Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-4254 September 26, 1951

BORIS MEJOFF, petitioner,

vs.
THE DIRECTOR OF PRISONS, respondent.

Ambrosio T. Dollete for petitioner.

First Assistant Solicitor General Roberto A. Gianson and Solicitor Florencio Villamor for respondents.

TUASON, J.:

This is a second petition for habeas corpus by Boris Mejoff, the first having been denied in a decision of
this Court of July 30, 1949. The history of the petitioner's detention was thus briefly set forth in that
decision, written by Mr. Justice Bengzon:

The petitioner Boris Mejoff is an alien of Russian descent who was brought to this country from
Shanghai as a secret operative by the Japanese forces during the latter's regime in these
Islands. Upon liberation he was arrested as a Japanese spy, by U.S. Army Counter Intelligence
Corps. Later he was handed to theCommonwealth Government for disposition in accordance
with Commonwealth Act No. 682. Thereafter, the People's Court ordered his release. But the
deportation Board taking his case up, found that having no travel documents Mejoff was
illegally in this country, and consequently referred the matter to the immigration authorities.
After the corresponding investigation, the Board of commissioners of Immigration on April 5,
1948, declared that Mejoff had entered the Philippines illegally in 1944, without inspection and
admission by the immigration officials at a designation port of entry and, therefore, it ordered
that he be deported on the first available transportation to Russia. The petitioner was then
under custody, he having been arrested on March 18, 1948. In May 1948 he was transferred to
the Cebu Provincial Jail together with three other Russians to await the arrival of some Russian
vessels. In July and August of that year two boats of Russian nationality called at the Cebu Port.
But their masters refused to take petitioner and his companions alleging lack of authority to do
so. In October 1948 after repeated failures to ship this deportee abroad, the authorities
removed him to Bilibid Prison at Muntinglupa where he has been confined up to the present
time, inasmuch as the Commissioner of Immigration believes it is for the best interests of the
country to keep him under detention while arrangements for his departure are being made.

The Court held the petitioner's detention temporary and said that "temporary detention is a necessary
step in the process of exclusion or expulsion of undesirable aliens and that pending arrangements for
his deportation, the Government has the right to hold the undesirable alien under confinement for a
reasonable lenght of time." It took note of the fact, manifested by the Solicitor General's representative
in the course of the of the oral argumment, that "this Government desires to expel the alien, and does
not relish keeping him at the people's expense . . . making efforts to carry out the decree of exclusion
by the highest officer of the land." No period was fixed within which the immigration authorities should
carry out the contemplated deportation beyond the statement that "The meaning of 'reasonable time'
depends upon the circumstances, specially the difficulties of obtaining a passport, the availability of
transportation, the diplomatic arrangements with the governments concerned and the efforts
displayed to send the deportee away;" but the Court warned that "under established precedents, too
long a detention may justify the issuance of a writ of habeas corpus."

Mr. Justice Paras, now Chief Justice, Mr. Justice Feria, Mr. Justice Perfecto, and the writer of this decision
dissented. Mr. Justice Feria and Mr. Justice Perfecto voted for outright discharge of the prisoner from
custody. Mr. Justice Paras qualified his dissent by stating that he might agree "to further detention of the
herein petitioner, provided that he be released if after six months, the Government is still unable to
deport him." This writer joined in the latter dissent but thought that two months constituted reasonable
time.
Over two years having elapsed since the decision aforesaid was promulgated, the Government has
not found way and means of removing the petitioner out of the country, and none are in sight,
although it should be said in justice to the deportation authorities, it was through no fault of theirs that
no ship or country would take the petitioner.

Aliens illegally staying in the Philippines have no right of asylum therein (Sowapadji vs. Wixon, Sept. 18,
1946, 157 F. ed., 289, 290), even if they are "stateless," which the petitioner claims to be. It is no less true
however, as impliedly stated in this Court's decision, supra, that foreign nationals, not enemy against
whom no charge has been made other than that their permission to stay has expired, may not
indefinitely be kept in detention. The protection against deprivation of liberty without due process of
law and except for crimes committed against the laws of the land is not limited to Philippine citizens but
extends to all residents, except enemy aliens, regardless of nationality. Whether an alien who entered
the country in violation of its immigration laws may be detained for as long as the Government is
unable to deport him, is a point we need not decide. The petitioner's entry into the Philippines was not
unlawful; he was brought by the armed and belligerent forces of a de facto government whose
decrees were law furing the occupation.

Moreover, by its Constitution (Art. II, Sec. 3) the Philippines "adopts the generally accepted principles of
international law as part of the law of Nation." And in a resolution entitled "Universal Declaration of
Human Rights" and approved by the General Assembly of the United Nations of which the Philippines is
a member, at its plenary meeting on December 10, 1948, the right to life and liberty and all other
fundamental rights as applied to all human beings were proclaimed. It was there resolved that "All
human beings are born free and equal in degree and rights" (Art. 1); that "Everyone is entitled to all the
rights and freedom set forth in this Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, nationality or social origin, property, birth, or other status"
(Art. 2): that "Every one has the right to an effective remedy by the competent national tribunals for
acts violating the fundamental rights granted him by the Constitution or by law" (Art. 8); that "No one
shall be subjected to arbitrary arrest, detention or exile" (Art. 9); etc.

In U. S. vs. Nichols, 47 Fed. Supp., 201, it was said that the court "has the power to release from custody
an alien who has been detained an unreasonably long period of time by the Department of Justice
after it has become apparent that although a warrant for his deportation has been issued, the warrant
can not be effectuated;" that "the theory on which the court is given the power to act is that the
warrant of deportation, not having been able to be executed, is functus officio and the alien is being
held without any authority of law." The decision cited several cases which, it said, settled the matter
definitely in that jurisdiction, adding that the same result had reached in innumerable cases elsewhere.
The cases referred to were United States ex rel. Ross vs. Wallis, 2 Cir. 279 F. 401, 404; Caranica vs. Nagle,
9 Cir., 28 F. 2d 955; Saksagansky vs. Weedin, 9 Cir., 53 F. 2d 13, 16 last paragraph; Ex parte Matthews,
D.C.W.D. Wash., 277 F. 857; Moraitis vs. Delany, D.C. Md. Aug. 28, 1942, 46 F. Supp. 425.

The most recent case, as far as we have been able to find, was that of Staniszewski vs. Watkins (1948),
90 Fed. Supp., 132, which is nearly foursquare with the case at hand. In that case a stateless person,
formerly a Polish national, resident in the United States since 1911 and many times serving as a seaman
on American vessels both in peace and in war, was ordered excluded from the United States and
detained at Ellis Island at the expense of the steamship company, when he returned from a voyage on
which he had shipped from New York for one or more European ports and return to the United States.
The grounds for his exclusion were that he had no passport or immigration visa, and that in 1937 had
been convicted of perjury because in certain documents he presented himself to be an American
citizen. Upon his application for release on habeas corpus, the Court released him upon his own
recognizance. Judge Leibell, of the United States District Court for the Southern District of New York, said
in part:

When the return to the writ of habeas corpus came before this court, I suggested that all
interested parties . . . make an effort to arrange to have the petitioner ship out of some country
that he would receive him as a resident. He is, a native-born Pole but the Polish Consul has
advised him in writing that he is no longer a Polish subject. This Government does not claim that
he is a Polish citizen. His attorney says he is a stateless. The Government is willing that he go
back to the ship, but if he were sent back aboard a ship and sailed to the Port (Cherbourg,
France) from which he last sailed to the United States, he would probably be denied permission
to land. There is no other country that would take him, without proper documents.
 It seems to me that this is a genuine hardship case and that the petitioner should be released
from custody on proper terms. . . .

What is to be done with the petitioner? The government has had him in custody almost seven
months and practically admits it has no place to send him out of this country. The steamship
company, which employed him as one of a group sent to the ship by the Union, with proper
seaman's papers issued by the United States Coast Guard, is paying $3 a day for petitioner's
board at Ellis Island. It is no fault of the steamship company that petitioner is an inadmissible
alien as the immigration officials describe him. . . .

I intend to sustain the writ of habeas corpus and order the release of the petitioner on his own
recognizance. He will be required to inform the immigration officials at Ellis Island by mail on the
15th of each month, stating where he is employed and where he can be reached by mail. If
the government does succeed in arranging for petitioner's deportation to a country that will be
ready to receive him as a resident, it may then advise the petitioner to that effect and arrange
for his deportation in the manner provided by law.

Although not binding upon this Court as a precedent, the case aforecited affords a happy solution to
the quandry in which the parties here finds themselves, solution which we think is sensible, sound and
compatible with law and the Constitution. For this reason, and since the Philippine law on immigration
was patterned after or copied from the American law and practice, we choose to follow and adopt
the reasoning and conclusions in the Staniszewski decision with some modifications which, it is believed,
are in consonance with the prevailing conditions of peace and order in the Philippines.

It was said or insinuated at the hearing ofthe petition at bar, but not alleged in the return, that the
petitioner was engaged in subversive activities, and fear was expressed that he might join or aid the
disloyal elements if allowed to be at large. Bearing in mind the Government's allegation in its answer
that "the herein petitioner was brought to the Philippines by the Japanese forces," and the fact that
Japan is no longer at war with the United States or the Philippines nor identified with the countries allied
against these nations, the possibility of the petitioner's entertaining or committing hostile acts prejudicial
to the interest and security of this country seems remote.

If we grant, for the sake of argument, that such a possibility exists, still the petitioner's unduly prolonged
detention would be unwarranted by law and the Constitution, if the only purpose of the detention be
to eliminate a danger that is by no means actual, present, or uncontrolable. After all, the Government
is not impotent to deal with or prevent any threat by such measure as that just outlined. The thought
eloquently expressed by Mr. Justice Jackson of the United States Supreme Court in connection with the
appliccation for bail of ten Communists convicted by a lower court of advocacy of violent overthrow
of the United States Government is, in principle, pertinent and may be availed of at this juncture. Said
the learned Jurist:

The Governmet's alternative contention is that defendants, by misbehavior after conviction,

have forfeited their claim to bail. Grave public danger is said to result from what they may be
expected to do, in addition to what they have done since their conviction. If I assume that
defendants are disposed to commit every opportune disloyal to act helpful to Communist
countries, it is still difficult to reconcile with traditional American law the jailing of persons by the
courts because of anticipated but as yet uncommitted crimes. lmprisonment to protect society
from predicted but unconsummated offenses is so unprecedented in this country and so
fraught with danger of excesses and injustice that I am loath to resort it, even as a discretionary
judicial technique to supplement conviction of such offenses as those of which defendants
stand convicted.

But the right of every American to equal treatment before the law is wrapped up in the same
constitutional bundle with those of these Communists. If an anger or disgust with these
defendants we throw out the bundle, we alsocast aside protection for the liberties of more
worthy critics who may be in opposition to the government of some future day.

xxx xxx x x x1âwphïl.nêt

 If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there
is a very practical aspect of this application which must not be overlooked or underestimated
— that is the disastrous effect on the reputation of American justice if I should now send these
men to jail and the full Court later decide that their conviction is invalid. All experience with
litigation teaches that existence of a substantial question about a conviction implies a more
than negligible risk of reversal. Indeed this experience lies back of our rule permitting and
practice of allowing bail where such questions exist, to avoid the hazard of unjustifiably
imprisoning persons with consequent reproach to our system of justice. If that is prudent judicial
practice in the ordinary case, how much more important to avoid every chance of handing to
the Communist world such an ideological weapon as it would have if this country should
imprison this handful of Communist leaders on a conviction that our highest Court would
confess to be illegal. Risks, of course, are involved in either granting or refusing bail. I am naive
enough to underestimate the troublemaking propensities of the defendants. But, with the
Department of Justice alert to the the dangers, the worst they can accomplish in the short time
it will take to end the litigation is preferable to the possibility of national embarrassment from a
celebrated case of unjustified imprisonment of Communist leaders. Under no circumstances
must we permit their symbolization of an evil force in the world to be hallowed and glorified by
any semblance of martyrdom. The way to avoid that risk is not to jail these men until it is finally
decided that they should stay jailed.

If that case is not comparable with ours on the issues presented, its underlying principle is of universal
application. In fact, its ratio decidendi applies with greater force to the present petition, since the right
of accused to bail pending apppeal of his case, as in the case of the ten Communists, depends upon
the discretion of the court, whereas the right to be enlarged before formal charges are instituted is
absolute. As already noted, not only are there no charges pending against the petitioner, but the
prospects of bringing any against him are slim and remote.

Premises considered, the writ will issue commanding the respondents to release the petitioner from
custody upon these terms: The petitioner shall be placed under the surveillance of the immigration
authorities or their agents in such form and manner as may be deemed adequate to insure that he
keep peace and be available when the Government is ready to deport him. The surveillance shall be
reasonable and the question of reasonableness shall be submitted to this Court or to the Court of First
Instance of Manila for decision in case of abuse. He shall also put up a bond for the above purpose in
the amount of P5,000 with sufficient surety or sureties, which bond the Commissioner of Immigration is
authorized to exact by section 40 of Commonwealth Act No. 613.

No costs will be charged.

Paras, C.J., Feria, Bengzon, Padilla, Reyes and Jugo, JJ., concur.

Separate Opinions

PABLO, M., disidente:

Disiento

En decision disada por este Tribunal en la primera causa de habeas corpus incoada por el solicitante
Boris Mejoff (G.R. No. L-2855, Mejoff vs. Director of Prisons)*, se declaro que el habia venido a Filipinas
procedente de Shanghai como espia japones; en la liberacion, el ejercito americano le arresto por se
espia, habiendo sido mas tarde entregado al Gobierno del Commonwealth para ser tratado de
acuerdo con la ley No.682; pero como bajo el Codgo Penal Revisado, antes de su enmienda por la
Orden Ejecutiva No. 44, (mayo 31, 1945) no se castiga al extranjero que comete traicion, Mejoff fue
puesto en libertad. Despues de una debida investigacion, la Junta de Departacion encontra que el
solicitante no tenia permiso para entrar en Filipinas; fue entregado a la Junta de Inmigacion, la cual
ordeno su deportacion a Rusia por el primer transporte disponible por haber vendo aqui ilegalmente;
fue enviado a Cebu para que alli se embarcase, pero los dos barcos de nacionalidad rusa que
llegaron a dicho puerto en julio y agosto de 1948 rehusaron admitirle. Por no encontrar transportacion
para su departacion, Mejoff fue enviado a la Prison de Muntinglupa, donde esta actualmente de
tenido mientras el Gobierno no encuenra medio de transportarle a Rusia.

La mayoria contiende que "The Petitioner's entry into the Philippines was not unlawful; he was brought
by the armed and belligerent forces of a de facto government whose decrees were law during the
occupation." Es tan ilegal la entrada del solicitante como la del ejercito al que sirvio como espia.
Ninguno tiene derecho a permanecer aqui. Puesto que fue vencido el ejercito invasor que le trajo, el
solicitante no tiene derecho a pemanecer aqui ni un minuto mas. Si desea proteccion, debe acudir al
Gobierno Japones a cuyo ejercito el sirvio; el hecho de que ya esta aqui no le da titulo para
permanecer libre aqui. El que ha venido como espia de enemigo del Pueblo de Filipinas no tiene
derecho a pedir igual trato que aquel ha entrado de buena fe. ¿Es que Filipinos tiene la obligacion de
acoger a un ciudadano indeseable de Rusia? ¿Desde cuando tiene que allanarse una nacion a ser
residencia de una extranjero que entro como enemigo o, peor aun, como espia? Un Estado tiene
indiscutible derecho a deportar y expulsar de su territorio a todo extranjero indeseable.

El solicitante sostiene que no tiene estado. Eso no es razon para que tenga derecho a permanecer
aqui. Puede ser departado a Rusio o a Shanghai de donde vino. Si todos los rusos que, por alguno que
otro motivo, o por odio al comunisomo, dejasen su pais y emigrasen aqui reclamando igual derecho,
no habria territorio suficiente para ellos. Se puede decir otro tanto de los chinos que, so pretexto de no
querer someterse al regimen comunista, optasen por resider para siempre aqui. Y si los mismos
communistas chinos viniesen clandestinamente y despues reclamasen igual proteccion como la
concedida a Mejoff, ¿tendreos que darles por el gusto?

Se invoca la resolucion aprobada por la Asamblea General de las Naciones Unidas, titulada "Universal
Declaration of Human Rights", en la que se establece, entre otras cosas, que "no one shall be
subjected to arbitrary arrest, detention or exile." Yo soy de los que creen firmemente en lo sagrado de
esta resolucion; no puedo permitir que se detenga y se arreste a alguien sin motivo justificado, de una
manera arbitraria; pero el solicitante no esta detenido de esta manera, lo esta de una manera
provisional. Tan pronto como haya barco disponible para su deportacion o tan pronto como pueda
embarcarse en algun barco para el extenjero o para cualquier otro punto a donde quiera ir, dejara
de ser detenido. Conste que no esta preso como un criminal condenado por un delito; esta tratado
como cualquier otro extranjero sujeto a deportacion. Si el solicitante no hubiera sido espia, si no
hubiera venido aqui para ayudar a las hordas japonesas en la subyugacion del pueblo filipino, si
hubiera venido como visitante, por ejemplo, y, por azares de la fortuna, no pudo salir, yo seria el
primero en abogar por su liberacion inmediata.

Se cita el caso de Staniszewski vs. Watkins, (1948 A.M.C. 931, 42 American Journal of International Law,
732) en el cual el recurrente estuvo detenido ya casi siete meses cuando se decreto su libertad en un
recurso de habeas corpus. En nuestra opinion, dicho caso no tiene simulitud con la causa presente.
Staniszewski era residente de los Estados desde 1911; estuvo sirviendo como marino en barcos
mercantes americanos en tiempo de guerra y se ordeno su detencion en Ellis Island cuando volvio a
America procedente de un viaje a Europa por no tener papeles de inmigracion. Staniszewski no habia
entrado en los Estados Unidos como espia, estuvo residiendo en dicho pais por varios años, era ya
habitante de los Estados unidos. La ocupacion de marino es honrosa, la del espia mercenario,
detestable. El espia es peor que el enemigo. Este lucha cara a cara, y el espia, con disimulo y arte
engañosa, escucha lo que a Staniszewski se le haya puesto en libertad. Poner en libertad a un espia es
poner en peligro la seguridad del Estado.

En cuanto a la duracion de la detencion provisional del recurrente, no hay regla fija, depende de la
cincunstancia de cada caso particular. Es evidente que los medios de comunicacion entre Filipinas y
Rusia o Shanghai, debico a fala de relciones diplomaticas, son completamente anormales. No es
culpa del gobierno el que no encuentre medios de transportacion para el.

La Comision de Inmigracion ha dado pasos para que la International Refugee Organziation of the
United Nations (IRO0 se hiciera cargo del recurrente para que pueda ser repartriado o enviado a otro
pais extranjero, pero el Jefe de dicha organizacion contesto que no estaba en condicines para
aceptar dicha recomendacion.

William Martin Jurgans fue arrestado en 9 de enero de 1920, en 20 de mayo se decreto su deportacion
por el Sub Secretario del Tarabajo por violacion de la Ley de Inmigracion; solicto su libertad bajo el
recurso de Habeas Corpus, y en 16 de febrero de 1927 se denego su peticion; no se le pudo deportar
porque "the necessary arrangements for his deportation could obviously not be made." (District Court
of Minnesota, 17 F. 2nd series, 507). Como se vera, la detencion provisional de William Martin Jurgans
duro mas de seis años; la de Mejoff no ha sido mas que de 31 meses, y no porque el gobierno no
quiere deportarle, sino porque no hay medio disponible para realizarlo.

En Moraitis vs. Delany, 46 F. Supp., 425, se dijo:

What constitutes a reasonable time for the detention of the petitioner in custody for
deportation depends upon the facts and circumstances of particular cases. This court cannot
shut its eyes to the vitally important interests of this country at this time with respect to the
bottleneck of shipping, when every available ship, domestic and foreign, must be utilized to
the utmost without delay consequent upon the lack of avilable seamen. Under these present
conditions the court should be liberal indeed in aiding the executive branch of the govenment
in the strict enforcement of laws so vitally necessary in the common defns. There is sound
authority for this view in United States ex. rel. Schlimm vs. Howe, D C.N. U Y. 222 F. 96, 97, where
Circuit Judge Lacombe refused to release an alien who had come here from Germany and
was ordered deported in 1915 when, by reason of the then existing war between Germany
and England, his deportation to Germany was not possible. It was said:

At the present time there is no regular passenger ocean service to German ports, so the
authorities are unable to forward him, and are holding him until some opportunity of returning
him to Germany may present itself. His continual detention is unfortunate, but certainly is not
illegal. His present condition can be alleviated only by the action of the executive branch of
the government. A federal court would not be justified in discharging him. . . .

If he is not really fit for sea service, it is not probable that he would be forced into it, although
he may be able to serve his government in some other capacity. But however that may be,
while this country has no power under existing legislation to impress him into sea service against
his will, he has no just cause to be relieved from the strict enforcement of our deportation laws,
and to remain at liberty in this country as a sanctuary contrary to our laws.

No es arbitraria la detencion de Mejoff. Esta jutificada por las circunstancias anormales.

La proposicion de vigilar al recurrente hasta que el gobierno encuentre transporte para su

deportacion, supon un gasto innecesario.

