1
EN BANC | G.R. No. 170165 | Promulgated: August 15, 2006 conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F. BALUTAN, Petitioners - versus -
LT./GEN. GENEROSO S. SENGA CORONA, Respondents.
DECISION
TINGA, J.:
A most dangerous general proposition is foisted on the Court that soldiers who defy orders of their
superior officers are exempt from the strictures of military law and discipline if such defiance is
predicated on an act otherwise valid under civilian law. Obedience and deference to the military chain of
command and the President as commander-in-chief are the cornerstones of a professional military in the
firm cusp of civilian control. These values of obedience and deference expected of military officers are
content-neutral, beyond the sway of the officers own sense of what is prudent or rash, or more
elementally, of right or wrong. A self-righteous military invites itself as the scoundrels activist solution to
the ills of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo[1] enjoining them
and other military officers from testifying before Congress without the Presidents consent. Petitioners
also pray for injunctive relief against a pending preliminary investigation against them, in preparation for
possible court-martial proceedings, initiated within the military justice system in connection with
petitioners violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional principles that
center on fundamental freedoms enshrined in the Bill of Rights. Although these concerns will not be
addressed to the satisfaction of petitioners, the Court recognizes these values as of paramount
importance to our civil society, even if not determinative of the resolution of this petition. Had the
relevant issue before us been the right of the Senate to compel the testimony of petitioners, the
constitutional questions raised by them would have come to fore. Such a scenario could have very well
been presented to the Court in such manner, without the petitioners having had to violate a direct order
from their commanding officer. Instead, the Court has to resolve whether petitioners may be subjected to
military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines (AFP). Both petitioners,
Brigadier General Francisco Gudani (Gen. Gudani) and Lieutenant Colonel Alexander Balutan (Col.
Balutan), belonged to the Philippine Marines. At the time of the subject incidents, both Gen. Gudani and
Col. Balutan were assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets.[2]
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several senior officers of the AFP to
appear at a public hearing before the Senate Committee on National Defense and Security (Senate
Committee) scheduled on 28 September 2005. The hearing was scheduled after topics concerning the
the surfacing of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as
then COMELEC Commissioner Virgilio Garcillano. At the time of the 2004 elections, Gen. Gudani had
been designated as commander, and Col. Balutan a member, of Joint Task Force Ranao by the AFP
Southern Command. Joint Task Force Ranao was tasked with the maintenance of peace and order during
the 2004 elections in the provinces of Lanao del Norte and Lanao del Sur.[3] `
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General Generoso Senga (Gen. Senga) were
among the several AFP officers who received a letter invitation from Sen. Biazon to attend the 28
September 2005 hearing. On 23 September 2005, Gen. Senga replied through a letter to Sen. Biazon that
he would be unable to attend the hearing due to a previous commitment in Brunei, but he nonetheless
directed other officers from the AFP who were invited to attend the hearing.[4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to
the Superintendent of the PMA Gen. Cristolito P. Baloing (Gen. Baloing). It was signed by Lt. Col.
Hernando DCA Iriberri in behalf of Gen. Senga.[5] Noting that Gen. Gudani and Col. Balutan had been
invited to attend the Senate Committee hearing on 28 September 2005, the Memorandum directed the
two officers to attend the hearing.[6] Conformably, Gen. Gudani and Col. Balutan filed their respective
requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting the postponement of the
hearing scheduled for the following day, since the AFP Chief of Staff was himself unable to attend said
hearing, and that some of the invited officers also could not attend as they were attending to other
urgent operational matters. By this time, both Gen. Gudani and Col. Balutan had already departed Baguio
for Manila to attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message was transmitted to the
PMA Superintendent from the office of Gen. Senga, stating as follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL APPEAR BEFORE ANY
CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL. INFORM BGEN FRANCISCO F GUDANI
AFP AND LTC ALEXANDER BALUTAN PA (GSC) ACCORDINGLY.[7]
The following day, Gen. Senga sent another letter to Sen. Biazon, this time informing the senator that no
approval has been granted by the President to any AFP officer to appear before the hearing scheduled on
that day. Nonetheless, both Gen. Gudani and Col. Balutan were present as the hearing started, and they
both testified as to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before this Court, has offered
additional information surrounding the testimony of Gen. Gudani and Col. Balutan. The OSG manifests
that the couriers of the AFP Command Center had attempted to deliver the radio message to Gen.
Gudanis residence in a subdivision in Paraaque City late in the night of 27 September 2005, but they were
not permitted entry by the subdivision guards. The next day, 28 September 2005, shortly before the start

of the hearing, a copy of Gen. Sengas letter to Sen. Biazon sent earlier that day was handed at the Senate
by Commodore Amable B. Tolentino of the AFP Office for Legislative Affairs to Gen. Gudani, who replied
that he already had a copy. Further, Gen. Senga called Commodore Tolentino on the latters cell phone
and asked to talk to Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed
Commodore Tolentino to inform Gen. Gudani that it was an order, yet Gen. Gudani still refused to take
Gen. Sengas call.[8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga
issued a statement which noted that the two had appeared before the Senate Committee in spite of the
fact that a guidance has been given that a Presidential approval should be sought prior to such an
appearance; that such directive was in keeping with the time[-]honored principle of the Chain of
Command; and that the two officers disobeyed a legal order, in violation of A[rticles of] W[ar] 65
(Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings
x x x Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then.[9]
On the very day of the hearing, 28 September 2005, President Gloria-Macapagal-Arroyo issued Executive
Order No. 464 (E.O. 464). The OSG notes that the E.O. enjoined officials of the executive department
including the military establishment from appearing in any legislative inquiry without her approval.[10]
This Court subsequently ruled on the constitutionality of the said executive order in Senate v. Ermita.[11]
The relevance of E.O. 464 and Senate to the present petition shall be discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General Senga, through Col. Henry
A. Galarpe of the AFP Provost Marshal General, to appear before the Office of the Provost Marshal
General (OPMG) on 3 October 2005 for investigation. During their appearance before Col. Galarpe, both
petitioners invoked their right to remain silent.[12] The following day, Gen. Gudani was compulsorily
retired from military service, having reached the age of 56.[13]
In an Investigation Report dated 6 October 2005, the OPMG recommended that petitioners be charged
with violation of Article of War 65, on willfully disobeying a superior officer, in relation to Article of War
97, on conduct prejudicial to the good order and military discipline.[14] As recommended, the case was
referred to a Pre-Trial Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM).
[15] Consequently, on 24 October 2005, petitioners were separately served with Orders respectively
addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the Pre-Trial Investigating Officer of
the PTIO. The Orders directed petitioners to appear in person before Col. Roa at the Pre-Trial
Investigation of the Charges for violation of Articles 65[16] and 97[17] of Commonwealth Act No. 408,
[18] and to submit their counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
General.[19] The Orders were accompanied by respective charge sheets against petitioners, accusing
them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was filed, particularly
seeking that (1) the order of President Arroyo coursed through Gen. Senga preventing petitioners from
testifying before Congress without her prior approval be declared unconstitutional; (2) the charges stated
in the charge sheets against petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their
successors-in-interest or persons acting for and on their behalf or orders, be permanently enjoined from
2
proceeding against petitioners, as a consequence of their having testified before the Senate on 28
September 2005.[20]
Petitioners characterize the directive from President Arroyo requiring her prior approval before any AFP
personnel appear before Congress as a gag order, which violates the principle of separation of powers in
government as it interferes with the investigation of the Senate Committee conducted in aid of
legislation. They also equate the gag order with culpable violation of the Constitution, particularly in
relation to the publics constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that the Filipino people have every right to hear the [petitioners]
testimonies, and even if the gag order were unconstitutional, it still was tantamount to the crime of
obstruction of justice. Petitioners further argue that there was no law prohibiting them from testifying
before the Senate, and in fact, they were appearing in obeisance to the authority of Congress to conduct
inquiries in aid of legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to military jurisdiction on
account of his compulsory retirement on 4 October 2005. It is pointed out that Article 2, Title I of the
Articles of War defines persons subject to military law as all officers and soldiers in the active service of
the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or innocence of petitioners in
violating Articles 65 and 97 of the Articles of War is not an issue before this Court, especially considering
that per records, petitioners have not yet been subjected to court martial proceedings. Owing to the
absence of such proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as the aforementioned
preliminary investigation, on the basis of petitioners acts surrounding their testimony before the Senate
on 28 September 2005. Yet this Court, consistent with the principle that it is not a trier of facts at first
instance,[21] is averse to making any authoritative findings of fact, for that function is first for the court-
martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the Court, having been
commonly alleged by petitioners and the OSG (for respondents). Petitioners were called by the Senate
Committee to testify in its 28 September 2005 hearing. Petitioners attended such hearing and testified
before the Committee, despite the fact that the day before, there was an order from Gen. Senga (which
in turn was sourced per instruction from President Arroyo) prohibiting them from testifying without the
prior approval of the President. Petitioners do not precisely admit before this Court that they had learned
of such order prior to their testimony, although the OSG asserts that at the very least, Gen. Gudani
already knew of such order before he testified.[22] Yet while this fact may be ultimately material in the
court-martial proceedings, it is not determinative of this petition, which as stated earlier, does not proffer
as an issue whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the aforementioned order of Gen.
Senga, which emanated from the President, could lead to any investigation for court-martial of
petitioners. It has to be acknowledged as a general principle[23] that AFP personnel of whatever rank are
liable under military law for violating a direct order of an officer superior in rank. Whether petitioners did

violate such an order is not for the Court to decide, but it will be necessary to assume, for the purposes
of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Courts ruling in Senate on the present
petition. Notably, it is not alleged that petitioners were in any way called to task for violating E.O. 464,
but instead, they were charged for violating the direct order of Gen. Senga not to appear before the
Senate Committee, an order that stands independent of the executive order. Distinctions are called for,
since Section 2(b) of E.O. 464 listed generals and flag officers of the Armed Forces of the Philippines and
such other officers who in the judgment of the Chief of Staff are covered by the executive privilege, as
among those public officials required in Section 3 of E.O. 464 to secure prior consent of the President
prior to appearing before either House of Congress. The Court in Senate declared both Section 2(b) and
Section 3 void,[24] and the impression may have been left following Senate that it settled as doctrine,
that the President is prohibited from requiring military personnel from attending congressional hearings
without having first secured prior presidential consent. That impression is wrong.
Senate turned on the nature of executive privilege, a presidential prerogative which is encumbered by
significant limitations. Insofar as E.O. 464 compelled officials of the executive branch to seek prior
presidential approval before appearing before Congress, the notion of executive control also comes into
consideration.[25] However, the ability of the President to require a military official to secure prior
consent before appearing before Congress pertains to a wholly different and independent specie of
presidential authoritythe commander-in-chief powers of the President. By tradition and jurisprudence,
the commander-in-chief powers of the President are not encumbered by the same degree of restriction
as that which may attach to executive privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the pendency of this petition as well
as the issues raised herein. The decision in Senate was rendered with the comfort that the nullification of
portions of E.O. 464 would bear no impact on the present petition since petitioners herein were not
called to task for violating the executive order. Moreover, the Court was then cognizant that Senate and
this case would ultimately hinge on disparate legal issues. Relevantly, Senate purposely did not touch
upon or rule on the faculty of the President, under the aegis of the commander-in-chief powers[26] to
require military officials from securing prior consent before appearing before Congress. The pertinent
factors in considering that question are markedly outside of those which did become relevant in
adjudicating the issues raised in Senate. It is in this petition that those factors come into play.
At this point, we wish to dispose of another peripheral issue before we strike at the heart of the matter.
General Gudani argues that he can no longer fall within the jurisdiction of the court-martial, considering
his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408, which defines
persons subject to military law as, among others, all officers and soldiers in the active service of the
[AFP], and points out that he is no longer in the active service.
This point was settled against Gen. Gudanis position in Abadilla v. Ramos,[27] where the Court declared
that an officer whose name was dropped from the roll of officers cannot be considered to be outside the
jurisdiction of military authorities when military justice proceedings were initiated against him before the
3
termination of his service. Once jurisdiction has been acquired over the officer, it continues until his case
is terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of the alleged
offenses. This jurisdiction having been vested in the military authorities, it is retained up to the end of the
proceedings against Colonel Abadilla. Well-settled is the rule that jurisdiction once acquired is not lost
upon the instance of the parties but continues until the case is terminated.[28]
Citing Colonel Winthrops treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following passage which goes
against the contention of the petitioners, viz
3. Offenders in general Attaching of jurisdiction. It has further been held, and is now settled law, in regard
to military offenders in general, that if the military jurisdiction has once duly attached to them previous
to the date of the termination of their legal period of service, they may be brought to trial by court-
martial after that date, their discharge being meanwhile withheld. This principle has mostly been applied
to cases where the offense was committed just prior to the end of the term. In such cases the interests of
discipline clearly forbid that the offender should go unpunished. It is held therefore that if before the day
on which his service legally terminates and his right to a discharge is complete, proceedings with a view
to trial are commenced against him as by arrest or the service of charges, the military jurisdiction will
fully attach and once attached may be continued by a trial by court-martial ordered and held after the
end of the term of the enlistment of the accused x x x [29]
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both the acts complained of and
the initiation of the proceedings against him occurred before he compulsorily retired on 4 October 2005.
We see no reason to unsettle the Abadilla doctrine. The OSG also points out that under Section 28 of
Presidential Decree No. 1638, as amended, [a]n officer or enlisted man carried in the retired list [of the
Armed Forces of the Philippines] shall be subject to the Articles of War x x x[30] To this citation,
petitioners do not offer any response, and in fact have excluded the matter of Gen. Gudanis retirement as
an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the gag order that required them to secure presidential consent prior to
their appearance before the Senate, claiming that it violates the constitutional right to information and
transparency in matters of public concern; or if not, is tantamount at least to the criminal acts of
obstruction of justice and grave coercion. However, the proper perspective from which to consider this
issue entails the examination of the basis and authority of the President to issue such an order in the first
place to members of the AFP and the determination of whether such an order is subject to any
limitations.
The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most crucial
to the democratic way of life, to civilian supremacy over the military, and to the general stability of our

representative system of government. The Constitution reposes final authority, control and supervision of
the AFP to the President, a civilian who is not a member of the armed forces, and whose duties as
commander-in-chief represent only a part of the organic duties imposed upon the office, the other
functions being clearly civil in nature.[31] Civilian supremacy over the military also countermands the
notion that the military may bypass civilian authorities, such as civil courts, on matters such as
conducting warrantless searches and seizures.[32]
Pursuant to the maintenance of civilian supremacy over the military, the Constitution has allocated
specific roles to the legislative and executive branches of government in relation to military affairs.
Military appropriations, as with all other appropriations, are determined by Congress, as is the power to
declare the existence of a state of war.[33] Congress is also empowered to revoke a proclamation of
martial law or the suspension of the writ of habeas corpus.[34] The approval of the Commission on
Appointments is also required before the President can promote military officers from the rank of colonel
or naval captain.[35] Otherwise, on the particulars of civilian dominance and administration over the
military, the Constitution is silent, except for the commander-in-chief clause which is fertile in meaning
and implication as to whatever inherent martial authority the President may possess.[36]
The commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which
begins with the simple declaration that [t]he President shall be the Commander-in-Chief of all armed
forces of the Philippines x x x[37] Outside explicit constitutional limitations, such as those found in
Section 5, Article XVI, the commander-in-chief clause vests on the President, as commander-in-chief,
absolute authority over the persons and actions of the members of the armed forces. Such authority
includes the ability of the President to restrict the travel, movement and speech of military officers,
activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa[38] is useful in this regard. Lt. Col. Kapunan was ordered confined
under house arrest by then Chief of Staff (later President) Gen. Fidel Ramos. Kapunan was also ordered,
as a condition for his house arrest, that he may not issue any press statements or give any press
conference during his period of detention. The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline. It cannot be
gainsaid that certain liberties of persons in the military service, including the freedom of speech, may be
circumscribed by rules of military discipline. Thus, to a certain degree, individual rights may be curtailed,
because the effectiveness of the military in fulfilling its duties under the law depends to a large extent on
the maintenance of discipline within its ranks. Hence, lawful orders must be followed without question
and rules must be faithfully complied with, irrespective of a soldier's personal views on the matter. It is
from this viewpoint that the restrictions imposed on petitioner Kapunan, an officer in the AFP, have to be
considered.[39] Any good soldier, or indeed any ROTC cadet, can attest to the fact that the military way of
life circumscribes several of the cherished freedoms of civilian life. It is part and parcel of the military
package. Those who cannot abide by these limitations normally do not pursue a military career and
instead find satisfaction in other fields; and in fact many of those discharged from the service are inspired
in their later careers precisely by their rebellion against the regimentation of military life. Inability or
unwillingness to cope with military discipline is not a stain on character, for the military mode is a highly
idiosyncratic path which persons are not generally conscripted into, but volunteer themselves to be part
of. But for those who do make the choice to be a soldier, significant concessions to personal freedoms are
4
expected. After all, if need be, the men and women of the armed forces may be commanded upon to die
for country, even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has been fully integrated
into the democratic system of governance. The constitutional role of the armed forces is as protector of
the people and of the State.[40] Towards this end, the military must insist upon a respect for duty and a
discipline without counterpart in civilian life.[41] The laws and traditions governing that discipline have a
long history; but they are founded on unique military exigencies as powerful now as in the past.[42] In
the end, it must be borne in mind that the armed forces has a distinct subculture with unique needs, a
specialized society separate from civilian society. [43] In the elegant prose of the eminent British military
historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and diplomats. They
are those of a world apart, a very ancient world, which exists in parallel with the everyday world but does
not belong to it. Both worlds change over time, and the warrior world adopts in step to the civilian. It
follows it, however, at a distance. The distance can never be closed, for the culture of the warrior can
never be that of civilization itself.[44]
Critical to military discipline is obeisance to the military chain of command. Willful disobedience of a
superior officer is punishable by court-martial under Article 65 of the Articles of War.[45] An individual
soldier is not free to ignore the lawful orders or duties assigned by his immediate superiors. For there
would be an end of all discipline if the seaman and marines on board a ship of war [or soldiers deployed
in the field], on a distant service, were permitted to act upon their own opinion of their rights [or their
opinion of the Presidents intent], and to throw off the authority of the commander whenever they
supposed it to be unlawfully exercised.[46]
Further traditional restrictions on members of the armed forces are those imposed on free speech and
mobility. Kapunan is ample precedent in justifying that a soldier may be restrained by a superior officer
from speaking out on certain matters. As a general rule, the discretion of a military officer to restrain the
speech of a soldier under his/her command will be accorded deference, with minimal regard if at all to
the reason for such restraint. It is integral to military discipline that the soldiers speech be with the
consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more imperative if the soldier
desires to speak freely on political matters. The Constitution requires that [t]he armed forces shall be
insulated from partisan politics, and that [n]o member of the military shall engage directly or indirectly in
any partisan political activity, except to vote.[47] Certainly, no constitutional provision or military
indoctrination will eliminate a soldiers ability to form a personal political opinion, yet it is vital that such
opinions be kept out of the public eye. For one, political belief is a potential source of discord among
people, and a military torn by political strife is incapable of fulfilling its constitutional function as
protectors of the people and of the State. For another, it is ruinous to military discipline to foment an
atmosphere that promotes an active dislike of or dissent against the President, the commander-in-chief
of the armed forces. Soldiers are constitutionally obliged to obey a President they may dislike or distrust.
This fundamental principle averts the country from going the way of banana republics.

