec, the prosecutors had been conducting preliminary
investigations pursuant to the continuing delegated authority given by the Comelec. The reason for
this delegation of authority has been explained in Commission on Elections v. Espaol:
67

The deputation of the Provincial and City Prosecutors is necessitated by the need for prompt
investigation and dispensation of election cases as an indispensable part of the task of securing fine,
orderly, honest, peaceful and credible elections. Enfeebled by lack of funds and the magnitude of its
workload, the petitioner does not have a sufficient number of legal officers to conduct such
investigation and to prosecute such cases.
68

Moreover, as we acknowledged in People v. Basilla,
69
the prompt and fair investigation and
prosecution of election offenses committed before or in the course of nationwide elections would
simply not be possible without the assistance of provincial and city fiscals prosecutors and their
assistants and staff members, and of the state prosecutors of the DOJ.
70

Section 265 of the Omnibus Election Code was amended by Section 43 of R.A. No. 9369,
71
which
reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is hereby amended to read as follows:
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
power, concurrent with the other prosecuting arms of the government, to conduct preliminary
investigation of all election offenses punishable under this Code, and to prosecute the same.
72

As clearly set forth above, instead of a mere delegated authority, the other prosecuting arms of the
government, such as the DOJ, now exercise concurrent jurisdiction with the Comelec to conduct
preliminary investigation of all election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the Comelec and the DOJ to perform any act
necessary to ensure the prompt and fair investigation and prosecution of election offenses. Pursuant
to the above constitutional and statutory provisions, and as will be explained further below, we find
no impediment for the Comelec and the DOJ to create the Joint Committee and Fact-Finding Team
for the purpose of conducting a thorough investigation of the alleged massive electoral fraud and the
manipulation of election results in the 2004 and 2007 national elections relating in particular to the
presidential and senatorial elections.
73

Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee and Fact-Finding Team is in violation of the
equal protection clause of the Constitution because its sole purpose is the investigation and
prosecution of certain persons and incidents. They argue that there is no substantial distinction
between the allegations of massive electoral fraud in 2004 and 2007, on the one hand, and previous
and subsequent national elections, on the other hand; and no substantial distinction between
petitioners and the other persons or public officials who might have been involved in previous
election offenses. They insist that the Joint Panel was created to target only the Arroyo
Administration as well as public officials linked to the Arroyo Administration. To bolster their claim,
petitioners explain that Joint Order No. 001-2011 is similar to Executive Order No. 1 (creating the
Philippine Truth Commission) which this Court had already nullified for being
violative of the equal protection clause.
Respondents, however, refute the above contentions and argue that the wide array of the possible
election offenses and broad spectrum of individuals who may have committed them, if any,
immediately negate the assertion that the assailed orders are aimed only at the officials of the
Arroyo Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article III of the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor
shall any person be denied the equal protection of the laws.
74

The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of
2010:
75

One of the basic principles on which this government was founded is that of the equality of right
which is embodied in Section 1, Article III of the 1987 Constitution. The equal protection of the laws
is embraced in the concept of due process, as every unfair discrimination offends the requirements
of justice and fair play. It has been embodied in a separate clause, however, to provide for a more
specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness
in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the
equal protection clause.
According to a long line of decisions, equal protection simply requires that all persons or things
similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The
purpose of the equal protection clause is to secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned by the express terms of a statute or by
its improper execution through the state's duly-constituted authorities. In other words, the concept of
equal justice under the law requires the state to govern impartially, and it may not draw distinctions
between individuals solely on differences that are irrelevant to a legitimate governmental objective.
76

Unlike the matter addressed by the Courts ruling in Biraogo v. Philippine Truth Commission of 2010,
Joint Order No. 001-2011 cannot be nullified on the ground that it singles out the officials of the
Arroyo Administration and, therefore, it infringes the equal protection clause. The Philippine Truth
Commission of 2010 was expressly created for the purpose of investigating alleged graft and
corruption during the Arroyo Administration since Executive Order No. 1
77
specifically referred to the
"previous administration"; while the Joint Committee was created for the purpose of conducting
preliminary investigation of election offenses during the 2004 and 2007 elections. While GMA and
Mike Arroyo were among those subjected to preliminary investigation, not all respondents therein
were linked to GMA as there were public officers who were investigated upon in connection with
their acts in the performance of their official duties. Private individuals were also subjected to the
investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate
discrimination and oppression based on inequality. Recognizing the existence of real differences
among men, it does not demand absolute equality. It merely requires that all persons under like
circumstances and conditions shall be treated alike both as to privileges conferred and liabilities
enforced.
78

We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by
the Constitution and by law and thus may, for every particular investigation, whether commenced by
complaint or on its own initiative, decide how best to pursue each investigation. Since the Office of
the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations
cannot by itself be considered a violation of any of the parties rights to the equal protection of the
laws.
79
This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all laws
and regulations relative to the conduct of an election, plebiscite, initiative, referendum and
recall,
80
and tasked to ensure free, orderly, honest, peaceful, and credible elections,
81
the Comelec
has the authority to determine how best to perform such constitutional mandate. Pursuant to this
authority, the Comelec issues various resolutions prior to every local or national elections setting
forth the guidelines to be observed in the conduct of the elections. This shows that every election is
distinct and requires different guidelines in order to ensure that the rules are updated to respond to
existing circumstances.
Moreover, as has been practiced in the past, complaints for violations of election laws may be filed
either with the Comelec or with the DOJ. The Comelec may even initiate, motu proprio, complaints
for election offenses.
82

Pursuant to law and the Comelecs own Rules, investigations may be conducted either by the
Comelec itself through its law department or through the prosecutors of the DOJ. These varying
procedures and treatment do not, however, mean that respondents are not treated alike. Thus,
petitioners insistence of infringement of their constitutional right to equal protection of the law is
misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the required cold neutrality of an impartial
judge because it is all at once the evidence-gatherer, prosecutor and judge. They explain that since
the Fact-Finding Team has found probable cause to subject them to preliminary investigation, it is
impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners likewise express
doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De
Lima and Chairman Brillantes had repeatedly expressed prejudgment against petitioners through
their statements captured by the media.
For their part, respondents contend that petitioners failed to present proof that the President of the
Philippines, Secretary of Justice, and Chairman of the Comelec actually made the statements
allegedly prejudging their case and in the context in which they interpreted them. They likewise
contend that assuming that said statements were made, there was no showing that Secretary De
Lima had tried to intervene in the investigation to influence its outcome nor was it proven that the
Joint Committee itself had prejudged the case. Lastly, they point out that Joint Order No. 001-2011
created two bodies, the Fact-Finding Team and the Joint Committee, with their respective mandates.
Hence, they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the
requirements of both substantive and procedural due process.
83
Preliminary investigation is
considered as a judicial proceeding wherein the prosecutor or investigating officer, by the nature of
his functions, acts as a quasi-judicial officer.
84
The authority of a prosecutor or investigating officer
duly empowered to preside over or to conduct a preliminary investigation is no less than that of a
municipal judge or even an RTC Judge.
85
Thus, as emphasized by the Court in Ladlad v. Velasco:
86

x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving
the impression that their noble office is being used or prostituted, wittingly or unwittingly, for political
ends, or other purposes alien to, or subversive of, the basic and fundamental objective of serving the
interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or
poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure
may public's perception of the impartiality of the prosecutor be enhanced.
87

In this case, as correctly pointed out by respondents, there was no showing that the statements
claimed to have prejudged the case against petitioners were made by Secretary De Lima and
Chairman Brillantes or were in the prejudicial context in which petitioners claimed the statements
were made. A reading of the statements allegedly made by them reveals that they were just
responding to hypothetical questions in the event that probable cause would eventually be found by
the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to
conduct the requisite preliminary investigation against petitioners, made biased statements that
would convey to the public that the members were favoring a particular party. Neither did the
petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the
Comelec intervened in the conduct of the preliminary investigation or exerted undue pressure on
their subordinates to tailor their decision with their public declarations and adhere to a pre-
determined result.
88
Moreover, insofar as the Comelec is concerned, it must be emphasized that the
constitutional body is collegial. The act of the head of a collegial body cannot be considered as that
of the entire body itself.
89
In equating the alleged bias of the above-named officials with that of the
Joint Committee, there would be no arm of the government credible enough to conduct a preliminary
investigation.
90

It must also be emphasized that Joint Order No. 001-2011 created two bodies, namely: (1) the Fact-
Finding Team tasked to gather real, documentary and testimonial evidence which can be utilized in
the preliminary investigation to be conducted by the Joint Committee; and (2) the Joint Committee
mandated to conduct preliminary investigation. It is, therefore, inaccurate to say that there is only
one body which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office as shown by its composition, the creation
of its own Rules of Procedure, and the source of funding for its operation. It is their position that the
power of the DOJ to investigate the commission of crimes and the Comelecs constitutional mandate
to investigate and prosecute violations of election laws do not include the power to create a new
public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the
Comelec encroached upon the power of the Legislature to create public office.
Respondents dispute this and contend that the Joint Committee and Fact-Finding Team are not new
public offices, but merely collaborations between two existing government agencies sharing
concurrent jurisdiction. This is shown by the fact that the members of the Joint Panel are existing
officers of the DOJ and the Comelec who exercise duties and functions that are already vested in
them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the power to investigate, and where appropriate,
prosecute cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful
and credible elections. On the other hand, the DOJ is mandated to administer the criminal justice
system in accordance with the accepted processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the correctional system.
91
It is specifically
empowered to "investigate the commission of crimes, prosecute offenders and administer the
probation and correction system."
92
Also, the provincial or city prosecutors and their assistants, as
well as the national and regional state prosecutors, are specifically named as the officers authorized
to conduct preliminary investigation.
93
Recently, the Comelec, through its duly authorized legal
offices, is given the power, concurrent with the other prosecuting arms of the government such as
the DOJ, to conduct preliminary investigation of all election offenses.
94

Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order
which give the DOJ and the Comelec the power to conduct preliminary investigation. No new power
is given to them by virtue of the assailed order. As to the members of the Joint Committee and Fact-
Finding Team, they perform such functions that they already perform by virtue of their current
positions as prosecutors of the DOJ and legal officers of the Comelec. Thus, in no way can we
consider the Joint Committee as a new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the Comelec has effectively abdicated its
constitutional mandate to investigate and, where appropriate, to prosecute cases of violation of
election laws including acts or omissions constituting election frauds, offenses, and malpractices in
favor of the Executive Department acting through the DOJ Secretary. Under the set- up, the
Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a
DOJ official. Thus, the Comelec has willingly surrendered its independence to the DOJ and has
acceded to share its exercise of judgment and discretion with the Executive Branch.
We do not agree.
Section 1,
95
Article IX-A of the 1987 Constitution expressly describes all the Constitutional
Commissions as independent. Although essentially executive in nature, they are not under the
control of the President of the Philippines in the discharge of their respective functions.
96
The
Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest,
peaceful, and credible elections and to serve as the guardian of the peoples sacred right of suffrage
the citizenrys vital weapon in effecting a peaceful change of government and in achieving and
promoting political stability.
97

Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the
exclusive authority to investigate and prosecute election offenses. In the discharge of this exclusive
power, the Comelec was given the right to avail and, in fact, availed of the assistance of other
prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city prosecutors were authorized to receive the
complaint for election offense and delegate the conduct of investigation to any of their assistants.
The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint
or to file the information. This recommendation is subject to the approval of the state, provincial or
city prosecutor, who himself may file the information with the proper court if he finds sufficient cause
to do so, subject, however, to the accuseds right to appeal to the Comelec.
98

Moreover, during the past national and local elections, the Comelec issued Resolutions
99
requesting
the Secretary of Justice to assign prosecutors as members of Special Task Forces to assist the
Comelec in the investigation and prosecution of election offenses. These Special Task Forces were
created because of the need for additional lawyers to handle the investigation and prosecution of
election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct
preliminary investigation. Otherwise, the prompt resolution of alleged election offenses will not be
attained. This delegation of power, otherwise known as deputation, has long been recognized and,
in fact, been utilized as an effective means of disposing of various election offense cases.
Apparently, as mere deputies, the prosecutors played a vital role in the conduct of preliminary
investigation, in the resolution of complaints filed before them, and in the filing of the informations
with the proper court.
As pointed out by the Court in Barangay Association for National Advancement and Transparency
(BANAT) Party-List v. Commission on Elections,
100
the grant of exclusive power to investigate and
prosecute cases of election offenses to the Comelec was not by virtue of the Constitution but by the
Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ
now conducts preliminary investigation of election offenses concurrently with the Comelec and no
longer as mere deputies. If the prosecutors had been allowed to conduct preliminary investigation
and file the necessary information by virtue only of a delegated authority, they now have better
grounds to perform such function by virtue of the statutory grant of authority. If deputation was
justified because of lack of funds and legal officers to ensure prompt and fair investigation and
prosecution of election offenses, the same justification should be cited to justify the grant to the other
prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee.
While the composition of the Joint Committee and Fact-Finding Team is dominated by DOJ officials,
it does not necessarily follow that the Comelec is inferior. Under the Joint Order, resolutions of the
Joint Committee finding probable cause for election offenses shall still be approved by the Comelec
in accordance with the Comelec Rules of Procedure. This shows that the Comelec, though it acts
jointly with the DOJ, remains in control of the proceedings. In no way can we say that the Comelec
has thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the authority to investigate
and prosecute election offenses is to give the Comelec all the necessary and incidental powers for it
to achieve the objective of holding free, orderly, honest, peaceful, and credible elections.
101
The
Comelec should be allowed considerable latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was created.
102
We may not agree fully with its
choice of means, but unless these are clearly illegal or constitute gross abuse of discretion, this
Court should not interfere.
103
Thus, Comelec Resolution No. 9266, approving the creation of the Joint
Committee and Fact-Finding Team, should be viewed not as an abdication of the constitutional
bodys independence but as a means to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes,
prosecute offenders, and administer the correctional system, the DOJ is likewise not barred from
acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of
concurrent jurisdiction means equal jurisdiction to deal with the same subject matter.
104
Contrary to
the contention of the petitioners, there is no prohibition on simultaneous exercise of power between
two coordinate bodies. What is prohibited is the situation where one files a complaint against a
respondent initially with one office (such as the Comelec) for preliminary investigation which was
immediately acted upon by said office and the re-filing of substantially the same complaint with
another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office
over the cases filed will not be allowed. Indeed, it is a settled rule that the body or agency that first
takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the others.
105
As
cogently held by the Court in Department of Justice v. Hon. Liwag:
106

To allow the same complaint to be filed successively before two or more investigative bodies would
promote multiplicity of proceedings. It would also cause undue difficulties to the respondent who
would have to appear and defend his position before every agency or body where the same
complaint was filed. This would lead hapless litigants at a loss as to where to appear and plead their
cause or defense.
There is yet another undesirable consequence. There is the distinct possibility that the two bodies
exercising jurisdiction at the same time would come up with conflicting resolutions regarding the guilt
of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public funds, and the
use of valuable and limited resources of Government, in a duplication of proceedings already started
with the Ombudsman.
107

None of these problems would likely arise in the present case. The Comelec and the DOJ
themselves agreed that they would exercise their concurrent jurisdiction jointly. Although the
preliminary investigation was conducted on the basis of two complaints the initial report of the
Fact-Finding Team and the complaint of Senator Pimentel both complaints were filed with the Joint
Committee. Consequently, the complaints were filed with and the preliminary investigation was
conducted by only one investigative body. Thus, we find no reason to disallow the exercise of
concurrent jurisdiction jointly by those given such authority. This is especially true in this case given
the magnitude of the crimes allegedly committed by petitioners. The joint preliminary investigation
also serves to maximize the resources and manpower of both the Comelec and the DOJ for the
prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners insist that the investigation conducted by the
Comelec involving Radam and Martirizar bars the creation of the Joint Committee for purposes of
conducting another preliminary investigation. In short, they claim that the exercise by the Comelec of
its jurisdiction to investigate excludes other bodies such as the DOJ and the Joint Committee from
taking cognizance of the case. Petitioners add that the investigation should have been conducted
also by the Comelec as the 2007 cases of Radam and Martirizar include several John Does and
Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation against Radam, Martirizar and other
unidentified persons, it only pertains to election offenses allegedly committed in North and South
Cotabato. On the other hand, the preliminary investigation conducted by the Joint Committee
(involving GMA) pertains to election offenses supposedly committed in Maguindanao. More
importantly, considering the broad power of the Comelec to choose the means of fulfilling its duty of
ensuring the prompt investigation and prosecution of election offenses as discussed earlier, there is
nothing wrong if the Comelec chooses to work jointly with the DOJ in the conduct of said
investigation. To reiterate, in no way can we consider this as an act abdicating the independence of
the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is governed by the Rules of Court, while the
Comelec is governed by the 1993 Comelec Rules of Procedure. There is, therefore, no need to
promulgate new Rules as may be complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-2011 only enables the Comelec and the
DOJ to exercise powers which are already vested in them by the Constitution and other existing
laws, it need not be published for it to be valid and effective. A close examination of the Joint
Committees Rules of Procedure, however, would show that its provisions affect the public.
Specifically, the following provisions of the Rules either restrict the rights of or provide remedies to
the affected parties, to wit: (1) Section 1 provides that "the Joint Committee will no longer entertain
complaints from the public as soon as the Fact-Finding Team submits its final report, except for such
complaints involving offenses mentioned in the Fact-Finding Teams Final Report"; (2) Section 2
states that "the Joint Committee shall not entertain a Motion to Dismiss"; and (3) Section 5 provides
that a Motion for Reconsideration may be availed of by the aggrieved parties against the Joint
Committees Resolution. Consequently, publication of the Rules is necessary.
The publication requirement covers not only statutes but administrative regulations and issuances,
as clearly outlined in Taada v. Tuvera:
108
effectivity, which shall begin fifteen days after publication
unless a different effectivity date is fixed by the legislature. Covered by this rule are presidential
decrees and executive orders promulgated by the President in the exercise of legislative powers
whenever the same are validly delegated by the legislature or, at present, directly conferred by the
Constitution. Administrative rules and regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid delegation. Interpretative regulations and
those merely internal in nature, that is, regulating only the personnel of the administrative agency
and not the public, need not be published. Neither is publication required of the so called letters of
instructions issued by administrative superiors concerning the rules or guidelines to be followed by
their subordinates in the performance of their duties.
109

As opposed to Honasan II v. The Panel of Investigating Prosecutors of the Department of
Justice,
110
where the Court held that OMB-DOJ Joint Circular No. 95-001 is only an internal
arrangement between the DOJ and the Office of the Ombudsman outlining the authority and
responsibilities among prosecutors of both offices in the conduct of preliminary investigation, the
assailed Joint Committees Rules of Procedure regulate not only the prosecutors of the DOJ and the
Comelec but also the conduct and rights of persons, or the public in general. The publication
requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due process to give as wide publicity as
possible so that all persons having an interest in the proceedings may be notified thereof.
111
The
requirement of publication is intended to satisfy the basic requirements of due process. It is
imperative for it will be the height of injustice to punish or otherwise burden a citizen for the
transgressions of a law or rule of which he had no notice whatsoever.
112

Nevertheless, even if the Joint Committees Rules of Procedure is ineffective for lack of publication,
the proceedings undertaken by the Joint Committee are not rendered null and void for that reason,
because the preliminary investigation was conducted by the Joint Committee pursuant to the
procedures laid down in Rule 112 of the Rules on Criminal Procedure and the 1993 Comelec Rules
of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,
113
GMA outlines the incidents that took place after the filing of the
instant petition, specifically the issuance by the Joint Committee of the Joint Resolution, the approval
with modification of such resolution by the Comelec and the filing of information and the issuance of
a warrant of arrest by the RTC. With these supervening events, GMA further assails the validity of
the proceedings that took place based on the following additional grounds: (1) the undue and
unbelievable haste attending the Joint Committees conduct of the preliminary investigation, its
resolution of the case, and its referral to and approval by the Comelec, taken in conjunction with the
statements from the Office of the President, demonstrate a deliberate and reprehensible pattern of
abuse of inalienable rights and a blatant disregard of the envisioned integrity and independence of
the Comelec; (2) as it stands, the creation of the Joint Committee was for the singular purpose of
railroading the proceedings in the prosecution of the petitioner and in flagrant violation of her right to
due process and equal protection of the laws; (3) the proceedings of the Joint Committee cannot be
considered impartial and fair, considering that respondents have acted as law enforcers, who
conducted the criminal investigation, gathered evidence and thereafter ordered the filing of
complaints, and at the same time authorized preliminary investigation based on the complaints they
caused to be filed; (4) the Comelec became an instrument of oppression when it hastily approved
the resolution of the Joint Committee even if two of its members were in no position to cast their
votes as they admitted to not having yet read the voluminous records of the cases; and (5) flagrant
and repeated violations of her right to due process at every stage of the proceedings demonstrate a
deliberate attempt to single out petitioner through the creation of the Joint Committee.
114

In their Supplement to the Consolidated Comment,
115
respondents accuse petitioners of violating the
rule against forum shopping. They contend that in filing the Supplemental Petition before the Court,
the Urgent Omnibus Motion Ad Cautelam with the RTC, and the Motion to Vacate Ad Cautelam with
the Comelec, GMA raises the common issue of whether or not the proceedings before the Joint
Committee and the Comelec are null and void for violating the Constitution. Respondents likewise
claim that the issues raised in the supplemental petition are factual which is beyond the power of this
Court to decide.
We cannot dismiss the cases before us on the ground of forum shopping.
Forum shopping is the act of a party against whom an adverse judgment has been rendered in one
forum, of seeking another and possibly favorable opinion in another forum other than by appeal or
the special civil action of certiorari.
116
There can also be forum shopping when a party institutes two
or more suits in different courts, either simultaneously or successively, in order to ask the courts to
rule on the same and related causes and/or to grant the same or substantially the same reliefs on
the supposition that one or the other court would make a favorable disposition or increase a partys
chances of obtaining a favorable decision or action.
117

Indeed, petitioner GMA filed a Supplemental Petition before the Court, an Urgent Omnibus Motion
Ad Cautelam before the RTC, and a Motion to Vacate Ad Cautelam before the Comelec,
emphasizing the unbelievable haste committed by the Joint Committee and the Comelec in
disposing of the cases before them. However, a plain reading of the allegations in GMAs motion
before the RTC would show that GMA raised the issue of undue haste in issuing the Joint Resolution
only in support of her prayer for the trial court to hold in abeyance the issuance of the warrant of
arrest, considering that her motion for reconsideration of the denial of her motion to be furnished
copies of documents was not yet acted upon by the Joint Committee. If at all the constitutional issue
of violation of due process was raised, it was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she sought the judicial determination of
probable cause which is not an issue in the petitions before us. GMAs ultimate prayer is actually for
the court to defer the issuance of the warrant of arrest. Clearly, the reliefs sought in the RTC are
different from the reliefs sought in this case. Thus, there is no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with the Comelec, while the issues raised
therein are substantially similar to the issues in the supplemental petition which, therefore, strictly
speaking, warrants outright dismissal on the ground of forum shopping, we cannot do so in this case
in light of the due process issues raised by GMA.
118
It is worthy to note that the main issues in the
present petitions are the constitutionality of the creation of the Joint Panel and the validity of the
proceedings undertaken pursuant thereto for alleged violation of the constitutional right to due
process. In questioning the propriety of the conduct of the preliminary investigation in her
Supplemental Petition, GMA only raises her continuing objection to the exercise of jurisdiction of the
Joint Committee and the Comelec. There is, therefore, no impediment for the Court to rule on the
validity of the conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,
119
the Court explained the nature of preliminary investigation, to
wit:
A preliminary investigation is held before an accused is placed on trial to secure the innocent against
hasty, malicious, and oppressive prosecution; to protect him from an open and public accusation of a
crime, as well as from the trouble, expenses, and anxiety of a public trial. It is also intended to
protect the state from having to conduct useless and expensive trials. While the right is statutory
rather than constitutional, it is a component of due process in administering criminal justice. The right
to have a preliminary investigation conducted before being bound for trial and before being exposed
to the risk of incarceration and penalty is not a mere formal or technical right; it is a substantive right.
To deny the accused's claim to a preliminary investigation is to deprive him of the full measure of his
right to due process.
120

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an
individual the difference between months if not years of agonizing trial and possibly jail term, on the
one hand, and peace of mind and liberty, on the other hand. Thus, we have characterized the right
to a preliminary investigation as not a mere formal or technical right but a substantive one, forming
part of due process in criminal justice.
121

In a preliminary investigation, the Rules of Court guarantee the petitioners basic due process rights
such as the right to be furnished a copy of the complaint, the affidavits, and other supporting
documents, and the right to submit counter-affidavits, and other supporting documents in her
defense.
122
Admittedly, GMA received the notice requiring her to submit her counter-affidavit. Yet,
she did not comply, allegedly because she could not prepare her counter-affidavit. She claimed that
she was not furnished by Senator Pimentel pertinent documents that she needed to adequately
prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam
123
to require Senator Pimentel to furnish her with documents
referred to in his complaint-affidavit and for production of election documents as basis for the charge
of electoral sabotage, GMA prayed that the Joint Committee issue an Order directing the Fact-
Finding Team and Senator Pimentel to furnish her with copies of the following documents:
a. Complaint-affidavit and other relevant documents of Senator Aquilino Pimentel III filed
before the Commission on Elections against Attys. Lilia Suan-Radam and Yogie Martirizar,
as well as the Informations filed in the Regional Trial Court of Pasay City, Branch 114 in
Criminal Case Nos. R-PSU-11-03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant Pimentel before the National Board of
Canvassers, specifically in NBC Case Nos. 07-162, 07-168, 07-157, 07-159, 07-161 and 07-
163.
c. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Maguindanao."
d. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Lanao del Norte."
e. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Shariff Kabunsuan."
f. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Lanao del Sur."
g. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Sulu."
h. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Basilan."
i. Documents which served as basis in the allegations of "Significant findings specific to the
protested municipalities in the Province of Sultan Kudarat."
124

GMA likewise requested the production of election documents used in the Provinces of South and
North Cotabato and Maguindanao.
125

The Joint Committee, however, denied GMAs motion which carried with it the denial to extend the
filing of her counter-affidavit. Consequently, the cases were submitted for resolution sans GMAs and
the other petitioners counter-affidavits. This, according to GMA, violates her right to due process of
law.
We do not agree.
GMAs insistence of her right to be furnished the above-enumerated documents is based on Section
3 (b), Rule 112 of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence submitted by the complainant which he
may not have been furnished and to copy them at his expense. If the evidence is voluminous, the
complainant may be required to specify those which he intends to present against the respondent,
and these shall be made available for examination or copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall be made available for examination,
copying or photographing at the expense of the requesting party.
126

Section 6 (a), Rule 34 of the Comelec Rules of Procedure also grants the respondent such right of
examination, to wit:
Sec. 6. Conduct of preliminary investigation. (a) If on the basis of the complaint, affidavits and
other supporting evidence, the investigating officer finds no ground to continue with the inquiry, he
shall recommend the dismissal of the complaint and shall follow the procedure prescribed in Sec. 8
(c) of this Rule. Otherwise, he shall issue a subpoena to the respondent, attaching thereto a copy of
the complaint, affidavits and other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting documents. The respondent
shall have the right to examine all other evidence submitted by the complainant.
127

Clearly from the above-quoted provisions, the subpoena issued against respondent therein should
be accompanied by a copy of the complaint and the supporting affidavits and documents. GMA also
has the right to examine documents but such right of examination is limited only to the documents or
evidence submitted by the complainants (Senator Pimentel and the Fact-Finding Team) which she
may not have been furnished and to copy them at her expense.
While it is true that Senator Pimentel referred to certain election documents which served as bases
in the allegations of significant findings specific to the protested municipalities involved, there were
no annexes or attachments to the complaint filed.
128
As stated in the Joint Committees Order dated
November 15, 2011 denying GMAs Omnibus Motion Ad Cautelam, Senator Pimentel was ordered
to furnish petitioners with all the supporting evidence
129
However, Senator Pimentel manifested that
he was adopting all the affidavits attached to the Fact-Finding Teams Initial Report.
130
Therefore,
when GMA was furnished with the documents attached to the Initial Report, she was already granted
the right to examine as guaranteed by the Comelec Rules of Procedure and the Rules on Criminal
Procedure. Those were the only documents submitted by the complainants to the Committee. If
there are other documents that were referred to in Senator Pimentels complaint but were not
submitted to the Joint Committee, the latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later be presented during the trial)
131
as
the evidence submitted before it were considered adequate to find probable cause against
her.
132
Anyway, the failure of the complainant to submit documents supporting his allegations in the
complaint may only weaken his claims and eventually works for the benefit of the respondent as
these merely are allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the preliminary investigation, the
complainants are not obliged to prove their cause beyond reasonable doubt. It would be unfair to
expect them to present the entire evidence needed to secure the conviction of the accused prior to
the filing of information.
133
A preliminary investigation is not the occasion for the full and exhaustive
display of the parties respective evidence but the presentation only of such evidence as may
engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof and should be held for trial.
134
Precisely there is a trial to allow the reception
of evidence for the prosecution in support of the charge.
135

With the denial of GMAs motion to be furnished with and examine the documents referred to in
Senator Pimentels complaint, GMAs motion to extend the filing of her counter-affidavit and
countervailing evidence was consequently denied. Indeed, considering the nature of the crime for
which GMA was subjected to preliminary investigation and the documents attached to the complaint,
it is incumbent upon the Joint Committee to afford her ample time to examine the documents
submitted to the Joint Committee in order that she would be able to prepare her counter-affidavit.
She cannot, however, insist to examine documents not in the possession and custody of the Joint
Committee nor submitted by the complainants. Otherwise, it might cause undue and unnecessary
delay in the disposition of the cases. This undue delay might result in the violation of the right to a
speedy disposition of cases as enshrined in Section 16, Article III of the Constitution which states
that "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-
judicial, or administrative bodies." The constitutional right to speedy disposition of cases is not
limited to the accused in criminal proceedings but extends to all parties in all cases, including civil
and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings.
136
Any
party to a case has the right to demand on all officials tasked with the administration of justice to
expedite its disposition.
137
Society has a particular interest in bringing swift prosecutions, and the
societys representatives are the ones who should protect that interest.
138

Even assuming for the sake of argument that the denial of GMAs motion to be furnished with and
examine the documents referred to in Senator Pimentels complaint carried with it the denial to
extend the filing of her counter-affidavit and other countervailing evidence rendering the preliminary
investigation irregular, such irregularity would not divest the RTC of jurisdiction over the case and
would not nullify the warrant of arrest issued in connection therewith, considering that Informations
had already been filed against petitioners, except Mike Arroyo. This would only compel us to
suspend the proceedings in the RTC and remand the case to the Joint Committee so that GMA
could submit her counter-affidavit and other countervailing evidence if she still opts to. However, to
do so would hold back the progress of the case which is anathema to the accuseds right to speedy
disposition of cases.
It is well settled that the absence or irregularity of preliminary investigation does not affect the courts
jurisdiction over the case. Nor does it impair the validity of the criminal information or render it
defective. Dismissal is not the remedy.
139
Neither is it a ground to quash the information or nullify the
order of arrest issued against the accused or justify the release of the accused from detention.
140
The
proper course of action that should be taken is to hold in abeyance the proceedings upon such
information and to remand the case for the conduct of preliminary investigation.
141

In the landmark cases of Cojuangco, Jr. v. Presidential Commission on Good Government
(PCGG)
142
and Allado v. Diokno,
143
we dismissed the criminal cases and set aside the informations
and warrants of arrest. In Cojuangco, we dismissed the criminal case because the information was
filed by the PCGG which we declared to be unauthorized to conduct the preliminary investigation
and, consequently, file the information as it did not possess the cold neutrality of an impartial judge.
In Allado, we set aside the warrant of arrest issued against petitioners therein and enjoined the trial
court from proceeding further for lack of probable cause. For one, there was serious doubt on the
reported death of the victim in that case since the corpus delicti had not been established nor had
his remains been recovered;and based on the evidence submitted, there was nothing to incriminate
petitioners therein. In this case, we cannot reach the same conclusion because the Information filed
before the RTC of Pasay City was filed by the Comelec en banc which had the authority to file the
information for electoral sabotage and because the presence or absence of probable cause is not an
issue herein. As can be gleaned from their assignment of errors/issues, petitioners did not question
the finding of probable cause in any of their supplemental petitions. It was only in GMAs
memorandum where she belatedly included a discussion on the "insufficiency" of the evidence
supporting the finding of probable cause for the filing of the Information for electoral sabotage
against her.
144
A closer look at her arguments, however, would show that they were included only to
highlight the necessity of examining the election documents GMA requested to see before she could
file her counter-affidavit. At any rate, since GMA failed to submit her counter-affidavit and other
countervailing evidence within the period required by the Joint Committee, we cannot excuse her
from non-compliance.
There might have been overzealousness on the part of the Joint Committee in terminating the
investigation, endorsing the Joint Resolution to the Comelec for approval, and in filing the
information in court. However, speed in the conduct of proceedings by a judicial or quasi-judicial
officer cannot per se be instantly attributed to an injudicious performance of functions.
145
The orderly
administration of justice remains the paramount consideration with particular regard to the peculiar
circumstances of each case.
146
To be sure, petitioners were given the opportunity to present
countervailing evidence. Instead of complying with the Joint Committees directive, several motions
were filed but were denied by the Joint Committee. Consequently, petitioners right to submit
counter-affidavit and countervailing evidence was forfeited. Taking into account the constitutional
right to speedy disposition of cases and following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint Committee finally reached its conclusion
and referred the case to the Comelec. The latter, in turn, performed its task and filed the information
in court. Indeed, petitioners were given the opportunity to be heard. They even actively participated
in the proceedings and in fact filed several motions before the Joint Committee. Consistent with the
constitutional mandate of speedy disposition of cases, unnecessary delays should be avoided.
Finally, we take judicial notice that on February 23, 2012, GMA was already arraigned and entered a
plea of "not guilty" to the charge against her and thereafter filed a Motion for Bail which has been
granted. Considering that the constitutionality of the creation of the Joint Panel is sustained, the
actions of the Joint Committee and Fact-Finding Team are valid and effective. As the information
was filed by the Commission authorized to do so, its validity is sustained. Thus, we consider said
entry of plea and the Petition for Bail waiver on the part of GMA of her right to submit counter-
affidavit and countervailing evidence before the Joint Committee, and recognition of the validity of
the information against her. Her act indicates that she opts to avail of judicial remedies instead of the
executive remedy of going back to the Joint Committee for the submission of the counter-affidavit
and countervailing evidence. Besides, as discussed earlier, the absence or irregularity of preliminary
investigation does not affect the courts jurisdiction over the case nor does it impair the validity of the
criminal information or render it defective.
It must be stressed, however, that this supervening event does not render the cases before the
Court moot and academic as the main issues raised by petitioners are the constitutionality of the
creation of the Joint Committee and the Fact-Finding Team and the validity of the proceedings
undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec have not disposed of the cases of the
other respondents subjects of the preliminary investigation as some of them were subjected to
further investigation. In order to remove the cloud of doubt that pervades that petitioners are being
singled out, it is to the best interest of all the parties concerned that the Joint Committee and the
Comelec terminate the proceedings as to the other respondents therein and not make a piecemeal
disposition of the cases.
A peripheral issue which nonetheless deserves our attention is the question about the credibility of
the Comelec brought about by the alleged professional relationship between Comelec Chairman
Brillantes on one hand and the complainant Senator Pimentel and Fernando Poe, Jr. (FPJ), GMAs
rival in the 2004 elections, on the other hand; and by the other Commissioners
147
reasons for their
partial inhibition. To be sure, Chairman Brillantes relationship with FPJ and Senator Pimentel is not
one of the grounds for the mandatory disqualification of a Commissioner. At its most expansive, it
may be considered a ground for voluntary inhibition which is indeed discretionary as the same was
primarily a matter of conscience and sound discretion on the part of the Commissioner judge based
on his or her rational and logical assessment of the case.
148
Bare allegations of bias and prejudice
are not enough in the absence of clear and convincing evidence to overcome the presumption that a
judge will undertake his noble role to dispense justice according to law and evidence without fear or
favor.
149
It being discretionary and since Commissioner Brillantes was in the best position to
determine whether or not there was a need to inhibit from the case, his decision to participate in the
proceedings, in view of higher interest of justice, equity and public interest, should be respected.
While a party has the right to seek the inhibition or disqualification of a judge (or prosecutor or
Commissioner) who does not appear to be wholly free, disinterested, impartial, and independent in
handling the case, this right must be weighed with his duty to decide cases without fear of
repression.
150

Indeed, in Javier v. Comelec,
151
the Court set aside the Comelecs decision against Javier when it
was disclosed that one of the Commissioners who had decided the case was a law partner of
Javiers opponent and who had refused to excuse himself from hearing the case. Javier, however, is
not applicable in this case. First, the cited case involves the Comelecs exercise of its adjudicatory
function as it was called upon to resolve the propriety of the proclamation of the winner in the May
1984 elections for Batasang Pambansa of Antique. Clearly, the grounds for inhibition/disqualification
were applicable. Second, the case arose at the time where the purity of suffrage has been defiled
and the popular will scorned through the confabulation of those in authority.
152
In other words, the
controversy arose at the time when the public confidence in the Comelec was practically nil because
of its transparent bias in favor of the administration.
153
Lastly, in determining the propriety of the
decision rendered by the Comelec, the Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents therein, Arturo F. Pacificador, and then
Comelec Commissioner Jaime Opinion (Commissioner Opinion) but also the general attitude of the
Comelec toward the party in power at that time. Moreover, the questioned Comelec decision was
rendered only by a division of the Comelec. The Court thus concluded in Javier that Commissioner
Opinions refusal to inhibit himself divested the Comelecs Second Division of the necessary vote for
the questioned decision and rendered the proceedings null and void.
154

On the contrary, the present case involves only the conduct of preliminary investigation and the
questioned resolution is an act of the Comelec En Banc where all the Commissioners participated
and more than a majority (even if Chairman Brillantes is excluded) voted in favor of the assailed
Comelec resolution. Unlike in 1986, public confidence in the Comelec remains. The Commissioners
have already taken their positions in light of the claim of "bias and partiality" and the causes of their
partial inhibition. Their positions should be respected confident that in doing so, they had the end in
view of ensuring that the credibility of the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to establish any constitutional or legal
impediment to the creation of the Joint DOJ-Comelec Preliminary Investigation Committee and Fact-
Finding Team.
First, while GMA and Mike Arroyo were among those subjected to preliminary investigation, not all
respondents therein were linked to GMA; thus, Joint Order No. 001-2011 does not violate the equal
protection clause of the Constitution.
Second, the due process clause is likewise not infringed upon by the alleged prejudgment of the
case as petitioners failed to prove that the Joint Panel itself showed such bias and partiality against
them. Neither was it shown that the Justice Secretary herself actually intervened in the conduct of
the preliminary investigation. More importantly, considering that the Comelec is a collegial body, the
perceived prejudgment of Chairman Brillantes as head of the Comelec cannot be considered an act
of the body itself.
Third, the assailed Joint Order did not create new offices because the Joint Committee and Fact-
Finding Team perform functions that they already perform by virtue of the Constitution, the statutes,
and the Rules of Court.1wphi 1
Fourth, in acting jointly with the DOJ, the Comelec cannot be considered to have abdicated its
independence in favor of the executive branch of government. Resolution No. 9266 was validly
issued by the Comelec as a means to fulfill its duty of ensuring the prompt investigation and
prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest,
peaceful, and credible elections. The role of the DOJ in the conduct of preliminary investigation of
election offenses has long been recognized by the Comelec because of its lack of funds and legal
officers to conduct investigations and to prosecute such cases on its own. This is especially true
after R.A. No. 9369 vested in the Comelec and the DOJ the concurrent jurisdiction to conduct
preliminary investigation of all election offenses. While we uphold the validity of Comelec Resolution
No. 9266 and Joint Order No. 001-2011, we declare the Joint Committees Rules of Procedure infirm
for failure to comply with the publication requirement. Consequently, Rule 112 of the Rules on
Criminal Procedure and the 1993 Comelec Rules of Procedure govern.
Fifth, petitioners were given the opportunity to be heard. They were furnished a copy of the
complaint, the affidavits, and other supporting documents submitted to the Joint Committee and they
were required to submit their counter-affidavit and countervailing evidence. As to petitioners Mike
Arroyo and Abalos, the pendency of the cases before the Court does not automatically suspend the
proceedings before the Joint Committee nor excuse them from their failure to file the required
counter-affidavits. With the foregoing disquisitions, we find no reason to nullify the proceedings
undertaken by the Joint Committee and the Comelec in the electoral sabotage cases against
petitioners.
WHEREFORE, premises considered, the petitions and supplemental petitions are DISMISSED.
Comelec Resolution No. 9266 dated August 2, 2011, Joint Order No. 001-2011 dated August 15,
2011, and the Fact-Finding Teams Initial Report dated October 20, 2011, are declared VALID.
However, the Rules of Procedure on the Conduct of Preliminary Investigation on the Alleged
Election Fraud in the 2004 and 2007 National Elections is declared INEFFECTIVE for lack of
publication.
In view of the constitutionality of the Joint Panel and the proceedings having been conducted in
accordance with Rule 112 of the Rules on Criminal Procedure and Rule 34 of the Comelec Rules of
Procedure, the conduct of the preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay City, Branch 112, where the criminal cases
for electoral sabotage against petitioners GMA and Abalos are pending, proceed with dispatch.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 171118 September 10, 2012
PARK HOTEL, J's PLAYHOUSE BURGOS CORP., INC., and/or GREGG HARBUTT, General
Manager, ATTY. ROBERTO ENRIQUEZ, President, and BILL PERCY, Petitioners,
vs.
MANOLO SORIANO, LESTER GONZALES, and YOLANDA BADILLA, Respondents.
D E C I S I O N
PERALTA, J .:
Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to
set aside the Decision
1
and the Resolution
2
of the Court of Appeals (CA) in CA-G.R. SP No. 67766.
The antecedents are as follows:
Petitioner Park Hotel
3
is a corporation engaged in the hotel business. Petitioners Gregg
Harbutt
4
(Harbutt) and Bill Percy
5
(Percy) are the General Manager and owner, respectively, of Park
Hotel. Percy, Harbutt and Atty. Roberto Enriquez are also the officers and stockholders of Burgos
Corporation (Burgos),
6
a sister company of Park Hotel.
Respondent Manolo Soriano (Soriano) was hired by Park Hotel in July 1990 as Maintenance
Electrician, and then transferred to Burgos in 1992. Respondent Lester Gonzales (Gonzales) was
employed by Burgos as Doorman, and later promoted as Supervisor. Respondent Yolanda Badilla
(Badilla) was a bartender of J's Playhouse operated by Burgos.
In October of 1997, Soriano, Gonzales and Badilla
7
were dismissed from work for allegedly stealing
company properties. As a result, respondents filed complaints for illegal dismissal, unfair labor
practice, and payment of moral and exemplary damages and attorney's fees, before the Labor
Arbiter (LA). In their complaints, respondents alleged that the real reason for their dismissal was that
they were organizing a union for the company's employees.
On the other hand, petitioners alleged that aside from the charge of theft, Soriano and Gonzales
have violated various company rules and regulations
8
contained in several memoranda issued to
them. After dismissing respondents, Burgos filed a case for qualified theft against Soriano and
Gonzales before the Makati City Prosecutor's Office, but the case was dismissed for insufficiency of
evidence.
In his Affidavit,
9
Soriano claimed that on October 4, 1997, he was barred from entering the company
premises and that the following day, Harbutt shouted at him for having participated in the formation
of a union. He was later dismissed from work. For his part, Gonzales averred that he was coerced to
resign by Percy and Harbutt in the presence of their goons. Badilla
10
claimed that she was also
forced by Percy and Harbutt to sign a resignation letter, but she refused to do so because she was
innocent of the charges against her. She was nevertheless dismissed from service.
The three (3) respondents averred that they never received the memoranda containing their alleged
violation of company rules and they argued that these memoranda were fabricated to give a
semblance of cause to their termination. Soriano and Gonzales further claimed that the complaint
filed against them was only an afterthought as the same was filed after petitioners learned that a
complaint for illegal dismissal was already instituted against them.
On September 27, 1998, the LA rendered a Decision
11
finding that respondents were illegally
dismissed because the alleged violations they were charged with were not reduced in writing and
were not made known to them, thus, denying them due process. The LA found that respondents did
not actually receive the memoranda allegedly issued by petitioners, and that the same were mere
afterthought to conceal the illegal dismissal. The dispositive portion of the Decision reads:
WHEREFORE, premises all considered, respondents (petitioners herein) are hereby ordered, jointly
and severally:
a. To reinstate within ten (10) days herein complainants to their former positions without loss
of seniority rights with full backwages from actual dismissal to actual reinstatement;
b. To declare the respondents (petitioners herein) guilty of unfair labor practice for
terminating complainants due to their union activities, which is union-busting, and to pay a
fine of Ten Thousand Pesos (P 10,000.00) pursuant to Article 288 of the Labor Code, as
amended, payable to the Commission;
c. To pay the amount of One Hundred Fifty Thousand [Pesos] (P 150,000.00) each to
complainants by way of moral and exemplary damages, plus ten percent (10%) attorney's
fees of the total award, chargeable to the respondents (petitioners herein).
SO ORDERED.
12

Unsatisfied with the LA's decision, petitioners appealed to the National Labor Relations Commission
(NLRC). On August 31, 1999, the NLRC, First Division, rendered a Decision
13
remanding the case to
the arbitration branch of origin for further proceedings.
14
On August 3, 2000, the LA rendered a new
Decision, the dispositive portion of which reads as follows:
WHEREFORE, premises all considered, respondents (petitioners herein) are hereby ORDERED,
jointly and severally:
a. to reinstate within ten (10) days herein three (3) complainants to their former positions
without loss of seniority rights with full backwages from actual dismissal to actual
reinstatement; to pay complainant Soriano his unpaid wages for seven (7) days in the
amount of P 1,680.00, his five (5) days incentive leave pay in the amount of P 1,200,00
(P 240x5), unpaid proportionate 13
th
month pay in the amount of P 4,992.00, plus other
benefits;
b. to cease and desist from committing unfair labor practice against the complainant and to
pay a fine of Ten Thousand (P 10,000.00) Pesos pursuant to Art. 288 of the Labor Code,
payable to the Commission; and
c. to pay the amount of P 150,000.00
15
each to the complainants by way of moral and
exemplary damages, plus ten percent (10%) attorney's fees of the total award, chargeable to
the respondents (petitioners herein).
SO ORDERED.
16

Discontented with the LA's decision, petitioners again appealed to the NLRC. On February 1, 2001,
the NLRC affirmed the LA's decision and dismissed the appeal for lack of merit.
17
Petitioners filed a
motion for reconsideration, but it was denied for lack of merit.
18

Undaunted, Park Hotel, Percy, and Harbutt filed a petition for certiorari with the CA ascribing grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC in holding
Park Hotel, Harbutt and Percy jointly and severally liable to respondents.
On January 24, 2005, the CA rendered a Decision
19
dismissing the petition and affirming with
modification the ruling of the NLRC, the dispositive portion of which states:
WHEREFORE, the instant Petition is DISMISSED for lack of merit and the assailed Decision dated 1
February 2001 of the 1
st
Division of the NLRC is hereby AFFIRMED with MODIFICATION in that the
award of damages is reduced to P 100,000.00 in favor of each of the Private Respondents, including
10% of the total amount of wages to be received as attorney's fees.
SO ORDERED.
20

The CA ruled that petitioners failed to observe the mandatory requirements provided by law in the
conduct of terminating respondents, i.e., lack of due process and just cause. The CA also found that
petitioners' primary objective in terminating respondents' employment was to suppress their right to
self-organization.
Petitioners filed a Motion for Reconsideration, but was denied in the Resolution
21
dated January 13,
2006.
Hence, the instant petition assigning the following errors:
I
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND
ACTED WITHOUT AUTHORITY IN FINDING PARK HOTEL, BILL PERCY AND
[GREGORY] HARBUTT, TOGETHER WITH BURGOS CORPORATION AND ITS
PRESIDENT, AS ONE AND THE SAME ENTITY.
II
THE HONORABLE COURT OF APPEALS COMMITTED ERROR WHEN IT OVERLOOKED
MATERIAL CIRCUMSTANCES AND FACTS, WHICH IF TAKEN INTO ACCOUNT, WOULD
ALTER THE RESULTS OF ITS DECISION, PARTICULARLY IN FINDING [THAT] THE SAID
ENTITIES WERE FORMED IN PURSUANCE TO THE COMMISSION OF FRAUD.
III
THE HONORABLE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION AND
ACTED WITHOUT AUTHORITY IN FINDING PARK HOTEL, BILL PERCY AND GREGORY
HARBUTT, TOGETHER WITH BURGOS CORPORATION AND ITS PRESIDENT, GUILTY
OF UNFAIR LABOR PRACTICE.
22

For brevity and clarity, the issues in this case may be re-stated and simplified as follows: (1) whether
the respondents were validly dismissed; and (2) if petitioners are liable, whether Park Hotel, Percy
and Harbutt are jointly and severally liable with Burgos for the dismissal of respondents.
Park Hotel argued that it is not liable on the ground that respondents were not its employees. On the
other hand, Percy and Harbutt argued that the CA committed error in piercing the corporate veil
between them and respondent corporations, thereby making them all solidarily liable to the
respondents.
To begin with, it is significant to note that the LA, the NLRC and the CA were unanimous in their
findings that respondents were dismissed without just cause and due process. They were also in
agreement that unfair labor practice was committed against respondents. We reiterate the rule that
findings of fact of the Court of Appeals, particularly where it is in absolute agreement with that of the
NLRC and the LA, as in this case, are accorded not only respect but even finality and are deemed
binding upon this Court so long as they are supported by substantial evidence.
23
The function of this
Court is limited to the review of the appellate courts alleged errors of law. It is not required to weigh
all over again the factual evidence already considered in the proceedings below.
24
In any event, we
found no compelling reason to disturb the unanimous findings and conclusions of the CA, the NLRC
and the LA with respect to the finding of illegal dismissal.
The requisites for a valid dismissal are: (a) the employee must be afforded due process, i.e., he
must be given an opportunity to be heard and defend himself; and (b) the dismissal must be for a
valid cause as provided in Article 282 of the Labor Code, or for any of the authorized causes under
Articles 283 and 284 of the same Code.
25
In the case before us, both elements are completely
lacking. Respondents were dismissed without any just or authorized cause and without being given
the opportunity to be heard and defend themselves. The law mandates that the burden of proving
the validity of the termination of employment rests with the employer. Failure to discharge this
evidentiary burden would necessarily mean that the dismissal was not justified and, therefore, illegal.
Unsubstantiated suspicions, accusations, and conclusions of employers do not provide for legal
justification for dismissing employees. In case of doubt, such cases should be resolved in favor of
labor, pursuant to the social justice policy of labor laws and the Constitution.
26

Anent the unfair labor practice, Article 248 (a) of the Labor Code
27
considers it an unfair labor
practice when an employer interferes, restrains or coerces employees in the exercise of their right to
self-organization or the right to form an association.
28
In order to show that the employer committed
unfair labor practice under the Labor Code, substantial evidence is required to support the claim.
Substantial evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.
29
In the case at bar, respondents were indeed
unceremoniously dismissed from work by reason of their intent to form and organize a union. As
found by the LA:
The immediate impulse of respondents (petitioners herein), as in the case at bar, was to terminate
the organizers. Respondents (petitioners herein) have to cripple the union at sight, to frustrate
attempts of employees from joining or supporting it, preventing them, at all cost and to frustrate the
employees bid to exercise their right to self-organization. x x x
30

Having settled that respondents were illegally dismissed and were victims of unfair labor practice,
the question that comes to fore is who are liable for the illegal dismissal and unfair labor practice?
A perusal of the records would show that Burgos is the respondents' employer at the time they were
dismissed. Notwithstanding, the CA held that despite Soriano's transfer to Burgos in 1992, he was
still an employee of Park Hotel at the time of his dismissal in 1997. The Court, however, rules that
the CA's finding is clearly contrary to the evidence presented. From the documents presented by
Soriano, it appears that Soriano's payroll passbook
31
contained withdrawals and deposits, made in
1991, and that Soriano's payslip
32
issued by Park Hotel covered the period from September to
October 1990. Hence, these documents merely show that Soriano was employed by Park Hotel
before he was transferred to Burgos in 1992. Nowhere in these documents does it state that Soriano
continued to work for Park Hotel in 1992 and onwards. Clearly therefore, Park Hotel cannot be made
liable for illegal dismissal as it no longer had Soriano in its employ at the time he was dismissed from
work.
As to whether Park Hotel may be held solidarily liable with Burgos, the Court rules that before a
corporation can be held accountable for the corporate liabilities of another, the veil of corporate
fiction must first be pierced.
33
Thus, before Park Hotel can be held answerable for the obligations of
Burgos to its employees, it must be sufficiently established that the two companies are actually a
single corporate entity, such that the liability of one is the liability of the other.
34

A corporation is an artificial being invested by law with a personality separate and distinct from that
of its stockholders and from that of other corporations to which it may be connected.
35
While a
corporation may exist for any lawful purpose, the law will regard it as an association of persons or, in
case of two corporations, merge them into one, when its corporate legal entity is used as a cloak for
fraud or illegality. This is the doctrine of piercing the veil of corporate fiction. The doctrine applies
only when such corporate fiction is used to defeat public convenience, justify wrong, protect fraud, or
defend crime, or when it is made as a shield to confuse the legitimate issues, or where a corporation
is the mere alter ego or business conduit of a person, or where the corporation is so organized and
controlled and its affairs are so conducted as to make it merely an instrumentality, agency, conduit
or adjunct of another corporation.
36
To disregard the separate juridical personality of a corporation,
the wrongdoing must be established clearly and convincingly. It cannot be presumed.
37