Footnotes

<sup*< sup="">84 Phil., 218.</sup*<>

Boris Mejoff was a Russian citizen who was arrested for being suspected as a Japanese spy after the
Philippine liberation. It was found out that he illegally entered the Philippines in 1944. He was without
inspection and admission by the immigration officials at a designated port of entry. He was then ordered
to be deported to Russia on the first available transportation to said country. But Russian ships refused to
take him due to their alleged lack of authority to do so. He was then transferred to the Bilibid Prison and
was kept in detention as the Commissioner of Immigration believes it is of best interest to detain the
unwanted alien while arrangements for his deportation are being made. Mejoff contends that he was
legally brought to the Philippines by the then Japanese forces and he may not now be deported. He
also contends that the statutory period to deport him has long lapsed and that we cannot detain him
for an unreasonable period of time pursuant to the Universal Declaration on Human rights.
ISSUE: Whether or not Mejoff shall remain in detention?
HELD: Yes. The government has the power and the authority to eject from the Philippines any and all
unwanted aliens. He entered the country illegally in 1944 and was arrested in 1948. Pursuant to Section
37 of the Philippine Immigration Act of 1940 an unwanted alien is subject to deportation within 5 years
from arrest. And he may be held for a reasonable period of time (depending on the circumstances) while
arrangements are being held for his deportation. There is no allegation however as to the length of time
that he has been detained. Hence, the same cannot be construed as “unreasonable”. Further, there is
no indication that the statutory period to deport Mejoff had lapsed.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-2662 March 26, 1949

SHIGENORI KURODA, petitioner,

vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY
and ROBERT PORT, respondents.

Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.

Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.

MORAN, C.J.:

Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in The Philippines during a period covering 19433 and 19444
who is now charged before a military Commission convened by the Chief of Staff of the Armed forces
of the Philippines with having unlawfully disregarded and failed "to discharge his duties as such
command, permitting them to commit brutal atrocities and other high crimes against noncombatant
civilians and prisoners of the Imperial Japanese Forces in violation of the laws and customs of war" —
comes before this Court seeking to establish the illegality of Executive Order No. 68 of the President of
the Philippines: to enjoin and prohibit respondents Melville S. Hussey and Robert Port from participating
in the prosecution of petitioner's case before the Military Commission and to permanently prohibit
respondents from proceeding with the case of petitioners.

In support of his case petitioner tenders the following principal arguments.

First. — "That Executive Order No. 68 is illegal on the ground that it violates not only the provision of our
constitutional law but also our local laws to say nothing of the fact (that) the Philippines is not a
signatory nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare
and therefore petitioners is charged of 'crimes' not based on law, national and international." Hence
petitioner argues — "That in view off the fact that this commission has been empanelled by virtue of an
unconstitutional law an illegal order this commission is without jurisdiction to try herein petitioner."

Second. — That the participation in the prosecution of the case against petitioner before the
Commission in behalf of the United State of America of attorneys Melville Hussey and Robert Port who
are not attorneys authorized by the Supreme Court to practice law in the Philippines is a diminution of
our personality as an independent state and their appointment as prosecutor are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.

Third. — That Attorneys Hussey and Port have no personality as prosecution the United State not being a
party in interest in the case.

Executive Order No. 68, establishing a National War Crimes Office prescribing rule and regulation
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
days of July, 1947 This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that —

The Philippines renounces war as an instrument of national policy and adopts the generally
accepted principles of international law as part of the of the nation.

In accordance with the generally accepted principle of international law of the present day including
the Hague Convention the Geneva Convention and significant precedents of international
jurisprudence established by the United Nation all those person military or civilian who have been guilty
of planning preparing or waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto in violation of the laws and customs of war, of humanity and
civilization are held accountable therefor. Consequently in the promulgation and enforcement of
Execution Order No. 68 the President of the Philippines has acted in conformity with the generally
accepted and policies of international law which are part of the our Constitution.

The promulgation of said executive order is an exercise by the President of his power as Commander in
chief of all our armed forces as upheld by this Court in the case of Yamashita vs. Styer (L-129, 42 Off.
Gaz., 664) 1 when we said —

War is not ended simply because hostilities have ceased. After cessation of armed hostilities
incident of war may remain pending which should be disposed of as in time of war. An
importance incident to a conduct of war is the adoption of measure by the military command
not only to repel and defeat the enemies but to seize and subject to disciplinary measure those
enemies who in their attempt to thwart or impede our military effort have violated the law of
war. (Ex parte Quirin 317 U.S., 1; 63 Sup. Ct., 2.) Indeed the power to create a military
commission for the trial and punishment of war criminals is an aspect of waging war. And in the
language of a writer a military commission has jurisdiction so long as a technical state of war
continues. This includes the period of an armistice or military occupation up to the effective of
a treaty of peace and may extend beyond by treaty agreement. (Cowles Trial of War Criminals
by Military Tribunals, America Bar Association Journal June, 1944.)

Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war namely the trial and punishment of war criminal through the issuance and enforcement
of Executive Order No. 68.

Petitioner argues that respondent Military Commission has no Jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulation of the Hague and Geneva conventions form, part of and are wholly based on the generally
accepted principals of international law. In facts these rules and principles were accepted by the two
belligerent nation the United State and Japan who were signatories to the two Convention, Such rule
and principles therefore form part of the law of our nation even if the Philippines was not a signatory to
the conventions embodying them for our Constitution has been deliberately general and extensive in
its scope and is not confined to the recognition of rule and principle of international law as continued
inn treaties to which our government may have been or shall be a signatory.

Furthermore when the crimes charged against petitioner were allegedly committed the Philippines was
under the sovereignty of United States and thus we were equally bound together with the United States
and with Japan to the right and obligation contained in the treaties between the belligerent countries.
These rights and obligation were not erased by our assumption of full sovereignty. If at all our
emergency as a free state entitles us to enforce the right on our own of trying and punishing those who
committed crimes against crimes against our people. In this connection it is well to remember what we
have said in the case of Laurel vs. Misa (76 Phil., 372):

. . . The change of our form government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during then
Commonwealth because it is an offense against the same sovereign people. . . .

By the same token war crimes committed against our people and our government while we were a
Commonwealth are triable and punishable by our present Republic.

Petitioner challenges the participation of two American attorneys namely Melville S. Hussey and Robert
Port in the prosecution of his case on the ground that said attorney's are not qualified to practice law in
Philippines in accordance with our Rules of court and the appointment of said attorneys as prosecutors
is violative of our national sovereignty.

In the first place respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of court which govern ordinary civil court. It has already been shown that
Executive Order No. 68 which provides for the organization of such military commission is a valid and
constitutional law. There is nothing in said executive order which requires that counsel appearing
before said commission must be attorneys qualified to practice law in the Philippines in accordance
with the Rules of Court. In facts it is common in military tribunals that counsel for the parties are usually
military personnel who are neither attorneys nor even possessed of legal training.

Secondly the appointment of the two American attorneys is not violative of our nation sovereignty. It is
only fair and proper that United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty it has not been by our
government but by the United State Government which has yielded to us the trial and punishment of
her enemies. The least that we could do in the spirit of comity is to allow them representation in said
trials.

Alleging that the United State is not a party in interest in the case petitioner challenges the personality
of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United State and its
people have been equally if not more greatly aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal
of our country.

The Military Commission having been convened by virtue of a valid law with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having said petitioner in its
custody, this Court will not interfere with the due process of such Military commission.

For all the foregoing the petition is denied with costs de oficio.

Paras, Feria, Pablo, Bengzon, Tuason, Montemayor and Reyes, JJ., concur.

Separate Opinions

PERFECTO, J., dissenting:

A military commission was empanelled on December 1, 1948 to try Lt. Gen. Shigenori Kuroda for
Violation of the laws and customs of land warfare.

Melville S. Hussey and Robert Port, American citizens and not authorized by the Supreme Court to
practice law were appointed prosecutor representing the American CIC in the trial of the case.

The commission was empanelled under the authority of Executive Order No. 68 of the President of the
Philippines the validity of which is challenged by petitioner on constitutional grounds. Petitioner has also
challenged the personality of Attorneys Hussey and Port to appear as prosecutors before the
commission.

The charges against petitioner has been filed since June 26, 1948 in the name of the people of the
Philippines as accusers.

We will consideration briefly the challenge against the appearance of Attorneys Hussey and Port. It
appearing that they are aliens and have not been authorized by the Supreme Court to practice law
there could not be any question that said person cannot appear as prosecutors in petitioner case as
with such appearance they would be practicing law against the law.

Said violation vanishes however into insignificance at the side of the momentous question involved in
the challenge against the validity of Executive Order No. 68. Said order is challenged on several
constitutional ground. To get a clear idea of the question raised it is necessary to read the whole
context of said order which is reproduced as follows:
 EXECUTIVE ORDER NO. 68.

ESTABLISHING A NATIONAL WAR CRIMES OFFICE AND PRESCRIBING RULES AND

REGULATION GOVERNING THE TRIAL OF ACCUSED WAR CRIMINAL.

I, Manuel Roxas president of the Philippines by virtue of the power vested in me by the
Constitution and laws of the Philippines do hereby establish a National War Crimes Office
charged with the responsibility of accomplishing the speedy trial of all Japanese accused of
war crimes committed in the Philippines and prescribe the rules and regulation such trial.

The National War crimes office is established within the office of the Judge Advocate General
of the Army of the Philippines and shall function under the direction supervision and control of
the Judge Advocate General. It shall proceed to collect from all available sources evidence of
war crimes committed in the Philippines from the commencement of hostilities by Japan in
December 1941, maintain a record thereof and bring about the prompt trial maintain a record
thereof and bring about the prompt trial of the accused.

The National War Crimes Office shall maintain direct liaison with the Legal Section General
Headquarters, Supreme Commander for the Allied power and shall exchange with the said
Office information and evidence of war crimes.

The following rules and regulation shall govern the trial off person accused as war criminals:

ESTABLISHMENT OF MILITARY COMMISSIONS

(a) General. — person accused as war criminal shall be tried by military commission to be
convened by or under the authority of the Philippines.

II. JURISDICTION

(a) Over Person. — Thee military commission appointed hereunder shall have jurisdiction over
all persons charged with war crimes who are in the custody of the convening authority at the
time of the trial.

(b) Over Offenses. — The military commission established hereunder shall have jurisdiction over
all offenses including but not limited to the following:

(1) The planning preparation initiation or waging of a war of aggression or a war in violation of
international treaties agreement or assurance or participation in a common plan or conspiracy
for the accomplishment of any of the foregoing.

(2) Violation of the laws or customs of war. Such violation shall include but not be limited to
murder ill-treatment or deportation to slave labor or for other purpose of civilian population of
or in occupied territory; murder or ill-treatment of prisoners of war or internees or person on the
seas or elsewhere; improper treatment of hostage; plunder of public or private property
wanton destruction of cities towns or village; or devastation not justified by military necessity.

(3) Murder extermination enslavement deportation and other inhuman acts committed against
civilian population before or during the war or persecution on political racial or religion ground
in executive of or in connection with any crime defined herein whether or not in violation of the
local laws.

III. MEMBERSHIP OF COMMISSIONS

(a) Appointment. — The members of each military commission shall be appointed by the
President of the Philippines or under authority delegated by him. Alternates may be appointed
by the convening authority. Such shall attend all session of the commission, and in case of
illness or other incapacity of any principal member, an alternate shall take the place of that
member. Any vacancy among the members or alternates, occurring after a trial has begun,
may be filled by the convening authority but the substance of all proceeding had evidence
taken in that case shall be made known to the said new member or alternate. This facts shall
be announced by the president of the commission in open court.

(b) Number of Members. — Each commission shall consist of not less than three (3) members.

(c) Qualifications. — The convening authority shall appoint to the commission persons whom he
determines to be competent to perform the duties involved and not disqualified by personal
interest or prejudice, provided that no person shall be appointed to hear a case in which he
personally investigated or wherein his presence as a witness is required. One specially qualified
member whose ruling is final in so far as concerns the commission on an objection to the
admissibility of evidence offered during the trial.

(d) Voting. — Except as to the admissibility of evidence all rulings and finding of the
Commission shall be by majority vote except that conviction and sentence shall be by the
affirmative vote of not less than conviction and sentence shall be by the affirmative vote of not
less than two-thirds (2\3) of the member present.

(e) Presiding Member. — In the event that the convening authority does not name one of the
member as the presiding member, the senior officer among the member of the Commission
present shall preside.

IV. PROSECUTORS

(a) Appointment. — The convening authority shall designate one or more person to conduct
the prosecution before each commission.

(b) Duties. — The duties of the prosecutor are:

(1) To prepare and present charges and specifications for reference to a commission.

(2) To prepare cases for trial and to conduct the prosecution before the commission of all
cases referred for trial.

V. POWER AND PROCEDURE OF COMMISSION

(a) Conduct of the Trial. — A Commission shall:

(1) Confine each trial strictly to fair and expeditious hearing on the issues raised by the charges,
excluding irrelevant issues or evidence and preventing any unnecessary delay or interference.

(2) Deal summarily with any contumacy or contempt, imposing any appropriate punishment
therefor.

(3) Hold public session when otherwise decided by the commission.

(4) Hold each session at such time and place as it shall determine, or as may be directed by
the convening authority.

(b) Rights of the Accused. — The accused shall be entitled:

(1) To have in advance of the trial a copy of the charges and specifications clearly worded so
as to apprise the accused of each offense charged.

(2) To be represented, prior to and during trial, by counsel appointed by the convening
authority or counsel of his own choice, or to conduct his own defense.
(3) To testify in his own behalf and have his counsel present relevant evidence at the trial in
support of his defense, and cross-examine each adverse witness who personally appears
before the commission.

(4) To have the substance of the charges and specifications, the proceedings and any
documentary evidence translated, when he is unable otherwise to understand them.

(c) Witnesses. — The Commission shall have power:

(1) To summon witnesses and require their attendance and testimony; to administer oaths or
affirmations to witnesses and other persons and to question witnesses.

(2) To require the production of documents and other evidentiary material.

(3) To delegate the Prosecutors appointed by the convening authority the powers and duties
set forth in (1) and (2) above.

(4) To have evidence taken by a special commissioner appointed by the commission.

(d) Evidence.

(1) The commission shall admit such evidence as in its opinion shall be of assistance in proving
or disproving the charge, or such as in the commission's opinion would have probative value in
the mind of a reasonable man. The commission shall apply the rules of evidence and pleading
set forth herein with the greatest liberality to achieve expeditious procedure. In particular, and
without limiting in any way the scope of the foregoing general rules, the following evidence
may be admitted:

(a) Any document, irrespective of its classification, which appears to the commission to have
been signed or issued by any officer, department, agency or member of the armed forces of
any Government without proof of the signature or of the issuance of the document.

(b) Any report which appears to the commission to have been signed or issued by the
International Red Cross or a member of any medical service personnel, or by any investigator
or intelligence officer, or by any other person whom commission considers as possessing
knowledge of the matters contained in the report.

(c) Affidavits, depositions or other signed statements.

(d) Any diary, letter to other document, including sworn statements, appearing to the
commission to contain information relating to the charge.

(e) A copy of any document or other secondary evidence of the contents, if the original is not
immediately available.

(2) The commission shall take judicial notice of facts of common knowledge, official
government documents of any nation, and the proceedings, records and findings of military or
other agencies of any of the United Nation.

(3) A commission may require the prosecution and the defense to make a preliminary offer of
proof whereupon the commission may rule in advance on the admissibility of such evidence.

(4) The official position of the accused shall not absolve him from responsibility nor be
considered in mitigation of punishment. Further action pursuant to an order of the accused's
superior, or of his Government, shall not constitute a defense, but may be considered in
mitigation of punishment if the commission determines that justice so requires.
(5) All purposed confessions or statements of the accused shall bee admissible in evidence
without any showing that they were voluntarily made. If it is shown that such confession or
statement was procured by mean which the commission believe to have been of such a
character that may have caused the accused to make a false statement the commission may
strike out or disregard any such portion thereof as was so procured.

(e) Trial Procedure. — The proceedings of each trial shall be conducted substantially as follows
unless modified by the commission to suit the particular circumstances:

(1) Each charge and specification shall be read or its substance stated in open court.

(2) The presiding member shall ask each accused whether he pleads "Guilty" or "Not guilty."

(3) The prosecution shall make its opening statement."(4) The presiding member may at this or
any other time require the prosecutor to state what evidence he proposes to submit to the
commission and the commission thereupon may rule upon the admissibility of such evidence.

(4) The witnesses and other evidence for the prosecution shall be heard or presented. At the
close of the case for the prosecution, the commission may, on motion of the defense for a
finding of not guilty, consider and rule whether he evidence before the commission may defer
action on any such motion and permit or require the prosecution to reopen its case and
produce any further available evidence.

(5) The defense may make an opening statement prior to presenting its case. The presiding
member may, at this any other time require the defense to state what evidence it proposes to
submit to the commission where upon the commission may rule upon the admissibility of such
evidence.

(6) The witnesses and other evidence for the defense shall be heard or presented. Thereafter,
the prosecution and defense may introduce such evidence in rebuttal as the commission may
rule as being admissible.

(7) The defense and thereafter the prosecution shall address the commission.

(8) The commission thereafter shall consider the case in closed session and unless otherwise
directed by the convening authority, announce in open court its judgment and sentence if
any. The commission may state the reason on which judgment is based.

( f ) Record of Proceedings. — Each commission shall make a separate record of its

proceeding in the trial of each case brought before it. The record shall be prepared by the
prosecutor under the direction of the commission and submitted to the defense counsel. The
commission shall be responsible for its accuracy. Such record, certified by the presiding
member of the commission or his successor, shall be delivered to the convening authority as
soon as possible after the trial.

(g) Sentence. — The commission may sentence an accused, upon conviction to death by
hanging or shooting, imprisonment for life or for any less term, fine or such other punishment as
the commission shall determine to be proper.

(h) Approval of Sentence. — No. sentence of a military commission shall be carried into effect
until approved by the chief off Staff: Provided, That no sentence of death or life imprisonment
shall be carried into execution until confirmed by the President of the Philippines. For the
purpose of his review the Chief of Staff shall create a Board of Review to be composed of not
more than three officers none of whom shall be on duty with or assigned to the Judge
Advocate General's Office. The Chief of Staff shall have authority to approve, mitigate remit in
whole or in part, commute, suspend, reduce or otherwise alter the sentence imposed, or
(without prejudice to the accused) remand the case for rehearing before a new military
commission; but he shall not have authority to increase the severity of the sentence. Except as
herein otherwise provided the judgment and sentence of a commission shall final and not
subject to review by any other tribunal.
 VI. RULE-MAKING POWER

Supplementary Rule and Forms. — Each commission shall adopt rules and forms to govern its
procedure, not inconsistent with the provision of this Order, or such rules and forms as may be
prescribed by the convening authority]or by the President of the Philippines.

VII. The amount of amount of seven hundred thousand pesos is hereby set aside out of the
appropriations for the Army of the Philippines for use by the National War Crimes Office in the
accomplishment of its mission as hereinabove set forth, and shall be expended in accordance
with the recommendation of the Judge Advocate General as approved by the President. The
buildings, fixtures, installations, messing, and billeting equipment and other property herefore
used by then Legal Section, Manila Branch, of the General Headquarters, Supreme
Commander for the Allied Power, which will be turned over by the United States Army to the
Philippines Government through the Foreign Liquidation Commission and the Surplus Property
Commission are hereby specification reserved for use off the National War Crimes Office.

Executive Order No. 64, dated August 16, 1945, is hereby repealed.

Done in the City of Manila, this 29th day of July in the year of Our Lord, nineteen hundred and
forty-seven, and of the Independence of the Philippines, the second.

MANUEL ROXAS
President of the Philippines

By the President:

EMILIO ABELLO
Chief of the Executive Office

EXECUTIVE LEGISLATION

Executive Order No. 68 is a veritable piece of Legislative measure, without the benefit of congressional
enactment.

The first question that is trust at our face spearheading a group of other no less important question, is
whether or not the President of the Philippines may exercise the legislative power expressly vested in
Congress by the Constitution. .

The Constitution provides:

The Legislative powers shall be vested in a Congress of the Philippines which shall consist of a
Senate and House of Representatives. (Section 1, Article VI.)

While there is no express provision in the fundamental law prohibiting the exercise of legislative power
by agencies other than Congress, a reading of the whole context of the Constitution would dispel any
doubt as to the constitutional intent that the legislative power is to be exercised exclusively by
Congress, subject only to the veto power of the President of the President of the Philippines, to the
specific provision which allow the president of the Philippines to suspend the privileges of the writ of
habeas corpus and to place any part of the Philippines under martial law, and to the rule-making
power expressly vested by the Constitution in the Supreme Court.

There cannot be any question that the member of the Constitutional Convention were believers in the
tripartite system of government as originally enunciated by Aristotle, further elaborated by Montequieu
and accepted and practiced by modern democracies, especially the United State of America, whose
Constitution, after which ours has been patterned, has allocated the three power of government —
legislative, executive, judicial — to distinct and separate department of government.
Because the power vested by our Constitution to the several department of the government are in the
nature of grants, not recognition of pre-existing power, no department of government may exercise
any power or authority not expressly granted by the Constitution or by law by virtue express authority of
the Constitution.

Executive Order No. 68 establishes a National War Crimes Office and the power to establish
government office is essentially legislative.

The order provides that person accused as war criminals shall be tried by military commissions. Whether
such a provision is substantive or adjective, it is clearly legislative in nature. It confers upon military
commissions jurisdiction to try all persons charge with war crimes. The power to define and allocate
jurisdiction for the prosecution of person accused of any crime is exclusively vested by the Constitution
in Congress. .