Parenthetically, it must be said that the Court is well aware that our countrys recent past is marked by
regime changes wherein active military dissent from the chain of command formed a key, though not
exclusive, element. The Court is not blind to history, yet it is a judge not of history but of the Constitution.
The Constitution, and indeed our modern democratic order, frown in no uncertain terms on a politicized
military, informed as they are on the trauma of absolute martial rule. Our history might imply that a
political military is part of the natural order, but this view cannot be affirmed by the legal order. The
evolutionary path of our young democracy necessitates a reorientation from this view, reliant as our
socio-political culture has become on it. At the same time, evolution mandates a similar demand that our
system of governance be more responsive to the needs and aspirations of the citizenry, so as to avoid an
environment vulnerable to a military apparatus able at will to exert an undue influence in our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of travel is another
necessary restriction on members of the military. A soldier cannot leave his/her post without the consent
of the commanding officer. The reasons are self-evident. The commanding officer has to be aware at all
times of the location of the troops under command, so as to be able to appropriately respond to any
exigencies. For the same reason, commanding officers have to be able to restrict the movement or travel
of their soldiers, if in their judgment, their presence at place of call of duty is necessary. At times, this
may lead to unsentimental, painful consequences, such as a soldier being denied permission to witness
the birth of his first-born, or to attend the funeral of a parent. Yet again, military life calls for considerable
personal sacrifices during the period of conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the commanding officer
before he/she may leave his destination. A soldier who goes from the properly appointed place of duty or
absents from his/her command, guard, quarters, station, or camp without proper leave is subject to
punishment by court-martial.[48] It is even clear from the record that petitioners had actually requested
for travel authority from the PMA in Baguio City to Manila, to attend the Senate Hearing.[49] Even
petitioners are well aware that it was necessary for them to obtain permission from their superiors
before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental principles we have
discussed. They seek to be exempted from military justice for having traveled to the Senate to testify
before the Senate Committee against the express orders of Gen. Senga, the AFP Chief of Staff. If
petitioners position is affirmed, a considerable exception would be carved from the unimpeachable right
of military officers to restrict the speech and movement of their juniors. The ruinous consequences to the
chain of command and military discipline simply cannot warrant the Courts imprimatur on petitioners
position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on generalities surrounding military
discipline. After all, petitioners seek to impress on us that their acts are justified as they were responding
to an invitation from the Philippine Senate, a component of the legislative branch of government. At the
same time, the order for them not to testify ultimately came from the President, the head of the
executive branch of government and the commander-in-chief of the armed forces.
5
Thus, we have to consider the question: may the President prevent a member of the armed forces from
testifying before a legislative inquiry? We hold that the President has constitutional authority to do so, by
virtue of her power as commander-in-chief, and that as a consequence a military officer who defies such
injunction is liable under military justice. At the same time, we also hold that any chamber of Congress
which seeks the appearance before it of a military officer against the consent of the President has
adequate remedies under law to compel such attendance. Any military official whom Congress summons
to testify before it may be compelled to do so by the President. If the President is not so inclined, the
President may be commanded by judicial order to compel the attendance of the military officer. Final
judicial orders have the force of the law of the land which the President has the duty to faithfully execute.
[50]
Explication of these principles is in order.
As earlier noted, we ruled in Senate that the President may not issue a blanket requirement of prior
consent on executive officials summoned by the legislature to attend a congressional hearing. In doing so,
the Court recognized the considerable limitations on executive privilege, and affirmed that the privilege
must be formally invoked on specified grounds. However, the ability of the President to prevent military
officers from testifying before Congress does not turn on executive privilege, but on the Chief Executives
power as commander-in-chief to control the actions and speech of members of the armed forces. The
Presidents prerogatives as commander-in-chief are not hampered by the same limitations as in executive
privilege.
Our ruling that the President could, as a general rule, require military officers to seek presidential
approval before appearing before Congress is based foremost on the notion that a contrary rule unduly
diminishes the prerogatives of the President as commander-in-chief. Congress holds significant control
over the armed forces in matters such as budget appropriations and the approval of higher-rank
promotions,[51] yet it is on the President that the Constitution vests the title as commander-in-chief and
all the prerogatives and functions appertaining to the position. Again, the exigencies of military discipline
and the chain of command mandate that the Presidents ability to control the individual members of the
armed forces be accorded the utmost respect. Where a military officer is torn between obeying the
President and obeying the Senate, the Court will without hesitation affirm that the officer has to choose
the President. After all, the Constitution prescribes that it is the President, and not the Senate, who is the
commander-in-chief of the armed forces.[52]
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislatures
functions is the conduct of inquiries in aid of legislation.[53] Inasmuch as it is ill-advised for Congress to
interfere with the Presidents power as commander-in-chief, it is similarly detrimental for the President to
unduly interfere with Congresss right to conduct legislative inquiries. The impasse did not come to pass in
this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court is
aware that with its pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality by which members of
the military may be compelled to attend legislative inquiries even if the President desires otherwise, a

modality which does not offend the Chief Executives prerogatives as commander-in-chief. The remedy
lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the legislative creates
a wrinkle to any basic rule that persons summoned to testify before Congress must do so. There is
considerable interplay between the legislative and executive branches, informed by due deference and
respect as to their various constitutional functions. Reciprocal courtesy idealizes this relationship; hence,
it is only as a last resort that one branch seeks to compel the other to a particular mode of behavior. The
judiciary, the third coordinate branch of government, does not enjoy a similar dynamic with either the
legislative or executive branches. Whatever weakness inheres on judicial power due to its inability to
originate national policies and legislation, such is balanced by the fact that it is the branch empowered by
the Constitution to compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno[54] and Bengzon v. Senate Blue Ribbon Committee,[55] among
others, the Court has not shirked from reviewing the exercise by Congress of its power of legislative
inquiry.[56] Arnault recognized that the legislative power of inquiry and the process to enforce it, is an
essential and appropriate auxiliary to the legislative function.[57] On the other hand, Bengzon
acknowledged that the power of both houses of Congress to conduct inquiries in aid of legislation is not
absolute or unlimited, and its exercise is circumscribed by Section 21, Article VI of the Constitution.[58]
From these premises, the Court enjoined the Senate Blue Ribbon Committee from requiring the
petitioners in Bengzon from testifying and producing evidence before the committee, holding that the
inquiry in question did not involve any intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the constitutional scope and
limitations on the constitutional power of congressional inquiry. Thus:
As discussed in Arnault, the power of inquiry, with process to enforce it, is grounded on the necessity of
information in the legislative process. If the information possessed by executive officials on the operation
of their offices is necessary for wise legislation on that subject, by parity of reasoning, Congress has the
right to that information and the power to compel the disclosure thereof. As evidenced by the American
experience during the so-called McCarthy era, however, the right of Congress to conduct inquirites in aid
of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be
subjected to judicial review pursuant to the Courts certiorari powers under Section 1, Article VIII of the
Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon Committee, the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional power of Congress. Such inquiry could not usurp
judicial functions. Parenthetically, one possible way for Congress to avoid such result as occurred in
Bengzon is to indicate in its invitations to the public officials concerned, or to any person for that matter,
the possible needed statute which prompted the need for the inquiry. Given such statement in its
invitations, along with the usual indication of the subject of inquiry and the questions relative to and in
furtherance thereof, there would be less room for speculation on the part of the person invited on
whether the inquiry is in aid of legislation.
Section 21, Article VI likewise establishes critical safeguards that proscribe the legislative power of
inquiry. The provision requires that the inquiry be done in accordance with the Senate or Houses duly
6
published rules of procedure, necessarily implying the constitutional infirmity of an inquiry conducted
without duly published rules of procedure. Section 21 also mandates that the rights of persons appearing
in or affected by such inquiries be respected, an imposition that obligates Congress to adhere to the
guarantees in the Bill of Rights.
These abuses are, of course, remediable before the courts, upon the proper suit filed by the persons
affected, even if they belong to the executive branch. Nonetheless, there may be exceptional
circumstances wherein a clear pattern of abuse of the legislative power of inquiry might be established,
resulting in palpable violations of the rights guaranteed to members of the executive department under
the Bill of Rights. In such instances, depending on the particulars of each case, attempts by the Executive
Branch to forestall these abuses may be accorded judicial sanction[59].
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the Presidents consent notwithstanding the invocation
of executive privilege to justify such prohibition. The Court did not rule that the power to conduct
legislative inquiry ipso facto superseded the claim of executive privilege, acknowledging instead that the
viability of executive privilege stood on a case to case basis. Should neither branch yield to the other
branchs assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only
the courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to allow a member
of the AFP to appear before Congress, the legislative body seeking such testimony may seek judicial relief
to compel the attendance. Such judicial action should be directed at the heads of the executive branch or
the armed forces, the persons who wield authority and control over the actions of the officers
concerned. The legislative purpose of such testimony, as well as any defenses against the same whether
grounded on executive privilege, national security or similar concerns would be accorded due judicial
evaluation. All the constitutional considerations pertinent to either branch of government may be raised,
assessed, and ultimately weighed against each other. And once the courts speak with finality, both
branches of government have no option but to comply with the decision of the courts, whether the effect
of the decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate disputes
between the legislative and executive branches of government on the proper constitutional parameters
of power.[60] This is the fair and workable solution implicit in the constitutional allocation of powers
among the three branches of government. The judicial filter helps assure that the particularities of each
case would ultimately govern, rather than any overarching principle unduly inclined towards one branch
of government at the expense of the other. The procedure may not move as expeditiously as some may
desire, yet it ensures thorough deliberation of all relevant and cognizable issues before one branch is
compelled to yield to the other. Moreover, judicial review does not preclude the legislative and executive
branches from negotiating a mutually acceptable solution to the impasse. After all, the two branches,
exercising as they do functions and responsibilities that are political in nature, are free to smooth over
the thorns in their relationship with a salve of their own choosing.

And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the President, as
commander-in-chief, to authorize the appearance of the military officers before Congress. Even if the
President has earlier disagreed with the notion of officers appearing before the legislature to testify, the
Chief Executive is nonetheless obliged to comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the Presidents order on
them and other military officers not to testify before Congress without the Presidents consent. Yet these
issues ultimately detract from the main point that they testified before the Senate despite an order from
their commanding officer and their commander-in-chief for them not to do so,[61] in contravention of
the traditions of military discipline which we affirm today. The issues raised by petitioners could have
very well been raised and properly adjudicated if the proper procedure was observed. Petitioners could
have been appropriately allowed to testify before the Senate without having to countermand their
Commander-in-chief and superior officer under the setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this petition.
Petitioners may have been of the honest belief that they were defying a direct order of their
Commander-in-Chief and Commanding General in obeisance to a paramount idea formed within their
consciences, which could not be lightly ignored. Still, the Court, in turn, is guided by the superlative
principle that is the Constitution, the embodiment of the national conscience. The Constitution simply
does not permit the infraction which petitioners have allegedly committed, and moreover, provides for
an orderly manner by which the same result could have been achieved without offending constitutional
principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs. SO ORDERED.
FACTS:
The Senate invited Gen. Gudani and Lt. Col. Balutan to clarify allegations of 2004 election fraud and the
surfacing of the “Hello Garci” tapes. PGMA issued EO 464 enjoining officials of the executive department
including the military establishment from appearing in any legislative inquiry without her consent. AFP
Chief of Staff Gen. Senga issued a Memorandum, prohibiting Gen. Gudani, Col. Balutan et al from
appearing before the Senate Committee without Presidential approval. However, the two appeared
before the Senate in spite the fact that a directive has been given to them. As a result, the two were
relieved of their assignments for allegedly violating the Articles of War and the time honoured principle
of the “Chain of Command.” Gen. Senga ordered them to be subjected before the General Court
Martial proceedings for willfuly violating an order of a superior officer.
ISSUE: Whether or not the President has the authority to issue an order to the members of the AFP
preventing them from testifying before a legislative inquiry.
RULING:
Yes. The SC hold that President has constitutional authority to do so, by virtue of her power as
commander-in-chief, and that as a consequence a military officer who defies such injunction is liable
under military justice. At the same time, any chamber of Congress which seeks the appearance before it
7
of a military officer against the consent of the President has adequate remedies under law to compel
such attendance. Any military official whom Congress summons to testify before it may be compelled to
do so by the President. If the President is not so inclined, the President may be commanded by judicial
order to compel the attendance of the military officer. Final judicial orders have the force of the law of
the land which the President has the duty to faithfully execute.
SC ruled in Senate v. Ermita that the President may not issue a blanket requirement of prior consent on
executive officials summoned by the legislature to attend a congressional hearing. In doing so, the Court
recognized the considerable limitations on executive privilege, and affirmed that the privilege must be
formally invoked on specified grounds. However, the ability of the President to prevent military officers
from testifying before Congress does not turn on executive privilege, but on the Chief Executive’s power
as commander-in-chief to control the actions and speech of members of the armed forces. The
President’s prerogatives as commander-in-chief are not hampered by the same limitations as in executive
privilege.
At the same time, the refusal of the President to allow members of the military to appear before
Congress is still subject to judicial relief. The Constitution itself recognizes as one of the legislature’s
functions is the conduct of inquiries in aid of legislation. Inasmuch as it is ill-advised for Congress to
interfere with the President’s power as commander-in-chief, it is similarly detrimental for the President
to unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did not come to
pass in this petition, since petitioners testified anyway despite the presidential prohibition. Yet the Court
is aware that with its pronouncement today that the President has the right to require prior consent from
members of the armed forces, the clash may soon loom or actualize. The duty falls on the shoulders of
the President, as commander-in-chief, to authorize the appearance of the military officers before
Congress. Even if the President has earlier disagreed with the notion of officers appearing before the
legislature to testify, the Chief Executive is nonetheless obliged to comply with the final orders of the
courts.
FACTS:
Petitioners Gen. Gudani and Lieutenant Colonel Balutan are high-ranking officers of Philippine Marines
assigned to the Philippine Military Academy (PMA) in Baguio City. Senator Biazon invited several senior
officers of the military to appear at a public hearing before a Senate Committee to clarify allegations of
massive cheating and the surfacing of copies of an audio excerpt purportedly of a phone conversation
between the President and then Commission on Elections Commissioner Garcillano. At the time of the
2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a member, of “Joint
Task Force Ranao” by the AFP Southern Command. Armed Forces of the Philippines (AFP) Chief of Staff
Lt . Gen. Senga were among the several AFP officers also received a letter invitation from Sen. Biazon to
attend the hearing. But only Gen. Gudani, and Col. Balutan attended the invitation from Sen. Biazon.
Thereafter, the Office of the Chief of Staff of the AFP issued a Memorandum addressed to Gen. Baloing. It
was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga. Noting that Gen. Gudani and Col.
Balutan had been invited to attend the Senate Committee hearing, the Memorandum directed the two
officers to attend the hearing. Conformably, Gen. Gudani and Col. Balutan filed their respective requests
for travel authority addressed to the PMA Superintendent.

However, Gen. Senga did not attend to the requested hearing as per instruction from the President that
NO AFP PERSONNEL SHALL APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. ` While Gen. Gudani and Col. Balutan had concluded their testimony, the office of Gen. Senga
issued a statement which noted that the two had appeared before the Senate Committee “in spite of the
fact that a guidance has been given that a Presidential approval should be sought prior to such an
appearance;” that such directive was “in keeping with the time[-]honored principle of the Chain of
Command;” and that the two officers “disobeyed a legal order, in violation of A[rticles of] W[ar] 65
(Willfully Disobeying Superior Officer), hence they will be subjected to General Court Martial proceedings
x x x” Both Gen. Gudani and Col. Balutan were likewise relieved of their assignments then. On the very
day of the hearing, the President issued Executive Order (E.O.) 464. The Office of the Solicitor General
notes that the E.O. “enjoined officials of the executive department including the military establishment
from appearing in any legislative inquiry without her approval.
Now, petitioners seek the annulment of a directive from the President enjoining them and other military
officers from testifying before Congress without the President’s consent. Petitioners also pray for
injunctive relief against a pending preliminary investigation against them, in preparation for possible
court-martial proceedings, initiated within the military justice system in connection with petitioners’
violation of the aforementioned directive. The Court has to resolve whether petitioners may be subjected
to military discipline on account of their defiance of a direct order of the AFP Chief of Staff.
ISSUE: Whether or not E.O. 464 which provides among others that NO AFP PERSONNEL SHALL APPEAR
BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER APPROVAL is unconstitutional?
RULING:
The Petition is dismissed.
Is EO 464 constitutional or not, or may the President prevent a member of the armed forces from
testifying before a legislative inquiry?
Insofar as E.O. 464 compelled officials of the executive branch to seek prior presidential approval before
appearing before Congress, the notion of executive control also comes into consideration. The impression
is wrong. The ability of the President to require a military official to secure prior consent before
appearing in Congress pertains to wholly different and independent specie of presidential authority—the
commander-in-chief powers of the President. By tradition and jurisprudence, the commander-in-chief
powers of the President are not encumbered by the same degree of restriction as that which may attach
to executive privilege or executive control.
We hold that the President has constitutional authority to do so, by virtue of her power as commander-
in-chief, and that as a consequence a military officer who defies such injunction is liable under military
justice. At the same time, we also hold that any chamber of Congress which seeks to appear before it a
military officer against the consent of the President has adequate remedies under law to compel such
attendance. Any military official whom Congress summons to testify before it may be compelled to do so
by the President. If the President is not so inclined, the President may be commanded by judicial order to
compel the attendance of the military officer. Final judicial orders have the force of the law of the land
which the President has the duty to faithfully execute.
8
Again, let it be emphasized that the ability of the President to prevent military officers from testifying
before Congress does not turn on executive privilege, but on the Chief Executive’s power as commander-
in-chief to control the actions and speech of members of the armed forces. The President’s prerogatives
as commander-in-chief are not hampered by the same limitations as in executive privilege. The
commander-in-chief provision in the Constitution is denominated as Section 18, Article VII, which begins
with the simple declaration that “[t]he President shall be the Commander-in-Chief of all armed forces of
the Philippines x x x Outside explicit constitutional limitations, such as those found in Section 5, Article
XVI, the commander-in-chief clause vests on the President, as commander-in-chief, absolute authority
over the persons and actions of the members of the armed forces. Such authority includes the ability of
the President to restrict the travel, movement and speech of military officers, activities which may
otherwise be sanctioned under civilian law. Reference to Kapunan, Jr. v. De Villa is useful in this regard.
Lt. Col. Kapunan was ordered confined under “house arrest” by then Chief of Staff (later President) Gen.
Fidel Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not issue any
press statements or give any press conference during his period of detention. The Court unanimously
upheld such restrictions, noting:
“… to a certain degree, individual rights may be curtailed, because the effectiveness of the military in
fulfilling its duties under the law depends to a large extent on the maintenance of discipline within its
ranks. Hence, lawful orders must be followed without question and rules must be faithfully complied
with, irrespective of a soldier's personal views on the matter. It is from this viewpoint that the restrictions
imposed on petitioner Kapunan, an officer in the AFP, have to be considered.”
As a general rule, it is integral to military discipline that the soldier’s speech be with the consent and
approval of the military commander. The necessity of upholding the ability to restrain speech becomes
even more imperative if the soldier desires to speak freely on political matters. For there is no
constitutional provision or military indoctrination will eliminate a soldier’s ability to form a personal
political opinion, yet it is vital that such opinions be kept out of the public eye. For one, political belief is a
potential source of discord among people, and a military torn by political strife is incapable of fulfilling its
constitutional function as protectors of the people and of the State. For another, it is ruinous to military
discipline to foment an atmosphere that promotes an active dislike of or dissent against the President,
the commander-in-chief of the armed forces. Soldiers are constitutionally obliged to obey a President
they may dislike or distrust. Even petitioners are well aware that it was necessary for them to obtain
permission from their superiors before they could travel to Manila to attend the Senate Hearing.
Congress holds significant control over the armed forces in matters such as budget appropriations and
the approval of higher-rank promotions, yet it is on the President that the Constitution vests the title as
commander-in-chief and all the prerogatives and functions appertaining to the position. Again, the
exigencies of military discipline and the chain of command mandate that the President’s ability to control
the individual members of the armed forces be accorded the utmost respect. Where a military officer is
torn between obeying the President and obeying the Senate, the Court will without hesitation affirm that
the officer has to choose the President. After all, the Constitution prescribes that it is the President, and
not the Senate, who is the commander-in-chief of the armed forces.
Judicial relief as remedy:

The refusal of the President to allow members of the military to appear before Congress is not absolute.
Inasmuch as it is ill-advised for Congress to interfere with the President’s power as commander-in-chief, it
is similarly detrimental for the President to unduly interfere with Congress’s right to conduct legislative
inquiries. The impasse did not come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. The remedy lies with the courts. Senate affirmed both the Arnault and Bengzon
rulings. It elucidated on the constitutional scope and limitations on the constitutional power of
congressional inquiry. Thus, the power of inquiry, “with process to enforce it,” is grounded on the
necessity of information in the legislative process. If the information possessed by executive officials on
the operation of their offices is necessary for wise legislation on that subject, by parity of reasoning,
Congress has the right to that information and the power to compel the disclosure thereof.
It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1,
Article VIII of the Constitution. To avoid conflict, Congress must indicate in its invitations to the public
officials concerned, or to any person for that matter, the possible needed statute which prompted the
need for the inquiry. Section 21, Article VI likewise establishes critical safeguards that proscribe the
legislative power of inquiry. The provision requires that the inquiry be done in accordance with the
Senate or House’s duly published rules of procedure, necessarily implying the constitutional infirmity of
an inquiry conducted without duly published rules of procedure. Section 21 also mandates that the rights
of persons appearing in or affected by such inquiries be respected, an imposition that obligates Congress
to adhere to the guarantees in the Bill of Rights.
In Senate, the Court ruled that the President could not impose a blanket prohibition barring executive
officials from testifying before Congress without the President’s consent notwithstanding the invocation
of executive privilege to justify such prohibition. Should neither branch yield to the other branch’s
assertion, the constitutional recourse is to the courts, as the final arbiter if the dispute. It is only the
courts that can compel, with conclusiveness, attendance or non-attendance in legislative inquiries. Courts
are empowered, under the constitutional principle of judicial review, to arbitrate disputes between the
legislative and executive branches of government on the proper constitutional parameters of power. By
this and, if the courts so rule, the duty falls on the shoulders of the President, as commander-in-chief, to
authorize the appearance of the military officers before Congress. Even if the President has earlier
disagreed with the notion of officers appearing before the legislature to testify, the Chief Executive is
nonetheless obliged to comply with the final orders of the courts.
Lastly, General Gudani argues that he can no longer fall within the jurisdiction of the court-martial,
considering his retirement last 4 October 2005. He cites Article 2, Title I of Commonwealth Act No. 408,
which defines persons subject to military law as, among others, “all officers and soldiers in the active
service of the [AFP],” and points out that he is no longer in the active service. However, an officer whose
name was dropped from the roll of officers cannot be considered to be outside the jurisdiction of military
authorities when military justice proceedings were initiated against him before the termination of his
service. Once jurisdiction has been acquired over the officer, it continues until his case is terminated.
9
FACTS:
On September 22, 2005, Senator Rodolfo Biazon invited several senior officers of the Armed Forces of the
Philippines (AFP) to appear at a public hearing before the Senate Committee on National Defense and
Security scheduled on September 28, 2005. The hearing was scheduled after topics concerning the
conduct of the 2004 elections emerged in the public eye, particularly allegations of massive cheating and
the surfacing of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC) widely reputed as
then COMELEC Commissioner Virgilio Garcillano. Brigadier General Francisco Gudani and Lieutenant
Colonel Alexander Balutan, both assigned to the Philippine Military Academy as PMA Assistant
Superintendent and Assistant Commandant of Cadets, respectively, as well as AFP Chief of Staff
Lieutenant General Generoso Senga were among the AFP officers who received a letter of invitation from
Sen. Biazon to attend the hearing. On the evening of September 27, 2005, a message was transmitted to
the PMA Superintendent from Gen. Senga stating that “Per instruction of Her Excellency PGMA, No AFP
personnel shall appear before any congressional or senate hearing without her approval” and to inform
Gen. Gudani and Lt. Col. Balutan of the same. But the two were already en route to Manila from Baguio
and did not receive the message such that the following day, both were present at the hearing and
testified as to the conduct of the 2004 elections. The office of Gen. Senga issued a statement noting that
Gudani and Balutan had appeared before the Senate Committee in spite of the fact that a guidance had
been given that a Presidential approval should be sought prior to such an appearance; that such directive
was in keeping with the time-honored principle of the Chain of Command; and that the two officers
disobeyed a legal order, in violation of Articles of War 65 (Willfully Disobeying Superior Officer) such that
the two will be subjected to General Court Martial proceedings and were likewise relieved of their
assignments. The Office of the Provost Marshal General (OPMG) recommended that petitioners be
charged with violation of Article of War 65. The case was referred to a Pre-Trial Investigation Officer
(PTIO) preparatory to trial by the General Court Martial.
ISSUE: Does the President have the authority to issue an order to the members of the AFP preventing
them from testifying before a legislative inquiry?
HELD:
Yes. The vitality of the tenet that the President is the commander-in-chief of the Armed Forces is most
crucial to the democratic way of life, to civilian supremacy over the military, and to the general stability of
our representative system of government. The Constitution reposes final authority, control and
supervision of the AFP to the President, a civilian who is not a member of the armed forces, and whose
duties as commander-in-chief represent only a part of the organic duties imposed upon the office, the
other functions being clearly civil in nature. Civilian supremacy over the military also countermands the
notion that the military may bypass civilian authorities, such as civil courts, on matters such as
conducting warrantless searches and seizures. The commander-in-chief provision in the Constitution is
denominated as Section 18, Article VII, which begins with the simple declaration that the President shall
be the Commander-in-Chief of all armed forces of the Philippines. Outside explicit constitutional
limitations, the commander-in-chief clause vests on the President, as commander-in-chief, absolute
authority over the persons and actions of the members of the armed forces. Such authority includes the
ability of the President to restrict the travel, movement and speech of military officers, activities which
may otherwise be sanctioned under civilian law.