In the case at bar, respondents utterly failed to prove by competent evidence that Park Hotel was a
mere instrumentality, agency, conduit or adjunct of Burgos, or that its separate corporate veil had
been used to cover any fraud or illegality committed by Burgos against the respondents.
Accordingly, Park Hotel and Burgos cannot be considered as one and the same entity, and Park
Hotel cannot be held solidary liable with Burgos.
Nonetheless, although the corporate veil between Park Hotel and Burgos cannot be pierced, it does
not necessarily mean that Percy and Harbutt are exempt from liability towards respondents. Verily, a
corporation, being a juridical entity, may act only through its directors, officers and employees.
Obligations incurred by them, while acting as corporate agents, are not their personal liability but the
direct accountability of the corporation they represent.
38
However, corporate officers may be deemed
solidarily liable with the corporation for the termination of employees if they acted with malice or bad
faith.
39
In the present case, the lower tribunals unanimously found that Percy and Harbutt, in their
capacity as corporate officers of Burgos, acted maliciously in terminating the services of respondents
without any valid ground and in order to suppress their right to self-organization.
Section 31
40
of the Corporation Code makes a director personally liable for corporate debts if he
willfully and knowingly votes for or assents to patently unlawful acts of the corporation. It also makes
a director personally liable if he is guilty of gross negligence or bad faith in directing the affairs of the
corporation.1wphi1 Thus, Percy and Harbutt, having acted in bad faith in directing the affairs of Burgos, are
jointly and severally liable with the latter for respondents' dismissal.
In cases when an employee is unjustly dismissed from work, he shall be entitled to reinstatement
without loss of seniority rights and other privileges, inclusive of allowances, and other benefits or
their monetary equivalent from the time the compensation was withheld up to the time of actual
reinstatement.
41

In the case at bar, the Court finds that it would be best to award separation pay instead of
reinstatement, in view of the passage of a long period of time since respondents' dismissal. In St.
Luke's Medical Center, Inc. v. Notario,
42
the Court held that if reinstatement proves impracticable, and
hardly in the best interest of the parties, due to the lapse of time since the employee's dismissal, the
latter should be awarded separation pay in lieu of reinstatement.
In view of the foregoing, respondents are entitled to the payment of full backwages, inclusive of
allowances, and other benefits or their monetary equivalent, and separation pay in lieu of
reinstatement equivalent to one month salary for every year of service.
43
The awards of separation
pay and backwages are not mutually exclusive, and both may be given to respondents.
44

The awards of moral and exemplary damages
45
in favor of respondents are also in order. Moral
damages may be recovered where the dismissal of the employee was tainted by bad faith or fraud,
or where it constituted an act oppressive to labor, and done in a manner contrary to morals, good
customs or public policy, while exemplary damages are recoverable only if the dismissal was done in
a wanton, oppressive, or malevolent manner.
46
The grant of attorney's fees is likewise proper.
Attorney's fees may likewise be awarded to respondents who were illegally dismissed in bad faith
and were compelled to litigate or incur expenses to protect their rights by reason of the oppressive
acts
47
of petitioners. The unjustified act of petitioners had obviously compelled respondents to
institute an action primarily to protect their rights and interests which warrants the granting of the
award.
WHEREFORE, the Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 67766,
dated January 24, 2005 and January 13, 2006, respectively, are AFFIRMED with the
following MODIFICATIONS: (a) Petitioner Park Hotel is exonerated from any liability to respondents;
and (b) The award of reinstatement is deleted, and in lieu thereof, respondents are awarded
separation pay.
The case is REMANDED to the Labor Arbiter for the purpose of computing respondents' full
backwages, inclusive of allowances, and other benefits or their monetary equivalent, computed from
the date of their dismissal up to the finality of the decision, and separation pay in lieu of
reinstatement equivalent to one month salary for every year of service, computed from the time of
their engagement up to the finality of this Decision.
SO ORDERED:
DIOSDADO M. PERALTA
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 196231 September 4, 2012
EMILIO A. GONZALES III, Petitioner,
vs.
OFFICE OF THE PRESIDENT OF THE PHILIPPINES, acting through and represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR., SENIOR DEPUTY EXECUTIVE
SECRETARY JOSE AMOR M. AMORANDO, Officer in Charge, Office of the Deputy Executive
Secretary for Legal Affairs, ATTY. RONALDO A. GERON, DIR. ROWENA TURINGAN-
SANCHEZ, and ATTY. CARLITOD. CATAYONG,Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - x
G.R. No. 196232
WENDELL BARRERAS-SULIT, Petitioner,
vs.
ATTY. PAQUITO N. OCHOA, JR., in his capacity as EXECUTIVE SECRETARY, OFFICE OF THE
PRESIDENT, ATTY. DENNIS F. ORTIZ, ATTY. CARLO D.SULAY and ATTY. FROILAN
MONTALBAN, .JR., in their capacities as CHAIRMAN and MEMBERS of the OFFICE OF
MALACAANG LEGAL AFFAIRS, Respondents.
D E C I S I O N
PERLAS-BERNABE, J .:
The Case
These two petitions have been consolidated not because they stem from the same factual milieu but
because they raise a common thread of issues relating to the President's exercise of the power to
remove from office herein petitioners who claim the protective cloak of independence of the
constitutionally-created office to which they belong - the Office of the Ombudsman.
The first case, docketed as G.R. No. 196231, is a Petition for Certiorari (with application for issuance
of temporary restraining order or status quo order) which assails on jurisdictional grounds the
Decision
1
dated March 31, 2011 rendered by the Office of the President in OP Case No. 10-J-460
dismissing petitioner Emilio A. Gonzales III, Deputy Ombudsman for the Military and Other Law
Enforcement Offices (MOLEO), upon a finding of guilt on the administrative charges of Gross
Neglect of Duty and Grave Misconduct constituting a Betrayal of Public Trust. The petition primarily
seeks to declare as unconstitutional Section 8(2) of Republic Act (R.A.) No. 6770, otherwise known
as the Ombudsman Act of 1989, which gives the President the power to dismiss a Deputy
Ombudsman of the Office of the Ombudsman.
The second case, docketed as G.R. No. 196232, is a Petition for Certiorari and Prohibition (with
application for issuance of a temporary restraining order or status quo order) seeking to annul,
reverse and set aside (1) the undated Order
2
requiring petitioner Wendell Barreras-Sulit to submit a
written explanation with respect to alleged acts or omissions constituting serious/grave offenses in
relation to the Plea Bargaining Agreement (PLEBARA) entered into with Major General Carlos F.
Garcia; and (2) the April 7, 2011 Notice of Preliminary Investigation,
3
both issued by the Office of the
President in OP-DC-Case No. 11-B-003, the administrative case initiated against petitioner as a
Special Prosecutor of the Office of the Ombudsman. The petition likewise seeks to declare as
unconstitutional Section 8(2) of R.A. No. 6770 giving the President the power to dismiss a Special
Prosecutor of the Office of the Ombudsman.
The facts from which these two cases separately took root are neither complicated nor unfamiliar.
In the morning of August 23, 2010, news media scampered for a minute-by-minute coverage of a
hostage drama that had slowly unfolded right at the very heart of the City of Manila. While initial
news accounts were fragmented it was not difficult to piece together the story on the hostage-taker,
Police Senior Inspector Rolando Mendoza. He was a disgruntled former police officer attempting to
secure his reinstatement in the police force and to restore the benefits of a life-long, and erstwhile
bemedaled, service. The following day, broadsheets and tabloids were replete with stories not just of
the deceased hostage-taker but also of the hostage victims, eight of whom died during the bungled
police operation to rescue the hapless innocents. Their tragic deaths triggered word wars of foreign
relation proportions. One newspaper headline ran the story in detail, as follows:
MANILA, Philippines - A dismissed policeman armed with an assault rifle hijacked a bus packed with
tourists, and killed most of its passengers in a 10 hour-hostage drama shown live on national
television until last night.
Former police senior inspector Rolando Mendoza was shot dead by a sniper at past 9 p.m. Mendoza
hijacked the bus and took 21 Chinese tourists hostage, demanding his reinstatement to the police
force.
The hostage drama dragged on even after the driver of the bus managed to escape and told police
that all the remaining passengers had been killed.
Late into the night assault forces surrounded the bus and tried to gain entry, but a pair of dead
hostages hand-cuffed to the door made it difficult for them. Police said they fired at the wheels of the
bus to immobilize it.
Police used hammers to smash windows, door and wind-shield but were met with intermittent fire
from the hos-tage taker.
Police also used tear gas in an effort to confirm if the remaining hostages were all dead or alive.
When the standoff ended at nearly 9 p.m., some four hostages were rescued alive while Mendoza
was killed by a sniper.
Initial reports said some 30 policemen stormed the bus. Shots also rang out, sending bystanders
scampering for safety.
It took the policemen almost two hours to assault the bus because gunfire reportedly rang out from
inside the bus.
Mendoza hijacked the tourist bus in the morning and took the tourists hostage.
Mendoza, who claimed he was illegally dismissed from the police service, initially released nine of
the hostages during the drama that began at 10 a.m. and played out live on national television.
Live television footage showed Mendoza asking for food for those remaining in the bus, which was
delivered, and fuel to keep the air-conditioning going. The disgruntled former police officer was
reportedly armed with an M-16 rifle, a 9 mm pistol and two hand grenades.
Mendoza posted a handwritten note on the windows of the bus, saying "big deal will start after 3 p.m.
today." Another sign stuck to another window said "3 p.m. today deadlock."
Stressing his demand, Mendoza stuck a piece of paper with a handwritten message: "Big mistake to
correct a big wrong decision." A larger piece of paper on the front windshield was headed, "Release
final decision," apparently referring to the case that led to his dismissal from the police force.
Negotiations dragged on even after Mendoza's self-imposed deadline.
Senior Police Officer 2 Gregorio Mendoza said his brother was upset over his dismissal from the
police force. "His problem was he was unjustly removed from service. There was no due process, no
hearing, no com-plaint," Gregorio said.
Last night, Gregorio was arrested by his colleagues on suspicions of being an accessory to his
brother's action. Tensions rose as relatives tried to prevent lawmen from arresting Gregorio in front
of national television. This triggered the crisis that eventually forced Mendoza to carry out his threat
and kill the remaining hostages.
Negotiators led by Superintendent Orlando Yebra and Chief Inspector Romeo Salvador tried to talk
Mendoza into surrendering and releasing the 21 hostages, mostly children and three Filipinos,
including the driver, the tourist guide and a photographer. Yebra reportedly lent a cellphone to allow
communications with Mendoza in-side the bus, which was parked in front ofthe Quirino Grandstand.
Children could be seen peeking from the drawn curtains of the bus while police negotiators hovered
near the scene.
Manila Police District (MPD) director Chief Superinten-dent Rodolfo Magtibay ordered the
deployment of crack police teams and snipers near the scene. A crisis man-agement committee had
been activated with Manila Vice Mayor Isko Moreno coordinating the actions with the MPD.
Earlier last night, Ombudsman Merceditas Gutierrez had a meeting with Moreno to discuss
Mendoza's case that led to his dismissal from the service. Ombudsman spokesman Jose de Jesus
said Gutierrez gave a "sealed letter" to Moreno to be delivered to Mendoza. De Jesus did not
elaborate on the contents of the letter but said Moreno was tasked to personally deliver the letter to
Mendoza.
MPD spokesman Chief Inspector Edwin Margarejo said Mendoza was apparently distraught by the
slow process of the Ombudsman in deciding his motion for reconside-ration. He said the PNP-
Internal Affairs Service and the Manila Regional Trial Court had already dismissed crim-inal cases
against him.
The hostage drama began when Mendoza flagged down the Hong Thai Travel Tourist bus (TVU-
799), pretend-ing to hitch a ride. Margarejo said the bus had just left Fort Santiago in Intramuros
when Mendoza asked the driver to let him get on and ride to Quirino Grandstand. Upon reaching the
Quirino Grandstand, Mendoza an-nounced to the passengers that they would be taken hostage.
"Having worn his (police) uniform, of course there is no doubt that he already planned the hostage
taking," Margarejo said. - Sandy Araneta, Nestor Etolle, Delon Porcalla, Amanda Fisher, Cecille
Suerte Felipe, Christi-na Mendez, AP Grandstand Carnage, The Philippine Star, Updated August 24,
2010 12:00 AM, Val Rodri-guez.
4

In a completely separate incident much earlier in time, more particularly in December of 2003, 28-
year-old Juan Paolo Garcia and 23-year-old Ian Carl Garcia were caught in the United States
smuggling $100,000 from Manila by concealing the cash in their luggage and making false
statements to US Customs Officers. The Garcia brothers pleaded guilty to bulk cash smuggling and
agreed to forfeit the amount in favor of the US Government in exchange for the dismissal of the rest
of the charges against them and for being sentenced to time served. Inevitably, however, an
investigation into the source of the smuggled currency conducted by US Federal Agents and the
Philippine Government unraveled a scandal of military corruption and amassed wealth -- the boys'
father, Retired Major General Carlos F. Garcia, former Chief Procurement Officer of the Armed
Forces, had accumulated more than P 300 Million during his active military service. Plunder and
Anti-Money Laundering cases were eventually filed against Major General Garcia, his wife and their
two sons before the Sandiganbayan.
G.R. No. 196231
Sometime in 2008, a formal charge
5
for Grave Misconduct (robbery, grave threats, robbery extortion
and physical injuries) was filed before the Philippine National Police-National Capital Region (PNP-
NCR) against Manila Police District Senior Inspector (P/S Insp.) Rolando Mendoza, and four others,
namely, Police Inspector Nelson Lagasca, Senior Police Inspector I Nestor David, Police Officer III
Wilson Gavino, and Police Officer II Roderick Lopena. A similar charge was filed by the private
complainant, Christian M. Kalaw, before the Office of the City Prosecutor, Manila, docketed as I.S.
No. 08E-09512.
On July 24, 2008, while said cases were still pending, the Office of the Regional Director of the
National Police Commission (NPC) turned over, upon the request of petitioner Emilio A. Gonzales III,
all relevant documents and evidence in relation to said case to the Office of the Deputy Ombudsman
for appropriate administrative adjudication.
6
Subsequently, Case No. OMB-P-A-08-0670-H for Grave
Misconduct was lodged against P/S Insp. Rolando Mendoza and his fellow police officers, who filed
their respective verified position papers as directed.
Meanwhile, on August 26, 2008, I.S. No. 08E-09512 was dismissed
7
upon a finding that the material
allegations made by the complainant had not been substantiated "by any evidence at all to warrant
the indictment of respondents of the offenses charged." Similarly, the Internal Affairs Service of the
PNP issued a Resolution
8
dated October 17, 2008 recommending the dismissal without prejudice of
the administrative case against the same police officers, for failure of the complainant to appear in
three (3) consecutive hearings despite due notice.
However, on February 16, 2009, upon the recommendation of petitioner Emilio Gonzales III, a
Decision
9
in Case No. OMB-P-A-08-0670-H finding P/S Insp. Rolando Mendoza and his fellow police
officers guilty of Grave Misconduct was approved by the Ombudsman. The dispositive portion of
said Decision reads:
WHEREFORE, it is respectfully recommended that respondents P/S Insp. ROLANDO DEL
ROSARIO MENDOZA and PO3 WILSON MATIC GAVINO of PRO-ARMM, Camp Brig. Gen.
Salipada K. Pendatun, Parang, Shariff Kabunsuan; P/INSP. NELSON URBANO LAGASCA, SPO1
NESTOR REYES DAVID and PO2 RODERICK SALVA LOPEA of Manila Police District,
Headquarters, United Nations Avenue, Manila, be meted the penalty of DISMISSAL from the
Service, pursuant to Section 52 (A), Rule IV, Uniform Rules on Administrative Cases in the Civil
Service, with the accessory penalties of forfeiture of retirement benefits and perpetual
disqualification from reemployment in the government service pursuant to Section 58, Rule IV of the
same Uniform Rules of Administrative Cases in the Civil Service, for having committed GRAVE
MISCONDUCT.
On November 5, 2009, they filed a Motion for Reconsideration
10
of the foregoing Decision, followed
by a Supplement to the Motion for Reconsideration
11
on November 19, 2009. On December 14,
2009, the pleadings mentioned and the records of the case were assigned for review and
recommendation to Graft Investigation and Prosecutor Officer Dennis L. Garcia, who released a
draft Order
12
on April 5, 2010 for appropriate action by his immediate superior, Director Eulogio S.
Cecilio, who, in turn, signed and forwarded said Order to petitioner Gonzalez's office on April 27,
2010. Not more than ten (10) days after, more particularly on May 6, 2010, petitioner endorsed the
Order, together with the case records, for final approval by Ombudsman Merceditas N. Gutierrez, in
whose office it remained pending for final review and action when P/S Insp. Mendoza hijacked a
bus-load of foreign tourists on that fateful day of August 23, 2010 in a desperate attempt to have
himself reinstated in the police service.
In the aftermath of the hostage-taking incident, which ended in the tragic murder of eight HongKong
Chinese nationals, the injury of seven others and the death of P/S Insp. Rolando Mendoza, a public
outcry against the blundering of government officials prompted the creation of the Incident
Investigation and Review Committee (IIRC),
13
chaired by Justice Secretary Leila de Lima and vice-
chaired by Interior and Local Government Secretary Jesus Robredo. It was tasked to determine
accountability for the incident through the conduct of public hearings and executive sessions.
However, petitioner, as well as the Ombudsman herself, refused to participate in the IIRC
proceedings on the assertion that the Office of the Ombudsman is an independent constitutional
body.
Sifting through testimonial and documentary evidence, the IIRC eventually identified petitioner
Gonzales to be among those in whom culpability must lie. In its Report,
14
the IIRC made the
following findings:
Deputy Ombudsman Gonzales committed serious and inexcusable negligence and gross violation of
their own rules of procedure by allowing Mendoza's motion for reconsideration to languish for more
than nine (9) months without any justification, in violation of the Ombudsman prescribed rules to
resolve motions for reconsideration in administrative disciplinary cases within five (5) days from
submission. The inaction is gross, considering there is no opposition thereto. The prolonged inaction
precipitated the desperate resort to hostage-taking.
More so, Mendoza's demand for immediate resolution of his motion for reconsideration is not without
legal and compelling bases considering the following:
(a) PSI Mendoza and four policemen were investigated by the Ombudsman involving a case
for alleged robbery (extortion), grave threats and physical injuries amounting to grave
misconduct allegedly committed against a certain Christian Kalaw. The same case, however,
was previously dismissed by the Manila City Prosecutors Office for lack of probable cause
and by the PNP-NCR Internal Affairs Service for failure of the complainant (Christian Kalaw)
to submit evidence and prosecute the case. On the other hand, the case which was filed
much ahead by Mendoza et al. against Christian Kalaw involving the same incident, was
given due course by the City Prosecutors Office.
(b) The Ombudsman exercised jurisdiction over the case based on a letter issued motu
proprio for Deputy Ombudsman Emilio A. Gonzalez III, directing the PNP-NCR - without
citing any reason - to endorse the case against Mendoza and the arresting policemen to his
office for administrative adjudication, thereby showing undue interest on the case. He also
caused the docketing of the case and named Atty. Clarence V. Guinto of the PNP-CIDG-
NCR, who indorsed the case records, as the nominal complainant, in lieu of Christian Kalaw.
During the proceedings, Christian Kalaw did not also affirm his complaint-affidavit with the
Ombudsman or submit any position paper as required.
(c) Subsequently, Mendoza, after serving preventive suspension, was adjudged liable for
grave misconduct by Deputy Ombudsman Gonzales (duly approved on May 21, 2009) based
on the sole and uncorroborated complaint-affidavit of Christian Kalaw, which was not
previously sustained by the City Prosecutor's Office and the PNP Internal Affairs Service.
From the said Resolution, Mendoza interposed a timely motion for reconsideration (dated
and filed November 5, 2009) as well as a supplement thereto. No opposition or comment
was filed thereto.
(d) Despite the pending and unresolved motion for reconsideration, the judgment of
dismissal was enforced, thereby abruptly ending Mendoza's 30 years of service in the PNP
with forfeiture of all his benefits. As a result, Mendoza sought urgent relief by sending several
hand-written letter-requests to the Ombudsman for immediate resolution of his motion for
reconsideration. But his requests fell on deaf ears.
x x x x
By allowing Mendoza's motion for reconsideration to languish for nine long (9) months without any
justification, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed complete and
wanton violation of the Ombudsman prescribed rule to resolve motions for reconsideration in
administrative disciplinary cases within five (5) days from submission (Sec. 8, Ombudsman Rules of
Procedure). The inaction is gross, there being no opposition to the motion for reconsideration.
Besides, the Ombudsman, without first resolving the motion for reconsideration, arbitrarily enforced
the judgment of dismissal and ignored the intervening requests for immediate resolution, thereby
rendering the inaction even more inexcusable and unjust as to amount to gross negligence and
grave misconduct.
SECOND, Ombudsman Gutierrez and Deputy Ombudsman Gonzales committed serious disregard
of due process, manifest injustice and oppression in failing to provisionally suspend the further
implementation of the judgment of dismissal against Mendoza pending disposition of his unresolved
motion for reconsideration.
By enforcing the judgment of dismissal without resolving the motion for reconsideration for over nine
months, the two Ombudsman officials acted with arbitrariness and without regard to due process
and the constitutional right of an accused to the speedy disposition of his case. As long as his
motion for reconsideration remained pending and unresolved, Mendoza was also effectively
deprived of the right to avail of the ordinary course of appeal or review to challenge the judgment of
dismissal before the higher courts and seek a temporary restraining order to prevent the further
execution thereof.
As such, if the Ombudsman cannot resolve with dispatch the motion for reconsideration, it should
have provisionally suspended the further enforcement of the judgment of dismissal without prejudice
to its re-implementation if the reconsideration is eventually denied. Otherwise, the Ombudsman will
benefit from its own inaction. Besides, the litigant is entitled to a stay of the execution pending
resolution of his motion for reconsideration. Until the motion for reconsideration is denied, the
adjudication process before the Ombudsman cannot be considered as completely finished and,
hence, the judgment is not yet ripe for execution.
x x x x
When the two Ombudsman officials received Mendoza's demand for the release of the final order
resolving his motion for reconsideration, they should have performed their duty by resolving the
reconsideration that same day since it was already pending for nine months and the prescribed
period for its resolution is only five days. Or if they cannot resolve it that same day, then they should
have acted decisively by issuing an order provisionally suspending the further enforcement of the
judgment of dismissal subject to revocation once the reconsideration is denied and without prejudice
to the arrest and prosecution of Mendoza for the hostage-taking. Had they done so, the crisis may
have ended peacefully, without necessarily compromising the integrity of the institution. After all, as
relayed to the negotiators, Mendoza did express willingness to take full responsibility for the
hostage-taking if his demand for release of the final decision or reinstatement was met.
But instead of acting decisively, the two Ombudsman officials merely offered to review a pending
motion for review of the case, thereby prolonging their inaction and aggravating the situation. As
expected, Mendoza - who previously berated Deputy Gonzales for allegedly demanding Php150,000
in exchange for favorably resolving the motion for reconsideration - rejected and branded as trash
("basura") the Ombudsman [sic] letter promising review, triggering the collapse of the negotiations.
To prevent the situation from getting out of hand, the negotiators sought the alternative option of
securing before the PNP-NCRPO an order for Mendoza's provisional reinstatement pending
resolution of the motion for reconsideration. Unfortunately, it was already too late. But had the
Ombudsman officials performed their duty under the law and acted decisively, the entire crisis may
have ended differently.
The IIRC recommended that its findings with respect to petitioner Gonzales be referred to the Office
of the President (OP) for further determination of possible administrative offenses and for the
initiation of the proper administrative proceedings.
On October 15, 2010, the OP instituted a Formal Charge
15
against petitioner Gonzales for Gross
Neglect of Duty and/or Inefficiency in the Performance of Official Duty under Rule XIV, Section 22 of
the Omnibus Rules Implementing Book V of E.O. No. 292 and other pertinent Civil
Service Laws, rules and regulations, and for Misconduct in Office under Section 3 of the Anti-Graft
and Corrupt Practices Act.
16
Petitioner filed his Answer
17
thereto in due time.
Shortly after the filing by the OP of the administrative case against petitioner, a complaint dated
October 29, 2010 was filed by Acting Assistant Ombudsman Joselito P. Fangon before the Internal
Affairs Board of the Office of the Ombudsman charging petitioner with "directly or indirectly
requesting or receiving any gift, present, share, percentage, or benefit, for himself or for any other
person, in connection with any contract or transaction between the Government and any other party,
wherein the public officer in his official capacity has to intervene under the law" under Section 3(b) of
the Anti-Graft and Corrupt Practices Act, and also, with solicitation or acceptance of gifts under
Section 7(d) of the Code of Conduct and Ethical Standards.
18
In a Joint Resolution
19
dated February
17, 2011, which was approved by Ombudsman Ma. Merceditas N. Gutierrez, the complaint was
dismissed, as follows:
WHEREFORE, premises considered, finding no probable cause to indict respondent Emilio A.
Gonzales III for violations of Section 3(b) of R.A. No. 3019 and Section 7(d) of R.A. No. 6713, the
complaint is hereby be [sic] DISMISSED.
Further, finding no sufficient evidence to hold respondent administratively liable for Misconduct, the
same is likewise DISMISSED.
Meanwhile, the OP notified
20
petitioner that a Preliminary Clarificatory Conference relative to the
administrative charge against him was to be conducted at the Office of the Deputy Executive
Secretary for Legal Affairs (ODESLA) on February 8, 2011. Petitioner Gonzales alleged,
21
however,
that on February 4, 2011, he heard the news that the OP had announced his suspension for one
year due to his delay in the disposition of P/S Insp. Mendoza's motion for reconsideration. Hence,
believing that the OP had already prejudged his case and that any proceeding before it would simply
be a charade, petitioner no longer attended the scheduled clarificatory conference. Instead, he filed
an Objection to Proceedings
22
on February 7, 2011. Despite petitioner's absence, however, the OP
pushed through with the proceedings and, on March 31, 2011, rendered the assailed Decision,
23
the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, this Office finds Deputy Ombudsman Emilio A. Gonzales III
guilty of Gross Neglect of Duty and Grave Misconduct constituting betrayal of public trust, and
hereby meted out the penalty of DISMISSAL from service.
SO ORDERED.
Hence, the petition.
G.R. No. 196232
In April of 2005, the Acting Deputy Special Prosecutor of the Office of the Ombudsman charged
Major General Carlos F. Garcia, his wife Clarita D. Garcia, their sons Ian Carl Garcia, Juan Paulo
Garcia and Timothy Mark Garcia and several unknown persons with Plunder (Criminal Case No.
28107) and Money Laundering (Criminal Case No. SB09CRM0194) before the Sandiganbayan.
On January 7, 2010, the Sandiganbayan denied Major General Garcia's urgent petition for bail
holding that strong prosecution evidence militated against the grant of bail. On March 16, 2010,
however, the government, represented by petitioner, Special Prosecutor Wendell Barreras-Sulit
("Barreras-Sulit") and her prosecutorial staff sought the Sandiganbayan's approval of a Plea
Bargaining Agreement (hereinafter referred to as "PLEBARA") entered into with the accused. On
May 4, 2010, the Sandiganbayan issued a Resolution finding the change of plea warranted and the
PLEBARA compliant with jurisprudential guidelines.
Outraged by the backroom deal that could allow Major General Garcia to get off the hook with
nothing but a slap on the hand notwithstanding the prosecution's apparently strong evidence of his
culpability for serious public offenses, the House of Representatives' Committee on Justice
conducted public hearings on the PLEBARA. At the conclusion of these public hearings, the
Committee on Justice passed and adopted Committee Resolution No. 3,
24
recommending to the
President the dismissal of petitioner Barreras-Sulit from the service and the filing of appropriate
charges against her Deputies and Assistants before the appropriate government office for having
committed acts and/or omissions tantamount to culpable violations of the Constitution and betrayal
of public trust, which are violations under the Anti-Graft and Corrupt Practices Act and grounds for
removal from office under the Ombudsman Act.
The Office of the President initiated OP-DC-Case No. 11-B-003 against petitioner Barreras-Sulit. In
her written explanation, petitioner raised the defenses of prematurity and the lack of jurisdiction of
the OP with respect to the administrative disciplinary proceeding against her. The OP, however, still
proceeded with the case, setting it for preliminary investigation on April 15, 2011.
Hence, the petition.
The Issues
In G.R. No. 196231, petitioner Gonzales raises the following grounds, to wit:
(A)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, HAS NO CONSTITUTIONAL OR VALID STATUTORY AUTHORITY TO
SUBJECT PETITIONER TO AN ADMINISTRATIVE INVESTIGATION AND TO THEREAFTER
ORDER HIS REMOVAL AS DEPUTY OMBUDSMAN.
(B)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE OTHER INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT CONDUCTED ITS INVESTIGATION AND RENDERED ITS DECISION IN
VIOLATION OF PETITIONER'S RIGHT TO DUE PROCESS.
(C)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER COMMITTED DELAY IN THE DISPOSITION OF
MENDOZA'S MOTION FOR RECONSIDERATION.
(D)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT PETITIONER TOOK UNDUE INTEREST IN MENDOZA'S
CASE.
(E)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FAULTING PETITIONER FOR NOT RELEASING THE RESOLUTION ON
MENDOZA'S MOTION FOR RECONSIDERATION OR FOR NOT SUSPENDING MENDOZA'S
DISMISSAL FROM SERVICE DURING THE HOSTAGE CRISIS.
(F)
RESPONDENT OFFICE OF THE PRESIDENT, ACTING THROUGH THE INDIVIDUAL
RESPONDENTS, GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN FINDING THAT THERE WAS SUBSTANTIAL EVIDENCE TO SHOW THAT
PETITIONER DEMANDED A BRIBE FROM MENDOZA.
25

On the other hand, in G.R. No. 196232, petitioner Barreras-Sulit poses for the Court the question -
AS OF THIS POINT IN TIME, WOULD TAKING AND CONTINUING TO TAKE ADMINISTRATIVE
DISCIPLINARY PROCEEDING AGAINST PETITIONER BE LAWFUL AND JUSTIFIABLE?
26

Re-stated, the primordial question in these two petitions is whether the Office of the President has
jurisdiction to exercise administrative disciplinary power over a Deputy Ombudsman and a Special
Prosecutor who belong to the constitutionally-created Office of the Ombudsman.
The Court's Ruling
Short of claiming themselves immune from the ordinary means of removal, petitioners asseverate
that the President has no disciplinary jurisdiction over them considering that the Office of the
Ombudsman to which they belong is clothed with constitutional independence and that they, as
Deputy Ombudsman and Special Prosecutor therein, necessarily bear the constitutional attributes of
said office.
The Court is not convinced.
The Ombudsman's administrative
disciplinary power over a Deputy
Ombudsman and Special Prose-cutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative investigations
proceeds from its constitutional mandate to be an effective protector of the people against inept and
corrupt government officers and employees,
27
and is subsumed under the broad powers "explicitly
conferred" upon it by the 1987 Constitution and R.A. No. 6770.
28

The ombudsman traces its origins to the primitive legal order of Germanic tribes. The Swedish term,
which literally means "agent" or "representative," communicates the concept that has been carried
on into the creation of the modern-day ombudsman, that is, someone who acts as a neutral
representative of ordinary citizens against government abuses.
29
This idea of a people's protector
was first institutionalized in the Philippines under the 1973 Constitution with the creation of the
Tanodbayan, which wielded the twin powers of investigation and prosecution. Section 6, Article XIII
of the 1973 Constitution provided thus:
Sec. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as
Tanodbayan, which shall receive and investigate complaints relative to public office, including those
in government-owned or controlled corporations, make appropriate recommendations, and in case of
failure of justice as defined by law, file and prosecute the corresponding criminal, civil, or
administrative case before the proper court or body.
The framers of the 1987 Constitution later envisioned a more effective ombudsman vested with
authority to "act in a quick, inexpensive and effective manner on complaints against administrative
officials", and to function purely with the "prestige and persuasive powers of his office" in correcting
improprieties, inefficiencies and corruption in government freed from the hampering effects of
prosecutorial duties.
30
Accordingly, Section 13, Article XI of the 1987 Constitution enumerates the
following powers, functions, and duties of the Office of the Ombudsman, viz:
(1) Investigate on its own, or on complaint by any person, any act or omission of any public official,
employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or
inefficient.
(2) Direct, upon complaint or at its own instance, any public official or employee of the
Government, or any subdivision, agency or instrumentality thereof, as well as of any government-
owned or controlled corporation with original charter, to perform and expedite any act or duty
required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of
duties.
(3) Direct the officer concerned to take appropriate action against a public official or employee at
fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure
compliance therewith.
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as may be
provided by law, to furnish it with copies of documents relating to contracts or transactions entered
into by his office involving the disbursement or use of public funds or properties, and report any
irregularity to the Commission on Audit for appropriate action.
(5) Request any government agency for assistance and information necessary in the discharge of
its responsibilities, and to examine, if necessary, pertinent records and documents.
(6) Publicize matters covered by its investigation when circumstances so warrant and with due
prudence.
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the
Government and make recommendations for their elimination and the observance of high standards
of ethics and efficiency.
(8) Promulgate its rules of procedure and exercise such other powers or perform such functions or
duties as may be provided by law.
31

Congress thereafter passed, on November 17, 1989, Republic Act No. 6770, the Ombudsman Act of
1989, to shore up the Ombudsman's institutional strength by granting it "full administrative
disciplinary power over public officials and employees,"
32
as follows:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. - The Office of the Ombudsman shall
have disciplinary authority over all elective and appointive officials of the Government and its
subdivisions, instrumentalities and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except over officials who may
be removed only by impeachment or over Members of Congress, and the Judiciary.(Emphasis
supplied)
In the exercise of such full administrative disciplinary authority, the Office of the Ombudsman was
explicitly conferred the statutory power to conduct administrative investigations under Section 19 of
the same law, thus:
Sec. 19. Administrative complaints. - The Ombudsman shall act on all complaints relating, but not
limited, to acts or omissions which:
1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment of facts;
5. Are in the exercise of discretionary powers but for an improper purpose; or
6. Are otherwise irregular, immoral or devoid of justification.
While the Ombudsman's authority to discipline administratively is extensive and covers all
government officials, whether appointive or elective, with the exception only of those officials
removable by impeachment, the members of congress and the judiciary, such authority is by no
means exclusive. Petitioners cannot insist that they should be solely and directly subject to the
disciplinary authority of the Ombudsman. For, while Section 21 declares the Ombudsman's
disciplinary authority over all government officials, Section 8(2), on the other hand, grants the
President express power of removal over a Deputy Ombudsman and a Special Prosecutor. Thus:
Section 8. Removal; Filling of Vacancy.-
x x x x
(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the
grounds provided for the removal of the Ombudsman, and after due process.
It is a basic canon of statutory construction that in interpreting a statute, care should be taken that
every part thereof be given effect, on the theory that it was enacted as an integrated measure and
not as a hodge-podge of conflicting provisions. A construction that would render a provision
inoperative should be avoided; instead, apparently inconsistent provisions should be reconciled
whenever possible as parts of a coordinated and harmonious whole.
33
Otherwise stated, the law
must not be read in truncated parts. Every part thereof must be considered together with the other
parts, and kept subservient to the general intent of the whole enactment.
34

A harmonious construction of these two apparently conflicting provisions in R.A. No. 6770 leads to
the inevitable conclusion that Congress had intended the Ombudsman and the President to exercise
concurrent disciplinary jurisdiction over petitioners as Deputy Ombudsman and Special
Prosecutor, respectively. This sharing of authority goes into the wisdom of the legislature, which
prerogative falls beyond the pale of judicial inquiry. The Congressional deliberations on this matter
are quite insightful, viz:
x x x Senator Angara explained that the phrase was added to highlight the fact that the Deputy
Tanodbayan may only be removed for cause and after due process. He added that the President
alone has the power to remove the Deputy Tanodbayan.
Reacting thereto, Senator Guingona observed that this might impair the independence of the
Tanodbayan and suggested that the procedural removal of the Deputy Tanodbayan...; and that he
can be removed not by the President but by the Ombudsman.
However, the Chair expressed apprehension that the Ombudsman and the Deputy Ombudsman
may try to protect one another. The Chair suggested the substitution of the phrase "after due
process" with the words after due notice and hearing with the President as the ultimate authority.
Senator Guingona contended, however, that the Constitution provides for an independent Office of
the Tanodbayan, and to allow the Executive to have disciplinary powers over the Tanodbayan
Deputies would be an encroachment on the independence of the Tanodbayan.
Replying thereto, Senator Angara stated that originally, he was not averse to the proposal, however,
considering the Chair's observation that vesting such authority upon the Tanodbayan itself could
result in mutual protection, it is necessary that an outside official should be vested with such
authority to effect a check and balance.
35

Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section
21 - in the same Organic Act was to provide for an external authority, through the person of the
President, that would exercise the power of administrative discipline over the Deputy Ombudsman
and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the
Ombudsman over all government officials and employees. Such legislative design is simply a
measure of "check and balance" intended to address the lawmakers' real and valid concern that the
Ombudsman and his Deputy may try to protect one another from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the
Ombudsman on the matter of disciplinary jurisdiction. An earlier conflict had been settled in favor of
shared authority in Hagad v. Gozo Dadole.
36
In said case, the Mayor and Vice-Mayor of Mandaue
City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy
Ombudsman for the Visayas with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal
Code. The pivotal issue raised therein was whether the Ombudsman had been divested of his
authority to conduct administrative investigations over said local elective officials by virtue of the
subsequent enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent
provision of which states:
Sec. 61. Form and Filing of Administrative Complaints.- A verified complaint against any erring local
elective official shall be prepared as follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent
component city or component city shall be filed before the Office of the President.
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General
that R.A. No. 7160 should be viewed as having conferred on the Office of the President, but not on
an exclusive basis, disciplinary authority over local elective officials. Despite the fact that R.A. No.
7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the
Ombudsman Act was inferred therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether
expressly or impliedly, the pertinent provisions of the Ombudsman Act. The two statutes on the
specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to only
uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are
not favored, and that courts must generally assume their congruent application. The two laws must
be absolutely incompatible, and a clear finding thereof must surface, before the inference of implied
repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est
optimus interpretendi, i.e., every statute must be so interpreted and brought into accord with other
laws as to form a uniform system of jurisprudence. The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to have enacted conflicting
statutes. Hence, all doubts must be resolved against any implied repeal, and all efforts should be
exerted in order to harmonize and give effect to all laws on the subject.
37

While Hagad v. Gozo Dadole
38
upheld the plenary power of the Office of the Ombudsman to
discipline elective officials over the same disciplinary authority of the President under R.A. No. 7160,
the more recent case of the Office of the Ombudsman v. Delijero
39
tempered the exercise by the
Ombudsman of such plenary power invoking Section 23(2)
40
of R.A. No. 6770, which gives the
Ombudsman the option to "refer certain complaints to the proper disciplinary authority for the
institution of appropriate administrative proceedings against erring public officers or employees." The
Court underscored therein the clear legislative intent of imposing "a standard and a separate set of
procedural requirements in connection with administrative proceedings involving public school
teachers"
41
with the enactment of R.A. No. 4670, otherwise known as "The Magna Carta for Public
School Teachers." It thus declared that, while the Ombudsman's administrative disciplinary authority
over a public school teacher is concurrent with the proper investigating committee of the Department
of Education, it would have been more prudent under the circumstances for the Ombudsman to have
referred to the DECS the complaint against the public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete
out administrative sanctions upon them, including the extreme penalty of dismissal from the service.
However, it is equally without question that the President has concurrent authority with respect to
removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified
conditions. Considering the principles attending concurrence of jurisdiction where the Office of the
President was the first to initiate a case against petitioner Gonzales, prudence should have
prompted the Ombudsman to desist from proceeding separately against petitioner through its
Internal Affairs Board, and to defer instead to the President's assumption of authority, especially
when the administrative charge involved "demanding and soliciting a sum of money" which
constitutes either graft and corruption or bribery, both of which are grounds reserved for the
President's exercise of his authority to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a
subsequent and parallel administrative action against petitioner, its earlier dismissal of the charge of
graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all,
the doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of
administrative powers.
42
In Montemayor v. Bundalian,
43
the Court sustained the President's dismissal
from service of a Regional Director of the Department of Public Works and Highways (DPWH) who
was found liable for unexplained wealth upon investigation by the now defunct Philippine
Commission Against Graft and Corruption (PCAGC). The Court categorically ruled therein that the
prior dismissal by the Ombudsman of similar charges against said official did not operate as res
judicata in the PCAGC case.
By granting express statutory
power to the President to remove
a Deputy Ombudsman and a
Special Prosecutor, Congress
merely filled an obvious gap in
the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the
Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at
least six nominees prepared by the Judicial and Bar Council, and from a list of three nominees for
every vacancy thereafter. Such appointments shall require no confirmation. All vacancies shall be
filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the Constitution,
which is by impeachment under Section 244 of the same Article, there is, however, no constitutional
provision similarly dealing with the removal from office of a Deputy Ombudsman, or a Special
Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in
the law without running afoul of any provision in the Constitution or existing statutes. In fact, the
Constitution itself, under Section 2, authorizes Congress to provide for the removal of all other public
officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to
impeachment.
That the Deputies of the Ombudsman were intentionally excluded from the enumeration of
impeachable officials is clear from the following deliberations
45
of the Constitutional Commission,
thus:
MR. REGALADO. Yes, thank you. On Section 10, regarding the Ombudsman, there has been
concern aired by Commissioner Rodrigo about who will see to it that the Ombudsman will perform
his duties because he is something like a guardian of the government. This recalls the statement of
Juvenal that while the Ombudsman is the guardian of the people, "Quis custodiet ipsos custodies",
who will guard the guardians? I understand here that the Ombudsman who has the rank of a
chairman of a constitutional commission is also removable only by impeachment.
MR. ROMULO. That is the intention, Madam President.
MR. REGALADO. Only the Ombudsman?
MR. MONSOD. Only the Ombudsman.
MR. REGALADO. So not his deputies, because I am concerned with the phrase "have the rank of".
We know, for instance, that the City Fiscal of Manila has the rank of a justice of the Intermediate
Appellate Court, and yet he is not a part of the judiciary. So I think we should clarify that also and
read our discussions into the Record for purposes of the Commission and the Committee.
46

x x x
THE PRESIDENT. The purpose of the amendment of Commissioner Davide is not just to include the
Ombudsman among those officials who have to be removed from office only onimpeachment. Is that
right?
MR. DAVIDE. Yes, Madam President.
MR. RODRIGO. Before we vote on the amendment, may I ask a question?
THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO. The Ombudsman, is this only one man?
MR. DAVIDE. Only one man.
MR. RODRIGO. Not including his deputies.
MR. MONSOD. No.
47
(Emphasis supplied)
The Power of the President to
Remove a Deputy Ombudsman
and a Special Prosecutor is
Implied from his Power to
Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove.
48
As a
general rule, therefore, all officers appointed by the President are also removable by him.
49
The
exception to this is when the law expressly provides otherwise - that is, when the power to remove is
expressly vested in an office or authority other than the appointing power. In some cases, the
Constitution expressly separates the power to remove from the President's power to appoint. Under
Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme Court and judges of
lower courts shall be appointed by the President. However, Members of the Supreme Court may be
removed after impeachment proceedings initiated by Congress (Section 2, Article XI), while judges
of lower courts may be removed only by the Supreme Court by virtue of its administrative
supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and
Commissioners of the Civil Service Commission Section 1(2), Article IX(B), the Commission on
Elections Section 1(2), Article IX(C), and the Commission on Audit Section 1(2), Article IX(D) shall
likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9,
Article XI) but may also be removed only by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor,
Congress simply laid down in express terms an authority that is already implied from the President's
constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.
The Office of the Ombudsman is charged with monumental tasks that have been generally
categorized into investigatory power, prosecutorial power, public assistance, authority to inquire and
obtain information and the function to adopt, institute and implement preventive measures.
50
In order
to ensure the effectiveness of his constitutional role, the Ombudsman was provided with an over-all
deputy as well as a deputy each for Luzon, Visayas and Mindanao. However, well into the
deliberations of the Constitutional Commission, a provision for the appointment of a separate deputy
for the military establishment was necessitated by Commissioner Ople's lament against the rise
within the armed forces of "fraternal associations outside the chain of command" which have
become the common soldiers' "informal grievance machinery" against injustice, corruption and
neglect in the uniformed service,
51
thus:
In our own Philippine Armed Forces, there has arisen in recent years a type of fraternal association
outside the chain of command proposing reformist objectives. They constitute, in fact, an informal
grievance machinery against injustices to the rank and file soldiery and perceive graft in higher rank
and neglect of the needs of troops in combat zones. The Reform the Armed Forces Movement of
RAM has kept precincts for pushing logistics to the field, the implied accusation being that most of
the resources are used up in Manila instead of sent to soldiers in the field. The Guardians, the El
Diablo and other organizations dominated by enlisted men function, more or less, as grievance
collectors and as mutual aid societies.
This proposed amendment merely seeks to extend the office of the Ombudsman to the military
establishment, just as it champions the common people against bureaucratic indifference. The
Ombudsman can designate a deputy to help the ordinary foot soldier get through with his grievance
to higher authorities. This deputy will, of course work in close cooperation with the Minister of
National Defense because of the necessity to maintain the integrity of the chain of command.
Ordinary soldiers, when they know they can turn to a military Ombudsman for their complaints, may
not have to fall back on their own informal devices to obtain redress for their grievances. The
Ombudsman will help raise troop morale in accordance with a major professed goal of the President
and the military authorities themselves. x x x
The add-on now forms part of Section 5, Article XI which reads as follows:
Section 5. There is hereby created the independent Office of the Ombudsman, composed of the
Ombudsman to be known as Tanodbayan, one over-all Deputy and at least one Deputy each for
Luzon, Visayas and Mindanao. A separate deputy for the military establishment shall likewise be
appointed. (Emphasis supplied)
The integrity and effectiveness of the Deputy Ombudsman for the MOLEO as a military watchdog
looking into abuses and irregularities that affect the general morale and professionalism in the
military is certainly of primordial importance in relation to the President's own role asCommander-in-
Chief of the Armed Forces. It would not be incongruous for Congress, therefore, to grant the
President concurrent disciplinary authority over the Deputy Ombudsman for the military and other
law enforcement offices.
Granting the President the Power
to Remove a Deputy Ombudsman
does not Diminish the
Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy
Ombudsman from office totally frustrates, if not resultantly negates the independence of the Office of
the Ombudsman is tenuous. The independence which the Office of the Ombudsman is vested with
was intended to free it from political considerations in pursuing its constitutional mandate to be a
protector of the people. What the Constitution secures for the Office of the Ombudsman is,
essentially, political independence. This means nothing more than that "the terms of office, the
salary, the appointments and discipline of all persons under the office" are "reasonably insulated
from the whims of politicians."
52
And so it was that Section 5, Article XI of the 1987 Constitution had
declared the creation of the independent Office of the Ombudsman, composed of the Ombudsman
and his Deputies, who are described as "protectors of the people" and constitutionally mandated to
act promptly on complaints filed in any form or manner against public officials or employees of the
Government Section 12, Article XI. Pertinent provisions under Article XI prescribes a term of office of
seven years without reappointment Section 11, prohibits a decrease in salaries during the term of
office Section 10, provides strict qualifications for the office Section 8, grants fiscal autonomy
Section 14 and ensures the exercise of constitutional functions Section 12 and 13. The cloak of
independence is meant to build up the Office of the Ombudsman's institutional strength to effectively
function as official critic, mobilizer of government, constitutional watchdog
53
and protector of the
people. It certainly cannot be made to extend to wrongdoings and permit the unbridled acts of its
officials to escape administrative discipline.
Being aware of the constitutional imperative of shielding the Office of the Ombudsman from political
influences and the discretionary acts of the executive, Congress laid down two restrictions on the
President's exercise of such power of removal over a Deputy Ombudsman, namely: (1) that the
removal of the Deputy Ombudsman must be for any of the grounds provided for the removal of the
Ombudsman and (2) that there must be observance of due process. Reiterating the grounds for
impeachment laid down in Section 2, Article XI of the 1987 Constitution, paragraph 1 of Section 8 of
R.A. No. 6770 states that the Deputy Ombudsman may be removed from office for the same
grounds that the Ombudsman may be removed through impeachment, namely, "culpable violation of
the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust."
Thus, it cannot be rightly said that giving the President the power to remove a Deputy Ombudsman,
or a Special Prosecutor for that matter, would diminish or compromise the constitutional
independence of the Office of the Ombudsman. It is, precisely, a measure of protection of the
independence of the Ombudsman's Deputies and Special Prosecutor in the discharge of their duties
that their removal can only be had on grounds provided by law.
In Espinosa v. Office of the Ombudsman,
54
the Court elucidated on the nature of the Ombudsman's
independence in this wise -
The prosecution of offenses committed by public officers is vested in the Office of the Ombudsman.
To insulate the Office from outside pressure and improper influence, the Constitution as well as RA
6770 has endowed it with a wide latitude of investigatory and prosecutory powers virtually free from
legislative, executive or judicial intervention. This Court consistently refrains from interfering with the
exercise of its powers, and respects the initiative and independence inherent in the Ombudsman
who, 'beholden to no one, acts as the champion of the people and the preserver of the integrity of
public service.
Petitioner Gonzales may not be
removed from office where the
questioned acts, falling short of
constitutional standards, do not
constitute betrayal of public trust.
Having now settled the question concerning the validity of the President's power to remove the
Deputy Ombudsman and Special Prosecutor, we now go to the substance of the administrative
findings in OP Case No. 10-J-460 which led to the dismissal of herein petitioner, Deputy
Ombudsman Emilio A. Gonzales, III.
At the outset, the Court finds no cause for petitioner Gonzales to complain simply because the OP
proceeded with the administrative case against him despite his non-attendance thereat. Petitioner
was admittedly able to file an Answer in which he had interposed his defenses to the formal charge
against him. Due process is satisfied when a person is notified of the charge against him and given
an opportunity to explain or defend himself. In administrative proceedings, the filing of charges and
giving reasonable opportunity for the person so charged to answer the accusations against him
constitute the minimum requirements of due process.
55
Due process is simply having the opportunity
to explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained
of.
56

The essence of due process is that a party is afforded reasonable opportunity to be heard and to
submit any evidence he may have in support of his defense.
57
Mere opportunity to be heard is
sufficient. As long as petitioner was given the opportunity to explain his side and present evidence,
the requirements of due process are satisfactorily complied with because what the law abhors is an
absolute lack of opportunity to be heard.
58
Besides, petitioner only has himself to blame for limiting
his defense through the filing of an Answer. He had squandered a subsequent opportunity to
elucidate upon his pleaded defenses by adamantly refusing to attend the scheduled Clarificatory
Conference despite notice. The OP recounted as follows -
It bears noting that respondent Deputy Ombudsman Gonzalez was given two separate opportunities
to explain his side and answer the Formal Charge against him.
In the first instance, respondent was given the opportunity to submit his answer together with his
documentary evidence, which opportunity respondent actually availed of. In the second instance,
this Office called a Clarificatory Conference on 8 February 2011 pursuant to respondent's express
election of a formal investigation. Despite due notice, however, respondent Deputy Ombudsman
refused to appear for said conference, interposing an objection based on the unfounded notion that
this Office has prejudged the instant case. Respondent having been given actual and reasonable
opportunity to explain or defend himself in due course, the requirement of due process has been
satisfied.
59

In administrative proceedings, the quantum of proof necessary for a finding of guilt is substantial
evidence,
60
which is more than a mere scintilla and means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.
61
The fact, therefore, that petitioner later
refused to participate in the hearings before the OP is not a hindrance to a finding of his culpability
based on substantial evidence, which only requires that a decision must "have something upon
which it is based."
62