It provides rules of procedure for the conduct of trial of trial. This provision on procedural subject
constitutes a usurpation of the rule-making power vested by Constitution in the Supreme Court.

It authorized military commission to adopt additional rule of procedure. If the President of the
Philippines cannot exercise the rule -making power vested by the Constitution in the Supreme Court, he
cannot, with more reason, delegate that power to military commission.

It appropriates the sum of P7000,000 for the expenses of the National War Crimes office established by
the said Executive Order No. 68. This constitutes another usurpation of legislative power as the power to
vote appropriations belongs to Congress.

Executive Order No. 68., is, therefore, null and void, because, though it the President of the Philippines
usurped power expressly vested by the Constitution in Congress and in the Supreme Court.

Challenged to show the constitutional or legal authority under which the President issued Executive
Order No. 68, respondent could not give any definite answer. They attempted, however, to suggest
that the President of the Philippines issued Executive Order No. 68 under the emergency power granted
to him by Commonwealth Act No. 600, as amended by Commonwealth Act No. 620, and
Commonwealth Act No. 671, both of which are transcribed below:

COMMONWEALTH ACT NO. 600.

AN ACT DECLARING A STATE OF EMERGENCY AND AUTHORIZING THE PRESIDENT TO

PROMULGATE RULES AND REGULATION TO SAFEGUARD THE INTEGRITY OF THE
PHILIPPINES AND TO INSURE THE TRANQUILITY OF ITS INHABITANTS.

Be it enacted by the National Assembly of the Philippines:

SECTION 1. The existence of war in many parts of the world has created a national emergency
which makes it necessary to invest the President of the Philippines with extraordinary power in
order to safeguard the integrity of the Philippines and to insure the tranquility of its inhabitants,
by suppressing espionage, lawlessness, and all subversive to the people adequate shelter and
clothing and sufficient food supply, and by providing means for the speedy evacuation of the
civilian population the establishment of an air protective service and the organization of
volunteer guard units, and to adopt such other measures as he may deem necessary for the
interest of the public. To carry out this policy the President is authorized to promulgate rules and
regulations which shall have the force and effect off law until the date of adjournment of the
next regulation which shall have the force and effect of law until the date of adjournment of
the next regular session of the First Congress of the Philippines, unless sooner amended or
repealed by the Congress of Philippines. Such rules and regulation may embrace the following
objects: (1) to suppress espionage and other subversive activities; (2) to require all able-bodied
citizens (a) when not engaged in any lawful occupation, to engage in farming or other
productive activities or (b) to perform such services as may bee necessary in the public
interest; (3) to take over farm lands in order to prevent or shortage of crops and hunger and
destitution; (4) to take over industrial establishment in order to insure adequate production,
controlling wages and profits therein; (5) to prohibit lockouts and strikes whenever necessary to
prevent the unwarranted suspension of work in productive enterprises or in the interest of
national security; (6) to regulate the normal hours of work for wage-earning and salaried
employees in industrial or business undertakings of all kinds; (7) to insure an even distribution of
labor among the productive enterprises; (8) to commandership and other means of
transportation in order to maintain, as much as possible, adequate and continued
transportation facilities; (9) to requisition and take over any public service or enterprise for use
or operation by the Government;(10) to regulate rents and the prices of articles or
commodities of prime necessity, both imported and locally produced or manufactured; and
(11) to prevent, locally or generally, scarcity, monopolization, hoarding injurious speculations,
and private control affecting the supply, distribution and movement of foods, clothing, fuel,
fertilizer, chemical, building, material, implements, machinery, and equipment required in
agriculture and industry, with power to requisition these commodities subject to the payment of
just compensation. (As amended by Com. Act No. 620.)

SEC. 2. For the purpose of administering this Act and carrying out its objective, the President
may designate any officer, without additional compensation, or any department, bureau,
office, or instrumentality of the National Government.

SEC. 3. Any person, firm, or corporation found guilty of the violation of any provision of this Act
or of this Act or any of the rules or regulations promulgated by the President under the authority
of section one of this Act shall be punished by imprisonment of not more than ten years or by a
fine of not more than ten thousand pesos, or by both. If such violation is committed by a firm or
corporation, the manager, managing director, or person charge with the management of the
business of such firm, or corporation shall be criminally responsible therefor.

SEC. 4. The President shall report to the national Assembly within the first ten days from the date
of the opening of its next regular session whatever action has been taken by him under the
authority herein granted.

SEC. 5. To carry out the purposed of this Act, the President is authorized to spend such amounts
as may be necessary from the sum appropriated under section five Commonwealth Act
Numbered four hundred and ninety-eight.

SEC. 6. If any province of this Act shall be declared by any court of competent jurisdiction to
be unconstitutional and void, such declaration shall not invalidate the remainder of this Act.

SEC. 7. This Act shall take upon its approval.

Approved, August 19, 1940.

COMMONWEALTH ACT NO. 671

AN ACT DECLARING A STATE OF TOTAL EMERGENCY AS A RESULT OF WAR INVOLVING

THE PHILIPPINES AND AUTHORIZING THE PRESIDENT TO PROMULGATE RULE AND
REGULATIONS TO MEET SUCH EMERGENCY.

Be it enacted the National Assembly of the Philippines;

SECTION 1. The existed of war between the United State and other countries of Europe and
Asia, which involves the Philippines, makes it necessary to invest the President with
extraordinary powers in order to meet the resulting emergency.

SEC. 2. Pursuant to the provision of Article VI, section 16, of the Constitution, the President is
hereby authorized, during the existence of the emergency, to promulgate such rules and
regulation as he may deem necessary to carry out the national policy declared in section 1
 hereof. Accordingly, he is, among other things, empowered (a) to transfer the seat of the
Government or any of its subdivisions, branches, department, offices, agencies or
instrumentalities; (b) to reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the Executive Department; (c) to
create new subdivision, branches, departments, offices, agency or instrumentalities of
government and to abolish any of those already existing; (d) to continue in force laws and
appropriation which would lapse or otherwise became inoperative, and to modify or suspend
the operation or application of those of an administrative character; (e) to imposed new taxes
or to increase, reduce, suspend, or abolish those in existence; (f) to raise funds through the
issuance of bonds or otherwise, and to authorize the expensive of the proceeds thereof; (g) to
authorize the National, provincial, city or municipal governments to incur in overdrafts for
purposes that he may approve; (h) to declare the suspension of the collection of credits or the
payment of debts; and (i) to exercise such other power as he may deem necessary to enable
the Government to fulfill its responsibilities and to maintain and enforce its authority.

SEC. 3. The President of the Philippines report thereto all the rules and regulation promulgated
by him under the power herein granted.

SEC. 4. This Act shall take effect upon its approval and the rules and regulations. promulgated
hereunder shall be in force and effect until the Congress of the Philippines shall otherwise
provide.

Approved December 16, 1941.

The above Acts cannot validly be invoked, Executive Order No. 68 was issued on July 29, 1947. Said
Acts had elapsed upon the liberation of the Philippines form the Japanese forces or, at the latest, when
the surrender of Japan was signed in Tokyo on September 2, 1945.

When both Acts were enacted by the Second National Assembly, we happened to have taken direct
part in their consideration and passage, not only as one of the members of said legislative body as
chairman of the Committee on Third Reading population Known as the "Little Senate." We are,
therefore in a position to state that said measures were enacted by the second national Assembly for
the purpose of facing the emergency of impending war and of the Pacific War that finally broke out
with the attack of Pearl Harbor on December 7, 1941. We approved said extraordinary measures, by
which under the exceptional circumstances then prevailing legislative power were delegated to the
President of the Philippines, by virtue of the following provisions of the Constitution:

In time of war or other national emergency, the Congress may by law authorize the President,
for a limited period and subject to such restrictions as it may prescribe to promulgate rules and
regulations to carry out declared national policy. (Article VI, section 26.)

It has never been the purpose of the National Assembly to extend the delegation beyond the
emergency created by the war as to extend it farther would be violative of the express provision of the
Constitution. We are of the opinion that there is no doubt on this question.; but if there could still be any
the same should be resolved in favor of the presumption that the National Assembly did not intend to
violate the fundamental law.

The absurdity of the contention that the emergency Acts continued in effect even after the surrender
of Japan can not be gainsaid. Only a few months after liberation and even before the surrender of
Japan, or since the middle of 1945, the Congress started to function normally. In the hypothesis that the
contention can prevail, then, since 1945, that is, four years ago, even after the Commonwealth was
already replaced by the Republic of the Philippines with the proclamation of our Independence, two
district, separate and independence legislative organs, — Congress and the President of the Philippines
— would have been and would continue enacting laws, the former to enact laws of every nature
including those of emergency character, and the latter to enact laws, in the form of executive orders,
under the so-called emergency powers. The situation would be pregnant with dangers to peace and
order to the rights and liberties of the people and to Philippines democracy.

Should there be any disagreement between Congress and the President of the Philippines, a possibility
that no one can dispute the President of the Philippines may take advantage of he long recess of
Congress (two-thirds of every year ) to repeal and overrule legislative enactments of Congress, and
may set up a veritable system of dictatorship, absolutely repugnant to the letter and spirit of the
Constitution.

Executive Order No. 68 is equally offensive to the Constitution because it violates the fundamental
guarantees of the due process and equal protection of the law. It is especially so, because it permit the
admission of many kinds evidence by which no innocent person can afford to get acquittal and by
which it is impossible to determine whether an accused is guilty or not beyond all reasonable doubt.

The rules of evidence adopted in Executive Order No. 68 are a reproduction of the regulation
governing the trial of twelve criminal, issued by General Douglas Mac Arthur, Commander in Chief of
the United State Armed Forces in Western Pacific, for the purpose of trying among other, General
Yamashita and Homma. What we said in our concurring and dissenting opinion to the decision
promulgated on December 19, 1945, in the Yamashita case, L-129, and in our concurring and
dissenting opinion to the resolution of January 23, 1946 in disposing the Homma case, L-244, are
perfectly applicable to the offensive rules of evidence in Executive Order No. 68. Said rules of evidence
are repugnant to conscience as under them no justice can expected.

For all the foregoing, conformably with our position in the Yamashita and Homma cases, we vote to
declare Executive Order No. 68 null and void and to grant petition.
 Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-2662 March 26, 1949
SHIGENORI KURODA, petitioner,
vs.
Major General RAFAEL JALANDONI, Brigadier General CALIXTO DUQUE, Colonel MARGARITO TORALBA,
Colonel IRENEO BUENCONSEJO, Colonel PEDRO TABUENA, Major FEDERICO ARANAS, MELVILLE S. HUSSEY
and ROBERT PORT, respondents.
Pedro Serran, Jose G. Lukban, and Liberato B. Cinco for petitioner.
Fred Ruiz Castro Federico Arenas Mariano Yengco, Jr., Ricardo A. Arcilla and S. Melville Hussey for
respondents.

DECISION
MORAN, C.J.:
Shigenori Kuroda, formerly a Lieutenant-General of the Japanese Imperial Army and Commanding
General of the Japanese Imperial Forces in the Philippines during a period covering 1943 and 1944, who
is now charged before a Military Commission convened by the Chief of Staff of the Armed Forces of the
Philippines, with having unlawfully disregarded and failed “to discharge his duties as such commander
to control the operations of members of his command, permitting them to commit brutal atrocities and
other high crimes against noncombatant civilians and prisoners of the Imperial Japanese Forces, in
violation of the laws and customs of war” — comes before this Court seeking to establish the illegality of
Executive Order No. 68 of the President of the Philippines; to enjoin and prohibit respondents Melville S.
Hussey and Robert Port from participating in the prosecution of petitioner’s case before the Military
Commission; and to permanently prohibit respondents from proceeding with the case of petitioner.
In support of his case, petitioner tenders the following principal arguments:
First. “That Executive Order No. 68 is illegal on the ground that it violates not only the provisions of our
constitutional law but also our local laws, to say nothing of the fact (that) the Philippines is not a signatory
nor an adherent to the Hague Convention on Rules and Regulations covering Land Warfare and,
therefore, petitioner is charged of `crimes’ not based on law, national and international.” Hence,
petitioner argues — “That in view of the fact that this commission has been empanelled by virtue of an
unconstitutional law and an illegal order, this commission is without jurisdiction to try herein petitioner.”
Second. That the participation in the prosecution of the case against petitioner before the Commission
in behalf of the United States of America, of attorneys Melville Hussey and Robert Port, who are not
attorneys authorized by the Supreme Court to practice law in the Philippines, is a diminution of our
personality as an independent state, and their appointments as prosecutors are a violation of our
Constitution for the reason that they are not qualified to practice law in the Philippines.
Third. That Attorneys Hussey and Port have no personality as prosecutors, the United States not being a
party in interest in the case.
Executive Order No. 68, establishing a National War Crimes Office and prescribing rules and regulations
governing the trial of accused war criminals, was issued by the President of the Philippines on the 29th
day of July, 1947. This Court holds that this order is valid and constitutional. Article 2 of our Constitution
provides in its section 3, that.
“The Philippines renounces war as an instrument of national policy, and adopts the generally accepted
principles of international law as part of the law of the nation.”
In accordance with the generally accepted principles of international law of the present day, including
the Hague Convention, the Geneva Convention and significant precedents of international
jurisprudence established by the United Nations, all those persons, military or civilian, who have been
guilty of planning, preparing or waging a war of aggression and of the commission of crimes and offenses
consequential and incidental thereto, in violation of the laws and customs of war, of humanity and
civilization, are held accountable therefor. Consequently, in the promulgation and enforcement of
Executive Order No. 68, the President of the Philippines has acted in conformity with the generally
accepted principles and policies of international law which are part of our Constitution.
The promulgation of said executive order is an exercise by the President of his powers as Commander in
Chief of all our armed forces, as upheld by this Court in the case of Yamashita vs. Styer L-129, 42 Off. Gaz.,
654) when we said.
“War is not ended simply because hostilities have ceased. After cessation of armed hostilities, incidents
of war may remain pending which should be disposed of as in time of war. `An important incident to a
conduct of war is the adoption of measures by the military command not only to repel and defeat the
enemies but to seize and subject to disciplinary measures those enemies who in their attempt to thwart
or impede our military effort have violated the law of war.’ (Ex parte Quirin, 317 U. S., 1; 63 Sup. Ct., 2.)
Indeed, the power to create a military commission for the trial and punishment of war criminals is an
aspect of waging war. And, in the language of a writer, a military commission `has jurisdiction so long as
a technical state of war continues. This includes the period of an armistice, or military occupation, up to
the effective date of a treaty of peace, and may extend beyond, by treaty agreement.’ (Cowls, Trial of
War Criminals by Military Tribunals, American Bar Association Journal, June, 1944.)”
Consequently, the President as Commander in Chief is fully empowered to consummate this unfinished
aspect of war, namely, the trial and punishment of war criminals, through the issuance and enforcement
of Executive Order No. 68.
Petitioner argues that respondent Military Commission has no jurisdiction to try petitioner for acts
committed in violation of the Hague Convention and the Geneva Convention because the Philippines
is not a signatory to the first and signed the second only in 1947. It cannot be denied that the rules and
regulations of the Hague and Geneva conventions form part of and are wholly based on the generally
accepted principles of international law. In fact, these rules and principles were accepted by the two
belligerent nations, the United States and Japan, who were signatories to the two Conventions. Such
rules and principles, therefore, form part of the law of our nation even if the Philippines was not a signatory
to the conventions embodying them, for our Constitution has been deliberately general and extensive
in its scope and is not confined to the recognition of rules and principles of international law as contained
in treaties to which our government may have been or shall be a signatory.
Furthermore, when the crimes charged against petitioner were allegedly committed, the Philippines was
under the sovereignty of the United States, and thus we were equally bound together with the United
States and with Japan, to the rights and obligations contained in the treaties between the belligerent
countries. These rights and obligations were not erased by our assumption of full sovereignty. If at all, our
emergence as a free state entitles us to enforce the right, on our own, of trying and punishing those who
committed crimes against our people. In this connection, it is well to remember what we have said in the
case of Laurel vs. Misa (76 Phil., 372):
“. . . The change of our form of government from Commonwealth to Republic does not affect the
prosecution of those charged with the crime of treason committed during the Commonwealth, because
it is an offense against the same government and the same sovereign people . . . “
By the same token, war crimes committed against our people and our government while we were a
Commonwealth, are triable and punishable by our present Republic.
Petitioner challenges the participation of two American attorneys, namely, Melville S. Hussey and Robert
Port, in the prosecution of his case, on the ground that said attorneys are not qualified to practice law in
the Philippines in accordance with our Rules of Court and the appointment of said attorneys as
prosecutors is violative of our national sovereignty.
In the first place, respondent Military Commission is a special military tribunal governed by a special law
and not by the Rules of Court which govern ordinary civil courts. It has already been shown that Executive
Order No. 68 which provides for the organization of such military commissions is a valid and constitutional
law. There is nothing in said executive order which requires that counsel appearing before said
commissions must be attorneys qualified to practice law in the Philippines in accordance with the Rules
of Court. In fact, it is common in military tribunals that counsel for the parties are usually military personnel
who are neither attorneys nor even possessed of legal training.
Secondly, the appointment of the two American attorneys is not violative of our national sovereignty. It
is only fair and proper that the United States, which has submitted the vindication of crimes against her
government and her people to a tribunal of our nation, should be allowed representation in the trial of
those very crimes. If there has been any relinquishment of sovereignty, it has not been by our government
but by the United States Government which has yielded to us the trial and punishment of her enemies.
The least that we could do in the spirit of comity is to allow them representation in said trials.
Alleging that the United States is not a party in interest in the case, petitioner challenges the personality
of attorneys Hussey and Port as prosecutors. It is of common knowledge that the United States and its
people have been equally, if not more greatly, aggrieved by the crimes with which petitioner stands
charged before the Military Commission. It can be considered a privilege for our Republic that a leader
nation should submit the vindication of the honor of its citizens and its government to a military tribunal
of our country.
The Military Commission having been convened by virtue of a valid law, with jurisdiction over the crimes
charged which fall under the provisions of Executive Order No. 68, and having jurisdiction over the person
of the petitioner by having said petitioner in its custody, this Court will not interfere with the due processes
of such Military Commission.
Shigenori Kuroda was the highest ranking Japanese officer stationed in the Philippines during the
Japanese occupation. He was then charged before the Military Commission, headed by Major General
Rafael Jalandoni, due to the atrocities that were done against non combatant civilians and prisoners
during the war. His trial was in pursuant to Executive Order No. 68 which established the National War
Crimes Office and prescribing rules and regulations governing the trial of accused war criminals. Kuroda
is questioning the legality of the said EO arguing that the same is not provided for in the Constitution. He
further underscores the fact that the Philippines is not a signatory of the Hague Convention on the Rules
and Regulations Covering Land Warfare hence we cannot impose against him any criminal charges
because it has no laws to base on, national or international.
ISSUE: Whether or not Kuroda can be charged in Philippine courts?
HELD: Yes. EO No. 68 is constitutional hence the Philippine courts can take cognizance of the case at bar.
EO No 68 is in pursuant to the constitutional provision that states “the Philippines renounces war as an
instrument of national policy, and adopts the generally accepted principles of international law as part
of the law of the nation.” The Hague Convention and other similar conventions whose principles are
generally accepted are hence considered as part of the law of the land.
 EN BANC

[G.R. No. 104768. July 21, 2003]

Republic of the Philippines, petitioner, vs. Sandiganbayan, Major General Josephus Q. Ramas and
Elizabeth Dimaano, respondents.

DECISION

CARPIO, J.:

The Case

Before this Court is a petition for review on certiorari seeking to set aside the Resolutions of the
Sandiganbayan (First Division)[1] dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037. The
first Resolution dismissed petitioners Amended Complaint and ordered the return of the confiscated items
to respondent Elizabeth Dimaano, while the second Resolution denied petitioners Motion for
Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended Complaint, or in the
alternative, for the remand of this case to the Sandiganbayan (First Division) for further proceedings
allowing petitioner to complete the presentation of its evidence.

Antecedent Facts

Immediately upon her assumption to office following the successful EDSA Revolution, then President
Corazon C. Aquino issued Executive Order No. 1 (EO No. 1) creating the Presidential Commission on
Good Government (PCGG). EO No. 1 primarily tasked the PCGG to recover all ill-gotten wealth of former
President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates. EO No.
1 vested the PCGG with the power (a) to conduct investigation as may be necessary in order to
accomplish and carry out the purposes of this order and the power (h) to promulgate such rules and
regulations as may be necessary to carry out the purpose of this order. Accordingly, the PCGG, through
its then Chairman Jovito R. Salonga, created an AFP Anti-Graft Board (AFP Board) tasked to investigate
reports of unexplained wealth and corrupt practices by AFP personnel, whether in the active service or
retired.[2]

Based on its mandate, the AFP Board investigated various reports of alleged unexplained wealth of
respondent Major General Josephus Q. Ramas (Ramas). On 27 July 1987, the AFP Board issued a
Resolution on its findings and recommendation on the reported unexplained wealth of Ramas. The
relevant part of the Resolution reads:

III. FINDINGS and EVALUATION:

Evidence in the record showed that respondent is the owner of a house and lot located at 15-Yakan
St., La Vista, Quezon City. He is also the owner of a house and lot located in Cebu City. The lot has an
area of 3,327 square meters.