EN BANC
A.M. No. P-11-2927 December 13, 2011
[Formerly A.M. OCA IPI No. 10-3532-P]
LEAVE DIVISION, OFFICE OF ADMINISTRATIVE SERVICES-Office of the CourT Administrator
(OCA),Complainant,
vs.
WILMA SALVACION P. HEUSDENS, Clerk IV Municipal Trial Court in Cities, Tagum City, Respondent.
DECISION
MENDOZA, J.:
This case stemmed from the leave application for foreign travel1 sent through mail by Wilma Salvacion P.
Heusdens (respondent), Staff Clerk IV of the Municipal Trial Court in Cities, Tagum City, Davao del Norte.
Records disclose that on July 10, 2009, the Employees Leave Division, Office of Administrative Services,
Office of the Court Administrator (OCA), received respondent’s leave application for foreign travel from
September 11, 2009 to October 11, 2009. Respondent left for abroad without waiting for the result of her
application. It turned out that no travel authority was issued in her favor because she was not cleared of
all her accountabilities as evidenced by the Supreme Court Certificate of Clearance. Respondent reported
back to work on October 19, 2009.2
The OCA, in its Memorandum3 dated November 26, 2009, recommended the disapproval of respondent’s
leave application. It further advised that respondent be directed to make a written explanation of her
failure to secure authority to travel abroad in violation of OCA Circular No. 49-2003. On December 7,
2009, then Chief Justice Reynato S. Puno approved the OCA recommendation.
Accordingly, in a letter4 dated January 6, 2010, OCA Deputy Court Administrator Nimfa C. Vilches
informed respondent that her leave application was disapproved and her travel was considered
unauthorized. Respondent was likewise directed to explain within fifteen (15) days from notice her failure
to comply with the OCA circular.
In her Comment dated February 2, 2010, respondent admitted having travelled overseas without the
5
required travel authority. She explained that it was not her intention to violate the rules as she, in fact,
mailed her leave application which was approved by her superior, Judge Arlene Lirag-Palabrica, as early
as June 26, 2009. She honestly believed that her leave application would be eventually approved by the
Court.
The OCA, in its Report6 dated March 8, 2011, found respondent to have violated OCA Circular No. 49-
2003 for failing to secure the approval of her application for travel authority.
Hence, the OCA recommended that the administrative complaint be re-docketed as a regular
administrative matter and that respondent be deemed guilty for violation of OCA Circular No. 49-2003
10
and be reprimanded with a warning that a repetition of the same or similar offense in the future would
be dealt with more severely.
OCA Circular No. 49-2003 (B) specifically requires that:
B. Vacation Leave to be Spent Abroad.
Pursuant to the resolution in A.M. No. 99-12-08-SC dated 6 November 2000,7 all foreign travels of judges
and court personnel, regardless of the number of days, must be with prior permission from the Supreme
Court through the Chief Justice and the Chairmen of the Divisions.
1. Judges and court personnel who wish to travel abroad must secure a travel authority from the Office of
the Court Administrator. The judge or court personnel must submit the following:
(a) For Judges
(b) For Court Personnel:
• application or letter-request addressed to the Court Administrator stating the purpose of the
travel abroad;
• application for leave covering the period of the travel abroad, favorably recommended by
the Presiding Judge or Executive Judge;
• clearance as to money and property accountability;
• clearance as to pending criminal and administrative case filed against him/her, if any;
• for court stenographer, clearance as to pending stenographic notes for transcription from
his/her court and from the Court of Appeals; and
• Supreme Court clearance.
2. Complete requirements should be submitted to and received by the Office of the Court Administrator
at least two weeks before the intended period. No action shall be taken on requests for travel authority
with incomplete requirements. Likewise, applications for travel abroad received less than two weeks of
the intended travel shall not be favorably acted upon. [Underscoring supplied]
Paragraph 4 of the said circular also provides that "judges and personnel who shall leave the country
without travel authority issued by the Office of the Court Administrator shall be subject to disciplinary
action." In addition, Section 67 of the Civil Service Omnibus Rules on Leave 8 expressly provides that "any
violation of the leave laws, rules or regulations, or any misrepresentation or deception in connection with
an application for leave, shall be a ground for disciplinary action." In fact, every government employee
who files an application for leave of absence for at least thirty (30) calendar days is instructed to submit a
clearance as to money and property accountabilities.9

In this case, respondent knew that she had to secure the appropriate clearance as to money and property
accountability to support her application for travel authority. She cannot feign ignorance of this
requirement because she had her application for clearance circulated through the various divisions. She,
however, failed to secure clearance from the Supreme Court Savings and Loan Association (SCSLA) where
she had an outstanding loan.
There is no dispute, therefore, that although respondent submitted her leave application for foreign
travel, she failed to comply with the clearance and accountability requirements. As the OCA Circular
specifically cautions that "no action shall be taken on requests for travel authority with incomplete
requirements," it was expected that her leave application would, as a consequence, be disapproved by
the OCA.
Considering that respondent was aware that she was not able to complete the requirements, her
explanation that she honestly believed that her application would be approved is unacceptable. Thus, her
leaving the country, without first awaiting the approval or non-approval of her application to travel
abroad from the OCA, was violative of the rules.
On the Constitutional Right to Travel
It has been argued that OCA Circular No. 49-2003 (B) on vacation leave to be spent abroad unduly
restricts a citizen’s right to travel guaranteed by Section 6, Article III of the 1987 Constitution. 10 Section 6
reads:
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. [Emphases
supplied]
Let there be no doubt that the Court recognizes a citizen’s constitutional right to travel. It is, however, not
the issue in this case. The only issue in this case is the non-compliance with the Court’s rules and
regulations. It should be noted that respondent, in her Comment, did not raise any constitutional
concerns. In fact, she was apologetic and openly admitted that she went abroad without the required
travel authority. Hence, this is not the proper vehicle to thresh out issues on one’s constitutional right to
travel.
Nonetheless, granting that it is an issue, the exercise of one’s right to travel or the freedom to move from
one place to another,11 as assured by the Constitution, is not absolute. There are constitutional, statutory
and inherent limitations regulating the right to travel. Section 6 itself provides that "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." Some of these statutory limitations are the following:
1] The Human Security Act of 2010 or Republic Act (R.A.) No. 9372. The law restricts the right
to travel of an individual charged with the crime of terrorism even though such person is out
on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of,
or withdraw, a passport of a Filipino citizen.
11
3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the Bureau of Immigration, in order to manage migration and curb trafficking in
persons, issued Memorandum Order Radjr No. 2011-011,12 allowing its Travel Control and
Enforcement Unit to "offload passengers with fraudulent travel documents, doubtful purpose
of travel, including possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by
R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment
Administration (POEA) may refuse to issue deployment permit to a specific country that
effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee’s right to travel "to protect the
Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or prejudicial to the child."
Inherent limitations on the right to travel are those that naturally emanate from the source. These are
very basic and are built-in with the power. An example of such inherent limitation is the power of the trial
courts to prohibit persons charged with a crime to leave the country.13 In such a case, permission of the
court is necessary. Another is the inherent power of the legislative department to conduct a
congressional inquiry in aid of legislation. In the exercise of legislative inquiry, Congress has the power to
issue a subpoena and subpoena duces tecum to a witness in any part of the country, signed by the
chairperson or acting chairperson and the Speaker or acting Speaker of the House;14 or in the case of the
Senate, signed by its Chairman or in his absence by the Acting Chairman, and approved by the Senate
President.15
Supreme Court has administrative supervision over all courts and the personnel thereof
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that
the "Supreme Court shall have administrative supervision over all courts and the personnel thereof." This
provision empowers the Court to oversee all matters relating to the effective supervision and
management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular No.
26 of the Office of the President, dated July 31, 1986,16considers the Supreme Court exempt and with
authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with
OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to,
and abide with, the law and the corresponding office rules and regulations. These rules and regulations,
to which one submits himself or herself, have been issued to guide the government officers and
employees in the efficient performance of their obligations. When one becomes a public servant, he or
she assumes certain duties with their concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be prejudiced.
As earlier stated, with respect to members and employees of the Judiciary, the Court issued OCA Circular
No. 49-2003 to regulate their foreign travel in an unofficial capacity. Such regulation is necessary for the
orderly administration of justice. If judges and court personnel can go on leave and travel abroad at will
 12

and without restrictions or regulations, there could be a disruption in the administration of justice. A employee.19 Although SCSLA is a private entity, it cannot be denied that its functions and operations are
situation where the employees go on mass leave and travel together, despite the fact that their inextricably connected with the Court. First, SCSLA was primarily established as a savings vehicle for
invaluable services are urgently needed, could possibly arise. For said reason, members and employees Supreme Court and lower court employees. The membership, which is voluntary, is open only to
of the Judiciary cannot just invoke and demand their right to travel. Supreme Court justices, officials, and employees with permanent, coterminous, or casual appointment,
as well as to first and second-level court judges and their personnel. 20 An eligible employee who applies
for membership with SCSLA must submit, together with his application, his latest appointment papers
To permit such unrestricted freedom can result in disorder, if not chaos, in the Judiciary and the society
issued by the Supreme Court.21 Second, when an employee-member applies for a SCSLA loan, he or she is
as well. In a situation where there is a delay in the dispensation of justice, litigants can get disappointed
asked to authorize the Supreme Court payroll office to deduct the amount due and remit it to
and disheartened. If their expectations are frustrated, they may take the law into their own hands which
SCSLA. Third, the employee-borrower likewise undertakes to assign in favor of SCSLA, in case of non-
results in public disorder undermining public safety. In this limited sense, it can even be considered that
payment, his capital deposit, including earned dividends, all monies and monetary benefits due or would
the restriction or regulation of a court personnel’s right to travel is a concern for public safety, one of the
be due from his office, Government Service Insurance System or from any government office or other
exceptions to the non-impairment of one’s constitutional right to travel.
sources, to answer the remaining balance of his loan.22 Fourth, every employee-borrower must procure
SCSLA members to sign as co-makers for the loan23 and in case of leave applications that would require
Given the exacting standard expected from each individual called upon to serve in the Judiciary, it is the processing of a Supreme Court clearance, another co-maker’s undertaking would be needed.
imperative that every court employee comply with the travel notification and authority requirements as
mandated by OCA Circular No. 49-2003. A court employee who plans to travel abroad must file his leave
The Court stresses that it is not sanctioning respondent for going abroad with an unpaid debt but for
application prior to his intended date of travel with sufficient time allotted for his application to be
failing to comply with the requirements laid down by the office of which she is an employee. When
processed and approved first by the Court. He cannot leave the country without his application being
respondent joined the Judiciary and volunteered to join the SCSLA, she agreed to follow the
approved, much less assume that his leave application would be favorably acted upon. In the case at
requirements and regulations set forth by both offices. When she applied for a loan, she was not forced
bench, respondent should have exercised prudence and asked for the status of her leave application
or coerced to accomplish the requirements. Everything was of her own volition.
before leaving for abroad.

In this regard, having elected to become a member of the SCSLA, respondent voluntarily and knowingly
Indeed, under the Omnibus Rules Implementing Book V of Executive Order (EO) No. 292, a leave
committed herself to honor these undertakings. By accomplishing and submitting the said undertakings,
application should be acted upon within five (5) working days after its receipt, otherwise the leave
respondent has clearly agreed to the limitations that would probably affect her constitutional right to
application shall be deemed approved. Section 49, Rule XVI of the Omnibus Rules on Leave reads:
travel. By her non-compliance with the requirement, it can be said that she has waived, if not constricted,
her right. An employee cannot be allowed to enjoy the benefits and privileges of SCSLA membership and
SEC. 49. Period within which to act on leave applications. – Whenever the application for leave of at the same time be exempted from her voluntary obligations and undertakings.
absence, including terminal leave, is not acted upon by the head of agency or his duly authorized
representative within five (5) working days after receipt thereof, the application for leave of absence shall
A judiciary employee who leaves for abroad without authority must be prepared to face the
be deemed approved.
consequences

Applying this provision, the Court held in the case of Commission on Appointments v. Paler17 that an
Lest it be misunderstood, a judge or a member of the Judiciary, who is not being restricted by a criminal
employee could not be considered absent without leave since his application was deemed approved. In
court or any other agency pursuant to any statutory limitation, can leave for abroad without
said case, there was no action on his application within five (5) working days from receipt thereof.18
permission but he or she must be prepared to face the consequences for his or her violation of the
Court’s rules and regulations. Stated otherwise, he or she should expect to be subjected to a disciplinary
The ruling in Paler, however, is not squarely applicable in this case. First, the employee in said case was action. In the past, the Court was not hesitant to impose the appropriate sanctions and penalties.
governed by CSC Rules only. In the case of respondent, like the others who are serving the Judiciary, she
is governed not only by CSC Rules but also by OCA Circular No. 49-2003 which imposes guidelines on
In Office of the Administrative Services (OAS)-Office of the Court Administrator (OCA) v. Calacal,24 a utility
requests for travel abroad for judges and court personnel. Second, in Paler, the employee submitted his
worker of the Metropolitan Trial Court was found guilty of violating OCA Circular No. 49-2003 for going
leave application with complete requirements before his intended travel date. No additional requirement
overseas without the required travel authority and was reprimanded and warned that a repetition of the
was asked to be filed. In the case of respondent, she submitted her leave application but did not fully
same or similar offense would be penalized more severely. In that case, the Court stressed that
comply with the clearance and accountability requirements enumerated in OCA Circular No. 49-2003.
unawareness of the circular was not an excuse from non-compliance therewith. 25
Third, in Paler, there was no approval or disapproval of his application within 5 working days from the
submission of the requirements. In this case, there was no submission of the clearance requirements
and, hence, the leave application could not have been favorably acted upon. In Reyes v. Bautista,26 a court stenographer was found guilty of violation of OCA Circular No. 49-2003 for
traveling abroad without securing the necessary permission for foreign travel. She was also found guilty
of dishonesty when she indicated in her application that her leave would be spent in the Philippines,
SCSLA membership is voluntary
when in truth it was spent abroad. Because of the employee’s numerous infractions, she was dismissed
from the service with forfeiture of all benefits and privileges, except accrued leave credits, with prejudice
Regarding the requirement of the OCA that an employee must also seek clearance from the SCSLA, the to re-employment in any branch or instrumentality of the government, including government owned or
Court finds nothing improper in it. OCA is not enforcing the collection of a loan extended to such controlled corporations.
 13

In Concerned Employees of the Municipal Trial Court of Meycauayan, Bulacan v. Paguio-Bacani,27 a

branch clerk of court of the Municipal Trial Court of Meycauayan, Bulacan, was found guilty of dishonesty
for falsifying her Daily Time Record and leaving the country without the requisite travel authority. She
was suspended from the service for one (1) year without pay, with a warning that a repetition of the
same or similar offense would be dealt with more severely.lavvphi1

Following the Uniform Rules on Administrative Cases in the Civil Service, the Court considers a violation
of reasonable office rules and regulations as a light offense and punishable with reprimand on the first
offense; suspension for one to thirty days on the second; and dismissal from the service on the third
infraction. Considering that this appears to be respondent’s first infraction, the OCA recommended that
she be penalized with a reprimand and warned that a repetition of the same or similar offense would be
dealt with more severely.

The Court, nonetheless, takes note of the belated action (4 months) of the Leave Division on her
application for leave which she submitted two months before her intended departure date. The Leave
Division should have acted on the application, favorably or unfavorably, before the intended date with
sufficient time to communicate it to the applicant. If an applicant has not complied with the
requirements, the Leave Division should deny the same and inform him or her of the adverse action. As
respondent was not informed of the denial of her application within a reasonable time, respondent
should only be admonished.

WHEREFORE, respondent Wilma Salvacion P. Heusdens, Clerk IV Municipal Trial Court in Cities, Tagum
City, is hereby ADMONISHED for traveling abroad without any travel authority in violation of OCA Circular
No. 49-2003, with a WARNING that a repetition of the same or similar offense would be dealt with more
severely.

The Leave Division, OAS-OCA, is hereby directed to act upon applications for travel abroad at least five (5)
working days before the intended date of departure.

SO ORDERED.

EN BANC
G.R. No. 225442, August 08, 2017
SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM, JOHN ARVIN
NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, AND CLARISSA JOYCE VILLEGAS,
MINOR, FOR HERSELF AND AS REPRESENTED BY HER FATHER, JULIAN VILLEGAS,
JR., Petitioners, v. QUEZON CITY, AS REPRESENTED BY MAYOR HERBERT BAUTISTA, CITY OF MANILA, AS
REPRESENTED BY MAYOR JOSEPH ESTRADA, AND NAVOTAS CITY, AS REPRESENTED BY MAYOR JOHN
REY TIANGCO, Respondents.
DECISION
PERLAS-BERNABE, J.:
This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued by
the local governments of Quezon City, Manila, and Navotas. The petition prays that a temporary
restraining order (TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey
Tiangco, as Mayors of their respective local governments, to prohibit, refrain, and desist from
implementing and enforcing these issuances, pending resolution of this case, and eventually, declare the
City of Manila's ordinance as ultra vires for being contrary to Republic Act No. (RA) 9344,2 or the "Juvenile
Justice and Welfare Act," as amended, and all curfew ordinances as unconstitutional for violating the
constitutional right of minors to travel, as well as the right of parents to rear their children.
The Facts
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors,
several local governments in Metro Manila started to strictly implement their curfew ordinances on
minors through police operations which were publicly known as part of "Oplan Rody." 3
Among those local governments that implemented curfew ordinances were respondents: (a) Navotas
City, through Pambayang Ordinansa Blg. 99-02,4 dated August 26, 1999, entitled "Nagtatakda ng
'Curfew' ng mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng Navotas,
Kalakhang Maynila," as amended by Pambayang Ordinansa Blg. 2002-13,5 dated June 6, 2002 (Navotas
Ordinance); (b) City of Manila, through Ordinance No. 80466 entitled "An Ordinance Declaring the Hours
from 10:00 P.M. to 4:00A.M. of the Following Day as 'Barangay Curfew Hours' for Children and Youths
Below Eighteen (18) Years of Age; Prescribing Penalties Therefor; and for Other Purposes" dated October
14, 2002 (Manila Ordinance); and (c) Quezon City, through Ordinance No. SP-2301,7 Series of 2014,
entitled "An Ordinance Setting for a [sic] Disciplinary Hours in Quezon City for Minors from 10:00 P.M. to
5:00A.M., Providing Penalties for Parent/Guardian, for Violation Thereof and for Other Purposes" dated
July 31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances). 8
Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK)- an association of
young adults and minors that aims to forward a free and just society, in particular the protection of the
rights and welfare of the youth and minors10 - filed this present petition, arguing that the Curfew
Ordinances are unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and
thus, fall under the void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing
14
legitimate activities of minors during curfew hours; (c) deprive minors of the right to liberty and the right
to travel without substantive due process; and (d) deprive parents of their natural and primary right in
rearing the youth without substantive due process.11 In addition, petitioners assert that the Manila
Ordinance contravenes RA 9344, as amended by RA 10630.12
More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory
enforcement as there are no clear provisions or detailed standards on how law enforcers should
apprehend and properly determine the age of the alleged curfew violators. 13 They further argue that the
law enforcer's apprehension depends only on his physical assessment, and, thus, subjective and based
only on the law enforcer's visual assessment of the alleged curfew violator.14
While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities
exempted from the operation of the imposed curfews, i.e., exemption of working students or students
with evening class, they contend that the lists of exemptions do not cover the range and breadth of
legitimate activities or reasons as to why minors would be out at night, and, hence, proscribe or impair
the legitimate activities of minors during curfew hours.15
Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of
the right to liberty and the right to travel without substantive due process;16 and (b) fail to pass the strict
scrutiny test, for not being narrowly tailored and for employing means that bear no reasonable relation
to their purpose.17 They argue that the prohibition of minors on streets during curfew hours will not per
se protect and promote the social and moral welfare of children of the community. 18
Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof, contravenes
Section 57-A20 of RA 9344, as amended, given that the cited curfew provision imposes on minors the
penalties of imprisonment, reprimand, and admonition. They contend that the imposition of penalties
contravenes RA 9344's express command that no penalty shall be imposed on minors for curfew
violations.21
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the
parents' prerogative to impose them in the exercise of their natural and primary right in the rearing of
the youth, and that even if a compelling interest exists, less restrictive means are available to achieve the
same. In this regard, they suggest massive street lighting programs, installation of CCTVs (closed-circuit
televisions) in public streets, and regular visible patrols by law enforcers as other viable means of
protecting children and preventing crimes at night. They further opine that the government can impose
more reasonable sanctions, i.e., mandatory parental counseling and education seminars informing the
parents of the reasons behind the curfew, and that imprisonment is too harsh a penalty for parents who
allowed their children to be out during curfew hours.22
The Issue Before the Court
The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are
unconstitutional.
The Court's Ruling
The petition is partly granted.