Factual findings of administrative bodies are controlling when supported by substantial
evidence.
63
The OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of removal from office was based on the finding of
gross neglect of duty and grave misconduct in office amounting to a betrayal of public trust, which is
a constitutional ground for the removal by impeachment of the Ombudsman (Section 2, Article XI,
1987 Constitution), and a statutory ground for the President to remove from office a Deputy
Ombudsman and a Special Prosecutor Section 8(2) of the Ombudsman Act.
The OP held that petitioner's want of care and wrongful conduct consisted of his unexplained action
in directing the PNP-NCR to elevate P/S Insp. Mendoza's case records to his office; his failure to
verify the basis for requesting the Ombudsman to take over the case; his pronouncement of
administrative liability and imposition of the extreme penalty of dismissal on P/S Insp. Mendoza
based upon an unverified complaint-affidavit; his inordinate haste in implementing P/S Insp.
Mendoza's dismissal notwithstanding the latter's non-receipt of his copy of the Decision and the
subsequent filing of a motion for reconsideration; and his apparent unconcern that the pendency of
the motion for reconsideration for more than five months had deprived P/S Insp. Mendoza of
available remedies against the immediate implementation of the Decision dismissing him from the
service.
Thus, taking into consideration the factual determinations of the IIRC, the allegations and evidence
of petitioner in his Answer as well as other documentary evidence, the OP concluded that: (1)
petitioner failed to supervise his subordinates to act with dispatch on the draft resolution of P/S Insp.
Mendoza's motion for reconsideration and thereby caused undue prejudice to P/S Insp. Mendoza by
effectively depriving the latter of the right to challenge the dismissal before the courts and prevent its
immediate execution, and (2) petitioner showed undue interest by having P/S Insp. Mendoza's case
endorsed to the Office of the Ombudsman and resolving the same against P/S Insp. Mendoza on the
basis of the unverified complaint-affidavit of the alleged victim Christian Kalaw.
The invariable rule is that administrative decisions in matters within the executive jurisdiction can
only be set aside on proof of gross abuse of discretion, fraud, or error of law.
64
In the instant case,
while the evidence may show some amount of wrongdoing on the part of petitioner, the Court
seriously doubts the correctness of the OP's conclusion that the imputed acts amount to gross
neglect of duty and grave misconduct constitutive of betrayal of public trust. To say that petitioner's
offenses, as they factually appear, weigh heavily enough to constitute betrayal of public trust would
be to ignore the significance of the legislature's intent in prescribing the removal of the Deputy
Ombudsman or the Special Prosecutor for causes that, theretofore, had been reserved only for the
most serious violations that justify the removal by impeachment of the highest officials of the land.
Would every negligent act or misconduct in the performance of a Deputy Ombudsman's duties
constitute betrayal of public trust warranting immediate removal from office? The question calls for a
deeper, circumspective look at the nature of the grounds for the removal of a Deputy Ombudsman
and a Special Prosecutor vis-a-vis common administrative offenses.
Betrayal of public trust is a new ground for impeachment under the 1987 Constitution added to the
existing grounds of culpable violation of the Constitution, treason, bribery, graft and corruption and
other high crimes. While it was deemed broad enough to cover any violation of the oath of
office,
65
the impreciseness of its definition also created apprehension that "such an overarching
standard may be too broad and may be subject to abuse and arbitrary exercise by the
legislature."
66
Indeed, the catch-all phrase betrayal of public trust that referred to "all acts not
punishable by statutes as penal offenses but, nonetheless, render the officer unfit to continue in
office"
67
could be easily utilized for every conceivable misconduct or negligence in office. However,
deliberating on some workable standard by which the ground could be reasonably interpreted, the
Constitutional Commission recognized that human error and good faith precluded an adverse
conclusion.
MR. VILLACORTA: x x x One last matter with respect to the use of the words "betrayal of public
trust" as embodying a ground for impeachment that has been raised by the Honorable Regalado. I
am not a lawyer so I can anticipate the difficulties that a layman may encounter in understanding this
provision and also the possible abuses that the legislature can commit in interpreting this phrase. It
is to be noted that this ground was also suggested in the 1971 Constitutional Convention. A review
of the Journals of that Convention will show that it was not included; it was construed as
encompassing acts which are just short of being criminal but constitute gross faithlessness against
public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers. I understand from the earlier discussions that these constitute
violations of the oath of office, and also I heard the Honorable Davide say that even the criminal acts
that were enumerated in the earlier 1973 provision on this matter constitute betrayal of public trust
as well. In order to avoid confusion, would it not be clearer to stick to the wording of Section 2 which
reads: "may be removed from office on impeachment for and conviction of, culpable violation of the
Constitution, treason, bribery, and other high crimes, graft and corruption or VIOLATION OF HIS
OATH OF OFFICE", because if betrayal of public trust encompasses the earlier acts that were
enumerated, then it would behoove us to be equally clear about this last provision or phrase.
MR. NOLLEDO: x x x I think we will miss a golden opportunity if we fail to adopt the words "betrayal
of public trust" in the 1986 Constitution. But I would like him to know that we are amenable to any
possible amendment. Besides, I think plain error of judgment, where circumstances may indicate
that there is good faith, to my mind, will not constitute betrayal of public trust if that statement will
allay the fears of difficulty in interpreting the term."
68
(Emphasis supplied)
The Constitutional Commission eventually found it reasonably acceptable for the phrase betrayal of
public trust to refer to "acts which are just short of being criminal but constitute gross faithlessness
against public trust, tyrannical abuse of power, inexcusable negligence of duty, favoritism, and gross
exercise of discretionary powers."
69
In other words, acts that should constitute betrayal of public trust
as to warrant removal from office may be less than criminal but must be attended by bad faith and of
such gravity and seriousness as the other grounds for impeachment.
A Deputy Ombudsman and a Special Prosecutor are not impeachable officers. However, by
providing for their removal from office on the same grounds as removal by impeachment, the
legislature could not have intended to redefine constitutional standards of culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, as well as betrayal of public
trust, and apply them less stringently. Hence, where betrayal of public trust, for purposes of
impeachment, was not intended to cover all kinds of official wrongdoing and plain errors of judgment,
this should remain true even for purposes of removing a Deputy Ombudsman and Special
Prosecutor from office. Hence, the fact that the grounds for impeachment have been made statutory
grounds for the removal by the President of a Deputy Ombudsman and Special Prosecutor cannot
diminish the seriousness of their nature nor the acuity of their scope. Betrayal of public trust could
not suddenly "overreach" to cover acts that are not vicious or malevolent on the same level as the
other grounds for impeachment.
The tragic hostage-taking incident was the result of a confluence of several unfortunate events
including system failure of government response. It cannot be solely attributed then to what
petitioner Gonzales may have negligently failed to do for the quick, fair and complete resolution of
the case, or to his error of judgment in the disposition thereof. Neither should petitioner's official acts
in the resolution of P/S Insp. Mendoza's case be judged based upon the resulting deaths at the
Quirino Grandstand. The failure to immediately act upon a party's requests for an early resolution of
his case is not, by itself, gross neglect of duty amounting to betrayal of public trust. Records show
that petitioner took considerably less time to act upon the draft resolution after the same was
submitted for his appropriate action compared to the length of time that said draft remained pending
and unacted upon in the Office of Ombudsman Merceditas N. Gutierrez. He reviewed and denied
P/S Insp. Mendoza's motion for reconsideration within nine (9) calendar days reckoned from the time
the draft resolution was submitted to him on April 27, 2010 until he forwarded his recommendation to
the Office of Ombudsman Gutierrez on May 6, 2010 for the latter's final action. Clearly, the release
of any final order on the case was no longer in his hands.
Even if there was inordinate delay in the resolution of P/S Insp. Mendoza's motion and an
unexplained failure on petitioner's part to supervise his subordinates in its prompt disposition, the
same cannot be considered a vicious and malevolent act warranting his removal for betrayal of
public trust. More so because the neglect imputed upon petitioner appears to be an isolated case.
Similarly, petitioner's act of directing the PNP-IAS to endorse P/S Insp. Mendoza's case to the
Ombudsman without citing any reason therefor cannot, by itself, be considered a manifestation of his
undue interest in the case that would amount to wrongful or unlawful conduct. After all, taking
cognizance of cases upon the request of concerned agencies or private parties is part and parcel of
the constitutional mandate of the Office of the Ombudsman to be the "champion of the people." The
factual circumstances that the case was turned over to the Office of the Ombudsman upon
petitioner's request; that administrative liability was pronounced against P/S Insp. Mendoza even
without the private complainant verifying the truth of his statements; that the decision was
immediately implemented; or that the motion for reconsideration thereof remained pending for more
than nine months cannot be simply taken as evidence of petitioner's undue interest in the case
considering the lack of evidence of any personal grudge, social ties or business affiliation with any of
the parties to the case that could have impelled him to act as he did. There was likewise no evidence
at all of any bribery that took place, or of any corrupt intention or questionable motivation.
Accordingly, the OP's pronouncement of administrative accountability against petitioner and the
imposition upon him of the corresponding penalty of dismissal must be reversed and set aside, as
the findings of neglect of duty or misconduct in office do not amount to a betrayal of public trust.
Hence, the President, while he may be vested with authority, cannot order the removal of petitioner
as Deputy Ombudsman, there being no intentional wrongdoing of the grave and serious kind
amounting to a betrayal of public trust.
This is not to say, however, that petitioner is relieved of all liability for his acts showing less than
diligent performance of official duties. Although the administrative acts imputed to petitioner fall short
of the constitutional standard of betrayal of public trust, considering the OP's factual findings of
negligence and misconduct against petitioner, the Court deems it appropriate to refer the case to the
Office of the Ombudsman for further investigation of the charges in OP Case No. 10-J-460 and the
imposition of the corresponding administrative sanctions, if any.
Inasmuch as there is as yet no existing ground justifying his removal from office, petitioner is entitled
to reinstatement to his former position as Deputy Ombudsman and to the payment of backwages
and benefits corresponding to the period of his suspension.
The Office of the President is vested
with statutory authority to proceed
administratively against petitioner
Barreras-Sulit to determine the
existence of any of the grounds for
her removal from office as provided
for under the Constitution and the
Ombudsman Act.
Petitioner Barreras-Sulit, on the other hand, has been resisting the President's authority to remove
her from office upon the averment that without the Sandiganbayan's final approval and judgment on
the basis of the PLEBARA, it would be premature to charge her with acts and/or omissions
"tantamount to culpable violations of the Constitution and betrayal of public trust," which are grounds
for removal from office under Section 8, paragraph (2) of the Ombudsman Act of 1989; and which
also constitute a violation of Section 3, paragraph (e) of Republic Act No. 3019 (Anti-Graft and
Corrupt Practices Act) - causing undue injury to the Government or giving any private party any
unwarranted benefits, advantage or preference through manifest partiality, evident bad faith or gross
inexcusable negligence. With reference to the doctrine of prejudicial procedural antecedent,
petitioner Barreras-Sulit asserts that the propriety of taking and continuing to take administrative
disciplinary proceeding against her must depend on the final disposition by the Sandiganbayan of
the PLEBARA, explaining that if the Sandiganbayan would uphold the PLEBARA, there would no
longer be any cause of complaint against her; if not, then the situation becomes ripe for the
determination of her failings.
The argument will not hold water. The incidents that have taken place subsequent to the submission
in court of the PLEBARA shows that the PLEBARA has been practically approved, and that the only
thing which remains to be done by the Sandiganbayan is to promulgate a judgment imposing the
proper sentence on the accused Major General Garcia based on his new pleas to lesser offenses.
On May 4, 2010, the Sandiganbayan issued a resolution declaring that the change of plea under the
PLEBARA was warranted and that it complied with jurisprudential guidelines. The Sandiganbayan,
thereafter, directed the accused Major General Garcia to immediately convey in favor of the State all
the properties, both real and personal, enumerated therein. On August 11, 2010, the Sandiganbayan
issued a resolution, which, in order to put into effect the reversion of Major General Garcia's ill-gotten
properties, ordered the corresponding government agencies to cause the transfer of ownership of
said properties to the Republic of the Philippines. In the meantime, the Office of the Special
Prosecutor (OSP) informed the Sandiganbayan that an Order
70
had been issued by the Regional
Trial Court of Manila, Branch 21 on November 5, 2010 allowing the transfer of the accused's frozen
accounts to the Republic of the Philippines pursuant to the terms of the PLEBARA as approved by
the Sandiganbayan. Immediately after the OSP informed the Sandiganbayan that its May 4, 2010
Resolution had been substantially complied with, Major General Garcia manifested
71
to the
Sandiganbayan on November 19, 2010 his readiness for sentencing and for the withdrawal of the
criminal information against his wife and two sons. Major General Garcia's Motion to
Dismiss,
72
dated December 16, 2010 and filed with the Sandiganbayan, reads:
1.0 The Co-Accused were impleaded under the theory of conspiracy with the Principal Accused
MGen. Carlos F. Garcia (AFP Ret.), (Principal Accused) with the allegation that the act of one is the
act of the others. Therefore, with the approval by the Honorable Court of the Plea Bargaining
Agreement executed by the Principal Accused, the charges against the Co-Accused should likewise
be dismissed since the charges against them are anchored on the same charges against the
Principal Accused.
On December 16, 2010, the Sandiganbayan allowed accused Major General Garcia to plead guilty
to the lesser offenses of direct bribery and violation of Section 4(b), R.A. No. 9160, as amended.
Upon Major General Garcia's motion, and with the express conformity of the OSP, the
Sandiganbayan allowed him to post bail in both cases, each at a measly amount of P 30,000.00.
The approval or disapproval of the PLEBARA by the Sandiganbayan is of no consequence to an
administrative finding of liability against petitioner Barreras-Sulit. While the court's determination of
the propriety of a plea bargain is on the basis of the existing prosecution evidence on record, the
disciplinary authority's determination of the prosecutor's administrative liability is based on whether
the plea bargain is consistent with the conscientious consideration of the government's best interest
and the diligent and efficient performance by the prosecution of its public duty to prosecute crimes
against the State. Consequently, the disciplining authority's finding of ineptitude, neglect or
willfulness on the part of the prosecution, more particularly petitioner Special Prosecutor Barreras-
Sulit, in failing to pursue or build a strong case for the government or, in this case, entering into an
agreement which the government finds "grossly disadvantageous," could result in administrative
liability, notwithstanding court approval of the plea bargaining agreement entered into.
Plea bargaining is a process in criminal cases whereby the accused and the prosecution work out a
mutually satisfactory disposition of the case subject to court approval.
73
The essence of a plea
bargaining agreement is the allowance of an accused to plead guilty to a lesser offense than that
charged against him. Section 2, Rule 116 of the Revised Rules of Criminal Procedure provides the
procedure therefor, to wit:
SEC. 2. Plea of guilty to a lesser offense. -- At arraignment, the accused, with the consent of the
offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser
offense which is necessarily included in the offense charged. After arraignment but before trial, the
accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or information is necessary. (Sec. 4, Cir. 38-98)
Plea bargaining is allowable when the prosecution does not have sufficient evidence to establish the
guilt of the accused of the crime charged.
74
However, if the basis for the allowance of a plea bargain
in this case is the evidence on record, then it is significant to state that in its earlier
Resolution
75
promulgated on January 7, 2010, the Sandiganbayan had evaluated the testimonies of
twenty (20) prosecution witnesses and declared that "the conglomeration of evidence presented by
the prosecution is viewed by the Court to be of strong character that militates against the grant of
bail."
Notwithstanding this earlier ruling by the Sandiganbayan, the OSP, unexplainably, chose to plea
bargain with the accused Major General Garcia as if its evidence were suddenly insufficient to
secure a conviction. At this juncture, it is not amiss to emphasize that the "standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly higher than the standard
of judicial probable cause which is sufficient to initiate a criminal case."
76
Hence, in light of the
apparently strong case against accused Major General Garcia, the disciplining authority would be
hard-pressed not to look into the whys and wherefores of the prosecution's turnabout in the case.
The Court need not touch further upon the substantial matters that are the subject of the pending
administrative proceeding against petitioner Barreras-Sulit and are, thus, better left to the complete
and effective resolution of the administrative case before the Office of the President.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act has, nonetheless, failed
to obtain the necessary votes to invalidate the law, thus, keeping said provision part of the law of the
land. To recall, these cases involve two distinct issues: (a) the constitutionality of Section 8(2) of the
Ombudsman Act; and (b) the validity of the administrative action of removal taken against petitioner
Gonzales. While the Court voted unanimously to reverse the decision of the OP removing petitioner
Gonzales from office, it was equally divided in its opinion on the constitutionality of the assailed
statutory provision in its two deliberations held on April 17, 2012 and September 4, 2012. There
being no majority vote to invalidate the law, the Court, therefore, dismisses the challenge to the
constitutionality of Section 8(2) of the Ombudsman Act in accordance with Section 2(d), Rule 12 of
the Internal Rules of the Court.
Indeed, Section 4(2), Article VIII of the 1987 Constitution requires the vote of the majority of the
Members of the Court actually taking part in the deliberation to sustain any challenge to the
constitutionality or validity of a statute or any of its provisions.
WHEREFORE, in G.R. No. 196231, the decision of the Office of the President in OP Case No. 10-J-
460 isREVERSED and SET ASIDE. Petitioner Emilio A. Gonzales III is ordered REINSTATED with
payment of backwages corresponding to the period of suspension effective immediately, even as the
Office of the Ombudsman is directed to proceed with the investigation in connection with the above
case against petitioner. In G.R. No. 196232, WeAFFIRM the continuation of OP-DC Case No. 11-B-
003 against Special Prosecutor Wendell Barreras-Sulit for alleged acts and omissions tantamount to
culpable violation of the Constitution and a betrayal of public trust, in accordance with Section 8(2) of
the Ombudsman Act of 1989.
The challenge to the constitutionality of Section 8(2) of the Ombudsman Act is hereby DENIED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-59234 September 30, 1982
TAXICAB OPERATORS OF METRO MANILA, INC., FELICISIMO CABIGAO and ACE
TRANSPORTATION CORPORATION, petitioners,
vs.
THE BOARD OF TRANSPORTATION and THE DIRECTOR OF THE BUREAU OF LAND
TRANSPORTATION,respondents.

MELENCIO-HERRERA, J .:
This Petition for "Certiorari, Prohibition and mandamus with Preliminary Injunction and Temporary
Restraining Order" filed by the Taxicab Operators of Metro Manila, Inc., Felicisimo Cabigao and Ace
Transportation, seeks to declare the nullity of Memorandum Circular No. 77-42, dated October 10,
1977, of the Board of Transportation, and Memorandum Circular No. 52, dated August 15, 1980, of
the Bureau of Land Transportation.
Petitioner Taxicab Operators of Metro Manila, Inc. (TOMMI) is a domestic corporation composed of
taxicab operators, who are grantees of Certificates of Public Convenience to operate taxicabs within
the City of Manila and to any other place in Luzon accessible to vehicular traffic. Petitioners Ace
Transportation Corporation and Felicisimo Cabigao are two of the members of TOMMI, each being
an operator and grantee of such certificate of public convenience.
On October 10, 1977, respondent Board of Transportation (BOT) issued Memorandum Circular No.
77-42 which reads:
SUBJECT: Phasing out and Replacement of
Old and Dilapidated Taxis
WHEREAS, it is the policy of the government to insure that only safe and
comfortable units are used as public conveyances;
WHEREAS, the riding public, particularly in Metro-Manila, has, time and again,
complained against, and condemned, the continued operation of old and dilapidated
taxis;
WHEREAS, in order that the commuting public may be assured of comfort,
convenience, and safety, a program of phasing out of old and dilapidated taxis
should be adopted;
WHEREAS, after studies and inquiries made by the Board of Transportation, the
latter believes that in six years of operation, a taxi operator has not only covered the
cost of his taxis, but has made reasonable profit for his investments;
NOW, THEREFORE, pursuant to this policy, the Board hereby declares that no car
beyond six years shall be operated as taxi, and in implementation of the same
hereby promulgates the following rules and regulations:
1. As of December 31, 1977, all taxis of Model 1971 and earlier are ordered
withdrawn from public service and thereafter may no longer be registered and
operated as taxis. In the registration of cards for 1978, only taxis of Model 1972 and
later shall be accepted for registration and allowed for operation;
2. As of December 31, 1978, all taxis of Model 1972 are ordered withdrawn from
public service and thereafter may no longer be registered and operated as taxis. In
the registration of cars for 1979, only taxis of Model 1973 and later shall be accepted
for registration and allowed for operation; and every year thereafter, there shall be a
six-year lifetime of taxi, to wit:
1980 Model 1974
1981 Model 1975, etc.
All taxis of earlier models than those provided above are hereby ordered withdrawn
from public service as of the last day of registration of each particular year and their
respective plates shall be surrendered directly to the Board of Transportation for
subsequent turnover to the Land Transportation Commission.
For an orderly implementation of this Memorandum Circular, the rules herein shall
immediately be effective in Metro-Manila. Its implementation outside Metro- Manila shall
be carried out only after the project has been implemented in Metro-Manila and only after
the date has been determined by the Board.
1

Pursuant to the above BOT circular, respondent Director of the Bureau of Land Transportation (BLT)
issued Implementing Circular No. 52, dated August 15, 1980, instructing the Regional Director, the
MV Registrars and other personnel of BLT, all within the National Capitol Region, to implement said
Circular, and formulating a schedule of phase-out of vehicles to be allowed and accepted for
registration as public conveyances. To quote said Circular:
Pursuant to BOT Memo-Circular No. 77-42, taxi units with year models over six (6)
years old are now banned from operating as public utilities in Metro Manila. As such
the units involved should be considered as automatically dropped as public utilities
and, therefore, do not require any further dropping order from the BOT.
Henceforth, taxi units within the National Capitol Region having year models over 6
years old shall be refused registration. The following schedule of phase-out is
herewith prescribed for the guidance of all concerned:
Year Model
Automatic
Phase-Out
Year
1980
1974 1981
1975 1982
1976 1983
1977
etc. etc.
Strict compliance here is desired.
2

In accordance therewith, cabs of model 1971 were phase-out in registration year 1978; those of
model 1972, in 1979; those of model 1973, in 1980; and those of model 1974, in 1981.
On January 27, 1981, petitioners filed a Petition with the BOT, docketed as Case No. 80-7553,
seeking to nullify MC No. 77-42 or to stop its implementation; to allow the registration and operation
in 1981 and subsequent years of taxicabs of model 1974, as well as those of earlier models which
were phased-out, provided that, at the time of registration, they are roadworthy and fit for operation.
On February 16, 1981, petitioners filed before the BOT a "Manifestation and Urgent Motion", praying
for an early hearing of their petition. The case was heard on February 20, 1981. Petitioners
presented testimonial and documentary evidence, offered the same, and manifested that they would
submit additional documentary proofs. Said proofs were submitted on March 27, 1981 attached to
petitioners' pleading entitled, "Manifestation, Presentation of Additional Evidence and Submission of
the Case for Resolution."
3

On November 28, 1981, petitioners filed before the same Board a "Manifestation and Urgent Motion
to Resolve or Decide Main Petition" praying that the case be resolved or decided not later than
December 10, 1981 to enable them, in case of denial, to avail of whatever remedy they may have
under the law for the protection of their interests before their 1975 model cabs are phased-out on
January 1, 1982.
Petitioners, through its President, allegedly made personal follow-ups of the case, but was later
informed that the records of the case could not be located.
On December 29, 1981, the present Petition was instituted wherein the following queries were posed
for consideration by this Court:
A. Did BOT and BLT promulgate the questioned memorandum circulars in accord
with the manner required by Presidential Decree No. 101, thereby safeguarding the
petitioners' constitutional right to procedural due process?
B. Granting, arguendo, that respondents did comply with the procedural
requirements imposed by Presidential Decree No. 101, would the implementation
and enforcement of the assailed memorandum circulars violate the petitioners'
constitutional rights to.
(1) Equal protection of the law;
(2) Substantive due process; and
(3) Protection against arbitrary and unreasonable
classification and standard?
On Procedural and Substantive Due Process:
Presidential Decree No. 101 grants to the Board of Transportation the power
4. To fix just and reasonable standards, classification, regulations, practices,
measurements, or service to be furnished, imposed, observed, and followed by
operators of public utility motor vehicles.
Section 2 of said Decree provides procedural guidelines for said agency to follow in the exercise of
its powers:
Sec. 2. Exercise of powers. In the exercise of the powers granted in the preceding
section, the Board shag proceed promptly along the method of legislative inquiry.
Apart from its own investigation and studies, the Board, in its discretion, may require
the cooperation and assistance of the Bureau of Transportation, the Philippine
Constabulary, particularly the Highway Patrol Group, the support agencies within the
Department of Public Works, Transportation and Communications, or any other
government office or agency that may be able to furnish useful information or data in
the formulation of the Board of any policy, plan or program in the implementation of
this Decree.
The Board may also can conferences, require the submission of position papers or
other documents, information, or data by operators or other persons that may be
affected by the implementation of this Decree, or employ any other suitable means of
inquiry.
In support of their submission that they were denied procedural due process, petitioners contend
that they were not caged upon to submit their position papers, nor were they ever summoned to
attend any conference prior to the issuance of the questioned BOT Circular.
It is clear from the provision aforequoted, however, that the leeway accorded the Board gives it a
wide range of choice in gathering necessary information or data in the formulation of any policy, plan
or program. It is not mandatory that it should first call a conference or require the submission of
position papers or other documents from operators or persons who may be affected, this being only
one of the options open to the Board, which is given wide discretionary authority. Petitioners cannot
justifiably claim, therefore, that they were deprived of procedural due process. Neither can they state
with certainty that public respondents had not availed of other sources of inquiry prior to issuing the
challenged Circulars. operators of public conveyances are not the only primary sources of the data
and information that may be desired by the BOT.
Dispensing with a public hearing prior to the issuance of the Circulars is neither violative of
procedural due process. As held in Central Bank vs. Hon. Cloribel and Banco Filipino, 44 SCRA 307
(1972):
Pevious notice and hearing as elements of due process, are constitutionally required
for the protection of life or vested property rights, as well as of liberty, when its
limitation or loss takes place in consequence of a judicial or quasi-judicial
proceeding, generally dependent upon a past act or event which has to be
established or ascertained. It is not essential to the validity of general rules or
regulations promulgated to govern future conduct of a class or persons or
enterprises, unless the law provides otherwise. (Emphasis supplied)
Petitioners further take the position that fixing the ceiling at six (6) years is arbitrary and oppressive
because the roadworthiness of taxicabs depends upon their kind of maintenance and the use to
which they are subjected, and, therefore, their actual physical condition should be taken into
consideration at the time of registration. As public contend, however, it is impractical to subject every
taxicab to constant and recurring evaluation, not to speak of the fact that it can open the door to the
adoption of multiple standards, possible collusion, and even graft and corruption. A reasonable
standard must be adopted to apply to an vehicles affected uniformly, fairly, and justly. The span of
six years supplies that reasonable standard. The product of experience shows that by that time taxis
have fully depreciated, their cost recovered, and a fair return on investment obtained. They are also
generally dilapidated and no longer fit for safe and comfortable service to the public specially
considering that they are in continuous operation practically 24 hours everyday in three shifts of
eight hours per shift. With that standard of reasonableness and absence of arbitrariness, the
requirement of due process has been met.
On Equal Protection of the Law:
Petitioners alleged that the Circular in question violates their right to equal protection of the law
because the same is being enforced in Metro Manila only and is directed solely towards the taxi
industry. At the outset it should be pointed out that implementation outside Metro Manila is also
envisioned in Memorandum Circular No. 77-42. To repeat the pertinent portion:
For an orderly implementation of this Memorandum Circular, the rules herein shall
immediately be effective in Metro Manila. Its implementation outside Metro Manila shall
be carried out only after the project has been implemented in Metro Manila and only after
the date has been determined by the Board.
4

In fact, it is the understanding of the Court that implementation of the Circulars in Cebu City is
already being effected, with the BOT in the process of conducting studies regarding the operation of
taxicabs in other cities.
The Board's reason for enforcing the Circular initially in Metro Manila is that taxicabs in this city,
compared to those of other places, are subjected to heavier traffic pressure and more constant use.
This is of common knowledge. Considering that traffic conditions are not the same in every city, a
substantial distinction exists so that infringement of the equal protection clause can hardly be
successfully claimed.
As enunciated in the preambular clauses of the challenged BOT Circular, the overriding
consideration is the safety and comfort of the riding public from the dangers posed by old and
dilapidated taxis. The State, in the exercise, of its police power, can prescribe regulations to promote
the health, morals, peace, good order, safety and general welfare of the people. It can prohibit all
things hurtful to comfort, safety and welfare of society.
5
It may also regulate property rights.
6
In the
language of Chief Justice Enrique M. Fernando "the necessities imposed by public welfare may
justify the exercise of governmental authority to regulate even if thereby certain groups may
plausibly assert that their interests are disregarded".
7

In so far as the non-application of the assailed Circulars to other transportation services is
concerned, it need only be recalled that the equal protection clause does not imply that the same
treatment be accorded all and sundry. It applies to things or persons Identically or similarly situated.
It permits of classification of the object or subject of the law provided classification is reasonable or
based on substantial distinction, which make for real differences, and that it must apply equally to
each member of the class.
8
What is required under the equal protection clause is the uniform
operation by legal means so that all persons under Identical or similar circumstance would be
accorded the same treatment both in privilege conferred and the liabilities imposed.
9
The challenged
Circulars satisfy the foregoing criteria.
Evident then is the conclusion that the questioned Circulars do not suffer from any constitutional
infirmity. To declare a law unconstitutional, the infringement of constitutional right must be clear,
categorical and undeniable.
10

WHEREFORE, the Writs prayed for are denied and this Petition is hereby dismissed. No costs.
SO ORDERED.
Fernando, CJ., Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad Santos, De Castro, Plana,
Escolin, Vasquez, Relova and Gutierrez, Jr., JJ., concur.
Teehankee and Aquino, JJ., concur in the result.
Taxicab Operators of Metro Manila Inc vs The
Board of Transportation et al
on November 15, 2010
Equal Protection Phasing Out of Old Taxis in MM but not Elsewhere
On 10 Oct 1977, BOT issued Circ 77-42 which has for its purpose the phasing out of old and dilapidated
taxis which are 6 years older. The law is set to be immediately implemented in Metro Manila first before it
would be implemented elsewhere. Pursuant to this, the Director of the Bureau of Land Transportation
issued Circ 52 which is the IRR of the law in the NCR. TOMMI assailed the constitutionality of the law. It
avers, among other things, that the Circular in question violates their right to equal protection of the law
because the same is being enforced in Metro Manila only and is directed solely towards the taxi industry.
At the outset it should be pointed out that implementation outside Metro Manila is also envisioned in
Memorandum Circular No. 77-42.
ISSUE: Whether or not there is a violation of the equal protection clause by the implementation of the
said circular.
HELD: The SC held that Circ 77-42 is valid. BOTs reason for enforcing the Circular initially in Metro
Manila is that taxicabs in this city, compared to those of other places, are subjected to heavier traffic
pressure and more constant use. Thus is of common knowledge. Considering that traffic conditions are
not the same in every city, a substantial distinction exists so that infringement of the equal protection
clause can hardly be successfully claimed.
In so far as the non-application of the assailed Circulars to other transportation services is concerned, it
need only be recalled that the equal protection clause does not imply that the same treatment be
accorded all and sundry. It applies to things or persons identically or similarly situated. It permits of
classification of the object or subject of the law provided classification is reasonable or based on
substantial distinction, which make for real differences, and that it must apply equally to each member of
the class. What is required under the equal protection clause is the uniform operation by legal means so
that all persons under identical or similar circumstance would be accorded the same treatment both in
privilege conferred and the liabilities imposed. The challenged Circulars satisfy the foregoing criteria.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 84818 December 18, 1989
PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner,
vs.
JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION,respondents.
Rilloraza, Africa, De Ocampo & Africa for petitioner.
Victor de la Serna for respondent Alcuaz.

REGALADO, J .:
This case is posed as one of first impression in the sense that it involves the public utility services of
the petitioner Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is
the only one rendering such services in the Philippines.
The petition before us seeks to annul and set aside an Order
1
issued by respondent Commissioner
Jose Luis Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated
September 2, 1988, which directs the provisional reduction of the rates which may be charged by
petitioner for certain specified lines of its services by fifteen percent (15%) with the reservation to
make further reductions later, for being violative of the constitutional prohibition against undue
delegation of legislative power and a denial of procedural, as well as substantive, due process of
law.
The antecedental facts as summarized by petitioner
2
are not in dispute. By virtue of Republic Act
No. 5514, PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in
the Philippines, at such places as the grantee may select, station or stations and associated
equipment and facilities for international satellite communications." Under this franchise, it was
likewise granted the authority to "construct and operate such ground facilities as needed to deliver
telecommunications services from the communications satellite system and ground terminal or
terminals."
Pursuant to said franchise, petitioner puts on record that it undertook the following activities and
established the following installations:
1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.
2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I
provided direct satellite communication links with the Pacific Ocean Region (the
United States, Australia, Canada, Hawaii, Guam, Korea, Thailand, China [PROC],
New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.
3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established.
Pinugay II provided links with the Indian Ocean Region (major cities in Europe,
Middle East, Africa, and other Asia Pacific countries operating within the region) thru
the Indian Ocean INTELSAT satellite.
4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to
temporarily assume the functions of Pinugay I and then Pinugay II while they were
being refurbished. Pinugay III now serves as spare or reserved antenna for possible
contingencies.
5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark
Air Field, Pampanga as a television receive-only earth station which provides the
U.S. Military bases with a 24-hour television service.
6. In 1989, petitioner completed the installation of a third standard "A" earth station
(Pinugay IV) to take over the links in Pinugay I due to obsolescence.
3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the
Philippines in the Agreement and the Operating Agreement relating to the International
Telecommunications Satellite Organization (INTELSAT) of 115 member nations, as well as in the
Convention and the Operating Agreement of the International Maritime Satellite Organization
(INMARSAT) of 53 member nations, which two global commercial telecommunications satellite
corporations were collectively established by various states in line with the principles set forth in
Resolution 1721 (XVI) of the General Assembly of the United Nations.
Since 1968, the petitioner has been leasing its satellite circuits to:
1. Philippine Long Distance Telephone Company;
2. Philippine Global Communications, Inc.;
3. Eastern Telecommunications Phils., Inc.;
4. Globe Mackay Cable and Radio Corp. ITT; and
5. Capitol Wireless, Inc.
or their predecessors-in-interest. The satellite services thus provided by petitioner enable said
international carriers to serve the public with indispensable communication services, such as
overseas telephone, telex, facsimile, telegrams, high speed data, live television in full color, and
television standard conversion from European to American or vice versa.
Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then
Public Service Commission, now respondent NTC. However, pursuant to Executive Order No. 196
issued on June 17, 1987, petitioner was placed under the jurisdiction, control and regulation of
respondent NTC, including all its facilities and services and the fixing of rates. Implementing said
Executive Order No. 196, respondents required petitioner to apply for the requisite certificate of
public convenience and necessity covering its facilities and the services it renders, as well as the
corresponding authority to charge rates therefor.
Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an
application
4
for authority to continue operating and maintaining the same facilities it has been
continuously operating and maintaining since 1967, to continue providing the international satellite
communications services it has likewise been providing since 1967, and to charge the current rates
applied for in rendering such services. Pending hearing, it also applied for a provisional authority so
that it can continue to operate and maintain the above mentioned facilities, provide the services and
charge therefor the aforesaid rates therein applied for.
On September 16, 1987, petitioner was granted a provisional authority to continue operating its
existing facilities, to render the services it was then offering, and to charge the rates it was then
charging. This authority was valid for six (6) months from the date of said order.
5
When said
provisional authority expired on March 17, 1988, it was extended for another six (6) months, or up to
September 16, 1988.
The NTC order now in controversy had further extended the provisional authority of the petitioner for
another six (6) months, counted from September 16, 1988, but it directed the petitioner to charge
modified reduced rates through a reduction of fifteen percent (15%) on the present authorized rates.
Respondent Commissioner ordered said reduction on the following ground:
The Commission in its on-going review of present service rates takes note that after an
initial evaluation by the Rates Regulation Division of the Common Carriers Authorization
Department of the financial statements of applicant, there is merit in a REDUCTION in
some of applicant's rates, subject to further reductions, should the Commission finds (sic)
in its further evaluation that more reduction should be effected either on the basis of a
provisional authorization or in the final consideration of the case.
6

PHILCOMSAT assails the above-quoted order for the following reasons:
1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for
public service communications does not provide the necessary standards constitutionally required,
hence there is an undue delegation of legislative power, particularly the adjudicatory powers of NTC;
2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the
same was exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned
order violates procedural due process for having been issued without prior notice and hearing; and
(b) the rate reduction it imposes is unjust, unreasonable and confiscatory, thus constitutive of a
violation of substantive due process.
I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the
creation of respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196,
placing petitioner under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is
guided by any standard in the exercise of its rate-fixing and adjudicatory powers. While petitioner in
its petition-in-chief raised the issue of undue delegation of legislative power, it subsequently clarified
its said submission to mean that the order mandating a reduction of certain rates is undue delegation
not of legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly
requires an express conferment by the legislative body.
Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive
Orders Nos. 546 and 196 on the ground that the same do not fix a standard for the exercise of the
power therein conferred.
We hold otherwise.
Fundamental is the rule that delegation of legislative power may be sustained only upon the ground
that some standard for its exercise is provided and that the legislature in making the delegation has
prescribed the manner of the exercise of the delegated power. Therefore, when the administrative
agency concerned, respondent NTC in this case, establishes a rate, its act must both be non-
confiscatory and must have been established in the manner prescribed by the legislature; otherwise,
in the absence of a fixed standard, the delegation of power becomes unconstitutional. In case of a
delegation of rate-fixing power, the only standard which the legislature is required to prescribe for the
guidance of the administrative authority is that the rate be reasonable and just. However, it has been
held that even in the absence of an express requirement as to reasonableness, this standard may
be implied.
7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and
the manner required by the statute for the lawful exercise thereof.
Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to
determine and prescribe rates pertinent to the operation of public service communications which
necessarily include the power to promulgate rules and regulations in connection therewith. And,
under Section 15(g) of Executive Order No. 546, respondent NTC should be guided by the
requirements of public safety, public interest and reasonable feasibility of maintaining effective
competition of private entities in communications and broadcasting facilities. Likewise, in Section
6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications
with control and supervision over respondent NTC, it is specifically provided that the national
economic viability of the entire network or components of the communications systems
contemplated therein should be maintained at reasonable rates. We need not go into an in-depth
analysis of the pertinent provisions of the law in order to conclude that respondent NTC, in the
exercise of its rate-fixing power, is limited by the requirements of public safety, public interest,
reasonable feasibility and reasonable rates, which conjointly more than satisfy the requirements of a
valid delegation of legislative power.
II. On another tack, petitioner submits that the questioned order violates procedural due process
because it was issued motu proprio, without notice to petitioner and without the benefit of a hearing.
Petitioner laments that said order was based merely on an "initial evaluation," which is a unilateral
evaluation, but had petitioner been given an opportunity to present its side before the order in
question was issued, the confiscatory nature of the rate reduction and the consequent deterioration
of the public service could have been shown and demonstrated to respondents. Petitioner argues
that the function involved in the rate fixing-power of NTC is adjudicatory and hence quasi-judicial, not
quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a
violation of due process.
Respondents admit that the application of a policy like the fixing of rates as exercised by
administrative bodies is quasi-judicial rather than quasi-legislative: that where the function of the
administrative agency is legislative, notice and hearing are not required, but where an order applies
to a named person, as in the instant case, the function involved is adjudicatory.
8
Nonetheless, they
insist that under the facts obtaining the order in question need not be preceded by a hearing, not
because it was issued pursuant to respondent NTC's legislative function but because the assailed
order is merely interlocutory, it being an incident in the ongoing proceedings on petitioner's
application for a certificate of public convenience; and that petitioner is not the only primary source of
data or information since respondent is currently engaged in a continuing review of the rates
charged.
We find merit in petitioner's contention.
In Vigan Electric Light Co., Inc. vs. Public Service Commission,
9
we made a categorical
classification as to when the rate-filing power of administrative bodies is quasi-judicial and when it is
legislative, thus:
Moreover, although the rule-making power and even the power to fix rates- when
such rules and/or rates are meant to apply to all enterprises of a given kind
throughout the Philippines-may partake of a legislative character, such is not the
nature of the order complained of. Indeed, the same applies exclusively to petitioner
herein. What is more, it is predicated upon the finding of fact-based upon a report
submitted by the General Auditing Office-that petitioner is making a profit of more
than 12% of its invested capital, which is denied by petitioner. Obviously, the latter is
entitled to cross-examine the maker of said report, and to introduce evidence to
disprove the contents thereof and/or explain or complement the same, as well as to
refute the conclusion drawn therefrom by the respondent. In other words, in making
said finding of fact, respondent performed a function partaking of a quasi-judicial
character, the valid exercise of which demands previous notice and hearing.
This rule was further explained in the subsequent case of The Central Bank of the Philippines vs.
Cloribel, et al.
10
to wit:
It is also clear from the authorities that where the function of the administrative body is
legislative, notice of hearing is not required by due process of law (See Oppenheimer,
Administrative Law, 2 Md. L.R. 185, 204, supra, where it is said: 'If the nature of the
administrative agency is essentially legislative, the requirements of notice and hearing
are not necessary. The validity of a rule of future action which affects a group, if vested
rights of liberty or property are not involved, is not determined according to the same
rules which apply in the case of the direct application of a policy to a specific individual) ...
It is said in 73 C.J.S. Public Administrative Bodies and Procedure, sec. 130, pages 452
and 453: 'Aside from statute, the necessity of notice and hearing in an administrative
proceeding depends on the character of the proceeding and the circumstances involved.
In so far as generalization is possible in view of the great variety of administrative
proceedings, it may be stated as a general rule that notice and hearing are not essential
to the validity of administrative action where the administrative body acts in the exercise
of executive, administrative, or legislative functions; but where a public administrative
body acts in a judicial or quasi-judicial matter, and its acts are particular and immediate
rather than general and prospective, the person whose rights or property may be affected
by the action is entitled to notice and hearing.
11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of
a quasi-judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner
and to no other. Further, it is premised on a finding of fact, although patently superficial, that there is
merit in a reduction of some of the rates charged- based on an initial evaluation of petitioner's
financial statements-without affording petitioner the benefit of an explanation as to what particular
aspect or aspects of the financial statements warranted a corresponding rate reduction. No
rationalization was offered nor were the attending contingencies, if any, discussed, which prompted
respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-fetched to
assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its
business requirements. The rates it charges result from an exhaustive and detailed study it conducts
of the multi-faceted intricacies attendant to a public service undertaking of such nature and
magnitude. We are, therefore, inclined to lend greater credence to petitioner's ratiocination that an
immediate reduction in its rates would adversely affect its operations and the quality of its service to
the public considering the maintenance requirements, the projects it still has to undertake and the
financial outlay involved. Notably, petitioner was not even afforded the opportunity to cross-examine
the inspector who issued the report on which respondent NTC based its questioned order.
At any rate, there remains the categorical admission made by respondent NTC that the questioned
order was issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing
are not necessary since the assailed order is merely incidental to the entire proceedings and,
therefore, temporary in nature. This postulate is bereft of merit.
While respondents may fix a temporary rate pending final determination of the application of
petitioner, such rate-fixing order, temporary though it may be, is not exempt from the statutory
procedural requirements of notice and hearing, as well as the requirement of reasonableness.
Assuming that such power is vested in NTC, it may not exercise the same in an arbitrary and
confiscatory manner. Categorizing such an order as temporary in nature does not perforce entail the
applicability of a different rule of statutory procedure than would otherwise be applied to any other
order on the same matter unless otherwise provided by the applicable law. In the case at bar, the
applicable statutory provision is Section 16(c) of the Public Service Act which provides:
Section 16. Proceedings of the Commission, upon notice and hearing the
Commission shall have power, upon proper notice and hearing in accordance with
the rules and provisions of this Act, subject to the limitations and exceptions
mentioned and saving provisions to the contrary:
xxx xxx xxx
(c) To fix and determine individual or joint rates, ... which shall be imposed, observed
and followed thereafter by any public service; ...
There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there
being no limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and
196.
It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without
first giving petitioner a hearing, whether the order be temporary or permanent, and it is immaterial
whether the same is made upon a complaint, a summary investigation, or upon the commission's
own motion as in the present case. That such a hearing is required is evident in respondents' order
of September 16, 1987 in NTC Case No. 87-94 which granted PHILCOMSAT a provisional authority
"to continue operating its existing facilities, to render the services it presently offers, and to charge
the rates as reduced by them "under the condition that "(s)ubject to hearing and the final
consideration of the merit of this application, the Commission may modify, revise or amend the rates
..."
12

While it may be true that for purposes of rate-fixing respondents may have other sources of
information or data, still, since a hearing is essential, respondent NTC should act solely on the basis
of the evidence before it and not on knowledge or information otherwise acquired by it but which is
not offered in evidence or, even if so adduced, petitioner was given no opportunity to controvert.
Again, the order requires the new reduced rates to be made effective on a specified date. It
becomes a final legislative act as to the period during which it has to remain in force pending the
final determination of the case.
13
An order of respondent NTC prescribing reduced rates, even for a
temporary period, could be unjust, unreasonable or even confiscatory, especially if the rates are
unreasonably low, since the utility permanently loses its just revenue during the prescribed period. In
fact, such order is in effect final insofar as the revenue during the period covered by the order is
concerned. Upon a showing, therefore, that the order requiring a reduced rate is confiscatory, and
will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity
becomes inductible, which brings us to the issue on substantive due process.
III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually
result in a cessation of its operations and eventual closure of business. On the other hand,
respondents assert that since petitioner is operating its communications satellite facilities through a
legislative franchise, as such grantee it has no vested right therein. What it has is merely a privilege
or license which may be revoked at will by the State at any time without necessarily violating any
vested property right of herein petitioner. While petitioner concedes this thesis of respondent, it
counters that the withdrawal of such privilege should nevertheless be neither whimsical nor arbitrary,
but it must be fair and reasonable.
There is no question that petitioner is a mere grantee of a legislative franchise which is subject to
amendment, alteration, or repeal by Congress when the common good so requires.
14
Apparently,
therefore, such grant cannot be unilaterally revoked absent a showing that the termination of the
operation of said utility is required by the common good.
The rule is that the power of the State to regulate the conduct and business of public utilities is
limited by the consideration that it is not the owner of the property of the utility, or clothed with the
general power of management incident to ownership, since the private right of ownership to such
property remains and is not to be destroyed by the regulatory power. The power to regulate is not
the power to destroy useful and harmless enterprises, but is the power to protect, foster, promote,
preserve, and control with due regard for the interest, first and foremost, of the public, then of the
utility and of its patrons. Any regulation, therefore, which operates as an effective confiscation of
private property or constitutes an arbitrary or unreasonable infringement of property rights is void,
because it is repugnant to the constitutional guaranties of due process and equal protection of the
laws.
15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates
charged by public utilities should be subject always to the requirement that the rates so fixed shall be
reasonable and just. A commission has no power to fix rates which are unreasonable or to regulate
them arbitrarily. This basic requirement of reasonableness comprehends such rates which must not
be so low as to be confiscatory, or too high as to be oppressive.
16

What is a just and reasonable rate is not a question of formula but of sound business judgment
based upon the evidence
17
it is a question of fact calling for the exercise of discretion, good sense,
and a fair, enlightened and independent judgment.
18
In determining whether a rate is confiscatory, it
is essential also to consider the given situation, requirements and opportunities of the utility. A
method often employed in determining reasonableness is the fair return upon the value of the
property to the public utility. Competition is also a very important factor in determining the
reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet
competition.
19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based
on the initial evaluation made on the financial statements of petitioner, contrary to respondent NTC's
allegation that it has several other sources of information without, however, divulging such sources.
Furthermore, it did not as much as make an attempt to elaborate on how it arrived at the prescribed
rates. It just perfunctorily declared that based on the financial statements, there is merit for a rate
reduction without any elucidation on what implications and conclusions were necessarily inferred by
it from said statements. Nor did it deign to explain how the data reflected in the financial statements
influenced its decision to impose a rate reduction.
On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to
the public service, should the order of respondent NTC turn out to be unreasonable and improvident.
The business in which petitioner is engaged is unique in that its machinery and equipment have
always to be taken in relation to the equipment on the other end of the transmission arrangement.
Any lack, aging, acquisition, rehabilitation, or refurbishment of machinery and equipment necessarily
entails a major adjustment or innovation on the business of petitioner. As pointed out by petitioner,
any change in the sending end abroad has to be matched with the corresponding change in the
receiving end in the Philippines. Conversely, any in the receiving end abroad has to be matched with
the corresponding change in the sending end in the Philippines. An inability on the part of petitioner
to meet the variegations demanded be technology could result in a deterioration or total failure of the
service of satellite communications.
At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and
renewing its machinery and equipment in order to keep up with the continuing charges of the times
and to maintain its facilities at a competitive level with the technological advances abroad. There
projected undertakings were formulated on the premise that rates are maintained at their present or
at reasonable levels. Hence, an undue reduction thereof may practically lead to a cessation of its
business. While we concede the primacy of the public interest in an adequate and efficient service,
the same is not necessarily to be equated with reduced rates. Reasonableness in the rates assumes
that the same is fair to both the public utility and the consumer.
Consequently, we hold that the challenged order, particularly on the issue of rates provided therein,
being violative of the due process clause is void and should be nullified. Respondents should now
proceed, as they should heretofore have done, with the hearing and determination of petitioner's
pending application for a certificate of public convenience and necessity and in which proceeding the
subject of rates involved in the present controversy, as well as other matter involved in said
application, be duly adjudicated with reasonable dispatch and with due observance of our
pronouncements herein.
WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2,
1988, in NTC Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under
our resolution of September 13, 1988, as specifically directed against the aforesaid order of
respondents on the matter of existing rates on petitioner's present authorized services, is hereby
made permanent.
SO ORDERED.
Philippine Communications Satellite
Corporation vs Alcuaz
on December 20, 2011
Political Law Delegation of Power Administrative Bodies
By virtue of RA 5514, Philippine Communications Satellite Corporation was granted a franchise to
establish, construct, maintain and operate in the Philippines, at such places as the grantee may select,
station or stations and associated equipment and facilities for international satellite communications.
Under this franchise, it was likewise granted the authority to construct and operate such ground facilities
as needed to deliver telecommunications services from the communications satellite system and ground
terminal or terminals. Under Sec 5 of the same law, PhilComSat was exempt from the jurisdiction,
control and regulation of the Public Service Commission later known as the National Telecommunications
Commission. However, EO 196 was later proclaimed and the same has placed PhilComSat under the
jurisdiction of NTC. Consequently, PhilComSat has to acquire permit to operate from NTC in order to
continue operating its existing satellites. NTC gave the necessary permit but it however directed
PhilComSat to reduce its current rates by 15%. NTC based its power to fix the rates on EO 546.
PhilComSat assailed the said directive and holds that the enabling act (EO 546) of respondent NTC
empowering it to fix rates for public service communications does not provide the necessary standards
constitutionally required hence there is an undue delegation of legislative power, particularly the
adjudicatory powers of NTC. PhilComSat asserts that nowhere in the provisions of EO 546, providing for
the creation of respondent NTC and granting its rate-fixing powers, nor of EO 196, placing petitioner
under the jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any
standard in the exercise of its rate-fixing and adjudicatory powers. PhilComSat subsequently clarified its
said submission to mean that the order mandating a reduction of certain rates is undue delegation not of
legislative but of quasi-judicial power to respondent NTC, the exercise of which allegedly requires an
express conferment by the legislative body.
ISSUE: Whether or not there is an undue delegation of power.
HELD: Fundamental is the rule that delegation of legislative power may be sustained only upon the
ground that some standard for its exercise is provided and that the legislature in making the delegation
has prescribed the manner of the exercise of the delegated power. Therefore, when the administrative
agency concerned, NTC in this case, establishes a rate, its act must both be non-confiscatory and must
have been established in the manner prescribed by the legislature; otherwise, in the absence of a fixed
standard, the delegation of power becomes unconstitutional. In case of a delegation of rate-fixing power,
the only standard which the legislature is required to prescribe for the guidance of the administrative
authority is that the rate be reasonable and just. However, it has been held that even in the absence of
an express requirement as to reasonableness, this standard may be implied. In the case at bar, the fixed
rate is found to be of merit and reasonable.

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-12172 August 29, 1958
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JUAN F. FAJARDO, ET AL., defendants-appellants.
Assistant Solicitor General Esmeraldo Umali and Higinio V. Catalan for appellee.
Prila, Pardalis and Pejo for appellants.
REYES, J. B. L., J .:
Appeal from the decision of the Court of First Instance of Camarines Sur convicting defendants-
appellants Juan F. Fajardo and Pedro Babilonia of a violation of Ordinance No. 7, Series of 1950, of
the Municipality of Baao, Camarines Sur, for having constructed without a permit from the municipal
mayor a building that destroys the view of the public plaza.
It appears that on August 15, 1950, during the incumbency of defendant-appellant Juan F. Fajardo
as mayor of the municipality of Baao, Camarines Sur, the municipal council passed the ordinance in
question providing as follows:
SECTION 1. Any person or persons who will construct or repair a building should, before
constructing or repairing, obtain a written permit from the Municipal Mayor.
SEC. 2. A fee of not less than P2.00 should be charged for each building permit and P1.00
for each repair permit issued.
SEC. 3. PENALTY Any violation of the provisions of the above, this ordinance, shall make
the violation liable to pay a fine of not less than P25 nor more than P50 or imprisonment of
not less than 12 days nor more than 24 days or both, at the discretion of the court. If said
building destroys the view of the Public Plaza or occupies any public property, it shall be
removed at the expense of the owner of the building or house.
SEC. 4. EFFECTIVITY This ordinance shall take effect on its approval. (Orig. Recs., P. 3)
Four years later, after the term of appellant Fajardo as mayor had expired, he and his son in-law,
appellant Babilonia, filed a written request with the incumbent municipal mayor for a permit to
construct a building adjacent to their gasoline station on a parcel of land registered in Fajardo's
name, located along the national highway and separated from the public plaza by a creek (Exh. D).
On January 16, 1954, the request was denied, for the reason among others that the proposed
building would destroy the view or beauty of the public plaza (Exh. E). On January 18, 1954,
defendants reiterated their request for a building permit (Exh. 3), but again the request was turned
down by the mayor. Whereupon, appellants proceeded with the construction of the building without a
permit, because they needed a place of residence very badly, their former house having been
destroyed by a typhoon and hitherto they had been living on leased property.
On February 26, 1954, appellants were charged before and convicted by the justice of the peace
court of Baao, Camarines Sur, for violation of the ordinance in question. Defendants appealed to the
Court of First Instance, which affirmed the conviction, and sentenced appellants to pay a fine of P35
each and the costs, as well as to demolish the building in question because it destroys the view of
the public plaza of Baao, in that "it hinders the view of travelers from the National Highway to the
said public plaza." From this decision, the accused appealed to the Court of Appeals, but the latter
forwarded the records to us because the appeal attacks the constitutionality of the ordinance in
question.
We find that the appealed conviction can not stand.
A first objection to the validity of the ordinance in question is that under it the mayor has absolute
discretion to issue or deny a permit. The ordinance fails to state any policy, or to set up any standard
to guide or limit the mayor's action. No purpose to be attained by requiring the permit is expressed;
no conditions for its grant or refusal are enumerated. It is not merely a case of deficient standards;
standards are entirely lacking. The ordinance thus confers upon the mayor arbitrary and unrestricted
power to grant or deny the issuance of building permits, and it is a settled rule that such an
undefined and unlimited delegation of power to allow or prevent an activity, per se lawful, is invalid
(People vs. Vera, 65 Phil., 56; Primicias vs. Fugoso, 80 Phil., 71; Schloss Poster Adv. Co. vs. Rock
Hill, 2 SE (2d) 392)
The ordinance in question in no way controls or guides the discretion vested thereby in the
respondents. It prescribes no uniform rule upon which the special permission of the city is to
be granted. Thus the city is clothed with the uncontrolled power to capriciously grant the
privilege to some and deny it others; to refuse the application of one landowner or lessee
and to grant that of another, when for all material purposes, the two applying for precisely the
same privileges under the same circumstances. The danger of such an ordinance is that it
makes possible arbitrary discriminations and abuses in its execution, depending upon no
conditions or qualifications whatever, other than the unregulated arbitrary will of the city
authorities as the touchstone by which its validity is to be tested. Fundamental rights under
our government do not depend for their existence upon such a slender and uncertain thread.
Ordinances which thus invest a city council with a discretion which is purely arbitrary, and
which may be exercised in the interest of a favored few, are unreasonable and invalid. The
ordinance should have established a rule by which its impartial enforcement could be
secured. All of the authorities cited above sustain this conclusion.
As was said in City of Richmond vs. Dudley, 129 Ind. 112,28 N. E. 312, 314 13 L. R. A. 587,
28 Am. St. Rep. 180: "It seems from the foregoing authorities to be well established that
municipal ordinances placing restrictions upon lawful conduct or the lawful use of property
must, in order to be valid, specify the rules and conditions to be observed in such conduct or
business; and must admit of the exercise of the privilege of all citizens alike who will comply
with such rules and conditions; and must not admit of the exercise, or of an opportunity for
the exercise, of any arbitrary discrimination by the municipal authorities between citizens
who will so comply. (Schloss Poster Adv. Co., Inc. vs. City of Rock Hill, et al., 2 SE (2d), pp.
394-395).
It is contended, on the other hand, that the mayor can refuse a permit solely in case that the
proposed building "destroys the view of the public plaza or occupies any public property" (as stated
in its section 3); and in fact, the refusal of the Mayor of Baao to issue a building permit to the
appellant was predicated on the ground that the proposed building would "destroy the view of the
public plaza" by preventing its being seen from the public highway. Even thus interpreted, the
ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants of
the right to use their own property; hence, it oversteps the bounds of police power, and amounts to a
taking of appellants property without just compensation. We do not overlook that the modern
tendency is to regard the beautification of neighborhoods as conducive to the comfort and happiness
of residents. But while property may be regulated in the interest of the general welfare, and in its
pursuit, the State may prohibit structures offensive to the sight (Churchill and Tait vs. Rafferty, 32
Phil. 580), the State may not, under the guise of police power, permanently divest owners of the
beneficial use of their property and practically confiscate them solely to preserve or assure the
aesthetic appearance of the community. As the case now stands, every structure that may be
erected on appellants' land, regardless of its own beauty, stands condemned under the ordinance in
question, because it would interfere with the view of the public plaza from the highway. The
appellants would, in effect, be constrained to let their land remain idle and unused for the obvious
purpose for which it is best suited, being urban in character. To legally achieve that result, the
municipality must give appellants just compensation and an opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used for
any reasonable purpose goes, it is plain, beyond regulation and must be recognized as a
taking of the property. The only substantial difference, in such case, between restriction and
actual taking, is that the restriction leaves the owner subject to the burden of payment of
taxation, while outright confiscation would relieve him of that burden. (Arverne Bay Constr.
Co. vs. Thatcher (N.Y.) 117 ALR. 1110, 1116).
A regulation which substantially deprives an owner of all beneficial use of his property is
confiscation and is a deprivation within the meaning of the 14th Amendment. (Sundlum vs.
Zoning Bd., 145 Atl. 451; also Eatonvs. Sweeny, 177 NE 412; Taylor vs. Jacksonville, 133
So. 114).
Zoning which admittedly limits property to a use which can not reasonably be made of it
cannot be said to set aside such property to a use but constitutes the taking of such property
without just compensation. Use of property is an element of ownership therein. Regardless of
the opinion of zealots that property may properly, by zoning, be utterly destroyed without
compensation, such principle finds no support in the genius of our government nor in the
principles of justice as we known them. Such a doctrine shocks the sense of justice. If it be of
public benefit that property remain open and unused, then certainly the public, and not the
private individuals, should bear the cost of reasonable compensation for such property under
the rules of law governing the condemnation of private property for public use. (Tews vs.
Woolhiser (1933) 352 I11. 212, 185 N.E. 827) (Emphasis supplied.)
The validity of the ordinance in question was justified by the court below under section 2243, par. (c),
of the Revised Administrative Code, as amended. This section provides:
SEC. 2243. Certain legislative powers of discretionary character. The municipal council
shall have authority to exercise the following discretionary powers:
x x x x x x x x x
(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits for the creation or repair thereof,
charging a fee which shall be determined by the municipal council and which shall not be
less than two pesos for each building permit and one peso for each repair permit issued. The
fees collected under the provisions of this subsection shall accrue to the municipal school
fund.
Under the provisions of the section above quoted, however, the power of the municipal council to
require the issuance of building permits rests upon its first establishing fire limits in populous parts of
the town and prescribing the kinds of buildings that may be constructed or repaired within them. As
there is absolutely no showing in this case that the municipal council had either established fire limits
within the municipality or set standards for the kind or kinds of buildings to be constructed or
repaired within them before it passed the ordinance in question, it is clear that said ordinance was
not conceived and promulgated under the express authority of sec. 2243 (c) aforequoted.
We rule that the regulation in question, Municipal Ordinance No. 7, Series of 1950, of the
Municipality of Baao, Camarines Sur, was beyond the authority of said municipality to enact, and is
therefore null and void. Hence, the conviction of herein appellants is reversed, and said accused are
acquitted, with costs de oficio. So ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and
Felix, JJ.,concur.
People v Fajardo G.R. No. L-12172 August 29, 1958

J. B. L . Reyes

Facts:
Fajardo was mayor in Baao, Camrines Sur when the municipal council passed the ordinance that
prohibits the construction of a building that blocks the view of the town plaza. Moreover, it redirects
the grant of permission to the mayor.
After his incumbency, Fajardo applied for a permit to build a building beside the gasoline stationnear
the town plaza. His request was repeatedly denied. He continued with the constructionunder the
rationale that he needed a house to stay in because the old one was destroyed by a typhoon.
He was convicted and ordered to pay a fine and demolish the building due to its obstructing view.
He appealed to the CA, which in turn forwarded the petition due to the question of the ordinances
constitutionality.