The value of the property located in Quezon City may be estimated modestly at P700,000.00.

The equipment/items and communication facilities which were found in the premises of Elizabeth
Dimaano and were confiscated by elements of the PC Command of Batangas were all covered by
invoice receipt in the name of CAPT. EFREN SALIDO, RSO Command Coy, MSC, PA. These items could
not have been in the possession of Elizabeth Dimaano if not given for her use by respondent
Commanding General of the Philippine Army.
Aside from the military equipment/items and communications equipment, the raiding team was also
able to confiscate money in the amount of P2,870,000.00 and $50,000 US Dollars in the house of
Elizabeth Dimaano on 3 March 1986.

Affidavits of members of the Military Security Unit, Military Security Command, Philippine Army, stationed
at Camp Eldridge, Los Baos, Laguna, disclosed that Elizabeth Dimaano is the mistress of
respondent. That respondent usually goes and stays and sleeps in the alleged house of Elizabeth
Dimaano in Barangay Tengga, Itaas, Batangas City and when he arrives, Elizabeth Dimaano embraces
and kisses respondent. That on February 25, 1986, a person who rode in a car went to the residence of
Elizabeth Dimaano with four (4) attache cases filled with money and owned by MGen Ramas.

Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible means of income
and is supported by respondent for she was formerly a mere secretary.

Taking in toto the evidence, Elizabeth Dimaano could not have used the military equipment/items
seized in her house on March 3, 1986 without the consent of respondent, he being the Commanding
General of the Philippine Army. It is also impossible for Elizabeth Dimaano to claim that she owns
the P2,870,000.00 and $50,000 US Dollars for she had no visible source of income.

This money was never declared in the Statement of Assets and Liabilities of respondent. There was an
intention to cover the existence of these money because these are all ill-gotten and unexplained
wealth. Were it not for the affidavits of the members of the Military Security Unit assigned at Camp
Eldridge, Los Baos, Laguna, the existence and ownership of these money would have never been
known.

The Statement of Assets and Liabilities of respondent were also submitted for scrutiny and analysis by
the Boards consultant. Although the amount of P2,870,000.00 and $50,000 US Dollars were not included,
still it was disclosed that respondent has an unexplained wealth of P104,134. 60.

IV. CONCLUSION:

In view of the foregoing, the Board finds that a prima facie case exists against respondent for ill-gotten
and unexplained wealth in the amount of P2,974,134.00 and $50,000 US Dollars.

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA
1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully Acquired Property. [3]

Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No. 1379 (RA No.
1379) [4] against Ramas.

Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez filed an
Amended Complaint naming the Republic of the Philippines (petitioner), represented by the PCGG, as
plaintiff and Ramas as defendant. The Amended Complaint also impleaded Elizabeth Dimaano
(Dimaano) as co-defendant.

The Amended Complaint alleged that Ramas was the Commanding General of the Philippine Army
until 1986. On the other hand, Dimaano was a confidential agent of the Military Security Unit, Philippine
Army, assigned as a clerk-typist at the office of Ramas from 1 January 1978 to February 1979. The
Amended Complaint further alleged that Ramas acquired funds, assets and properties manifestly out of
proportion to his salary as an army officer and his other income from legitimately acquired property by
taking undue advantage of his public office and/or using his power, authority and influence as such
officer of the Armed Forces of the Philippines and as a subordinate and close associate of the deposed
President Ferdinand Marcos.[5]

The Amended Complaint also alleged that the AFP Board, after a previous inquiry, found reasonable
ground to believe that respondents have violated RA No. 1379.[6] The Amended Complaint prayed for,
among others, the forfeiture of respondents properties, funds and equipment in favor of the State.
 Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory Counterclaim to
the Amended Complaint. In his Answer, Ramas contended that his property consisted only of a
residential house at La Vista Subdivision, Quezon City, valued at P700,000, which was not out of
proportion to his salary and other legitimate income. He denied ownership of any mansion in Cebu City
and the cash, communications equipment and other items confiscated from the house of Dimaano.

Dimaano filed her own Answer to the Amended Complaint. Admitting her employment as a clerk-
typist in the office of Ramas from January-November 1978 only, Dimaano claimed ownership of the
monies, communications equipment, jewelry and land titles taken from her house by the Philippine
Constabulary raiding team.

After termination of the pre-trial,[7] the court set the case for trial on the merits on 9-11 November
1988.

On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of preparation
for trial and the absence of witnesses and vital documents to support its case. The court reset the hearing
to 17 and 18 April 1989.

On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order to charge the
delinquent properties with being subject to forfeiture as having been unlawfully acquired by defendant
Dimaano alone x x x.[8]

Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with petitioners
presentation of evidence on the ground that the motion for leave to amend complaint did not state
when petitioner would file the amended complaint. The Sandiganbayan further stated that the subject
matter of the amended complaint was on its face vague and not related to the existing complaint. The
Sandiganbayan also held that due to the time that the case had been pending in court, petitioner should
proceed to present its evidence.

After presenting only three witnesses, petitioner asked for a postponement of the trial.

On 28 September 1989, during the continuation of the trial, petitioner manifested its inability to
proceed to trial because of the absence of other witnesses or lack of further evidence to
present. Instead, petitioner reiterated its motion to amend the complaint to conform to the evidence
already presented or to change the averments to show that Dimaano alone unlawfully acquired the
monies or properties subject of the forfeiture.

The Sandiganbayan noted that petitioner had already delayed the case for over a year mainly
because of its many postponements. Moreover, petitioner would want the case to revert to its preliminary
stage when in fact the case had long been ready for trial. The Sandiganbayan ordered petitioner to
prepare for presentation of its additional evidence, if any.

During the trial on 23 March 1990, petitioner again admitted its inability to present further
evidence. Giving petitioner one more chance to present further evidence or to amend the complaint to
conform to its evidence, the Sandiganbayan reset the trial to 18 May 1990. The Sandiganbayan,
however, hinted that the re-setting was without prejudice to any action that private respondents might
take under the circumstances.

However, on 18 May 1990, petitioner again expressed its inability to proceed to trial because it had
no further evidence to present. Again, in the interest of justice, the Sandiganbayan granted petitioner 60
days within which to file an appropriate pleading. The Sandiganbayan, however, warned petitioner that
failure to act would constrain the court to take drastic action.

Private respondents then filed their motions to dismiss based on Republic v. Migrino.[9] The Court held
in Migrino that the PCGG does not have jurisdiction to investigate and prosecute military officers by
reason of mere position held without a showing that they are subordinates of former President Marcos.

On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive portion of which
states:

WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint, without

pronouncement as to costs. The counterclaims are likewise dismissed for lack of merit, but the
confiscated sum of money, communications equipment, jewelry and land titles are ordered returned to
Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman, who has primary
jurisdiction over the forfeiture cases under R.A. No. 1379, for such appropriate action as the evidence
warrants. This case is also referred to the Commissioner of the Bureau of Internal Revenue for a
determination of any tax liability of respondent Elizabeth Dimaano in connection herewith.

SO ORDERED.

On 4 December 1991, petitioner filed its Motion for Reconsideration.

In answer to the Motion for Reconsideration, private respondents filed a Joint Comment/Opposition
to which petitioner filed its Reply on 10 January 1992.

On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.

Ruling of the Sandiganbayan

The Sandiganbayan dismissed the Amended Complaint on the following grounds:

(1.) The actions taken by the PCGG are not in accordance with the rulings of the Supreme Court
in Cruz, Jr. v. Sandiganbayan[10] and Republic v. Migrino[11] which involve the same issues.

(2.) No previous inquiry similar to preliminary investigations in criminal cases was conducted
against Ramas and Dimaano.

(3.) The evidence adduced against Ramas does not constitute a prima facie case against him.

(4.) There was an illegal search and seizure of the items confiscated.

The Issues

Petitioner raises the following issues:

A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT PETITIONERS

EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE AND THAT THERE WAS
NO SHOWING OF CONSPIRACY, COLLUSION OR RELATIONSHIP BY
CONSANGUINITY OR AFFINITY BY AND BETWEEN RESPONDENT RAMAS AND
RESPONDENT DIMAANO NOTWITHSTANDING THE FACT THAT SUCH
CONCLUSIONS WERE CLEARLY UNFOUNDED AND PREMATURE, HAVING
BEEN RENDERED PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.

B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ACTIONS TAKEN BY

THE PETITIONER, INCLUDING THE FILING OF THE ORIGINAL COMPLAINT AND
THE AMENDED COMPLAINT, SHOULD BE STRUCK OUT IN LINE WITH THE
RULINGS OF THE SUPREME COURT IN CRUZ, JR. v. SANDIGANBAYAN, 194
SCRA 474 AND REPUBLIC v. MIGRINO, 189 SCRA 289, NOTWITHSTANDING
THE FACT THAT:

1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.

Migrino, supra, are clearly not applicable to this case;

2. Any procedural defect in the institution of the complaint in Civil Case No.
0037 was cured and/or waived by respondents with the filing of their
respective answers with counterclaim; and

3. The separate motions to dismiss were evidently improper considering that

they were filed after commencement of the presentation of the
 evidence of the petitioner and even before the latter was allowed to
formally offer its evidence and rest its case;

C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE ARTICLES AND THINGS
SUCH AS SUMS OF MONEY, COMMUNICATIONS EQUIPMENT, JEWELRY AND
LAND TITLES CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO
WERE ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS EVIDENCE.[12]

The Courts Ruling

First Issue: PCGGs Jurisdiction to Investigate Private Respondents

This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr. v.
Sandiganbayan[13] and Republic v. Migrino.[14]

The primary issue for resolution is whether the PCGG has the jurisdiction to investigate and cause the
filing of a forfeiture petition against Ramas and Dimaano for unexplained wealth under RA No. 1379.

We hold that PCGG has no such jurisdiction.

The PCGG created the AFP Board to investigate the unexplained wealth and corrupt practices of
AFP personnel, whether in the active service or retired. [15] The PCGG tasked the AFP Board to make the
necessary recommendations to appropriate government agencies on the action to be taken based on
its findings.[16] The PCGG gave this task to the AFP Board pursuant to the PCGGs power under Section 3
of EO No. 1 to conduct investigation as may be necessary in order to accomplish and to carry out the
purposes of this order. EO No. 1 gave the PCGG specific responsibilities, to wit:

SEC. 2. The Commission shall be charged with the task of assisting the President in regard to the
following matters:

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

(b) The investigation of such cases of graft and corruption as the President may assign to the
Commission from time to time.

x x x.

The PCGG, through the AFP Board, can only investigate the unexplained wealth and corrupt
practices of AFP personnel who fall under either of the two categories mentioned in Section 2 of EO No.
1. These are: (1) AFP personnel who have accumulated ill-gotten wealth during the administration of
former President Marcos by being the latters immediate family, relative, subordinate or close associate,
taking undue advantage of their public office or using their powers, influence x x x;[17] or (2) AFP personnel
involved in other cases of graft and corruption provided the President assigns their cases to the PCGG.[18]

Petitioner, however, does not claim that the President assigned Ramas case to the
PCGG. Therefore, Ramas case should fall under the first category of AFP personnel before the PCGG
could exercise its jurisdiction over him. Petitioner argues that Ramas was undoubtedly a subordinate of
former President Marcos because of his position as the Commanding General of the Philippine
Army. Petitioner claims that Ramas position enabled him to receive orders directly from his commander-
in-chief, undeniably making him a subordinate of former President Marcos.

We hold that Ramas was not a subordinate of former President Marcos in the sense contemplated
under EO No. 1 and its amendments.
 Mere position held by a military officer does not automatically make him a subordinate as this term
is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed close association with former
President Marcos. Migrino discussed this issue in this wise:

A close reading of EO No. 1 and related executive orders will readily show what is contemplated within
the term subordinate. The Whereas Clauses of EO No. 1 express the urgent need to recover the ill-
gotten wealth amassed by former President Ferdinand E. Marcos, his immediate family, relatives, and
close associates both here and abroad.

EO No. 2 freezes all assets and properties in the Philippines in which former President Marcos and/or his
wife, Mrs. Imelda Marcos, their close relatives, subordinates, business associates, dummies, agents, or
nominees have any interest or participation.

Applying the rule in statutory construction known as ejusdem generis that is-

[W]here general words follow an enumeration of persons or things by words of a particular and specific
meaning, such general words are not to be construed in their widest extent, but are to be held as
applying only to persons or things of the same kind or class as those specifically mentioned [Smith, Bell
& Co, Ltd. vs. Register of Deeds of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2 nd Ed.,
203].

[T]he term subordinate as used in EO Nos. 1 & 2 refers to one who enjoys a close association with former
President Marcos and/or his wife, similar to the immediate family member, relative, and close associate
in EO No. 1 and the close relative, business associate, dummy, agent, or nominee in EO No. 2.

xxx

It does not suffice, as in this case, that the respondent is or was a government official or employee
during the administration of former President Marcos. There must be a prima facie showing that the
respondent unlawfully accumulated wealth by virtue of his close association or relation with former
Pres. Marcos and/or his wife. (Emphasis supplied)

Ramas position alone as Commanding General of the Philippine Army with the rank of Major
General[19] does not suffice to make him a subordinate of former President Marcos for purposes of EO No.
1 and its amendments. The PCGG has to provide a prima facie showing that Ramas was a close
associate of former President Marcos, in the same manner that business associates, dummies, agents or
nominees of former President Marcos were close to him. Such close association is manifested either by
Ramas complicity with former President Marcos in the accumulation of ill-gotten wealth by the deposed
President or by former President Marcos acquiescence in Ramas own accumulation of ill-gotten wealth
if any.

This, the PCGG failed to do.

Petitioners attempt to differentiate the instant case from Migrino does not convince us. Petitioner
argues that unlike in Migrino, the AFP Board Resolution in the instant case states that the AFP Board
conducted the investigation pursuant to EO Nos. 1, 2, 14 and 14-A in relation to RA No. 1379. Petitioner
asserts that there is a presumption that the PCGG was acting within its jurisdiction of investigating crony-
related cases of graft and corruption and that Ramas was truly a subordinate of the former
President. However, the same AFP Board Resolution belies this contention. Although the Resolution begins
with such statement, it ends with the following recommendation:

V. RECOMMENDATION:

Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted and tried for
violation of RA 3019, as amended, otherwise known as Anti-Graft and Corrupt Practices Act and RA
1379, as amended, otherwise known as The Act for the Forfeiture of Unlawfully Acquired Property. [20]

Thus, although the PCGG sought to investigate and prosecute private respondents under EO Nos. 1, 2,
14 and 14-A, the result yielded a finding of violation of Republic Acts Nos. 3019 and 1379 without any
relation to EO Nos. 1, 2, 14 and 14-A. This absence of relation to EO No. 1 and its amendments proves
fatal to petitioners case. EO No. 1 created the PCGG for a specific and limited purpose, and necessarily
its powers must be construed to address such specific and limited purpose.

Moreover, the resolution of the AFP Board and even the Amended Complaint do not show that the
properties Ramas allegedly owned were accumulated by him in his capacity as a subordinate of his
commander-in-chief. Petitioner merely enumerated the properties Ramas allegedly owned and
suggested that these properties were disproportionate to his salary and other legitimate income without
showing that Ramas amassed them because of his close association with former President
Marcos. Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that Ramas
accumulated his wealth because of his close association with former President Marcos, thus:

10. While it is true that the resolution of the Anti-Graft Board of the New Armed Forces of the Philippines
did not categorically find a prima facie evidence showing that respondent Ramas unlawfully
accumulated wealth by virtue of his close association or relation with former President Marcos and/or
his wife, it is submitted that such omission was not fatal. The resolution of the Anti-Graft Board should be
read in the context of the law creating the same and the objective of the investigation which was, as
stated in the above, pursuant to Republic Act Nos. 3019 and 1379 in relation to Executive Order Nos. 1,
2, 14 and 14-a;[21] (Emphasis supplied)

Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that the ill-gotten
wealth was accumulated by a subordinate of former President Marcos that vests jurisdiction on
PCGG. EO No. 1[22] clearly premises the creation of the PCGG on the urgent need to recover all ill-gotten
wealth amassed by former President Marcos, his immediate family, relatives, subordinates and close
associates. Therefore, to say that such omission was not fatal is clearly contrary to the intent behind the
creation of the PCGG.

In Cruz, Jr. v. Sandiganbayan,[23] the Court outlined the cases that fall under the jurisdiction of the
PCGG pursuant to EO Nos. 1, 2,[24] 14,[25] 14-A:[26]

A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with Sections 1, 2 and 3 of
Executive Order No. 14, shows what the authority of the respondent PCGG to investigate and
prosecute covers:

(a) the investigation and prosecution of the civil action for the recovery of ill-gotten wealth
under Republic Act No. 1379, accumulated by former President Marcos, his immediate
family, relatives, subordinates and close associates, whether located in the Philippines
or abroad, including the take-over or sequestration of all business enterprises and
entities owned or controlled by them, during his administration, directly or through his
nominees, by taking undue advantage of their public office and/or using their powers,
authority and influence, connections or relationships; and

(b) the investigation and prosecution of such offenses committed in the acquisition of said ill-
gotten wealth as contemplated under Section 2(a) of Executive Order No. 1.

However, other violations of the Anti-Graft and Corrupt Practices Act not otherwise falling under the
foregoing categories, require a previous authority of the President for the respondent PCGG to
investigate and prosecute in accordance with Section 2 (b) of Executive Order No. 1. Otherwise,
jurisdiction over such cases is vested in the Ombudsman and other duly authorized investigating
agencies such as the provincial and city prosecutors, their assistants, the Chief State Prosecutor and his
assistants and the state prosecutors.(Emphasis supplied)

The proper government agencies, and not the PCGG, should investigate and prosecute forfeiture
petitions not falling under EO No. 1 and its amendments. The preliminary investigation of unexplained
wealth amassed on or before 25 February 1986 falls under the jurisdiction of the Ombudsman, while the
authority to file the corresponding forfeiture petition rests with the Solicitor General.[27] The Ombudsman
Act or Republic Act No. 6770 (RA No. 6770) vests in the Ombudsman the power to conduct preliminary
investigation and to file forfeiture proceedings involving unexplained wealth amassed after 25 February
1986.[28]

After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite the absence
of a prima facie finding that Ramas was a subordinate of former President Marcos. The petition for
forfeiture filed with the Sandiganbayan should be dismissed for lack of authority by the PCGG to
investigate respondents since there is no prima facie showing that EO No. 1 and its amendments apply
to respondents. The AFP Board Resolution and even the Amended Complaint state that there are
violations of RA Nos. 3019 and 1379. Thus, the PCGG should have recommended Ramas case to the
Ombudsman who has jurisdiction to conduct the preliminary investigation of ordinary unexplained
wealth and graft cases. As stated in Migrino:

[But] in view of the patent lack of authority of the PCGG to investigate and cause the prosecution of
private respondent for violation of Rep. Acts Nos. 3019 and 1379, the PCGG must also be enjoined from
proceeding with the case, without prejudice to any action that may be taken by the proper
prosecutory agency. The rule of law mandates that an agency of government be allowed to exercise
only the powers granted to it.

Petitioners argument that private respondents have waived any defect in the filing of the forfeiture
petition by submitting their respective Answers with counterclaim deserves no merit as well.

Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to waive in the first
place. The PCGG cannot exercise investigative or prosecutorial powers never granted to it. PCGGs
powers are specific and limited. Unless given additional assignment by the President, PCGGs sole task is
only to recover the ill-gotten wealth of the Marcoses, their relatives and cronies.[29] Without these
elements, the PCGG cannot claim jurisdiction over a case.

Private respondents questioned the authority and jurisdiction of the PCGG to investigate and
prosecute their cases by filing their Motion to Dismiss as soon as they learned of the pronouncement of
the Court in Migrino. This case was decided on 30 August 1990, which explains why private respondents
only filed their Motion to Dismiss on 8 October 1990. Nevertheless, we have held that the parties may raise
lack of jurisdiction at any stage of the proceeding.[30] Thus, we hold that there was no waiver of jurisdiction
in this case. Jurisdiction is vested by law and not by the parties to an action.[31]

Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to conduct the
preliminary investigation. The Ombudsman may still conduct the proper preliminary investigation for
violation of RA No. 1379, and if warranted, the Solicitor General may file the forfeiture petition with the
Sandiganbayan.[32] The right of the State to forfeit unexplained wealth under RA No. 1379 is not subject
to prescription, laches or estoppel.[33]

Second Issue: Propriety of Dismissal of Case

Before Completion of Presentation of Evidence

Petitioner also contends that the Sandiganbayan erred in dismissing the case before completion of
the presentation of petitioners evidence.

We disagree.

Based on the findings of the Sandiganbayan and the records of this case, we find that petitioner
has only itself to blame for non-completion of the presentation of its evidence. First, this case has been
pending for four years before the Sandiganbayan dismissed it. Petitioner filed its
Amended Complaint on 11 August 1987, and only began to present its evidence on 17 April
1989. Petitioner had almost two years to prepare its evidence. However, despite this sufficient time,
petitioner still delayed the presentation of the rest of its evidence by filing numerous motions for
postponements and extensions. Even before the date set for the presentation of its evidence, petitioner
filed, on 13 April 1989, a Motion for Leave to Amend the Complaint.[34] The motion sought to charge the
delinquent properties (which comprise most of petitioners evidence) with being subject to forfeiture as
having been unlawfully acquired by defendant Dimaano alone x x x.