I.
At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the
dismissal of the petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the
Rules of Court to assail the constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the
Court, contrary to the hierarchy of courts doctrine; and (c) the lack of actual controversy and standing to
warrant judicial review.23
A. Propriety of the Petition for Certiorari and Prohibition.
Under the 1987 Constitution, judicial power includes the duty of the courts of justice not only "to settle
actual controversies involving rights which are legally demandable and enforceable," but also "to
determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government." 24 Section 1, Article VIII of
the 1987 Constitution reads:
ARTICLE VIII
JUDICIAL DEPARTMENT
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentalitv of the Government. (Emphasis and underscoring supplied)
Case law explains that the present Constitution has "expanded the concept of judicial power, which up to
then was confined to its traditional ambit of settling actual controversies involving rights that were legally
demandable and enforceable."25
In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court "are
the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government may be determined under the Constitution."27 It
was explained that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial,
quasi-judicial or ministerial functions, but also to set right, undo[,] and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial or ministerial functions. This
application is expressly authorized by the text of the second paragraph of Section 1, [Article VIII of the
1987 Constitution cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers Association,
Inc.,29 it was expounded that "[m]eanwhile that no specific procedural rule has been promulgated to
enforce [the] 'expanded' constitutional definition of judicial power and because of the commonality of
'grave abuse of discretion' as a ground for review under Rule 65 and the courts' expanded jurisdiction,
15
the Supreme Court - based on its power to relax its rules - allowed Rule 65 to be used as the medium for
petitions invoking the courts' expanded jurisdiction[.]"30
In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of
Quezon City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground that
these ordinances violate the Constitution, specifically, the provisions pertaining to the right to travel of
minors, and the right of parents to rear their children. They also claim that the Manila Ordinance, by
imposing penalties against minors, conflicts with RA 9344, as amended, which prohibits the imposition of
penalties on minors for status offenses. It has been held that "[t]here is grave abuse of discretion when
an act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias."31 In light of the foregoing, petitioners
correctly availed of the remedies of certiorari and prohibition, although these governmental actions were
not made pursuant to any judicial or quasi-judicial function.
B. Direct Resort to the Court.
Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of
legislative and executive enactments, the next question to be resolved is whether or not petitioners'
direct resort to this Court is justified.
The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court. 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 [(CA)] and the [Regional Trial Courts], a direct invocation of this
Court's jurisdiction is allowed when there are special and important reasons therefor, clearly and
especially set out in the petition[.]"32 This Court is tasked to resolve "the issue of constitutionality of a
law or regulation at the first instance [if it] is of paramount importance and immediately affects the
social, economic, and moral well-being of the people,"33 as in this case. Hence, petitioners' direct resort
to the Court is justified.
C. Requisites of Judicial Review.
"The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity
of a law or governmental act may be heard and decided by the Court unless there is compliance with the
legal requisites for judicial inquiry, namely: (a) there must be anactual case or controversy calling for the
exercise of judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of the case."34 In this case,
respondents assail the existence of the first two (2) requisites.
1. Actual Case or Controversy.
"Basic in the exercise of judicial power � whether under the traditional or in the expanded setting � is
the presence of an actual case or controversy."35 "[A]n actual case or controversy is one which 'involves a
conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.' In other words, 'there must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."'36 According to recent jurisprudence, in the Court's exercise of its expanded jurisdiction

under the 1987 Constitution, this requirement is simplified "by merely requiring a prima facie showing
of grave abuse of discretion in the assailed governmental act."37
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. A question
is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a prerequisite that something has
then been accomplished or performed by either branch before a court may come into the picture, and
the petitioner must allege the existence of an immediate or threatened injury to himself as a result of
the challenged action. He must show that he has sustained or is immediately in danger of sustaining
some direct injury as a result of the act complained of." 38
Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case
given the evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair
the minors' and parents' constitutional rights, and whether the Manila Ordinance goes against the
provisions of RA 9344. Based on their asseverations, petitioners have - as will be gleaned from the
substantive discussions below - conveyed a prima facie case of grave abuse of discretion, which perforce
impels this Court to exercise its expanded jurisdiction. The case is likewise ripe for adjudication,
considering that the Curfew Ordinances were being implemented until the Court issued the
TRO39enjoining their enforcement. The purported threat or incidence of injury is, therefore, not merely
speculative or hypothetical but rather, real and apparent.
2. Legal Standing.
"The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for adjudication.
[Petitioners] must show that they have a personal and substantial interest in the case, such that they
have sustained or are in immediate danger of sustaining, some direct injury as a consequence of the
enforcement of the challenged governmental act."40 "'[I]nterest' in the question involved must be
material � an interest that is in issue and will be affected by the official act � as distinguished from
being merely incidental or general."41
"The gist of the question of [legal] standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of
issues upon which the court depends for illumination of difficult constitutional questions. Unless a
person is injuriously affected in any of his constitutional rights by the operation of statute or ordinance,
he has no standing."42
As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights,
namely: (1) the right of minors to freely travel within their respective localities; and (2) the primary right
of parents to rear their children. Related to the first is the purported conflict between RA 9344, as
amended, and the penal provisions of the Manila Ordinance.
Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to raise
the issue affecting the minor's right to travel,43 because: (a) she was still a minor at the time the petition
was filed before this Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b) as alleged,
she travels from Manila to Quezon City at night after school and is, thus, in imminent danger of
apprehension by virtue of the Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim,
John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo) admitted
in the petition that they are all of legal age, and therefore, beyond the ordinances' coverage. Thus, they
16
are not proper subjects of the Curfew Ordinances, for which they could base any direct injury as a
consequence thereof.
None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the
parents' right to rear their children as they have not shown that they stand before this Court as parent/s
and/or guardian/s whose constitutional parental right has been infringed. It should be noted that Clarissa
is represented by her father, Julian Villegas, Jr. (Mr. Villegas), who could have properly filed the petition
for himself for the alleged violation of his parental right. But Mr. Villegas did not question the Curfew
Ordinances based on his primary right as a parent as he only stands as the representative of his minor
child, Clarissa, whose right to travel was supposedly infringed.
As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an
action in court.45 Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to
allege that it was authorized by its members who were affected by the Curfew Ordinances, i.e., the
minors, to file this case on their behalf.
Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy. More
particularly, Clarissa has standing only on the issue of the alleged violation of the minors' right to travel,
but not on the alleged violation of the parents' right.
These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the
petitioners are concerned, in view of the transcendental importance of the issues involved in this case.
"In a number of cases, this Court has taken a liberal stance towards the requirement of legal standing,
especially when paramount interest is involved. Indeed, when those who challenge the official act are
able to craft an issue of transcendental significance to the people, the Court may exercise its sound
discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners to show
that they have been personally injured by the operation of a law or any other government act."46
This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed
under judicial review. Not only is this Court asked to determine the impact of these issuances on the right
of parents to rear their children and the right of minors to travel, it is also requested to determine the
extent of the State's authority to regulate these rights in the interest of general welfare. Accordingly, this
case is of overarching significance to the public, which, therefore, impels a relaxation of procedural rules,
including, among others, the standing requirement.
That being said, this Court now proceeds to the substantive aspect of this case.
II.
A. Void for Vagueness.
Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their
children, this Court must first tackle petitioners' contention that the Curfew Ordinances are void for
vagueness.
In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient
enforcement parameters, which leaves the enforcing authorities with unbridled discretion to carry out
their provisions. They claim that the lack of procedural guidelines in these issuances led to the

questioning of petitioners Ronel and Mark Leo, even though they were already of legal age. They
maintain that the enforcing authorities apprehended the suspected curfew offenders based only on their
physical appearances and, thus, acted arbitrarily. Meanwhile, although they conceded that the Quezon
City Ordinance requires enforcers to determine the age of the child, they submit that nowhere does the
said ordinance require the law enforcers to ask for proof or identification of the child to show his age.47
The arguments are untenable.
"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two (2) respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle."48
In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they
do not properly identify any provision in any of the Curfew Ordinances, which, because of its vague
terminology, fails to provide fair warning and notice to the public of what is prohibited or required so that
one may act accordingly.49The void for vagueness doctrine is premised on due process considerations,
which are absent from this particular claim. In one case, it was opined that:
[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural
due process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide proper standards for adjudication. Such
a definition encompasses the vagueness doctrine. This perspective rightly integrates the vagueness
doctrine with the due process clause, a necessary interrelation since there is no constitutional provision
that explicitly bars statutes that are "void-for-vagueness."50
Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in
the proper apprehension of suspected curfew offenders. They do not assert any confusion as to what
conduct the subject ordinances prohibit or not prohibit but only point to the ordinances' lack of
enforcement guidelines. The mechanisms related to the implementation of the Curfew Ordinances are,
however, matters of policy that are best left for the political branches of government to resolve. Verily,
the objective of curbing unbridled enforcement is not the sole consideration in a void for vagueness
analysis; rather, petitioners must show that this perceived danger of unbridled enforcement stems from
an ambiguous provision in the law that allows enforcement authorities to second-guess if a particular
conduct is prohibited or not prohibited. In this regard, that ambiguous provision of law contravenes due
process because agents of the government cannot reasonably decipher what conduct the law permits
and/or forbids. In Bykofsky v. Borough of Middletown,51 it was ratiocinated that:
A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution
on ad hoc and subjective basis, and vague standards result in erratic and arbitrary application based on
individual impressions and personal predilections.52
As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the
Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be
determined. Thus, without any correlation to any vague legal provision, the Curfew Ordinances cannot be
stricken down under the void for vagueness doctrine.
17
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected
curfew violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law
enforcement agents are still bound to follow the prescribed measures found in statutory law when
implementing ordinances. Specifically, RA 9344, as amended, provides:
Section 7. Determination of Age. - x x x The age of a child may be determinedfrom the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these documents,
age may be based on information from the child himself/herself, testimonies of other persons, the
physical appearance of the child and other relevant evidence. (Emphases supplied)
This provision should be read in conjunction with the Curfew Ordinances because RA 10630 (the law that
amended RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to Section 57-A of
RA 9344, as amended by RA 10630,54minors caught in violation of curfew ordinances are children at
risk and, therefore, covered by its provisions.55 It is a long-standing principle that "[c]onformity with law
is one of the essential requisites for the validity of a municipal ordinance."56 Hence, by necessary
implication, ordinances should be read and implemented in conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to be a
minor violating the curfew, may therefore prove that he is beyond the application of the Curfew
Ordinances by simply presenting any competent proof of identification establishing their majority age. In
the absence of such proof, the law authorizes enforcement authorities to conduct a visual assessment of
the suspect, which - needless to state - should be done ethically and judiciously under the circumstances.
Should law enforcers disregard these rules, the remedy is to pursue the appropriate action against the
erring enforcing authority, and not to have the ordinances invalidated.
All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.
B. Right of Parents to Rear their Children.
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of their
natural and primary right in the rearing of the youth without substantive due process. In this regard, they
assert that this right includes the right to determine whether minors will be required to go home at a
certain time or will be allowed to stay late outdoors. Given that the right to impose curfews is primarily
with parents and not with the State, the latter's interest in imposing curfews cannot logically be
compelling.57
Petitioners' stance cannot be sustained.
Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents
in the rearing of their children:
Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a
basic autonomous social institution. It shall equally protect the life of the mother and the life of the
unborn from conception. The natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the support of the
Government. (Emphasis and underscoring supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic
efficiency and the development of their moral character are characterized not only as parental rights, but
also as parental duties. This means that parents are not only given the privilege of exercising their
authority over their children; they are equally obliged to exercise this authority conscientiously. The duty
aspect of this provision is a reflection of the State's independent interest to ensure that the youth would
eventually grow into free, independent, and well-developed citizens of this nation. For indeed, it is during
childhood that minors are prepared for additional obligations to society. "[T]he duty to prepare the child
for these [obligations] must be read to include the inculcation of moral standards, religious beliefs, and
elements of good citizenship."58 "This affirmative process of teaching, guiding, and inspiring by precept
and example is essential to the growth of young people into mature, socially responsible citizens." 59
By history and tradition, "the parental role implies a substantial measure of authority over one's
children."60 In Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our society."62 As in our
Constitution, the right and duty of parents to rear their children is not only described as "natural," but
also as "primary." The qualifier "primary" connotes the parents' superior right over the State in the
upbringing of their children.63 The rationale for the State's deference to parental control over their
children was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as follows:
[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms of
minors. The State commonly protects its youth from adverse governmental action and from their own
immaturity by requiring parental consent to or involvement in important decisions by minors. But an
additional and more important justification for state deference to parental control over children is that
"the child is not [a] mere creature of the State; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him for additional obligations."65 (Emphasis
and underscoring supplied)
While parents have the primary role in child-rearing, it should be stressed that "when actions concerning
the child have a relation to the public welfare or the well-being of the child, the [S]tate may act to
promote these legitimate interests."66 Thus, "[i]n cases in which harm to the physical or mental health
of the child or to public safety, peace, order, or welfare is demonstrated, these legitimate state
interests may override the parents' qualified right to control the upbringing of their children."67
As our Constitution itself provides, the State is mandated to support parents in the exercise of these
rights and duties. State authority is therefore, not exclusive of, but rather, complementary to parental
supervision. In Nery v. Lorenzo,68 this Court acknowledged the State's role as parens patriaein protecting
minors, viz.:
[W]here minors are involved, the State acts as parens patriae. To it is cast the duty of protecting the
rights of persons or individual who because of age or incapacity are in an unfavorable position, vis-a�
vis other parties. Unable as they are to take due care of what concerns them, they have the political
community to look after their welfare. This obligation the state must live up to. It cannot be recreant to
such a trust. As was set forth in an opinion of the United States Supreme Court: "This prerogative
of parens patriae is inherent in the supreme power of every State, x x x."69 (Emphases and underscoring
supplied)
As parens patriae, the State has the inherent right and duty to aid parents in the moral development of
their children,70 and, thus, assumes a supporting role for parents to fulfill their parental obligations.
18
In Bellotti, it was held that "[l]egal restriction on minors, especially those supportive of the parental role,
may be important to the child's chances for the full growth and maturity that make eventual participation
in a free society meaningful and rewarding. Under the Constitution, the State can properly conclude
that parents and others, teachers for example, who have the primary responsibility for children's well-
being are entitled to the support of the laws designed to aid discharge of that responsibility."71
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of
promoting their children's well-being. As will be later discussed at greater length, these ordinances
further compelling State interests (particularly, the promotion of juvenile safety and the prevention of
juvenile crime), which necessarily entail limitations on the primary right of parents to rear their children.
Minors, because of their peculiar vulnerability and lack of experience, are not only more exposed to
potential physical harm by criminal elements that operate during the night; their moral well-being is
likewise imperiled as minor children are prone to making detrimental decisions during this time.72
At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not
- whether actually or constructively (as will be later discussed) - accompanied by their parents. This
serves as an explicit recognition of the State's deference to the primary nature of parental authority and
the importance of parents' role in child-rearing. Parents are effectively given unfettered authority over
their children's conduct during curfew hours when they are able to supervise them. Thus, in all
actuality,the only aspect of parenting that the Curfew Ordinances affects is the parents' prerogative to
allow minors to remain in public places without parental accompaniment during the curfew hours.73 In
this respect, the ordinances neither dictate an over-all plan of discipline for the parents to apply to
their minors nor force parents to abdicate their authority to influence or control their minors'
activities.74 As such, the Curfew Ordinances only amount to a minimal - albeit reasonable - infringement
upon a parent's right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend
more time at home. Consequently, this situation provides parents with better opportunities to take a
more active role in their children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the US
court observed that the city government "was entitled to believe x x x that a nocturnal curfew would
promote parental involvement in a child's upbringing. A curfew aids the efforts of parents who desire to
protect their children from the perils of the street but are unable to control the nocturnal behavior of
those children."76 Curfews may also aid the "efforts of parents who prefer their children to spend time on
their studies than on the streets."77 Reason dictates that these realities observed in Schleifer are no less
applicable to our local context. Hence, these are additional reasons which justify the impact of the
nocturnal curfews on parental rights.
In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right to
rear their children.
C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to
travel. They claim that the liberty to travel is a fundamental right, which, therefore, necessitates the
application of the strict scrutiny test. Further, they submit that even if there exists a compelling State
interest, such as the prevention of juvenile crime and the protection of minors from crime, there are
other less restrictive means for achieving the government's interest. 78 In addition, they posit that the
Curfew Ordinances suffer from overbreadth by proscribing or impairing legitimate activities of minors
during curfew hours.79

Petitioner's submissions are partly meritorious.
At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that
petitioners have not claimed any transgression of their rights to free speech or any inhibition of speech-
related conduct. In Southern Hemisphere Engagement Network, Inc. v. Anti-Terrorism Council (Southern
Hemisphere),80 this Court explained that "the application of the overbreadth doctrine is limited to a facial
kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech
cases,"81viz.:
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to
plot areas of protected speech, inevitably almost always under situations not before the court, that are
impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot be
properly analyzed for being substantially overbroad if the court confines itself only to facts as applied to
the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties and can only assert
their own interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the
rights of third parties; and the court invalidates the entire statute "on its face," not merely "as applied
for" so that the overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous
enough to bring suit. The Court assumes that an overbroad law's "very existence may cause others not
before the court to refrain from constitutionally protected speech or expression." An overbreadth ruling
is designed to remove that deterrent effect on the speech of those third parties.82 (Emphases and
underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free speech
claims, the Court, in at least two [(2)] cases, observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment,83 and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate
only spoken words. In Virginia v. Hicks,84 it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or speech-related
conduct. Attacks on overly broad statutes are justified by the 'transcendent value to all society of
constitutionally protected expression."'85
In the more recent case of Spouses Imbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can only
be raised on the basis of overbreadth and not on vagueness. Southern Hemisphere demonstrated how
vagueness relates to violations of due process rights, whereas facial challenges are raised on the basis of
overbreadth and limited to the realm of freedom of expression."87
That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there
being no claimed curtailment of free speech. On the contrary, however, this Court finds proper to
examine the assailed regulations under the strict scrutiny test.
19
The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III of the
1987 Constitution, to wit:
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. (Emphases
and underscoring supplied)
Jurisprudence provides that this right refers to the right to move freely from the Philippines to other
countries or within the Philippines.89 It is a right embraced within the general concept of liberty.90 Liberty
- a birthright of every person - includes the power of locomotion 91 and the right of citizens to be free to
use their faculties in lawful ways and to live and work where they desire or where they can best pursue
the ends of life.92
The right to travel is essential as it enables individuals to access and exercise their other rights, such as
the rights to education, free expression, assembly, association, and religion.93 The inter-relation of the
right to travel with other fundamental rights was briefly rationalized in City of Maquoketa v. Russell,94 as
follows:
Whenever the First Amendment rights of freedom of religion, speech, assembly, and association require
one to move about, such movement must necessarily be protected under the First
Amendment. Restricting movement in those circumstances to the extent that First Amendment Rights
cannot be exercised without violating the law is equivalent to a denial of those rights. One court has
eloquently pointed this out:
We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom of
travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to
worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of
assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the
streets of a community, opportunities for freedom of speech are sharply limited. Freedom of movement
is inextricably involved with freedoms set forth in the First Amendment. (Emphases supplied)
Nevertheless, grave and overriding considerations of public interest justify restrictions even if made
against fundamental rights. Specifically on the freedom to move from one place to another,
jurisprudence provides that this right is not absolute.95 As the 1987 Constitution itself reads, the
State96 may impose limitations on the exercise of this right, provided that they: (1) serve the interest of
national security, public safety, or public health; and (2) are provided by law.97
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and
prevention of juvenile crime, inarguably serve the interest of public safety. The restriction on the minor's
movement and activities within the confines of their residences and their immediate vicinity during the
curfew period is perceived to reduce the probability of the minor becoming victims of or getting involved
in crimes and criminal activities. As to the second requirement, i.e., that the limitation "be provided by
law," our legal system is replete with laws emphasizing the State's duty to afford special protection to
children, i.e., RA 7610,98 as amended, RA 9775,99 RA 9262,100 RA 9851, 101 RA 9344,102 RA 10364,103RA
9211,104 RA 8980,105 RA 9288,106 and Presidential Decree (PD) 603,107 as amended.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government
units, through their city or municipal councils, to set curfew hours for children. It reads:

Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew hours for
children as may be warranted by local conditions. The duty to enforce curfew ordinances shall
devolve upon the parents or guardians and the local authorities.
x x x x (Emphasis and underscoring supplied)
As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have
done in this case) and enforce the same through their local officials. In other words, PD 603 provides
sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to
travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional
rights,108but the exercise of these rights is not co-extensive as those of adults.109 They are always subject
to the authority or custody of another, such as their parent/s and/or guardian/s, and the
State.110 As parens patriae, the State regulates and, to a certain extent, restricts the minors' exercise of
their rights, such as in their affairs concerning the right to vote, 111 the right to execute contracts,112 and
the right to engage in gainful employment.113 With respect to the right to travel, minors are required by
law to obtain a clearance from the Department of Social Welfare and Development before they can travel
to a foreign country by themselves or with a person other than their parents.114 These limitations
demonstrate that the State has broader authority over the minors' activities than over similar actions of
adults,115 and overall, reflect the State's general interest in the well-being of minors. 116 Thus, the State
may impose limitations on the minors' exercise of rights even though these limitations do not generally
apply to adults.
In Bellotti,117 the US Supreme Court identified three (3) justifications for the differential treatment of the
minors' constitutional rights. These are:first, the peculiar vulnerability of children; second, their inability
to make critical decisions in an informed and mature manner; and third, the importance of the parental
role in child rearing:118
[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust
its legal system to account for children's vulnerabilityand their needs for 'concern, ...sympathy, and ...
paternal attention. x x x.
[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the formative
years of childhood and adolescence, minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them. x x x.
[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations
on the freedoms of minors. The State commonly protects its youth from adverse governmental action
and from their own immaturity by requiring parental consent to or involvement in important decisions by
minors. x x x.
x x x Legal restrictions on minors, especially those supportive of the parental role, may be important to
the child's chances for the full growth and maturity that make eventual participation in a free society
meaningful and rewarding.119 (Emphases and underscoring supplied)
20
Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened dangers on
the streets to minors, as compared to adults:
A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people
into full maturity as citizens, with all that implies. It may secure this against impeding restraints and
dangers within a broad range of selection. Among evils most appropriate for such action are the crippling
effects of child employment, more especially in public places, and the possible harms arising from other
activities subject to all the diverse influences of the [streets]. It is too late now to doubt that legislation
appropriately designed to reach such evils is within the state's police power, whether against the parent's
claim to control of the child or one that religious scruples dictate contrary action.
It is true children have rights, in common with older people, in the primary use of highways. But even in
such use streets afford dangers for them not affecting adults. And in other uses, whether in work or in
other things, this difference may be magnified.121 (Emphases and underscoring supplied)
For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights,
provided, they are singled out on reasonable grounds.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.122 The strict scrutiny test applies when a classification either (i)
interferes with the exercise of fundamental rights, including the basic liberties guaranteed under the
Constitution, or (ii) burdens suspect classes.123 The intermediate scrutiny test applies when a
classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny,
such as in classifications based on gender and legitimacy.124 Lastly, the rational basis test applies to all
other subjects not covered by the first two tests.125
Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test126 is the applicable test.127 At this juncture, it should be emphasized
that minors enjoy the same constitutional rights as adults; the fact that the State has broader authority
over minors than over adults does not trigger the application of a lower level of scrutiny.128 In Nunez v.
City of San Diego (Nunez),129 the US court illumined that:
Although many federal courts have recognized that juvenile curfews implicate the fundamental rights of
minors, the parties dispute whether strict scrutiny review is necessary. The Supreme Court teaches that
rights are no less "fundamental" for minors than adults, but that the analysis of those rights may
differ:
Constitutional rights do not mature and come into being magically only when one attains the state-
defined age of majority. Minors, as well as adults, are protected by the Constitution and possess
constitutional rights. The Court[,] indeed, however, [has long] recognized that the State has somewhat
broader authority to regulate the activities of children than of adults. x x x. Thus, minors' rights are not
coextensive with the rights of adults because the state has a greater range of interests that justify the
infringement of minors' rights.
The Supreme Court has articulated three specific factors that, when applicable, warrant differential
analysis of the constitutional rights of minors and adults: x x x. The Bellottest [however] does not
establish a lower level of scrutiny for the constitutional rights of minors in the context of a juvenile
curfew. Rather, the Bellotti framework enables courts to determine whether the state has a compelling
state interest justifying greater restrictions on minors than on adults. x x x.