Issue: Is the ordinance constitutional?

Held: No, petition granted.

Ratio:
The ordinance doesnt state any standard that limits the grant of power to the mayor. It is an arbitrary
and unlimited conferment.
Ordinances which thus invest a city council with a discretion which is purely arbitrary, and which may
be exercised in the interest of a favored few, are unreasonable and invalid. The ordinanceshould
have established a rule by which its impartial enforcement could be secured. All of the authorities
cited above sustain this conclusion.
The ordinance is unreasonable and oppressive, in that it operates to permanently deprive appellants
of the right to use their own property; hence, it oversteps the bounds of police power, and amounts
to a taking of appellants property without just compensation.
While property may be regulated to the interest of the general welfare, and the state may eliminate
structures offensive to the sight, the state may not permanently divest owners of the beneficial use of
their property and practically confiscate them solely to preserve or assure the aesthetic appearance
of the community.
Fajardo would be constrained to let the land be fallow and not be used for urban purposes. To do
this legally, there must be just compensation and they must be given an opportunity to be heard.
An ordinance which permanently so restricts the use of property that it can not be used for any
reasonable purpose goes, it is plain, beyond regulation and must be recognized as a taking of the
property.
The validity was also refuted by the Admin Code which states:
SEC. 2243. Certain legislative powers of discretionary character. The municipal council shall have
authority to exercise the following discretionary powers:
x x x x x x x x x
(c) To establish fire limits in populous centers, prescribe the kinds of buildings that may be
constructed or repaired within them, and issue permits for the creation or repair thereof, charginga
fee which shall be determined by the municipal council and which shall not be less than two pesos
for each building permit and one peso for each repair permit issued. The fees collected under the
provisions of this subsection shall accrue to the municipal school fund.
Since, there was absolutely no showing in this case that the municipal council had either established
fire limits within the municipality or set standards for the kind or kinds of buildings to be constructed
or repaired within them before it passed the ordinance in question, it is clear that said ordinance was
not conceived and promulgated under the express authority of sec. 2243 (c)
EN BANC
[G.R. No. 103501-03. February 17, 1997]
LUIS A. TABUENA, petitioner, vs. HONORABLE SANDIGANBAYAN,
and THE PEOPLE OF THE PHILIPPINES,respondents.
[G.R. No. 103507. February 17, 1997]
ADOLFO M. PERALTA, petitioner, vs. HON. SANDIGANBAYAN (First
Division), and THE PEOPLE OF THE PHILIPPINES, represented
by the OFFICE OF THE SPECIAL PROSECUTOR, respondents.
D E C I S I O N
FRANCISCO, J .:
Through their separate petitions for review,
[1]
Luis A. Tabuena and Adolfo
M. Peralta (Tabuena and Peralta, for short) appeal the Sandiganbayan
decision dated October 12, 1990,
[2]
as well as the Resolution dated December
20, 1991
[3]
denying reconsideration, convicting them of malversation under
Article 217 of the Revised Penal Code. Tabuena and Peralta were found
guilty beyond reasonable doubt of having malversed the total amount of P55
Million of the Manila International Airport Authority (MIAA) funds during their
incumbency as General Manager and Acting Finance Services Manager,
respectively, of MIAA, and were thus meted the following sentence:
(1) In Criminal Case No. 11758, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day ofreclusion
temporal as minimum to twenty (20) years of reclusion temporal as maximum, and to
pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(2) In Criminal Case No. 11759, accused Luis A. Tabuena is sentenced to suffer
the penalty of imprisonment of seventeen (17) years and one (1) day ofreclusion
temporal as minimum, and twenty (20) years of reclusion temporal as maximum, and
to pay a fine of TWENTY-FIVE MILLION PESOS (P25,000,000.00), the amount
malversed. He shall also reimburse the Manila International Airport Authority the
sum of TWENTY-FIVE MILLION PESOS (P25,000,000.00).
In addition, he shall suffer the penalty of perpetual special disqualification from
public office.
(3) In Criminal Case No. 11760, accused Luis A. Tabuena and Adolfo M. Peralta
are each sentenced to suffer the penalty of imprisonment of seventeen (17) years and
one (1) day of reclusion temporal as minimum and twenty (20) years of reclusion
temporal as maximum and for each of them to pay separately a fine of FIVE
MILLION PESOS (P5,000,000.00) the amount malversed. They shall also reimburse
jointly and severally the Manila International Airport Authority the sum of FIVE
MILLION PESOS (P5,000,000.00).
In addition, they shall both suffer the penalty of perpetual special disqualification
from public office.
A co-accused of Tabuena and Peralta was Gerardo G. Dabao, then
Assistant General Manager of MIAA, has remained at large.
There were three (3) criminal cases filed (nos. 11758, 11759 and 11760)
since the total amount of P55 Million was taken on three (3) separate dates of
January, 1986. Tabuena appears as the principal accused - he being charged
in all three (3) cases. The amended informations in criminal case nos. 11758,
11759 and 11760 respectively read:
That on or about the 10th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging
to the MIAA, they being the only ones authorized to make withdrawals against the
cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating
and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the
amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds
by applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-
354-3 in the PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of the above-mentioned managers check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit,
to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
x x x
That on or about the 16th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Gerardo G. Dabao, both public officers, being
then the General Manager and Assistant General Manager, respectively, of the Manila
International Airport Authority (MIAA), and accountable for public funds belonging
to the MIAA, they being the only ones authorized to make withdrawals against the
cash accounts of MIAA pursuant to its board resolutions, conspiring, confederating
and confabulating with each other, did then and there wilfully, unlawfully,
feloniously, and with intent to defraud the government, take and misappropriate the
amount of TWENTY FIVE MILLION PESOS (P25,000,000.00) from MIAA funds
by applying for the issuance of a managers check for said amount in the name of
accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-500-
354-3 in the PNB Extension Office at the Manila International Airport in Pasay City,
purportedly as partial payment to the Philippine National Construction Corporation
(PNCC), the mechanics of which said accused Tabuena would personally take care of,
when both accused well knew that there was no outstanding obligation of MIAA in
favor of PNCC, and after the issuance of the above-mentioned managers check,
accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit,
to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
x x x
That on or about the 29th day of January, 1986, and for sometime subsequent
thereto, in the City of Pasay, Philippines, and within the jurisdiction of this Honorable
Court, accused Luis A. Tabuena and Adolfo M. Peralta, both public officers, being
then the General Manager and Acting Manager, Financial Services Department,
respectively, of the Manila International Airport Authority (MIAA), and accountable
for public funds belonging to the MIAA, they being the only ones authorized to make
withdrawals against the cash accounts of MIAA pursuant to its board resolutions,
conspiring, confederating and confabulating with each other, did then and there
wilfully, unlawfully, feloniously, and with intent to defraud the government, take and
misappropriate the amount of FIVE MILLION PESOS (P5,000,000.00) from MIAA
funds by applying for the issuance of a managers check for said amount in the name
of accused Luis A. Tabuena chargeable against MIAAs Savings Account No. 274-
500-354-3 in the PNB Extension Office at the Manila International Airport in Pasay
City, purportedly as partial payment to the Philippine National Construction
Corporation (PNCC), the mechanics of which said accused Tabuena would personally
take care of, when both accused well knew that there was no outstanding obligation of
MIAA in favor of PNCC, and after the issuance of the above-mentioned managers
check, accused Luis A. Tabuena encashed the same and thereafter both accused
misappropriated and converted the proceeds thereof to their personal use and benefit,
to the damage and prejudice of the government in the aforesaid amount.
CONTRARY TO LAW.
Gathered from the documentary and testimonial evidence are the following
essential antecedents:
Then President Marcos instructed Tabuena over the phone to pay directly to the
presidents office and in cash what the MIAA owes the Philippine National
Construction Corporation (PNCC), to which Tabuena replied, Yes, sir, I will do
it. About a week later, Tabuena received from Mrs. Fe Roa-Gimenez, then private
secretary of Marcos, a Presidential Memorandum dated January 8, 1986 (hereinafter
referred to as MARCOS Memorandum) reiterating in black and white such verbal
instruction, to wit:
Office of the President
of the Philippines
Malacaang
January 8, 1986
MEMO TO: The General Manager
Manila International Airport Authority
You are hereby directed to pay immediately the Philippine National Construction
Corporation, thru this Office, the sum of FIFTY FIVE MILLION (P55,000,000.00)
PESOS in cash as partial payment of MIAAs account with said Company mentioned
in a Memorandum of Minister Roberto Ongpin to this Office dated January 7, 1985
and duly approved by this Office on February 4, 1985.
Your immediate compliance is appreciated.
(Sgd.) FERDINAND MARCOS.
[4]

The January 7, 1985 memorandum of then Minister of Trade and Industry
Roberto Ongpin referred to in the MARCOS Memorandum, reads in full:
MEMORANDUM
F o r : The President
F r o m : Minister Roberto V. Ongpin
D a t e : 7 January 1985
Subject : Approval of Supplemental Contracts and
Request for Partial Deferment of Repayment of PNCCs Advances for MIA
Development Project
May I request your approval of the attached recommendations of Minister Jesus S.
Hipolito for eight (8) supplemental contracts pertaining to the MIA Development
Project (MIADP) between the Bureau of Air Transport (BAT) and Philippine National
Construction Corporation (PNCC), formerly CDCP, as follows:
1. Supplemental Contract No. 12
Package Contract No. 2

P11,106,600.95
2. Supplemental Contract No. 13 5,758,961.52
3. Supplemental Contract No. 14
Package Contract No. 2

4,586,610.80
4. Supplemental Contract No. 15 1,699,862.69
5. Supplemental Contract No. 16
Package Contract No. 2

233,561.22
6. Supplemental Contract No. 17
Package Contract No. 2

8,821,731.08
7. Supplemental Contract No. 18
Package Contract No. 2

6,110,115.75
8. Supplemental Contract No. 3
Package Contract No. II

16,617,655.49
(xerox copies only; original memo was submitted to the Office of the President on
May 28, 1984)
In this connection, please be informed that Philippine National Construction
Corporation (PNCC), formerly CDCP, has accomplishment billings on the MIA
Development Project aggregating P98.4 million, inclusive of accomplishments for the
aforecited contracts. In accordance with contract provisions, outstanding advances
totalling P93.9 million are to be deducted from said billings which will leave a net
amount due to PNCC of only P4.5 million.
At the same time, PNCC has potential escalation claims amounting to P99 million in
the following stages of approval/evaluation:
Approved by Price Escalation Committee (PEC)
but pended for lack of funds
P 1.9 million
Endorsed by project consultants and currently
being evaluated by PEC
30.7 million
Submitted by PNCC directly to PEC and
currently under evaluation
66.5 million
T o t a l P99.1 million
There has been no funding allocation for any of the above escalation claims due to
budgetary constraints.
The MIA Project has been completed and operational as far back as 1982 and yet
residual amounts due to PNCC have not been paid, resulting in undue burden to
PNCC due to additional cost of money to service its obligations for this contract.
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment
of the repayment of PNCCs advances to the extent of P30 million corresponding to
about 30% of P99.1 million in escalation claims of PNCC, of which P32.5 million has
been officially recognized by MIADP consultants but could not be paid due to lack of
funding.Kotc
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of
existing MIA Project funds. This amount represents the excess of the gross billings of
PNCC of P98.4 million over the undeferred portion of the repayment of advances
of P63.9 million.
(Sgd.) ROBERTO V. ONGPIN
Minister
[5]

In obedience to President Marcos verbal instruction and memorandum,
Tabuena, with the help of Dabao and Peralta, caused the release ofP55
Million of MIAA funds by means of three (3) withdrawals.
The first withdrawal was made on January 10, 1986 for P25 Million,
following a letter of even date signed by Tabuena and Dabao requesting the
PNB extension office at the MIAA - the depository branch of MIAA funds, to
issue a managers check for said amount payable to Tabuena. The check was
encashed, however, at the PNB Villamor Branch. Dabao and the cashier of
the PNB Villamor branch counted the money after which, Tabuena took
delivery thereof. The P25 Million in cash were then placed in peerless boxes
and duffle bags, loaded on a PNB armored car and delivered on the same day
to the office of Mrs. Gimenez located at Aguado Street fronting
Malacaang. Mrs. Gimenez did not issue any receipt for the money received.
Similar circumstances surrounded the second withdrawal/encashment and
delivery of another P25 Million, made on January 16, 1986.
The third and last withdrawal was made on January 31, 1986 for P5
Million. Peralta was Tabuenas co-signatory to the letter- request for a
managers check for this amount. Peralta accompanied Tabuena to the PNB
Villamor branch as Tabuena requested him to do the counting of the P5
Million. After the counting, the money was placed in two (2) peerless boxes
which were loaded in the trunk of Tabuenas car. Peralta did not go with
Tabuena to deliver the money to Mrs. Gimenez office at Aguado Street. It
was only upon delivery of the P5 Million that Mrs. Gimenez issued a receipt
for all the amounts she received from Tabuena. The receipt, dated January
30, 1986, reads:
Malacaang
Manila
January 30, 1986
RECEIVED FROM LOUIE TABUENA THE TOTAL AMOUNT OF FIFTY FIVE
MILLION PESOS (P55,000,000.00) as of the following dates:
Jan. 10 - P25,000,000.00
Jan. 16 - 25,000,000.00
Jan. 30 - 5,000,000.00
(Sgd.) Fe Roa-Gimenez
The disbursement of the P55 Million was, as described by Tabuena and
Peralta themselves, out of the ordinary and not based on the normal
procedure. Not only were there no vouchers prepared to support the
disbursement, the P55 Million was paid in cold cash. Also, no PNCC receipt
for the P55 Million was presented. Defense witness Francis Monera, then
Senior Assistant Vice President and Corporate Comptroller of PNCC, even
affirmed in court that there were no payments made to PNCC by MIAA for the
months of January to June of 1986.
The position of the prosecution was that there were no outstanding
obligations in favor of PNCC at the time of the disbursement of the P55
Million. On the other hand, the defense of Tabuena and Peralta, in short, was
that they acted in good faith. Tabuena claimed that he was merely complying
with the MARCOS Memorandum which ordered him to forward immediately to
the Office of the President P55 Million in cash as partial payment of MIAAs
obligations to PNCC, and that he (Tabuena) was of the belief that MIAA
indeed had liabilities to PNCC. Peralta for his part shared the same belief and
so he heeded the request of Tabuena, his superior, for him (Peralta) to help in
the release of P5 Million.
With the rejection by the Sandiganbayan of their claim of good faith which
ultimately led to their conviction, Tabuena and Peralta now set forth a total of
ten (10) errors
[6]
committed by the Sandiganbayan for this Courts
consideration. It appears, however, that at the core of their plea that we
acquit them are the following:
1) the Sandiganbayan convicted them of a crime not charged in the amended
informations, and
2) they acted in good faith.
Anent the first proposition, Tabuena and Peralta stress that they were
being charged with intentional malversation, as the amended informations
commonly allege that:
x x x accused x x x conspiring, confederating and confabulating with each other, did
then and there wilfully, unlawfully, feloniously, and with intent to defraud the
government, take and misappropriated the amount of x x x.
But it would appear that they were convicted of malversation by
negligence. In this connection, the Courts attention is directed to p. 17 of the
December 20, 1991 Resolution (denying Tabuenas and Peraltas motion for
reconsideration) wherein the Sandiganbayan said:
x x x x x x x x x
On the contrary, what the evidence shows is that accused Tabuena delivered the P55
Million to people who were not entitled thereto, either as representatives of MIAA or
of the PNCC.E_oe
It proves that Tabuena had deliberately consented or permitted through negligence or
abandonment, some other person to take such public funds. Having done so,
Tabuena, by his own narration, has categorically demonstrated that he is guilty of the
misappropriation or malversation of P55 Million of public funds. (Underscoring
supplied.)
To support their theory that such variance is a reversible flaw, Tabuena and Peralta
argue that:
1) While malversation may be committed intentionally or by negligence, both modes
cannot be committed at the same time.
2) The Sandiganbayan was without jurisdiction to convict them of malversation of
negligence where the amended informations charged them with intentional
malversation.
[7]

3) Their conviction of a crime different from that charged violated their constitutional
right to be informed of the accusation.
[8]

We do not agree with Tabuena and Peralta on this point. Illuminative and
controlling is Cabello v. Sandiganbayan
[9]
where the Court passed upon
similar protestations raised by therein accused-petitioner Cabello whose
conviction for the same crime of malversation was affirmed, in this wise:
x x x even on the putative assumption that the evidence against petitioner yielded a
case of malversation by negligence but the information was for intentional
malversation, under the circumstances of this case his conviction under the first mode
of misappropriation would still be in order. Malversation is committed either
intentionally or by negligence. The dolo or the culpa present in the offense is only a
modality in the perpetration of the felony. Even if the mode charged differs from the
mode proved, the same offense of malversation is involved and conviction thereof is
proper. x x x.
In Samson vs. Court of Appeals, et. al., we held that an accused charged with willful
or intentional falsification can validly be convicted of falsification through
negligence, thus:
While a criminal negligent act is not a simple modality of a willful crime, as we held
in Quizon vs. Justice of the Peace of Bacolor, G.R. No. L-6641, July 28, 1995, but a
distinct crime in our Penal Code, designated as a quasi offense in our Penal Code, it
may however be said that a conviction for the former can be had under an information
exclusively charging the commission of a willful offense, upon the theory that the
greater includes the lesser offense. This is the situation that obtains in the present
case. Appellant was charged with willful falsification but from the evidence
submitted by the parties, the Court of Appeals found that in effecting the falsification
which made possible the cashing of the checks in question, appellant did not act with
criminal intent but merely failed to take proper and adequate means to assure himself
of the identity of the real claimants as an ordinary prudent man would do. In other
words, the information alleges acts which charge willful falsification but which turned
out to be not willful but negligent. This is a case covered by the rule when there is a
variance between the allegation and proof, and is similar to some of the cases decided
by this Tribunal.
x x x
Moreover, Section 5, Rule 116, of the Rules of Court does not require that all the
essential elements of the offense charged in the information be proved, it being
sufficient that some of said essential elements or ingredients thereof be established to
constitute the crime proved. x x x.
The fact that the information does not allege that the falsification was committed
with imprudence is of no moment for here this deficiency appears supplied by the
evidence submitted by appellant himself and the
result has proven beneficial to him. Certainly, having alleged that the
falsification has been willful, it would be incongruous to allege at the same time that it
was committed with imprudence for a charge of criminal intent is incompatible with
the concept of negligence.
Subsequently, we ruled in People vs. Consigna, et. al., that the aforestated rationale
and arguments also apply to the felony of malversation, that is, that an accused
charged with willful malversation, in an information containing allegations similar to
those involved in the present case, can be validly convicted of the same offense of
malversation through negligence where the evidence sustains the latter mode of
perpetrating the offense.
Going now to the defense of good faith, it is settled that this is a valid
defense in a prosecution for malversation for it would negate criminal intent on
the part of the accused. Thus, in the two (2) vintage, but significant
malversation cases of US v. Catolico
[10]
and US v. Elvia,
[11]
the Court
stressed that:
To constitute a crime, the act must, except in certain crimes made such by statute, be
accompanied by a criminal intent, or by such negligence or indifference to duty or to
consequences as, in law, is equivalent to criminal intent. The maxim is actus non facit
reum, nisi mens sit rea - a crime is not committed if the mind of the person
performing the act complained of is innocent.
The rule was reiterated in People v. Pacana,
[12]
although this case
involved falsification of public documents and estafa:
Ordinarily, evil intent must unite with an unlawful act for there to be a crime. Actus
non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is
wanting.
American jurisprudence echoes the same principle. It adheres to the view
that criminal intent in embezzlement is not based on technical mistakes as to
the legal effect of a transaction honestly entered into, and there can be no
embezzlement if the mind of the person doing the act is innocent or if there is
no wrongful purpose.
[13]
The accused may thus always introduce evidence to
show he acted in good faith and that he had no intention to convert.
[14]
And this,
to our mind, Tabuena and Peralta had meritoriously shown.
In so far as Tabuena is concerned, with the due presentation in evidence
of the MARCOS Memorandum, we are swayed to give credit to his claim of
having caused the disbursement of the P55 Million solely by reason of such
memorandum. From this premise flows the following reasons and/or
considerations that would buttress his innocence of the crime of malversation.
First. Tabuena had no other choice but to make the withdrawals, for that
was what the MARCOS Memorandum required him to do. He could not be
faulted if he had to obey and strictly comply with the presidential directive, and
to argue otherwise is something easier said than done. Marcos was
undeniably Tabuenas superior the former being then the President of the
Republic who unquestionably exercised control over government agencies
such as the MIAA and PNCC.
[15]
In other words, Marcos had a say in matters
involving inter-government agency affairs and transactions, such as for
instance, directing payment of liability of one entity to another and the manner
in which it should be carried out. And as a recipient of such kind of a directive
coming from the highest official of the land no less, good faith should be read
on Tabuenas compliance, without hesitation nor any question, with the
MARCOS Memorandum. Tabuena therefore is entitled to the justifying
circumstance of Any person who acts in obedience to an order issued by a
superior for some lawful purpose.
[16]
The subordinate-superior relationship
between Tabuena and Marcos is clear. And so too, is the lawfulness of
the order contained in the MARCOS Memorandum, as it has for its purpose
partial payment of the liability of one government agency (MIAA) to another
(PNCC). However, the unlawfulness of the MARCOS Memorandum was
being argued, on the observation, for instance, that the Ongpin Memo referred
to in the presidential directive reveals a liability of only about P34.5
Million. The Sandiganbayan in this connection said:
Exhibits 2 and 2-a (pages 1 and 2 of the memorandum of Min. Ongpin to the
President dated January 7, 1985) were mainly:
a.) for the approval of eight Supplemental Contracts; and
b.) a request for partial deferment of payment by PNCC for advances made for the
MIAA Development Project, while at the same time recognizing some of the PNCCs
escalation billings which would result in making payable to PNCC the amount of
P34.5 million out of existing MIAA Project funds.
Thus:
xxx
To allow PNCC to collect partially its billings, and in consideration of its pending
escalation billings, may we request for His Excellencys approval for a deferment of
repayment of PNCCs advances to the extent of P30 million corresponding to about
30% of P99.1 million in escalation claims of PNCC, of which P32.6 million has been
officially recognized by MIADP consultants but could not be paid due to lack of
funding.
Our proposal will allow BAT to pay PNCC the amount of P34.5 million out of existing
MIA Project funds. This amount represents the excess of the gross billings of PNCC
of P98.4 million over the undeferred portion of the repayment of advances of P63.9
million.
While Min. Ongpin may have, therefore recognized the escalation claims of the
PNCC to MIAA to the extent of P99.1 million (Exhibit 2a), a substantial portion
thereof was still in the stages of evaluation and approval, with only P32.6 million
having been officially recognized by the MIADP consultants.
If any payments were, therefore, due under this memo for Min. Ongpin (upon which
President Marcos Memo was based) they would only be for a sum of up toP34.5
million.
[17]

x x x x x
x x x x
V. Pres. Marcos order to Tabuena dated January 8, 1986 baseless.
Not only was Pres. Marcos Memo (Exhibit 1) for Tabuena to pay P55 million
irrelevant, but it was actually baseless.
This is easy to see.
Exhibit 1 purports to refer itself to the Ongpin Memorandum (Exhibit 2, 2-a);
Exhibit 1, however, speaks of P55 million to be paid to the PNCC while Exhibit 2
authorized only P34.5 million. The order to withdraw the amount of P55 million
exceeded the approved payment of P34.5 million by P20.5 million. Min. Ongpins
Memo of January 7, 1985 could not therefore serve as a basis for the Presidents order
to withdraw P55 million.
[18]

Granting this to be true, it will not nevertheless affect Tabuenas good faith so
as to make him criminally liable. What is more significant to consider is that
the MARCOS Memorandum is patently legal (for on its face it directs payment
of an outstanding liability) and that Tabuena acted under the honest belief that
the P55 million was a due and demandable debt and that it was just a portion
of a bigger liability to PNCC. This belief is supported by defense witness
Francis Monera who, on direct examination, testified that:
ATTY ANDRES
Q Can you please show us in this Exhibit 7 and 7-a where it is indicated the
receivables from MIA as of December 31, 1985?
A As of December 31, 1985, the receivables from MIA is shown on page 2, marked
as Exhibit 7-a, sir, P102,475,392.35.
x x x x x x x x x.
[19]

ATTY. ANDRES
Q Can you tell us, Mr. Witness, what these obligations represent?
WITNESS
A These obligations represent receivables on the basis of our billings to MIA as
contract-owner of the project that the Philippine National Construction Corporation
constructed. These are billings for escalation mostly, sir.
Q What do you mean by escalation?
A Escalation is the component of our revenue billings to the contract-owner that are
supposed to take care of price increases, sir.
x x x x x x x x x.
[20]

ATTY ANDRES
Q When you said these are accounts receivable, do I understand from you that
these are due and demandable?
A Yes, sir.
[21]

Thus, even if the order is illegal if it is patently legal and the subordinate is not
aware of its illegality, the subordinate is not liable, for then there would only be
a mistake of fact committed in good faith.
[22]
Such is the ruling in Nassif v.
People
[23]
the facts of which, in brief, are as follows:
Accused was charged with falsification of commercial document. A mere employee
of R.J. Campos, he inserted in the commercial document alleged to have been falsified
the word sold by order of his principal. Had he known or suspected that his
principal was committing an improper act of falsification, he would be liable either as
a co-principal or as an accomplice. However, there being no malice on his part, he
was exempted from criminal liability as he was a mere employee following the orders
of his principal.
[24]

Second. There is no denying that the disbursement, which Tabuena
admitted as out of the ordinary, did not comply with certain auditing rules
and regulations such as those pointed out by the Sandiganbayan, to wit:
a) [except for salaries and wages and for commutation of leaves] all disbursements
above P1,000.00 should be made by check (Basic Guidelines for Internal Control
dated January 31, 1977 issued by COA)
b) payment of all claims against the government had to be supported with complete
documentation (Sec. 4, P.D. 1445, State Auditing Code of the Philippines). In this
connection, the Sandiganbayan observed that:
There were no vouchers to authorize the disbursements in question. There were no
bills to support the disbursement. There were no certifications as to the availability of
funds for an unquestionably staggering sum of P55 Million.
[25]

c) failure to protest (Sec. 106, P.D. 1445)
But this deviation was inevitable under the circumstances Tabuena was
in. He did not have the luxury of time to observe all auditing procedures of
disbursement considering the fact that the MARCOS Memorandum enjoined
his immediate compliance with the directive that he forward to the
Presidents Office the P55 Million in cash. Be that as it may, Tabuena surely
cannot escape responsibility for such omission. But since he was acting in
good faith, his liability should only be administrative or civil in nature, and not
criminal. This follows the decision in Villacorta v. People
[26]
where the Court,
in acquitting therein accused municipal treasurer of Pandan, Catanduanes of
malversation after finding that he incurred a shortage in his cash
accountability by reason of his payment in good faith to certain government
personnel of their legitimate wages, leave allowances, etc., held that:
Nor can negligence approximating malice or fraud be attributed to petitioner. If he
made wrong payments, they were in good faith mainly to government personnel,
some of them working at the provincial auditors and the provincial treasurers
offices. And if those payments ran counter to auditing rules and regulations, they did
not amount to a criminal offense and he should only be held administratively or civilly
liable.
Likewise controlling is US v. Elvia
[27]
where it was held that payments in
good faith do not amount to criminal appropriation, although they were made
with insufficient vouchers or improper evidence. In fact, the Dissenting
Opinions reference to certain provisions in the revised Manual on Certificate
of Settlement and Balances - apparently made to underscore Tabuenas
personal accountability, as agency head, for MIAA funds - would all the more
support the view that Tabuena is vulnerable to civil sanctions only. Sections
29.2 and 29.5 expressly and solely speak of civilly liable to describe the
kind of sanction imposable on a superior officer who performs his duties with
bad faith, malice or gross negligence and on a subordinate officer or
employee who commits willful or negligent acts x x x which are contrary to
law, morals, public policy and good customs even if he acted under order or
instructions of his superiors.
Third. The Sandiganbayan made the finding that Tabuena had already
converted and misappropriated the P55 Million when he delivered the same to
Mrs. Gimenez and not to the PNCC, proceeding from the following
definitions/concepts of conversion:
Conversion, as necessary element of offense of embezzlement, being the fraudulent
appropriation to ones own use of anothers property which does not necessarily
mean to ones personal advantage but every attempt by one person to dispose of the
goods of another without right as if they were his own is conversion to his own
use. (Terry v. Water Improvement Dist. No. 5 of Tulsa County, 64 p. 2d 904, 906,
179 Okl. 106)
- At p. 207, Words and Phrases,
Permanent Edition 9A.
Conversion is any interference subversive of the right of the owner of personal
property to enjoy and control it. The gist of conversion is the usurpation of the
owners right of property, and not the actual damages inflicted. Honesty of purpose is
not a defense. (Ferrera v. Parks, 23 p. 883, 885 19 Or. 141)
- At page 168, id.
x x x x x x x x x
The words convert and misappropriate connote an act of using or disposing of
anothers property as if it were ones own. They presuppose that the thing has been
devoted to a purpose or use different from that agreed upon. To appropriate to ones
own use includes not only conversion to ones personal advantage but every attempt
to dispose of the property of another without right.
People vs. Webber, 57 O.G.
p. 2933, 2937
By placing them at the disposal of private persons without due authorization or legal
justification, he became as guilty of malversation as if he had personally taken them
and converted them to his own use.
People vs. Luntao, 50 O.G.
p. 1182, 1183
[28]

We do not agree. It must be stressed that the MARCOS Memorandum
directed Tabuena to pay immediately the Philippine National Construction
Corporation, thru this office, the sum of FIFTY FIVE MILLION...., and that
was what Tabuena precisely did when he delivered the money to Mrs.
Gimenez. Such delivery, no doubt, is in effect delivery to the Office of the
President inasmuch as Mrs. Gimenez was Marcos secretary
then. Furthermore, Tabuena had reasonable ground to believe that the
President was entitled to receive the P55 Million since he was certainly aware
that Marcos, as Chief Executive, exercised supervision and control over
government agencies. And the good faith of Tabuena in having delivered the
money to the Presidents office (thru Mrs. Gimenez), in strict compliance with
the MARCOS Memorandum, was not at all affected even if it later turned out
that PNCC never received the money. Thus, it has been said that:
Good faith in the payment of public funds relieves a public officer from the crime of
malversation.
x x x x x x x x x
Not every unauthorized payment of public funds is malversation. There is
malversation only if the public officer who has custody of public funds should
appropriate the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence shall permit any other person to take such public
funds. Where the payment of public funds has been made in good faith, and there is
reasonable ground to believe that the public officer to whom the fund had been paid
was entitled thereto, he is deemed to have acted in good faith, there is no criminal
intent, and the payment, if it turns out that it is unauthorized, renders him only civilly
but not criminally liable.
[29]

Fourth. Even assuming that the real and sole purpose behind the
MARCOS Memorandum was to siphon-out public money for the personal
benefit of those then in power, still, no criminal liability can be imputed to
Tabuena. There is no showing that Tabuena had anything to do whatsoever
with the execution of the MARCOS Memorandum. Nor is there proof that he
profited from the felonious scheme. In short, no conspiracy was established
between Tabuena and the real embezzler/s of the P55 Million. In the cases
of US v. Acebedo
[30]
and Ang v. Sandiganbayan,
[31]
both also involving the
crime of malversation, the accused therein were acquitted after the Court
arrived at a similar finding of non-proof of conspiracy. In Acebedo, therein
accused, as municipal president of Palo, Leyte, was prosecuted for and found
guilty by the lower court of malversation after being unable to turn over certain
amounts to the then justice of the peace. It appeared, however, that said
amounts were actually collected by his secretary Crisanto Urbina. The Court
reversed Acebedos conviction after finding that the sums were converted by
his secretary Urbina without the knowledge and participation of Acebedo. The
Court said, which we herein adopt:
No conspiracy between the appellant and his secretary has been shown in this case,
nor did such conspiracy appear in the case against Urbina. No guilty knowledge of
the theft committed by the secretary was shown on the part of the appellant in this
case, nor does it appear that he in any way participated in the fruits of the crime. If
the secretary stole the money in question without the knowledge or consent of the
appellant and without negligence on his part, then certainly the latter can not be
convicted of embezzling the same money or any part thereof.
[32]

In Ang, accused-petitioner, as MWSS bill collector, allowed part of his
collection to be converted into checks drawn in the name of one Marshall Lu,
a non-customer of MWSS, but the checks were subsequently
dishonored. Ang was acquitted by this Court after giving credence to his
assertion that the conversion of his collections into checks were thru the
machinations of one Lazaro Guinto, another MWSS collector more senior to
him. And we also adopt the Courts observation therein, that:
The petitioners alleged negligence in allowing the senior collector to convert cash
collections into checks may be proof of poor judgment or too trusting a nature insofar
as a superior officer is concerned but there must be stronger evidence to show fraud,
malice, or other indicia of deliberateness in the conspiracy cooked up with Marshall
Lu. The prosecution failed to show that the petitioner was privy to the conspirational
scheme. Much less is there any proof that he profited from the questioned acts. Any
suspicions of conspiracy, no matter how sincerely and strongly felt by the MWSS,
must be converted into evidence before conviction beyond reasonable doubt may be
imposed.
[33]

The principles underlying all that has been said above in exculpation of
Tabuena equally apply to Peralta in relation to the P5 Million for which he is
being held accountable, i.e., he acted in good faith when he, upon the
directive of Tabuena, helped facilitate the withdrawal of P5 Million of theP55
Million of the MIAA funds.
This is not a sheer case of blind and misguided obedience, but obedience
in good faith of a duly executed order. Indeed, compliance to a patently lawful
order is rectitude far better than contumacious disobedience. In the case at
bench, the order emanated from the Office of the President and bears the
signature of the President himself, the highest official of the land. It carries
with it the presumption that it was regularly issued. And on its face, the
memorandum is patently lawful for no law makes the payment of an obligation
illegal. This fact, coupled with the urgent tenor for its execution constrains one
to act swiftly without question. Obedientia est legis essentia. Besides, the
case could not be detached from the realities then prevailing. As aptly
observed by Mr. Justice Cruz in his dissenting opinion:
We reject history in arbitrarily assuming that the people were free during the era and
that the judiciary was independent and fearless. We know it was not; even the
Supreme Court at that time was not free. This is an undeniable fact that we can not
just blink away. Insisting on the contrary would only make our sincerity suspect and
even provoke scorn for what can only be described as our incredible credulity.
[34]

But what appears to be a more compelling reason for their acquittal is the
violation of the accuseds basic constitutional right to due process. Respect
for the Constitution, to borrow once again Mr. Justice Cruzs words, is more
important than securing a conviction based on a violation of the rights of the
accused.
[35]
While going over the records, we were struck by the way the
Sandiganbayan actively took part in the questioning of a defense witness and
of the accused themselves. Tabuena and Peralta may not have raised this as
an error, there is nevertheless no impediment for us to consider such matter
as additional basis for a reversal since the settled doctrine is that an appeal
throws the whole case open to review, and it becomes the duty of the
appellate court to correct such errors as may be found in the judgment
appealed from whether they are made the subject of assignments of error or
not.
[36]

Simply consider the volume of questions hurled by the Sandiganbayan. At
the taking of the testimony of Francis Monera, then Senior Assistant Vice
President and Corporate Comptroller of PNCC, Atty. Andres asked sixteen
(16) questions on direct examination. Prosecutor Viernes only asked six (6)
questions on cross-examination in the course of which the court interjected a
total of twenty-seven (27) questions (more than four times Prosecutor Viernes
questions and even more than the combined total of direct and cross-
examination questions asked by the counsels). After the defense opted not to
conduct any re-direct examination, the court further asked a total of ten
(10) questions.
[37]
The trend intensified during Tabuenas turn on the witness
stand. Questions from the court after Tabuenas cross-examination
totalled sixty-seven (67).
[38]
This is more than five times Prosecutor Viernes
questions on cross-examination (14), and more than double the total of direct
examination and cross-examination questions which is thirty-one (31) [17
direct examination questions by Atty. Andres plus 14 cross-examination
questions by Prosecutor Viernes]. In Peraltas case, the Justices, after his
cross-examination, propounded a total of forty-one (41) questions.
[39]

But more importantly, we note that the questions of the court were in the
nature of cross examinations characteristic of confrontation, probing and
insinuation.
[40]
(The insinuating type was best exemplified in one question
addressed to Peralta, which will be underscored.) Thus we beg to quote in
length from the transcripts pertaining to witness Monera, Tabuena and
Peralta. (Questions from the Court are marked with asterisks and italicized for
emphasis.)
(MONERA)
(As a background, what was elicited from his direct examination is that the
PNCC had receivables from MIAA totalling P102,475,392.35, and although
such receivables were largely billings for escalation, they were nonetheless all
due and demandable. What follows are the cross-examination of Prosecutor
Viernes and the court questions).
CROSS-EXAMINATION BY PROS. VIERNES
Q You admit that as shown by these Exhibits 7 and 7-a, the items here represent
mostly escalation billings. Were those escalation billings properly transmitted to
MIA authorities?
A I dont have the documents right now to show that they were transmitted, but I
have a letter by our President, Mr. Olaguer, dated July 6, 1988, following up for
payment of the balance of our receivables from MIA, sir.
*AJ AMORES
*Q This matter of escalation costs, is it not a matter for a conference between
the MIA and the PNCC for the determination as to the correct amount?
A I agree, your Honor. As far as we are concerned, our billings are what we
deemed are valid receivables. And, in fact, we have been following up for
payment.
*Q This determination of the escalation costs was it accepted as the correct
figure by MIA?
A I dont have any document as to the acceptance by MIA, your Honor, but our
company was able to get a document or a letter by Minister Ongpin to President
Marcos, dated January 7, 1985, with a marginal note or approval by former
President Marcos.
*PJ GARCHITORENA
*Q Basically, the letter of Mr. Ongpin is to what effect?
A The subject matter is approval of the supplementary contract and request for
partial deferment of payment for MIA Development Project, your Honor.
*Q It has nothing to do with the implementation of the escalation costs?
A The details show that most of the accounts refer to our escalations, your Honor.
*Q Does that indicate the computation for escalations were already billed or you
do not have any proof of that?
A Our subsidiary ledger was based on billings to MIA and this letter of Minister
Ongpin appears to have confirmed our billings to MIA, your Honor.
*AJ AMORES
*Q Were there partial payments made by MIA on these escalation billings?
A Based on records available as of today, the P102 million was reduced to
about P56.7 million, if my recollection is correct, your Honor.
*PJ GARCHITORENA
*Q Were the payments made before or after February 1986, since Mr. Olaguer is
a new entrant to your company?
WITNESS
A The payments were made after December 31, 1985 but I think the payments were
made before the entry of our President, your Honor. Actually, the payment was in
the form of: assignments to State Investment of about P23 million; and then there
was P17.8 million application against advances made or formerly given; and there
were payments to PNCC of about P2.6 million and there was a payment for
application on withholding and contractual stock of about P1 million; that summed
up to P44.4 million all in all. And you deduct that from theP102 million, the
remaining balance would be about P57 million.
*PJ GARCHITORENA
*Q What you are saying is that, for all the payments made on this P102 million,
only P2 million had been payments in cash?
A Yes, your Honor.
*Q The rest had been adjustments of accounts, assignments of accounts, or
offsetting of accounts?
A Yes, your Honor.
*Q This is as of December 31, 1985?
A The P102 million was as of December 31, 1985, your Honor, but the balances is
as of August 1987.
*Q We are talking now about the P44 million, more or less, by which the basic
account has been reduced. These reductions, whether by adjustment or
assignment or actual delivery of cash, were made after December 31, 1985?
WITNESS
A Yes, your Honor.
*Q And your records indicate when these adjustments and payments were
made?
A Yes, your Honor.
*AJ AMORES
*Q You said there were partial payments before of these escalation billings. Do
we get it from you that there was an admission of these escalation costs as
computed by you by MIA, since there was already partial payments?
A Yes, your Honor.
*Q How were these payments made before February 1986, in case or check, if
there were payments made?
A The P44 million payments was in the form of assignments, your Honor.
*PJ GARCHITORENA
*Q The question of the Court is, before December 31, 1985, were there any
liquidations made by MIA against these escalation billings?
A I have not reviewed the details of the record, your Honor. But the ledger card
indicates that there were collections on page 2 of the Exhibit earlier presented. It
will indicate that there were collections shown by credits indicated on the credit
side of the ledger.
*AJ AMORES
*Q Your ledger does not indicate the manner of giving credit to the MIA with
respect to the escalation billings. Was the payment in cash or just credit of
some sort before December 31, 1985?
A Before December 31, 1985, the reference of the ledger are official receipts and I
suppose these were payments in cash, your Honor.
*Q Do you know how the manner of this payment in cash was made by MIA?
A I do not know, your Honor.
*PJ GARCHITORENA
*Q But your records will indicate that?
A The records will indicate that, your Honor.
*Q Except that you were not asked to bring them?
A Yes, your Honor.
*Q At all events, we are talking of settlement or partial liquidation prior to
December 31, 1985?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Subsequent thereto, we are talking merely of about P44 million?
A Yes, your Honor, as subsequent settlements.
*Q After December 31, 1985?
A Yes, your Honor.
*Q And they have liquidated that, as you described it, by way of assignments,
adjustments, by offsets and by P2 million of cash payment?
A Yes, your Honor.
*AJ AMORES
*Q Your standard operating procedure before December 31, 1985 in connection
with or in case of cash payment, was the payment in cash or check?
A I would venture to say it was by check, your Honor.
*Q Which is the safest way to do it?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And the business way?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You mentioned earlier about the letter of former Minister Ongpin to the former
President Marcos, did you say that that letter concurs with the escalation billings
reflected in Exhibits 7 and 7-a?
WITNESS
A The Company or the management is of the opinion that this letter, a copy of which
we were able to get, is a confirmation of the acceptance of our billings, sir.
Q This letter of Minister Ongpin is dated January 7, 1985, whereas the entries of
escalation billings as appearing in Exhibit 7 are dated June 30, 1985, would you
still insist that the letter of January 1985 confirms the escalation billings as of June
1985?
A The entries started June 30 in the ledger card. And as of December 31, 1985, it
stood at P102 million after payments were made as shown on the credit side of the
ledger. I suppose hat the earlier amount, before the payment was made, was
bigger and therefore I would venture to say that the letter of January 7, 1985
contains an amount that is part of the original contract account. What are
indicated in the ledger are escalation billings.
*PJ GARCHITORENA
*Q We are talking about the letter of Minister Ongpin?
A The letter of Minister Ongpin refers to escalation billings, sir.
*Q As of what date?
A The letter is dated January 7, 1985, your Honor.
PJ GARCHITORENA
Continue.
PROS. VIERNES
Q In accordance with this letter marked Exhibit 7 and 7-a, there were credits
made in favor of MIA in July and November until December 1985. These were
properly credited to the account of MIA?
WITNESS
A Yes, sir.
Q In 1986, from your records as appearing in Exhibit 7-a, there were no payments
made to PNCC by MIA for the months of January to June 1986?
A Yes, sir.
Q And neither was the amount of P22 million remitted to PNCC by MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ AMORES
*Q From your records, for the month of January 1986, there was no payment of
this escalation account by MIA?
WITNESS
A Yes, your Honor. But on page 2 of Exhibit 7 there appears an assignment
of P23 million, that was on September 25, 1986.
*Q But that is already under the present administration?
A After February 1986, your Honor.
*Q But before February, in January 1986, there was no payment whatsoever by
MIA to PNCC?
A Per record there is none appearing, your Honor.
*PJ GARCHITORENA
*Q The earliest payment, whether by delivery of cash equivalent or of
adjustment of account, or by assignment, or by offsets, when did these
payments begin?
A Per ledger card, there were payments in 1985, prior to December 31, 1985, your
Honor.
*Q After December 31, 1985?
A There appears also P23 million as credit, that is a form of settlement, your Honor.
*Q This is as of September 25?
A Yes, your Honor. There were subsequent settlements. P23 million is just part of
the P44 million.
*Q And what you are saying is that, PNCC passed the account to State
Investment. In other words, State Investment bought the credit of MIA?
A Yes, your Honor.
*Q And the amount of credit or receivables sold by PNCC to State Investment
is P23 million?
A Yes, your Honor.
*Q Is there a payback agreement?
A I have a copy of the assignment to State Investment but I have not yet reviewed
the same, your Honor.
*AJ AMORES
*Q As of now, is this obligation of MIA, now NAIA, paid to PNCC?
A There is still a balance of receivables from MIA as evidenced by a collection letter
by our President dated July 6, 1988, your Honor. The amount indicated in the
letter is P55 million.
PJ GARCHITORENA
Any clarifications you would like to make Mr. Estebal?
ATTY ESTEBAL
None, your Honor.
PJ GARCHITORENA
Mr. Viernes?
PROS VIERNES
No more, your Honor.
PJ GARCHITORENA
The witness is excused. Thank you very much Mr. Monera. x x x.
[41]