The Sandiganbayan, however, refused to defer the presentation of petitioners evidence since
petitioner did not state when it would file the amended complaint. On 18 April 1989, the Sandiganbayan
set the continuation of the presentation of evidence on 28-29 September and 9-11 October 1989, giving
petitioner ample time to prepare its evidence. Still, on 28 September 1989, petitioner manifested its
inability to proceed with the presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events because this case
has been ready for trial for over a year and much of the delay hereon has been due to the inability of
the government to produce on scheduled dates for pre-trial and for trial documents and witnesses,
allegedly upon the failure of the military to supply them for the preparation of the presentation of
evidence thereon. Of equal interest is the fact that this Court has been held to task in public about its
alleged failure to move cases such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with a situation where a case already in
progress will revert back to the preliminary stage, despite a five-month pause where appropriate action
could have been undertaken by the plaintiff Republic.[35]

On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary investigation
on the unexplained wealth of private respondents as mandated by RA No. 1379. [36] The PCGG prayed
for an additional four months to conduct the preliminary investigation. The Sandiganbayan granted this
request and scheduled the presentation of evidence on 26-29 March 1990. However, on the scheduled
date, petitioner failed to inform the court of the result of the preliminary investigation the PCGG
supposedly conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue with
the presentation of its evidence and to inform the court of what lies ahead insofar as the status of the
case is concerned x x x.[37] Still on the date set, petitioner failed to present its evidence. Finally, on 11 July
1990, petitioner filed its Re-Amended Complaint.[38] The Sandiganbayan correctly observed that a case
already pending for years would revert to its preliminary stage if the court were to accept the Re-
Amended Complaint.

Based on these circumstances, obviously petitioner has only itself to blame for failure to complete
the presentation of its evidence. The Sandiganbayan gave petitioner more than sufficient time to finish
the presentation of its evidence. The Sandiganbayan overlooked petitioners delays and yet petitioner
ended the long-string of delays with the filing of a Re-Amended Complaint, which would only prolong
even more the disposition of the case.

Moreover, the pronouncements of the Court in Migrino and Cruz prompted the Sandiganbayan to
dismiss the case since the PCGG has no jurisdiction to investigate and prosecute the case against private
respondents. This alone would have been sufficient legal basis for the Sandiganbayan to dismiss the
forfeiture case against private respondents.

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

Third Issue: Legality of the Search and Seizure

Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated from
Dimaanos house as illegally seized and therefore inadmissible in evidence. This issue bears a significant
effect on petitioners case since these properties comprise most of petitioners evidence against private
respondents. Petitioner will not have much evidence to support its case against private respondents if
these properties are inadmissible in evidence.

On 3 March 1986, the Constabulary raiding team served at Dimaanos residence a search warrant
captioned Illegal Possession of Firearms and Ammunition. Dimaano was not present during the raid but
Dimaanos cousins witnessed the raid. The raiding team seized the items detailed in the seizure receipt
together with other items not included in the search warrant. The raiding team seized these items: one
baby armalite rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of P2,870,000 and US$50,000, jewelry, and land titles.

Petitioner wants the Court to take judicial notice that the raiding team conducted the search and
seizure on March 3, 1986 or five days after the successful EDSA revolution.[39] Petitioner argues that a
revolutionary government was operative at that time by virtue of Proclamation No. 1 announcing that
President Aquino and Vice President Laurel were taking power in the name and by the will of the Filipino
people.[40] Petitioner asserts that the revolutionary government effectively withheld the operation of the
1973 Constitution which guaranteed private respondents exclusionary right.

Moreover, petitioner argues that the exclusionary right arising from an illegal search applies only
beginning 2 February 1987, the date of ratification of the 1987 Constitution.Petitioner contends that all
rights under the Bill of Rights had already reverted to its embryonic stage at the time of the search.
Therefore, the government may confiscate the monies and items taken from Dimaano and use the same
in evidence against her since at the time of their seizure, private respondents did not enjoy any
constitutional right.

Petitioner is partly right in its arguments.

The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in President Aquinos
Proclamation No. 3 dated 25 March 1986, the EDSA Revolution was done in defiance of the provisions of
the 1973 Constitution.[41] The resulting government was indisputably a revolutionary government bound
by no constitution or legal limitations except treaty obligations that the revolutionary government, as
the de jure government in the Philippines, assumed under international law.

The correct issues are: (1) whether the revolutionary government was bound by the Bill of Rights of
the 1973 Constitution during the interregnum, that is, after the actual and effective take-over of power
by the revolutionary government following the cessation of resistance by loyalist forces up to 24 March
1986 (immediately before the adoption of the Provisional Constitution); and (2) whether the protection
accorded to individuals under the International Covenant on Civil and Political Rights (Covenant) and
the Universal Declaration of Human Rights (Declaration) remained in effect during the interregnum.

We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the Covenant and the
Declaration remained in effect during the interregnum.

During the interregnum, the directives and orders of the revolutionary government were the
supreme law because no constitution limited the extent and scope of such directives and orders. With
the abrogation of the 1973 Constitution by the successful revolution, there was no municipal law higher
than the directives and orders of the revolutionary government. Thus, during the interregnum, a person
could not invoke any exclusionary right under a Bill of Rights because there was neither a constitution nor
a Bill of Rights during the interregnum. As the Court explained in Letter of Associate Justice Reynato S.
Puno:[42]

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

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

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

xxx

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

To hold that the Bill of Rights under the 1973 Constitution remained operative during the interregnum
would render void all sequestration orders issued by the Philippine Commission on Good Government
(PCGG) before the adoption of the Freedom Constitution. The sequestration orders, which direct the
freezing and even the take-over of private property by mere executive issuance without judicial action,
would violate the due process and search and seizure clauses of the Bill of Rights.

During the interregnum, the government in power was concededly a revolutionary government
bound by no constitution. No one could validly question the sequestration orders as violative of the Bill of
Rights because there was no Bill of Rights during the interregnum. However, upon the adoption of the
Freedom Constitution, the sequestered companies assailed the sequestration orders as contrary to the
Bill of Rights of the Freedom Constitution.

In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,[43] petitioner Baseco, while conceding there was no Bill of Rights during the interregnum,
questioned the continued validity of the sequestration orders upon adoption of the Freedom Constitution
in view of the due process clause in its Bill of Rights.The Court ruled that the Freedom Constitution, and
later the 1987 Constitution, expressly recognized the validity of sequestration orders, thus:

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

The framers of both the Freedom Constitution and the 1987 Constitution were fully aware that the
sequestration orders would clash with the Bill of Rights. Thus, the framers of both constitutions had to
include specific language recognizing the validity of the sequestration orders. The following discourse by
Commissioner Joaquin G. Bernas during the deliberations of the Constitutional Commission is instructive:

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

Despite the impassioned plea by Commissioner Bernas against the amendment

excepting sequestration orders from the Bill of Rights, the Constitutional Commission still adopted the
amendment as Section 26,[44] Article XVIII of the 1987 Constitution. The framers of the Constitution were
fully aware that absent Section 26, sequestration orders would not stand the test of due process under
the Bill of Rights.

Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the interregnum,
absent a constitutional provision excepting sequestration orders from such Bill of Rights, would clearly
render all sequestration orders void during the interregnum. Nevertheless, even during the interregnum
the Filipino people continued to enjoy, under the Covenant and the Declaration, almost the same rights
found in the Bill of Rights of the 1973 Constitution.

The revolutionary government, after installing itself as the de jure government, assumed responsibility
for the States good faith compliance with the Covenant to which the Philippines is a signatory. Article
2(1) of the Covenant requires each signatory State to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights[45] recognized in the present Covenant. Under Article 17(1)
of the Covenant, the revolutionary government had the duty to insure that [n]o one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home or correspondence.

The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2) that [n]o one
shall be arbitrarily deprived of his property. Although the signatories to the Declaration did not intend it
as a legally binding document, being only a declaration, the Court has interpreted the Declaration as
part of the generally accepted principles of international law and binding on the State.[46] Thus, the
revolutionary government was also obligated under international law to observe the rights [47] of
individuals under the Declaration.

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

During the interregnum when no constitution or Bill of Rights existed, directives and orders issued by
government officers were valid so long as these officers did not exceed the authority granted them by
the revolutionary government. The directives and orders should not have also violated the Covenant or
the Declaration. In this case, the revolutionary government presumptively sanctioned the warrant since
the revolutionary government did not repudiate it. The warrant, issued by a judge upon proper
application, specified the items to be searched and seized. The warrant is thus valid with respect to the
items specifically described in the warrant.

However, the Constabulary raiding team seized items not included in the warrant. As admitted by
petitioners witnesses, the raiding team confiscated items not included in the warrant, thus:

Direct Examination of Capt. Rodolfo Sebastian

AJ AMORES

Q. According to the search warrant, you are supposed to seize only for weapons. What
else, aside from the weapons, were seized from the house of Miss Elizabeth
Dimaano?

A. The communications equipment, money in Philippine currency and US dollars, some

jewelries, land titles, sir.

Q. Now, the search warrant speaks only of weapons to be seized from the house of
Elizabeth Dimaano. Do you know the reason why your team also seized other
properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed that the
reason why they also brought the other items not included in the search warrant
was because the money and other jewelries were contained in attach cases and
cartons with markings Sony Trinitron, and I think three (3) vaults or steel
safes. Believing that the attach cases and the steel safes were containing
firearms, they forced open these containers only to find out that they contained
money.

xxx

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

Cross-examination
Atty. Banaag

Q. Were you present when the search warrant in connection with this case was applied
before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.

Q. And the search warrant applied for by you was for the search and seizure of five (5)
baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.

xxx

AJ AMORES
 Q. Before you applied for a search warrant, did you conduct surveillance in the house
of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU elements,
your Honor.

Q. And this party believed there were weapons deposited in the house of Miss Elizabeth
Dimaano?
A. Yes, your Honor.

Q. And they so swore before the Municipal Trial Judge?

A. Yes, your Honor.

Q. But they did not mention to you, the applicant for the search warrant, any other
properties or contraband which could be found in the residence of Miss Elizabeth
Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for instance, the
communications equipment and money. However, I did not include that in the
application for search warrant considering that we have not established
concrete evidence about that. So when

Q. So that when you applied for search warrant, you had reason to believe that only
weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.[50]

xxx

Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and
how many ammunition?
A. Forty, sir.

Q. And this became the subject of your complaint with the issuing Court, with the fiscals
office who charged Elizabeth Dimaano for Illegal Possession of Firearms and
Ammunition?
A. Yes, sir.

Q. Do you know what happened to that case?

A. I think it was dismissed, sir.

Q. In the fiscals office?

A. Yes, sir.

Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.

Q. There were other articles seized which were not included in the search warrant, like
for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along
also the jewelries and other items, sir. I do not really know where it was taken but
they brought along also these articles. I do not really know their reason for
bringing the same, but I just learned that these were taken because they might
get lost if they will just leave this behind.

xxx

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

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

The seizure of these items was therefore void, and unless these items are contraband per se,[53] and
they are not, they must be returned to the person from whom the raiding seized them. However, we do
not declare that such person is the lawful owner of these items, merely that the search and seizure
warrant could not be used as basis to seize and withhold these items from the possessor. We thus hold
that these items should be returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of the
Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No. 0037, remanding the
records of this case to the Ombudsman for such appropriate action as the evidence may warrant, and
referring this case to the Commissioner of the Bureau of Internal Revenue for a determination of any tax
liability of respondent Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.

Bellosillo, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result. I concur with Mr. Justice Vitug in his concurring opinion.
Puno and Vitug, JJ., see separate opinion
Panganiban, J., in the result.
Quisumbing and Sandoval-Gutierrez, JJ., on official leave.
Ynares-Santiago, J., in the result. I concur in the separate opinion of J. Reynato Puno.
Tinga, J., separate opinion reserved.

[1] Composed of Justices Regino Hermosisima, Jr., Francis Garchitorena and Cipriano del Rosario.
[2] Republic v. Migrino, G.R. No. 89483, 30 August 1990, 189 SCRA 289.
[3] Records of the Sandiganbayan [hereinafter Records], pp. 53-55.
[4] An Act Declaring Forfeiture in Favor of the State Any Property Found to Have Been Unlawfully Acquired
by Any Public Officer or Employee and Providing for the Proceedings Therefor.
[5] Records, p. 14.
[6] Ibid., p.16.
[7] Ibid., p. 166.
[8] Ibid., p. 286.
[9] Supra, note 2.
[10] G.R. No. 94595, 26 February 1991, 194 SCRA 474.
[11] Supra, note 2.
[12] Rollo, p. 21.
[13] Supra, note 10.
[14] Supra, note 2.
[15] Republic v. Migrino, supra, note 2.
[16] Supra, note 2.
[17] Republic v. Migrino, supra, note 2.
[18] Republic v. Sandiganbayan, G.R. No. 115906, 29 September 1994, 237 SCRA 242.
[19] Presidential Decree No. 1769 Amending PD 360 dated December 30, 1973 adjusting the authorized
grades in the command and staff structure of the AFP dated 12 January 1981. The ranking is as
follows:

Chief of Staff, AFP General (0-10)

Vice Chief of Staff, AFP Lt. General (0-9)

Commander of Major Services, AFP Maj. General (0-8)

xxx.
[20] Records, pp. 54-55.
[21] Rollo, p. 27.
[22] WHEREAS, vast resources of the government have been amassed by former President Ferdinand E.
Marcos, his immediate family, relatives and close associates both here and abroad;

WHEREAS, there is an urgent need to recover all ill-gotten wealth;

xxx
[23] Supra, note 10.
[24] Regarding the Funds, Moneys, Assets, and Properties Illegally Acquired or Misappropriated by Former
President Marcos, Mrs. Imelda Marcos, their Close Relatives, Subordinates, Business Associates,
Dummies, Agents or Nominees dated 12 March 1986.
[25] Defining the Jurisdiction over Cases Involving the Ill-gotten Wealth of Former President Ferdinand E.
Marcos, Mrs. Imelda R. Marcos, Members of their Immediate Family, Close Relatives,
Subordinates, and/or Business Associates, Dummies, Agents and Nominees dated 7 May 1986.
[26] Amending Executive Order No. 14 dated 18 August 1986.
[27] Republic v. Sandiganbayan, G.R. No. 90529, 16 August 1991, 200 SCRA 667.
[28] Section 15 (11), RA No. 6770.
[29] Republic v. Migrino, supra, note 2.
[30] Cudia v. CA, 348 Phil. 190 (1998).
[31] Monsanto v. Zerna, G.R. No. 142501, 7 December 2001, 371 SCRA 664; Republic v. Estipular, G.R. No.
136588, 20 July 2000, 336 SCRA 333.
[32] Republic v. Migrino, supra, note 2.
[33] Cojuangco, Jr. v. Presidential Commission on Good Govt., G.R. Nos. 92319-20, 2 October 1990, 190
SCRA 226.
[34] Records, p. 285.
[35] Records, p. 347.
[36] Ibid., p. 346.
[37] Ibid., p. 395.
[38] Ibid., p. 422.
[39] Rollo, p. 34.
[40] Ibid.
[41] Proclamation No. 3, Provisional Constitution of the Republic of the Philippines, provides:

WHEREAS, the new government under President Corazon C. Aquino was installed through a direct
exercise of the power of the Filipino people assisted by units of the New Armed Forces of the
Philippines;
WHEREAS, the heroic action of the people was done in defiance of the provisions of the 1973 Constitution,
as amended;

xxx. (Emphasis supplied)

See also Estrada v. Desierto, G.R. No. 146710-15 and G.R. No. 146738, 3 April 2001, 356 SCRA 108; Mun. of
San Juan, Metro Manila v. Court of Appeals, 345 Phil. 220 (1997).
[42] A.M. No. 90-11-2697-CA, 29 June 1992, 210 SCRA 589.
[43] No. L-75885, 27 May 1987, 150 SCRA 181.
[44] Section 26, Article XVIII of the 1987 Constitution provides:

Sec. 26. The authority to issue sequestration or freeze orders under Proclamation No. 3 dated March 25,
1986 in relation to the recovery of ill-gotten wealth shall remain operative for not more than
eighteen months after the ratification of this Constitution. However, in the national interest, as
certified by the President, the Congress may extend said period.

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

The sequestration or freeze order is deemed automatically lifted if no judicial action or proceeding is
commenced as herein provided.
[45] Among the rights of individuals recognized in the Covenant are: (1) No one shall be arbitrarily deprived
of his life [Article 6(1)]; (2) No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. [Article 7]; (3) Everyone has the right to liberty and security of person.
No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedures as are established by law.
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release [Article 9(1 & 3)]; (4) Anyone who is arrested shall be informed, at
the time of the arrest, of the reasons for his arrest and shall be promptly informed of the charges
against him [Article 9(2)]; (5) Everyone lawfully within the territory of a State shall, within that
territory, have the right to liberty of movement and freedom to choose his residence. Everyone
shall be free to leave any country, including his own. No one shall be arbitrarily deprived of the
right to enter his own country [Article 12(1, 2 & 3)]; (6) Everyone charged with a criminal offense
shall have the right to be presumed innocent until proved guilty according to law [Article 14(2)];
(7) Everyone shall have the right of freedom of thought, conscience and religion [Article 18(1)];
(8) Everyone shall have the right to hold opinions without interference. Everyone shall have the
right to freedom of expression [Article 19(1 & 2)]; (9) The right of peaceful assembly shall be
recognized [Article 21]; (10) Everyone shall have the right of freedom of association with others
[Article 22(1)]; (11) All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law [Article 26].
[46] Andreu v. Commissioner of Immigration, 90 Phil. 347 (1951); Chirskoff v. Commissioner of Immigration,
90 Phil. 256 (1951); Borovsky v. Commissioner of Immigration, 90 Phil. 107 (1951); Mejoff v. Director
of Prisons, 90 Phil. 70 (1951).
[47] Among the rights enshrined in the Declaration are: (1) Everyone has the right to own property alone
or in association with others [Article 17(1)]; (2) Everyone has the right to take part in the
government of his country, directly or through freely chosen representatives [Article 21(1)]; (3)
Everyone has the right to work, to free choice of employment, to just and favorable conditions
of work and to protection against unemployment [Article 23(1)].
[48] Section 1, Article I of the Provisional Constitution provides: The provisions of xxx ARTICLE IV (Bill of
Rights) xxx of the 1973 Constitution, as amended, remain in force and effect and are
hereby adopted in toto as part of this provisional Constitution. (Emphasis supplied)
[49] TSN, 18 April 1989, pp. 115-117.
[50] Ibid., pp. 136-138.
[51] Ibid., pp. 144-146.
[52] Five generally accepted exceptions to the rule against warrantless search and seizure have been
judicially formulated as follows: (1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure of evidence in plain view, (4) customs searches, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure. (People v. Que Ming
Kha, G.R. No. 133265, 31 May 2002; Caballes v. Court of Appeals, G.R. No. 136292, 15 January
2002; People v. Lacerna, G.R. No. 109250, 5 September 1997, 278 SCRA 561).
[53] People v. Lim, G.R. No. 141699, 7 August 2002; Del Rosario v. People, G.R. No. 142295, 31 May 2001,
358 SCRA 373.
 REPUBLIC OF THE PHILIPPINES v. SANDIGANBAYAN et al . 402 SCRA 84(2003)

The PCGG cannot vote sequestered shares to elect the ETPI Board of Directors or to amend the Articles
of Incorporation for the purpose of increasing the authorized capital stock unless there is a prima facie
evidence showing that said shares are ill-gotten and there is an imminent danger of dissipation.

Two sets of board and officers of Eastern Telecommunications, Philippines, Inc. (ETPI) were elected, one
by the Presidential Commission on Good Government (PCGG) and the other by the registered ETPI
stockholders.Victor Africa, a stockholder of ETPI filed a petition for Certiorari before the Sandiganbayan
alleging that the PCGG had been “illegally exercising the rights of stockholders of ETPI,” in the election
of the members of the board of directors. The Sandiganbayan ruled that only the registered owners, their
duly authorized representatives or their proxies may vote their corresponding shares. The PCGG filed a
petition for certiorari, mandamus and prohibition before the Court which was granted. The Court referred
the PCGG’s petition to hold the special stockholders’ meeting to the Sandiganbayan for reception of
evidence and resolution. The Sandiganbayan granted the PCGG “authority to cause the holding of a
special stockholders’ meeting of ETPI and held that there was an urgent necessity to increase ETPI’s
authorized capital stock; there existed a prima facie factual foundation for the issuance of the writ of
sequestration covering the Class “A” shares of stock; and the PCGG was entitled to vote the sequestered
shares of stock. The PCGG-controlled ETPI board of directors held a meeting and the increase in ETPI’s
authorized capital stock from P250 Million to P2.6 Billion was “unanimously approved”. Africa filed a
motion to nullify the stockholders meeting, contending that only the Court, and not the Sandiganbayan,
has the power to authorize the PCGG to call a stockholders meeting and vote the sequestered shares.
The Sandiganbayan denied the motions for reconsideration of prompting Africa to file before the Court
a second petition, challenging the Sandiganbayan Resolutions authorizing the holding of a stockholders
meeting and the one denying the motion for reconsideration.

ISSUES:

1. Whether or not the Sandiganbayan gravely abused its discretion in ordering the holding of a
stockholders meeting to elect the ETPI board of directors without first setting in place, through the
amendment of the articles of incorporation and the by-laws of ETPI 2. Whether the PCGG can vote the
sequestered ETPI Class “A” shares in the stockholders meeting for the election of the board of directors.