x x x Although the state may have a compelling interest in regulating minors differently than adults, we
do not believe that [a] lesser degree of scrutiny is appropriate to review burdens on minors'
fundamental rights. x x x.
Accordingly, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)
The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of
minors as enumerated in Bellotti vis-a-vis the State's duty as parens patriae to protect and preserve their
well-being with the compelling State interests justifying the assailed government act. Under the strict
scrutiny test, a legislative classification that interferes with the exercise of a fundamental right or
operates to the disadvantage of a suspect class is presumed unconstitutional.131 Thus, the government
has the burden of proving that the classification (i) is necessary to achieve a compelling State interest,
and (ii) is the least restrictive means to protect such interest or the means chosen is narrowly tailored
to accomplish the interest.132
a. Compelling State Interest.
Jurisprudence holds that compelling State interests include constitutionally declared policies.133This Court
has ruled that children's welfare and the State's mandate to protect and care for them as parens
patriae constitute compelling interests to justify regulations by the State.134 It is akin to the paramount
interest of the state for which some individual liberties must give way. 135 As explained in Nunez,
the Bellotti framework shows that the State has a compelling interest in imposing greater restrictions on
minors than on adults. The limitations on minors under Philippine laws also highlight this compelling
interest of the State to protect and care for their welfare.
In this case, respondents have sufficiently established that the ultimate objective of the Curfew
Ordinances is to keep unsupervised minors during the late hours of night time off of public areas, so as to
reduce - if not totally eliminate - their exposure to potential harm, and to insulate them against criminal
pressure and influences which may even include themselves. As denoted in the "whereas clauses" of the
Quezon City Ordinance, the State, in imposing nocturnal curfews on minors, recognizes that:
[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance,
education, and moral development, which [lead] them into exploitation, drug addiction, and become
vulnerable to and at the risk of committing criminal offenses;
[d] as a consequence, most of minor children become out-of-school youth, unproductive by-standers,
street children, and member of notorious gangs who stay, roam around or meander in public or private
roads, streets or other public places, whether singly or in groups without lawful purpose or justification;
[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming
around, loitering or wandering in the evening are the frequent personalities involved in various
infractions of city ordinances and national laws;
[g] it is necessary in the interest of public order and safety to regulate the movement of minor children
during night time by setting disciplinary hours, protect them from neglect, abuse or cruelty and
exploitation, and other conditions prejudicial or detrimental to their development;
21
[h] to strengthen and support parental control on these minor children, there is a need to put a restraint
on the tendency of growing number of youth spending their nocturnal activities wastefully, especially in
the face of the unabated rise of criminality and to ensure that the dissident elements of society are not
provided with potent avenues for furthering their nefarious activities[.]136
The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City Council
to support its passage of the curfew ordinance subject of that case, may serve as a guidepost to our own
treatment of the present case. Significantly, in Schleifer, the US court recognized the entitlement of
elected bodies to implement policies for a safer community, in relation to the proclivity of children to
make dangerous and potentially life-shaping decisions when left unsupervised during the late hours of
night:
Charlottesville was constitutionally justified in believing that its curfew would materially assist its first
stated interest�that of reducing juvenile violence and crime. The City Council acted on the basis of
information from many sources, including records from Charlottesville's police department, a survey of
public opinion, news reports, data from the United States Department of Justice, national crime reports,
and police reports from other localities. On the basis of such evidence, elected bodies are entitled to
conclude that keeping unsupervised juveniles off the streets late at night will make for a safer
community. The same streets may have a more volatile and less wholesome character at night than
during the day. Alone on the streets at night children face a series of dangerous and potentially life-
shaping decisions. Drug dealers may lure them to use narcotics or aid in their sale. Gangs may pressure
them into membership or participation in violence. "[D]uring the formative years of childhood and
adolescence, minors often lack the experience, perspective, and judgment to recognize and avoid choices
that could be detrimental to them." Those who succumb to these criminal influences at an early age
may persist in their criminal conduct as adults. Whether we as judges subscribe to these theories is
beside the point. Those elected officials with their finger on the pulse of their home community clearly
did. In attempting to reduce through its curfew the opportunities for children to come into contact with
criminal influences,the City was directly advancing its first objective of reducing juvenile violence and
crime.138 (Emphases and underscoring supplied; citations omitted)
Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila
presented statistical data in their respective pleadings showing the alarming prevalence of crimes
involving juveniles, either as victims or perpetrators, in their respective localities. 139
Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to
their police power under the general welfare clause.140 In this light, the Court thus finds that the local
governments have not only conveyed but, in fact, attempted to substantiate legitimate concerns on
public welfare, especially with respect to minors. As such, a compelling State interest exists for the
enactment and enforcement of the Curfew Ordinances.
With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the
restrictions set forth in the Curfew Ordinances are narrowly tailored or provide the least restrictive
means to address the cited compelling State interest - the second requirement of the strict scrutiny test.
b. Least Restrictive Means/ Narrowly Drawn.
The second requirement of the strict scrutiny test stems from the fundamental premise that citizens
should not be hampered from pursuing legitimate activities in the exercise of their constitutional rights.
While rights may be restricted, the restrictions must be minimal or only to the extent necessary to
 22

achieve the purpose or to address the State's compelling interest. When it is possible for governmental
regulations to be more narrowly drawn to avoid conflicts with constitutional rights, then they must be
so narrowly drawn.141
Although treated differently from adults, the foregoing standard applies to regulations on minors as they
are still accorded the freedom to participate in any legitimate activity, whether it be social, religious, or
civic.142 Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure minimal
constraint not only on the minors' right to travel but also on their other constitutional rights. 143
In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being
narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their religion and
to free speech.145 It observed that:
The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at the local
Roman Catholic Church or Christmas Eve services at the various local Protestant Churches. It would
likewise prohibit them from attending the New [Year's] Eve watch services at the various churches.
Likewise it would prohibit grandparents, uncles, aunts or adult brothers and sisters from taking their
minor relatives of any age to the above mentioned services. x x x.
Under the ordinance, during nine months of the year a minor could not even attend the city council
meetings if they ran past 10:30 (which they frequently do) to express his views on the necessity to repeal
the curfew ordinance, clearly a deprivation of his First Amendment right to freedom of speech.
This Court observes that these two ordinances are not narrowly drawn in that their exceptions are
inadequate and therefore, run the risk of overly restricting the minors' fundamental freedoms. To be fair,
both ordinances protect the rights to education, to gainful employment, and to travel at night from
school or work.148 However, even with those safeguards, the Navotas Ordinance and, to a greater extent,
the Manila Ordinance still do not account for the reasonable exercise of the minors' rights of association,
free exercise of religion, rights to peaceably assemble, and of free expression, among others.
The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected
liberties. The Navotas Ordinance is apparently more protective of constitutional rights than the Manila
Ordinance; nonetheless, it still provides insufficient safeguards as discussed in detail below:
First, although it allows minors to engage in school or church activities, it hinders them from engaging in
legitimate non-school or non-church activities in the streets or going to and from such activities; thus,
their freedom of association is effectively curtailed. It bears stressing that participation in legitimate
activities of organizations, other than school or church, also contributes to the minors' social, emotional,
and intellectual development, yet, such participation is not exempted under the Navotas Ordinance.
Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and
Christmas day, it effectively prohibits minors from attending traditional religious activities (such
as simbang gabi) at night without accompanying adults, similar to the scenario depicted in Mosier.149 This
legitimate activity done pursuant to the minors' right to freely exercise their religion is therefore
effectively curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or
[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very narrowly
attend city council meetings to voice out their concerns in line with their right to peaceably assemble and
drawn ordinance of many pages with eleven exceptions and was very carefully drafted in an attempt to
to free expression.
pass constitutional muster. It specifically excepted [the] exercise of First Amendment rights, travel in a
motor vehicle and returning home by a direct route from religious, school, or voluntary association
activities.(Emphases supplied) Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew
hours, but the Court finds no reason to prohibit them from participating in these legitimate activities
during curfew hours. Such proscription does not advance the State's compelling interest to protect
After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the
minors from the dangers of the streets at night, such as becoming prey or instruments of criminal
Quezon City Ordinance meets the above-discussed requirement, while the Manila and Navotas
activity. These legitimate activities are merely hindered without any reasonable relation to the State's
Ordinances do not.
interest; hence, the Navotas Ordinance is not narrowly drawn. More so, the Manila Ordinance, with its
limited exceptions, is also not narrowly drawn.
The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a) minors
accompanied by their parents, family members of legal age, or guardian; (b) those running lawful errands
In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions,
such as buying of medicines, using of telecommunication facilities for emergency purposes and the like;
which are essentially determinative of the scope and breadth of the curfew regulations, are inadequate
(c) night school students and those who, by virtue of their employment, are required in the streets or
to ensure protection of the above-mentioned fundamental rights. While some provisions may be valid,
outside their residence after 10:00 p.m.; and (d) those working at night.146
the same are merely ancillary thereto; as such, they cannot subsist independently despite the
presence150 of any separability clause.151
For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes; (b)
those working at night; (c) those who attended a school or church activity, in coordination with a specific
The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently
barangay office; (d) those traveling towards home during the curfew hours; (e) those running errands
safeguards the minors' constitutional rights. It provides the following exceptions:
under the supervision of their parents, guardians, or persons of legal age having authority over them; (f)
those involved in accidents, calamities, and the like. It also exempts minors from the curfew during these
specific occasions: Christmas eve, Christmas day, New Year's eve, New Year's day, the night before the Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by the
barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day, Holy Thursday, Good Friday, Black provisions of this ordinance;
Saturday, and Easter Sunday.147
 23

(a) Those accompanied by their parents or guardian;
(b) Those on their way to or from a party, graduation ceremony, religious mass, and/or other extra-
curricular activities of their school or organization wherein their attendance are required or
otherwise indispensable, or when such minors are out and unable to go home early due to
circumstances beyond their control as verified by the proper authorities concerned; and
(c) Those attending to, or in experience of, an emergency situation such as conflagration, earthquake,
hospitalization, road accident, law enforcers encounter, and similar incidents[;]
the juvenile curfew measure with the basic premise that State interference is not superior but only
complementary to parental supervision. After all, as the Constitution itself prescribes, the parents' right
to rear their children is not only natural but primary.
Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing
with the welfare of minors who are presumed by law to be incapable of giving proper consent due to
their incapability to fully understand the import and consequences of their actions. In one case it was
observed that:

(d) When the minor is engaged in an authorized employment activity, or going to or returning home
from the same place of employment activity without any detour or stop;
(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no violation of this
Ordinance;
(f) When the minor is involved in an emergency;
(g) When the minor is out of his/her residence attending an official school, religious, recreational,
educational, social, communitv or other similar private activity sponsored by the city, barangay,
school, or other similar private civic/religious organization/group (recognized by the community)
that supervises the activity or when the minor is going to or returning home from such activity,
without any detour or stop; and
(h) When the minor can present papers certifying that he/she is a student and was dismissed from
his/her class/es in the evening or that he/she is a working student.152 (Emphases and underscoring
supplied)
A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily
be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her
actions. The State, as parens patriae, is under the obligation to minimize the risk of harm to those who,
because of their minority, are as yet unable to take care of themselves fully. Those of tender years
deserve its protection.153
Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and
balancing the same against the State's compelling interest to promote juvenile safety and prevent
juvenile crime, this Court finds that the curfew imposed under the Quezon City Ordinance is reasonably
justified with its narrowly drawn exceptions and hence, constitutional. Needless to say, these exceptions
are in no way limited or restricted, as the State, in accordance with the lawful exercise of its police power,
is not precluded from crafting, adding, or modifying exceptions in similar laws/ordinances for as long as
the regulation, overall, passes the parameters of scrutiny as applied in this case.
D. Penal Provisions of the Manila Ordinance.

Going back to the Manila Ordinance, this Court deems it proper - as it was raised- to further discuss the
As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is
validity of its penal provisions in relation to RA 9344, as amended.
more narrowly drawn to sufficiently protect the minors' rights of association, free exercise of religion,
travel, to peaceably assemble, and of free expression.
To recount, the Quezon City Ordinance, while penalizing the parentis or guardian under Section 8
thereof,154 does not impose any penalty on the minors. For its part, the Navotas Ordinance requires the
Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of these
minor, along with his or her parent/s or guardian/s, to render social civic duty and community service
aforementioned rights. These items uphold the right of association by enabling minors to attend both
either in lieu of - should the parent/s or guardian/s of the minor be unable to pay the fine imposed - or in
official and extra-curricular activities not only of their school or church but also of other legitimate
addition to the fine imposed therein.155Meanwhile, the Manila Ordinance imposed various sanctions to
organizations. The rights to peaceably assemble and of free expression are also covered by these items
the minor based on the age and frequency of violations, to wit:
given that the minors' attendance in the official activities of civic or religious organizations are allowed
during the curfew hours. Unlike in the Navotas Ordinance, the right to the free exercise of religion is
sufficiently safeguarded in the Quezon City Ordinance by exempting attendance at religious masses even SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
during curfew hours. In relation to their right to travel, the ordinance allows the minor-participants to sanctioned/punished as follows:
move to and from the places where these activities are held. Thus, with these numerous exceptions, the
Quezon City Ordinance, in truth, only prohibits unsupervised activities that hardly contribute to the
(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a REPRIMAND for
well-being of minors who publicly loaf and loiter within the locality at a time where danger is
the youth offender and ADMONITION to the offender's parent, guardian or person exercising parental
perceivably more prominent.
authority.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful
(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the sanction/penalty
errands or engage in legitimate activities during the night, notwithstanding curfew hours. As astutely
shall be:
observed by Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during
the deliberations on this case, parental permission is implicitly considered as an exception found in
Section 4, item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or 1. For the FIRST OFFENSE, Reprimand and Admonition;
guardian", as accompaniment should be understood not only in its actual but also in its constructive
sense. As the Court sees it, this should be the reasonable construction of this exception so as to reconcile
 24

2. For the SECOND OFFENSE, Reprimand and Admonition, and a warning about the legal social stigma caused by jail detention. In the same light, these programs help inculcate discipline and
impostitions in case of a third and subsequent violation; and compliance with the law and legal orders. More importantly, they give them the opportunity to become
productive members of society and thereby promote their integration to and solidarity with their
community.
3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one (1) day to ten (10) days, or
a Fine of TWO THOUSAND PESOS (Php2,000.00), or both at the discretion of the
Court, PROVIDED, That the complaint shall be filed by the Punong Barangay with the office of The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57 and 57-
the City Prosecutor.156 (Emphases and underscoring supplied). A of RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's
misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning
against fault or oversight."163 The Black's Law Dictionary defines admonition as "[a]n authoritatively
Thus springs the question of whether local governments could validly impose on minors these sanctions
issued warning or censure";164 while the Philippine Law Dictionary defines it as a "gentle or friendly
- i.e., (a) community service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently,
reproof, a mild rebuke, warning or reminder, [counseling], on a fault, error or oversight, an expression of
Sections 57 and 57-A of RA 9344, as amended, prohibit the imposition of penalties on minors for status
authoritative advice or warning."165 Notably, the Revised Rules on Administrative Cases in the Civil Service
offenses such as curfew violations, viz.:
(RRACCS) and our jurisprudence in administrative cases explicitly declare that "a warning or admonition
shall not be considered a penalty."166
SEC. 57. Status Offenses. � Any conduct not considered an offense or not penalized if committed by an
adult shall not be considered an offense and shall not be punished if committed by a child.
In other words, the disciplinary measures of community-based programs and admonition are clearly not
penalties - as they are not punitive in nature - and are generally less intrusive on the rights and conduct
SEC. 57-A. Violations of Local Ordinances. � Ordinances enacted by local governments concerning of the minor. To be clear, their objectives are to formally inform and educate the minor, and for the latter
juvenile status offenses such as, but not limited to, curfew violations, truancy, parental disobedience, to understand, what actions must be avoided so as to aid him in his future conduct.
anti-smoking and anti-drinking laws, as well as light offenses and misdemeanors against public order or
safety such as, but not limited to, disorderly conduct, public scandal, harassment, drunkenness, public
A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment
intoxication, criminal nuisance, vandalism, gambling, mendicancy, littering, public urination, and
imposed by the City of Manila on the minor. Reprimand is generally defined as "a severe or formal
trespassing, shall be for the protection of children. No penalty shall be imposed on children for said
reproof."167 The Black's Law Dictionary defines it as "a mild form of lawyer discipline that does not restrict
violations, and they shall instead be brought to their residence or to any barangay official at the barangay
the lawyer's ability to practice law";168 while the Philippine Law Dictionary defines it as a "public and
hall to be released to the custody of their parents. Appropriate intervention programs shall be provided
formal censure or severe reproof, administered to a person in fault by his superior officer or body to
for in such ordinances. The child shall also be recorded as a "child at risk" and not as a "child in conflict
which he belongs. It is more than just a warning or admonition."169 In other words, reprimand is a formal
with the law." The ordinance shall also provide for intervention programs, such as counseling, attendance
and public pronouncement made to denounce the error or violation committed, to sharply criticize and
in group activities for children, and for the parents, attendance in parenting education seminars.
rebuke the erring individual, and to sternly warn the erring individual including the public against
(Emphases and underscoring supplied.)
repeating or committing the same, and thus, may unwittingly subject the erring individual or violator to
unwarranted censure or sharp disapproval from others. In fact, the RRACCS and our jurisprudence
To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of explicitly indicate that reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as
minors, when the similar conduct of adults are not considered as an offense or penalized (i.e., status amended.
offenses). Instead, what they prohibit is the imposition of penalties on minors for violations of these
regulations. Consequently, the enactment of curfew ordinances on minors, without penalizing them for
Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our
violations thereof, is not violative of Section 57-A.
various criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended,
evidently prohibits.
"Penalty" 157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment or
fine";158 "[p]unishment imposed by lawful authority upon a person who commits a deliberate or negligent
As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o
act."159 Punishment, in turn, is defined as "[a] sanction - such as fine, penalty, confinement, or loss of
penalty shall be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for
property, right, or privilege - assessed against a person who has violated the law."160
imposing the sanctions of reprimand, fine, and/or imprisonment on minors for curfew violations,
portions of Section 4 of the Manila Ordinance directly and irreconcilably conflict with the clear language
The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in of Section 57-A of RA 9344, as amended, and hence, invalid. On the other hand, the impositions of
violation of the regulations are without legal consequences. Section 57-A thereof empowers local community service programs and admonition on the minors are allowed as they do not constitute
governments to adopt appropriate intervention programs, such as community-based penalties.
programs161recognized under Section 54162 of the same law.
CONCLUSION
In this regard, requiring the minor to perform community service is a valid form of intervention program
that a local government (such as Navotas City in this case) could appropriately adopt in an ordinance to
In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict
promote the welfare of minors. For one, the community service programs provide minors an alternative
scrutiny test - that is, that the State has sufficiently shown a compelling interest to promote juvenile
mode of rehabilitation as they promote accountability for their delinquent acts without the moral and

safety and prevent juvenile crime in the concerned localities, only the Quezon City Ordinance has passed
the second prong of the strict scrutiny test, as it is the only issuance out of the three which provides for
the least restrictive means to achieve this interest. In particular, the Quezon City Ordinance provides for
adequate exceptions that enable minors to freely exercise their fundamental rights during the prescribed
curfew hours, and therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of the said
ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also been construed to include
parental permission as a constructive form of accompaniment and hence, an allowable exception to the
curfew measure; the manner of enforcement, however, is left to the discretion of the local government
unit.
In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while
the Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.
For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand
and fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following
the rule that ordinances should always conform with the law, these provisions must be struck down as
invalid.
WHEREFORE, the petition is PARTLY GRANTED. The Court hereby declares Ordinance No. 8046, issued by
the local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as amended
by Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of 2014,
issued by the local government of the Quezon City is declared CONSTITUTIONAL and, thus,VALID in
accordance with this Decision.
SO ORDERED.
ADMIN LAW GENERAL POWERS AND ATTRIBUTES OF LGUS: LEGISLATIVE POWER
Title: Samahan ng mga Progresibong Kabataan v. Quezon City
G.R. No. 225442 | Date: August 8, 2017
Ponente: Perlas-Bernabe, J.
FACTS:
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors,
Navotas City, City of Manila, and Quezon City started to strictly implement their curfew ordinances on
minors through police operations which were publicly known as part of "Oplan Rody."
Samahan ng mga Progresibong Kabataan (SPARK), an association of young adults and minors that aims to
forward a free and just society, in particular the protection of the rights and welfare of the youth and
minors argues that the Curfew Ordinances are unconstitutional because they:
25
(a) Result in arbitrary and discriminatory enforcement, and thus, fall under the void for vagueness
doctrine, as there are no clear provisions or detailed standards on how law enforcers should apprehend
and properly determine the age of the alleged curfew violators;
(b) Suffer from overbreadth by proscribing or impairing legitimate activities of minors during curfew
hours despite the exemption of working students or students with evening class since that the lists of
exemptions do not cover the range and breadth of legitimate activities or reasons as to why minors
would be out at night, and, hence, proscribe or impair the legitimate activities of minors during curfew
hours;
(c) Deprive minors of the right to liberty and the right to travel without substantive due process; and
(d) Deprive parents of their natural and primary right in rearing the youth without substantive due
process.
Petitioners likewise proffer that the Curfew Ordinances fail to pass the strict scrutiny test, for not being
narrowly tailored and for employing means that bear no reasonable relation to their purpose arguing
that the prohibition of minors on streets during curfew hours will not per se protect and promote the
social and moral welfare of children of the community.
Furthermore, petitioners claim that the Manila Ordinance’s imposition of penalties contravenes Sec. 57-A
of RA 9344's express command that no penalty shall be imposed on minors for curfew violations.
Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the
parents' prerogative to impose them in the exercise of their natural and primary right in the rearing of
the youth, and that even if a compelling interest exists, less restrictive means are available to achieve the
same such as massive street lighting programs, installation of CCTVs in public streets, and regular visible
patrols by law enforcers. They further opine that the government can impose more reasonable sanctions,
i.e., mandatory parental counseling and education seminars informing the parents of the reasons behind
the curfew, and that imprisonment is too harsh a penalty for parents who allowed their children to be out
during curfew hours.
ISSUE/S: Whether or not the Curfew Ordinances are unconstitutional. PARTLY
RATIO:
Void for Vagueness.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant
to the Constitution in two (2) respects: (1) it violates due process for failure to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government muscle.
Petitioners' invocation of the void for vagueness doctrine is improper, considering that they do not
properly identify any provision in any of the Curfew Ordinances, which, because of its vague terminology,
fails to provide fair warning and notice to the public of what is prohibited or required so that one may act
 26

accordingly. The void for vagueness doctrine is premised on due process considerations, which are absent
from this particular claim.
The vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due
process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide proper standards for adjudication.
Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected
curfew violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law
enforcement agents are still bound to follow the prescribed measures found in statutory law when
implementing ordinances as provided by Sec. 7 of RA 9344, as amended. This provision should be read in
conjunction with the Curfew Ordinances because RA 10630 (the law that amended RA 9344) repeals all
ordinances inconsistent with statutory law.
The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of
promoting their children's well-being. Minors, because of their peculiar vulnerability and lack of
experience, are not only more exposed to potential physical harm by criminal elements that operate
during the night; their moral wellbeing is likewise imperiled as minor children are prone to making
detrimental decisions during this time.
It should be emphasized that the Curfew Ordinances apply only when the minors are not — whether
actually or constructively — accompanied by their parents. This serves as an explicit recognition of the
State's deference to the primary nature of parental authority and the importance of parents' role in child-
rearing. Parents are effectively given unfettered authority over their children's conduct during curfew
hours when they are able to supervise them. Thus, in all actuality, the only aspect of parenting that the
Curfew Ordinances affects is the parents' prerogative to allow minors to remain in public places without
parental accompaniment during the curfew hours. In this respect, the ordinances neither dictate an over-
all plan of discipline for the parents to apply to their minors nor force parents to abdicate their authority
to influence or control their minors' activities.