(TABUENA)
(In his direct examination, he testified that he caused the preparation of
the checks totalling P55 Million pursuant to the MARCOS Memorandum and
that he thereafter delivered said amount in cash on the three (3) dates as
alleged in the information to Marcos private secretary Mrs. Jimenez at her
office at Aguado Street, who thereafter issued a receipt. Tabuena also denied
having used the money for his own personal use.)
CROSS-EXAMINATION BY PROS. VIERNES
Q The amount of P55 million as covered by the three (3) checks Mr. Tabuena, were
delivered on how many occasions?
A Three times, sir.
Q And so, on the first two deliveries, you did not ask for a receipt from Mrs.
Gimenez?
A Yes, sir.
Q It was only on January 30, 1986 that this receipt Exhibit 3 was issued by Mrs.
Gimenez?
A Yes, sir.
*PJ GARCHITORENA
*Q So January 30 is the date of the last delivery?
A I remember it was on the 31st of January, your Honor. What happened is that, I
did not notice the date placed by Mrs. Gimenez.
*Q Are you telling us that this Exhibit 3 was incorrectly dated?
A Yes, your Honor.
*Q Because the third delivery was on January 31st and yet the receipt was
dated January 30?
A Yes, your Honor.
*Q When was Exhibit 3 delivered actually by Mrs. Gimenez?
A January 31st, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You did not go to Malacaang on January 30, 1986?
A Yes, sir, I did not.
Q Do you know at whose instance this Exhibit 3 was prepared?
A I asked for it, sir.
Q You asked for it on January 31, 1986 when you made the last delivery?
A Yes, sir.
Q Did you see this Exhibit 3 prepared in the Office of Mrs. Gimenez?
A Yes, sir.
Q This receipt was typewritten in Malacaang stationery. Did you see who typed
this receipt?
A No, sir. What happened is that, she went to her room and when she came out
she gave me that receipt.
*PJ GARCHITORENA
*Q What you are saying is, you do not know who typed that receipt?
WITNESS
A Yes, your Honor.
*Q Are you making an assumption that she typed that receipt?
A Yes, your Honor, because she knows how to type.
*Q Your assumption is that she typed it herself?
A Yes, your Honor.
PJ GARCHITORENA
Proceed.
PROS. VIERNES
Q This receipt was prepared on January 31, although it is dated January 30?
A Yes, sir, because I was there on January 31st.
Q In what particular place did Mrs. Gimenez sign this Exhibit 3?
A In her office at Aguado, sir.
Q Did you actually see Mrs. Gimenez signing this receipt Exhibit 3?
A No, sir, I did not. She was inside her room.
Q So, she was in her room and when she came out of the room, she handed this
receipt to you already typed and signed?
A Yes, sir.
*AJ HERMOSISIMA
*Q So, how did you know this was the signature of Mrs. Gimenez?
WITNESS
A Because I know her signature, your Honor. I have been receiving letters from her
also and when she requests for something from me. Her writing is familiar to me.
*Q So, when the Presiding Justice asked you as to how you knew that this was the
signature of Mrs. Gimenez and you answered that you saw Mrs. Gimenez signed
it, you were not exactly truthful?
A What I mean is, I did not see her sign because she went to her room and when
she came out, she gave me that receipt, your Honor.
PJ GARCHITORENA
That is why you have to wait for the question to be finished and listen to it
carefully. Because when I asked you, you said you saw her signed it. Be careful
Mr. Tabuena.
WITNESS
Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q Was there another person inside the office of Mrs. Gimenez when she gave you
this receipt Exhibit 3?
A Nobody, sir.
Q I noticed in this receipt that the last delivery of the sum of P55 million was made
on January 30. Do we understand from you that this date January 30 is
erroneous?
A Yes, sir, that January 30 is erroneous. I noticed it only afterwards. This should
be January 31st, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ANDRES
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ HERMOSISIMA
*Q Why did you not ask for a receipt on the first and second deliveries?
A Because I know that the delivery was not complete yet, your Honor.
*PJ GARCHITORENA
*Q So you know that the total amount to be delivered was P55 million?
A Yes, your Honor.
PJ GARCHITORENA
Response by Mr. Peralta to the testimony of Mr. Tabuena.
ATTY. ESTEBAL
We are adopting the testimony of Mr. Tabuena and we will also present the accused,
your Honor.
*AJ DEL ROSARIO
*Q From whom did you receive the Presidents memorandum marked Exhibit 1? Or
more precisely, who handed you this memorandum?
A Mrs. Fe Roa Gimenez, your Honor.
*Q Did you ask Mrs. Fe Gimenez for what purpose the money was being asked?
A The money was in payment for the debt of the MIA Authority to PNCC, your
Honor.
*Q If it was for the payment of such obligation why was there no voucher prepared to
cover such payment? In other words, why was the delivery of the money not
covered by any voucher?Calrky
A The instruction to me was to give it to the Office of the President, your Honor.
*PJ GARCHITORENA
*Q Be that as it may, why was there no voucher to cover this particular disbursement?
A I was just told to bring it to the Office of the President, your Honor.
*AJ DEL ROSARIO
*Q Was that normal procedure for you to pay in cash to the Office of the President for
obligations of the MIAA in payment of its obligation to another entity?
WITNESS
A No, your Honor, I was just following the Order to me of the President.
*PJ GARCHITORENA
*Q So the Order was out of the ordinary?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q Did you file any written protest with the manner with which such payment was
being ordered?
A No, your Honor.
*Q Why not?
A Because with that instruction of the President to me, I followed, your Honor.
*Q Before receiving this memorandum Exhibit 1, did the former President Marcos
discuss this matter with you?
A Yes, your Honor.
*Q When was that?
A He called me up earlier, a week before that, that he wants to me pay what I owe
the PNCC directly to his office in cash, your Honor.
*PJ GARCHITORENA
*Q By I OWE, you mean the MIAA?
WITNESS
A Yes, your Honor.
*AJ DEL ROSARIO
*Q And what did you say in this discussion you had with him?
A I just said, Yes, sir, I will do it/
*Q Were you the one who asked for a memorandum to be signed by him?
A No, your Honor.
*Q After receiving that verbal instruction for you to pay MIAAs obligation with PNCC,
did you not on your own accord already prepare the necessary papers and
documents for the payment of that obligation?
A He told me verbally in the telephone that the Order for the payment of that
obligation is forthcoming, your Honor. I will receive it.
*Q Is this the first time you received such a memorandum from the President?
A Yes, your Honor.
*Q And was that the last time also that you received such a memorandum?
A Yes, your Honor.
*Q Did you not inquire, if not from the President, at least from Mrs. Gimenez why this
procedure has to be followed instead of the regular procedure?
A: No, sir.
*AJ DEL ROSARIO
*Q Why did you not ask?
A I was just ordered to do this thing, your Honor.
*AJ HERMOSISIMA
*Q You said there was an I OWE YOU?
A Yes, your Honor.
*Q Where is that I OWE YOU now?
A All I know is that we owe PNCC the amount of P99.1 million, your Honor. MIAA
owes PNCC that amount.
*Q Was this payment covered by receipt from the PNCC?
A It was not covered, your Honor.
*Q So the obligation of MIAA to PNCC was not, for the record, cancelled by virtue of
that payment?
A Based on the order to me by the former President Marcos ordering me to pay that
amount to his office and then the mechanics will come after, your Honor.
*Q Is the PNCC a private corporation or government entity?
A I think it is partly government, your Honor.
*PJ GARCHITORENA
*Q That is the former CDCP?
A Yes, your Honor.
*AJ HERMOSISIMA
*Q Why were you not made to pay directly to the PNCC considering that you are the
Manager of MIA at that time and the PNCC is a separate corporation, not an
adjunct of Malacaang?
WITNESS
A I was just basing it from the Order of Malacaang to pay PNCC through the Office
of the President, your Honor.
*Q Do you know the President or Chairman of the Board of PNCC?
A Yes, your Honor.
*Q How was the obligation of MIAA to PNCC incurred. Was it through the President
or Chairman of the Board?
A PNCC was the one that constructed the MIA, your Honor.
*Q Was the obligation incurred through the President or Chairman of the Board or
President of the PNCC? In other words, who signed the contract between PNCC
and MIAA?
A Actually, we inherited this obligation, your Honor. The one who signed for this
was the former Director of BAT which is General Singzon. Then when the MIA
Authority was formed, all the obligations of BAT were transferred to MIAA. So the
accountabilities of BAT were transferred to MIAA and we are the ones that are
going to pay, your Honor.
*Q Why did you agree to pay to Malacaang when your obligation was with the
PNCC?
A I was ordered by the President to do that, your Honor.
*Q You agreed to the order of the President notwithstanding the fact that this was not
the regular course or Malacaang was not the creditor?
A I saw nothing wrong with that because that is coming from the President, your
Honor.
*Q The amount was not a joke, amounting to P55 million, and you agreed to deliver
money in this amount through a mere receipt from the private secretary?
A I was ordered by the President, your Honor.
*PJ GARCHITORENA
*Q There is no question and it can be a matter of judicial knowledge that you have
been with the MIA for sometime?
A Yes, your Honor.
*Q Prior to 1986?
A Yes, your Honor.
*Q Can you tell us when you became the Manager of MIA?
A I became Manager of MIA way back, late 1968, your Honor.
*Q Long before the MIA was constituted as an independent authority?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And by 1986, you have been running the MIA for 18 years?
WITNESS
A Yes, your Honor.
*Q And prior to your joining the MIA, did you ever work for the government?
A No, your Honor.
*Q So, is it correct for us to say that your joining the MIA in 1968 as its Manager was
your first employment with the government?
A Yes, your Honor.
*Q While you were Manager of MIA, did you have other subsequent concurrent
positions in the government also?
A I was also the Chairman of the Games and Amusement Board, your Honor.
*Q But you were not the executive or operating officer of the Games and Amusement
Board?
A I was, your Honor.
*Q As Chairman you were running the Games and Amusement Board?
A Yes, your Honor.
*Q What else, what other government positions did you occupy that time?
A I was also Commissioner of the Game Fowl Commission, your Honor.
*PJ GARCHITORENA
*Q That is the cockfighting?
WITNESS
A Yes, your Honor.
*Q Here, you were just a member of the Board?
A Yes, your Honor.
*Q So you were not running the commission?
A Yes, your Honor.
*Q Any other entity?
A No more, your Honor.
*Q As far as you can recall, besides being the Manager of the MIA and later the MIAA
for approximately 18 years, you also ran the Games and Amusement Board as its
executive officer?
A Yes, your Honor.
*Q And you were a commissioner only of the Game Fowl Commission?
A Yes, your Honor.
*Q Who was running the commission at that time?
A I forgot his name, but he retired already, your Honor.
*Q All of us who joined the government, sooner or later, meet with our Resident COA
representative?
A Yes, your Honor.
*PJ GARCHITORENA
*Q And one of our unfortunate experience (sic) is when the COA Representative
comes to us and says: Chairman or Manager, this cannot be. And we learn later
on that COA has reasons for its procedure and we learn to adopt to them?
WITNESS
A Yes, your Honor.
*Q As a matter of fact, sometimes we consider it inefficient, sometimes we consider it
foolish, but we know there is reason in this apparent madness of the COA and so
we comply?
A Yes, your Honor.
*Q And more than anything else the COA is ever anxious for proper documentation
and proper supporting papers?
A Yes, your Honor.
*Q Sometimes, regardless of the amount?
A Yes, your Honor.
*Q Now, you have P55 million which you were ordered to deliver in cash, not to the
creditor of the particular credit, and to be delivered in armored cars to be
acknowledged only by a receipt of a personal secretary. After almost 18 years in
the government service and having had that much time in dealing with COA
people, did it not occur to you to call a COA representative and say, What will I do
here?
A I did not, your Honor.
*PJ GARCHITORENA
*Q Did you not think that at least out of prudence, you should have asked the COA for
some guidance on this matter so that you will do it properly?
WITNESS
A What I was going to do is, after those things I was going to tell that delivery
ordered by the President to the COA, your Honor.
*Q That is true, but what happened here is that you and Mr. Dabao or you and Mr.
Peralta signed requests for issuance of Managers checks and you were
accommodated by the PNB Office at Nichols without any internal documentation to
justify your request for Managers checks?
A Yes, your Honor.
*Q Of course we had no intimation at that time that Mr. Marcos will win the elections
but even then, the Daily Express, which was considered to be a newspaper
friendly to the Marcoses at that time, would occasionally come with so-called
expose, is that not so?
A Yes, your Honor.
*Q And worst, you had the so-called mosquito press that would always come out with
the real or imagined scandal in the government and place it in the headline, do you
recall that?
A Yes, your Honor.
*PJ GARCHITORENA
*Q Under these circumstances, did you not entertain some apprehension that some
disloyal employees might leak you out and banner headline it in some mosquito
publications like the Malaya at that time?
WITNESS
A No, your Honor.
*PJ GARCHITORENA
I bring this up because we are trying to find out different areas of fear. We are in the
government and we in the government fear the COA and we also fear the
press. We might get dragged into press releases on the most innocent thing. You
believe that?
A Yes, your Honor.
*Q And usually our best defense is that these activities are properly documented?
A Yes, your Honor.
*Q In this particular instance, your witnesses have told us about three (3) different
trips from Nichols to Aguado usually late in the day almost in movie style fashion. I
mean, the money being loaded in the trunk of your official car and then you had a
back-up truck following your car?
A Yes, your Honor.
*Q Is that not quite a fearful experience to you?
A I did not think of that at that time, your Honor.
*PJ GARCHITORENA
*Q You did not think it fearful to be driving along Roxas Boulevard with P25 million in
the trunk of your car?
WITNESS
A We have security at that time your Honor.
ATTY. ANDRES
Your Honor, the P25 million was in the armored car; only P5 million was in the trunk of
his car.
*PJ GARCHITORENA
Thank you for the correction. Even P1 million only. How much more with P5 million
inside the trunk of your car, was that not a nervous experience?
A As I have said, your Honor, I never thought of that.
PJ GARCHITORENA
Thank you very much, Mr. Tabuena. You are excused. x x x.
[42]

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

PROS VIERNES
It was marked as Exhibit M, your Honor.
Q How did you know there was an existing liability of MIAA in favor of PNCC at that
time?
A Because prior to this memorandum of Mr. Tabuena, we prepared the financial
statement of MIAA as of December 31, 1985 and it came to my attention that there
was an existing liability of around P27,999,000.00, your Honor.
Q When was that Financial Statement prepared?
A I prepared it around January 22 or 24, something like that, of 1986, sir.
Q Is it your usual practice to prepare the Financial Statement after the end of the
year within three (3) weeks after the end of the year?
A Yes, sir, it was a normal procedure for the MIAA to prepare the Financial
Statement on or before the 4th Friday of the month because there will be a Board
of Directors Meeting and the Financial Statement of the prior month will be
presented and discussed during the meeting.
*PJ GARCHITORENA
*Q This matter of preparing Financial Statement was not an annual activity but a
monthly activity?
A Yes, your Honor.
*Q This Financial Statement you prepared in January of 1986 recapitulated the
financial condition as of the end of the year?
A Yes, your Honor.
PJ GARCHITORENA
Continue.
PROS VIERNES
Q You made mention of a request for Escalation Clause by former Minister
Ongpin. Did you personally see that request?
A When this order coming from Mr. Tabuena was shown to me, I was shown a
copy, sir. I have no file because I just read it.
Q It was Mr. Tabuena who showed you the letter of Minister Ongpin?
A Yes, sir.
*PJ GARCHITORENA
And that will be Exhibit?
ATTY. ANDRES
Exhibit 2 and 2-A, your Honor.
PROS VIERNES
Q You also stated that you were with Mr. Tabuena when you withdrew the amount
of P5 million from the PNB Extension Office at Villamor?
A Yes, sir.
Q Why was it necessary for you to go with him on that occasion?
A Mr. Tabuena requested me to do the counting by million, sir. So what I did was to
bundle count the P5 million and it was placed in two (2) peerless boxes.
Q Did you actually participate in the counting of the money by bundles?
A Yes, sir.
Q Bundles of how much per bundle?
A If I remember right, the bundles consisted of P100s and P50s, sir.
Q No P20s and P10s?
A Yes, sir, I think it was only P100s and P50s.
*PJ GARCHITORENA
*Q If there were other denominations, you can not recall?
A Yes, your Honor.
PROS VIERNES
Q In how many boxes were those bills placed?
A The P5 million were placed in two (2) peerless boxes, sir.
Q And you also went with Mr. Tabuena to Aguado?
A No, sir, I was left behind at Nichols. After it was placed at the trunk of the car of
Mr. Tabuena, I was left behind and I went back to my office at MIA.
Q But the fact is that, this P5 million was withdrawn at passed 5:00 oclock in the
afternoon?
A I started counting it I think at around 4:30, sir. It was after office hours. But then I
was there at around 4:00 oclock and we started counting at around 4:30 p.m.
because they have to place it in a room, which is the office of the Manager at that
time.
Q And Mr. Tabuena left for Malacaang after 5:00 oclock in the afternoon of that
date?
A Yes, sir. After we have counted the money, it was placed in the peerless boxes
and Mr. Tabuena left for Malacaang.
PROS VIERNES
Q And you yourself, returned to your office at MIA?
WITNESS
A Yes, sir.
Q Until what time do you hold office at the MIA?
A Usually I over-stayed for one (1) or two (2) hours just to finish the paper works in
the office, sir.
Q So, even if it was already after 5:00 oclock in the afternoon, you still went back to
your office at MIA?
A Yes, sir.
PROS VIERNES
That will be all, your Honor.
PJ GARCHITORENA
Redirect?
ATTY. ESTEBAL
No redirect, your Honor.
*PJ GARCHITORENA
Questions from the Court.
*AJ DEL ROSARIO
*Q Did you not consider it as odd that your obligation with the PNCC had to be paid in
cash?
WITNESS
A Based on the order of President Marcos that we should pay in cash, it was not
based on the normal procedure, your Honor.
*Q And, as Acting Financial Services Manager, you were aware that all
disbursements should be covered by vouchers?
A Yes, your Honor, the payments should be covered by vouchers. But then,
inasmuch as what we did was to prepare a request to the PNB, then this can be
covered by Journal Voucher also.
*Q Was such payment of P5 million covered by a Journal Voucher?
A Yes, your Honor.
*Q Did you present that Journal Voucher here in Court?
A We have a copy, your Honor.
*Q Do you have a copy or an excerpt of that Journal Voucher presented in Court to
show that payment?
A We have a copy of the Journal Voucher, your Honor.
*Q Was this payment of P5 million ever recorded in a cashbook or other accounting
books of MIAA?
A The payment of P5 million was recorded in a Journal Voucher, your Honor.
*PJ GARCHITORENA
*Q In other words, the recording was made directly to the Journal?
WITNESS
A Yes, your Honor.
*Q There are no other separate documents as part of the application for Managers
Check?
A Yes, your Honor, there was none.
*AJ DEL ROSARIO
*Q After the payment was made, did your office receive any receipt from PNCC?
A I was shown a receipt by Mr. Tabuena, the receipt given by Mrs. Fe Roa
Gimenez, your Honor. Inasmuch as the payment should be made through the
Office of the president, I accepted the receipt given by Mrs. Fe Gimenez to Mr.
Tabuena.
*Q After receiving that receipt, did you prepare the necessary supporting documents,
vouchers, and use that receipt as a supporting document to the voucher?
A Your Honor, a Journal Voucher was prepared for that.
*Q How about a disbursement voucher?
A Inasmuch as this was a request for Managers check, no disbursement voucher
was prepared, your Honor.
*AJ DEL ROSARIO
*Q Since the payment was made on January 31, 1986, and that was very close to the
election held in that year, did you not entertain any doubt that the amounts were
being used for some other purpose?
ATTY. ESTEBAL
With due respect to the Honorable Justice, we are objecting to the question on the
ground that it is improper.
*AJ DEL ROSARIO
I will withdraw the question.
*PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think there was any
basis, your Honor.
*PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
*AJ HERMOSISIMA
*Q As a Certified Public Accountant and Financial Manager of the MIAA, did you not
consider it proper that a check be issued only after it is covered by a disbursement
voucher duly approved by the proper authorities?
A Your Honor, what we did was to send a request for a Managers check to the PNB
based on the request of Mr. Tabuena and the order of Mr. Tabuena was based on
the Order of President Marcos.
*PJ GARCHITORENA
*Q In your capacity as Financial Services Manager of the MIAA, did you not think it
proper to have this transaction covered by a disbursement voucher?
WITNESS
A Based on my experience, payments out of cash can be made through cash
vouchers, or even though Journal Vouchers, or even through credit memo, your
Honor.
*AJ HERMOSISIMA
*Q This was an obligation of the MIAA to the PNCC. Why did you allow a
disbursement by means of check in favor of Mr. Luis Tabuena, your own
manager?
A We based the payment on the order of Mr. Tabuena because that was the order
of President Marcos to pay PNCC through the Office of the President and it should
be paid in cash, your Honor.
*Q You are supposed to pay only on legal orders. Did you consider that legal?
ATTY. ESTEBAL
With due respect to the Honorable Justice, the question calls for a conclusion of the
witness.
*PJ GARCHITORENA
Considering that the witness is an expert, witness may answer.
WITNESS
A The order of president Marcos was legal at that time because the order was to
pay PNCC the amount of P5 million through the Office of the President and it
should be paid in cash, your Honor. And at that time, I know for a fact also that
there was an existing P.D. wherein the President of the Republic of the Philippines
can transfer funds from one office to another and the PNCC is a quasi government
entity at that time.
*AJ HERMOSISIMA
*Q Are you saying that this transaction was made on the basis of that P.D. which you
referred to?
A I am not aware of the motive of the President, but then since he is the President
of the Philippines, his order was to pay the PNCC through the Office of the
President, your Honor.
*Q As Financial Manager, why did you allow a payment in cash when ordinarily
payment of an obligation of MIAA is supposed to be paid in check?
A I caused the payment through the name of Mr. Tabuena because that was the
order of Mr. Tabuena and also he received an order coming from the President of
the Philippines at that time, your Honor.
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct
certain statements of accounts earlier made in the same journal?
In other words, really what you are telling us is that, a Journal Voucher is to explain a
transaction was otherwise not recorded.
WITNESS
A Yes, your Honor.
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it
is proper only because of the exceptional nature of the transactions?
A Yes, your Honor.
*Q In other words, as an Accountant, you would not normally authorize such a
movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
A Yes, your Honor, because at that time we have also a recorded liability of P27
million.
*Q We are not talking of whether or not there was a liability. What we are saying is, is
the order of the General Manager by itself adequate with no other supporting
papers, to justify the movement of funds?
A Yes, your Honor. The order of Mr. Luis Tabuena was based on our existing
liability of P27,931,000.00, inasmuch as we have that liability and I was shown the
order of President Marcos to pay P5 million through the Office of the President, I
considered the order of Mr. Luis Tabuena, the order of President Marcos and also
the existing liability of P27 million sufficient to pay the amount of P5
million. Inasmuch as there is also an escalation clause of P99.1 million, the
payment of P5 million is fully covered by those existing documents.
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you
whether or not there was valid obligation. We are not asking you about the
escalation clause. We are asking you whether or not this particular order of Mr.
Tabuena is an adequate basis to justify the movement of funds?
WITNESS
When we pay, your Honor, we always look for the necessary documents and at that
time I know for a fact that there was this existing liability.
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question
being asked and not to whatever you wanted to say. I know you are trying to
protect yourself. We are aware of your statement that there are all of these
memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr.
Tabuena by itself is adequate?
WITNESS
A As far as I am concerned, your Honor, inasmuch as we have a liability and I was
shown the Order of President Marcos to pay PNCC through his office, I feel that
the order of the General Manager, the order of President Marcos, and also the
memorandum of Minister Ongpin are sufficient to cause the payment of P5 million.
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds
insofar as the Appropriation Act is concerned?
WITNESS
A Because at that time, your Honor, I have knowledge that the President is
authorized through a Presidential Decree to transfer government funds from one
office to another.
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
A I think the liability was duly recorded and appropriations to pay the amount is.....
(interrupted)
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just
throwing words at us in the hope that we will forget what the question is?
A No, your Honor.
*Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same level as
the realignment of funds authorized the President? Or are you telling as you did
not read the Decree?
A I was aware of that Decree, your Honor.
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing
this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he?
A No, your Honor.
*Q In fact, for purposes of internal control, you have different officers and different
officials in any company either government or private, which are supposed to
check and balance each other, is it not?
A Yes, your Honor.
*Q So that when disbursements of funds are made, they are made by authority of not
only one person alone so that nobody will restrain him?
A Yes, your Honor.
*Q These checks and balances exist in an entity so that no one person can dispose of
funds in any way he likes?
A Yes, your Honor.
*Q And in fact, the purpose for having two (2) signatories to documents and
negotiable documents is for the same purpose?
A Yes, your Honor.
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
WITNESS
A Yes, your Honor.
*Q In your case, you would be the counter check for Mr. Tabuena?
A Yes, your Honor.
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services
Manager and as counter signatory are in a position to tell Mr. Tabuena, I am
sorry, you are my superior but this disbursement is not proper and, therefore, I will
not sign it., if in your opinion the disbursement is not proper?
A Yes, your Honor.
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the
propriety of a particular transaction?
A Yes, your Honor.
*Q And this is something you know by the nature of your position and because you
are a Certified Public Accountant?
A Yes, your Honor.
*AJ DEL ROSARIO
*Q You admit that the payment of P5 million and P50 million were unusual in the
manner with which they were disposed?
A Yes, your Honor.
*Q Did you submit a written protest to the manner in which such amount was being
disposed of?
A A written protest was not made, your Honor, but I called the attention of Mr.
Tabuena that since this payment was upon the order of President Marcos, then I
think as President he can do things which are not ordinary.
*Q If you did not prepare a written protest, did you at least prepare a memorandum for
the record that this was an extra-ordinary transaction?
A I called the attention of Mr. Tabuena that this was an extra-ordinary transaction
and no written note, your Honor.
PJ GARCHITORENA
Thank you very much Mr. Peralta, you are excused. x x x.
[43]

This Court has acknowledged the right of a trial judge to question
witnesses with a view to satisfying his mind upon any material point which
presents itself during the trial of a case over which he presides.
[44]
But not only
should his examination be limited to asking clarificatory questions,
[45]
the right
should be sparingly and judiciously used; for the rule is that the court should
stay out of it as much as possible, neither interfering nor intervening in the
conduct of the trial.
[46]
Here, these limitations were not observed. Hardly in fact
can one avoid the impression that the Sandiganbayan had allied itself with, or
to be more precise, had taken the cudgels for the prosecution in proving the
case against Tabuena and Peralta when the Justices cross-examined the
witnesses, their cross-examinations supplementing those made by Prosecutor
Viernes and far exceeding the latters questions in length. The cold neutrality
of an impartial judge requirement of due process was certainly denied
Tabuena and Peralta when the court, with its overzealousness, assumed the
dual role of magistrate and advocate. In this connection, the observation
made in the Dissenting Opinion to the effect that the majority of this Court was
unduly disturbed with the number of court questions alone, is quite
inaccurate. A substantial portion of the TSN was incorporated in the majority
opinion not to focus on numbers alone, but more importantly to show that
the court questions were in the interest of the prosecution and which thus
depart from that common standard of fairness and impartiality. In fact, it is
very difficult to be, upon review of the records, confronted with numbers
without necessarily realizing the partiality of the Court. In US v. De Sisto (2
Cir., 1961, 289 F 2d 833), for example, a new trial was required because the
trial judge, as in this case, indulged in extensive questioning of defendant and
his witnesses, and the reviewing court also had to amplify on numbers to
bolster this. It was pointed out in the De Sisto case that the judge asked
3,115 questions of all witnesses, the prosecutor asked but 1,381, defense
counsel 3,330. The judges questions to the defendant De Sisto totalled 306,
the prosecutors 347, and the defense counsels, 201. After referring to these
figures, the court stated:
. . . It is indeed an impressive proportion, but no such mathematical computation is of
itself determinative. However, taking all this in conjunction with the long and
vigorous examination of the defendant himself by the judge, and the repeated
belittling by the judge of defendants efforts to establish the time that Fine left the
pier, we fear that in its zeal for arriving at the facts the court here conveyed to the jury
too strong an impression of the courts belief in the defendants probable guilt to
permit the jury freely to perform its own function of independent determination of the
facts. x x x
The majority believes that the interference by the Sandiganbayan Justices
was just too excessive that it cannot be justified under the norm applied to a
jury trial, or even under the standard employed in a non-jury trial where the
judge is admittedly given more leeway in propounding questions to clarify
points and to elicit additional relevant evidence. At the risk of being
repetitious, we will amplify on this via some specific examples. Based on the
evidence on record, and on the admission of Tabuena himself, the P55 million
was delivered to the Presidents Office thru Mrs. Gimenez, in obedience to the
Presidential directive. One Sandiganbayan Justice, however, hurled the
following questions to Peralta:
AJ DEL ROSARIO
Q: Since the payment was made on January 31, 1986, and that was very close to
the election held in that year, did you not entertain any doubt that the amounts
were being used for some other purposes?
ATTY. ESTEBAL
With due respect to the Honorable Justice, We are objecting to the que
stion on the ground that it is
improper.
AJ DEL ROSARIO
I will withdraw the question.
PJ GARCHITORENA
What is the ground for impropriety?
ATTY. ESTEBAL
This is not covered in the direct examination, and secondly, I dont think
there was any basis, Your Honor.
PJ GARCHITORENA
Considering the withdrawal of the question, just make the objection on record.
Nothing from the preceding questions of counsels or of the court would
serve as basis for this question. How then, can this be considered even
relevant? What is the connection between the payment made to the
Presidents office and the then forthcoming presidential snap election? In
another instance, consider the following questions of Presiding Justice
Garchitorena:
*PJ GARCHITORENA
*Q Mr. Peralta, are not Journal Vouchers merely entries in the Journals to correct
certain statements of accounts earlier made in the same journal?
xxx
*Q In other words, really what you are telling us is that, a Journal Voucher is to
explain a transaction was otherwise not recorded.
xxx
*Q Therefore, when you said that a Journal Voucher here is proper, you are saying it
is proper only because of the exceptional nature of the transactions?
xxx
*Q In other words, as an Accountant, you would not normally authorize such a
movement of money unless it is properly documented?
ATTY. ESTEBAL
With due respect to the Honorable Presiding Justice, I think the question is misleading
because what the witness stated is...
*PJ GARCHITORENA
Be careful in your objection because the witness understands the language you are
speaking, and therefore, you might be coaching him.
ATTY. ESTEBAL
No, your Honor. I am also an accountant that is why I could say that...
*PJ GARCHITORENA
Please be simple in your objection.
ATTY. ESTEBAL
The question is misleading on the ground that what the witness stated earlier is that the
Journal Voucher in this particular case was supported, your Honor.
*PJ GARCHITORENA
Overruled, may answer.
WITNESS
A The transaction was fully documented since we have the order of the General
Manager at that time and the order of President Marcos, your Honor.
*Q Are you saying the Order of the General Manager is an adequate basis for the
movement of money?
*Q We are not talking of whether or not there was a liability. What we are saying is, is
the order of the General Manager by itself adequate with no other supporting
papers, to justify the movement of funds?
*PJ GARCHITORENA
You keep flooding us with details we are not asking for. We are not asking you
whether or not there was valid obligation. We are not asking you about the
escalation clause. We are asking you whether or not this particular order of Mr.
Tabuena is an adequate basis to justify the movement of funds?
*PJ GARCHITORENA
When we ask questions and when we answer them, we must listen to the question
being asked and not to whatever you wanted to say. I know you are trying to
protect yourself. We are aware of your statement that there are all of these
memoranda.
*Q By your disbursement of such amount, you are saying that the order of Mr.
Tabuena by itself is adequate?
*PJ GARCHITORENA
*Q This Presidential Decree which authorizes the President to transfer funds from one
department to another, is this not the one that refers to the realignment of funds
insofar as the Appropriation Act is concerned?
*PJ GARCHITORENA
*Q Under the Appropriation Act. Are payments of debts of the MIAA covered by the
Appropriation Act?
*PJ GARCHITORENA
*Q Tell me honestly, is your answer responsive to the question or are you just
throwing words at us in the hope that we will forget what the question is?
xxx
*Q Are you telling us that the debts incurred by MIAA are covered by the
Appropriations Act so that the payment of this debt would be in the same level as
the realignment of funds authorized the President? Or are you telling as you did
not read the Decree?
*PJ GARCHITORENA
Mr. Estebal, will you include in your memorandum what are the Decrees authorizing
this movement of funds?
ATTY. ESTEBAL
Yes, your Honor.
*PJ GARCHITORENA
*Q It is true that President Marcos was the President, but he was not an officer of the
MIAA, was he?
*Q In fact, for purposes of internal control, you have different officers and different
officials in any company either government or private, which are supposed to
check and balance each other, is it not?
*Q So that when disbursements of funds are made, they are made by authority of not
only one person alone so that nobody will restrain him?
*Q These checks and balances exist in an entity so that no one person can dispose of
funds in any way he likes?
*Q And in fact, the purpose for having two (2) signatories to documents and
negotiable documents is for the same purpose?
*PJ GARCHITORENA
*Q In other words, the co-signatories counter check each other?
*Q In your case, you would be the counter check for Mr. Tabuena?
*Q In other words, even if Mr. Tabuena is the Manager, you as Financial Services
Manager and as counter signatory are in a position to tell Mr. Tabuena, I am
sorry, you are my superior but this disbursement is not proper and, therefore, I will
not sign it., if in your opinion the disbursement is not proper?
*Q Therefore, as co-signatory, you are expected to exercise your judgment as to the
propriety of a particular transaction?
*Q And this is something you know by the nature of your position and because you
are a Certified Public Accountant?
[47]

How can these questions be considered clarificatory when they clearly
border more on cross-examination questions? Thus, the Dissenting Opinions
focus on the distinction between the two kinds of trial to justify the
Sandiganbayans active participation in the examination of petitioners
Tabuena and Peralta and witness Monera, with due respect, appears
insignificant to this case. Let it, therefore, be emphasized anew that:
A trial judge should not participate in the examination of witnesses as to create the
impression that he is allied with the prosecution.
[48]

We doubt not that the sole motive of the learned judge was to ascertain the truth of
the transaction, but it is never proper for a judge to discharge the duties of a
prosecuting attorney. However anxious a judge may be for the enforcement of the
law, he should always remember that he is as much judge in behalf of the defendant
accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state,
for the purpose of safeguarding the interests of society.
[49]

Ordinarily it is not good practice for the presiding judge himself to examine
witnesses at length. The circumstances may be such in a given case as to justify the
court in so doing....This court, however, has more than once said that the examination
of witnesses is the more appropriate function of counsel, and the instances are rare
and the conditions exceptional which will justify the presiding judge in conducting an
extensive examination. It is always embarrassing for counsel to object to what he
may deem improper questions by the court. Then, in conducting a lengthy
examination, it would be almost impossible for the judge to preserve a judicial
attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see
that justice is done, he will usually not find it necessary to conduct such
examinations. The extent to which this shall be done must largely be a matter of
discretion, to be determined by the circumstances of each particular case, but in so
doing he must not forget the function of the judge and assume that of an
advocate....
[50]

While it is true that the manner in which a witness shall be examined is largely in the
discretion of the trial judge, it must be understood that we have not adopted in this
country the practice of making the presiding judge the chief inquisitor. It is better to
observe our time-honored custom of orderly judicial procedure, even at the expense of
occasional delays....The judge is an important figure in the trial of a cause, and while
he has the right, and it is often his duty, to question witnesses to the end that justice
shall prevail, we can conceive of no other reason, for him to take the trial of the cause
out of the hands of counsel.
[51]

The examination of witnesses is the more appropriate function of counsel, and it is
believed the instances are rare and the conditions exceptional in a high degree which
will justify the presiding judge in entering upon and conducting an extended
examination of a witness, and that the exercise of a sound discretion will seldom deem
such action necessary or advisable.
[52]

He [the judge] may properly intervene in a trial of a case to promote expedition, and
prevent unnecessary waste of time, or to clear up some obscurity, but he should bear
in mind that his undue interference, impatience, or participation in the examination of
witnesses, or a severe attitude on his part toward witnesses, especially those who are
excited or terrified by the unusual circumstances of a trial, may tend to prevent the
proper presentation of the cause, or the ascertainment of the truth in respect thereto.
[53]

The impartiality of the judge his avoidance of the appearance of becoming the
advocate of either one side or the other of the pending controversy is a fundamental
and essential rule of special importance in criminal cases....
[54]

Our courts, while never unmindful of their primary duty to administer justice,
without fear or favor, and to dispose of these cases speedily and in as inexpensive a
manner as is possible for the court and the parties, should refrain from showing any
semblance of one-sided or more or less partial attitude in order not to create any false
impression in the minds of the litigants. For obvious reasons, it is the bounden duty
of all to strive for the preservation of the peoples faith in our courts.
[55]

Time and again this Court has declared that due process requires no less than the
cold neutrality of an impartial judge. Bolstering this requirement, we have added that
the judge must not only be impartial but must also appear to be impartial, to give
added assurance to the parties that his decision will be just. The parties are entitled to
no less than this, as a minimum guaranty of due process.
[56]

We are well aware of the fear entertained by some that this decision may
set a dangerous precedent in that those guilty of enriching themselves at the
expense of the public would be able to escape criminal liability by the mere
expedient of invoking good faith. It must never be forgotten, however, that
we render justice on a case to case basis, always in consideration of the
evidence that is presented. Thus, where the evidence warrants an acquittal,
as in this case, we are mandated not only by the dictates of law but likewise of
conscience to grant the same. On the other hand, it does not follow that all
those similarly accused will necessarily be acquitted upon reliance on this
case as a precedent. For the decision in this case to be a precedent, the
peculiar circumstances and the evidence that led to the petitioners acquittal
must also be present in subsequent cases.
Furthermore, as between a mere apprehension of a dangerous
precedent and an actual violation of constitutionally enshrined rights, it is
definitely the latter that merits our immediate attention. For the most
dangerous precedent arises when we allow ourselves to be carried away by
such fears so that it becomes lawful to sacrifice the rights of an accused to
calm the fearful. In our eagerness to bring to justice the malefactors of the
Marcos regime, we must not succumb to the temptation to commit the
greatest injustice of visiting the sins of the wrongdoers upon an innocent.
WHEREFORE, in view of the foregoing, herein petitioners Luis A.
Tabuena and Adolfo M. Peralta are hereby ACQUITTED of the crime of
malversation as defined and penalized under Article 217 of the Revised Penal
Code. The Sandiganbayan Decision of October 12, 1990 and the Resolution
dated December 20, 1991 are REVERSED and SET ASIDE.
SO ORDERED.
CASE DIGEST ON TABUENA v. SANDIGANBAYAN [121
SCRA 389 (1983)]
November 10, 2010

Facts:
? In a Presidential Memorandum (the Marcos Memorandum) dated Jan. 6, 1986, President Marcos allegedly
commanded petitioner Tabuena, in his capacity as General Manager of the Manila International Airport Authority
(MIAA), to pay immediately the Philippine National Construction Corporation, thru this Office (Office of the
President), the sum P55M in cash as partial payment of MIAAs account with said company mentioned in a
Memorandum of (Trade and Industry) Minister Robert Ongpin to this Office dated Jan. 7,1985 Tabuena withdrew
the sum of 55M on three separate occasions (25M, 25M, 5M with Adolfo Peralta) and delivered them to Gimenez,
Marcoss private secretary.
? It is without dispute that Tabuena did not follow the normal procedures in withdrawal and delivery of the
money (no disbursement slips and paid in cold cash).
? Tabuena was only issued a receipt after the third delivery and it did not mention anything about the purpose of
the receipt or the money being used to pay PNCC, but merely acknowledged that Gimenez had received the sum of
55M from Tabuena on three occasions. Furthermore, there was no receipt from the PNCC recognizing payment of
debt.
? Prosecution: there were no standing obligations in favor of the PNCC at the time of disbursement of 55M.
PNCC said themselves that they didnt receive the P55M.
? Tabuena claimed that he was only complying with the direct order of Marcos (plus the Marcos memorandum
which contained same order) to immediately forward to the office of the President, 55M in cash, as partial payment of
MIAAs obligations to PNCC and that he believed that MIAA indeed had those liabilities to PNCC. In short, that
Tabuena acted in good faith.
? Sandiganbayan rejected Tabuenas claim of good faith and found him guilty of malversation by negligence,
hence this case.
Issue: WON Tabuena, in following the orders of his superior, was guilty of malversation (or if because of the justifying
circumstance of following the orders of his superior, in good faith, he would not be criminally liable, but merely civilly
liable)?
Held: Tabuena is merely civilly liable. The very fact that he was merely following the orders of his superior is a
justifying circumstance.
Ratio:
1. On the point raised by Tabuena that he cannot be charged with intentional malversation and be convicted by
malversation by negligence, the Court ruled that the dolo and culpa of the offense is only a modality in the
perpetration of the felony. The same felony is still there and conviction thereof is proper.
2. On the defense of good faith: it is a valid defense against malversation because it would negate criminal
intent. To constitute a crime, the act must, except in certain crimesbe accompanied by criminal intent or such
negligence or indifference to duty or to consequences as is equivalent to criminal intent The maxim actus non facit
reum, nisi mens sit rea a crime is not commited if the mind of the person performing the act complained of is
innocent (malversation cases: US v. Catolico, US v. Elvina).
3. The Court, based on the evidence presented, found that Tabuena had no other choice but to actually follow
the order stated in the Marcos Memorandum, because, as president of the Philippines, indubitably the head of
governmental agencies such as the MIAA and PNCC, Marcos is undeniably the superior of Tabuena.
4. Tabuena entitled to the justifying circumstance of any person who acts in obedience to an order issued by a
superior for some lawful purpose because he is only acting in good faith, faithfully and efficiently carrying out orders
from the highest official in the land. Moreover, there was nothing in the Marcos Memorandum that may invite
suspicion there was no question about the lawfulness of the order contained in such a memorandum. Tabuena had
reason to believe that the 55M was indeed part of a due and demandable debt, a portion of a bigger liability to PNCC
(existence of such debts determined from testimonies). So even if the order was illegal and Tabuena was not aware
of the illegality, he would not be liable because there would only be a mistake of fact committed in good faith.
5. Tabuena followed the memorandum to the letter, paying immediately the PNCC, through this office (office of
the president) the sum of 55M. Tabuena had reasonable ground to believe that the President was entitled to receive
the money because as Chief Executive, Marcos exercised supervision and control over governmental agencies (good
faith in the payment of public funds relieves a public officer from the crime of malversation).
6. While even Tabuena admitted that procedures were ignored and that the disbursement was unusual, he is
found to be excused from such because the Marcos Memorandum enjoined his IMMEDIATE COMPLIANCE. On the
other hand, while this allows for the negation of criminal intent, as Tabuena acted in good faith, he would still be civilly
liable (but hes not criminally liable anymore, escaping the harsher penalties) (see page 362).
7. There is no showing that Tabuena had anything to do with the creation of the Marcos Memorandum that
even if the real purpose behind the memorandum was to get 55M from public funds, it is clear that he did and would
not profit from such and that he did not have anything to do with the creation of the memorandum.
8. Tabuena case is a case concerning obedience in good faith of a duly executed order. The
order/memorandum came from the Office of the President and bears the signature of the president himself, in effect
allowing for the presumption that such order was regularly issued and patently legal. Furthermore, the wording of the
memorandum expressed a certain urgency to its executionObedienta est legis essential (act swiftly without
question).
9. Main Ratio: Furthermore, the Court itself raises the contention that the case involves a violation of the
accuseds right to due process in the sense that it was obvious that the Sandiganbayan was overzealous in its
attempt to convict parties involved as seen in the volume of questions asked, and the manner the same were posed
(cross examinations characteristic of confrontation, probing and insinuation). To quote Justice Cruz, Respect for the
Constitution is more important that securing a conviction based on a violation of the rights of the accused.
Sandiganbayan was obviously biased, denying Tabuena and parties involves the requirement of the cold neutrality of
an impartial judge. As a consequence of such violation of due process, the order of Sandiganbayan was found void.
Note that this defense was not raised by Tabuena.
Voting:
? Four concurred (Narvasa, Vitug, Kapunan, Mendoza)
? Six dissented (Padilla, Davide, Romero, Puno, Melo, Panganiban)
? Justice Hermosisima took no part as he was a signatory to the SB decision
? Regalaso, Bellosillo and Torres, Jr, Pro hac vice (meaning they join the majority opinion but they reserve their
right to change their vote should a similar case with the same facts arise.)
Implication of pro hac vice: Tabuena v. Sandiganbayan is not precedent for the proposition that any public official who
blindly follows orders of their superior. Thus, this case is not authoritative on Art. 11(6).
Decision: Tabuena and Peralta acquitted.
Davide, dissenting: Davide disagrees with majority that all the requisites of the sixth justifying circumstance in art 11
of the RPC were present The sixth circumstance of the said article implies 3 things: a) that the order was issued by a
superior; b) such order must be for some lawful purpose and; c) means used by subordinate to carry out said order
must be lawful. According to Davide, facts show that the debt was only 34.5M so order of Marcos had excess of
20.5M said order then had no factual or legal basis and unlawful.
Romero, dissenting: He also believes that not all requisites were present to warrant a justifying circumstance as
Tabuena, by his own admission, did not follow standard operating procedures (no vouchers, no approval by
Commission on Audit, non-issuance of a receipt in 1st 2 deliveries, non-issuance of receipt by PNCC, delivery to
office of Gimenez [not office in Malacanang], a stranger to contract between PNCC and MIAA). The entire process,
done with haste and with a total disregard of appropriate auditing requirements was not based on normal procedure.
Tabuenas rank does not excuse him from ignoring such.
Puno, dissenting: He concentrates on the case involving a mistake in fact, citing the Ah CHong case among others,
and discussing article 3 in some detail -saying that mistake in fact should not excuse the accused from incurring
liability. It was also clear from the facts that it took one month for Tabuena to comply with order (starting from the time
Marcos called him up by phone to which the memorandum containing the same orders followed a week later),
which is more than enough time to comply with procedure. He also adds that if there was not enough time, Tabuena
should have asked for more time or at least communicated such problems to the president. Moreover, to acquit the
petitioners imply that people believe that the president is always right, that he or she can do no wrong that the
president is above and beyond the law.
Panganiban, dissenting: He is of the same view as Romero, Davide and Puno but also raises some points: the
defense of obedience to a superiors order is already obsolete, as determined by the Tribunal in Nuremberg, in its
judgment against Nazi war criminals who put up the defense that they were merely following orders. The tribunal said
that the true test did not lie with the existence of an order but whether a moral choice was in fact, possible. To allow
this defense to hold in the Tabuena case sets a dangerous precedent in the country because it would deprive the
Courts the moral authority to convict any subordinate because he or she was merely following the orders of the his
or her superior (allowing the same doctrine to be invoked in similar criminal cases before the SC and even in the
inferior courts who have no choice but to follow the doctrines set by the SC).
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88211 September 15, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M.
ARANETA, IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E.
MARCOS, NICANOR YIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA),
represented by its President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of
Foreign Affairs, Executive Secretary, Secretary of Justice, Immigration Commissioner,
Secretary of National Defense and Chief of Staff, respectively, respondents.