HELD:

First Issue :
On the PCGG’s imputation of grave abuse of discretion upon the Sandiganbayan for ordering the
holding of a stockholders meeting to elect the ETPI board of directors without first setting in place, through
the amendment of the articles of incorporation and the by-laws of ETPI, the safeguards prescribed in
Cojuangco, Jr. v. Roxas. The Court laid down those safeguards because of the obvious need to reconcile
the rights of the stockholder whose shares have been sequestered and the duty of the conservator to
preserve what could be ill-gotten wealth. There is nothing in the Cojuangco case that would suggest that
the above measures should be incorporated in the articles and by-laws before a stockholders meeting
for the election of the board of directors is held. The PCGG nonetheless insists that those measures should
be written in the articles and by-laws before such meeting, “otherwise, the {Marcos] cronies will elect
themselves or their representatives, control the corporation, and for an appreciable period of time, have
every opportunity to disburse funds, destroy or alter corporate records, and dissipate assets.” That could
be a possibility, but the peculiar circumstances of the case require that the election of the board of
directors first be held before the articles of incorporation are amended. Section 16 of the Corporation
Code requires the majority vote of the board of directors to amend the articles of incorporation. At the
time Africa filed his motion for the holding of the annual stockholders meeting, there were two sets of ETPI
directors, one controlled by the PCGG and the other by the registered stockholders. Which of them is the
legitimate board of directors? Which of them may rightfully vote to amend the articles of incorporation
and integrate the safeguards laid down in Cojuangco? It is essential, therefore, to cure the aberration of
two boards of directors sitting in a single corporation before the articles of incorporation are amended
to set in place the Cojuangco safeguards. The danger of the so-called Marcos cronies taking control of
the corporation and dissipating its assets is, of course, a legitimate concern of the PCGG, charged as it
is with the duties of a conservator. Nevertheless, such danger may be averted by the “substantially
contemporaneous” amendment of the articles after the election of the board.
Second Issue :
The principle laid down in Baseco vs. PCGG was further enhanced in the subsequent cases of Cojuangco
v. Calpo and Presidential Commission on Good Government v. Cojuangco, Jr., where the Court
developed a “two-tiered” test in determining whether the PCGG may vote sequestered shares. The issue
of whether PCGG may vote the sequestered shares in SMC necessitates a determination of at least two
factual matters: a.) whether there is prima facie evidence showing that the said shares are ill-gotten and
thus belong to the state; and b.) whether there is an immediate danger of dissipation thus necessitating
their continued sequestration and voting by the PCGG while the main issue pends with the
Sandiganbayan. The two-tiered test, however, does not apply in cases involving funds of “public
character.” In such cases, the government is granted the authority to vote said shares, namely: (1) Where
government shares are taken over by private persons or entities who/which registered them in their own
names, and (2) Where the capitalization or shares that were acquired with public funds somehow landed
in private hands. In short, when sequestered shares registered in the names of private individuals or
entities are alleged to have been acquired with ill-gotten wealth, then the two-tiered test is applied.
However, when the sequestered shares in the name of private individuals or entities are shown, prima
facie, to have been (1) originally government shares, or (2) purchased with public funds or those affected
with public interest, then the two-tiered test does not apply. The rule in the jurisdiction is, therefore, clear.
The PCGG cannot perform acts of strict ownership of sequestered property. It is a mere conservator. It
may not vote the shares in a corporation and elect members of the board of directors. The only
conceivable exception is in a case of a takeover of a business belonging to the government or whose
capitalization comes from public funds, but which landed in private hands as in BASECO. In short, the
Sandiganbayan held that the public character exception does not apply, in which case it should have
proceeded to apply the two-tiered test. This it failed to do. The questions thus remain if there is prima
facie evidence showing that the subject shares are ill- gotten and if there is imminent danger of
dissipation. The Court is not, however, a trier of facts, hence, it is not in a position to rule on the correctness
of the PCGG’s contention. Consequently, the issue must be remanded to the Sandiganbayan for
resolution.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. Nos. 212140-41 January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,

vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL
BUREAU OF INVESTIGATION and ATTY. LEVITO D. BALIGOD, Respondents.

DECISION

CARPIO, J.:

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court
expressly provides that the respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order
and/or Writ of Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman),
Field Investigation Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty.
Levito D. Baligod (Atty. Baligod) (collectively, respondents), from conducting further proceedings in
OMB-CC-13-03013 and OMB-C-C-13-0397 until the present Petition has been resolved with finality; and
(2) this Court’s declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen. Estrada)was denied
due process of law, and that the Order of the Ombudsman dated 27 March 2014 and the proceedings
in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of the
challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose
"Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act
(RA) No. 7080, while OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v.
Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder as defined underRA No. 7080
and for violation of Section 3(e) of RA No. 3019 (Anti-Graft and Corrupt Practices Act).

The Facts

On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-
C-13-0313, filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings
for Plunder as defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-
affidavit inOMB-C-C-13-0313 on 9 January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-
C-13-0397, filed by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings
for Plunder, as defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted
against Sen. Estrada. Sen. Estrada filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.

Eighteen of Sen. Estrada’s co-respondents in the two complaints filed their counter-affidavits between 9
December 2013 and 14 March 2014.5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of
the Other Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In
his Request, Sen. Estrada asked for copies of the following documents:

(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);

(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);

(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);

(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or

additional witnesses for the Complainants.6

Sen. Estrada’s request was made "[p]ursuant to the right of a respondent ‘to examine the evidence
submitted by the complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the
Rules of Court) and to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent
portions of the assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of
the Rules of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman]
do not entitle respondent [Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause …

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the
Office of the Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the
complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondents to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on the complainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a
copy of the Complaint and its supporting affidavits and documents; and this Office complied with this
requirement when it furnished [Sen. Estrada] with the foregoing documents attached to the Orders to
File Counter-Affidavit dated 19 November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Office’s Rules of Procedure which entitles
respondent to be furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis
Cunanan, Gondelina G. Amata and Mario L. Relampagos themselves are all respondents in these
cases. Under the Rules of Court as well as the Rules of Procedure of the Office of the Ombudsman, the
respondents are only required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation
depend on the rights granted to him by law and these cannot be based on whatever rights he believes
[that] he is entitled to or those that may be derived from the phrase "due process of law." Thus, this
Office cannot grant his motion to be furnished with copies of all the filings by the other parties.
Nevertheless, he should be furnished a copy of the Reply of complainant NBI as he is entitled thereto
under the rules; however, as of this date, no Reply has been filed by complainant NBI.

WHEREFORE, respondent [Sen.] Estrada’s Request to be Furnished with Copies of Counter-Affidavits of

the Other Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless
entitled to be furnished a copy of the Reply if complainant opts to file such pleading.8 (Emphases in the
original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint

Resolution9 which found probable cause to indict Sen. Estrada and his co-respondents with one count
of plunder and 11 counts of violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for
Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed
for the issuance of a new resolution dismissing the charges against him. Without filing a Motion for
Reconsideration of the Ombudsman’s 27 March 2014 Order denying his Request, Sen. Estrada filed the
present Petition for Certiorari under Rule 65 and sought to annul and set aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014, ACTED
WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE
PROCESS OF LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no appeal or any
other plain, speedy, and adequate remedy in the ordinary course of law, except through this
Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of
preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-
13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has
been denied due process of law, and as a consequence thereof, (b) the Order dated 27 March 2014,
as well as the proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected
bythe issuance of the 27 March 2014 Order, are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a
Joint Order furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata,
Relampagos, Francisco Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-
C-C-13-0313 and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of
counter-affidavits of his co-respondents deprived him of his right to procedural due process, and he has
filed the present Petition before thisCourt. The Ombudsman denied Sen. Estrada’s motion to suspend in
an Order dated 15 May 2014. Sen. Estrada filed a motion for reconsideration of the Order dated 15
May 2014 but his motion was denied in an Order dated 3 June 2014.

As of 2 June 2014,the date of filing of the Ombudsman’s Comment to the present Petition, Sen. Estrada
had not filed a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman
issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by
the other respondents, Sen. Estrada’s motion for reconsideration dated 7 April 2014. The pertinent
portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estrada’s request for copies of Tuason, Cunanan, Amata, Relampagos,
Figura, Buenaventura and Sevidal’s affidavits was denied by Order dated 27 March 2014 and before
the promulgation of the assailed Joint Resolution, this Office thereafter reevaluated the request and
granted it byOrder dated 7 May 2014 granting his request. Copies of the requested counter-affidavits
were appended to the copy of the Order dated 7 May 2014 transmitted to Senator Estrada through
counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named co-respondents’ claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to
procedural due process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the
Officeof the Solicitor General, filed their Comment to the present Petition. The public respondents
argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.

A. LITIS PENDENTIA EXISTS IN THIS CASE.

B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY COURSE
OF LAW.

III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR TEMPORARY

RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen.
Estrada’s resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed
a motion for reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in his
motion for reconsideration of the 28 March 2014 Joint Resolution. There was also no violation of Sen.
Estrada’s right to due process because there is no rule which mandates that a respondent such as Sen.
Estrada be furnished with copies of the submissions of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents’ Comment. Sen. Estrada insisted
that he was denied due process. Although Sen. Estrada received copies of the counter-affidavits of
Cunanan, Amata, Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuason’s counter-
affidavits, heclaimed that he was not given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;

d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO
Complaint);
 f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI
Complaint);

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;

i) Counter-affidavit of Maria Ninez P. Guañizo dated 28 January 2014;

j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and

k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the
Petition isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order
because there is a recurring violation of his right to due process. Sen. Estrada also insists that
there is no forum shopping as the present Petition arose from an incident in the main
proceeding, and that he has no other plain, speedy, and adequate remedy in the ordinary
course of law. Finally, Sen. Estrada reiterates his application for the issuance of a temporary
restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Court’s Ruling

Considering the facts narrated above, the Ombudsman’s denial in its 27 March 2014 Order of Sen.
Estrada’s Request did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen.
Estrada’s constitutional right to due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the
counter-affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as
Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready
reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. — The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the
affidavits of the complainant and his witnesses, as well as other supporting documents to
establish probable cause. They shall be in such number of copies as there are respondents, plus
two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oath, or, in their absence or
unavailability, before a notary public, each of who must certify thathe personally examined
the affiants and that he is satisfied that they voluntarily executed and understood their
affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either
dismiss it if he finds no ground to continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting affidavits and
documents. The respondent shall have the right to examine the evidence submitted by the
complainant which he may not have been furnished and to copy them at his expense. If the
evidence is voluminous, the complainant may be required to specify those which he intends to
present against the respondent, and these shall be made available for examination or copying
by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party.
 (c) Within ten (10) days from receipt of the subpoena with the complaint and supporting
affidavits and documents, the respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his defense. The counter-affidavits
shall be subscribed and sworn to and certified as provided in paragraph (a) of this section, with
copies thereof furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a
party ora witness. The parties can be present at the hearing but without the right to examine or
cross-examine. They may, however, submit to the investigating officer questions which may be
asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and
other documents or from the expiration of the period for their submission. It shall be terminated
within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether
or not there is sufficient ground to hold the respondent for trial. Section 4. Resolution of
investigating prosecutor and its review.— If the investigating prosecutor finds cause to hold the
respondent for trial, he shall prepare the resolution and information. He shall certify under oath
in the information that he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is reasonable ground to believe that a
crime has been committed and that the accused is probably guilty thereof; that the accused
was informed of the complaint and of the evidence submitted against him; and that he was
given an opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial
or city prosecutor or chief state prosecutor, or to the Ombudsman orhis deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its original jurisdiction. They shall
act on the resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action.

No complaint or information may be filed or dismissed by an investigating prosecutor without the prior
written authority or approval of the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy.

Where the investigating prosecutor recommends the dismissal of the complaint but his
recommendation is disapproved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the latter may, by himself, file
the information against the respondent, or direct any other assistant prosecutor or state prosecutor to
do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or
chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding
information without conducting another preliminary investigation, or to dismiss or move for dismissal of
the complaint or information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman. From the Rules of Procedure
of the Office of the Ombudsman, Administrative Order No. 7, Rule II: Procedure in Criminal Cases

Section 1. Grounds. — A criminal complaint may be brought for an offense in violation of R.A. 3019,as
amended, R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code,
and for such other offenses committed by public officers and employees in relation to office.
Sec. 2. Evaluation. — Upon evaluating the complaint, the investigating officer shall recommend
whether it may be:

a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) indorsed to the proper government office or agency which has jurisdiction over the case;

d) forwarded to the appropriate office or official for fact-finding investigation;

e) referred for administrative adjudication; or

f) subjected to a preliminary investigation.

Sec. 3. Preliminary investigation; who may conduct.— Preliminary investigation may be conducted by
any of the following:

1) Ombudsman Investigators;

2) Special Prosecuting Officers;

3) Deputized Prosecutors;

4) Investigating Officials authorized by law to conduct preliminary investigations; or

5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. — The preliminary investigation of cases falling under the jurisdiction of the
Sandiganbayan and Regional Trial Courts shall be conducted in the manner prescribed in Section 3,
Rule 112 of the Rules of Court, subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer
shall require the complainant or supporting witnesses to execute affidavits to substantiate the
complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order,
attaching thereto a copy of the affidavits and other supporting documents, directing the
respondent to submit, within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on thecomplainant. The complainant
may file reply affidavits within ten (10) days after service of the counter-affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the
comment filed by him, if any, as his answer to the complaint. In any event, the respondent shall
have access to the evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for
a bill of particulars be entertained. If respondent desires any matter in the complainant’s
affidavit to be clarified, the particularization thereof may be done at the time of clarificatory
questioning in the manner provided in paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or
having been served, does not comply therewith, the complaint shall be deemed submitted for
resolution on the basis of the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts
material to the case which the investigating officer may need to be clarified on, he may
conduct a clarificatory hearing during which the parties shall be afforded the opportunity to
 be present but without the right to examine or cross-examine the witness being questioned.
Where the appearance of the parties or witnesses is impracticable, the clarificatory
questioning may be conducted in writing, whereby the questions desired to be asked by the
investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward
the records of the case together with his resolution to the designated authorities for their
appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or
approval of the Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the
proper Deputy Ombudsman in all other cases.

xxxx

Sec. 6. Notice to parties.— The parties shall be served with a copy of the resolution as finally approved
by the Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration.— a) Only one (1) motion for reconsideration or reinvestigation of
anapproved order or resolution shall be allowed, the same to be filed within fifteen (15) days from
notice thereof with the Office of the Ombudsman, or the proper deputy ombudsman as the case may
be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding
Information in court on the basis of the finding of probable cause in the resolution subject of the
motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents
violates his constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which
states that it is a compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his co-respondents. Neither Section
3(b), Rule 112 of the Revised Rules of Criminal Procedure nor Section 4(c), Rule II of the Rules of
Procedure of the Office of the Ombudsman supports Sen. Estrada’s claim. What the Rules of Procedure
of the Office of the Ombudsman require is for the Ombudsman to furnish the respondent with a copy of
the complaint and the supporting affidavits and documents at the time the order to submit the
counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules of
Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant
and his witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten
(10) days from receipt thereof, his counter-affidavits x x x." At this point, there is still no counter-affidavit
submitted by any respondent. Clearly, what Section 4(b) refers to are affidavits of the complainant and
his witnesses, not the affidavits of the co-respondents. Obviously, the counter-affidavits of the co-
respondents are not part of the supporting affidavits of the complainant. No grave abuse of discretion
can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order which denied
Sen. Estrada’s Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a
respondent "shall have access to the evidence on record," this provision should be construed in relation
to Section 4(a) and (b) of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a)
states that "theinvestigating officer shall require the complainant or supporting witnesses to execute
affidavits to substantiate the complaint." The "supporting witnesses" are the witnesses of the
complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy
of the affidavits and all other supporting documents, directing the respondent" tosubmit his counter-
affidavit. The affidavits referred to in Section 4(b) are the affidavits mentioned in Section
4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and
his supporting witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II
that a respondent shall have "access to the evidence on record" does not stand alone, but should be
read in relation to the provisions of Section 4(a and b) of the same Rule II requiring the investigating
officer to furnish the respondent with the "affidavits and other supporting documents" submitted by "the
complainant or supporting witnesses." Thus, a respondent’s "access to evidence on record" in Section
4(c), Rule II of the Ombudsman’s Rules of Procedure refers to the affidavits and supporting documents
of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent
shall have the right to examine the evidence submitted by the complainant which he may not have
been furnished and to copy them at his expense." A respondent’s right to examine refers only to "the
evidence submitted by the complainant."

Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the
Ombudsman’s Rules of Procedure, there is no requirement whatsoever that the affidavits executed by
the corespondents should be furnished to a respondent. Justice Velasco’s dissent relies on the ruling in
Office of the Ombudsman v. Reyes (Reyes case),15 an administrative case, in which a different set of
rules of procedure and standards apply. Sen. Estrada’s Petition, in contrast, involves the preliminary
investigation stage in a criminal case. Rule III on the Procedure in Administrative Cases of the Rules of
Procedure of the Office of the Ombudsman applies in the Reyes case, while Rule II on the Procedure in
Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in Sen. Estrada’s
Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy.16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Peñaloza, who
were both employees of the Land Transportation Office. Peñaloza submitted his counter-affidavit, as
well as those of his two witnesses. Reyes adopted his counter-affidavit in another case before the
Ombudsman as it involved the same parties and the same incident. None of the parties appeared
during the preliminary conference. Peñaloza waived his right to a formal investigation and was willing
to submit the case for resolution based on the evidence on record. Peñaloza also submitted a counter-
affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and dismissed
him from the service. On the other hand, Peñaloza was found guilty of simple misconduct and
penalized with suspension from office without pay for six months. This Court agreed with the Court of
Appeals’ finding that Reyes’ right to due process was indeed violated. This Court remanded the records
of the case to the Ombudsman, for two reasons: (1) Reyes should not have been meted the penalty of
dismissal from the service when the evidence was not substantial, and (2) there was disregard of Reyes’
right to due process because he was not furnished a copy of the counter-affidavits of Peñaloza and of
Peñaloza’s three witnesses. In the Reyes case, failure to furnish a copy of the counter-affidavits
happened in the administrative proceedings on the merits, which resulted in Reyes’ dismissal from the
service. In Sen. Estrada’s Petition, the denial of his Request happened during the preliminary
investigation where the only issue is the existence of probable cause for the purpose of determining
whether an information should be filed, and does not prevent Sen. Estrada from requesting a copy of
the counter-affidavits of his co-respondents during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative

case and a criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether
the cases to which they are meant to apply are criminal, civil or administrative in character. In criminal
actions, proof beyond reasonable doubt is required for conviction;in civil actions and proceedings,
preponderance of evidence, as support for a judgment; and in administrative cases, substantial
evidence, as basis for adjudication. In criminal and civil actions, application of the Rules of Court is
called for, with more or less strictness. In administrative proceedings, however, the technical rules of
pleadingand procedure, and of evidence, are not strictly adhered to; they generally apply only
suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited.17

It should be underscored that the conduct of a preliminary investigation is only for the determination of
probable cause, and "probable cause merely implies probability of guilt and should be determined in a
summary manner. A preliminary investigation is not a part of the trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his
accusers to establish his innocence."18Thus, the rights of a respondent in a preliminary investigation are
limited to those granted by procedural law.

A preliminary investigation is defined as 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. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to "engender a well founded belief" as tothe fact of the commission of a crime and
the respondent's probable guilt thereof. 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. We are in accord with the state prosecutor’s findings in the case at bar that
there exists prima facie evidence of petitioner’s involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.

Likewise devoid of cogency is petitioner’s argument that the testimonies of Galarion and Hanopol are
inadmissible as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-
examine the witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court
expressly provides that the respondent shall only have the right to submit a counter-affidavit, to
examine all other evidence submitted by the complainant and, where the fiscal sets a hearing to
propound clarificatory questions to the parties or their witnesses, to be afforded an opportunity to be
present but without the right to examine or cross-examine. Thus, even if petitioner was not given the
opportunity to cross-examine Galarion and Hanopol atthe time they were presented to testify during
the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-
examine them at the preliminary investigation precisely because such right was never available to him.
The admissibility or inadmissibility of said testimonies should be ventilated before the trial court during
the trial proper and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and
control over the conduct of a preliminary investigation. If by its very nature a preliminary investigation
could be waived by the accused, we find no compelling justification for a strict application of the
evidentiary rules. In addition, considering that under Section 8, Rule 112 of the Rules of Court, the record
of the preliminary investigation does not form part of the record of the case in the Regional Trial Court,
then the testimonies of Galarion and Hanopol may not be admitted by the trial court if not presented in
evidence by the prosecuting fiscal. And, even if the prosecution does present such testimonies,
petitioner can always object thereto and the trial court can rule on the admissibility thereof; or the
petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol
for purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velasco’s dissent overlooked a vital portion of the Court
of Appeals’ reasoning. This Court quoted from the Court of Appeals’ decision: "x x x [A]dmissions made
by Peñaloza in his sworn statement are binding only on him. Res inter alios act a alteri nocere non
debet. The rights of a party cannot be prejudiced by an act, declaration or omission of another." In
OMB-C-C-13-0313 and OMB-C-C-13-0397, the admissions of Sen. Estrada’s co-respondents can in no
way prejudice Sen. Estrada. Even granting Justice Velasco’s argument that the 28 March 2014 Joint
Resolution in OMB-C-C-13-0313 and OMB-C-C-13-039720mentioned the testimonies of Sen. Estrada’s
corespondents like Tuason and Cunanan, their testimonies were merely corroborative of the testimonies
of complainants’ witnesses Benhur Luy, Marina Sula, and Merlina Suñas and were not mentioned in
isolation from the testimonies of complainants’ witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to
establish its finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and
OMB-CC-13-0397 was judicially confirmed by the Sandiganbayan, when it examined the evidence,
found probable cause, and issued a warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brion’s assertion that "the due process standards that at the very
least should be considered in the conduct of a preliminary investigation are those that this Court first
articulated in Ang Tibay v. Court of Industrial Relations [Ang Tibay]."21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations in criminal cases. An
application of the Ang Tibay guidelines to preliminary investigations will have absurd and disastrous
consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as
the "fundamental and essential requirements of due process in trials and investigations of an
administrative character."22These requirements are "fundamental and essential" because without these,
there isno due process as mandated by the Constitution. These "fundamental and essential
requirements" cannot be taken away by legislation because theyare part of constitutional due process.
These "fundamental and essential requirements" are:

(1) The first of these rights is the right to a hearing, which includes the right of the party
interested or affected to present his own case and submit evidence in support thereof. x x x.