Pursuant to Sec. 57-A of RA 9344, as amended by RA 10630, minors caught in violation of curfew
Right to Travel
ordinances are children at risk and, therefore, covered by its provisions. It is a long-standing principle that
"conformity with law is one of the essential requisites for the validity of a municipal ordinance."
The Court rejects petitioners' invocation of the overbreadth doctrine, considering that petitioners have
not claimed any transgression of their rights to free speech or any inhibition of speech-related conduct.
Applying the foregoing, any person, who was perceived to be a minor violating the curfew, may therefore
The application of the overbreadth doctrine is limited to a facial kind of challenge and, owing to the given
prove that he is beyond the application of the Curfew Ordinances by simply presenting any competent
rationale of a facial challenge, applicable only to free speech cases.
proof of identification establishing their majority age. In the absence of such proof, the law authorizes
enforcement authorities to conduct a visual assessment of the suspect, which — needless to state —
should be done ethically and judiciously under the circumstances. Should law enforcers disregard these The right to travel is recognized and guaranteed as a fundamental right under Sec. 6, Article III of the
rules, the remedy is to pursue the appropriate action against the erring enforcing authority, and not to 1987 Constitution. Jurisprudence provides that this right refers to the right to move freely from the
have the ordinances invalidated. Philippines to other countries or within the Philippines. Liberty — a birthright of every person — includes
the power of locomotion and the right of citizens to be free to use their faculties in lawful ways and to
live and work where they desire or where they can best pursue the ends of life.
Right of Parents to Rear their Children

Nevertheless, grave and overriding considerations of public interest justify restrictions even if made
Sec. 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents in
against fundamental rights. Specifically on the freedom to move from one place to another,
the rearing of their children. As may be gleaned from this provision, the rearing of children for civic
jurisprudence provides that this right is not absolute. As the 1987 Constitution itself reads, the State may
efficiency and the development of their moral character are characterized not only as parental rights, but
impose limitations on the exercise of this right, provided that they: (1) serve the interest of national
also as parental duties.
security, public safety, or public health; and (2) are provided by law.

This means that parents are not only given the privilege of exercising their authority over their children;
they are equally obliged to exercise this authority conscientiously.
While parents have the primary role in child-rearing, it should be stressed that "when actions concerning
the child have a relation to the public welfare or the well-being of the child, the State may act to promote
these legitimate interests." Thus, "in cases in which harm to the physical or mental health of the child or
to public safety, peace, order, or welfare is demonstrated, these legitimate state interests may override
the parents' qualified right to control the upbringing of their children."
As our Constitution itself provides, the State is mandated to support parents in the exercise of these
rights and duties. State authority is therefore, not exclusive of, but rather, complementary to parental
supervision.
The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and
prevention of juvenile crime, inarguably serve the interest of public safety. As to the second requirement,
that the limitation "be provided by law," our legal system is replete with laws emphasizing the State's
duty to afford special protection to children.
Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government
units, through their city or municipal councils, to set curfew hours for children. City councils are
authorized to enact curfew ordinances and enforce the same through their local officials. In other words,
PD 603 provides sufficient statutory basis — as required by the Constitution — to restrict the minors'
exercise of the right to travel.
The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional rights,
but the exercise of these rights is not co-extensive as those of adults. They are always subject to the
 27

authority or custody of another, such as their parent/s and/or guardian/s, and the State. As parens rights of association, free exercise of religion, rights to peaceably assemble, and of free expression,
patriae, the State regulates and, to a certain extent, restricts the minors' exercise of their rights. among others.

Bellotti v. Baird: US Supreme Court identified three (3) justifications for the differential treatment of the Although it allows minors to engage in school or church activities, it hinders them from engaging in
minors' constitutional rights. These are: first, the peculiar vulnerability of children; second, their inability legitimate non-school or non-church activities in the streets or going to and from such activities; thus,
to make critical decisions in an informed and mature manner; and third, the importance of the parental their freedom of association is effectively curtailed. It bears stressing that participation in legitimate
role in child rearing. activities of organizations, other than school or church, also contributes to the minors' social, emotional,
and intellectual development.
Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications. The strict scrutiny test applies when a classification either (i) interferes Although the Navotas Ordinance does not impose the curfew during Christmas Eve and Christmas day, it
with the exercise of fundamental rights, including the basic liberties guaranteed under the Constitution, effectively prohibits minors from attending traditional religious activities (such as simbang gabi) at night
or (ii) burdens suspect classes. The intermediate scrutiny test applies when a classification does not without accompanying adults.
involve suspect classes or fundamental rights, but requires heightened scrutiny, such as in classifications
based on gender and legitimacy. Lastly, the rational basis test applies to all other subjects not covered by
The Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or attend
the first two tests.
city council meetings to voice out their concerns in line with their right to peaceably assemble and to free
expression.
Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test is the applicable test. At this juncture, it should be emphasized that
The Manila and Navotas Ordinances should be completely stricken down since their exceptions, which
minors enjoy the same constitutional rights as adults; the fact that the State has broader authority over
are essentially determinative of the scope and breadth of the curfew regulations, are inadequate to
minors than over adults does not trigger the application of a lower level of scrutiny.
ensure protection of the above-mentioned fundamental rights. While some provisions may be valid, the
same are merely ancillary thereto; as such, they cannot subsist independently despite the presence of
The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of any separability clause.
minors vis-àvis the State's duty as parens patriae to protect and preserve their well-being with the
compelling State interests justifying the assailed government act. Under the strict scrutiny test, a
To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful
legislative classification that interferes with the exercise of a fundamental right or operates to the
errands or engage in legitimate activities during the night, notwithstanding curfew hours. As astutely
disadvantage of a suspect class is presumed unconstitutional. Thus, the government has the burden of
observed by Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen during
proving that the classification (i) is necessary to achieve a compelling State interest, and (ii) is the least
the deliberations on this case, parental permission is implicitly considered as an exception found in Sec.
restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the
4, item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or guardian," as
interest.
accompaniment should be understood not only in its actual but also in its constructive sense.

This Court has ruled that children's welfare and the State's mandate to protect and care for them as
Penal Provisions of the Manila Ordinance.
parens patriae constitute compelling interests to justify regulations by the State.

Thus springs the question of whether local governments could validly impose on minors these sanctions
While rights may be restricted, the restrictions must be minimal or only to the extent necessary to
— i.e., (a) community service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently,
achieve the purpose or to address the State's compelling interest. When it is possible for governmental
Secs. 57 and 57-A of RA 9344, as amended, prohibit the imposition of penalties on minors for status
regulations to be more narrowly drawn to avoid conflicts with constitutional rights, then they must be so
offenses such as curfew violations.
narrowly drawn. Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure
minimal constraint not only on the minors' right to travel but also on their other constitutional rights.
To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of
minors, when the similar conduct of adults are not considered as an offense or penalized (i.e., status
After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the
offenses). Instead, what they prohibit is the imposition of penalties on minors for violations of these
Quezon City Ordinance meets the above-discussed requirement, while the Manila and Navotas
regulations.
Ordinances do not.

"Penalty" is defined as "punishment imposed on a wrongdoer usually in the form of imprisonment or

This Court observes that the Manila and Navotas Ordinances are not narrowly drawn in that their
fine."
exceptions are inadequate and therefore, run the risk of overly restricting the minors' fundamental
freedoms. To be fair, both ordinances protect the rights to education, to gainful employment, and to
travel at night from school or work. However, even with those safeguards, the Navotas Ordinance and, to Punishment, in turn, is defined as "a sanction — such as fine, penalty, confinement, or loss of property,
a greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors' right, or privilege — assessed against a person who has violated the law."
 28

The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in
violation of the regulations are without legal consequences. Sec. 57-A thereof empowers local
governments to adopt appropriate intervention programs, such as community-based programs
recognized under Sec. 54.

In this regard, requiring the minor to perform community service is a valid form of intervention program
that a local government could appropriately adopt in an ordinance to promote the welfare of minors.

The sanction of admonition imposed by the City of Manila is likewise consistent with Secs. 57 and 57-A of
RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's
misdemeanor.

Admonition is generally defined as a "gentle or friendly reproof" or "counsel or warning against fault or
oversight."

In other words, the disciplinary measures of community-based programs and admonition are clearly not
penalties — as they are not punitive in nature — and are generally less intrusive on the rights and
conduct of the minor. To be clear, their objectives are to formally inform and educate the minor, and for
the latter to understand, what actions must be avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment
imposed by the City of Manila on the minor. Reprimand is generally defined as "a severe or formal
reproof." While the Philippine Law Dictionary defines it as a "public and formal censure or severe reproof,
administered to a person in fault by his superior officer or body to which he belongs. It is more than just a
warning or admonition." The Revised Uniform Rules on Administrative Cases in the Civil Service and our
jurisprudence explicitly indicate that reprimand is a penalty, hence, prohibited by Sec. 57-A of RA 9344,
as amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties — as provided in our
various criminal and administrative laws and jurisprudence — that Sec. 57-A of RA 9344, as amended,
evidently prohibits.

RULING

WHEREFORE, the petition is PARTLY GRANTED. The Court hereby declares Ordinance No. 8046, issued by
the local government of the City of Manila, and Pambayang Ordinansa Blg. 99-02, as amended by
Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas City, UNCONSTITUTIONAL
and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of 2014, issued by the local government
of the Quezon City is declared CONSTITUTIONAL and, thus,

VALID in accordance with this Decision.


Petitioners, -versus -HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RI CARDO V.
PARAS III, in his capacity as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF
IMMIGRATION, Respondents.
REYES, JR.,
These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court assail
the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise known as
the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold Departure
Orders, Watchlist Orders and Allow Departure Orders," on the ground that it infringes on the
constitutional right to travel.
Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following
orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41, thus:
1. Watchlist Order No. ASM-11-237 dated August 9, 2011; 1 2. Amended Watchlist Order No. 2011-422
dated September 6, 20II; and No 3. Watchlist Order No. 2011-573 dated October 27, 2011.
In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of
the Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).
Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and Sheryl
Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No. 2011-64 dated
July 22, 2011 issued against them.
Antecedent Facts
On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing rules
and regulations governing the issuance of HDOs. The said issuance was intended to restrain the
indiscriminate issuance of HDOs which impinge on the people's right to travel. On April 23, 2007, former
DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules and regulations governing
the issuance and implementation of watchlist orders. In particular, it provides for the power of the DOJ
Secretary to issue a Watchlist Order (WLO) against persons with criminal cases pending preliminary
investigation or petition for review before the DOJ. Further, it states that the DOJ Secretary may issue an
ADO to a person subject of a WLO who intends to leave the country for some exceptional reasons.
Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17 remained the governing
rule on the issuance of HDOs by the DOJ. On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra
issued the assailed DOJ Circular No. 41, consolidating DOJ Circular Nos. 17 and 18, which will govern the
issuance and implementation of HDOs, WLOs, and ADOs. Section 10 of DOJ Circular No. 41 expressly
repealed all rules and regulations contained in DOJ Circular Nos. 17 and 18, as well as all instructions,
issuances or orders or parts thereof which are inconsistent with its provisions.
After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent
election as Pampanga representative, criminal complaints were filed against her before the DOJ,
particularly: (a) XVI-INV-lOH-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for
plunder;7 (b) XVI-INV-llD-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for
29
plunder, malversation and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus
Election Code (OEC), violation of the Code of Conduct and Ethical Standards for Public Officials, and
qualified theft; and (c) XVI-INV-l lF-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al.,
for plunder, malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC,
violation of the Code of Conduct and Ethical Standards for Public Officials and qualified theft.
In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9,
2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the inclusion
of GMA's name in the Bureau of Immigration (BI) watchlist. Thereafter, the BI issued WLO No. ASM-11-
237,11 implementing De Lima's order. On September 6, 2011, De Lima issued DOJ Amended WLO No.
2011-422 against GMA to reflect her full name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12
WLO No. 2011-422, as amended, is valid for a period of 60 days, or until November 5, 2011, unless
sooner terminated or otherwise extended. This was lifted in due course by De Lima, in an Order dated
November 14, 2011, following the expiration of its validity. 13 Meanwhile, on October 20, 2011, two
criminal complaints for Electoral Sabotage and Violation of the OEC were filed against GMA and her
husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the DOJ-Commission on Elections
(DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007 Election Fraud, 14 specifically:
(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria Macapagal-
Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC and
COMELEC Rules and Regulations; 15 and (b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel
Ill vs. Gloria Macapagal-Arroyo, et al., for electoral sabotage.16 Following the filing of criminal
complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and Miguel Arroyo on October 27, 2011,
with a validity period of 60 days, or until December 26, 2011, unless sooner terminated or otherwise
extended. 17 In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011,
GMA requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may
be able to seek medical attention from medical specialists abroad for her hypoparathyroidism and
metabolic bone mineral disorder.
She mentioned six different countries where she intends to undergo consultations and treatments:
United States of America, Germany, Singapore, Italy, Spain and Austria.18 She likewise undertook to
return to the Philippines, once her treatment abroad is completed, and participate in the proceedings
before the DOJ.19 In support of her application for ADO, she submitted the following documents, viz.:
1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary of
Foreign Affairs, of her Travel Authority;
2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the House
of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to include travel to
Singapore, Spain and Italy;
3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and Austria;
4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);
5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.
To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract
prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona (Dr.
Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr. Ona,
accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited OMA at her
residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were OMA's attending
doctors who explained her medical condition and the surgical operations conducted on her. After the
visit, Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having undergone a series of
three major operations.”
On November 8, 2011, before the resolution of her application for ADO, OMA filed the present Petition
for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO
and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular
No. 41 and WLOs issued against her for allegedly being unconstitutional.
A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition under the
same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise assailing
the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed as G.R. No.
199046.26
Also, on November 8, 2011, De Lima issued an Order,27 denying OMA's application for an ADO, based on
the following grounds:
First, there appears to be discrepancy on the medical condition of the applicant as stated in
her affidavit, on the other hand, and the medical abstract of the physicians as well as her physician's
statements to Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the other.
Second, based on the medical condition of Secretary Ona, there appears to be no urgent and
immediate medical emergency situation for Applicant to seek medical treatment abroad.
Third, Applicant lists several countries as her destination, some of which were not for
purposes of medical consultation, but for attending conferences.
Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion
of her medical treatment, this means that her return will always depend on said treatment, which, based
on her presentation of her condition, could last indefinitely.
Fifth, Applicant has chosen for her destination five (5) countries, namely, Singapore, Germany,
Austria, Spain and Italy, with which the Philippines has no existing extradition treaty.
IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO) of
Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.
SO ORDERED. On November 9, 2011, De Lima, together with her co-respondents, Ricardo V.
Paras, III, Chief State Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner,
30
(respondents) filed a Very Urgent Manifestation and Motion29 in G.R. Nos. 199034 and 199046, praying (
1) that they be given a reasonable time to comment on the petitions and the applications for a TRO
and/or writ of preliminary injunction before any action on the same is undertaken by the Court; (2) that
the applications for TRO and/or writ of preliminary injunction be denied for lack of merit, and; (3) that
the petitions be set for oral arguments after the filing of comments thereto.
On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and set
aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA
filed her Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion dated
November 9, 2011, in G.R. No. 199034.
On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos. 199034
and 199046, and requiring the respondents to file their comment thereto not later than November 18,
2011. The Court likewise resolved to issue a TRO in the consolidated petitions, enjoining the respondents
from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011,
2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following
conditions, to wit:
(i) The petitioners shall post a cash bond of Two Million Pesos (P2,000,000.00)
payable to this Court within five (5) days from notice hereof. Failure to post the
bond within the aforesaid period will result in the automatic lifting of the
temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to both of them who
will receive subpoena, orders and other legal processes on their behalf during their
absence. The petitioners shall submit the name of the legal representative, also
within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they will be
traveling, the petitioners shall inform said embassy or consulate by personal
appearance or by phone of their whereabouts at all times;
On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the
conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the
following: (1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required cash
bond of Two Million Pesos (P2,000,000.00);36 (2) certification from the Fiscal and Management and
Budget Office of the Supreme Court, showing that the cash bond is already on file with the office;37 (3)
special powers of attorney executed by the petitioners, appointing their respective lawyers as their legal
representatives; 38 and ( 4) an undertaking to report to the nearest consular office in the countries
where they will travel.
At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International
Airport (NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore. However, the
BI officials at NAIA refused to process their travel documents which ultimately resulted to them not being
able to join their flights.
On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease and
Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO

issued by the Court was immediately executory and that openly defying the same is tantamount to gross
disobedience and resistance to a lawful order of the Court. Not long after, Miguel Arroyo followed
through with an Urgent Manifestation, adopting and repleading all the allegations in GMA's motion.
On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or
to Lift TR0,44 praying that the Court reconsider and set aside the TRO issued in the consolidated petitions
until they are duly heard on the merits. In support thereof, they argue that the requisites for the issuance
of a TRO and writ of preliminary injunction were not established by the petitioners. To begin with, the
petitioners failed to present a clear and mistakable right which needs to be protected by the issuance of a
TRO. While the petitioners anchor their right in esse on the right to travel under Section 6, Article III of
the 1987 Constitution, the said right is not absolute. One of the limitations on the right to travel is DOJ
Circular No. 41, which was issued pursuant to the rule-making powers of the DOJ in order to keep
individuals under preliminary investigation within the jurisdiction of the Philippine criminal justice
system. With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot claim that
they have a clear and unmistakable right to leave the country as they are the very subject of the
mentioned issuance.45 Moreover, the issuance of a TRO will effectively render any judgment on the
consolidated petitions moot and academic. No amount of judgment can recompense the irreparable
injury that the state is bound to suffer if the petitioners are permitted to leave the Philippine jurisdiction.
On November 18, 2011, the Court issued a Resolution, requiring De Lima to show cause why she should
not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO. She was
likewise ordered to immediately comply with the TRO by allowing the petitioners to leave the country. At
the same time, the Court denied the Consolidated Urgent Motion for Reconsideration and/or to Lift TRO
dated November 16, 2011 filed by the Office of the Solicitor General.
On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of
Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of Pasay
City, which was docketed as R-PSY-l 1-04432-CR49 and raffled to Branch 112. A warrant of arrest for GMA
was forthwith issued.
Following the formal filing of an Information in court against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TR0.50 They argue that the filing of the information for electoral
sabotage against GMA is a supervening event which warrants the lifting of the TRO issued by this Court.
They asseverate that the filing of the case vests the trial court the jurisdiction to rule on the disposition of
the case. The issue therefore on the validity of the assailed WLOs should properly be raised and threshed
out before the RTC of Pasay City where the criminal case against GMA is pending, to the exclusion of all
other courts.
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of
OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the
issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated November 21, 2011,52
lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the BI
watchlist.
31
Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22,
2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral
arguments on December 1, 2011, the parties were required to submit their respective memoranda.
Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 2011 was issued against Genuinos,
among others, after criminal complaints for Malversation, as defined under Article 217 of the Revised
Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) ofR.A. No. 3019 were filed against them
by the Philippine Amusement and Gaming Corporation (PAGCOR), through its Director, Eugene
Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for the film "Baler." This
was followed by the filing of another complaint for Plunder under R.A. No. 7080, Malversation under
Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as well as
members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil First, Inc., for allegedly
siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was thereafter filed
against Efraim and Erwin was filed before the Office of the Ombudsman for violation of R.A. No. 3019 for
allegedly releasing PAGCOR funds intended for the Philippine Sports Commission directly to the
Philippine Amateur Swimming Association, Inc.55 In a Letter56 dated July 29, 2011 addressed to Chief
State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against them be
lifted. This plea was however denied in a Letter57 dated August 1, 2011 which prompted the institution
of the present petition by the Genuinos. In a Resolution58 dated April 21, 2015, the Court consolidated
the said petition with G.R. Nos. 199034 and 199046.
The Court, after going through the respective memoranda of the parties and their pleadings, sums up the
issues for consideration as follows:
I.WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;
II WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and
III WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT OF
COURT.
Ruling of the Court
The Court may exercise its power of judicial review despite the filing of information for electoral sabotage
against GMA
It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable
controversy. They argue that the instant petitions had been rendered moot and academic by ( 1) the
expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6,
2011 ;59 (2) the filing of an information for electoral sabotage against GMA,60 and; (3) the lifting of the
WLO No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent deletion of his
name from the BI watchlist after the COMELEC en banc dismissed the case for electoral sabotage against
him.
The power of judicial review is articulated in Section 1, Article YIU of the 1987 Constitution which reads:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations,
to wit: ( 1) there must be an actual case or controversy calling for the exercise of judicial power: (2) the
person challenging the act must have the standing to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such that he has sustained,
or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be
raised at the earliest opportunity; and ( 4) the issue of constitutionality must be the very !is mota of the
case.
Except for the first requisite there is no question with respect to the existence of the three (3) other
requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been
unlawfully subjected to restraint on their right to travel owing to the issuance of WLOs against them by
authority of DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned
issuances at the most opportune time.
The respondents, however, claim that the instant petitions have become moot and academic since there
is no longer any actual case or controversy to resolve following the subsequent filing of an information
for election sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against
Miguel Arroyo and the deletion of his name from the BI watchlist after the dismissal of the complaint for
electoral sabotage against him.
To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having
adverse legal interest; a real and substantial controversy admitting of specific relief."64 When the issues
have been resolved or when the circumstances from which the legal controversy arose no longer exist,
the case is rendered moot and academic. "A moot and academic case is one that ceases to present a
justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no
practical use or value."
The Court believes that the supervening events following the filing of the instant petitions, while may
have seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues
raised by the petitioners. The Court, after assessing the necessity and the invaluable gain that the
members of the bar, as well as the public may realize from the academic discussion of the constitutional
issues raised in the petition, resolves to put to rest the lingering constitutional questions that abound the
assailed issuance. This is not a novel occurrence as the Court, in a number of occasions, took up cases up
to its conclusion notwithstanding claim of mootness.
In Evelia Javier vs. The Commission on Elections,66 the Court so emphatically stated, thus:
32
The Supreme Court is not only the highest arbiter of legal questions but also the conscience of
the government. The citizen comes to us in quest of law but we must also give him justice. The
two are not always the same. There are times when we cannot grant the latter because the
issue has been settled and decision is no longer possible according to the law. But there are
also times when although the dispute has disappeared, as in this case, it nevertheless cries
out to be resolved. Justice demands that we act then, not only for the vindication of the
outraged right, though gone, but also for the guidance of and as a restraint upon the future.
In Prof David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of
Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.0. No. 5), which ordered the members of the Armed Forces of the Philippines and
the Philippine National Police to carry all necessary actions to suppress acts of terrorism and lawless
violence, notwithstanding the issuance of PP 1021 lifting both issuances. The Court articulated, thus:
The Court holds that President Arroyo's issuance of PP 102 l did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the police
officers, according to petitioners, committed illegal acts in implementing it. Arc PP 1017 and
G.O. No. 5 constitutional or valid? Do they justify these alleged illegal acts? These are the vital
issues that must be resolved in the present petitions. It must be stressed that unconstitutional
act is not a law, it confers no rights, it imposes no duties, it affords no protection; it is in legal
contemplation, inoperative.
The "moot and academic" principle is not a magical formula that can automatically dissuade
the courts in resolving a case. Courts will decide cases, otherwise moot and academic, if: first,
there is a grave violation of the Constitution; second, the exceptional character of the
situation and the paramount public interest is involved; third, when constitutional issue raised
requires formulation of controlling principles to guide the bench, the bar, and the public;
and.fourth, the case is capable of repetition yet evading review.69 (Citations omitted and
emphasis supplied)
In the instant case, there are exceptional circumstances that warrant the Court's exercise of its power of
judicial review. The petitioners impute the respondents of violating their constitutional right to travel
through the enforcement of DOJ Circular No. 41. They claim that the issuance unnecessarily places a
restraint on the right to travel even in the absence of the grounds provided in the Constitution.
There is also no question that the instant petitions involved a matter of public interest as the petitioners
are not alone in this predicament and there can be several more in the future who may be similarly
situated. It is not far fetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will
recur considering the thousands of names listed in the watch list of the DOJ, who may brave to question
the supposed illegality of the issuance. Thus, it is in the interest of the public, as well as for the education
of the members of the bench and the bar, that this Court takes up the instant petitions and resolves the
question on the constitutionality of DOJ Circular No. 41.

The Constitution is inviolable and supreme of all laws
We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the
nation; it is deemed written in every statute and contract. If a law or an administrative rule violates any
norm of the Constitution, that issuance is null and void and has no effect.
The Constitution is a testament to the living democracy in this jurisdiction. It contains the compendium of
the guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on
government officials and instrumentalities. It is that lone unifying code, an inviolable authority that
demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of Rights
contained in Article III. In particular, Section 1 thereof provides:
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.
The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever he
pleases, for each is given an equal right to enjoy his liberties, with no one superior over another. Hence,
the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.
Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties.
Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and
libe11ies. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's
will. It is subject to the far more overriding demands and requirements of the greater number."
It is therefore reasonable that in order to achieve communal peace and public welfare, calculated
limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions, the
Constitution itself has provided for exceptions and restrictions to balance the free exercise of rights with
the equally important ends of promoting common good, public order and public safety.
The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation
to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,72 it was
defined as the inherent and plenary power in the State which enables it to prohibit all things hurtful to
the comfort, safety, and welfare of society. It is rooted in the conception that men in organizing the state
and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such
salutary measures calculated to ensure communal peace, safety, good order, and welfare.
Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint
the exception. Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so
that they may not unreasonably interfere with the free exercise of constitutional guarantees.
The right to travel and its limitations
33
The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of
law. 75 It is part and parcel of the guarantee of freedom of movement that the Constitution affords its
citizen. Pertinently, Section 6, Article III of the Constitution provides:
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 maybe
provided by law.
Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he
pleases and to travel wherever he wills. 76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the Court
held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and
sending them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects.
It was held that regardless of the mayor's laudable intentions, no person may compel another to change
his residence without being expressly authorized by law or regulation.
It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and
inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be
impaired only in the interest of national security, public safety or public health, as may be provided by
law. In Silverio vs. Court of Appeals,78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the
liberty of travel may be impaired even without Court Order, the appropriate executive officers
or administrative authorities are not armed with arbitrary discretion to impose limitations.
They can impose limits only on the basis of "national security, public safety, or public health"
and "as may be provided by law," a limitive phrase which did not appear in the 1973 text (The
Constitution, Bernas, Joaquin G.,S.J., Vol. I, First Edition, 1987, p. 263). Apparently, the
phraseology in the 1987 Constitution was a reaction to the ban on international travel
imposed under the previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party.
Clearly, under the provision, there are only three considerations that may permit a restriction on the right
to travel: national security, public safety or public health. As a further requirement, there must be an
explicit provision of statutory law or the Rules of Court providing for the impairment. The requirement
for a legislative enactment was purposely added to prevent inordinate restraints on the person's right to
travel by administrative officials who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the principle that ours is a government of
laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty
should be construed against the government and in favor of the individual.
The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in
the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in
his sponsorship speech, stated thus:
On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase
"and changing the same" is taken from the 1935 version; that is, changing the abode. The

addition of the phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the
rights be impaired on order of a court or without the order of a court, the impairment must
be in accordance with the prescriptions of law; that is, it is not left to the discretion of any
public officer.
It is well to remember that under the 1973 Constitution, the right to travel is compounded with the
liberty of abode in Section 5 thereof, which reads:
Section 5, 1973 Constitution: 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.
The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected
to "hamletting" under the Marcos regime. Realizing the loophole in the provision, the members of the
Constitutional Commission agreed that a safeguard must be incorporated in the provision in order to
avoid this unwanted consequence. Thus, the Commission meticulously framed the subject provision in
such a manner that the right cannot be subjected to the whims of any administrative officer. In
addressing the loophole, they found that requiring the authority of a law most viable in preventing
unnecessary intrusion in the freedom of movement, viz.:
NOLLEDO.: My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here
that the liberty of abode shall not be impaired except upon lawful order of the court or
--underscoring the word '·or" --when necessary in the interest of national security, public
safety or public health. So, in the first part, there is the word "court"; in the second part, it
seems that the question rises as to who determines whether it is in the interest of national
security, public safety, or public health. May it be determined merely by administrative
authorities?
FR. BERNAS: The understanding we have of this is that, yes, it may be determined by
administrative authorities provided that they act, according to line 9, within the limits
prescribed by law. For instance when this thing came up; what was in mind were passport
officers. If they want to deny a passport on the first instance, do they have to go to court? The
position is, they may deny a passport provided that the denial is based on the limits
prescribed by law. The phrase "within the limits prescribed by law" is something which is
added here. That did not exist in the old provision.
During the discussions, however, the Commission realized the necessity of separating the concept of
liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards
were laid down which will protect the liberty of abode and the right to travel separately, viz.:
MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11.
Iminumungkahi kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang
walang pakundangang paglabag sa liberty of abode sa ngalan ng national security at
pagsasagawa ng "hamletting" ng kung sinu-sino na lamang. Kapag inalis ito, maisasagawa
lamang ang "hamletting" upon lawful order of the court.
34
MR. RODRIGO. Aside from that, this includes the right to travel'?
FR. BERNAS. Yes.
MR. RODRIGO. And there are cases when passports may not be granted or passports already
granted may be cancelled. If the amendment is approved, then passpo1is may not be
cancelled unless it is ordered by the court. Is that the intention?
FR. BERNAS. Yes
MR. RODRIGO. But another right is involved here and that is to travel.
SUSPENSION OF SESSION
FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the
liberty of abode and or changing the same from the nght to travel, because they may
necessitate different provisions.
THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.
RESUMPTION OF SESSION
THE PRESIDING OFFICER (Mr. Bengzon). The session is resumed. Commissioner Bernas is
recognized
FR. BERNAS. The proposal is amended to read: "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 MAYBE PROVIDED BY LAW.
THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as
amended. Is there any objection? (Silence) The Chair hears none; the amendment, as
amended, is approved.
It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court
and, on the one hand, the right to travel may only be impaired by a law that concerns national security,
public safety or public health. Therefore, when the exigencies of times call for a limitation on the right to
travel, the Congress must respond to the need by explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative enactment.
Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M Drilon,86 the Court upheld
the validity of the Department Order No. I, Series of 1988, issued by the Department of Labor and
Employment, which temporarily suspended the deployment of domestic and household workers abroad.
The measure was taken in response to escalating number of female workers abroad who were subjected
to exploitative working conditions, with some even reported physical and personal abuse. The Court held

that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to
"afford protection to labor." Public safety considerations justified the restraint on the right to travel.
Further, in Leave Division, Office of the Administrative Services (OAS) -Office of the Court Administrator
(OCA) vs. Wilma Salvacion P Heusdens,87 the Court enumerated the statutes which specifically provide
for the impairment of the right to travel, viz.:
Some of these statutory limitations [to the right to travel] are the following:
1] The Human Security Act of 2010 or [R.A.] No. 9372. The law restricts the right to travel of
an individual charged with the crime of terrorism even though such person is out on bail.
2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of
Foreign Affairs or his authorized consular officer may refuse the issuance of, restrict the use of,
or withdraw, a passport of a Filipino citizen.
3] The "Anti-Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions
thereof, the [Bl], in order to manage migration and curb trafficking in persons, issued
Memorandum Order Radir No. 2011-011, allowing its Travel Control and Enforcement Unit to
··offload passengers with fraudulent travel documents, doubtful purpose of travel, including
possible victims of human trafficking" from our ports.
4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by
R.A. No. 10022. In enforcement of said law, the Philippine Overseas Employment
Administration (POEA) may refuse to issue deployment permit to a specific country that
effectively prevents our migrant workers to enter such country.
5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts
movement of an individual against whom the protection order is intended.
6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country
Adoption Board may issue rules restrictive of an adoptee's right to travel "to protect the
Filipino child from abuse, exploitation, trafficking and/or sale or any other practice in
connection with adoption which is harmful, detrimental, or prejudicial to the child. "
In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right
vis-a-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be resolved in
favor of the free exercise of the right, absent any explicit provision of law to the contrary.
The issuance of DOJ Circular No. 41 has no legal basis
Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the
DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly
providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the
interest of national security, public safety or public health. As it is, the only ground of the former DOJ
Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of
35
the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage
against them.
To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the
scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the provisions of an enabling law which the
former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the
"Administrative Code of 1987." She opined that DOI Circular No. 41 was validly issued pursuant to the
agency's rule-making powers provided in Sections 1 and 3, Book IV, Title IIL Chapter 1 of E.O. No. 292 and
Section 50, Chapter 11, Book IV of the mentioned Code.
Indeed, administrative agencies possess quasi-legislative or rule-making powers, among others. It is the
"power to make rules and regulations which results in delegated legislation that is within the confines of
the granting statute and the doctrine of non-delegability and separability of powers."90 In the exercise of
this power, the rules and regulations that administrative agencies promulgate should be within the scope
of the statutory authority granted by the legislature to the administrative agency. It is required that the
regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in
conformity with, the standards prescribed by law. They must conform to and be consistent with the
provisions of the enabling statute in order for such rule or regulation to be valid.
It is, however, important to stress that before there can even be a valid administrative issuance, there
must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a
law that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or
implemented by the delegate: and (b) fixes a standard the limits of which are sufficiently determinate
and determinable to which the delegate must conform in the performance of his functions.
A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose
that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively
restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III,
Chapter 1 of E.O. No. 292 reads:
Section 1. Declaration of Policy.-It is the declared policy of the State to provide the
government with a principal law agency which shall be both its legal counsel and prosecution
arm; 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; implement the laws on the admission and stay of aliens, citizenship,
land titling system, and settlement of land problems involving small landowners and member
of indigenous cultural minorities; and provide free legal services to indigent members of the
society.
Section 3. Powers and Functions.-to accomplish its mandate, the Department shall have the
following powers and functions:
( 1) Act as principal law agency of the government and as legal counsel and representative
thereof, whenever so required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation
and correction system;
(6) Provide immigration and naturalization regulatory services and implement the laws
governing citizenship and the admission and stay of aliens;
(7) Provide legal services to the national government and its functionaries, including
government-owned and controlled corporations and their subsidiaries;
(8) Such other functions as may be provided by law.
A plain reading of the foregoing provisions shows that they are mere general provisions designed to lay
down the purposes of the enactment and the broad enumeration of the powers and functions of the
DOJ. In no way can they be interpreted as a grant of power to curtail a fundamental right as the language
of the provision itself does not lend to that stretched construction. To be specific, Section 1 is simply a
declaration of policy, the essence of the law, which provides for the statement of the guiding principle,
the purpose and the necessity for the enactment. The declaration of poliicy is most useful in statutory
construction as an aid in the interpretation of the meaning of the substantive provisions of the law. It is
preliminary to the substantive portions of the law and certainly not the part in which the more significant
and particular mandates are contained. The suggestion of the former DOJ Secretary that the basis of the
issuance of DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not only defeats
logic but also the basic style of drafting a decent piece of legislation because it supposes that the authors
of the law included the operative and substantive provisions in the declaration of policy when its
objective is merely to introduce and highlight the purpose of the law.
Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the substantive
portions of the act. Such provisions are available for clarification of ambiguous substantive portions of
the act, but may not be used to create ambiguity in other substantive provisions.''
In the same way, Section 3 does not authorize the DOJ to issue WLOs and HDOs to restrict the
constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that
will justify the impairment. The provision simply grants the DOJ the power to investigate the commission
of crimes and prosecute offenders, which are basically the functions of the agency. However, it does not
carry with it the power to indiscriminately devise all means it deems proper in performing its functions
without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is what
DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment or
restriction in the exercise of a constitutional right must be clear, categorical and unambiguous. For the
rule is that:
Constitutional and statutory provisions control with respect to what rules and regulations may
be promulgated by an administrative body, as well as with respect to what fields are subject
to regulation by it. lt may not make rules and regulations which are inconsistent with the
provisions of the Constitution or a statute, particularly the statute it is administering or which
created it, or which are in derogation of. or defeat, the purpose of a statute.
36
The DOJ cannot also rely on Section 50, Chapter 1 l, Book JV of E.O. No. 292, which simply provides for
the types of issuances that administrative agencies, in general, may issue. It does not speak of any
authority or power but rather a mere clarification on the nature of the issuances that may be issued by a
secretary or head of agency. The innocuous provision reads as follows:
Section 50. General Classification of Issuances.-The administrative issuances of Secretaries and
heads of bureaus, offices and agencies shall be in the form of circulars or orders.
( 1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures
promulgated pursuant to law, applicable to individuals and organizations outside the
Government and designed to supplement provisions of the law or to provide means for
carrying them out, including inf01mation relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees,
concerning specific matters including assignments, detail and transfer of personnel, for
observance or compliance by all concerned.
In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the
former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41. The
memorandum particularly made reference to Subsections 3, 4 and 9 which state:
Section 7. Powers and Functions of the Secretary. -The Secretary shall:
( 1) Advise the President in issuing executive orders, regulations, proclamations and other
issuances, the promulgation of which is expressly vested by law in the President relative to
matters under the jurisdiction of the Department;
(2) Establish the policies and standards for the operation of the Department pursuant to the
approved programs of governments:
(3) Promulgate rules and regulations necessary to carry out department objectives, policies,
functions, plans, programs and projects;
( 4) Promulgate administrative issuances necessary for the efficient administration of the
offices under the Secretary and for proper execution of the laws relative thereto. These
issuances shall not prescribe penalties for their violation, except when expressly authorized by
law;
(9) Perform such other functions as may be provided by law.
It is indisputable that the secretaries of government agencies have the power to promulgate rules and
regulations that will aid in the performance of their functions. This is adjunct to the power of
administrative agencies to execute laws and does not require the authority of a law. This is, however,
different from the delegated legislative power to promulgate rules of government agencies.
The considered opinion of Mr. Justice Carpio in Abakada Gura Party List (formerly AASJS) et al. vs. Hon.
Purisima et al is illuminating:

The inherent power of the Executive to adopt rules and regulations to execute or implement
the law is different from the delegated legislative power to prescribe rules. The inherent
power of the Executive to adopt rules to execute the law does not require any legislative
standards for its exercise while the delegated legislative power requires sufficient legislative
standards for its exercise.
Whether the rule-making power by the Executive is a delegated legislative power or an
inherent Executive power depends on the nature of the rule-making power involved. If the
rule-making power is inherently a legislative power, such as the power to fix tariff rates, the
rule-making power of the Executive is a delegated legislative power. In such event, the
delegated power can be exercised only if sufficient standards are prescribed in the law
delegating the power.
If the rules are issued by the President in implementation or execution of self-executory
constitutional powers vested in the President the rule-making power of the President is not a
delegated legislative power. The rule is that the President can execute the law without any
delegation of power from the legislature. Otherwise, the President becomes a mere figure-
head and not the sole Executive of the Government.
The questioned circular does not come under the inherent power of the executive department to adopt
rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a
compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the
expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make
rules, its authority being confined to execution of laws. This is the import of the terms "when expressly
provided by law" or "as may be provided by law" stated in Sections 7( 4) and 7(9), Chapter 2, Title III,
Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the necessary details in carrying into
effect the law as enacted.97 Without a clear mandate of an existing law, an administrative issuance is
ultra vires.
Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive
its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the
completeness test and sufficient standard test. The DOJ miserably failed to establish the existence of the
enabling law that will justify the issuance of the questioned circular.
That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ
to issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No.
41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform, the Court emphasized:
One of the basic principles of the democratic system is that where the rights of the individual
are concerned, the end does not justify the means. It is not enough that there be a valid
objective; it is also necessary that the means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse constitutional shortcuts. There is no question
that not even the strongest moral conviction or the most urgent public need, subject only to a
37
few notable exceptions, will excuse the bypassing of an individual's rights. It is no exaggeration
to say that a person invoking a right guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation who would deny him that right.
The DOJ would however insist that the resulting infringement of liberty is merely incidental, together
with the consequent inconvenience, hardship or loss to the person being subjected to the restriction and
that the ultimate objective is to preserve the investigative powers of the DOJ and public order.100 It
posits that the issuance ensures the presence within the country of the respondents during the
preliminary investigation.101 Be that as it may, no objective will ever suffice to legitimize desecration of a
fundamental right. To relegate the intrusion as negligible in view of the supposed gains is to undermine
the inviolable nature of the protection that the Constitution affords.
Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its
zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and
justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes precedence
over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt
towards the former.102 Thus, in Allado vs. Diokno,103 the Court declared, viz.:
The sovereign power has the inherent right to protect itself and its people from vicious acts
which endanger the proper administration of justice; hence, the State has every right to
prosecute and punish violators of the law. This is essential for its self-preservation, nay, its
very existence. But this does not confer a license for pointless assaults on its citizens. The right
of the State to prosecute is not a carte blanche for government to defy and disregard the
rights of its citizens under the Constitution.
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the
petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel,
especially when the risk of flight is distinctly high will surely impede the efficient and effective operation
of the justice system. The absence of the petitioners, it asseverates, would mean that the farthest
criminal proceeding they could go would be the filing of the criminal information since they cannot be
arraigned in absentia.
The predicament of the DOJ is understandable yet untenable for relying on grounds other what is
permitted within the confines of its own power and the nature of preliminary investigation itself. The
Court, in Paderanga vs. Drilon, 106 made a clarification on the nature of a preliminary investigation, thus:
A preliminary investigation is an inquiry or proceeding for the purpose of determining
whether there is sufficient ground to engender a well founded 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. A preliminary investigation is not the occasion for the full
and exhaustive display of the parties' evidence; it is for the presentation of such evidence only
as may engender a well grounded belief that an offense has been committed and that the
accused is probably guilty thereof.
It bears emphasizing that the conduct of a preliminary investigation is an implement of due process
which essentially benefits the accused as it accords an opportunity for the presentation of his side with

regard to the accusation. The accused may, however, opt to waive his presence in the preliminary
investigation. In any case, whether the accused responds to a subpoena, the investigating prosecutor
shall resolve the complaint within 10 days after the filing of the same.
The point is that in the conduct of a preliminary investigation, the presence of the accused is not
necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive his
presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall be bound
by the determination of the prosecutor on the presence of probable cause and he cannot claim denial of
due process.
The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41
on the ground that it is necessary to ensure presence and attendance in the preliminary investigation of
the complaints. There is also no authority of law granting it the power to compel the attendance of the
subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the
imposition of restraint on the liberty of movement.
That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be
able to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have;
it is a usurpation of function that properly belongs to the legislature.
Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ of
empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the
separation of powers between the three branches of the government and cannot be upheld. Even the
Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not
diminish, increase, or modify substantive rights.109 This should have cautioned the DOJ, which is only
one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when
they affect substantive rights, like the right to travel.
The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel
were found reasonable, i.e. New York v. 0'Neill, Kwong vs. Presidential Commission on Good
Government111 and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEJ to support its position for the reasons
stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since
the Court never ruled on the constitutionality of the authority of the PCGG to issue HDOs in the said
case. On the contrary, there was an implied recognition of the validity of the PCGG's Rules and
Regulations as the petitioners therein even referred to its provisions to challenge the PCGG's refusal to
lift the HDOs issued against them despite the lapse of the period of its effectivity. The petitioners never
raised any issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but only
questioned the agency's non-observance of the rules particularly on the lifting of HDOs. This is strikingly
different from the instant case where the main issue is the constitutionality of the authority of the DOJ
Secretary to issue HDOs under DOJ Circular No. 41.
38
Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said
case, the respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law
to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under
which authority a judge of the Court of General Sessions, New York County requested the Circuit Court of
Dadc-County, Florida, where he was at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury proceeding. The US Supreme Court
upheld the constitutionality of the law, ruling that every citizen, when properly summoned, has the
obligation to give testimony and the same will not amount to violation of the freedom to travel but at
most, a mere temporary interference. The clear deviation of the instant case from New York is that in the
latter case there is a lmv specifically enacted to require the attendance of the respondent to court
proceedings to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation
to give testimony, he is absolutely free to return in the state where he was found or to his state of
residence, at the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an
enabling law where it could have derived its authority to interfere with the exercise of the right to travel.
Further, the respondent is subjected to continuing restraint in his right to travel as he is not allowed to go
until he is given, if he will ever be given, an ADO by the secretary of justice.
The DOJ cannot issue DOJ Circular No. 41 under the guise of police power
The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains
to the "state authority to enact legislation that may interfere with personal liberty or property in order to
promote the general welfare."112 "It may be said to be that inherent and plenary power in the State
which enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."113 Verily, the
exercise of this power is primarily lodged with the legislature but may be wielded by the President and
administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay, by
virtue of a valid delegation of power.
It bears noting, however, that police power may only be validly exercised if (a) the interests of the public
generally, as distinguished from those of a particular class, require the interference of the State, and (b)
the means employed are reasonably necessary to the attainment of the object sought to be
accomplished and not unduly oppressive upon individuals.
On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims
to be exercising the same as the alter ego of the President, it must first establish the presence of a
definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed
to do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No.
41 was reasonably necessary in order for it to perform its investigatory duties.
In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the
Constitution. It must never be utilized to espouse actions that violate the Constitution. Any act, however
noble its intentions, is void if it violates the Constitution. In the clear language of the Constitution, it is
only in the interest of national security, public safety and public health that the right to travel may be
impaired. None one of the mentioned circumstances was invoked by the DOJ as its premise for the
promulgation of DOJ Circular No. 41.