CORTES, J .:
Before the Court is a contreversy of grave national importance. While ostensibly only legal issues
are involved, the Court's decision in this case would undeniably have a profound effect on the
political, economic and other aspects of national life.
We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-
violent "people power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared
President of the Republic under a revolutionary government. Her ascension to and consilidation of
power have not been unchallenged. The failed Manila Hotel coup in 1986 led by political leaders of
Mr. Marcos, the takeover of television station Channel 7 by rebel troops led by Col. Canlas with the
support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously
return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila
Bulletin, January 30, 1987] awakened the nation to the capacity of the Marcoses to stir trouble even
from afar and to the fanaticism and blind loyalty of their followers in the country. The ratification of
the 1987 Constitution enshrined the victory of "people power" and also clearly reinforced the
constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody challenges
to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the
February Revolution, led a failed coup that left scores of people, both combatants and civilians,
dead. There were several other armed sorties of lesser significance, but the message they conveyed
was the same a split in the ranks of the military establishment that thraetened civilian supremacy
over military and brought to the fore the realization that civilian government could be at the mercy of
a fractious military.
But the armed threats to the Government were not only found in misguided elements and among
rabid followers of Mr. Marcos. There are also the communist insurgency and the seccessionist
movement in Mindanao which gained ground during the rule of Mr. Marcos, to the extent that the
communists have set up a parallel government of their own on the areas they effectively control
while the separatist are virtually free to move about in armed bands. There has been no let up on
this groups' determination to wrest power from the govermnent. Not only through resort to arms but
also to through the use of propaganda have they been successful in dreating chaos and
destabilizing the country.
Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of
the nation attributed to Mr. Marcos and his cronies left the economy devastated. The efforts at
economic recovery, three years after Mrs. Aquino assumed office, have yet to show concrete results
in alleviating the poverty of the masses, while the recovery of the ill-gotten wealth of the Marcoses
has remained elusive.
Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs.
Aquino, considering the dire consequences to the nation of his return at a time when the stability of
government is threatened from various directions and the economy is just beginning to rise and
move forward, has stood firmly on the decision to bar the return of Mr. Marcos and his family.
The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office
and into exile after causing twenty years of political, economic and social havoc in the country and
who within the short space of three years seeks to return, is in a class by itself.
This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel
documents to Mr. Marcos and the immediate members of his family and to enjoin the implementation
of the President's decision to bar their return to the Philippines.
The Issue
Th issue is basically one of power: whether or not, in the exercise of the powers granted by the
Constitution, the President may prohibit the Marcoses from returning to the Philippines.
According to the petitioners, the resolution of the case would depend on the resolution of the
following issues:
1. Does the President have the power to bar the return of former President Marcos
and family to the Philippines?
a. Is this a political question?
2. Assuming that the President has the power to bar former President Marcos and
his family from returning to the Philippines, in the interest of "national security, public
safety or public health
a. Has the President made a finding that the return of former President Marcos and
his family to the Philippines is a clear and present danger to national security, public
safety or public health?
b. Assuming that she has made that finding
(1) Have the requirements of due process been complied with in
making such finding?
(2) Has there been prior notice to petitioners?
(3) Has there been a hearing?
(4) Assuming that notice and hearing may be dispensed with, has the
President's decision, including the grounds upon which it was based,
been made known to petitioners so that they may controvert the
same?
c. Is the President's determination that the return of former President Marcos and his
family to the Philippines is a clear and present danger to national security, public
safety, or public health a political question?
d. Assuming that the Court may inquire as to whether the return of former President
Marcos and his family is a clear and present danger to national security, public
safety, or public health, have respondents established such fact?
3. Have the respondents, therefore, in implementing the President's decision to bar
the return of former President Marcos and his family, acted and would be acting
without jurisdiction, or in excess of jurisdiction, or with grave abuse of discretion, in
performing any act which would effectively bar the return of former President Marcos
and his family to the Philippines? [Memorandum for Petitioners, pp. 5-7; Rollo, pp.
234-236.1
The case for petitioners is founded on the assertion that the right of the Marcoses to return to the
Philippines is guaranteed under the following provisions of the Bill of Rights, to wit:
Section 1. No person shall be deprived of life, liberty, or property without due process
of law, nor shall any person be denied the equal protection of the laws.
xxx xxx xxx
Section 6. The liberty of abode and of changing the same within the limits prescribed
by law shall not be impaired except upon lawful order of the court. Neither shall the
right to travel be impaired except in the interest of national security, public safety, or
public health, as may be provided by law.
The petitioners contend that the President is without power to impair the liberty of abode of the
Marcoses because only a court may do so "within the limits prescribed by law." Nor may the
President impair their right to travel because no law has authorized her to do so. They advance the
view that before the right to travel may be impaired by any authority or agency of the government,
there must be legislation to that effect.
The petitioners further assert that under international law, the right of Mr. Marcos and his family to
return to the Philippines is guaranteed.
The Universal Declaration of Human Rights provides:
Article 13. (1) Everyone has the right to freedom of movement and residence within
the borders of each state.
(2) Everyone has the right to leave any country, including his own, and to return to
his country.
Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the
Philippines, provides:
Article 12
1) Everyone lawfully within the territory of a State shall, within that territory, have the
right to liberty of movement and freedom to choose his residence.
2) Everyone shall be free to leave any country, including his own.
3) The above-mentioned rights shall not be subject to any restrictions except those
which are provided by law, are necessary to protect national security, public order
(order public), public health or morals or the rights and freedoms of others, and are
consistent with the other rights recognized in the present Covenant.
4) No one shall be arbitrarily deprived of the right to enter his own country.
On the other hand, the respondents' principal argument is that the issue in this case involves a
political question which is non-justiciable. According to the Solicitor General:
As petitioners couch it, the question involved is simply whether or not petitioners
Ferdinand E. Marcos and his family have the right to travel and liberty of abode.
Petitioners invoke these constitutional rights in vacuo without reference to attendant
circumstances.
Respondents submit that in its proper formulation, the issue is whether or not
petitioners Ferdinand E. Marcos and family have the right to return to the Philippines
and reside here at this time in the face of the determination by the President that
such return and residence will endanger national security and public safety.
It may be conceded that as formulated by petitioners, the question is not a political
question as it involves merely a determination of what the law provides on the matter
and application thereof to petitioners Ferdinand E. Marcos and family. But when the
question is whether the two rights claimed by petitioners Ferdinand E. Marcos and
family impinge on or collide with the more primordial and transcendental right of the
State to security and safety of its nationals, the question becomes political and this
Honorable Court can not consider it.
There are thus gradations to the question, to wit:
Do petitioners Ferdinand E. Marcos and family have the right to return to the
Philippines and reestablish their residence here? This is clearly a justiciable question
which this Honorable Court can decide.
Do petitioners Ferdinand E. Marcos and family have their right to return to the
Philippines and reestablish their residence here even if their return and residence
here will endanger national security and public safety? this is still a justiciable
question which this Honorable Court can decide.
Is there danger to national security and public safety if petitioners Ferdinand E.
Marcos and family shall return to the Philippines and establish their residence here?
This is now a political question which this Honorable Court can not decide for it falls
within the exclusive authority and competence of the President of the Philippines.
[Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]
Respondents argue for the primacy of the right of the State to national security over individual rights.
In support thereof, they cite Article II of the Constitution, to wit:
Section 4. The prime duty of the Government is to serve and protect the people. The
Government may call upon the people to defend the State and, in the fulfillment
thereof, all citizens may be required, under conditions provided by law, to render
personal, military, or civil service.
Section 5. The maintenance of peace and order, the protection of life, liberty, and
property, and the promotion of the general welfare are essential for the enjoyment by
all the people of the blessings of democracy.
Respondents also point out that the decision to ban Mr. Marcos and family from returning to the
Philippines for reasons of national security and public safety has international precedents. Rafael
Trujillo of the Dominican Republic, Anastacio Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala,
Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano Hernandez Martinez of El Salvador,
and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose return to their
homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul
S. Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]
The parties are in agreement that the underlying issue is one of the scope of presidential power and
its limits. We, however, view this issue in a different light. Although we give due weight to the parties'
formulation of the issues, we are not bound by its narrow confines in arriving at a solution to the
controversy.
At the outset, we must state that it would not do to view the case within the confines of the right to
travel and the import of the decisions of the U.S. Supreme Court in the leading cases of Kent v.
Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d 1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766,
69 L Ed. 2d 640) which affirmed the right to travel and recognized exceptions to the exercise thereof,
respectively.
It must be emphasized that the individual right involved is not the right to travel from the Philippines
to other countries or within the Philippines. These are what the right to travel would normally
connote. Essentially, the right involved is the right to return to one's country, a totally distinct right
under international law, independent from although related to the right to travel. Thus, the Universal
Declaration of Humans Rights and the International Covenant on Civil and Political Rights treat the
right to freedom of movement and abode within the territory of a state, the right to leave a country,
and the right to enter one's country as separate and distinct rights. The Declaration speaks of the
"right to freedom of movement and residence within the borders of each state" [Art. 13(l)] separately
from the "right to leave any country, including his own, and to return to his country." [Art. 13(2).] On
the other hand, the Covenant guarantees the "right to liberty of movement and freedom to choose
his residence" [Art. 12(l)] and the right to "be free to leave any country, including his own." [Art.
12(2)] which rights may be restricted by such laws as "are necessary to protect national security,
public order, public health or morals or enter qqqs own country" of which one cannot be "arbitrarily
deprived." [Art. 12(4).] It would therefore be inappropriate to construe the limitations to the right to
return to one's country in the same context as those pertaining to the liberty of abode and the right to
travel.
The right to return to one's country is not among the rights specifically guaranteed in the Bill of
Rights, which treats only of the liberty of abode and the right to travel, but it is our well-considered
view that the right to return may be considered, as a generally accepted principle of international law
and, under our Constitution, is part of the law of the land [Art. II, Sec. 2 of the Constitution.]
However, it is distinct and separate from the right to travel and enjoys a different protection under the
International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof
[Art. 12 (4).]
Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose
of effectively exercising the right to travel are not determinative of this case and are only tangentially
material insofar as they relate to a conflict between executive action and the exercise of a protected
right. The issue before the Court is novel and without precedent in Philippine, and even in American
jurisprudence.
Consequently, resolution by the Court of the well-debated issue of whether or not there can be
limitations on the right to travel in the absence of legislation to that effect is rendered unnecessary.
An appropriate case for its resolution will have to be awaited.
Having clarified the substance of the legal issue, we find now a need to explain the methodology for
its resolution. Our resolution of the issue will involve a two-tiered approach. We shall first resolve
whether or not the President has the power under the Constitution, to bar the Marcoses from
returning to the Philippines. Then, we shall determine, pursuant to the express power of the Court
under the Constitution in Article VIII, Section 1, whether or not the President acted arbitrarily or with
grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and
decided to bar their return.
Executive Power
The 1987 Constitution has fully restored the separation of powers of the three great branches of
government. To recall the words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139
(1936)], "the Constitution has blocked but with deft strokes and in bold lines, allotment of power to
the executive, the legislative and the judicial departments of the government." [At 157.1 Thus, the
1987 Constitution explicitly provides that "[the legislative power shall be vested in the Congress of
the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the
Philippines" [Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law" [Art. VIII, Sec. 1.] These provisions not only
establish a separation of powers by actual division [Angara v. Electoral Commission, supra] but also
confer plenary legislative, executive and judicial powers subject only to limitations provided in the
Constitution. For as the Supreme Court inOcampo v. Cabangis [15 Phil. 626 (1910)] pointed out "a
grant of the legislative power means a grant of all legislative power; and a grant of the judicial power
means a grant of all the judicial power which may be exercised under the government." [At 631-
632.1 If this can be said of the legislative power which is exercised by two chambers with a
combined membership of more than two hundred members and of the judicial power which is vested
in a hierarchy of courts, it can equally be said of the executive power which is vested in one official
the President.
As stated above, the Constitution provides that "[t]he executive power shall be vested in the
President of the Philippines." [Art. VII, Sec. 1]. However, it does not define what is meant by
executive power" although in the same article it touches on the exercise of certain powers by the
President, i.e., the power of control over all executive departments, bureaus and offices, the power
to execute the laws, the appointing power, the powers under the commander-in-chief clause, the
power to grant reprieves, commutations and pardons, the power to grant amnesty with the
concurrence of Congress, the power to contract or guarantee foreign loans, the power to enter into
treaties or international agreements, the power to submit the budget to Congress, and the power to
address Congress [Art. VII, Sec. 14-23].
The inevitable question then arises: by enumerating certain powers of the President did the framers
of the Constitution intend that the President shall exercise those specific powers and no other? Are
these se enumerated powers the breadth and scope of "executive power"? Petitioners advance the
view that the President's powers are limited to those specifically enumerated in the 1987
Constitution. Thus, they assert: "The President has enumerated powers, and what is not enumerated
is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4-
Rollo p. 233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is
legally patterned.**
Corwin, in his monumental volume on the President of the United States grappled with the same
problem. He said:
Article II is the most loosely drawn chapter of the Constitution. To those who think
that a constitution ought to settle everything beforehand it should be a nightmare; by
the same token, to those who think that constitution makers ought to leave
considerable leeway for the future play of political forces, it should be a vision
realized.
We encounter this characteristic of Article 11 in its opening words: "The executive
power shall be vested in a President of the United States of America." . . .. [The
President: Office and Powers, 17871957, pp. 3-4.]
Reviewing how the powers of the U.S. President were exercised by the different persons who held
the office from Washington to the early 1900's, and the swing from the presidency by commission to
Lincoln's dictatorship, he concluded that "what the presidency is at any particular moment depends
in important measure on who is President." [At 30.]
This view is shared by Schlesinger who wrote in The Imperial Presidency:
For the American Presidency was a peculiarly personal institution. it remained of
course, an agency of government subject to unvarying demands and duties no
remained, of cas President. But, more than most agencies of government, it changed
shape, intensity and ethos according to the man in charge. Each President's
distinctive temperament and character, his values, standards, style, his habits,
expectations, Idiosyncrasies, compulsions, phobias recast the WhiteHouse and
pervaded the entire government. The executive branch, said Clark Clifford, was a
chameleon, taking its color from the character and personality of the President. The
thrust of the office, its impact on the constitutional order, therefore altered from
President to President. Above all, the way each President understood it as his
personal obligation to inform and involve the Congress, to earn and hold the
confidence of the electorate and to render an accounting to the nation and posterity
determined whether he strengthened or weakened the constitutional order. [At 212-
213.]
We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that
the consideration of tradition and the development of presidential power under the different
constitutions are essential for a complete understanding of the extent of and limitations to the
President's powers under the 1987 Constitution. The 1935 Constitution created a strong President
with explicitly broader powers than the U.S. President. The 1973 Constitution attempted to modify
the system of government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the point that he was
also the de facto Legislature. The 1987 Constitution, however, brought back the presidential system
of government and restored the separation of legislative, executive and judicial powers by their
actual distribution among three distinct branches of government with provision for checks and
balances.
It would not be accurate, however, to state that "executive power" is the power to enforce the laws,
for the President is head of state as well as head of government and whatever powers inhere in such
positions pertain to the office unless the Constitution itself withholds it. Furthermore, the Constitution
itself provides that the execution of the laws is only one of the powers of the President. It also grants
the President other powers that do not involve the execution of any provision of law, e.g., his power
over the country's foreign relations.
On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise ofspecific powers of the President, it maintains intact what is traditionally considered as
within the scope of "executive power." Corollarily, the powers of the President cannot be said to be
limited only to the specific powers enumerated in the Constitution. In other words, executive power is
more than the sum of specific powers so enumerated,
It has been advanced that whatever power inherent in the government that is neither legislative nor
judicial has to be executive. Thus, in the landmark decision of Springer v. Government of the
Philippine Islands, 277 U.S. 189 (1928), on the issue of who between the Governor-General of the
Philippines and the Legislature may vote the shares of stock held by the Government to elect
directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme Court,
in upholding the power of the Governor-General to do so, said:
...Here the members of the legislature who constitute a majority of the "board" and
"committee" respectively, are not charged with the performance of any legislative
functions or with the doing of anything which is in aid of performance of any such
functions by the legislature. Putting aside for the moment the question whether the
duties devolved upon these members are vested by the Organic Act in the Governor-
General, it is clear that they are not legislative in character, and still more clear that
they are not judicial. The fact that they do not fall within the authority of either of
these two constitutes logical ground for concluding that they do fall within that of the
remaining one among which the powers of government are divided ....[At 202-203;
Emphasis supplied.]
We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find
reinforcement for the view that it would indeed be a folly to construe the powers of a branch of
government to embrace only what are specifically mentioned in the Constitution:
The great ordinances of the Constitution do not establish and divide fields of black
and white. Even the more specific of them are found to terminate in a penumbra
shading gradually from one extreme to the other. ....
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative and
executive action with mathematical precision and divide the branches into watertight
compartments, were it ever so desirable to do so, which I am far from believing that it
is, or that the Constitution requires. [At 210- 211.]
The Power Involved
The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to
serve and protect the people" and that "[t]he maintenance of peace and order,the protection of life,
liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all
the people of the blessings of democracy." [Art. II, Secs. 4 and 5.]
Admittedly, service and protection of the people, the maintenance of peace and order, the protection
of life, liberty and property, and the promotion of the general welfare are essentially ideals to guide
governmental action. But such does not mean that they are empty words. Thus, in the exercise of
presidential functions, in drawing a plan of government, and in directing implementing action for
these plans, or from another point of view, in making any decision as President of the Republic, the
President has to consider these principles, among other things, and adhere to them.
Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the
President has the obligation under the Constitution to protect the people, promote their welfare and
advance the national interest. It must be borne in mind that the Constitution, aside from being an
allocation of power is also a social contract whereby the people have surrendered their sovereign
powers to the State for the common good. Hence, lest the officers of the Government exercising the
powers delegated by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that "[s]overeignty resides in the people and all government authority
emanates from them." [Art. II, Sec. 1.]
The resolution of the problem is made difficult because the persons who seek to return to the
country are the deposed dictator and his family at whose door the travails of the country are laid and
from whom billions of dollars believed to be ill-gotten wealth are sought to be recovered. The
constitutional guarantees they invoke are neither absolute nor inflexible. For the exercise of even the
preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of limits
and must be adjusted to the requirements of equally important public interests [Zaldivar v.
Sandiganbayan, G.R. Nos. 79690-707, October 7, 1981.]
To the President, the problem is one of balancing the general welfare and the common good against
the exercise of rights of certain individuals. The power involved is the President's residual power to
protect the general welfare of the people. It is founded on the duty of the President, as steward of
the people. To paraphrase Theodore Roosevelt, it is not only the power of the President but also his
duty to do anything not forbidden by the Constitution or the laws that the needs of the nation demand
[See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the
laws are faithfully executed [see Hyman, The American President, where the author advances the
view that an allowance of discretionary power is unavoidable in any government and is best lodged
in the President].
More particularly, this case calls for the exercise of the President's powers as protector of the peace.
Rossiter The American Presidency].The power of the President to keep the peace is not limited
merely to exercising the commander-in-chief powers in times of emergency or to leading the State
against external and internal threats to its existence. The President is not only clothed with
extraordinary powers in times of emergency, but is also tasked with attending to the day-to-day
problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign
foe appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties
in times of peace is not in any way diminished by the relative want of an emergency specified in the
commander-in-chief provision. For in making the President commander-in-chief the enumeration of
powers that follow cannot be said to exclude the President's exercising as Commander-in- Chief
powers short of the calling of the armed forces, or suspending the privilege of the writ of habeas
corpus or declaring martial law, in order to keep the peace, and maintain public order and security.
That the President has the power under the Constitution to bar the Marcose's from returning has
been recognized by memembers of the Legislature, and is manifested by the Resolution proposed in
the House of Representatives and signed by 103 of its members urging the President to allow Mr.
Marcos to return to the Philippines "as a genuine unselfish gesture for true national reconciliation
and as irrevocable proof of our collective adherence to uncompromising respect for human rights
under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution
does not question the President's power to bar the Marcoses from returning to the Philippines,
rather, it appeals to the President's sense of compassion to allow a man to come home to die in his
country.
What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to
the Philippines cannot be considered in the light solely of the constitutional provisions guaranteeing
liberty of abode and the right to travel, subject to certain exceptions, or of case law which clearly
never contemplated situations even remotely similar to the present one. It must be treated as a
matter that is appropriately addressed to those residual unstated powers of the President which are
implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader
discretion on the part of the President to determine whether it must be granted or denied.
The Extent of Review
Under the Constitution, judicial power includes the duty to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." [Art. VIII, Sec. 1] Given this wording, we cannot agree with the
Solicitor General that the issue constitutes a political question which is beyond the jurisdiction of the
Court to decide.
The present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court, under previous constitutions, would have normally left to
the political departments to decide. But nonetheless there remain issues beyond the Court's
jurisdiction the determination of which is exclusively for the President, for Congress or for the people
themselves through a plebiscite or referendum. We cannot, for example, question the President's
recognition of a foreign government, no matter how premature or improvident such action may
appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is
totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a
dispute brought before us because the power is reserved to the people.
There is nothing in the case before us that precludes our determination thereof on the political
question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that
the framers intended to widen the scope of judicial review but they did not intend courts of justice to
settle all actual controversies before them. When political questions are involved, the Constitution
limits the determination to whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave
abuse is not established, the Court will not substitute its judgment for that of the official concerned
and decide a matter which by its nature or by law is for the latter alone to decide. In this light, it
would appear clear that the second paragraph of Article VIII, Section 1 of the Constitution, defining
"judicial power," which specifically empowers the courts to determine whether or not there has been
a grave abuse of discretion on the part of any branch or instrumentality of the government,
incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December
11, 1971, 42 SCRA 4481 that:]
Article VII of the [1935] Constitution vests in the Executive the power to suspend the
privilege of the writ of habeas corpus under specified conditions. Pursuant to the
principle of separation of powers underlying our system of government, the Executive
is supreme within his own sphere. However, the separation of powers, under the
Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the
suspension of the privilege, but only if and when he acts within the sphere alloted to
him by the Basic Law, and the authority to determine whether or not he has so acted
is vested in the Judicial Department, which, in this respect, is, in turn, constitutionally
supreme. In the exercise of such authority, the function of the Court is merely to
check not to supplant the Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act [At 479-480.]
Accordingly, the question for the Court to determine is whether or not there exist factual bases for
the President to conclude that it was in the national interest to bar the return of the Marcoses to the
Philippines. If such postulates do exist, it cannot be said that she has acted, or acts, arbitrarily or that
she has gravely abused her discretion in deciding to bar their return.
We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed
during the briefing in chambers by the Chief of Staff of the Armed Forces of the Philippines and the
National Security Adviser, wherein petitioners and respondents were represented, there exist factual
bases for the President's decision..
The Court cannot close its eyes to present realities and pretend that the country is not besieged from
within by a well-organized communist insurgency, a separatist movement in Mindanao, rightist
conspiracies to grab power, urban terrorism, the murder with impunity of military men, police officers
and civilian officials, to mention only a few. The documented history of the efforts of the Marcose's
and their followers to destabilize the country, as earlier narrated in this ponencia bolsters the
conclusion that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.
As divergent and discordant forces, the enemies of the State may be contained. The military
establishment has given assurances that it could handle the threats posed by particular groups. But
it is the catalytic effect of the return of the Marcoses that may prove to be the proverbial final straw
that would break the camel's back. With these before her, the President cannot be said to have
acted arbitrarily and capriciously and whimsically in determining that the return of the Marcoses
poses a serious threat to the national interest and welfare and in prohibiting their return.
It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of
violence against the State, that would be the time for the President to step in and exercise the
commander-in-chief powers granted her by the Constitution to suppress or stamp out such violence.
The State, acting through the Government, is not precluded from taking pre- emptive action against
threats to its existence if, though still nascent they are perceived as apt to become serious and
direct. Protection of the people is the essence of the duty of government. The preservation of the
State the fruition of the people's sovereignty is an obligation in the highest order. The President,
sworn to preserve and defend the Constitution and to see the faithful execution the laws, cannot
shirk from that responsibility.
We cannot also lose sight of the fact that the country is only now beginning to recover from the
hardships brought about by the plunder of the economy attributed to the Marcoses and their close
associates and relatives, many of whom are still here in the Philippines in a position to destabilize
the country, while the Government has barely scratched the surface, so to speak, in its efforts to
recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We
cannot ignore the continually increasing burden imposed on the economy by the excessive foreign
borrowing during the Marcos regime, which stifles and stagnates development and is one of the root
causes of widespread poverty and all its attendant ills. The resulting precarious state of our economy
is of common knowledge and is easily within the ambit of judicial notice.
The President has determined that the destabilization caused by the return of the Marcoses would
wipe away the gains achieved during the past few years and lead to total economic collapse. Given
what is within our individual and common knowledge of the state of the economy, we cannot argue
with that determination.
WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or
with grave abuse of discretion in determining that the return of former President Marcos and his
family at the present time and under present circumstances poses a serious threat to national
interest and welfare and in prohibiting their return to the Philippines, the instant petition is hereby
DISMISSED.
SO ORDERED.

Separate Opinions

FERNAN, C.J ., concurring:
"The threats to national security and public order are real the mounting Communist insurgency, a
simmering separatist movement, a restive studentry, widespread labor disputes, militant farmer
groups. . . . Each of these threats is an explosive ingredient in a steaming cauldron which could blow
up if not handled properly."
1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo
E. Gutierrez, Jr. But they express eloquently the basis of my full concurrence to the exhaustive and
well-written ponencia of Mme. Justice Irene R. Cortes.
Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a
particular constitutional clause or article or from an express statutory grant. Their limits are likely to
depend on the imperatives of events and contemporary imponderables rather than on abstract
theories of law. History and time-honored principles of constitutional law have conceded to the
Executive Branch certain powers in times of crisis or grave and imperative national emergency.
Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the
governance function of the Executive Branch is to be carried out effectively and efficiently. It is in this
context that the power of the President to allow or disallow the Marcoses to return to the Philippines
should be viewed. By reason of its impact on national peace and order in these admittedly critical
times, said question cannot be withdrawn from the competence of the Executive Branch to decide.
And indeed, the return of the deposed President, his wife and children cannot but pose a clear and
present danger to public order and safety. One needs only to recall the series of destabilizing actions
attempted by the so-called Marcos loyalists as well as the ultra-rightist groups during the EDSA
Revolution's aftermath to realize this. The most publicized of these offensives is the Manila Hotel
incident which occurred barely five (5) months after the People's Power Revolution. Around 10,000
Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as
acting president of the Philippines. The public disorder and peril to life and limb of the citizens
engendered by this event subsided only upon the eventual surrender of the loyalist soldiers to the
authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents.
Military rebels waged simultaneous offensives in different parts of Metro Manila and Sangley Point in
Cavite. A hundred rebel soldiers took over Channel 7 and its radio station DZBB. About 74 soldier
rebels attacked Villamor Air Base, while another group struck at Sangley Point in Cavite and held the
15th Air Force Strike wing commander and his deputy hostage. Troops on board several vehicles
attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.
Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way
through Gate 1 of Fort Bonifacio. They stormed into the army stockade but having failed to convince
their incarcerated members to unite in their cause, had to give up nine (9) hours later.
And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino
Government? Launched not by Marcos loyalists, but by another ultra-rightist group in the military led
by Col. Gregorio "Gringo" Honasan who remains at large to date, this most serious attempt to wrest
control of the government resulted in the death of many civilians.
Members of the so-called Black Forest Commando were able to cart away high-powered firearms
and ammunition from the Camp Crame Armory during a raid conducted in June 1988. Most of the
group members were, however, captured in Antipolo, Rizal. The same group was involved in an
unsuccessful plot known as Oplan Balik Saya which sought the return of Marcos to the country.
A more recent threat to public order, peace and safety was the attempt of a group named
CEDECOR to mobilize civilians from nearby provinces to act as blockading forces at different Metro
Manila areas for the projected link-up of Marcos military loyalist troops with the group of Honasan.
The pseudo "people power" movement was neutralized thru checkpoints set up by the authorities
along major road arteries where the members were arrested or forced to turn back.
While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence
militates heavily against the wisdom of allowing the Marcoses' return. Not only will the Marcoses'
presence embolden their followers toward similar actions, but any such action would be seized upon
as an opportunity by other enemies of the State, such as the Communist Party of the Philippines and
the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to wage an offensive against
the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the
Philippines is one factor, which albeit, at first blush appears to be extra legal, constitutes a valid
justification for disallowing the requested return. I refer to the public pulse. It must be remembered
that the ouster of the Marcoses from the Philippines came about as an unexpected, but certainly
welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time,
effort and money to put an end to an evidently untenable claim to power of a dictator. The removal of
the Marcoses from the Philippines was a moral victory for the Filipino people; and the installation of
the present administration, a realization of and obedience to the people's Will.
Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to
sympathy, compassion and even Filipino tradition. The political and economic gains we have
achieved during the past three years are however too valuable and precious to gamble away on
purely compassionate considerations. Neither could public peace, order and safety be sacrificed for
an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily
exercised, to ban the Marcoses from returning to the Philippines.
GUTIERREZ, JR., J ., dissenting
"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the
shield of its protection all classes of men, at all times, and under all circumstances. No doctrine
involving more pernicious consequences was ever invented by the wit of man than that any of its
provisions can be suspended during any of the great exigencies of government." (Ex Parte Milligan,
4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-
evident truth. But faced with a hard and delicate case, we now hesitate to qive substance to their
meaning. The Court has permitted a basic freedom enshrined in the Bill of Rights to be taken away
by Government.
There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of
freedom for both unloved and despised persons on one hand and the rest who are not so
stigmatized on the other.
I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We
are interpreting the Constitution for only one person and constituting him into a class by himself. The
Constitution is a law for all classes of men at all times. To have a person as one class by himself
smacks of unequal protection of the laws.
With all due respect for the majority in the Court, I believe that the issue before us is one of rights
and not of power. Mr. Marcos is insensate and would not live if separated from the machines which
have taken over the functions of his kidneys and other organs. To treat him at this point as one with
full panoply of power against whom the forces of Government should be marshalled is totally
unrealistic. The Government has the power to arrest and punish him. But does it have the power to
deny him his right to come home and die among familiar surroundings?
Hence, this dissent.
The Bill of Rights provides:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by
law shall not be impaired except upon lawful order of the court. Neither shall the right
to travel be impaired except in the interest of national security, public safety, or public
health, as may be provided by law. (Emphasis supplied, Section 6, Art. 111,
Constitution)
To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security
and public safety which is hauntingly familiar because it was pleaded so often by petitioner
Ferdinand E. Marcos to justify his acts under martial law. There is, however, no showing of the
existence of a law prescribing the limits of the power to impair and the occasions for its exercise.
And except for citing breaches of law and order, the more serious of which were totally unrelated to
Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any
grave exigency which permits the use of untrammeled Governmental power in this case and the
indefinite suspension of the constitutional right to travel.
The respondents' basic argument is that the issue before us is a political question beyond our
jurisdiction to consider. They contend that the decision to ban former President Marcos, and his
family on grounds of national security and public safety is vested by the Constitution in the President
alone. The determination should not be questioned before this Court. The President's finding of
danger to the nation should be conclusive on the Court.
What is a political question?
In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:
xxx xxx xxx
It is a well-settled doctrine that political questions are not within the province of the
judiciary, except to the extent that power to deal with such questions has been
conferred on the courts by express constitutional or statutory provisions. It is not so
easy, however, to define the phrase political question, nor to determine what matters
fall within its scope. It is frequently used to designate all questions that he outside the
scope of the judicial power. More properly, however, it means those questions which,
under the constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the legislative or
executive branch of the government.
We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
In short, the term 'Political question' connotes, in legal parlance, what it means in
ordinary parlance, namely, a question of policy. In other words, in the language
of Corpus Juris Secundum (supra), it refers to 'those questions which, under the
Constitution, are to be decided by the people in their sovereign capacity, or in regard
to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the
wisdom, not legality, of a particular measure.
The most often quoted definition of political question was made by Justice William J. Brennan Jr.,
who penned the decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S.
Ct. 691, L. Ed. 2d. 663 [1962]). The ingredients of a political question as formulated in Baker v.
Carr are:
It is apparent that several formulations which vary slightly according to the settings in
which the questions arise may describe a political question, which identifies it as
essentially a function of the separation of powers. Prominent on the surface of any
case held to involve a political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate political department; or a lack
of judicially discoverable and manageable standards for resolving it; or the
impossibility of deciding without an initial policy determination of a kind clearly for
non-judicial discretion; or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a political decision
already made; or potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
For a political question to exist, there must be in the Constitution a power vested exclusively in the
President or Congress, the exercise of which the court should not examine or prohibit. A claim of
plenary or inherent power against a civil right which claim is not found in a specific provision is
dangerous. Neither should we validate a roving commission allowing public officials to strike where
they please and to override everything which to them represents evil. The entire Government is
bound by the rule of law.
The respondents have not pointed to any provision of the Constitution which commits or vests the
determination of the question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been
enacted specifying the circumstances when the right may be impaired in the interest of national
security or public safety. The power is in Congress, not the Executive.
The closest resort to a textile demonstrable constitutional commitment of power may be found in the
commander-in-chief clause which allows the President to call out the armed forces in case of lawless
violence, invasion or rebellion and to suspend the privilege of the writ of habeas corpus or proclaim
martial law in the event of invasion or rebellion, when the public safety requires it.
There is, however, no showing, not even a claim that the followers of former President Marcos are
engaging in rebellion or that he is in a position to lead them. Neither is it claimed that there is a need
to suspend the privilege of the writ of habeas corpus or proclaim martial law because of the arrival of
Mr. Marcos and his family. To be sure, there may be disturbances but not of a magnitude as would
compel this Court to resort to a doctrine of non- justiceability and to ignore a plea for the
enforcement of an express Bill of Rights guarantee.
The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist."
The constant insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies
and that the "loyalists" engaging in rallies and demonstrations have to be paid individual allowances
to do so constitute the strongest indication that the hard core "loyalists" who would follow Marcos
right or wrong are so few in number that they could not possibly destabilize the government, much
less mount a serious attempt to overthrow it.
Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the
best of Filipino customs and traditions to allow a dying person to return to his home and breath his
last in his native surroundings. Out of the 103 Congressmen who passed the House resolution
urging permission for his return, there are those who dislike Mr. Marcos intensely or who suffered
under his regime. There are also many Filipinos who believe that in the spirit of national unity and
reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that
such a return would deprive his fanatic followers of any further reason to engage in rallies and
demonstrations.
The Court, however, should view the return of Mr. Marcos and his family solely in the light of the
constitutional guarantee of liberty of abode and the citizen's right to travel as against the
respondents' contention that national security and public safety would be endangered by a grant of
the petition.
Apart from the absence of any text in the Constitution committing the issue exclusively to the
President, there is likewise no dearth of decisional data, no unmanageable standards which stand in
the way of a judicial determination.
Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same
within the limits prescribed by law may be impaired only upon a lawful order of a court. Not by an
executive officer. Not even by the President. Section 6 further provides that the right to travel, and
this obviously includes the right to travelout of or back into the Philippines, cannot be impaired
except in the interest of national security, public safety, or public health, as may be provided by law.
There is no law setting the limits on a citizen's right to move from one part of the country to another
or from the Philippines to a foreign country or from a foreign country to the Philippines. The laws
cited by the Solicitor General immigration, health, quarantine, passports, motor vehicle, destierro
probation, and parole are all inapplicable insofar as the return of Mr. Marcos and family is
concerned. There is absolutely no showing how any of these statutes and regulations could serve as
a basis to bar their coming home.
There is also no disrespect for a Presidential determination if we grant the petition. We would simply
be applying the Constitution, in the preservation and defense of which all of us in Government, the
President and Congress included, are sworn to participate. Significantly, the President herself has
stated that the Court has the last word when it comes to constitutional liberties and that she would
abide by our decision.
As early as 1983, it was noted that this Court has not been very receptive to the invocation of the
political question doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538
[1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the
judiciary criticized this Court for using what they felt was a doctrine of convenience, expediency,
utility or subservience. Every major challenge to the acts of petitioner Ferdinand E. Marcos under his
authoritarian regime the proclamation of martial law, the ratification of a new constitution, the arrest
and detention of "enemies of the State" without charges being filed against them, the dissolution of
Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking
over or closure of newspaper offices, radio and television stations and other forms of media, the
proposals to amend the Constitution, etc. was invariably met by an invocation that the petition
involved a political question. It is indeed poetic justice that the political question doctrine so often
invoked by then President Marcos to justify his acts is now being used against him and his family.
Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound
by the Constitution.
The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad
definition of judicial power was added to the vesting in the Supreme Court and statutory courts of
said power.
The second paragraph of Section 1, Article VIII of the Constitution provides:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
This new provision was enacted to preclude this Court from using the political question doctrine as a
means to avoid having to make decisions simply because they are too controversial, displeasing to
the President or Congress, inordinately unpopular, or which may be ignored and not enforced.
The framers of the Constitution believed that the free use of the political question doctrine allowed
the Court during the Marcos years to fall back on prudence, institutional difficulties, complexity of
issues, momentousness of consequences or a fear that it was extravagantly extending judicial power
in the cases where it refused to examine and strike down an exercise of authoritarian power.
Parenthetically, at least two of the respondents and their counsel were among the most vigorous
critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The
Constitution was accordingly amended. We are now precluded by its mandate from refusing to
invalidate a political use of power through a convenient resort to the question doctrine. We are
compelled to decide what would have been non-justiceable under our decisions interpreting earlier
fundamental charters.
This is not to state that there can be no more political questions which we may refuse to
resolve. There are still some political questions which only the President, Congress, or a plebiscite
may decide. Definitely, the issue before us is not one of them.
The Constitution requires the Court "to determine whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction."
How do we determine a grave abuse of discretion?
The tested procedure is to require the parties to present evidence. Unfortunately, considerations of
national security do not readily lend themselves to the presentation of proof before a court of justice.
The vital information essential to an objective determination is usually highly classified and it cannot
be rebutted by those who seek to overthrow the government. As early as Barcelon v. Baker (5 Phil.
87, 93 [19051), the Court was faced with a similar situation. It posed a rhetorical question. If after
investigating conditions in the Archipelago or any part thereof, the President finds that public safety
requires the suspension of the privilege of the writ of habeas corpus, can the judicial department
investigate the same facts and declare that no such conditions exist?
In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1,
Article VIII of the Constitution, the court granted the Solicitor General's offer that the military give us
a closed door factual briefing with a lawyer for the petitioners and a lawyer for the respondents
present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales,
Jr. v. Enrile, (121 SCRA 538, 592 [19831):
How can this Court determine the factual basis in order that it can ascertain whether
or not the president acted arbitrarily in suspending the writ when, in the truth words of
Montenegro, with its very limited machinery fit] cannot be in better position [than the
Executive Branch] to ascertain or evaluate the conditions prevailing in the
Archipelago? (At p. 887). The answer is obvious. It must rely on the Executive
Branch which has the appropriate civil and military machinery for the facts. This was
the method which had to be used in Lansang. This Court relied heavily on classified
information supplied by the military. Accordingly, an incongruous situation obtained.
For this Court, relied on the very branch of the government whose act was in
question to obtain the facts. And as should be expected the Executive Branch
supplied information to support its position and this Court was in no situation to
disprove them. It was a case of the defendant judging the suit. After all is said and
done, the attempt by its Court to determine whether or not the President acted
arbitrarily in suspending the writ was a useless and futile exercise.
There is still another reason why this Court should maintain a detached attitude and
refrain from giving the seal of approval to the act of the Executive Branch. For it is
possible that the suspension of the writ lacks popular support because of one reason
or another. But when this Court declares that the suspension is not arbitrary
(because it cannot do otherwise upon the facts given to it by the Executive Branch) it
in effect participates in the decision-making process. It assumes a task which it is not
equipped to handle; it lends its prestige and credibility to an unpopular act.
The other method is to avail of judicial notice. In this particular case, judicial notice would be the only
basis for determining the clear and present danger to national security and public safety. The
majority of the Court has taken judicial notice of the Communist rebellion, the separatist movement,
the rightist conspiracies, and urban terrorism. But is it fair to blame the present day Marcos for these
incidents? All these problems are totally unrelated to the Marcos of today and, in fact, are led by
people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems
or others like them will always be with us.
Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to
ascertain whether or not the respondents acted with grave abuse of discretion. Nor are we forced to
fall back upon judicial notice of the implications of a Marcos return to his home to buttress a
conclusion.
In the first place, there has never been a pronouncement by the President that a clear and present
danger to national security and public safety will arise if Mr. Marcos and his family are allowed to
return to the Philippines. It was only after the present petition was filed that the alleged danger to
national security and public safety conveniently surfaced in the respondents' pleadings. Secondly,
President Aquino herself limits the reason for the ban Marcos policy to (1) national welfare and
interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability.
(See page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of
national security and public safety. The President has been quoted as stating that the vast majority
of Filipinos support her position. (The Journal, front page, January 24,1989) We cannot validate their
stance simply because it is a popular one. Supreme Court decisions do not have to be popular as
long as they follow the Constitution and the law. The President's original position "that it is not in the
interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times,
front page, February 7, 1989). On February 11, 1989, the President is reported to have stated that
"considerations of the highest national good dictate that we preserve the substantial economic and
political gains of the past three years" in justifying her firm refusal to allow the return of Mr. Marcos
despite his failing health. (Daily Globe, front page, February 15, 1989). "Interest of the nation
national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a
constitutional right. The Bill of Rights commands that the right to travel may not be impaired except
on the stated grounds of national security, public safety, or public health and with the added
requirement that such impairment must be "as provided by law." The constitutional command cannot
be negated by mere generalizations.
There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it
does on injustice, ignorance, poverty, and other aspects at under-development, the Communist
rebellion is the clearest and most present danger to national security and constitutional freedoms.
Nobody has suggested that one way to quell it would be to catch and exile its leaders, Mr. Marcos
himself was forced to flee the country because of "peoples' power." Yet, there is no move to arrest
and exile the leaders of student groups, teachers' organizations, pea ant and labor federations,
transport workers, and government unions whose threatened mass actions would definitely
endanger national security and the stability of government. We fail to see how Mr. Marcos could be a
greater danger.
The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core
loyalists, and other dissatisfied elements would suddenly unite to overthrow the Republic should a
dying Marcos come home is too speculative and unsubstantial a ground for denying a constitutional
right. It is not shown how extremists from the right and the left who loathe each other could find a
rallying point in the coming of Mr. Marcos.
The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which
alone sustains the claim of danger to national security is fraught with perilous implications. Any
difficult problem or any troublesome person can be substituted for the Marcos threat as the
catalysing factor. The alleged confluence of NPAs, secessionists, radical elements, renegade
soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride
roughshod over civil liberties in the name of national security. Today, a passport is denied.
Tomorrow, a newspaper may be closed. Public assemblies may be prohibited. Human rights may be
violated. Yesterday, the right to travel of Senators Benigno Aquino, Jr. and Jovito Salonga was
curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I deeply
regret that the Court's decision to use the political question doctrine in a situation where it does not
apply raises all kinds of disturbing possibilities.
I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has
personally assured the Court that a rebellion of the above combined groups will not succeed and
that the military is on top of the situation. Where then is the clear danger to national security? The
Court has taken judicial notice of something which even the military denies. There would be severe
strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be
successfully contained by the military. I must stress that no reference was made to a clear and
present danger to national security as would allow an overriding of the Bill of Rights.
The Solicitor General's argument that the failure of Congress to enact a statute defining the
parameters of the right to travel and to freely choose one's abode has constrained the President to
fill in the vacuum, is too reminiscent of Amendment No. 6 of the martial law Constitution to warrant
serious consideration. Amendment No. 6 allowed Marcos to issue decrees whenever the Batasang
Pambansa failed or was unable to act adequately on any matter for any reason that in his judgment
required immediate action. When the Bill of Rights provides that a right may not be impaired except
in the interest of national security, public safety, or public health and further requires that a law must
provide when such specifically defined interests are prejudiced or require protection, the inaction of
Congress does not give reason for the respondents to assume the grounds for its impairment.
The fact that the Marcoses have been indicted before American federal courts does not obstruct us
from ruling against an unconstitutional assertion of power by Philippine officials. Let the United
States apply its laws. We have to be true to our own.
Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while
hooked up to machines which have taken over the functions of his heart, lungs, and kidneys may
hasten his death. The physical condition of Mr. Marcos does not justify our ignoring or refusing to act
on his claim to a basic right which is legally demandable and enforceable. For his own good, it might
be preferable to stay where he is. But he invokes a constitutional right. We have no power to deny it
to him.
The issuance of a passport may be discretionary but it should not be withheld if to do so would run
counter to a constitutional guarantee. Besides, the petitioners are not asking for passports and
nothing else. Any travel documents or any formal lifting of the Marcos ban as would allow
international airlines to sell them tickets would suffice.
With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not
think we should differentiate the right to return home from the right to go abroad or to move around
in the Philippines. If at all, the right to come home must be more preferred than any other aspect of
the right to travel. It was precisely the banning by Mr. Marcos of the right to travel by Senators
Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and "threats to national
security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit
that we now have a freedom loving and humane regime. I regret that the Court's decision in this
case sets back the gains that our country has achieved in terms of human rights, especially human
rights for those whom we do not like or those who are against us.
The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former
dictators who were barred by their successors from returning to their respective countries. There is
no showing that the countries involved have constitutions which guarantee the liberty of abode and
the freedom to travel and that despite such constitutional protections, the courts have validated the
"ban a return" policy. Neither is it shown that the successors of the listed dictators are as deeply
committed to democratic principles and as observant of constitutional protections as President
Aquino.
It is indeed regrettable that some followers of the former President are conducting a campaign to
sow discord and to divide the nation. Opposition to the government no matter how odious or
disgusting is, however, insufficient ground to ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless
to defend itself against a threat to national security? Does the President have to suspend the
privilege of the writ of habeas corpus or proclaim martial law? Can she not take less drastic
measures?
Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The
Government has more than ample powers under eixisting law to deal with a person who
transgresses the peace and imperils public safety. But the denial of travel papers is not one of those
powers because the Bill of Rights says so. There is no law prescribing exile in a foreign land as the
penalty for hurting the Nation.
Considering all the foregoing, I vote to GRANT the petition.
CRUZ, J ., dissenting:
It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live and
die in his own country. I say this with a heavy heart but say it nonetheless. That conviction is not
diminished one whit simply because many believe Marcos to be beneath contempt and undeserving
of the very liberties he flounted when he was the absolute ruler of this land.
The right of the United States government to detain him is not the question before us, nor can we
resolve it. The question we must answer is whether or not, assuming that Marcos is permitted to
leave Hawaii (which may depend on the action we take today), the respondents have acted with
grave abuse of discretion in barring him from his own country.
My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but
could not, that the petitioner's return would prejudice the security of the State.
I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the
government was prepared to prove the justification for opposing the herein petition, i.e. that it had
not acted arbitrarily. He said it was. Accordingly, the Court, appreciating the classified nature of the
information expected, scheduled a closed-door hearing on July 25,1988. The Solicitor General and
three representatives from the military appeared for the respondents, together with former Senator
Arturo M. Tolentino, representing the petitioners.
In about two hours of briefing, the government failed dismally to show that the return of Marcos dead
or alive would pose a threat to the national security as it had alleged. The fears expressed by its
representatives were based on mere conjectures of political and economic destabilization without
any single piece of concrete evidence to back up their apprehensions.
Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the
President's decision" to bar Marcos's return. That is not my recollection of the impressions of the
Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers
granted by the Constitution, the Court is taking a great leap backward and reinstating the discredited
doctrine announced in Planas v. Gil (67 Phil. 62). This does not square with the announced policy of
the Constitutional Commission, which was precisely to limit rather than expand presidential powers,
as a reaction to the excesses of the past dictatorship.
I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it
was true that the President had been granted the totality of executive power, "it is difficult to see why
our forefathers bothered to add several specific items, including some trifling ones, . . . I cannot
accept the view that this clause is a grant in bulk of all conceivable executive power but regard it as
an allocation to the presidential office of the generic powers thereafter stated."
I have no illusion that the stand I am taking will be met with paeans of praise, considering that
Marcos is perhaps the most detested man in the entire history of our country. But we are not
concerned here with popularity and personalities. As a judge, I am not swayed by what Justice
Cardozo called the "hooting throng" that may make us see things through the prisms of prejudice. I
bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts
and the applicable law and not of wounds that still fester and scars that have not healed. And not
even of fear, for fear is a phantom. That phantom did not rise when the people stood fast at EDSA
against the threat of total massacre in defense at last of their freedom.
I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor
of Constitutional Law. These principles have not changed simply because I am now on the Court or
a new administration is in power and the shoe is on the other foot.
Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the
prohibitions of the government then, Marcos is entitled to the same right to travel and the liberty of
abode that his adversary invoked. These rights are guaranteed by the Constitution to all individuals,
including the patriot and the homesick and the prodigal son returning, and tyrants and charlatans
and scoundrels of every stripe.
I vote to grant the petition.
PARAS, J ., dissenting:
I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also
called a society without compassion?
The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to
the Philippines may be resolved by answering two simple questions: Does he have the right to return
to his own country and should national safety and security deny him this right?
There is no dispute that the former President is still a Filipino citizen and both under the Universal
Declaration of Human Rights and the 1987 Constitution of the Philippines, he has the right to return
to his own country exceptonly if prevented by the demands of national safety and national security.
Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they
can rely on is sheer speculation. True, there is some danger but there is no showing as to the extent.
It is incredible that one man alone together with his family, who had been ousted from this country by
popular will, can arouse an entire country to rise in morbid sympathy for the cause he once
espoused.
It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former
President should be allowed to return to our country under the conditions that he and the members
of his family be under house arrest in his hometown in Ilocos Norte, and should President Marcos or
any member of his family die, the body should not be taken out of the municipality of confinement
and should be buried within ten (10) days from date.
If we do this, our country shall have maintained its regard for fundamental human rights, for national
discipline, and for human compassion.

PADILLA, J ., dissenting:
I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the
right of a Filipino, Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine
Government to bar such return in the interest of national security and public safety. In this context,
the issue is clearly justiciable involving, as it does, colliding assertions of individual right and
governmental power. Issues of this nature more than explain why the 1986 Constitutional
Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the
1987 Constitution, the new provision on the power of Judicial Review, viz:
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the Government.
Article VIII, Section 1, par. 2; (Emphasis supplied)
Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel
which, in the language of the Constitution, shall not be impaired "except in the interest of national
security, public safety, or public health, as may be provided by law" (Art. III, Sec. 6). That the right to
travel comprises the right to travel within the country, to travel out of the country and to return to the
country (Philippines), is hardly disputable. Short of all such components, the right to travel is
meaningless. The real question arises in the interpretation of the qualifications attached by the
Constitution to such right to travel.
Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do
not agree. It is my view that, with or without restricting legislation, the interest of national security,
public safety or public health can justify and even require restrictions on the right to travel, and that
the clause "as may be provided by law" contained in Article III, Section 6 of the 1987 Constitution
merely declares a constitutional leave or permission for Congress to enact laws that may restrict the
right to travel in the interest of national security, public safety or public health. I do not, therefore,
accept the petitioners' submission that, in the absence of enabling legislation, the Philippine
Government is powerless to restrict travel even when such restriction is demanded by national
security, public safety or public health, The power of the State, in particular cases, to restrict travel of
its citizens finds abundant support in the police power of the state wich may be exercised to
preserve and maintain government as well as promote the general welfare of the greatest number of
people.
And yet, the power of the State, acting through a government in authority at any given time, to
restrict travel, even if founded on police power, cannot be absolute and unlimited under all
circumstances, much less, can it be arbitrary and irrational.
Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional
right, i.e., the right to return to the country.
1
Have the respondents presented sufficient evidence to
offset or override the exercise of this right invoked by Mr. Marcos? Stated differently, have the
respondents shown to the Court sufficient factual bases and data which would justify their reliance
on national security and public safety in negating the right to return invoked by Mr. Marcos?
I have given these questions a searching examination. I have carefully weighed and assessed the
"briefing" given the Court by the highest military authorities of the land last 28 July 1989. 1 have
searched, but in vain, for convincing evidence that would defeat and overcome the right of Mr.
Marcos as a Filipino to return to this country. It appears to me that the apprehensions entertained
and expressed by the respondents, including those conveyed through the military, do not, with all
due respect, escalate to proportions of national security or public safety. They appear to be more
speculative than real, obsessive rather than factual. Moreover, such apprehensions even if
translated into realities, would be "under control," as admitted to the Court by said military
authorities, given the resources and facilities at the command of government. But, above all, the
Filipino people themselves, in my opinion, will know how to handle any situation brought about by a
political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in
short, should not accept respondents' general apprehensions, concerns and perceptions at face
value, in the light of a countervailing and even irresistible, specific, clear, demandable, and
enforceable right asserted by a Filipino.
Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a
pretext to justify derogation of human rights.
2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting
the generally accepted principles of international law as part of the law of the land, (Art. II, Sec. 2 of
the Constitution), the Philippine government cannot just pay lip service to Art. 13, par. 2 of the
Universal Declaration of Human Rights which provides that everyone has the right to leave any
country, including his own, and to return to his country. This guarantee is reiterated in Art. XII, par. 2
of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or
"arbitrarily" was specifically chosen by the drafters of the Covenant
3
hoping to protect an individual
against unexpected, irresponsible or excessive encroachment on his rights by the state based on
national traditions or a particular sense of justice which falls short of international law or standards.
4

The Solicitor General maintains that because the respondents, as alter egos of the President, have
raised the argument of "national security" and "public safety," it is the duty of this Court to
unquestioningly yield thereto, thus casting the controversy to the realm of a political question. I do
not agree. I believe that it is one case where the human and constitutional light invoked by one party
is so specific, substantial and clear that it cannot be overshadowed, much less, nullified by simplistic
generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its
clearly pressing and demandable duty to the Constitution.
During the oral arguments in this case, I asked the Solicitor General how one could validly
defend the right of former Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in
1983 and, at the same time,credibly deny the right of Mr. Marcos, also a Filipino, to return to the
Philippines in 1989. I still have not found a satisfactory answer to that question. Instead, it has
become clearer by the day that the drama today is the same drama in 1983 with the only difference
that the actors are in opposite roles, which really makes one hope, in the national interest, that the
mistake in 1983 should not be made to persist in 1989.
To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or
otherwise, the following are the cogent and decisive propositions in this case
1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this
country;
2. respondents have not shown any "hard evidence" or convincing proof why his
right as a Filipino to return should be denied him. All we have are general
conclusions of "national security" and "public safety" in avoidance of a specific
demandable and enforceable constitutional and basic human right to return;
3. the issue of Marcos' return to the Philippines, perhaps more than any issue today,
requires of all members of the Court, in what appears to be an extended political
contest, the "cold neutrality of an impartial judge." It is only thus that we fortify the
independence of this Court, with fidelity, not to any person, party or group but to the
Constitution and only to the Constitution.
ACCORDINGLY, I vote to GRANT the petition.
SARMIENTO, J ., dissenting:
I vote to grant the petition.
The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers
granted by the Constitution, the President may prohibit the Marcoses from returning to the
Philippines."
1
I therefore take exception to allusions
2
anent "the capacity of the Marcoses to stir
trouble even from afar."
3
I have legitimate reason to fear that my brethren, in passing judgment on
the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds
of judicial restraint, or even worse, convicted them without trial.
I also find quite strained what the majority would have as the "real issues" facing the Court: "The
right to return to one's country," pitted against "the right of travel and freedom of abode", and their
supposed distinctions under international law, as if such distinctions, under international law in truth
and in fact exist. There is only one right involved here, whether under municipal or international law:
the light of travel, whether within one's own country, or to another, and the right to return thereto.
The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non
distinguish nec nos distinguere debemus.
As the majority would indeed have it, the issue is one of power: Does the Executive have the power
to deny a citizen his right to travel (back to the country or to another)? It is a question that, in
essence, involves the application, and no more, of the provisions of the 1987 Constitution:
Sec. 6. The liberty of abode and of changing the same within the limits prescribed by law
shall not be impaired except upon lawful order of the court. Neither shall the right to travel
be impaired except in the interest of national security, public safety, or public health, as
may be provided by law.
4

The majority says, with ample help from American precedents, that the President is possessed of
the power, thus:
On these premises, we hold the view that although the 1987 Constitution imposes
limitations on the exercise of specific powers of the President, it maintains intact what is
traditionally considered as within the scope of "executive power." Corollarily, the powers
of the President cannot be said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more than the sum of specific powers
so enumerated.
5

So also:
Faced with the problem of whether or not the time is right to allow the Marcoses to return
to the Philippines, the President is, under the Constitution, constrained to consider these
basic principles in arriving at a decision. More than that, having sworn to defend and
uphold the Constitution, the President has the obligation under the Constitution to protect
the people, promote their welfare and advance the national interest. It must be borne in
mind that the Constitution, aside from being an allocation of power is also a social
contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers
delegated by the people forget and the servants of the people become rulers, the
Constitution reminds everyone that "sovereignty resides in the people and all government
authority emanates from them." [Art. II, Sec. 1 . ]
6

And finally:
To the President, the problem is one of balancing the general welfare and the common
good against the exercise of rights of certain individuals. The power involved is the
President's residual power to protect the general welfare of the people. It is founded on
the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt,
it is not only the power of the President but also his duty to do anything not forbidden by
the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care
that the laws are faithfully executed [See Hyman, The American President, where the
author advances the view that an allowance of discretionary power is unavoidable in any
government and is best lodged in the President].
7

I am not persuaded.
I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them
by constitutional implication* the latter must yield to the paramountcy of the Bill of Rights. According
to Fernando: "A regime of constitutionalism is thus unthinkable without an assurance of the primacy
of a big of rights. Precisely a constitution exists to assure that in the discharge of the governmental
functions, the dignity that is the birthright of every human being is duly safeguarded. To be true to its
primordial aim a constitution must lay down the boundaries beyond which he's forbidden territory for
state action"
8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct
mandate of the fundamental law. It will not suffice, so I submit, to say that the President's plenitude
of powers, as provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan in the field of
public law, "this argument ... rests ... not upon the text of the (Constitution] ... but upon a mere
inference therefrom."
9
For if it were, indeed, the intent of the Charter to create an exception, that is,
by Presidential action, to the right of travel or liberty of abode and of changing the same other than
what it explicitly says already ("limits prescribed by law"
10
or "upon lawful order of the court"
11
the
Charter could have specifically declared so. As it is, the lone deterrents to the right in question are:
(1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a third exception,
that is, by Presidential initiative, it could have so averred. It would also have made the Constitution,
as far as limits to the said right are concerned, come full circle: Limits by legislative, judicial, and
executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country;
neither is there any court decree banishing him from Philippine territory.
It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:
Sec. 5. The liberty of abode and of travel shall not be impaired except upon lawful order
of the court, or when necessary in the interest of national security, public safety, or public
health.
12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary
in the interest of national security, public safety, or public health.
13
Arguably, the provision enabled
the Chief Executive (Marcos) to moderate movement of citizens, which, Bernas says, justified such
practices as "hamletting", forced relocations, or the establishment of free-fire zones.
14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power.
And, as it so appears, the right may be impaired only "within the limits provided by law .
15
The
President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security
16
and
foreign affairs;
17
the Bill of Rights precisely, a form of check against excesses of officialdom is, in this
case, a formidable barrier against Presidential action. (Even on matters of State security, this
Constitution prescribes limits to Executive's powers as Commander-in-Chief.)
Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is:
Has it been proved that Marcos, or his return, will, in fact, interpose a threat to the national security ,
public safety, or public health?" What appears in the records are vehement insistences that Marcos
does pose a threat to the national good and yet, at the same time, we have persistent claims, made
by the military top brass during the lengthy closed-door hearing on July 25, 1989, that "this
Government will not fall" should the former first family in exile step on Philippine soil. which is which?
At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive.
The Court itself must be content that the threat is not only clear, but more so, present.
18

That the President "has the obligation under the Constitution to protect the people ... "
19
is an
obligation open to no doubt. But the question, and so I ask again and again, is: From whom? If we
say "from Marcos," we unravel chinks in our political armor. It also flies in the face of claims, so
confidently asserted, that "this Government will not fall" even if we allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies,
implementors of martial law, and pathetic parasites of the ex-first couple are, in fact, in the
Government, in the comfort of its offices, and or at the helm of its key agencies. Let us not,
therefore, joke ourselves of moral factors warranting the continued banishment of Marcos. Morality is
the last refuge of the self-righteous.
Third: The problem is not of balancing the general welfare against the exercise of individual
liberties.
20
As I indicated, not one shred of evidence, let alone solid evidence, other than surmises of
possibilities, has been shown to justify the 'balancing act" referred to. Worse, these conjectures
contradict contentions that as far as Philippine society is concerned, Marcos is "history".
The power of the President, so my brethren declaim, "calls for the exercise of the President's power
as protector of peace.
21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule.
It also means that we are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the
commander-in-chief powers in times of emergency or to leading the State against external and
internal threats to its existence"
22
is a bigger fantasy: It not only summons the martial law decisions
of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is inconsistent with
the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart.
23

II.
The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos.
Because of Marcos, the writer of it's dissent lost a son His son's only "offense" was that he openly
and unabatedly criticized the dictator, his associates, and his military machinery. He would pay
dearly for it; he was arrested and detained, without judicial warrant or decision, for seven months
and seven days. He was held incommunicado a greater part of the time, in the military stockade of
Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and
confined for chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate
health beyond cure. He died, on November 11, 1977, a martyr on the altar of the martial law
apparatus.
The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On
August 14, 1979, he was, along with former President Diosdado Macapagal, and Congressmen
Rogaciano Mercado and Manuel Concordia, charged, "ASSOed"and placed under house arrest, for
"inciting to sedition" and "rumor mongering "
24
in the midst of the distribution of Ang Demokrasya Sa
Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule, published by him
and former Congressman Concordia, authored by President Macapagal and translated into Tagalog
by Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than
two dozens of criminal complaints filed by the several military officers named in the "condemned"
book as having violated the human rights of dissenters, and for other crimes, in the office of the
Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set them free from house arrest and
these political offenses. I am for Marcos' return not because I have a score to settle with him. Ditto's
death or my arrest are scores that can not be settled.
I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him
'unpunished for his crimes to country and countrymen. If punishment is due, let this leadership inflict
it. But let him stand trial and accord him due process.
Modesty aside, I have staunchly and consistently advocated the human right of travel and movement
and the liberty of abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights.
It is his constitutional right, a right that can not be abridged by personal hatred, fear, founded or
unfounded, and by speculations of the "man's "capacity" "to stir trouble" Now that the shoe is on the
other foot, let no more of human rights violations be repeated against any one, friend or foe. In a
democratic framework, there is no this as getting even.
The majority started this inquiry on the question of power. I hold that the President, under the
present Constitution and existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Grio- Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., is on leave.

Marcos, petitioner
VS.
Manglapus, respondent (Part 1)
Facts:
Former President Ferdinand E. Marcos was deposed from the presidency via the non-violent people
power revolution and was forced into exile. Marcos, in his deathbed, has signified his wish to return
to the Philippines to die. But President Corazon Aquino, considering the dire consequences to the
nation of his return at a time when the stability of government is threatened from various directions
and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar
the return of Marcos and his family.
Aquino barred Marcos from returning due to possible threats & following supervening events:
1. failed Manila Hotel coup in 1986 led by Marcos leaders
2. channel 7 taken over by rebels & loyalists
3. plan of Marcoses to return w/ mercenaries aboard a chartered plane of a Lebanese arms
dealer. This is to prove that they can stir trouble from afar
4. Honasans failed coup
5. Communist insurgency movements
6. secessionist movements in Mindanao
7. devastated economy because of
1. accumulated foreign debt
2. plunder of nation by Marcos & cronies
Marcos filed for a petition of mandamus and prohibition to order the respondents to issue them their
travel documents and prevent the implementation of President Aquinos decision to bar Marcos from
returning in the Philippines. Petitioner questions Aquinos power to bar his return in the country. He
also questioned the claim of the President that the decision was made in the interest of national
security, public safety and health. Petitioner also claimed that the President acted outside her
jurisdiction.
According to the Marcoses, such act deprives them of their right to life, liberty, property without due
process and equal protection of the laws. They also said that it deprives them of their right to travel
which according to Section 6, Article 3 of the constitution, may only be impaired by a court order.
Issue:
1. Whether or not, in the exercise of the powers granted by the Constitution, the President
may prohibit the Marcoses from returning to the Philippines.
2. Whether or not the President acted arbitrarily or with grave abuse of discretion amounting
to lack or excess of jurisdiction when she determined that the return of the Marcoses to the
Philippines poses a serious threat to national interest and welfare and decided to bar their
return.
Decision:
No to both issues. Petition dismissed.
Ratio:
Separation of power dictates that each department has exclusive powers. According to Section 1,
Article VII of the 1987 Philippine Constitution, the executive power shall be vested in the President
of the Philippines. However, it does not define what is meant by executive power although in the
same article it touches on exercise of certain powers by the President, i.e., the power of control over
all executive departments, bureaus and offices, the power to execute the laws, the appointing power
to grant reprieves, commutations and pardons (art VII secfs. 14-23). Although the constitution
outlines tasks of the president, this list is not defined & exclusive. She has residual & discretionary
powers not stated in the Constitution which include the power to protect the general welfare of the
people. She is obliged to protect the people, promote their welfare & advance national interest. (Art.
II, Sec. 4-5 of the Constitution). Residual powers, according to Theodore Roosevelt, dictate that the
President can do anything which is not forbidden in the Constitution (Corwin, supra at 153),
inevitable to vest discretionary powers on the President (Hyman, American President) and that the
president has to maintain peace during times of emergency but also on the day-to-day operation of
the State.
The rights Marcoses are invoking are not absolute. Theyre flexible depending on the circumstances.
The request of the Marcoses to be allowed to return to the Philippines cannot be considered in the
light solely of the constitutional provisions guaranteeing liberty of abode and the right to travel,
subject to certain exceptions, or of case law which clearly never contemplated situations even
remotely similar to the present one. It must be treated as a matter that is appropriately addressed to
those residual unstated powers of the President which are implicit in and correlative to the
paramount duty residing in that office to safeguard and protect general welfare. In that context, such
request or demand should submit to the exercise of a broader discretion on the part of the President
to determine whether it must be granted or denied.
For issue number 2, the question for the court to determine is whether or not there exist factual basis
for the President to conclude that it was in the national interest to bar the return of the Marcoses in
the Philippines. It is proven that there are factual bases in her decision. The supervening events that
happened before her decision are factual. The President must take preemptive measures for the
self-preservation of the country & protection of the people. She has to uphold the Constitution.
FERNAN, CONCURRING
1. The presidents power is not fixed. Limits would depend on the imperatives of events and
not on abstract theories of law. We are undergoing a critical time and the current problem
can only be answerable by the President.
2. Threat is real. Return of the Marcoses would pose a clear & present danger. Thus, its the
executives responsibility & obligation to prevent a grave & serious threat to its safety from
arising.
3. We cant sacrifice public peace, order, safety & our political & economic gains to give in to
Marcos wish to die in the country. Compassion must give way to the other state interests.
CRUZ, DISSENTING
1. As a citizen of this country, it is Marcos right to return, live & die in his own country. It is a
right guaranteed by the Consti to all individuals, whether patriot, homesick, prodigal, tyrant,
etc.
2. Military representatives failed to show that Marcos return would pose a threat to national
security. Fears were mere conjectures.
3. Residual powers but the executives powers were outlined to limit her powers & not
expand.
PARAS, DISSENTING
1. AFP has failed to prove danger which would allow State to impair Marcos right to return to
the Philippines. .
2. Family can be put under house arrest & in the event that one dies, he/she should be buried
w/in 10 days.
3. Untenable that without a legislation, right to travel is absolute & state is powerless to restrict
it. Its w/in police power of the state to restrict this right if national security, public
safety/health demands that such be restricted. It cant be absolute & unlimited all the time.
It cant be arbitrary & irrational.
4. No proof that Marcos return would endanger national security or public safety. Fears are
speculative & military admits that its under control. Filipinos would know how to handle
Marcos return.
PADILLA, DISSENTING
Sarmiento, Dissenting
1. Presidents determination that Marcos return would threaten national security should be
agreed upon by the court. Such threat must be clear & present.
G.R. No. 88211, October 27, 1989
Marcos, petitioner
VS.
Manglapus, respondent (Part 2)
Facts:
In its decision dated September 15, 1989, the Court by a vote of eight to seven, dismissed the
petition, after finding that the President did not act arbitrarily or with grave abuse of discretion in
determining that the return of former President Marcos and his family pose a threat to national
interest and welfare and in prohibiting their return to the Philippines. On September 28, 1989,
Marcos died in Honolulu, Hawaii.
President Corazon Aquino issued a statement saying that in the interest of the safety of those who
will take the death of Marcos in widely and passionately conflicting ways, and for the tranquility and
order of the state and society, she did not allow the remains of Marcos to be brought back in the
Philippines.
A motion for Reconsideration was filed by the petitioners raising the following arguments:
1. Barring their return would deny them their inherent right as citizens to return to their country
of birth and all other rights guaranteed by the Constitution to all Filipinos.
2. The President has no power to bar a Filipino from his own country; if she has, she had
exercised it arbitrarily.
3. There is no basis for barring the return of the family of former President Marcos.
Issue:
Whether or not the motion for reconsideration that the Marcoses be allowed to return in the
Philippines be granted.
Decision:
No. The Marcoses were not allowed to return. Motion for Reconsideration denied because of lack of
merit.
Ratio:
1. Petitioners failed to show any compelling reason to warrant reconsideration.
2. Factual scenario during the time Court rendered its decision has not changed. The threats
to the government, to which the return of the Marcoses has been viewed to provide a
catalytic effect, have not been shown to have ceased. Imelda Marcos also called President
Aquino illegal claiming that it is Ferdinand Marcos who is the legal president.
3. President has unstated residual powers implied from grant of executive power.
Enumerations are merely for specifying principal articles implied in the definition; leaving
the rest to flow from general grant that power, interpreted in conformity with other parts of
the Constitution (Hamilton). Executive unlike Congress can exercise power from sources
not enumerates so long as not forbidden by constitutional text (Myers vs. US). This does
not amount to dictatorship. Amendment No. 6 expressly granted Marcos power of
legislation whereas 1987 Constitution granted Aquino with implied powers.
4. It is within Aquinos power to protect & promote interest & welfare of the people. She bound
to comply w/ that duty and there is no proof that she acted arbitrarily

Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 72335-39 March 21, 1988
FRANCISCO S. TATAD, petitioner,
vs.
THE SANDIGANBAYAN, and THE TANODBAYAN, respondents.

YAP, J .:
In this petition for certiorari and prohibition, with preliminary injunction, dated October 16, 1985,
petitioner seeks to annul and set aside the resolution of the Tanodbayan of April 7, 1985, and the
resolutions of the Sandiganbayan, dated August 9, 1985, August 12,1985 and September 17, 1985,
and to enjoin the Tanodbayan and the Sandiganbayan from continuing with the trial or any other
proceedings in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, an entitled "People of
the Philippines versus Francisco S. Tatad."
The petition alleges, among other things, that sometime in October 1974, Antonio de los Reyes,
former Head Executive Assistant of the then Department of Public Information (DPI) and Assistant
Officer-in-Charge of the Bureau of Broadcasts, filed a formal report with the Legal Panel,
Presidential Security Command (PSC), charging petitioner, who was then Secretary and Head of the
Department of Public Information, with alleged violations of Republic Act No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act. Apparently, no action was taken on said report.
Then, in October 1979, or five years later, it became publicly known that petitioner had submitted his
resignation as Minister of Public Information, and two months after, or on December 12, 1979,
Antonio de los Reyes filed a complaint with the Tanodbayan (TBP Case No. 8005-16-07) against the
petitioner, accusing him of graft and corrupt practices in the conduct of his office as then Secretary
of Public Information. The complaint repeated the charges embodied in the previous report filed by
complainant before the Legal Panel, Presidential Security Command (PSC).
On January 26, 1980, the resignation of petitioner was accepted by President Ferdinand E. Marcos.
On April 1, 1980, the Tanodbayan referred the complaint of Antonio de los Reyes to the Criminal
Investigation Service (CIS) for fact-finding investigation. On June 16, 1980, Roberto P. Dizon, CIS
Investigator of the Investigation and Legal Panel, PSC, submitted his Investigation Report, with the
following conclusion, ". . . evidence gathered indicates that former Min. TATAD have violated Sec. 3
(e) and Sec. 7 of RA 3019, respectively. On the other hand, Mr. ANTONIO L. CANTERO is also
liable under Sec. 5 of RA 3019," and recommended appropriate legal action on the matter.
Petitioner moved to dismiss the complaint against him, claiming immunity from prosecution by virtue
of PD 1791, but the motion was denied on July 26, 1982 and his motion for reconsideration was also
denied on October 5, 1982. On October 25, 1982, all affidavits and counter-affidavits were with the
Tanodbayan for final disposition. On July 5, 1985, the Tanodbayan approved a resolution, dated
April 1, 1985, prepared by Special Prosecutor Marina Buzon, recommending that the following
informations be filed against petitioner before the Sandiganbayan, to wit:
l. Violation of Section 3, paragraph (e) of RA. 3019 for giving D' Group, a private
corporation controlled by his brother-in-law, unwarranted benefits, advantage or
preference in the discharge of his official functions through manifest partiality and
evident bad faith;
2. Violation of Section 3, paragraph (b) of RA. 3019 for receiving a check of
P125,000.00 from Roberto Vallar, President/General Manager of Amity Trading
Corporation as consideration for the release of a check of P588,000.00 to said
corporation for printing services rendered for the Constitutional Convention
Referendum in 1973;
3. Violation of Section 7 of RA. 3019 on three (3) counts for his failure to file his
Statement of Assets and Liabilities for the calendar years 1973, 1976 and 1978.
Accordingly, on June 12, 1985, the following informations were flied with the Sandiganbayan against
the petitioner:
Re: Criminal Case No. 10499
The undersigned Tanodbayan Special Prosecutor accuses Francisco S. Tatad with
Violation of Section 3, paragraph (b) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the 16th day of July, 1973 in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above- named accused, being then
the Secretary of the Department (now Ministry) of Public Information, did then and
there, wilfully and unlawfully demand and receive a check for Pl25,000.00 from
Roberto Vallar, President/General Manager of Amity Trading Corporation as
consideration for the payment to said Corporation of the sum of P588,000.00, for
printing services rendered for the Constitutional Convention Referendum of January,
1973, wherein the accused in his official capacity had to intervene under the law in
the release of the funds for said project.
That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on May 16, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10500
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD
with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practice Act, committed as follows:
That on or about the 31st day of January, 1974 in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above- named accused, a public
officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with the
Office of the President, a true detailed and sworn statement of his assets and
liabilities, as of December 31, 1973, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses and the
amount of income taxes paid for the next preceding calendar year (1973), as
required of every public officer.
That the complaint against the above-named accused was flied with the Office of the
Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10501
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD
with Violation of Section 3, paragraph (e) of Republic Act No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act, committed as follows:
That on or about the month of May, 1975 and for sometime prior thereto, in the City
of Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, a public officer being then the Secretary of the Department (now
Ministry) of Public Information, did then and there, wilfully and unlawfully give
Marketing Communication Group, Inc. (D' Group), a private corporation of which his
brother-in-law, Antonio L. Cantero, is the President, unwarranted benefits, advantage
or preference in the discharge of his official functions, through manifest partiality and
evident bad faith, by allowing the transfer of D' GROUP of the funds, assets and
ownership of South East Asia Research Corporation (SEARCH), allegedly a private
corporation registered with the Securities and Exchange Corporation on June 4,
1973, but whose organization and operating expenses came from the confidential
funds of the Department of Public Information as it was organized to undertake
research, projects for the government, without requiring an accounting of the funds
advanced by the Department of Public Information and reimbursement thereof by D'
GROUP, to the damage and prejudice of the government.
That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on May 16, 1980.
CONTRARY TO LAW.
Re: Criminal Case No. 10502
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD
with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act, committed as follows:
That on or about the 31st day of January, 1977 in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public
officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with the
Office of the President, a true and sworn statement of his assets and liabilities, as of
December 31, 1976, including a statement of the amounts of his personal and family
expenses and the amount of income taxes paid for the next preceding calendar year
(1976), as required of every public officer.
That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on June 20, 1988.
CONTRARY TO LAW.
Re: Criminal Case No. 10503
The undersigned Tanodbayan Special Prosecutor accuses FRANCISCO S. TATAD
with Violation of Section 7 of Republic Act No. 3019, otherwise known as the Anti-
Graft and Corrupt Practices Act, committed as follows:
That on or about the 15th day of April, 1979, in the City of Manila Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public
officer being then the Secretary of the Department (now Ministry) of Public
Information, did then and there wilfully and unlawfully fail to prepare and file with the
Office of the President, a true, detailed and sworn statement of his assets and
liabilities, as of December 31, 1978, including a statement of the amounts and
sources of his income, the amounts of his personal and family expenses and the
amount of income taxes paid for the next preceding calendar year (1978), as
required of every public officer.
That the complaint against the above-named accused was filed with the Office of the
Tanodbayan on June 20, 1980.
CONTRARY TO LAW.
On July 22, 1985, petitioner filed with the Sandiganbayan a consolidated motion to quash the
informations on the follow grounds:
1 The prosecution deprived accused-movant of due process of law and of the right to
a speedy disposition of the cases filed against him, amounting to loss of jurisdiction
to file the informations;
2. Prescription of the offenses charged in Crim. Case Nos. 10499, 10500 and 10501;
3. The facts charged in Criminal Case No. 10500 (for failure to file Statement of
Assets and Liabilities for the year 1973) do not constitute an offense;
4. No prima facie case against the accused-movant exists in Criminal Cases Nos.
10500, 10502 and 10503;
5. No prima facie case against the accused-movant exists in Criminal Case No.
10199 for Violation of Sec. 3, par. (b) of R.A. 3019, as amended;
6. No prima facie case against the accused-movant exists in Criminal Case No.
10501 (for Violation of Sec. 3 (e) of R.A. 3019, as amended.
On July 26, 1985, the Tanodbayan filed its opposition to petitioner's consolidated motion to quash,
stating therein in particular that there were only two grounds in said motion that needed refutation,
namely:
1. The offense charged in Criminal Cases Nos. 10499,10500 and 10501, have
already prescribed and criminal liability is extinguished; and
2. The facts charged in the information (Criminal Case No. 10500 For failure to file
Statement of Assets and Liabilities for the year 1973) do not constitute an offense.
On the issue of prescription, Tanodbayan citing the case of Francisco vs. Court of Appeals, 122
SCRA 538, contended that the filing of the complaint or denuncia in the fiscal's office interrupts the
period of prescription. Since the above-numbered cases were filed with the Office of
the Tanodbayan in 1980 and the alleged offenses were committed on July 16, 1973, January 31,
1974 and in May 1975, respectively, although the charges were actually filed in Court only on July 9,
1985, the Tanodbayan has still the right to prosecute the same, it appearing that the ten (10) year
prescriptive period has not yet lapsed. Moreover, Tanodbayan pointed out that a law such as Batas
Pambansa Blg. 195, extending the period of limitation with respect to criminal prosecution, unless
the right to acquittal has been acquired, is constitutional.
Tanodbayan likewise said that the requirement for the filing of the Statement of Assets and Liabilities
in P.D. 379 is separate and distinct from that required pursuant to the provisions of the Anti-Graft
Law, as amended. For while the former requires "any natural or juridical person having gross assets
of P50,000.00 or more..." to submit a statement of assets and liabilities "... regardless of the
networth," the mandate in the latter law is for ALL government employees and officials to submit a
statement of assets and liabilities. Hence, the prosecution under these two laws are separate and
distinct from each other. Tanodbayan also explained that delay in the conduct of preliminary
investigation does not impair the validity of the informations filed and that neither will it render said
informations defective. Finally, Tanodbayan added that P.D. 911, the law which governs preliminary
investigations is merely directory insofar as it fixes a period of ten (10) days from its termination to
resolve the preliminary investigation.
On August 9, 1985, the Sandiganbayan rendered its challenged resolution denying petitioner's
motion to quash, the dispositive portion of which reads:
WHEREFORE, prescinding therefrom, We find, and so hold, that the accused's
"Consolidated Motion to Quash" should be as it is hereby, denied for lack of merit.
Conformably to Rule 117, Section 4 of the 1985 Rules on Criminal Procedure, the
defect in the information in Criminal Case No. 10500 being one which could be cured
by amendment, the Tanodbayan is hereby directed to amend said information to
change the date of the alleged commission of the offense therein charged
fromJanuary 31, 1974 to September 30, 1974 within five (5) days from receipt hereof.
SO ORDERED.
On August 10, 1985, in compliance with the Sandiganbayan's resolution of August 8, 1985, the
Tanodbayan filed an amended information in Criminal Case No. 10500, changing the date of the
commission of the offense to September 30, 1974.
On August 30, 1985, petitioners filed a consolidated motion for reconsideration which was denied by
the Sandiganbayan September 17, 1985. Hence, petitioner filed this petition on October 16, 1985
assailing the denial of his motion to quash. On October 22, 1985, the Court, without giving due
course the petition, resolved to require the respondents to comment thereon and issued a temporary
restraining order effective immediately and continuing until further orders of the Court, enjoining the
respondents Sandiganbayan and Tanodbayan from continuing with the trial and other proceedings in
Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503. In compliance with said resolution,
the respondents, through ,Solicitor General Estelito P. Mendoza, filed their comment on January 6,
1986.
On April 10, 1986, the Court required the parties to move in the premises considering the
supervening events, including the change of administration that had transpired, and the provisions of
Sec. 18, Rule 3 of the Rules of Court, insofar far as the Public respondents were concerned, which
requires the successor official to state whether or not he maintains the action or position taken by his
predecessor in office. On June 20, 1986, the new Tanodbayan manifested that since "the charges
are not political offenses and they have no political bearing whatsoever," he had no alternative but to
pursue the cases against the petitioner, should the Court resolve to deny the petition; that in any
event, petitioner is not precluded from pursuing any other legal remedies under the law, such as the
filing of a motion for re-evaluation of his cases with the Tanodbayan. The new Solicitor General filed
a manifestation dated June 27, 1986 in which he concurred with the position taken by the new
Tanodbayan.
Pursuant to the above manifestation of the new Tanodbayan, the petitioner filed a motion for re-
evaluation with the Office of the Tanodbayan, dated July 21, 1986, praying that the cases in question
be re-evaluated and the informations be quashed. The Court is not aware of what action, if any, has
been taken thereon by the Tanodbayan. However, be that as it may, the filing of the aforesaid
motion for re-evaluation with the Tanodbayan has no material bearing insofar as the duty of this
Court to resolve the issues raised in the instant petition is concerned.
Petitioner has raised the following issues in his petition:
1. Whether the prosecution's long delay in the filing of these cases with the
Sandiganbayan had deprived petitioner of his constitutional light to due process and
the right to a speedy disposition of the cases against him.
2. Whether the crimes charged has already prescribed.
3. Whether there is a discriminatory prosecution of the petitioner by the Tanodbayan.
4. Whether Sandiganbayan should have ruled on the question of amnesty raised by
the petitioner.
5. Whether petitioner's contention of the supposed lack or non- existence of prima
facie evidence to sustain the filing of the cases at bar justifies the quashal of the
questioned informations.
Petitioner claims that the Tanodbayan culpably violated the constitutional mandate of "due process"
and "speedy disposition of cases" in unduly prolonging the termination of the preliminary
investigation and in filing the corresponding informations only after more than a decade from the
alleged commission of the purported offenses, which amounted to loss of jurisdiction and authority to
file the informations. The respondent Sandiganbayan dismissed petitioner's contention, saying that
the applicability of the authorities cited by him to the case at bar was "nebulous;" that it would be
premature for the court to grant the "radical relief" prayed for by petitioner at this stage of the
proceeding; that the mere allegations of "undue delay" do not suffice to justify acceptance thereof
without any showing "as to the supposed lack or omission of any alleged procedural right granted or
allowed to the respondent accused by law or administrative fiat" or in the absence of "indubitable
proof of any irregularity or abuse" committed by the Tanodbayan in the conduct of the preliminary
investigation; that such facts and circumstances as would establish petitioner's claim of denial of due
process and other constitutionally guaranteed rights could be presented and more fully threshed out
at the trial. Said the Sandiganbayan:
That there was a hiatus in the proceedings between the alleged termination of the
proceedings before the investigating fiscal on October 25, 1982 and its resolution on
April 17, 1985 could have been due to certain factors which do not appear on record
and which both parties did not bother to explain or elaborate upon in detail. It could
even be logically inferred that the delay may be due to a painstaking an gruelling
scrutiny by the Tanodbayan as to whether the evidence presented during the
preliminary investigation merited prosecution of a former high-ranking government
official. In this respect, We are the considered opinion that the provision of Pres.
Decree No. 911, as amended, regarding the resolution of a complaint by
the Tanodbayan within ten (10) days from termination of the preliminary investigation
is merely "directory" in nature, in view of the nature and extent of the proceedings in
said office.
The statutory grounds for the quashal of an information are clearly set forth in
concise language in Rule 117, Section 2, of the 1985 Rules on Criminal Procedure
and no other grounds for quashal may be entertained by the Court prior to
arraignment inasmuch as it would be itself remiss in the performance of its official
functions and subject to the charge that it has gravely abused its discretion. Such
facts and circumstances which could otherwise justify the dismissal of the case, such
as failure on the part of the prosecution to comply with due process or any other
constitutionally-guaranteed rights may presented during the trial wherein evidence for
and against the issue involved may be fully threshed out and considered.
Regrettably, the accused herein attempts to have the Court grant such a radical relief
during this stage of the proceedings which precludes a pre-cocious or summary
evaluation of insufficient evidence in support thereof.
This brings us to the crux of the issue at hand. Was petitioner deprived of his constitutional right to
due process and the right to "speedy disposition" of the cases against him as guaranteed by the
Constitution? May the court, ostrich like, bury its head in the sand, as it were, at the initial stage of
the proceedings and wait to resolve the issue only after the trial?
In a number of cases,
1
this Court has not hesitated to grant the so-called "radical relief" and to spare
the accused from undergoing the rigors and expense of a full-blown trial where it is clear that he has
been deprived of due process of law or other constitutionally guaranteed rights. Of course, it goes
without saying that in the application of the doctrine enunciated in those cases, particular regard
must be taken of the facts and circumstances peculiar to each case.
Coming to the case at bar, the following relevant facts appear on record and are largely undisputed.
The complainant, Antonio de los Reyes, originally filed what he termed "a report" with the Legal
Panel of the Presidential Security Command (PSC) on October 1974, containing charges of alleged
violations of Rep. Act No. 3019 against then Secretary of Public Information Francisco S. Tatad. The
"report" was made to "sleep" in the office of the PSC until the end of 1979 when it became widely
known that Secretary (then Minister) Tatad had a falling out with President Marcos and had resigned
from the Cabinet. On December 12, 1979, the 1974 complaint was resurrected in the form of a
formal complaint filed with the Tanodbayan and docketed as TBP Case No. 8005-16-07. The
Tanodbayan acted on the complaint on April 1, 1980-which was around two months after petitioner
Tatad's resignation was accepted by Pres. Marcos by referring the complaint to the CIS,
Presidential Security Command, for investigation and report. On June 16, 1980, the CIS report was
submitted to the Tanodbayan, recommending the filing of charges for graft and corrupt practices
against former Minister Tatad and Antonio L. Cantero. By October 25, 1982, all affidavits and
counter-affidavits were in the case was already for disposition by the Tanodbayan. However, it was
only on July 5, 1985 that a resolution was approved by the Tanodbayan, recommending the ring of
the corresponding criminal informations against the accused Francisco Tatad. Five (5) criminal
informations were filed with the Sandiganbayan on June 12, 1985, all against petitioner Tatad alone.
A painstaking review of the facts can not but leave the impression that political motivations played a
vital role in activating and propelling the prosecutorial process in this case. Firstly, the complaint
came to life, as it were, only after petitioner Tatad had a falling out with President Marcos. Secondly,
departing from established procedures prescribed by law for preliminary investigation, which require
the submission of affidavits and counter-affidavits by the complainant and the respondent and their
witnesses, the Tanodbayan referred the complaint to the Presidential Security Command for finding
investigation and report.
We find such blatant departure from the established procedure as a dubious, but revealing attempt
to involve an office directly under the President in the prosecutorial process, lending credence to the
suspicion that the prosecution was politically motivated. We cannot emphasize too strongly that
prosecutors should not allow, and should avoid, giving the impression that their noble office is being
used or prostituted, wittingly or unwittingly, for political ends or other purposes alien to, or subversive
of, the basic and fundamental objective of serving the interest of justice even handedly, without fear
or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only
by strict adherence to the established procedure may the public's perception of the of the prosecutor
be enhanced.
Moreover, the long delay in resolving the case under preliminary investigation can not be justified on
the basis of the facts on record. The law (P.D. No. 911) prescribes a ten-day period for the
prosecutor to resolve a case under preliminary investigation by him from its termination. While we
agree with the respondent court that this period fixed by law is merely "directory," yet, on the other
hand, it can not be disregarded or ignored completely, with absolute impunity. It certainly can not be
assumed that the law has included a provision that is deliberately intended to become meaningless
and to be treated as a dead letter.
We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the
instant case to be violative of the constitutional right of the accused to due process. Substantial
adherence to the requirements of the law governing the conduct of preliminary investigation,
including substantial compliance with the time limitation prescribed by the law for the resolution of
the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the
fundamental law. Not only under the broad umbrella of the due process clause, but under the
constitutional guarantee of "speedy disposition" of cases as embodied in Section 16 of the Bill of
Rights (both in the 1973 and the 1987 Constitutions), the inordinate delay is violative of the
petitioner's constitutional rights. A delay of close to three (3) years can not be deemed reasonable or
justifiable in the light of the circumstance obtaining in the case at bar. We are not impressed by the
attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption
that "the delay may be due to a painstaking and gruelling scrutiny by the Tanodbayan as to whether
the evidence presented during the preliminary investigation merited prosecution of a former high
ranking government official." In the first place, such a statement suggests a double standard of
treatment, which must be emphatically rejected. Secondly, three out of the five charges against the
petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by
Republic Act No. 3019, which certainly did not involve complicated legal and factual issues
necessitating such "painstaking and gruelling scrutiny" as would justify a delay of almost three years
in terminating the preliminary investigation. The other two charges relating to alleged bribery and
alleged giving of unwarranted benefits to a relative, while presenting more substantial legal and
factual issues, certainly do not warrant or justify the period of three years, which it took the
Tanodbayan to resolve the case.
It has been suggested that the long delay in terminating the preliminary investigation should not be
deemed fatal, for even the complete absence of a preliminary investigation does not warrant
dismissal of the information. True-but the absence of a preliminary investigation can be corrected by
giving the accused such investigation. But an undue delay in the conduct of a preliminary
investigation can not be corrected, for until now, man has not yet invented a device for setting back
time.
After a careful review of the facts and circumstances of this case, we are constrained to hold that the
inordinate delay in terminating the preliminary investigation and filing the information in the instant
case is violative of the constitutionally guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him. Accordingly, the informations in Criminal Cases Nos.
10499, 10500, 10501, 10502 and 10503 should be dismissed. In view of the foregoing, we find it
unnecessary to rule on the other issues raised by petitioner.
Accordingly, the Court Resolved to give due course to the petition and to grant the same. The
informations in Criminal Cases Nos. 10499, 10500, 10501, 10502 and 10503, entitled "People of the
Philippines vs. Francisco S. Tatad" are hereby DISMISSED. The temporary restraining order issued
on October 22, 1985 is made permanent.
SO ORDERED.
Teehankee, C.J., Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,
Gancayco, Padilla, Bidin, Sarmiento, Cortes and Grio-Aquino, JJ., concur.

TATAD VS. SANDIGANBAYAN [159 SCRA 70; G.R. NOS. L-
72335-39; 21 MAR 1988]
Thursday, February 12, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: The complainant, Antonio de los Reyes, originally filed what he
termed "a report" with the Legal Panel of the Presidential Security
Command (PSC) on October 1974, containing charges of allegedviolations of
Rep. Act No. 3019 against then Secretary of Public Information Francisco S.
Tatad. The "report" was made to "sleep" inthe office of the PSC until the
end of 1979 when it became widely known that Secretary (then Minister)
Tatad had a falling out with President Marcos and had resigned from
the Cabinet. On December 12, 1979, the 1974 complaint was resurrected
in the form of a formalcomplaint filed with the Tanodbayan. The Tanodbayan
acted on thecomplaint on April 1, 1980 which was around two months after
petitioner Tatad's resignation was accepted by Pres. Marcos by referring
the complaint to the CIS, Presidential Security Command, for investigation
and report. On June 16, 1980, the CIS report was submitted to the
Tanodbayan, recommending the filing of charges for graft and corrupt
practices against former Minister Tatad and Antonio L. Cantero. By October
25, 1982, all affidavits and counter-affidavits were in the case was already
for disposition by the Tanodbayan. However, it was only on June 5, 1985
that a resolution was approved by the Tanodbayan. Five criminal
informations were filed with the Sandiganbayan on June 12, 1985, all
against petitioner Tatad alone. (1) Section 3, paragraph (e) of RA. 3019 for
giving D' Group, a private corporation controlled by his brother-in-law,
unwarranted benefits, advantage or preference in the discharge of his official
functions; (2) Violation of Section 3, paragraph (b) for receiving a check of
P125,000.00 from Roberto Vallar, President/General Manager of Amity
Trading Corporation as consideration for the release of a check of
P588,000.00 to said corporation for printing services rendered for the
Constitutional Convention Referendum in 1973; (3) Violation of Section 7 on
three (3) counts for his failure to file his Statement of Assets and Liabilities
for the calendar years 1973, 1976 and 1978. A motion to quash the
information was made alleging that the prosecution deprived accused of due
process of law and of the right to a speedy disposition of the cases filed
against him. It was denied hence the appeal.


Issue: Whether or not petitioner was deprived of his rights as an
accused.


Held: YES. Due process (Procedural) and right to speedy disposition of
trial were violated. Firstly, the complaint came to life, as it were, only after
petitioner Tatad had a falling out with President Marcos. Secondly, departing
from established procedures prescribed by law for preliminary investigation,
which require the submission of affidavits and counter-affidavits by the
complainant and the respondent and their witnesses, the Tanodbayan
referred the complaint to the Presidential Security Command for finding
investigation and report. The law (P.D. No. 911) prescribes a ten-day period
for the prosecutor to resolve a case under preliminary investigation by him
from its termination. While we agree with the respondent court that this
period fixed by law is merely "directory," yet, on the other hand, it can not
be disregarded or ignored completely, with absolute impunity. A delay of
close to three (3) years can not be deemed reasonable or justifiable in the
light of the circumstance obtaining in the case at bar.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION

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

PUNO, J .:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition
and mandamuswith application for temporary restraining order and preliminary injunction to: (1)
annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E.
de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from
conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case
or include Jessica Alfaro as one of the accused therein.
1

From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation
(NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb,
Michael Gatchalian, Antonio J. Lejano and six (6) other persons,
2
with the crime of Rape with
Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant
Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation
3
of those charged
with the rape and killing on June 30, 1991 of Carmela N. Vizconde;
4
her mother Estrellita Nicolas-
Vizconde,
5
and her sister Anne Marie Jennifer
6
in their home at Number 80 W. Vinzons, St., BF
Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated
May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission
of the crime;
7
(2) the sworn statements of two (2) of the former housemaids of the Webb family in
the persons of Nerissa E. Rosales and Mila S. Gaviola;
8
(3) the sworn-statement of Carlos
J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808
bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in
the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who
narrated the manner of how Biong investigated and tried to cover up the crime at bar;
9
(5) the sworn
statements of Belen Dometita and Teofilo Minoza, two of the Vizconde maids, and the sworn
statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy
reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds,
Estrellita twelve (12) and Jennifer nineteen (19).
10
The genital examination of Carmela confirmed the
presence of spermatozoa.
11

Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for
Production And Examination of Evidence and Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and
stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A.
Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7,
1991);
(d) Photographs of fingerprints lifted from the Vizconde residence taken during the
investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, et al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated
September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro
(other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police
agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by
Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their
respective positions and duties;
(j) Statements made by other persons in connection with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It
alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner
Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the
purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the
course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in
compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to
the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to
obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request
for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar
as he went to the United States on March 1, 1991 and returned to the Philippines on October 27,
1992.
12
His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina
Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco.
13
To further support his defense,
he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the
United States on said dates
14
and that he was issued by the State of California Driver's License No.
A8818707 on June 14, 1991.
15
Petitioner Webb likewise submitted the letter dated July 25, 1995 of
Mr. Robert Heafner, Legal Attache of the US Embassy, citing certain records tending to confirm,
among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United
Airlines Flight No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy"
Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements,
responses, and a motion to dismiss denying their complicity in the rape-killing of the
Vizcondes.
16
Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their
counter-affidavits though they were served with subpoena in their last known address.
17
In his sworn
statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3
o'clock in the morning of the following day, he was at the residence of his friends, Carlos and
Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his co-
petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold
respondents for trial" and recommending that an Information for rape with homicide be filed against
petitioners and their co-respondents,
18
On the same date, it filed the corresponding
Information
19
against petitioners and their co-accused with the Regional Trial Court of Paraaque.
The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by
respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing
judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11,
1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his
impartiality considering his employment with the NBI before his appointment to the bench. The case
was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of
arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily
surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners
Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions
before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely
abused their discretion when they failed to conduct a preliminary examination before issuing
warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding
that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel
denied them their constitutional right to due process during their preliminary investigation; and (4)
the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in
the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22,
1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They
hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995
sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair
as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn
statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule
112 provides that a preliminary investigation should determine " . . . whether there is a
sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional
Trial Court has been committed and that the respondent is probably guilty thereof, and
should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a
preliminary investigation, thus:
Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or
information for an offense cognizable by the Regional Trial Court shall be filed
without a preliminary investigation having been first conducted in the following
manner:
(a) The complaint shall state the known address of the respondent and be
accompanied by affidavits of the complainant and his witnesses as well as other
supporting documents, in such number of copies as there are respondents, plus two
(2) copies for the official file. The said affidavits shall be sworn to before any fiscal,
state prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, a notary public, who must certify that he personally
examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall
either dismiss the same if he finds no ground to continue with the inquiry, or issue a
subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and
other supporting documents. Within ten (10) days from receipt thereof, the
respondent shall submit counter-affidavits and other supporting documents. He shall
have the right to examine all other evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the
respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof
and copies thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten (10) day period, the investigating officer shall base
his resolution on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may
set a hearing to propound clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to be present but without
the right to examine or cross-examine. If the parties so desire, they may submit
questions to the investigating officer which the latter may propound to the parties or
witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating
officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus
adduced, the investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the
respondent for trial, he shall prepare the resolution and corresponding information. He shall
certify under oath that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses, that there is reasonable ground to believe that
a crime has been committed and that the accused is probably guilty thereof . . ."
The need to find probable cause is dictated by the Bill of Rights which protects "the right of the
people to be secure in their persons . . . against unreasonable searches and seizures of whatever
nature . . ."
20
An arrest without a probable cause is an unreasonable seizure of a person, and
violates the privacy of persons which ought not to be intruded by the State.
21
Probable cause to
warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law
reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person sought to be arrested.
22
Other
jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious
man.
24
The terms are legally synonymous and their reference is not to a person with training in the
law such as a prosecutor or a judge but to the average man on the street.
25
It ought to be
emphasized that in determining probable cause, the average man weighs facts and circumstances
without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil.
Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused
its discretion when it found probable cause against the petitioners. Petitioners belittle the
truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner
Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2)
sworn statement, thus:
26

xxx xxx xxx
To illustrate, the following are some examples of inconsistencies in the two sworn
statements of Alfaro:
On whether Alfaro knew Carmela before the incident in question
First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: "I met her in a party sometime in February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night.
She just said "on the following day I read in the newspaper that there
were three persons who were killed . . ."
Second Affidavit: "I peeped through the first door on the left. I saw
two bodies on top of the bed, bloodied, and in the floor, I saw Hubert
on top of Carmela."
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare buttocks, on top
of Carmela and pumping, her mouth gagged and she was moaning
and I saw tears on her eyes."
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: "by jumping over the fence, which was only a little
more than a meter high."
Second Affidavit: They "entered the gate which was already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate leading to the dirty
kitchen."
In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies
did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.:
27

xxx xxx xxx
As regards the admissibility of Alfaro's statements, granting for purposes of argument
merely that she is a co-conspirator, it is well to note that confessions of a co-
conspirator may be taken as evidence to show the probability of the co-conspirator's
participation in the commission of the crime (see People vs. Lumahang, 94 Phil.
1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by
direct evidence of prior agreement to commit the crime. Indeed, "only rarely would
such a prior agreement be demonstrable since, in the nature of things, criminal
undertakings are only rarely documented by agreements in writing. Thus, conspiracy
may be inferred from the conduct of the accused before, during and after the
commission of the crime, showing that the several accused had acted in concert or in
unison with each other, evincing a common purpose or design." (Angelo vs. Court of
Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA
699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two
sworn statements. InAngelo, the Court refused to discredit the testimony of a witness
accusing therein petitioner for the slaying of one Gaviano Samaniego even though
said witness failed to name Angelo in his affidavit which was executed five (5)
months earlier. Granting, the Court continued, that a part of the witness' testimony is
untrue, such circumstance is not sufficient to discredit the entire testimony of the
witness.
On August 7, 1995, another counsel for respondent Webb submitted his
memorandum suggesting that the instant complaint "should not be decided within the
month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the
whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses."
In said memorandum, counsel for respondent Webb calls for the application of the
maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's
statements, among others. This is untenable. As held in Angelo:
There is no rule of law which prohibits a court from crediting part of
the testimony of a witness as worthy of belief and from
simultaneously rejecting other parts which the court may find
incredible or dubious. The maxim falsus in uno, falsus in omnibus is
not a rule of law, let alone a general rule of law which is universally
applicable. It is not a legal presumption either. It is merely a latinism
describing the conclusion reached by a court in a particular case after
ascribing to the evidence such weight or lack of weight that the court
deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having
reservations when she first executed the first statement and held back vital
information due to her natural reaction of mistrust. This being so, the panel believes
that the inconsistencies in Alfaro's two sworn statements have been sufficiently
explained especially specially so where there is no showing that the inconsistencies
were deliberately made to distort the truth. Consequently, the probative value of
Alfaro's testimony deserves full faith and credit. As it has been often noted, ex
parte statements are generally incomplete because they are usually executed when
the affiant's state of mind does not give her sufficient and fair opportunity to
comprehend the import of her statement and to narrate in full the incidents which
transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute that a crime has been
committed and what is clear before us is that the totality of the evidence submitted by
the complainant indicate a prima faciecase that respondents conspired in the
perpetration of the imputed offense.
We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of
counsel
28
and consists of six (6) pages, in single space reciting in rich details how the crime was
planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting
sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J.
Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo
Biong. The Panel assayed their statements as follows:
29

xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of the Webb family, on June
29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home
inside his room with two male visitors. She knew it because she and her co-
housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It
was the last time she saw Hubert and was later told by then Congressman Webb that
Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served
as a laundry woman, claims, aside from corroborating the statement of Nerissa
Rosales, that on June 30, 1991, she woke up at around 4:00 in the morning and as
what she used to do, she entered the rooms of the Webbs to get their clothes to be
washed. As a matter of fact, in that early morning, she entered Hubert's room and
saw Hubert, who was only wearing his pants, already awake and smoking while he
was sitting on his bed. She picked up Hubert's scattered clothes and brought them
together with the clothes of the other members of the family to the laundry area. After
taking her breakfast, she began washing the clothes of the Webbs. As she was
washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After
she finished the laundry, she went to the servant's quarters. But feeling uneasy, she
decided to go up to the stockroom near Hubert's room to see what he was doing. In
the said stockroom, there is a small door going to Hubert's room and in that door
there is a small opening where she used to see Hubert and his friends sniffing on
something. She observed Hubert was quite irritated, uneasy, and walked to and from
inside his room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and
came back at around 4:00 in the same afternoon and went inside his room using the
secret door of the house. It was the last time that she saw Hubert until she left the
Webb family.
On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00
in the morning, he was at the Ninoy Aquino International Airport as he was then
scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New
York. At the airport's lobby, he saw then Congressman Freddie Webb with a male
companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko
ang anak ko papuntang Florida." He knew Freddie Webb because he often watched
him then in a television show "Chicks to Chicks." He observed that the man whom
Freddie Webb referred to as his son, was of the same height as Freddie. The son
referred to has fair complexion with no distinguishing marks on his face. He (son of
Webb) was then wearing a striped white jacket. When he and his children were
already inside the plane, he did not see Freddie anymore, but he noticed his son was
seated at the front portion of the economy class. He never noticed Freddie Webb's
son upon their arrival in San Francisco. He claims that, while watching the television
program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her
lawyer being interviewed, and when she described Hubert as "moreno" and small
built, with a height of five feet and seven inches tall, and who was the one who left for
United States on March 9, 1991, he nurtured doubts because such description does
not fit the physical traits of the son of Freddie, who left with him for United States on
the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with
him for almost three (3) years and in fact, she had a child with him who is now four
(4) years old. Their relationship started in February, 1991 until she broke up with him
in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong
invited her to play mahjong at the canteen of a certain Aling Glo located at the back
of the Paraaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991, the radio operator of the
Paraaque police told Biong that he has a phone call. Before Biong went to the radio
room, she was instructed to take him over and after somebody won the game, she
followed Biong at the radio room where she overheard him uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o
sige." When he put the phone down, Biong told her, "Mayroon lang akong
rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen
apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived
with a male passenger sitting at the backseat and parked near the canteen. After it
made some signals by blinking its headlight, Biong rode thereat at the front seat
beside the driver and then, they left. She was not able to recognize the male
passenger because the window of the taxi was tinted. Biong came back at around
7:00 of the same morning and when he arrived, he immediately washed his hands
and face, and took his handkerchief from his pocket which he threw at the trash can.
She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy
tae." She inquired what happened in BF Homes and he replied, "Putang inang mga
batang iyon, pinahirapan nila ako."
Biong later invited her for breakfast, but they first went to his office where she
observed him doing something in his steel cabinet while he appeared to be uneasy.
Moments later, Galvan, another policeman of Paraaque, arrived and said, "Oy
Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo
susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to
accompany him and with whom she asked permission to go with them. Before they
proceeded to the place where the killings happened, she asked Biong if he knew the
exact address and the latter immediately responded, "Alam ko na yon." She was
surprised because Galvan never told him the place of the incident.
As soon as they arrived at the Vizconde's residence, Biong instructed the
housemaids to contact the victim's relatives, while the security guard fetched the
barangay chairman and the president of the Homeowners Association. When all
these persons were already in the house, Biong started recording the wounds of the
victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry
box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out
of the room and proceeded to the dining area. On top of the dining table, she saw the
scattered contents of a shoulder bag. Moments later, Biong came out from the room
and proceeded to the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened. Biong noticed a
stone in front of the broken glass of the door and requested Capt. Bartolome to go
inside the servant's quarters as he doubted the housemaids' claim that they heard
nothing unusual. Using the handle of his gun, Biong broke the remaining glass of the
door panel. Bartolome then came out of the room and told Biong that he can hear the
sound of the glass being broken. At the garage, Biong also noticed same marks on
the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together with
the Vizconde housemaids. When Biong was preparing to take a bath, she saw him
remove from his pocket the things she also saw from Vizconde's residence, to wit:
calling cards, driver's license, ATM card, a crossed check worth P80,000.00,
earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box
inside the room of the Vizcondes. These jewelry items were later pawned by Biong
for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue,
Paraaque. The next day, she saw Biong took from his locker at the Paraaque
Police Station an imported brown leather jacket, which the latter claimed to have
been given to him by the person who called him up in the early morning of June 30,
1991.
Since then, Biong has been wearing said jacket until they broke up sometime in
1993. She observed that Biong seemed not interested in pursuing the investigation of
the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian
and brought him to the Paraaque Police Station, she was surprised that Biong
halted the investigation when Gatchalian was profusely sweating while being
interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called
up and instructed Biong to bring Gatchalian to him (Colonel Pureza) and that was the
last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of
petitioners. It ruled:
30

xxx xxx xxx
The voluminous number of exhibits submitted by respondent Webb to support his
defense of denial and alibi notwithstanding, the panel, after a careful and thorough
evaluation of the records, believes that they cannot outweigh the evidence submitted
by the complainant. Alibi cannot prevail over the positive identification made by a
prosecution witness. Verily, alibi deserves scant consideration in the face of positive
identification especially so where the claim of alibi is supported mainly by friends and
relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA
316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot be given greater evidentiary
weight than the declaration of a credible witness who testified on affirmative matters
(People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and
becomes even more weaker when arrayed against the positive identification by the
witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he
claimed was with him watching video tapes at the Syyap residence. Other than
claiming that he "was not and could not have been at or near the area of the
Vizconde residence at the time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance the acceptability of his alibi
in the form of documents tending to show that he was thousands of miles away when
the incident occurred. We have carefully deliberated and argued on the evidence
submitted by respondent Webb in support of his absence from the country since
March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of
the offense charged. The material dates in this case are June 29 and 30, 1991. While
respondent Webb may have submitted proof tending to show that he was issued a
California driver's license on June 14, 1991, there is no showing that he could not
have been in the country on the dates above mentioned. Neither do we find merit in
the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in
California in view of his positive identification by Alfaro and the two (2) househelps of
the Webb family who testified that he was here in the country on said dates.
Additionally, the issuance of receipt evidencing the purchase of a bicycle in California
is no conclusive proof that the name appearing thereon was the actual buyer of the
merchandise.
Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the
DOJ Panel did not gravely abuse its discretion when it found probable cause against the
petitioners. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects. Probable
cause need not be based on clear and convincing evidence of guilt, neither on evidence
establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States,
31
while probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not
a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable
cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to
call the NBI witnesses for clarificatory questions. The decision to call witnesses for
clarificatory questions is addressed to the sound discretion of the investigator and the
investigator alone. If the evidence on hand already yields a probable cause, the investigator
need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of
guilt and should be determined in a summary manner. Preliminary investigation is not a part
of trial and it is only in a trial where an accused can demand the full exercise of his rights,
such as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced
to establish probable cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent Judge Raul de Leon and, later,
respondent Judge Amelita Tolentino issued warrants of arrest against them without
conducting the required preliminary examination. Petitioners support their stance by
highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours;
(2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial
court were incomplete and insufficient from which to base a finding of probable cause; and
(4) that even Gerardo Biong who was included in the Information as a mere accessory had a
"NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to
conduct a "searching examination of witnesses and evaluation of the documents" on the part
of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no
less than the fundamental law of the land. Section 2 of Article III of the Constitution provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce and particularly describing the place to be searched and the persons or
things to be seized.
The aforequoted provision deals with the requirements of probable cause both with respect
to issuance of warrants of arrest or search warrants. The similarities and differences of their
requirements ought to be educational. Some of them are pointed out by Professors LaFave
and Israel, thus:
32
"It is generally assumed that the same quantum of evidence is required
whether one is concerned with probable cause to arrest or probable cause to search. But
each requires a showing of probabilities as to somewhat different facts and circumstances,
and thus one can exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in fact seizable by virtue of
being connected with criminal activity, and that the items will be found in the place to be
searched. It is not also necessary that a particular person be implicated. By comparison, in
arrest cases there must be probable cause that a crime has been committed and that the
person to be arrested committed it, which of course can exist without any showing that
evidence of the crime will be found at premises under that person's control." Worthy to note,
our Rules of Court do not provide for a similar procedure to be followed in the issuance of
warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule
112 simply provides that "upon filing of an information, the Regional Trial Court may issue a
warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing
search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but
upon probable cause in connection with one specific offense to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place
to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. The judge must, before issuing the
warrant, personally examine in the form of searching questions and answers, in
writing and under oath the complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn statements together
with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of
the facts upon which the application is based, or that there is probable cause to
believe that they exist, he must issue the warrant, which must be substantially in the
form prescribed by these Rules.
We discussed the difference in the Procedure of issuing warrants of arrest and search
warrants in Soliven vs. Makasiar,
33
thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.
The addition of the word "personally" after the word "determined" and the deletion of
the grant of authority by the 1973 Constitution to issue warrants to "other responsible
officers as may be authorized by law," has apparently convinced petitioner Beltran
that the Constitution now requires the judge to personally examine the complainant
and his witnesses in his determination of probable cause for the issuance of warrants
of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence of probable cause. In satisfying
himself of the existence of probable cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the complainant and his witnesses.
Following established doctrine and procedure, he shall: (1) personally evaluate the
report and the documents submitted by the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he
finds no probable cause, he may disregard the fiscal's report and require the
submission of supporting affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with
the preliminary examination and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before their courts.
Clearly then, the Constitution, the Rules of Court, and our case law
34
repudiate the
submission of petitioners that respondent judges should have conducted "searching
examination of witnesses" before issuing warrants of arrest against them. They also reject
petitioners' contention that a judge must first issue an order of arrest before issuing a warrant
of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2)
sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer
35
as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital
and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges
that there is probable cause to issue warrants of arrest against petitioners. Again, we stress
that before issuing warrants of arrest, judges merely determinepersonally the probability, not
the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally review the initial
determination of the prosecutor finding a probable cause to see if it is supported
by substantial evidence. The sufficiency of the review process cannot be measured by
merely counting minutes and hours. The fact that it took the respondent judges a few hours
to review and affirm the probable cause determination of the DOJ Panel does not mean they
made no personal evaluation of the evidence attached to the records of the case.
36

Petitioners' reliance on the case of Allado vs. Diokno
37
is misplaced. Our Allado ruling is
predicated on the utter failure of the evidence to show the existence of probable cause. Not
even the corpus delicti of the crime was established by the evidence of the prosecution in
that case. Given the clear insufficiency of the evidence on record, we stressed the necessity
for the trial judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of probable
cause before issuing warrants of arrest against the accused. The case at bar, however, rests
on a different factual setting. As priorly discussed, the various types of evidence extant in the
records of the case provide substantial basis for a finding of probable cause against the
petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of
the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by
sworn statements of their former maids. It was therefore unnecessary for the respondent
judges to take the further step of examining ex parte the complainant and their witnesses
with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and
violation of their right to an impartial investigation. They decry their alleged hasty and
malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial
publicity that attended their preliminary investigation.
We reject these contentions. The records will show that the DOJ Panel did not conduct the
preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove
lack of probable cause against them. The fairness of this opportunity is well stressed in the
Consolidated Comment of the Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners were afforded all the
opportunities to be heard. Petitioner Webb actively participated in the preliminary
investigation by appearing in the initial hearing held on June 30, 1995 and in the
second hearing on July 14, 1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply
to the compliance and Comment/Manifestation to the Motion for Production and
Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and
Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14,
1995 (pp. 6-7, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous
letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel
requesting the latter to furnish him a copy of the reports prepared by the FBI
concerning the petitioner's whereabouts during the material period (Annexes "L", "L-
1" and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not
satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to
Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari,
Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in
order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro
for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition
after Mercader produced and submitted to the DOJ Panel the first sworn statement of
Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and
inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a
copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July
28, 1995) marked as Annex "F."
It must also be pointed out that despite the declaration by the DOJ Panel that the
preliminary investigation was to be terminated after the hearing held on July 14,
1995, the panel continued to conduct further proceedings, e.g. comparison of the
photo-copies of the submitted documents with the originals on July 17, 1995. (p. 7,
Petition) The panel even entertained the "Response" submitted by accused Miguel
Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even
announced that any party may submit additional evidence before the resolution of the
case. (p. 8, Petition) From the time the panel declared the termination of the
preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before
the resolution was promulgated, and the information eventually filed in the Regional
Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of
Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall
resolve the case within ten (10) days from the termination of the preliminary
investigation. The DOJ Panel precisely allowed the parties to adduce more evidence
in their behalf and for the panel to study the evidence submitted more fully. This
directly disputes the allegation of the petitioners that the resolution was done with
indecent haste in violation of the rights of the petitioners. During the period of twenty-
seven (27) days, the petitioners were free to adduce and present additional evidence
before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during the
conduct of the preliminary investigation simply because the DOJ Panel promulgated
the adverse resolution and filed the Information in court against them.
Petitioners cannot also assail as premature the filing of the Information in court against them
for rape with homicide on the ground that they still have the right to appeal the adverse
resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in
accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We
quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a
resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable causeexcept upon showing of manifest error or grave
abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of
discretion, no appeal shall be entertained where the appellant had already been
arraigned. If the appellant is arraigned during the pendency of the appeal, said
appeal shall be dismissed motu propio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause,
however, shall not hold the filing of the information in court.
Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15)
days from receipt of the questioned resolution by the party or his counsel. The period
shall be interrupted only by the filing of a motion for reconsideration within ten (10)
days from receipt of the resolution and shall continue to run from the time the
resolution denying the motion shall have been received by the movant or his counsel.
(Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court
after the consummation of the preliminary investigation even if the accused can still exercise
the right to seek a review of the prosecutor's recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering
her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion
of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program
And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10,
which provides:
xxx xxx xxx
Sec. 10. State Witness. Any person who has participated in the commission of a
crime and desires to a witness for the State, can apply and, if qualified as determined
in this Act and by the Department, shall be admitted into the Program whenever the
following circumstances are present:
(a) the offense in which his testimony will be used is a grave felony as defined under
the R.P.C. or its equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the
offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in
order that he may be a State Witness pursuant to Sections 9 and 10 of Rule 119 of
the Revised Rules of Court may upon his petition be admitted to the Program if he
complies with the other requirements of this Act. Nothing in this Act shall prevent the
discharge of an accused so that he can be used as a Witness under Rule 119 of the
Revised Rules of Court.
Upon qualification of Alfaro to the program, Section 12 of the said law mandates her non-
inclusion in the criminal Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the Program. The certification
of admission into the Program by the Department shall be given full faith and credit
by the provincial or city prosecutor who is required NOT TO INCLUDE THE
WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included
therein, to petition the court for his discharge in order that he can be utilized as a
State Witness. The court shall order the discharge and exclusion of the said accused
from the information.
Admission into the Program shall entitle such State Witness to immunity from
criminal prosecution for the offense or offenses in which his testimony will be given or
used and all the rights and benefits provided under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute ". . . an intrusion into judicial prerogative for it is only the court which has the
power under the Rules on Criminal Procedure to discharge an accused as a state witness."
The argument is based on Section 9, Rule 119
38
which gives the court the prerogative to
approve the discharge of an accused to be a state witness. Petitioner's argument lacks
appeal for it lies on the faulty assumption that the decision whom to prosecute is a judicial
function, the sole prerogative of courts and beyond executive and legislative interference. In
truth, the prosecution of crimes appertains to the executive department of government whose
principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power to execute our laws is the right to prosecute their violators. The
right to prosecute vests the prosecutor with a wide range of discretion the discretion of
whether, what and whom to charge, the exercise of which depends on a smorgasbord of
factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the program and who shall be granted
immunity from prosecution.
39
Section 9 of Rule 119 does not support the proposition that the
power to choose who shall be a state witness is an inherent judicial prerogative. Under this
provision, the court, is given the power to discharge a state witness only because it has
already acquired jurisdiction over the crime and the accused. The discharge of an accused is
part of the exercise of jurisdiction but is not a recognition of an inherent judicial function.
Moreover, the Rules of Court have never been interpreted to be beyond change by
legislation designed to improve the administration of our justice system. R.A. No. 6981 is one
of the much sought penal reform laws to help government in its uphill fight against crime, one
certain cause of which is the reticence of witnesses to testify. The rationale for the law is well
put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic
dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal
complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed
for insufficiency and/or lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses and granting them certain
rights and benefits to ensure their appearance in investigative bodies/courts."
40
Petitioner
Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings during
their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it
urges an expansive reading of the rights of persons under preliminary investigation it
deserves serious consideration. To start with, our Rules on Criminal Procedure do not
expressly provide for discovery proceedings during the preliminary investigation stage of a
criminal proceeding.
41
Sections 10 and 11 of Rule 117 do provide an accused the right to
move for a bill of particulars and for production or inspection of material evidence in
possession of the prosecution.
42
But these provisions apply after the filing of the Complaint
or Information in court and the rights are accorded to the accused to assist them to make an
intelligent plea at arraignment and to prepare for trial.
43

This failure to provide discovery procedure during preliminary investigation does not,
however, negate its use by a person under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary investigation is not too early a
stage to guard against any significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary investigation is to
determine the probability that the suspect committed a crime. We hold that the finding of a
probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or
diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for
they are charged with the crime of rape with homicide, a non-bailable offense when the
evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary
investigation. Instead, Rule 112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and impartial.
44
As this Court emphasized
in Rolito Go vs. Court of Appeals,
45
"the right to have a preliminary investigation conducted
before being bound over for trial for a criminal offense, and hence formally at risk of
incarceration or some other penalty, is not a mere formal or technical right; it is a substantive
right." A preliminary investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from any material
damage. We uphold the legal basis of the right of petitioners to demand from their
prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the
FBI Report during their preliminary investigation considering their exculpatory character, and
hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on
the constitutional protection of due process which we rule to be operational even during the
preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule
112 which requires during the preliminary investigation the filing of a sworn complaint, which
shall ". . . state the known address of the respondent and be accompanied by affidavits of
the complainant and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened precedents from other
jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme
Court held that "suppression of evidence favorable to an accused upon request violates due
process where the evidence is material to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which
laid down the proposition that a prosecutor's intentional use of perjured testimony to procure
conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty
to disclose to the defense exculpatory evidence in its possession.
48
The rationale is well put
by Justice Brennan in Brady
49
"society wins not only when the guilty are convicted but
when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of
poker where surprises can be sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their
favor, we are not prepared to rule that the initial non-production of the original sworn
statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that
the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995,
upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn
statement. It explained it cannot produce the original as it had been lost. Fortunately,
petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo
Mercader in the course of the proceedings in Civil Case No. 951099.
50
As petitioners admit,
the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of
their evidence.
51
Petitioners thus had the fair chance to explain to the DOJ Panel then still
conducting their preliminary investigation the exculpatory aspects of this sworn statement.
Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them
despite the alleged material discrepancies between the first and second sworn statements of
Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck
down as done with grave abuse of discretion.
52
On the other hand, the FBI Report while
corroborative of the alibi of petitioner Webb cannot by itself reverse the probable cause
finding of the DOJ Panel in light of the totality of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to
the prejudicial publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early
invocation considering the substantial risk to their liberty while undergoing a preliminary
investigation.
In floating this issue, petitioners touch on some of the most problematic areas in
constitutional law where the conflicting demands of freedom of speech and of the press, the
public's right to information, and an accused's right to a fair and impartial trial collide and
compete for prioritization. The process of pinpointing where the balance should be struck has
divided men of learning as the balance keeps moving either on the side of liberty or on the
side of order as the tumult of the time and the welfare of the people dictate. The dance of
balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high
velocity of publicity that attended the preliminary investigation of the case at bar. Our daily
diet of facts and fiction about the case continues unabated even today. Commentators still
bombard the public with views not too many of which are sober and sublime. Indeed, even
the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and
their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the
press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia,
53
it was
wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the criminal trial in Anglo-American
justice demonstrates conclusively that at the time this Nation's organic laws were
adopted, criminal trials both here and in England had long been presumptively open,
thus giving assurance that the proceedings were conducted fairly to all concerned
and discouraging perjury, the misconduct of participants, or decisions based on
secret bias or partiality. In addition, the significant community therapeutic value of
public trials was recognized: when a shocking crime occurs, a community reaction of
outrage and public protest often follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an outlet for community concern,
hostility, and emotion. To work effectively, it is important that society's criminal
process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14,
99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe
such process. From this unbroken, uncontradicted history, supported by reasons as
valid today as in centuries past, it must be concluded that a presumption of openness
inheres in the very nature of a criminal trial under this Nation's system of
justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication
on matters relating to the functioning of government. In guaranteeing freedoms such
as those of speech and press, the First Amendment can be read as protecting the
right of everyone to attend trials so as to give meaning to those explicit guarantees;
the First Amendment right to receive information and ideas means, in the context of
trials, that the guarantees of speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had long been open to the public at
the time the First Amendment was adopted. Moreover, the right of assembly is also
relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which
it was deliberately linked by
the draftsmen. A trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their presence
historically has been thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees
to the public the right to attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as indispensable to the enjoyment of
enumerated rights. The right to attend criminal trials is implicit in the guarantees of
the First Amendment; without the freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom of speech and of the press
could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus,
in Martelino, et al. vs. Alejandro, et al.,
54
we held that to warrant a finding of prejudicial
publicity there must be allegation and proof that the judges have been unduly influenced, not
simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in
the records that will prove that the tone and content, of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of
the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the
DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State
Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their
26-page Resolution carries no indubitable indicia of bias for it does not appear that they
considered any extra-record evidence except evidence properly adduced by the parties. The
length of time the investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as petitioners
will now have to undergo trial on the merits. We stress that probable cause is not
synonymous with guilt and while the light of publicity may be a good disinfectant of
unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without
imposing on the trial judge the difficult task of supervising every specie of speech relating to
the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile
criminal cases to control publicity prejudicial to the fair administration of justice.
55
The Court
reminds judges that our ability to dispense impartial justice is an issue in every trial and in
every criminal prosecution, the judiciary always stands as a silent accused. More than
convicting the guilty and acquitting the innocent, the business of the judiciary is to assure
fulfillment of the promise that justice shall be done and is done and that is the only way for
the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of
discretion on the part of the respondents. Costs against petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.
WEBB VS. DE LEON
EXECUTIVE POWER.