DOJ Circular No. 41 transcends constitutional limitations
Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render it
invalid. The apparent vagueness of the circular as to the distinction between a HDO and WLO is violative
of the due process clause. An act that is vague "violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle." Here, the distinction is significant as it will inform the respondents of the grounds, effects and
the measures they may take to contest the issuance against them. Verily, there must be a standard by
which a HDO or WLO may be issued, particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal information against them which could have
warranted the restraint.
Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the
DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of the
issuance, it was stated, thus:
WHEREAS, while several Supreme Court circulars, issued through the Office of the Court
Administrator, clearly state that "[J-IDO] shall be issued only in criminal cases within the
exclusive jurisdiction of the [RTCs ]," said circulars are, however, silent with respect to cases
falling within the jurisdiction of courts below the RTC as well as those pending determination
by government prosecution offices;
Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the supposed
inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which is SC Circular
No. 39-97.119 It is the DOJ's impression that with the silence of the circular with regard to the issuance
of HDOs in cases falling within the jurisdiction of the MTC and those still pending investigation, it can take
the initiative in filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake
such action since the issuance of HDOs is an exercise of this Court's inherent power "to preserve and to
maintain the effectiveness of its jurisdiction over the case and the person of the accused."It is an exercise
of judicial power which belongs to the Court alone, and which the DOJ, even as the principal law agency
of the government, does not have the authority to wield.
Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is
not without good reasons. Circular No. 39-97 was specifically issued to avoid indiscriminate issuance of
HDOs resulting to the inconvenience of the parties affected as the same could amount to an infringement
on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ, the Court
intentionally held that the issuance of HDOs shall pertain only to criminal cases within the exclusive
jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the MTC and all
other cases. The intention was made clear with the use of the term "only." The reason lies in seeking
equilibrium between the state's interest over the prosecution of the case considering the gravity of the
offense involved and the individual's exercise of his right to travel. Thus, the circular permits the intrusion
on the right to travel only when the criminal case filed against the individual is within the exclusive
jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are punishable with
39
imprisonment of more than six years. The exclusion of criminal cases within the jurisdiction of the MTC is
justified by the fact that they pertain to less serious offenses which is not commensurate with the
curtailment of a fundamental right. Much less is the reason to impose restraint on the right to travel of
respondents of criminal cases still pending investigation since at that stage no information has yet been
filed in court against them. It is for these reasons that Circular No. 39-97 mandated that HDO may only be
issued in criminal cases filed with the RTC and withheld the same power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have
been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary
may issue HDO against the accused in criminal cases within the jurisdiction of the MTC121 and against
defendants, respondents and witnesses in labor or administrative cases, 122 no matter how unwilling
they may be. He may also issue WLO against accused in criminal cases pending before the RTC, 123
therefore making himself in equal footing with the RTC, which is authorized by law to issue HDO in the
same instance. The DOJ Secretary may likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for reconsideration before the DOI.124 More
striking is the authority of the DOI Secretary to issue a HDO or WLO motu proprio, even in the absence of
the grounds stated in the issuance if he deems necessary in the interest of national security, public safety
or public health.
It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it
remains effective even after the lapse of its validity period as long as the DOJ Secretary does not approve
the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint in his
mobility as he awaits a favorable indorsement of the government agency that requested for the issuance
of the HDO or WLO and the affirmation of the DOI Secretary even as the HDO or WLO against him had
become functus officio with its expiration.
It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit a
person subject of HDO or \VLO to travel through the issuance of an ADO upon showing of "exceptional
reasons'' to grant the same. The grant, however, is entirely dependent on the sole discretion of the DOI
Secretary based on his assessment of the grounds stated in the application.
The constitutional violations of DOI Circular No. 41 are too gross to brush aside particularly its
assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can
take the place of a law that authorizes the restraint in the right to travel only in the interest of national
security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in
the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds
for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary
investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary.
This is precisely the situation that the 1987 Constitution seeks to avoid-for an executive officer to impose
restriction or exercise discretion that unreasonably impair an individual's right to travel--thus, the
addition of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the Court
underscored that this phraseology in the t 987 Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party. The qualifying phrase is not a
mere innocuous appendage. It secures the individual the absolute and free exercise of his right to travel

at all times unless the more paramount considerations of national security, public safety and public
health call for a temporary interference, but always under the authority of a law.
The subject WLOs and the restraint on the right to travel.
In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings
thereof. For better illustration, the said WLOs are hereby reproduced as follows:
In re: GLORIA M. MACAPAGAL-ARROYO
ORDER On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued an order
docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the name
GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.
It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the Department of
Justice in connection with the following cases:
Docket No. Title of the Case Offense/s
XVI-INV-lOH-00251, Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, Plunder
XVIX-INV-1 lD-00170, Francisco I. Chavez vs. Gloria Macapagl-Arroyo, Plunder, Malversation and/or Illegal
use of OWWA Funds, Graft and Corruption, Violation of The Omnibus Election Code, Violation of the
Code 1 of Ethical Standards I for Public Officials, and Qualified Theft
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria Macapagl-Arroyo Jocelyn "Joe-Joe" Bolante, Ibarra
Poliquit et al., Plunder, Malversation and/or Illegal use of Public Funds, Graft and Corruption, Violation of
The Omnibus Election Code, Violation of the Code of Ethical Standards for Public Officials, and Qualified
Theft.
Based on the foregoing and pursuant to Department o[ Justice Circular No. 41 (Consolidated Rules and
Regulations Governing the Issuance and Implementation o[Hold Departure Orders, Watchli.'lt Orders,_
and Allow Departure Orders) dated 25 Mav 2010, we order the inclusion of the name GLORIA M.
MACAPAGAL-ARROYO in the Watchlist. This watchlist shall be valid for sixty (60) days unless sooner
revoked or extended. The Airport Operation Division and Immigration Regulation Division Chiefs shall
implement this Order. Notify the Computer Section. SO ORDERED. 09 August 2011
AMENDED ORDER
Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in
connection with the following cases: XXXX
Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 (Consolidated Rules
and Regulations Governing the Issuance and Implementation of Hold Departure Orders, vVatchlist
Orders, and Allow Departure Orders), the undersigned hereby motu proprio issues a Watchlist Order
against Ma. Gloria M. Macapagal-Arroyo. Accordingly, the Commissioner of Immigration, Manila, is
hi;;:r;;by ordered to INCLUDE in the Bureau of Immigration's Watchlist the name of Ma. Gloria M.
40
Macapagal-Arroyo. Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days
from issuance unless sooner terminated or extended. SO ORDERED. City of Manila, September 6, 2011
ORDER
Pursuant to Section 2(c) o[Department Circular No. 41 dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders, and
Allow Departure Orders), after careful evaluation, finds the Application for the Issuance of WLO against
the following meritorious;
12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives Quezon City
Ground for WLO Issuance: Pendency of the case, entitled "DOJ-COMELEC Fact Finding Committee v.
Benjamin Abalos S1:, et al.," for Electoral Sabotage/Omnibus Election Code docketed as DOJ-CO MELEC
Case No. 001-2011
1. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives Quezon City
2. JOSE MIGUEL TUASON ARROYO Address: L.T.A. Bldg. 118 Perea St. Makati City
Ground for WLO Issuance: Pendency of the case, entitled "Aquilino Pimentel III v. Gloria Macapagal-
Arroyo, et Al.,'' for Electoral Sabotage docketed as DOJ-COMELEC Case No. 002-2011.
Accordingly, the Commissioner of Immigration, Manila. is hereby ordered to INCLUDE in the Bureau of
Immigration's Watehlist, the names of the above-named persons.
This Order is valid for a period of sixty ( 60) days from the date of its issuance unless sooner terminated
or otherwise extended. SO ORDERED.
On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently
states:
Hold Depaiiure Order (HDO) No. 2011-64130
In re: Issuance of HDO against EFRAIM C. GENUINO, ET AL.
ORDER
After a careful evaluation of the application, including the documents attached thereto, for the issuance
of Hold Departure Order (HDO) against the above-named persons filed pursuant to this Department's
Circular (D. C.) No. 41 (Consolidated Rules and Regulations Governing the Issuance and Implementation
of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated May 25, 2010, we find
the application meritorious.
Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.

GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA, ATTY, CARLOS
R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND JOHNNY G. TAN.
Name: EFRAIM C. GENUINO, Nationality: Filipino, Last known address: . 42 Lapu Lapu Street, Magallanes
Village, Makati City, Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt
Practices Act, Plunder, Details of the Case: No Pending before the National Prosecution Service,
Departm(.;nt of Justice (NPS Docket No. XV-INV-1 lF-00229 Pending before the Office of the Ombudsman
(Case No. CPL-C-11-1297) Pending before the National Prosecution Service, Department of Justice (l.S.
No. XVI-INV-llG-00248)
Name: SHERYLL F. GENUINO-SEE, Nationality: Filipino, Last known address: No. 32-a Pasco Parkview,
Makati City, Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt Practices Act
Plunder, Details of the Case: Pending before the National Prosecution Service, Department of Justice (l.S.
No. XVI-INV-11 G-00248)
Name: ERWIN F. GENUINO, Nationality: Filipino, Last known address: No. 5 J.P. Rizal Extension,
COMEMBO, Makati City, Ground for HDO Issuance: Malversation, Violation of the Anti-Graft and Corrupt
Practices Act, Plunder, Details of the Case: Pending before the National Prosecution Service, Department
u f Justice (NPS Docket No. XV-INV-llF-00229 Pending before the National Prosecution Service,
Department of Justice (l.S. No. XVI-INV-110-00248)
Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five ( 5) years unless sooner
terminated. SO ORDERED.
On its face, the language of the foregoing issuances docs not contain an explicit restraint on the right to
travel. The issuances seemed to be a mere directive from to the BI officials to include the named
individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a common
reference to DOJ Circular No. 41, where the authority to issue the same apparently emanates, and from
which the restriction on the right to travel can be traced. Section 5 thereof provides, thus:
Section 5. HDO/WLO Lifting or Cancellation-In the lifting or cancellation of the HDO/WLO
issued pursuant to this Circular, the following shall apply: (a) The HDO may be lifted or
cancelled under any of the following grounds:
1. When the validity period of the HOO as provided for in the preceding section has already
expired;
2. When the accused subject of the HDO has been allowed to leave the country during the
pendency of the case, or has been acquitted of the charge, or the case in which the
warrant/order of arrest was issued has been dismissed or the warrant/order of arrest
has been recalled;
3. When the civil or labor case or case before an administrative agency of the government
wherein the presence of the alien subject of the HDO/WLO has been dismissed by the
court or by appropriate government agency, or the alien has been discharged as a
witness therein, or the alien has been allowed to leave the country;
(b) The WLO may be lifted or cancelled under any of the following grounds: I. When the
validity period of the WLO as provided for in the preceding section has already expired;
41
2. When the accused subject of the WLO has been allowed by the court to leave the country
during the pendency of the case, or has been acquitted of the charge; and
3. When the preliminary investigation is terminated, or when the petition for review, or
motion for reconsideration has been denied and/or dismissed.
That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under
Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from
the court during the pendency of the case against him. Further, in 5 (b) (3 ), he may not leave unless the
preliminary investigation of the case in which he is involved has been terminated.
In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO
cannot leave the country unless he obtains an ADO. The said section reads as follows:
Section 7. Allow Departure Order (ADO)-Any person subject of HDO/WLO issued pursuant to this Circular
who intends, for some exceptional reasons, to leave the country may, upon application under oath with
the Secretary of Justice, be issued an ADO.
The ADO may be issued upon submission of the following requirements:
(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and containing an
undertaking to immediately report to the DOJ upon return; and
(b) Authority to travel or travel clearance from the court or appropriate government office where
the case upon which the issued HDO/WLO was based is pending, or from the investigating
prosecutor in charge or the subject case.
By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only
plausible conclusion that can be made is that its mere issuance operates as a restraint on the right to
travel. To make it even more difficult, the individual will need to cite an exceptional reason to justify the
granting of an ADO.
The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they
are one and the same or, at the very least, complementary such that whatever is not covered in Section
1, 131 which pertains to the issuance of HDO, can conveniently fall under Section 2, 132 which calls for
the issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes
the Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national
security, public safety or public health. With this all-encompassing provision, there is nothing that can
prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national
security, public safety or public health.
The exceptions to the right to travel are limited to those stated in Section 6, Article III of the Constitution
The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly impaired.133 It cites that this Court has its own
administrative issuances restricting travel o1 its employees and that even lower courts may issue HDO
even on of what is stated in the Constitution.

The argument fails to persuade.
It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO
against an accused in a criminal case so that he may be dealt with in accordance with law.135 It does not
require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power.
In Defensor-Santiago vs. Vasquez, 136 the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general grant
of jurisdiction, in addition to those expressly conferred on them. These inherent powers are
such powers as are necessary for the ordinary and efficient exercise of jurisdiction; or
essential to the existence, dignity and functions of the court, as well as to the due
administration of justice; or are directly appropriate, convenient and suitable to the execution
of their granted powers; and include the power to maintain the court's jurisdiction and render
it effective in behalf of the litigants.
The inherent powers of the courts are essential in upholding its integrity and largely beneficial in keeping
the people's faith in the institution by ensuring that it has the power and the means to enforce its
jurisdiction.
As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:
With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution
provides that the Supreme Court shall have administrative supervision over all courts and the
personnel thereof. This provision empowers the Court to oversee all matters relating to the
effective supervision and management of all courts and personnel under it. Recognizing this
mandate, Memorandum Circular No. 26 of the Office of the President, dated July 31, 1986,
considers the Supreme Court exempt and with authority to promulgate its own rules and
regulations on foreign travels. Thus, the Court came out with OCA Circular No. 49-2003 (B).
Where a person joins the Judiciary or the government in general, he or she swears to faithfully
adhere to, and abide with, the law and the corresponding office rules and regulations. These
rules and regulations, to which one submits himself or herself, have been issued to guide the
government officers and employees in the efficient performance of their obligations. When
one becomes a public servant, he or she assumes certain duties with their concomitant
responsibilities and gives up some rights like the absolute right to travel so that public service
would not be prejudiced.
It is therefore by virtue of its administrative supervision over all courts and personnel that this Court
came out with OCA Circular No. 49-2003, which provided for the guidelines that must be observed by
employees of the judiciary seeking to travel abroad. Specifically, they are required to secure a leave of
absence for the purpose of foreign travel from this Court through the Chief Justice and the Chairmen of
the Divisions, or from the Office of the Court Administrator, as the case maybe. This is "to ensure
management of court dockets and to avoid disruption in the administration of justice.
OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee's
leave for purpose of foreign travel which is necessary for the orderly administration of justice. To
42
"restrict" is to restrain or prohibit a person from doing something; to "regulate" is to govern or direct
according to rule.140 This regulation comes as a necessary consequence of the individual's employment
in the judiciary, as part and parcel of his contract in joining the institution. For, if the members of the
judiciary are at liberty to go on leave any time, the dispensation of justice will be seriously hampered.
Short of key personnel, the courts cannot properly function in the midst of the intricacies in the
administration of justice. At any rate, the concerned employee is not prevented from pursuing his travel
plans without complying with OCA Circular No. 49-2003 but he must be ready to suffer the consequences
of his non-compliance.
The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the
requirement for leave application of employees in the government service seeking to travel abroad. The
Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment guidelines
for all government employees, except those who are covered by special laws. The filing of application for
leave is required for purposes of orderly personnel administration. In pursuing foreign travel plans, a
government employee must secure an approved leave of absence from the head of his agency before
leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26
dated July 31, 1986, provided the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. The provisions of this issuance were later clarified in the
Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.0. No.
459 was issued, streamlining the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. Section 2 thereof states:
Section 2. Subject to Section 5 hereof, all other government officials and employees seeking
authority to travel abroad shall henceforth seek approval from their respective heads of
agencies, regardless of the length of their travel and the number of delegates concerned. For
the purpose of this paragraph, heads of agencies refer to the Department Secretaries or their
equivalents.
The regulation of the foreign travels of government employees was deemed necessary "to promote
efficiency and economy in the government service."141 The objective was clearly administrative
efficiency so that government employees will continue to render public services unless they are given
approval to take a leave of absence in which case they can freely exercise their right to travel. lt should
never be interpreted as an exception to the right to travel since the government employee during his
approved leave of absence can travel wherever he wants, locally or abroad. This is no different from the
leave application requirements for employees in private companies.
The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects
of DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power
to issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers
expressly granted to it by law and may not extend the same on its own accord or by any skewed
interpretation of its authority.
The key is legislative enactment
 43

The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the
solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the
fundamental and paramount law of the nation to which all other laws must conform and in accordance
with which all private rights are determined and all public authority administered." Any law or issuance,
therefore, must not contradict the language of the fundamental law of the land; otherwise. it shall be
struck down for being unconstitutional.
Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on
constitutionally-protected rights without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep
constitutional boundaries and skirt the prescribed legal processes.
That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong againc;t the
state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless innocent
individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As emphatically
pronounced in Secretary of National Defense vs. Manalo, et al., 143 "the constitution is an overarching
sky that covers all in its protection. It affords protection to citizens without distinction. Even the most
despicable person deserves the same respect in the enjoyment of his rights as the upright and abiding.
Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the
issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact the
necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling on
constitutionally-protected rights. Without a valid legislation_ the DOJ's actions will perpetually be met
with legal hurdles to the detriment of the due administration of justice. The challenge therefore is for the
legislature to address this problem in the form of a legislation that will identify permissible intrusions in
the right to travel. Unless this is done, the government will continuously be confronted with questions on
the legality of their actions to the detriment of the implementation of government processes and
realization of its objectives.
In the meantime, the DOJ may remedy its quandary by exerc1smg more vigilance and efficiency in the
performance of its duties. This can be accomplished by expediency in the assessment of complaints filed
before its office and in the prompt filing of information in court should there be an affirmative finding of
probable cause so that it may legally request for the issuance of HDO and hold the accused for trial.
Clearly, the solution lies not in resorting to constitutional shortcuts but in an efficient and effective
performance of its prosecutorial duties.
which was issued pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by
R.A. No. 10364 or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold
the departure of suspected trafiickers or trafficked individuals. He also noted that the Commissioner of BI
has the authority to issue a HDO against a foreigner subject of deportation proceedings in order to
ensure his appearance therein. Similarly, the proposal of Mr. Justice Velasco for the adoption of new set
of rules which will allow the issuance of a precautionary warrant of arrest offers a promising solution to
this quandary. This, the Court can do in recognition of the fact that laws and rules of procedure should
evolve as the present circumstances require.
Contempt charge against respondent De Lima
It is well to remember that on November 18, 2011, a Resolution 145 was issued requiring De Lima to
show cause why she should not be disciplinarily dealt or be held in contempt for failure to comply with
the TRO issued by this Court.
In view, however, of the complexity of the facts and corresponding full discussion that it rightfully
deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the interest
of fairness that there be a complete and exhaustive discussion on the matter since it entails the
imposition of penalty that bears upon the fitness of the respondent as a member of the legal profession.
The Court, therefore, finds it proper to deliberate and resolve the charge of contempt against De Lima in
a separate proceeding that could accommodate a full opportunity for her to present her case and provide
a better occasion for the Court to deliberate on her alleged disobedience to a lawful order.
WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby declared
NULL and VOID.
The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 18,
2011, which required respondent Leila De Lima to show cause why she should not be cited in contempt,
as a separate petition.
SO ORDERED.

The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by
suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the
country. While this is a legitimate concern, it bears stressing that the government is not completely
powerless or incapable of preventing their departure or having them answer charges that may be
subsequently filed against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that
Republic Act No. (R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants
the Secretary of Foreign Affairs or any of the authorized consular officers the authority to issue verify,
restrict, cancel or refuse the issuance of a passport to a citizen under the circumstances mentioned in
Section 4144 thereof. Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036,