- This is the Hubert Webb- Vizconde Massacre case. Hubert is co-accused in the crime of Rape with Homicide.
- Jessica Alfaro is the star witness.
- Alfaro qualified under the Witness Protection Program, RA 6981. Thus she was not included in the Complaint or
Information
- Hubert contends that the DOJ failed to include Alfaro in the information for her alleged conspiratorial
participation in the said crime.
- Hubert challenges the law, RA 6981 claiming that it constitutes an intrusion into the judicial prerogative for it
is only the court which has the power to discharge an accused as a state witness, (under the Rules on
CrimPro).

ISSUE: Can the DOJ (the executive branch) approve the discharge of a state witness

SC: VALID.
The PROSECUTION OF CRIMES pertains to the executive department, whose principal power and responsibility is to
see to it that our laws are faithfully executed. A necessary component of this power to execute our laws is THE
RIGHT TO PROSECUTE THEIR VIOLATORS. The right to prosecute vests the prosecutor with a WIDE RANGE OF
DISCRETION, and the discretion of whether, what and whom to charge, the exercise of which DEPENDS ON A
SMORGASBOARD OF FACTORS WHICH ARE BEST APPRECIATED BY PROSECUTORS.

The law is valid in vesting the DOJ with the power to determine who can qualify as a witness and who shall be
granted immunity from prosecution.

Further, the Rules on CrimPro apply only because the courts have already acquired jurisdiction over the crime and
the accused. The discharge of an accused to be a state witness is NOT AN INHERENT JUDICIAL PREROGATIVE.
Courts do so only as part of the exercise of their jurisdiction.

Further, the Rules of CrimPro are not beyond change by legislation designed to improve the administration of our
justice system. For a more effective administration of criminal justice, there was a necessity to pass the law
protecting a witness and granting her certain rights and benefits to ensure their appearance in court.

Thus, Huberts challenge to the validity of RA 6981 cannot succeed.


Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 86899-903 May 15, 1989
GOVERNOR AMOR D. DELOSO, petitioner,
vs.
THE SANDIGANBAYAN, THE PEOPLE OF THE PHILIPPINES, and THE SECRETARY OF THE
DEPARTMENT OF LOCAL GOVERNMENT AND COMMUNITY DEVELOPMENT, respondents.
Angara, Abello, Concepcion, Regala & Cruz for petitioner.
The Office of the Solicitor General for public respondent.

GUTIERREZ, JR., J .:
This petition for certiorari seeks to annul and set aside the resolution of the Sandiganbayan dated
February 10, 1989 in Criminal Cases Nos. 9200 to 9204 which preventively suspended petitioner
Amor D. Deloso (accused in the criminal cases) pendente lite from his position as provincial
governor of Zambales and from any office that he may be holding.
The petitioner was the duly elected mayor of Botolan, Zambales in the local elections of November
1971. While he occupied the position of mayor, a certain Juan Villanueva filed a letter complaint with
the Tanodbayan accusing him of having committed acts in violation of the Anti-Graft Law (Republic
Act 3019) in relation to the award of licenses to operate fish corrals in the municipal waters of
Botolan, Zambales during the period 1976 to 1978 and the issuance of five (5) tractors of the
municipality to certain individuals allegedly without any agreement as to the payment of rentals.
The complaint with respect to the award of licenses to operate fish corrals was dismissed. As
regards the other complaint, the Tanodbayan filed five (5) separate informations, all dated May 30,
1984 accusing the petitioner of violation of Section 3(e), of the Anti-Graft Law with the
Sandiganbayan. The cases were docketed as Criminal Cases Nos. 9200-9204. Except for the
names of the individuals who were allegedly favored by the petitioner and the dates when these
favors were made, the informations uniformly alleged:
That on or about 3 February 1978 in the Municipality of Botolan, Zambales,
Philippines and within the jurisdiction of this Honorable Court, accused AMOR D.
DELOSO, a public officer being then the Municipal Mayor of the Municipality of
Botolan, Zambales, taking advantage of his public and official position, did then and
there wilfully, unlawfully and feloniously give unwarranted benefits to Daniel Ferrer
thru manifest partiality and evident bad faith in the discharge of his official functions
by issuing to him a tractor purchased by the Municipality of Botolan thru a loan
financed by the Land Bank of the Philippines for lease to local farmers at reasonable
cost, without any agreement as to the payment of rentals for the use of tractor by
Daniel Ferrer thereby causing undue injury to the Municipality of Botolan. (Rollo, p.
30)
A motion to quash the informations was denied by the Sandiganbayan. A motion for reconsideration
was likewise denied.
The petitioner then filed a petition before us (G.R. Nos. 69963-67) to annul the Sandiganbayan's
resolutions denying the petitioner's motion to quash and motion for reconsideration.
In a resolution dated July 28,1988, we dismissed the petition for lack of merit. The resolution
became final and executory on October 17, 1988.
The petitioner was arraigned on January 6, 1989 before the Sandiganbayan. He pleaded NOT
GUILTY to the charges against him.
The Office of the Special Prosecutor then filed a motion to suspend the petitioner pendente
lite pursuant to Section 13 of Republic Act No. 3019.
On February 10, 1989, the Sandiganbayan issued the questioned resolution, the dispositive portion
of which reads:
IN VIEW OF THE FOREGOING, the accused Amor D. Deloso is
suspended pendente lite from his position as Provincial Governor of Zambales and
from any other office that he may now be holding.
Let a copy of this Resolution be furnished to the Secretary of the Department of
Local Government for implementation and for him to inform this Court of the action
he has taken thereon within five (5) days from receipt hereof. (Rollo, p. 94)
The day following his receipt of the resolution, or on February 16, 1989, the petitioner filed the
instant petition.
On February 17, 1989, the petitioner filed an urgent motion with the Sandiganbayan requesting that
the execution and implementation of the February 10, 1989 suspension order be held in abeyance
pending determination of the merits of the petition. The motion was denied prompting the petitioner
to ask the Court for an earlier setting of the trial of the cases which was denied in an order dated
February 22, 1989.
In denying the plea for an earlier schedule of the trial of the cases, the Sandiganbayan said:
The Court notes that these cases have already been set for May 15, 16 and 17 as
well as June 5, 6 and 7, 1989 at 8:00 o'clock in the morning and 2:00 o'clock in the
afternoon. While the accused claims that this period is ordinately far, the Court must
also be contend with its own calendar. It will be easy enough for this Court to give the
accused an earlier setting. However, such a setting will be best a pretence since
other cases have already been set between now and May 15 where in many
instances the accused themselves are also under suspension by reason of the same
provision of law. Under the above circumstances, no other earlier setting can be
granted to the accused without making that setting merely a sham since other cases
which have been set earlier will naturally have a right to expect priority. (Rollo, p.
135)
In view of this development, the petitioner filed an urgent supplemental application for temporary
restraining order and/ or writ of preliminary injunction to enjoin the Sandiganbayan, the Secretary of
Local Government and Community Development, and all those acting in their behalf from executing
and implementing the February 10, 1989 resolution of the Sandiganbayan.
We treat the respondent's Comment as an answer and decide this petition on its merits.
The petitioner questions the constitutionality of the suspension provision of Section 13 of the Anti-
Graft Law (Republic Act No. 3019).
This same issue was raised in the case of Layno v. Sandiganbayan (136 SCRA 536 [1985]). After
considering the facts as well as the merits of the case, the Court ruled that the petition need not be
resolved through a ruling on the validity of the provision on mandatory suspension. We instead,
decided the case in relation to the principles of due process and equal protection of the law.
Faced with similar factual circumstances in the instant petition, we apply anew the ruling in
the Layno case and decide the instant petition in relation to the principles of due process and equal
protection without having to declare categorically whether or not the suspension provision of
Republic Act 3019 should be struck down as invalid. We limit ourselves to ascertaining whether or
not, under the circumstances of this case, an indefinite suspension becomes unreasonable.
As early as 1974, then Justice Fred Ruiz Castro expressed in a separate opinion the mischief which
would result if the Court allows the indefinite suspension of elective local officials charged with
violations of the Anti Graft and Corrupt Practices Act:
The central point of Senator Padilla's position is that the penalty of suspension is
definitely much lower than that of removal and it would be incongruous if we give to
the penalty of suspension more serious consequences than are attached to the
penalty of removal. Senator Padilla opted for the immediate restoration of the
respondent to his position once the favorable result of the election is known.
Parenthetically, it must be stated that while there was an exchange of views between
Senator Ganzon and Senator Manglapus on the Anti-Graft Law, the exchange was
limited to the matter of the commencement of the investigation of the charges, which,
according to Senator Ganzon, cannot be made within one year prior to an election.
And so it is that, on the basis of my discussion above, I bewail the apathy of the
majority of the Court toward efforts to seek enlightenment on legal issues of grave
importance from the deliberations of Congress upon the said issues. It is not quite
becoming of judicial magistrates to shunt aside a suggestion that the interplay of
legal provisions be carefully studied and analyzed.
In the deliberations of the Court on this case, I suggested that we examine the
possible delimiting effects of the provisions of the first sentence of section 5 of the
Decentralization Act on the provisions of the Anti-Graft and Corrupt Practices Act
insofar as the suspension from office of an elective local official is concerned. In no
uncertain words did I focus the attention of the Court on the serious ever-present
possibility of harassment of an elective local official taking the form of the filing of a
valid information against him under the provisions of the Anti-Graft and Corrupt
Practices Act after his exoneration in an administrative case involving the same
offense.
I also pointedly brought out the matter of the notorious delay in the courts of justice
which could effectively frustrate an elected or re-elected local official from
discharging the duties of his office for the entire term of his office, and thus nullify the
will of the people who elected him. I likewise asked the Court to consider the
situation where an elective local official runs for the National Assembly and is elected
despite the fact that he is under suspension under the authority of the provisions of
the Anti-Graft and Corrupt Practices Act, and sought a definitive answer to the
question. What then would happen to the suspension meted out to him since it is the
National Assembly that determines whether he should assume and continue in
office?
All these and other germane questions were brushed aside by the majority of the
Court with the sweeping statement that the provisions of the Decentralization Act
apply only to administrative cases. It is the ex cathedra attitude, this kind of slothful
thinking, that I find abhorrent and therefore deplore " (Oliveros v. Villaluz, 57 SCRA
163, 197-198 [1974])
Petitioner Deloso was elected governor of the Province of Zambales in the January 18, 1988 local
elections. The regular term of a governor is only 3 years although he shall serve until noon of June
30, 1992 by special provision of the Constitution. (Section 8, Article X, Section 2, Article XVIII,
Constitution). He was, however, ordered suspended from performing his duties as governor by the
Sandiganbayan pursuant to Section 13 of Republic Act No. 3019 by virtue of the criminal charges
filed against him. The order of suspension does not have a definite period so that the petitioner may
be suspended for the rest of his term of office unless his case is terminated sooner. An extended
suspension is a distinct possibility considering that the Sandiganbayan denied the petitioner's plea
for earlier dates of trial of his cases on the ground that there are other cases set earlier which have a
right to expect priority.
Under these circumstances the preventive suspension which initially may be justified becomes
unreasonable thus raising a due process question. As we ruled in Layno, Sr. v. Sandiganbayan,
(supra):
Petitioner is a duly elected municipal mayor of Lianga, Surigao del Sur. His term of
office does not expire until 1986. Were it not for this information and the suspension
decreed by the Sandiganbayan according to the Anti-Graft and Corrupt Practices
Act, he would have been all this while in the full discharge of his functions as such
municipal mayor. He was elected precisely to do so. As of October 26, 1983, he has
been unable to. It is a basic assumption of the electoral process implicit in the right of
suffrage that the people are entitled to the services of elective officials of their choice.
For misfeasance or malfeasance, any of them could, of course, be proceeded
against administratively or, as in this instance, criminally. In either case, his
culpability must be established. Moreover, if there be a criminal action, he is entitled
to the constitutional presumption of innocence. A preventive suspension may be
justified. Its continuance, however, for an unreasonable length of time raises a due
process question. For even if thereafter he were acquitted, in the meanwhile his right
to hold office had been nullified. Clearly, there would be in such a case an injustice
suffered by him. Nor is he the only victim. There is injustice inflicted likewise on the
people of Lianga. They were deprived of the services of the man they had elected to
serve as mayor. In that sense, to paraphrase Justice Cardozo, the protracted
continuance of this preventive suspension had outrun the bounds of reason and
resulted in sheer oppression. A denial of due process is thus quite manifest. It is to
avoid such an unconstitutional application that the order of suspension should be
lifted.
Moreover, in the earlier case of Garcia v. The Executive Secretary, (6 SCRA 1 [1962]) we ruled on
the issue as to whether the preventive suspension beyond the maximum period of 60 days, provided
in Section 35 of the Civil Service Act of 1959 (Republic Act 2260) is illegal and void. Paulino Garcia,
the petitioner in the cited case was the Chairman of the National Science Development Board
appointed by the President of the Philippines. He was charged with electioneering and dishonesty in
office. Pending investigation of the administrative charges against him, he was suspended by the
Executive Secretary by authority of the President. In view of his indefinite suspension, he filed a
petition praying in effect that the 60-day period prescribed in the Civil Service Law for preventive
suspension having already expired, he be reinstated in the service pursuant to Section 35 of the said
Act. The respondents opposed the petition on the ground that the petitioner was a presidential
appointee and therefore not covered by the 60-day preventive suspension limit under Section 35 of
the then Civil Service Act. The respondents maintained that the petitioner could be indefinitely
suspended. In ruling in favor of the petitioner, the Court stated:
To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges can be preventively suspended indefinitely, would be to
countenance a situation where the preventive suspension can, in effect, be the
penalty itself without a finding of guilt after due hearing, contrary to the express
mandate of the Constitution (No officer or employee in the Civil Service shall be
removed or suspended except for cause as provided by law. [Art. XII, Sec. 4,
Constitution of the Philippines]) and the Civil Service Law (No officer or employee in
the Civil Service shall be removed or suspended except for cause as provided by law
and after due process). ... In the guise of a preventive suspension, his term of office
could be shortened and he could, in effect, be removed without a finding of a cause
duly established after due hearing, in violation of the Constitution ... (at pp. 8-9)
The question that now arises is whether or not the ruling in the Garcia case where the suspension
was ordered by no less than the President of the Philippines is applicable to an elective official
facing criminal charges under the Anti-Graft Law and suspended under Section 13, thereof.
The guarantee to an equal protection of the law necessitates the application of the ruling in
the Garcia v. Executive Secretary. Thus, we explained in the Layno case, to wit:
... If the case against petitioner Layno were administrative in character the Local
Government Code would be applicable. It is therein clearly provided that while
preventive suspension is allowable for the causes therein enumerated, there is this
emphatic limitation on the duration thereof; 'In all cases, preventive suspension shall
not extend beyond sixty days after the start of said suspension.' (Batas Pambansa
Blg. 337, Section 63 (2), last sentence. The first sentence reads as follows:
'Preventive suspension may be imposed at any time after the issues are joined, when
there is reasonable ground to believe that the respondent has committed the act or
acts complained of, when the evidence of culpability is strong, when the gravity of the
offense so warrants, or when the continuance in office of the respondent influence
the witnesses or pose a threat to the safety and integrity of the records and other
evidence'). It may be recalled that the principle against indefinite suspension applies
equally to national government officials. So it was held in the leading case of Garcia
v. Hon. Secretary (116 Phil. 348 [1962]). According to the opinion of Justice Barrera:
'To adopt the theory of respondents that an officer appointed by the President, facing
administrative charges, can be preventively suspended indefinitely, would be to
countenance a situation where the preventive suspension can, in effect, be the
penalty itself without a finding of guilt after due hearing, contrary to the express
mandate of the Constitution and the Civil Service Law.' (Ibid. 351-352) Further: 'In
the guise of a preventive suspension, his term of office could be shortened and he
could in effect, be removed without a finding of a cause duly established after due
hearing, in violation of the Constitution.' (Ibid. 352) Clearly then, the policy of the law
mandated by the Constitution frowns at a suspension of indefinite duration. In this
particular case, the mere fact that petitioner is facing a charge under the Anti-Graft
and Corrupt Practices Act does not justify a different rule of law. To do so would be
to negate the safeguard of the equal protection guarantee. (at p. 542)
The application of the Garcia injunction against preventive suspensions for an unreasonable period
of time applies with greater force to elective officials and especially to the petitioner whose term is a
relatively short one. The interests of the sovereign electorate and the province of Zambales cannot
be subordinated to the heavy case load of the Sandiganbayan and of this Court.
It would be most unfair to the people of Zambales who elected the petitioner to the highest provincial
office in their command if they are deprived of his services for an indefinite period with the
termination of his case possibly extending beyond his entire term simply because the big number of
sequestration, ill-gotten wealth, murder, malversation of public finds and other more serious offenses
plus incidents and resolutions that may be brought to the Supreme Court prevents the expedited
determination of his innocence or guilt.
The order dated February 10, 1989 suspending the petitioner without a definite period can not be
sanctioned. We rule that henceforth a preventive suspension of an elective public officer under
Section 13 of Republic Act 3019 should be limited to the ninety (90) days under Section 42 of
Presidential Decree No. 807, the Civil Service Decree, which period also appears reasonable and
appropriate under the circumstances of this case.
The petitioner also questions the applicability of Section 13 of Republic Act 3019 as amended by
Batasan Pambansa Blg. 192 to him. He opines that the suspension provision as amended which
qualifies the public officer as incumbent does not apply to him since he is now occupying the position
of governor and not mayor, the position wherein he was charged under the Anti-Graft Law.
This argument is untenable. The issue was settled in the case of Bayot v. Sandiganbayan (128
SCRA 383 (1984), in this wise:
... Further, the claim of petitioner that he cannot be suspended because he is
presently occupying a position different from that under which he is charged is
untenable. The amendatory provision clearly states that any incumbent public officer
against whom any criminal prosecution under a valid information under Republic Act
3019 or for any offense involving fraud upon the government or public funds or
property whether as a simple or as a complex offense and in whatever stage or
execution and mode of participation, is pending in court, shall be suspended from
office. Thus, by the use of the word office the same applies to any office which the
officer charged may be holding, and not only the particular office under which he was
charged.
One last point. Should the purposes behind preventive suspensions such as preventing the abuse of
the prerogatives of the office, intimidation of witnesses, etc., become manifest, the respondent court
is not bereft of remedies or sanctions. The petitioner may still be suspended but for specifically
expressed reasons and not from an automatic application of Section 13 of the Anti-Graft and Corrupt
Practices Act.
WHEREFORE, the instant petition is GRANTED. The preventive suspension imposed on petitioner
Amor D. Deloso by virtue of the February 10, 1989 resolution of the Sandiganbayan should be
limited to only ninety (90) days after which Deloso will assume once again the functions of governor
of Zambales, without prejudice to the continuation of the trial of the pending cases against him in the
Sandiganbayan. This decision is immediately executory. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Padilla, Bidin, Cortes, Grio-
Aquino, Medialdea and Regalado, JJ., concur.
Gancayco and Sarmiento, JJ., is on leave.
Deloso vs. Sandiganbayan (G.R. No. 86899-903 May 15,
1989) Digest

Facts:

The petitioner was the duly elected mayor of Botolan, Zambales in the local elections of
November 1971. While he occupied the position of mayor, a certain Juan Villanueva filed a letter
complaint with the Tanodbayan accusing him of having committed acts in violation of the Anti-Graft Law
(Republic Act 3019) in relation to the award of licenses to operate fish corrals in the municipal waters of
Botolan, Zambales during the period 1976 to 1978 and the issuance of five (5) tractors of the municipality
to certain individuals allegedly without any agreement as to the payment of rentals. The complaint with
respect to the award of licenses to operate fish corrals was dismissed. As regards the other complaint,
the Tanodbayan filed five (5) separate informations, all dated May 30, 1984 accusing the petitioner of
violation of Section 3(e), of the Anti-Graft Law with the Sandiganbayan.
The complaint alleged that Amor Deloso taking advantage of his public and official position, did
then and there willfully, unlawfully and feloniously give unwarranted benefits to Daniel Ferrer thru
manifest partiality and evident bad faith in the discharge of his official functions by issuing to him a tractor
purchased by the Municipality of Botolan thru a loan financed by the Land Bank of the Philippines for
lease to local farmers at reasonable cost, without any agreement as to the payment of rentals for the use
of tractor by Daniel Ferrer thereby causing undue injury to the Municipality of Botolan. Deloso was
suspended indefinitely pending the hearing of the complaint. Thus, the instant petition.

Issue: WON there was violation of the right to due process when Deloso was suspended indefinitely.

Held: Petition GRANTED.

Ratio:
The order of suspension does not have a definite period so that the petitioner may be suspended
for the rest of his term of office unless his case is terminated sooner. An extended suspension is a distinct
possibility considering that the Sandiganbayan denied the petitioner's plea for earlier dates of trial of his
cases on the ground that there are other cases set earlier which have a right to expect priority.
It would be most unfair to the people of Zambales who elected the petitioner to the highest
provincial office in their command if they are deprived of his services for an indefinite period with the
termination of his case possibly extending beyond his entire term simply because the big number of
sequestration, ill-gotten wealth, murder, malversation of public finds and other more serious offenses plus
incidents and resolutions that may be brought to the Supreme Court prevents the expedited determination
of his innocence or guilt.
We rule that henceforth a preventive suspension of an elective public officer under Section 13 of
Republic Act 3019 should be limited to the ninety (90) days under Section 42 of Presidential Decree No.
807, the Civil Service Decree, which period also appears reasonable and appropriate under the
circumstances of this case.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 157036 June 9, 2004
FRANCISCO I. CHAVEZ Petitioner,
vs.
HON. ALBERTO G. ROMULO, IN HIS CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR
GENERAL HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE PNP,
ET. AL., respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
The right of individuals to bear arms is not absolute, but is subject to regulation. The maintenance of
peace and order
1
and the protection of the people against violence are constitutional duties of the
State, and the right to bear arms is to be construed in connection and in harmony with these
constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of the
"Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence"
2
(Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr.,
Chief of the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the
members of the PNP stressing the need for a nationwide gun ban in all public places to avert
the rising crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend
the issuance of Permits to Carry Firearms Outside of Residence (PTCFOR), thus:
"THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT
TEND TO DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY
THE LATEST BEING THE KILLING OF FORMER NPA LEADER ROLLY
KINTANAR. I UNDERSTAND WE ALREADY HAVE THE IDENTITY OF THE
CULPRIT. LET US BRING THEM TO THE BAR OF JUSTICE.
THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF
OUR LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN
UNIFORM, AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE
ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE
ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND
POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC PLACES.
FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND
AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN
PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN
OWNERS MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET
PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME
TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS
WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE.
WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER.
JUST AS WE CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR
PEACE."
Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines quoted as
follows:
"TO : All Concerned
FROM : Chief, PNP
SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of Firearms
Outside of Residence.
DATE : January 31, 2003
1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and Regulations.
2. General:
The possession and carrying of firearms outside of residence is a privilege granted by the
State to its citizens for their individual protection against all threats of lawlessness and
security.
As a rule, persons who are lawful holders of firearms (regular license, special permit,
certificate of registration or MR) are prohibited from carrying their firearms outside of
residence. However, the Chief, Philippine National Police may, in meritorious cases as
determined by him and under conditions as he may impose, authorize such person or
persons to carry firearms outside of residence.
3. Purposes:
This Memorandum prescribes the guidelines in the implementation of the ban on the carrying
of firearms outside of residence as provided for in the Implementing Rules and
Regulations, Presidential Decree No. 1866, dated June 29, 1983 and as directed by
PGMA. It also prescribes the conditions, requirements and procedures under which
exemption from the ban may be granted.
4. Specific Instructions on the Ban on the Carrying of Firearms:
a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms covered
with valid PTCFOR may re-apply for a new PTCFOR in accordance with the
conditions hereinafter prescribed.
b. All holders of licensed or government firearms are hereby prohibited from carrying
their firearms outside their residence except those covered with mission/letter orders
and duty detail orders issued by competent authority pursuant to Section 5, IRR, PD
1866, provided, that the said exception shall pertain only to organic and regular
employees.
5. The following persons may be authorized to carry firearms outside of residence.
a. All persons whose application for a new PTCFOR has been approved, provided,
that the persons and security of those so authorized are under actual threat, or by
the nature of their position, occupation and profession are under imminent danger.
b. All organic and regular employees with Mission/Letter Orders granted by their
respective agencies so authorized pursuant to Section 5, IRR, PD 1866, provided,
that such Mission/Letter Orders is valid only for the duration of the official mission
which in no case shall be more than ten (10) days.
c. All guards covered with Duty Detail Orders granted by their respective security
agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that such
DDO shall in no case exceed 24-hour duration. d. Members of duly recognized Gun
Clubs issued Permit to Transport (PTT) by the PNP for purposes of practice and
competition, provided, that such firearms while in transit must not be loaded with
ammunition and secured in an appropriate box or case detached from the person. e.
Authorized members of the Diplomatic Corps. 6. Requirements for issuance of new
PTCFOR: a. Written request by the applicant addressed to Chief, PNP stating his
qualification to possess firearm and the reasons why he needs to carry firearm
outside of residence. b. Xerox copy of current firearm license duly authenticated by
Records Branch, FED; c. Proof of actual threat, the details of which should be issued
by the Chief of Police/Provincial or City Directors and duly validated by C, RIID; d.
Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if
photocopied; e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if
photocopied; f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP
Testing Center, if photocopied; g. Copy of Certificate of Attendance to a Gun Safety
Seminar, duly validated by Chief, Operations Branch, FED; h. NBI Clearance; i. Two
(2) ID pictures (2" x 2") taken not earlier than one (1) year from date of filing of
application; and j. Proof of Payment
7. Procedures: a. Applications may be filed directly to the Office of the PTCFOR Secretariat
in Camp Crame. In the provinces, the applications may also be submitted to the Police
Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs) for initial processing
before they are forwarded to the office of the PTCFOR Secretariat. The processors, after
ascertaining that the documentary requirements are in order, shall issue the Order of
Payment (OP) indicating the amount of fees payable by the applicant, who in turn shall pay
the fees to the Land Bank. b. Applications, which are duly processed and prepared in
accordance with existing rules and regulations, shall be forwarded to the OCPNP for
approval. c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1)
year from date of issue. d. Applications for renewal of PTCFOR shall be processed in
accordance with the provisions of par. 6 above. e. Application for possession and carrying of
firearms by diplomats in the Philippines shall be processed in accordance with NHQ PNP
Memo dated September 25, 2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines. 8. Restrictions in the Carrying of Firearms: a. The firearm must
not be displayed or exposed to public view, except those authorized in uniform and in the
performance of their official duties. b. The firearm shall not be brought inside public drinking
and amusement places, and all other commercial or public establishments."
Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the
present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as
Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives Division. He
anchored his petition on the following grounds:
"I
THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE SPEECH
TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A GUN BAN
AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED OUTSIDE
RESIDENCES.
II
OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE
PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.
III
THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED
GUIDELINES BECAUSE:
1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE
PNP CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.
2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE
THE SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.
3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE
PROMULGATION OF IMPLEMENTNG GUIDELINES ON THE GUN BAN.
IV
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND THE
AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR AUTHORITY TO
ISSUE THE SAME BECAUSE
1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE
PROMULGATED JOINTLY BY THE DOJ AND THE DILG.
2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE
CHIEF OF THE PHILIPPINE CONSTABULARY.
V
THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE CONSTITUTION
BECAUSE:
1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY
INTERTWINED WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO
PROTECT LIFE. THUS, THE PNP GUIDELINES DEPRIVE PETITIONER OF THIS
RIGHT WITHOUT DUE PROCESS OF LAW FOR:
A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST
POTENT, IF NOT HIS ONLY, MEANS TO DEFEND HIMSELF.
B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS
MEANS OF PROTECTION AGAINST CRIME DESPITE THE FACT THAT
THE STATE COULD NOT POSSIBLY PROTECT ITS CITIZENS DUE TO
THE INADEQUACY AND INEFFICIENCY OF THE POLICE FORCE.
2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY
PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT
DUE PROCESS OF LAW AND WITHOUT JUST CAUSE.
VI
ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE
EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE
THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND
UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER
AND PREVENT CRIME THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-
ABIDING GUN-OWNERS.
VII
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT
REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.
VIII
THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU SAYYAF
COLLECTIVELY, AND NPA) UNTOUCHED.
IX
THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.
X
THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY GRANTED
PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION."
Petitioners submissions may be synthesized into five (5) major issues:
First, whether respondent Ebdane is authorized to issue the assailed Guidelines;
Second, whether the citizens right to bear arms is a constitutional right?;
Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is
a violation of his right to property?;
Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?;
and
Fifth, whether the assailed Guidelines constitute an ex post facto law?
The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of hierarchy of
courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the PNP Chief is
authorized to issue the assailed Guidelines; (2) petitioner does not have a constitutional right to own
and carry firearms; (3) the assailed Guidelines do not violate the due process clause of the
Constitution; and (4) the assailed Guidelines do not constitute an ex post facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine is not
an iron-clad dictum. In several instances where this Court was confronted with cases of national
interest and of serious implications, it never hesitated to set aside the rule and proceed with the
judicial determination of the cases.
3
The case at bar is of similar import as it involves the citizens
right to bear arms.
I
Authority of the PNP Chief
Relying on the principle of separation of powers, petitioner argues that only Congress can withhold
his right to bear arms. In revoking all existing PTCFOR, President Arroyo and respondent Ebdane
transgressed the settled principle and arrogated upon themselves a power they do not possess the
legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government are distributed among three
coordinate and substantially independent departments: the legislative, the executive and the
judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is supreme within
its own sphere.
4

Pertinently, the power to make laws the legislative power is vested in Congress.
5
Congress may
not escape its duties and responsibilities by delegating that power to any other body or authority.
Any attempt to abdicate the power is unconstitutional and void, on the principle that "delegata
potestas non potest delegari" "delegated power may not be delegated."
6

The rule which forbids the delegation of legislative power, however, is not absolute and
inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the
legislative body to delegate its licensing power to certain persons, municipal corporations, towns,
boards, councils, commissions, commissioners, auditors, bureaus and directors.
7
Such licensing
power includes the power to promulgate necessary rules and regulations.
8

The evolution of our laws on firearms shows that since the early days of our Republic, the
legislatures tendency was always towards the delegation of power. Act No. 1780,
9
delegated upon
the Governor-General (now the President) the authority (1) to approve or disapprove applications of
any person for a license to deal in firearms or to possess the same for personal protection, hunting
and other lawful purposes; and (2) to revoke such license any time.
10
Further, it authorized him to
issue regulations which he may deem necessary for the proper enforcement of the Act.
11
With the
enactment of Act No. 2711, the "Revised Administrative Code of 1917," the laws on firearms were
integrated.
12
The Act retained the authority of the Governor General provided in Act No. 1780.
Subsequently, the growing complexity in the Office of the Governor-General resulted in the
delegation of his authority to the Chief of the Constabulary. On January 21, 1919, Acting Governor-
General Charles E. Yeater issued Executive Order No. 8
13
authorizing and directing the Chief of
Constabulary to act on his behalf in approving and disapproving applications for personal, special
and hunting licenses. This was followed by Executive Order No. 61
14
designating the Philippine
Constabulary (PC) as the government custodian of all firearms, ammunitions and explosives.
Executive Order No. 215,
15
issued by President Diosdado Macapagal on December 3, 1965, granted
the Chief of the Constabulary, not only the authority to approve or disapprove applications for
personal, special and hunting license, but also the authority to revoke the same. With the foregoing
developments, it is accurate to say that the Chief of the Constabulary had exercised the authority for
a long time. In fact, subsequent issuances such as Sections 2 and 3 of the Implementing Rules and
Regulations of Presidential Decree No. 1866
16
perpetuate such authority of the Chief of the
Constabulary. Section 2 specifically provides that any person or entity desiring to possess any
firearm "shall first secure the necessary permit/license/authority from the Chief of the Constabulary."
With regard to the issuance of PTCFOR, Section 3 imparts: "The Chief of Constabulary may, in
meritorious cases as determined by him and under such conditions as he may impose, authorize
lawful holders of firearms to carry them outside of residence." These provisions are issued pursuant
to the general power granted by P.D. No. 1866 empowering him to promulgate rules and regulations
for the effective implementation of the decree.
17
At this juncture, it bears emphasis that P.D. No.
1866 is the chief law governing possession of firearms in the Philippines and that it was issued by
President Ferdinand E. Marcos in the exercise of his legislative power.
18
In an attempt to evade the
application of the above-mentioned laws and regulations, petitioner argues that the "Chief of the
PNP" is not the same as the "Chief of the Constabulary," the PC being a mere unit or component of
the newly established PNP. He contends further that Republic Act No. 8294
19
amended P.D. No.
1866 such that the authority to issue rules and regulations regarding firearms is now jointly vested in
the Department of Justice and the DILG, not the Chief of the Constabulary.
20

Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,
21
the Philippine National Police (PNP) absorbed the Philippine
Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the Constabulary and,
therefore, assumed the latters licensing authority. Section 24 thereof specifies, as one of PNPs
powers, the issuance of licenses for the possession of firearms and explosives in accordance with
law.
22
This is in conjunction with the PNP Chiefs "power to issue detailed implementing policies and
instructions" on such "matters as may be necessary to effectively carry out the functions, powers and
duties" of the PNP.
23

Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the Constabulary (now
the PNP Chief) of his authority to promulgate rules and regulations for the effective implementation
of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D. No. 1866. It merely provides for
the reduction of penalties for illegal possession of firearms. Thus, the provision of P.D. No. 1866
granting to the Chief of the Constabulary the authority to issue rules and regulations regarding
firearms remains effective. Correspondingly, the Implementing Rules and Regulations dated
September 15, 1997 jointly issued by the Department of Justice and the DILG pursuant to Section 6
of R.A. No. 8294 deal only with the automatic review, by the Director of the Bureau of Corrections or
the Warden of a provincial or city jail, of the records of convicts for violations of P.D. No. 1866. The
Rules seek to give effect to the beneficent provisions of R.A. No. 8294, thereby ensuring the early
release and reintegration of the convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban, arguing that
"she has no authority to alter, modify, or amend the law on firearms through a mere speech."
First, it must be emphasized that President Arroyos speech was just an expression of her policy and
a directive to her subordinate. It cannot, therefore, be argued that President Arroyo enacted a law
through a mere speech.
Second, at the apex of the entire executive officialdom is the President. Section 17, Article VII of the
Constitution specifies his power as Chief Executive, thus: "The President shall have control of all the
executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed." As
Chief Executive, President Arroyo holds the steering wheel that controls the course of her
government. She lays down policies in the execution of her plans and programs. Whatever policy
she chooses, she has her subordinates to implement them. In short, she has the power of
control. Whenever a specific function is entrusted by law or regulation to her subordinate, she
may act directly or merely direct the performance of a duty.
24
Thus, when President Arroyo
directed respondent Ebdane to suspend the issuance of PTCFOR, she was just directing a
subordinate to perform an assigned duty. Such act is well within the prerogative of her office.
II
Right to bear arms: Constitutional or Statutory?
Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right. This, he
mainly anchors on various American authorities. We therefore find it imperative to determine the
nature of the right in light of American jurisprudence.
The bearing of arms is a tradition deeply rooted in the English and American society. It antedates not
only the American Constitution but also the discovery of firearms.
25

A provision commonly invoked by the American people to justify their possession of firearms is the
Second Amendment of the Constitution of the United States of America, which reads:
"A well regulated militia, being necessary for the security of free state, the right of the people to keep
and bear Arms, shall not be infringed."
An examination of the historical background of the foregoing provision shows that it pertains to the
citizens "collective right" to take arms in defense of the State, not to the citizens "individual right" to
own and possess arms. The setting under which the right was contemplated has a profound
connection with the keeping and maintenance of a militia or an armed citizenry. That this is how the
right was construed is evident in early American cases.
The first case involving the interpretation of the Second Amendment that reached the United States
Supreme Court is United States vs. Miller.
26
Here, the indictment charged the defendants with
transporting an unregistered "Stevens shotgun" without the required stamped written order, contrary
to the National Firearms Act. The defendants filed a demurrer challenging the facial validity of the
indictment on the ground that the National Firearms Act offends the inhibition of the Second
Amendment. The District Court sustained the demurrer and quashed the indictment. On appeal, the
Supreme Court interpreted the right to bear arms under the Second Amendment as referring to the
collective right of those comprising the Militia a body of citizens enrolled for military discipline. It
does not pertain to the individual right of citizen to bear arm. Miller expresses its holding as follows:
"In the absence of any evidence tending to show that possession or use of a shotgun having
a barrel of less than eighteen inches in length at this time has some reasonable
relationship to the preservation or efficiency of a well regulated militia, we cannot say
that the Second Amendment guarantees the right to keep and bear such an
instrument. Certainly it is not within judicial notice that this weapon is any part of the
ordinary military equipment or that its use could contribute to the common defense.
The same doctrine was re-echoed in Cases vs. United States.
27
Here, the Circuit Court of Appeals
held that theFederal Firearms Act, as applied to appellant, does not conflict with the Second
Amendment. It ruled that:
"While [appellants] weapon may be capable of military use, or while at least familiarity with it
might be regarded as of value in training a person to use a comparable weapon of military
type and caliber, still there is no evidence that the appellant was or ever had been a
member of any military organization or that his use of the weapon under the
circumstances disclosed was in preparation for a military career. In fact, the only
inference possible is that the appellant at the time charged in the indictment was in
possession of, transporting, and using the firearm and ammunition purely and simply
on a frolic of his own and without any thought or intention of contributing to the
efficiency of the well regulated militia which the Second amendment was designed to
foster as necessary to the security of a free state."
With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants upon the
American people the right to bear arms. In a more explicit language, the United States vs.
Cruikshank
28
decreed: "The right of the people to keep and bear arms is not a right granted by
the Constitution. Neither is it in any way dependent upon that instrument." Likewise, in People
vs. Persce,
29
the Court of Appeals said: "Neither is there any constitutional provision securing the
right to bear arms which prohibits legislation with reference to such weapons as are specifically
before us for consideration. The provision in the Constitution of the United States that the right
of the people to keep and bear arms shall not be infringed is not designed to control
legislation by the state."
With more reason, the right to bear arms cannot be classified as fundamental under the 1987
Philippine Constitution. Our Constitution contains no provision similar to the Second Amendment, as
we aptly observed in the early case of United States vs. Villareal:
30

"The only contention of counsel which would appear to necessitate comment is the claim that
the statute penalizing the carrying of concealed weapons and prohibiting the keeping and the
use of firearms without a license, is in violation of the provisions of section 5 of the Philippine
Bill of Rights.
Counsel does not expressly rely upon the prohibition in the United States Constitution
against the infringement of the right of the people of the United States to keep and
bear arms (U. S. Constitution, amendment 2), which is not included in the Philippine
Bill. But it may be well, in passing, to point out that in no event could this
constitutional guaranty have any bearing on the case at bar, not only because it has
not been expressly extended to the Philippine Islands, but also because it has been
uniformly held that both this and similar provisions in State constitutions apply only
to arms used in civilized warfare (see cases cited in 40 Cyc., 853, note 18); x x x."
Evidently, possession of firearms by the citizens in the Philippines is the exception, not the rule. The
right to bear arms is a mere statutory privilege, not a constitutional right. It is a mere statutory
creation. What then are the laws that grant such right to the Filipinos? The first real firearm law
is Act No. 1780 enacted by the Philippine Commission on October 12, 1907. It was passed to
regulate the importation, acquisition, possession, use and transfer of firearms. Section 9 thereof
provides:
"SECTION 9. Any person desiring to possess one or more firearms for personal
protection, or for use in hunting or other lawful purposes only, and ammunition
therefor, shall make application for a license to possess such firearm or firearms or
ammunition as hereinafter provided. Upon making such application, and before receiving
the license, the applicant shall make a cash deposit in the postal savings bank in the sum of
one hundred pesos for each firearm for which the license is to be issued, or in lieu thereof he
may give a bond in such form as the Governor-General may prescribe, payable to the
Government of the Philippine Islands, in the sum of two hundred pesos for each such
firearm: PROVIDED, HOWEVER, That persons who are actually members of gun clubs, duly
formed and organized at the time of the passage of this Act, who at such time have a license
to possess firearms, shall not be required to make the deposit or give the bond prescribed by
this section, and the bond duly executed by such person in accordance with existing law
shall continue to be security for the safekeeping of such arms."
The foregoing provision was restated in Section 887
31
of Act No. 2711 that integrated the firearm
laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the laws on illegal
possession, manufacture, dealing in, acquisition of firearms, ammunitions or explosives and
imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the provisions of P.D.
No. 1866 by reducing the imposable penalties. Being a mere statutory creation, the right to bear
arms cannot be considered an inalienable or absolute right.
III
Vested Property Right
Section 1, Article III of the Constitution provides that "no person shall be deprived of life, liberty or
property without due process of law." Petitioner invokes this provision, asserting that the revocation
of his PTCFOR pursuant to the assailed Guidelines deprived him of his "vested property right"
without due process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
In evaluating a due process claim, the first and foremost consideration must be whether life, liberty
or property interest exists.
32
The bulk of jurisprudence is that a license authorizing a person to enjoy
a certain privilege is neither a property nor property right. In Tan vs. The Director of Forestry,
33
we
ruled that "a license is merely a permit or privilege to do what otherwise would be unlawful, and is
not a contract between the authority granting it and the person to whom it is granted; neither is it
property or a property right, nor does it create a vested right." In a more emphatic pronouncement,
we held in Oposa vs. Factoran, Jr.
34
that:
"Needless to say, all licenses may thus be revoked or rescinded by executive action. It
is not a contract, property or a property right protected by the due process clause of
the Constitution."
Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied heavily on
Bell vs. Burson
35
wherein the U.S. Supreme Court ruled that "once a license is issued, continued
possession may become essential in the pursuit of livelihood. Suspension of issued licenses thus
involves state action that adjudicates important interest of the licensees."
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to bear
arms. The catena of American jurisprudence involving license to bear arms is perfectly in accord
with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs. OBrien,
36
the
plaintiff who was denied a license to carry a firearm brought suit against the defendant who was the
Chief of Police of the City of Manhattan Beach, on the ground that the denial violated her
constitutional rights to due process and equal protection of the laws. The United States Court of
Appeals Ninth Circuit ruled that Erdelyi did not have a property interest in obtaining a license to carry
a firearm, ratiocinating as follows:
"Property interests protected by the Due Process Clause of the Fourteenth Amendment do not arise
whenever a person has only an abstract need or desire for, or unilateral expectation of a benefit. x
x x Rather, they arise from legitimate claims of entitlement defined by existing rules or
understanding that stem from an independent source, such as state law. x x x Concealed weapons
are closely regulated by the State of California. x x x Whether the statute creates a property interest
in concealed weapons licenses depends largely upon the extent to which the statute contains
mandatory language that restricts the discretion of the [issuing authority] to deny licenses to
applicants who claim to meet the minimum eligibility requirements. x x x Where state law gives the
issuing authority broad discretion to grant or deny license application in a closely regulated field,
initial applicants do not have a property right in such licenses protected by the Fourteenth
Amendment. See Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);"
Similar doctrine was announced in Potts vs. City of Philadelphia,
37
Conway vs. King,
38
Nichols vs.
County of Sta. Clara,
39
and Gross vs. Norton.
40
These cases enunciated that the test whether the
statute creates a property right or interest depends largely on the extent of discretion granted to the
issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is
evident from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that
"the Chief of Constabulary may, in meritorious cases as determined by him and under such
conditions as he may impose, authorize lawful holders of firearms to carry them outside of
residence." Following the American doctrine, it is indeed logical to say that a PTCFOR does not
constitute a property right protected under our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any
time. It does not confer an absolute right, but only a personal privilege to be exercised under existing
restrictions, and such as may thereafter be reasonably imposed.
41
A licensee takes his license
subject to such conditions as the Legislature sees fit to impose, and one of the statutory conditions
of this license is that it might be revoked by the selectmen at their pleasure. Such a license is
not a contract, and a revocation of it does not deprive the defendant of any property, immunity, or
privilege within the meaning of these words in the Declaration of Rights.
42
The US Supreme Court,
in Doyle vs. Continental Ins. Co,
43
held: "The correlative power to revoke or recall a permission is a
necessary consequence of the main power. A mere license by the State is always revocable."
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus, in The
Government of the Philippine Islands vs. Amechazurra
44
we ruled:
"x x x no private person is bound to keep arms. Whether he does or not is entirely optional
with himself, but if, for his own convenience or pleasure, he desires to possess arms, he
must do so upon such terms as the Government sees fit to impose, for the right to keep and
bear arms is not secured to him by law. The Government can impose upon him such terms
as it pleases. If he is not satisfied with the terms imposed, he should decline to accept them,
but, if for the purpose of securing possession of the arms he does agree to such conditions,
he must fulfill them."
IV
Police Power
At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the
Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the
States police power. All property in the state is held subject to its general regulations, necessary to
the common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure, thus:
(1) The interests of the public generally, as distinguished from those of a particular class,
require the exercise of the police power; and
(2) The means employed are reasonably necessary for the accomplishment of the purpose
and not unduly oppressive upon individuals.
Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
guarantees of substantive due process, equal protection, and non-impairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for peace and
order in the society. Owing to the proliferation of crimes, particularly those committed by the New
Peoples Army (NPA), which tends to disturb the peace of the community, President Arroyo deemed
it best to impose a nationwide gun ban. Undeniably, the motivating factor in the issuance of the
assailed Guidelines is the interest of the public in general.
The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In the
instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What they
proscribe is merely the carrying of firearms outside of residence. However, those who wish to carry
their firearms outside of their residences may re-apply for a new PTCFOR. This we believe is a
reasonable regulation. If the carrying of firearms is regulated, necessarily, crime incidents will be
curtailed. Criminals carry their weapon to hunt for their victims; they do not wait in the comfort of
their homes. With the revocation of all PTCFOR, it would be difficult for criminals to roam around
with their guns. On the other hand, it would be easier for the PNP to apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been upheld as
reasonable exercise of the police power.
45
In State vs. Reams,
46
it was held that the legislature may
regulate the right to bear arms in a manner conducive to the public peace. With the promotion of
public peace as its objective and the revocation of all PTCFOR as the means, we are convinced that
the issuance of the assailed Guidelines constitutes a reasonable exercise of police power. The ruling
in United States vs. Villareal,
47
is relevant, thus:
"We think there can be no question as to the reasonableness of a statutory regulation
prohibiting the carrying of concealed weapons as a police measure well calculated to restrict
the too frequent resort to such weapons in moments of anger and excitement. We do not
doubt that the strict enforcement of such a regulation would tend to increase the security of
life and limb, and to suppress crime and lawlessness, in any community wherein the practice
of carrying concealed weapons prevails, and this without being unduly oppressive upon the
individual owners of these weapons. It follows that its enactment by the legislature is a
proper and legitimate exercise of the police power of the state."
V
Ex post facto law
In Mekin vs. Wolfe,
48
an ex post facto law has been defined as one (a) which makes an action
done before the passing of the law and which was innocent when done criminal, and punishes such
action; or (b) which aggravates a crime or makes it greater than it was when committed; or (c) which
changes the punishment and inflicts a greater punishment than the law annexed to the crime when it
was committed; or (d) which alters the legal rules of evidence and receives less or different
testimony than the law required at the time of the commission of the offense in order to convict the
defendant.
We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.
49
The assailed Guidelines cannot be considered as an ex post facto
law because it is prospective in its application. Contrary to petitioners argument, it would not result
in the punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.
Chavez vs. Romulo
G.R. No. 157036, June 9, 2004

- A mere license is always revocable

FACTS:

This case is about the ban on the carrying of firearms outside of residence in order to deter the rising
crime rates. Petitioner questions the ban as a violation of his right to property.

ISSUE:
- Whether or not the revocation of permit to carry firearms is unconstitutional
- Whether or not the right to carry firearms is a vested property right



HELD:

Petitioner cannot find solace to the above-quoted Constitutional provision.

In evaluating a due process claim, the first and foremost consideration must be whether life, liberty or
property interest exists. The bulk of jurisprudence is that a license authorizing a person to enjoy a certain
privilege is neither a property nor property right. In Tan vs. The Director of Forestry, we ruled that a
license is merely a permit or privilege to do what otherwise would be unlawful, and is not a contract
between the authority granting it and the person to whom it is granted; neither is it property or a
property right, nor does it create a vested right. In a more emphatic pronouncement, we held in Oposa
vs. Factoran, Jr. that:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a contract,
property or a property right protected by the due process clause of the Constitution.
xxx

In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of PTCFOR. This is evident
from the tenor of the Implementing Rules and Regulations of P.D. No. 1866 which state that the Chief of
Constabulary may, in meritorious cases as determined by him and under such conditions as he may
impose, authorize lawful holders of firearms to carry them outside of residence. Following the American
doctrine, it is indeed logical to say that a PTCFOR does not constitute a property right protected under
our Constitution.

Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be revoked any time. It
does not confer an absolute right, but only a personal privilege to be exercised under existing restrictions,
and such as may thereafter be reasonably imposed. A licensee takes his license subject to such
conditions as the Legislature sees fit to impose, and one of the statutory conditions of this license is that
it might be revoked by the selectmen at their pleasure. Such a license is not a contract, and a revocation
of it does not deprive the defendant of any property, immunity, or privilege within the meaning of these
words in the Declaration of Rights. The US Supreme Court, in Doyle vs. Continental Ins. Co, held: The
correlative power to revoke or recall a permission is a necessary consequence of the main power. A mere
license by the State is always revocable.