(2) Not only must the party be given an opportunity to present his case and adduce evidence
tending to establish the rights which he asserts but the tribunal must consider the evidence
presented. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a
necessity which cannot be disregarded, namely, that of having something to support its
decision. A decision with absolutely nothing to support it is a nullity, x x x."

(4) Not only must there be some evidence to support a finding or conclusion, but the evidence
must be "substantial." "Substantial evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." x x x.

(5) The decision must be rendered on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected. x x x.

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own
independent consideration of the law and facts of the controversy, and not simply accept the
views of a subordinate in arriving at a decision. x x x.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in
sucha manner that the parties to the proceeding can know the various issues involved, and
the reasons for the decisions rendered. The performance of this duty is inseparable from the
authority conferred upon it.23

The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA24 (GSIS): "what Ang Tibay failed to
explicitly state was, prescinding from the general principles governing due process, the requirement of
an impartial tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not
sit as judge and jury simultaneously, neither may he review his decision on appeal."25 The GSIS
clarification affirms the non applicability of the Ang Tibay guidelines to preliminary investigations in
criminal cases: The investigating officer, which is the role that the Office of the Ombudsman plays in the
investigation and prosecution of government personnel, will never be the impartial tribunal required in
Ang Tibay, as amplified in GSIS. The purpose of the Office of the Ombudsman in conducting a
preliminary investigation, after conducting its own factfinding investigation, is to determine probable
cause for filing an information, and not to make a final adjudication of the rights and obligations of the
parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the
corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak
cases that will only be dismissed, as well as to spare a person from the travails of a needless
prosecution.26 The Ombudsman and the prosecution service under the control and supervision of the
Secretary of the Department of Justice are inherently the fact-finder, investigator, hearing officer, judge
and jury of the respondent in preliminary investigations. Obviously, this procedure cannot comply with
Ang Tibay, as amplified in GSIS. However, there is nothing unconstitutional with this procedure because
this is merely an Executive function, a part of the law enforcement process leading to trial in court
where the requirements mandated in Ang Tibay, as amplified in GSIS, will apply. This has been the
procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as amplified in
GSIS, should apply to preliminary investigations will mean that all past and present preliminary
investigations are in gross violation of constitutional due process.

Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed
his Request, is not yet an accused person, and hence cannot demand the full exercise of the rights of
an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime
has been committed and was committed by the suspects. Probable cause need not be based on
clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v.
United States, while probable cause demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of probable cause merely binds over the
suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause,
wealso hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses
for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the
sound discretion of the investigator and the investigator alone. If the evidence on hand already yields
a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise
of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In
the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to
establish probable cause and clarificatory hearing was unnecessary.27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez,28 that the
"rights conferred upon accused persons to participate in preliminary investigations concerning
themselves depend upon the provisions of law by which such rights are specifically secured, rather than
upon the phrase ‘due process of law’." This reiterates Justice Jose P. Laurel’s oft-quoted
pronouncement in Hashim v. Boncan29 that "the right to a preliminary investigation is statutory, not
constitutional." In short, the rights of a respondent ina preliminary investigation are merely statutory
rights, not constitutional due process rights. An investigation to determine probable cause for the filing
of an information does not initiate a criminal action so as to trigger into operation Section 14(2), Article
III of the Constitution.30 It is the filing of a complaint or information in court that initiates a criminal
action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are
granted by the Constitution; hence, these rights cannot be taken away by merelegislation. On the
other hand, as repeatedly reiterated by this Court, the right to a preliminary investigation is merely a
statutory right,32 not part of the "fundamental and essential requirements" of due process as prescribed
in Ang Tibay and amplified in GSIS. Thus, a preliminary investigation can be taken away by legislation.
The constitutional right of an accused to confront the witnesses against him does not apply in
preliminary investigations; nor will the absence of a preliminary investigation be an infringement of his
right to confront the witnesses against him.33 A preliminary investigation may be done away with
entirely without infringing the constitutional right of an accused under the due process clause to a fair
trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the
evidenceneeded in a preliminary investigation to establish probable cause, or to establish the
existence of a prima facie case that would warrant the prosecution of a case. Ang Tibay refers to
"substantial evidence," while the establishment of probable cause needs "only more than ‘bare
suspicion,’ or ‘less than evidence which would justify . . . conviction’." In the United States, from where
we borrowed the concept of probable cause,35 the prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly
correlative to what must be proved.
"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt."
McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And
this "means less than evidence which would justify condemnation" or conviction, as Marshall, C. J., said
for the Court more than a century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshall’s
time, at any rate, it has come to mean more than bare suspicion: Probable cause exists where "the
facts and circumstances within their [the officers’] knowledge and of which they had reasonably
trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the
belief that" an offense has been or is being committed. Carroll v. United States, 267 U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences
with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the
law in the community’s protection. Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must be allowed for some mistakes on their
part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their
conclusions of probability. The rule of probable cause is a practical, non technical conception
affording the best compromise that has been found for accommodating these often opposing
interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-
abiding citizens at the mercy of the officers’ whim or caprice.36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable
cause is needed to be established:

(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to determine whether there is
sufficient ground to engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof, and should be held for trial. A preliminary investigation is
required before the filing of a complaint or information for an offense where the penalty
prescribed by law is at least four years, two months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a
commitment order, if the accused has already been arrested, shall be issued and that there is
a necessity of placing the respondent under immediate custody in order not to frustrate the
ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless
arrest when an offense has just been committed, and he has probable cause to believe based
on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be
issued, and only upon probable cause in connection with one specific offense to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the
likelihood, or probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v.
Tan37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not,
a crime has been committed and there is enough reason to believe that it was committed by the
accused. It need not be based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. What is merely required is "probability of guilt." Its determination,
too, does not call for the application of rules or standards of proof that a judgment of conviction
requires after trial on the merits. Thus, in concluding that there is probable cause, it suffices that it is
believed that the act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend on the validity
or merits of a party’s accusation or defense or on the admissibility or veracity of testimonies presented.
As previously discussed, these matters are better ventilated during the trial proper of the case. As held
in Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as the existence of such facts and circumstances as would excite
the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the
person charged was guilty of the crime for which he was prosecuted. x x x. The term does not mean
"actual or positive cause" nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is
sufficient evidence to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence
of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brion’s pronouncement in Unilever that "the determination of probable cause does not depend
on the validity or merits of a party’s accusation or defense or on the admissibility or veracity of
testimonies presented" correctly recognizes the doctrine in the United States that the determination of
probable cause can rest partially, or even entirely, on hearsay evidence, as long as the person making
the hearsay statement is credible. In United States v. Ventresca,38 the United States Supreme Court
held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the
term ‘probable cause’ . . . means less than evidence which would justify condemnation," Locke v.
United States, 7 Cranch 339, 11 U.S. 348, and that a finding of "probable cause" may rest upon
evidence which is not legally competent in a criminal trial. Draper v. United States, 358 U.S. 307, 358 U.S.
311. As the Court stated in Brinegar v. United States, 338 U.S. 160, 173, "There is a large difference
between the two things tobe proved (guilt and probable cause), as well as between the tribunals
which determine them, and therefore a like difference in the quanta and modes of proof required to
establish them." Thus, hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a
substantial basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar,
we recognized that "an affidavit may be based on hearsay information and need not reflect the direct
personal observations of the affiant," so long as the magistrate is "informed of some of the underlying
circumstances" supporting the affiant’s conclusions and his belief that any informant involved "whose
identity need not be disclosed . . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at
378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights
and obligations of parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is "substantial evidence" which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because substantial
evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require
the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum
of evidence required in determining probable cause from evidence of likelihood or probability of guilt
to substantial evidence of guilt.

It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused
and the right to a preliminary investigation. To treat them the same will lead toabsurd and disastrous
consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the
preliminary investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS.
Preliminary investigations are conducted by prosecutors, who are the same officials who will determine
probable cause and prosecute the cases in court. The prosecutor is hardly the impartial tribunal
contemplated in Ang Tibay, as amplified in GSIS. A reinvestigation by an investigating officer outside of
the prosecution service will be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This will
require a new legislation. In the meantime, all pending criminal cases in all courts will have to be
remanded for reinvestigation, to proceed only when a new law is in place. To require Ang Tibay, as
amplified in GSIS, to apply to preliminary investigation will necessarily change the concept of
preliminary investigation as we know it now. Applying the constitutional due process in Ang Tibay, as
amplified in GSIS, to preliminary investigation will necessarily require the application of the rights of an
accused in Section 14(2), Article III of the 1987 Constitution. This means that the respondent can
demand an actual hearing and the right to cross-examine the witnesses against him, rights which are
not afforded at present toa respondent in a preliminary investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary
investigations but even to those convicted by final judgment and already serving their sentences. The
rule is well-settled that a judicial decision applies retroactively if it has a beneficial effect on a person
convicted by final judgment even if he is already serving his sentence, provided that he is not a
habitual criminal.39 This Court retains its control over a case "until the full satisfaction of the final
judgment conformably with established legal processes."40 Applying Ang Tibay, as amplified in GSIS, to
preliminary investigations will result in thousands of prisoners, convicted by final judgment, being set free
from prison.

Second. Sen. Estrada’s present Petition for Certiorari is premature.

Justice Velasco’s dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal
prosecution incourt" because there is "a pending question regarding the Ombudsman’s grave abuse of
its discretion preceding the finding of a probable cause to indict him." Restated bluntly, Justice
Velasco’s dissent would like this Court to conclude that the mere filing of the present Petition for
Certiorari questioning the Ombudsman’s denial of Sen. Estrada’s Request should have, by itself, voided
all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estrada’s Request, the
Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada
filed the present Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-
0397 that furnishedSen. Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina
Amata, Mario Relampagos, Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed
him to comment within a non-extendible period of five days from receipt of said Order. Sen. Estrada did
not file any comment, as noted in the 4 June 2014 Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estrada’s Motion for
Reconsideration ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada
and his corespondents with one count of plunder and 11 counts of violation of Section 3(e), Republic
Act No. 3019. In this 4 June 2014 Joint Order, the Ombudsman stated that "[t]his Office, in fact, held in
abeyance the disposition of motions for reconsideration in this proceeding in light of its grant to Senator
Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the above-
named respondents’ claims."

We underscore Sen. Estrada’s procedural omission. Sen. Estrada did not file any pleading, much less a
motion for reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately
proceeded to file this Petition for Certiorari before this Court. Sen. Estrada’s resort to a petitionfor
certiorari before this Court stands in stark contrast to his filing of his 7 April 2014 Motion for
Reconsideration of the 28 March 2014 Joint Resolution finding probable cause. The present Petition for
Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and
legal errors. Sen. Estrada, however, failed to present a compelling reason that the present Petition falls
under the exceptions41 to the general rule that the filing of a motion for reconsideration is required prior
to the filing of a petition for certiorari. This Court has reiterated in numerous decisions that a motion for
reconsideration is mandatory before the filing of a petition for certiorari.42

Justice Velasco’s dissent faults the majority for their refusal to apply the Reyes case to the present
Petition. Justice Velasco’s dissent insists that "this Court cannot neglect to emphasize that, despite the
variance in the quanta of evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."

As we try to follow Justice Velasco’s insistence, we direct Justice Velasco and those who join him in his
dissent to this Court’s ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that
"[t]he law can no longer help one who had been given ample opportunity to be heard but who did
not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case before the Ombudsman. The
Ombudsman found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course
of her official functions and imposed on her the penalty of reprimand. Petitioner filed a motion for
reconsideration of the decision on the ground that she was not furnished copies of the affidavits of the
private respondent’s witnesses. The Ombudsman subsequently ordered that petitioner be furnished with
copies of the counter-affidavits of private respondent’s witnesses, and that petitioner should "file, within
ten (10) days from receipt of this Order, such pleading which she may deem fit under the
circumstances." Petitioner received copies of the affidavits, and simply filed a manifestation where she
maintained that her receipt of the affidavits did not alter the deprivation of her right to due process or
cure the irregularity in the Ombudsman’s decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondent’s witnesses afterthe Ombudsman
rendered a decision against her. We disposed of petitioner’s deprivation of due process claim in this
manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust
all the administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as
exhaustion of administrative remedies is a requisite for the filing of a petition for certiorari. Other than
this legal significance, however, the ruling necessarily carries the direct and immediate implication that
the petitioner has been granted the opportunity to be heard and has refused to avail of this
opportunity; hence, she cannot claim denial of due process. In the words of the CA ruling itself:
"Petitioner was given the opportunity by public respondent to rebut the affidavits submitted by private
respondent. . . and had a speedy and adequate administrative remedy but she failed to avail thereof
for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and
distinct concepts, exhaustion of administrative remedies and due process embody linked and related
principles. The "exhaustion" principle applies when the ruling court or tribunal is not given the
opportunity tore-examine its findings and conclusions because of an available opportunity that a party
seeking recourse against the court or the tribunal’s ruling omitted to take. Under the concept of "due
process," on the other hand, a violation occurs when a court or tribunal rules against a party without
giving him orher the opportunity to be heard. Thus, the exhaustion principle is based on the perspective
of the ruling court or tribunal, while due process is considered from the point of view of the litigating
party against whom a ruling was made. The commonality they share is in the same"opportunity" that
underlies both. In the context of the present case, the available opportunity to consider and
appreciate the petitioner’s counter-statement offacts was denied the Ombudsman; hence, the
petitioner is barred from seeking recourse at the CA because the ground she would invoke was not
considered at all at the Ombudsman level. At the same time, the petitioner – who had the same
opportunity to rebut the belatedly-furnished affidavits of the private respondent’s witnesses – was not
denied and cannot now claim denial of due process because she did not take advantage of the
opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds
(i.e., for the private respondent’s failure to furnish her copies of the affidavits of witnesses) and on
questions relating to the appreciation of the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly furnishing her with copies of the private
respondent’s witnesses, together with the "directive to file, within ten (10) days from receipt of this
Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January 2003
supplying her with the affidavits of the complainant does not cure the 04 November 2002 order," and
on this basis prayed that the Ombudsman’s decision "be reconsidered and the complaint dismissed for
lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated
27 January 2003 and prayed for the denial of the petitioner’s motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioner’s motion for reconsideration
after finding no basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this
Order the due process significance of the petitioner’s failure to adequately respond to the belatedly-
furnished affidavits. The Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits,
which she claims she has not received. Furthermore, the respondent has been given the opportunity to
present her side relative thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due process for purposes of
assailing the Decision issued in the present case. On this score, the Supreme Court held in the case of
People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since, as correctly pointed out by
the complainant, the decision issued in the present case is deemed final and unappealable pursuant
to Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the
clear provisions of the law and the rules, the respondent herein was given the opportunity not normally
accorded, to present her side, but she opted not to do so which is evidently fatal to her cause."
[emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioner’s cause is a lost one, not
only for her failure to exhaust her available administrative remedy, but also on due process grounds.
The law can no longer help one who had been given ample opportunity to be heard but who did not
take full advantage of the proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen.
Estrada’s co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014 Joint
Order. In Ruivivar, the affidavits were furnished after the Ombudsman issued a decision.

Justice Velasco’s dissent cites the cases of Tatad v. Sandiganbayan 46 (Tatad) and Duterte v.
Sandiganbayan47(Duterte) in an attempt to prop up its stand. A careful reading of these cases,
however, would show that they do not stand on all fours with the present case. In Tatad, this Court ruled
that "the inordinate delay in terminating the preliminary investigation and filing the information [by the
Tanodbayan] in the present case is violative of the constitutionally guaranteed right of the petitioner to
due process and to a speedy disposition of the cases against him."48 The Tanod bayan took almost
three years to terminate the preliminary investigation, despite Presidential Decree No. 911’s prescription
of a ten-day period for the prosecutor to resolve a case under preliminary investigation. We ruled
similarly in Duterte, where the petitioners were merely asked to comment and were not asked to file
counter-affidavits as isthe proper procedure in a preliminary investigation. Moreover, in Duterte, the
Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velasco’s dissent, it becomes more apparent that Sen. Estrada’s
present Petition for Certiorari is premature for lack of filing of a motion for reconsideration before the
Ombudsman. When the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even
waited for the lapse of the given period for the filing of his comment, Sen. Estrada failed to avail of the
opportunity to be heard due to his own fault. Thus, Sen. Estrada’s failure cannot in any way be
construed as violation of due process by the Ombudsman, much less of grave abuse of discretion. Sen.
Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estrada’s present Petition for Certiorari constitutes forum shopping and should be summarily
dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014,
Sen. Estrada stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-
13-0313 and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution
dated 28 March 2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis
supplied)

Sen. Estrada’s Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the
Ombudsman reconsider and issue a new resolution dismissing the charges against him. However, in this
Motion for Reconsideration, Sen. Estrada assailed the Ombudsman’s 27 March 2014 Joint Order
denying his Request, and that such denial is a violation of his right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the
Rules of Court] and principles. A reading of the Joint Resolution will reveal that various pieces of
evidence which Senator Estrada was not furnished with – hence, depriving him of the opportunity to
controvert the same – were heavily considered by the Ombudsman in finding probable cause to
charge him with Plunder and with violations of Section 3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies
of Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings," pursuant
to the right of a respondent "to examine the evidence submitted by the complainant which he may
not have been furnished" (Section 3[b], Rule 112 of the Rules of Court), and to "have access to the
evidence on record" (Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the law’s
vigilance in protecting the rights of an accused, the Special Panel of Investigators, in an Order dated
27 March 2014, unceremoniously denied the request on the ground that "there is no provision under this
Office’s Rules of Procedure which entitles respondent to be furnished all the filings by the other parties x
x x x." (Order dated 27 March 2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were
eventually made the bases of the Ombudsman’s finding of probable cause.50

The Ombudsman denied Sen. Estrada’s Motion for Reconsideration in its 4 June 2014 Joint Order.
Clearly, Sen. Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the
violation of his right to due process, the same issue he is raising in this petition. In the verification and
certification of non-forum shopping attached to his petition docketed as G.R. Nos. 212761-62 filed on 23
June 2014, Sen. Estrada disclosed the pendency of the present petition, as well as those before the
Sandiganbayan for the determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsman’s 27 March 2014 Joint Order denying his
Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsman’s finding of probable cause,
which he maintains is without legal or factual basis, but also thatsuch finding of probable cause was
premised on evidence not disclosed tohim, including those subject of his Request to be Furnished with
Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings
dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following
documents –

i. Alexis G. Sevidal’s Counter-Affidavits dated 15 January and 24 February 2014;

ii. Dennis L. Cunanan’s Counter-Affidavits both dated 20 February 2014;

iii. Francisco B. Figura’s Counter-Affidavit dated 08 January 2014;

iv. Ruby Tuason’s Counter-Affidavits both dated 21 February 2014;

v. Gregoria G. Buenaventura’s Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in
Senate Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of
which were ever furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution,
despite written request.

xxxx

II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28 MARCH
2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN EXCESS
OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADA’S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW
AND TO EQUAL PROTECTION OF THE LAWS.

xxxx

2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the
filing of Sen. Estrada’s comment to the voluminous documents comprisingthe documents it furnished
Sen. Estrada to a "non-extendible" period offive (5) days, making it virtually impossible for Sen. Estrada to
adequately study the charges leveled against him and intelligently respond to them. The Joint Order
also failed to disclose the existence of other counter-affidavits and failed to furnish Sen. Estrada copies
of such counter-affidavits.51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the
"sole issue" he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is
obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsman’s 4 June 2014 Joint
Order which denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada
did not mention that the 4 June 2014 Joint Order stated that the Ombudsman "held in abeyance the
disposition of the motions for reconsideration in this proceeding in light of its grant to [Sen. Estrada] a
period of five days from receipt of the 7 May 2014 [Joint] Order to formally respond to the
abovenamed co-respondent’s claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia.52 To
determine whether a party violated the rule against forum shopping, the most important factor to ask is
whether the elements of litis pendentia are present, or whether a final judgment in one case will
amount to res judicatain another.53Undergirding the principle of litis pendentia is the theory that a party
isnot allowed to vex another more than once regarding the same subject matter and for the same
cause of action. This theory is founded on the public policy that the same matter should not be the
subject of controversy in court more than once in order that possible conflicting judgments may be
avoided, for the sake of the stability in the rights and status of persons.54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that – in the
usual course and because of its nature and purpose – is not covered by the rule on forum shopping.
The exception from the forum shopping rule, however, is true only where a petition for certiorari is
properly or regularly invoked in the usual course; the exception does not apply when the relief sought,
through a petition for certiorari, is still pending with or has as yet to be decided by the respondent
court, tribunal or body exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of the
order assailed via a petition for certiorari under Rule 65, as in the present case. This conclusion is
supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which provides that the
availability of a remedy in the ordinary course of law precludes the filing of a petition for certiorari;
under this rule, the petition’s dismissal is the necessary consequence if recourse to Rule 65 is prematurely
taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings,
or at the very least, to complicated situations, between the RTC and the Court of Appeals. An extreme
possible result is for the appellate court to confirm that the RTC decision is meritorious, yet the RTC may
at the same time reconsider its ruling and recall its order of dismissal. In this eventuality, the result is the
affirmation of the decision that the court a quo has backtracked on. Other permutations depending
on the rulings of the two courts and the timing of these rulings are possible. In every case, our justice
system suffers as this kind of sharp practice opens the system to the possibility of manipulation; to
uncertainties when conflict of rulings arise; and at least to vexation for complications other than conflict
of rulings. Thus, it matters not that ultimately the Court of Appeals may completely agree with the RTC;
what the rule on forum shopping addresses are the possibility and the actuality of its harmful effects on
our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by
the Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending
with the Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this
Petition.

SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and
documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure,
and Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman, Administrative Order
No. 7. Both the Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the
Ombudsman require the investigating officer to furnish the respondent with copies of the affidavits of
the complainant and affidavits of his supporting witnesses. Neither of these Rules require the
investigating officer to furnish the respondent with copies of the affidavits of his co-respondents. The
right of the respondent is only "to examine the evidence submitted by the complainant," as expressly
stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court has unequivocally
ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure expressly
provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory
questions to the parties or their witnesses, to be afforded an opportunity to be present but without the
right to examine or cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the Ombudsman’s
Rule of Procedure, read together, only require the investigating officer to furnish the respondent with
copies of the affidavits of the complainant and his supporting witnesses.1âwphi1 There is no law or rule
requiring the investigating officer to furnish the respondent with copies of the affidavits of his co-
respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen.
Estrada with copies of the counter-affidavits of his co-respondents whom he specifically named, as well
as the counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the motions for reconsideration because the
Ombudsman granted Sen. Estrada five days from receipt of the 7 May 2014 Joint Order to formally
respond to the claims made by his co-respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even accommodated Sen. Estrada beyond what the
Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion. Since this is
a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on
the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere statutory
rights. A law can abolish preliminary investigations without running afoul with the constitutional
requirements of dueprocess as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for
preliminary investigations do not comply, and were never intended to comply, with Ang Tibay, as
amplified in GSIS. Preliminary investigations do not adjudicate with finality rights and obligations of
parties, while administrative investigations governed by Ang Tibay, as amplified in GSIS, so adjudicate.
Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision against the respondent in
the administrative case.In preliminary investigations, only likelihood or probability of guiltis required. To
apply Ang Tibay,as amplified in GSIS,to preliminary investigations will change the quantum of evidence
required to establish probable cause. The respondent in an administrative case governed by Ang
Tibay,as amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against
him. In preliminary investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be
impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In
preliminary investigations, the same public officer may be the investigator and hearing officer at the
same time, or the fact-finder, investigator and hearing officer may be under the control and
supervisionof the same public officer, like the Ombudsman or Secretary of Justice. This explains why
Ang Tibay, as amplified in GSIS, does not apply to preliminary investigations. To now declare that the
guidelines in Ang Tibay, as amplified in GSIS, are fundamental and essential requirements in preliminary
investigations will render all past and present preliminary investigations invalid for violation of
constitutional due process. This will mean remanding for reinvestigation all criminal cases now pending
in all courts throughout the country. No preliminary investigation can proceeduntil a new law
designates a public officer, outside of the prosecution service, to determine probable cause.
Moreover, those serving sentences by final judgment would have to be released from prison because
their conviction violated constitutional due process. Sen. Estrada did not file a Motion for
Reconsideration of the 27 March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the
subject of the present Petition. He should have filed a Motion for R econsideration, in the same manner
that he filed a Motion for Reconsideration of the 15 May 2014 Order denying his motion to suspend
proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is no appeal or
any other plain, speedy and adequate remedy in the ordinary course of law against the acts of the
public respondent.56 The plain, speedy and adequate remedy expressly provided by law is a Motion for
Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure to file a Motion
for Reconsideration renders this Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the
28 March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for
Reconsideration of the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the
resolution of the Ombudsman and instead proceeded to file the present Petition for Certiorari. The
Ombudsman issued a Joint Order on 4 June 2014 and specifically addressed the issue that Sen. Estrada
is raising in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only premature, it also
constitutes forum shopping. WHEREFORE, we DISMISS the Petition for Certiorari in G.R. Nos. 212140-41.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

MARIA LOURDES P.A. SERENO

Chief Justice

PRESBITERO J. VELASCO, JR. TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice

ARTURO D. BRION* DIOSDADO M. PERALTA

Associate Justice Associate Justice

LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO

Associate Justice Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

JOSE CATRAL MENDDOZA BIENVENIDO L. REYES

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE MARVIC M.V.F. LEONEN

Associate Justice Associate Justice

FRANCIS H. JARDELEZA
Associate Justice

CERTIFIC ATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer of the opinion of the
Court.

MARIA LOURDES P.A. SERENO

Chief Justice

Footnotes

* On official leave.

1 273 Phil. 290, 299 (1991). Emphasis supplied.

2 Under Rule 65 of the 1997 Rules of Civil Procedure.

3 OMB-C-C-13-0313 charges the following respondents:

1. Jose "Jinggoy" P. Ejercito Estrada, Senator of the Republic of the Philippines;

2. Janet Lim Napoles, private respondent;

3. Pauline Therese Mary C. Labayen, Deputy Chief of Staff, Office of Sen. Estrada;

4. Ruby Tuason, private respondent;

5. Alan A. Javellana, President, National Agribusiness Corporation (NABCOR);

6. Gondelina G. Amata, President, National Livelihood Development Corporation

(NLDC);

7. Antonio Y. Ortiz, Director General, Technology Resource Center (TRC);

8. Mylene T. Encarnacion, private respondent, President, Countrywide Agri and Rural

Economic and Development Foundation, Inc. (CARED);

9. John Raymund S. De Asis, private respondent, President, Kaupdanan Para sa

Mangunguma Foundation, Inc. (KPMFI);

10. Dennis L. Cunanan, Deputy Director General, TRC;

11. Victor Roman Cojamco Cacal, Paralegal, NABCOR;

12. Romulo M. Relevo, employee, NABCOR;

13. Maria Ninez P. Guañizo, bookkeeper, officer-in-charge, Accounting Division,

NABCOR;

14. Ma. Julie Asor Villaralvo-Johnson, chief accountant, NABCOR;

15. Rhodora Butalad Mendoza, Director for Financial Management Services and Vice
President for Administration and Finance, NABCOR;

16. Gregoria G. Buenaventura, employee, NLDC;

 17. Alexis Gagni Sevidal, Director IV, NLDC;

18. Sofia Daing Cruz, Chief Financial Specialist, NLDC/Project Management Assistant IV,
NLDC;

19. Chita Chua Jalandoni, Department Manager III, NLDC;

20. Francisco Baldoza Figura, employee, TRC;

21. Marivic V. Jover, chief accountant, TRC;

22. Mario L. Relampagos, Undersecretary for Operations, Department of Budget and

Management (DBM);

23-25. Rosario Nuñez (aka Leah), Lalaine Paule (aka Lalaine), Marilou Bare (Malou),
employees at the Office of the Undersecretary for Operations, DBM; and

26. John and Jane Does

4OMB-C-C-13-0397 charges the following respondents for Plunder and Violation of Sec. 3(e) of
RA 3019:

1. Jose "Jinggoy" P. Ejercito Estrada, Senator of the Republic of the Philippines;

2. Pauline Therese Mary C. Labayen, Director IV/Deputy Chief of Staff, Office of Sen.
Estrada;

3. Antonio Y. Ortiz, Director General, TRC;

4. Alan Alunan Javellana, President, NABCOR;

5. Victor Roman Cacal, Paralegal, NABCOR;

6. Maria Ninez P. Guañizo, bookkeeper, officer-in-charge, Accounting Division,

NABCOR;

7. Romulo M. Relevo, employee, NABCOR;

8. Ma. Julie Asor Villaralvo-Johnson, chief accountant, NABCOR;

9. Rhodora Butalad Mendoza, Director, NABCOR;

10. Ma. Rosalinda Lacsamana, Director III, TRC;

11. Marivic V. Jover, Accountant III, TRC;

12. Dennis L. Cunanan, Deputy Director General, TRC;

13. Evelyn Sucgang, employee, NLDC;

14. Chita Chua Jalandoni, Department Manager III, NLDC;

15. Emmanuel Alexis G. Sevidal, Director IV, NLDC;

16. Sofia D. Cruz, Chief Financial Specialist, NLDC; and

 17. Janet Lim Napoles, private respondent.

5These were Tuason, Amata, Buenaventura, Sevidal, Cruz; Sucgang, Javellana, Cacal,
VillaralvoJohnson, Mendoza, Guañizo, Cunanan, Jover, Figura, Nuñez, Paule, Bare, and
Relampagos.

6 Rollo, p. 745.

7 Id.

8Id. at 34-36. Signed by M.A. Christian O. Uy, Graft Investigation and Prosecution Officer IV,
Chairperson, Special Panel of Investigators per Office Order No. 349, Series of 2013.

9 Id. at 579-698. Approved and signed by Ombudsman Conchita Carpio Morales; signed by
M.A. Christian O. Uy, Graft Investigation and Prosecution Officer IV, Chairperson, with Ruth
Laura A. Mella, Graft Investigation and Prosecution Officer II, Francisca M. Serfino, Graft
Investigation and Prosecution Officer II, Anna Francesca M. Limbo, Graft Investigation and
Prosecution Officer II, and Jasmine Ann B. Gapatan, Graft Investigation and Prosecution Officer
I, as members of the Special Panel of Investigators per Office Order No. 349, Series of 2013.

10 Id. at 9.

11 Id. at 3.

12 Id. at 27-28.

13 Joint Order, OMB-C-C-13-0313 and OMB-C-C-13-0397, p. 20.

14Id. at 769. Signed by Francis H. Jardeleza, Solicitor General (now Associate Justice of this
Court); Karl B. Miranda, Assistant Solicitor General; Noel Cezar T. Segovia, Senior State Solicitor;
Lester O. Fiel, State Solicitor; Omar M. Diaz, State Solicitor; Michael Geronimo R. Gomez,
Associate Solicitor; Irene Marie P. Qua, Associate Solicitor; Patrick Joseph S. Tapales, Associate
Solicitor; Ronald John B. Decano, Associate Solicitor; and Alexis Ian P. Dela Cruz, Attorney II.

15 G.R. No. 170512, 5 October 2011, 658 SCRA 626.

16 Sec. 3, Rule V of the Rules of Procedure of the Office of the Ombudsman reads:

Section 3. Rules of Court, application.– In all matters not covered by these rules, the
Rules of Court shall apply in a suppletory manner, or by analogy whenever practicable
and convenient.

17Manila Electric Company v. NLRC, et al.,G.R. No. L-60054, 2 July 1991, 198 SCRA 681, 682.
Citations omitted.

18 Webb v. Hon. De Leon, 317 Phil. 758 (1995).

19 Supra note 1, at 299-300.

20http://www.ombudsman.gov.ph/docs/pressreleases/Senator%20Estrada.pdf (last accessed 7

September 2014).

21 The citation for Ang Tibay is 69 Phil. 635 (1940).

22 Id. at 641-642.

23 Id. at 642-644. Citations omitted

24 357 Phil. 511 (1998).

25 Id. at 533.

26See Ledesma v. Court of Appeals, 344 Phil. 207 (1997). See also United States v. Grant and
Kennedy,18 Phil. 122 (1910).

27 Webb v. Hon. De Leon, supra note 18, at 789. Emphasis supplied.

28 Lozada v. Hernandez, etc., et al., 92 Phil. 1051, 1053 (1953).

29 71 Phil. 216 (1941).

30In all criminal prosecutions, the accused shall be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that he
has been duly notified and his failure to appear is unjustifiable.

31 Crespo v. Judge Mogul, 235 Phil. 465 (1987).

32 Mariñas v. Hon. Siochi, etc., et al.,191 Phil. 698, 718 (1981).

33 See Dequito v. Arellano, 81 Phil. 128, 130 (1948), citing 32 CJS 456.

34 Bustos v. Lucero, 81 Phil. 640, 644 (1948).

35The Fourth Amendment of the United States Constitution reads: "The right of the people to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported
by Oath or affirmation, and particularly describing the place to be searched, and the persons
or things to be seized." See also Ocampo v. United States, 234 U.S. 91 (1914).

36 Brinegar v. United States, 338 U.S. 160, 175-176 (1949).

37 G.R. No. 179367, 29 January 2014, 715 SCRA 36, 49-50. Citations omitted.

38 380 U.S. 102, 107-108 (1965).

39See People v. Delos Santos, 386 Phil. 121 (2000). See also People v. Garcia, 346 Phil. 475
(1997).

40 People v. Gallo, 374 Phil. 59 (1999). See also Echegaray v. Secretary of Justice, 361 Phil. 73
(1999); Bachrach Corporation v. Court of Appeals, 357 Phil. 483 (1998); Lee v. De Guzman, G.R.
No. 90926, 187 SCRA 276, 6 July 1990; Philippine Veterans Bank v. Intermediate Appellate Court,
258-A Phil. 424 (1989); Sps. Lipana v. Development Bank of Rizal, 238 Phil. 246 (1987); Candelario
v. Cañizares, 114 Phil. 672 (1962).

41 As enumerated in Tan v. CA, 341 Phil. 570, 576-578 (1997), the exceptions are:

(a) where the order is a patent nullity, as where the Court a quohad no jurisdiction;

(b) where the questions raised in the certiorari proceeding have been duly raised and
passed uponby the lower court, or are the same as those raised and passed upon in
the lower court;
 (c) where there is an urgent necessity for the resolution of the question and any further
delay would prejudice the interests of the Government or of the petitioner or the
subject matter of the action is perishable;

(d) where, under the circumstances, a motion for reconsideration would be useless;

(e) where petitioner was deprived of due process and there is extreme urgency for
relief;

(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of
such relief by the trial Court is improbable;

(g) where the proceedings in the lower court are a nullity for lack of due process;

(h) where the proceedings was ex parteor in which the petitioner had no opportunity
to object; and

(i) where the issue raised is one purely of law or where public interest is involved.
(Citations omitted)

42Delos Reyes v. Flores, 628 Phil. 170 (2010); Cervantes v. Court of Appeals, 512 Phil. 210 (2005);
Flores v. Sangguniang Panlalawigan of Pampanga, 492 Phil. 377 (2005). See also Bokingo v.
Court of Appeals, 523 Phil. 186 (2006); Yao v. Perello, 460 Phil. 658 (2003).

43 587 Phil. 100 (2008).

44 G.R. No. 170512, 5 October 2011, 658 SCRA 626.

45 Supra note 43, at 113-116. Emphases in the original; citations omitted.

46 242 Phil. 563 (1988).

47 352 Phil. 557 (1998).

48 Supra note 46, at 576.

49 Rollo, p. 30.

50 Id. at 789-791.

51 Petition for Certiorari, G.R. Nos. 212761-62, 20 June 2014, pp. 9-10, 13, 53.

52 For litis pendencia to lie, the following requisites must be satisfied:

1. Identity of parties or representation in both cases;

2. Identity of rights asserted and relief prayed for;

3. The relief must be founded on the same facts and the same basis; and

4. Identity of the two preceding particulars should be such that any judgment, which
may be rendered in the other action, will, regardless of which party is successful,
amount to res judicata on the action under consideration. Sherwill Development
Corporation v. Sitio Sto. Niño Residents Association, Inc., 500 Phil. 288, 301 (2005), citing
Sps. Tirona v. Alejo, 419 Phil. 285 (2001), further citing Tourist Duty Free Shops, Inc. v.
Sandiganbayan, 380 Phil. 328 (2000).
 53 Madara v. Perello, 584 Phil. 613, 629 (2008).

54 Sps. Tirona v. Alejo, 419 Phil. 285, 303 (2001).

55 Supra note 53, at 629-630. Boldfacing supplied; italicization in the original.

56 Interorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 502 (1996).

The Lawphil Project - Arellano Law Foundation

Facts:

Sometime in November and December 2013, the Ombudsman served on Sen. Estrada two (2)
criminal complaints for plunder, among others. Eighteen (18) of Sen. Estrada’s co-respondents in the
two complaints filed their counter-affidavits between 9 December 2013 and 14 March 2014. On 20
March 2014, Sen. Estrada filed his “Request to be Furnished with Copies of Counter-Affidavits of the
Other Respondents, Affidavits of New Witnesses and Other Filings” (the “Request”). Sen. Estrada’s
request was made “[p]ursuant to the right of a respondent ‘to examine the evidence submitted by the
complainant which he may not have been furnished’ (Section 3[b], Rule 112 of the Rules of Court) and
to ‘have access to the evidence on record’ (Section 4[c], Rule II of the Rules of Procedure of the Office
of the Ombudsman).” The Ombudsman denied Sen. Estrada’s Request, which is not the subject of the
present certiorari case.

Issue:

What is the quantum of evidence necessary during preliminary investigation?

Held:

First, there is no law or rule which requires the Ombudsman to furnish a respondent with copies of the
counter-affidavits of his co-respondents. Sections 3 and 4, Rule 112 of the Revised Rules of Criminal
Procedure, as well as Rule II of Administrative Order No. 7, Rules of Procedure of the Office of the
Ombudsman do not provide for the relief sought by Sen. Estrada in his Request.

Second, it should be underscored that the conduct of a preliminary investigation is only for the
determination of probable cause, and “probable cause merely implies probability of guilt and should
be determined in a summary manner. A preliminary investigation is not a part of the trial and it is only in
a trial where an accused can demand the full exercise of his rights, such as the right to confront and
cross-examine his accusers to establish his innocence.” Thus, the rights of a respondent in a preliminary
investigation are limited to those granted by procedural law.

A preliminary investigation is defined as 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. The quantum of evidence now required in preliminary investigation is such
evidence sufficient to “engender a well-founded belief” as to the fact of the commission of a crime
and the respondent’s probable guilt thereof. 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. We are in accord with the state prosecutor’s findings in the case at bar that
there exists prima facie evidence of petitioner’s involvement in the commission of the crime, it being
sufficiently supported by the evidence presented and the facts obtaining therein.

Third, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over
the conduct of a preliminary investigation. If by its very nature a preliminary investigation could be
waived by the accused, we find no compelling justification for a strict application of the evidentiary
rules.

Fourth, the quantum of evidence in preliminary investigations is not akin to those in administrative
proceedings as laid down in the landmark doctrine of Ang Tibay. The quantum of evidence needed in
Ang Tibay, as amplified in GSIS, is greater than the evidence needed in a preliminary investigation to
establish probable cause, or to establish the existence of a prima facie case that would warrant the
prosecution of a case. Ang Tibay refers to “substantial evidence,” while the establishment of probable
cause needs “only more than ‘bare suspicion,’ or ‘less than evidence which would justify . . .
conviction’.” In the United States, from where we borrowed the concept of probable cause, the
prevailing definition of probable cause is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities. These
are not technical; they are the factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly
correlative to what must be proved.

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for
crediting the hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights
and obligations of parties. However, in administrative cases, where rights and obligations are finally
adjudicated, what is required is “substantial evidence” which cannot rest entirely or even partially on
hearsay evidence. Substantial basis is not the same as substantial evidence because substantial
evidence excludes hearsay evidence while substantial basis can include hearsay evidence. To require
the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change the quantum
of evidence required in determining probable cause from evidence of likelihood or probability of guilt
to substantial evidence of guilt.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 100150 January 5, 1994

BRIGIDO R. SIMON, JR., CARLOS QUIMPO, CARLITO ABELARDO, AND GENEROSO OCAMPO, petitioners,
vs.
COMMISSION ON HUMAN RIGHTS, ROQUE FERMO, AND OTHERS AS JOHN DOES, respondents.

The City Attorney for petitioners.

The Solicitor General for public respondent.

VITUG, J.:

The extent of the authority and power of the Commission on Human Rights ("CHR") is again placed into
focus in this petition for prohibition, with prayer for a restraining order and preliminary injunction. The
petitioners ask us to prohibit public respondent CHR from further hearing and investigating CHR Case
No. 90-1580, entitled "Fermo, et al. vs. Quimpo, et al."

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

On the basis of the sworn statements submitted by the private respondents on 31 July 1990, as well as
CHR's own ocular inspection, and convinced that on 28 July 1990 the petitioners carried out the
demolition of private respondents' stalls, sari-sari stores and carinderia,5 the CHR, in its resolution of 1
August 1990, ordered the disbursement of financial assistance of not more than P200,000.00 in favor of
the private respondents to purchase light housing materials and food under the Commission's
supervision and again directed the petitioners to "desist from further demolition, with the warning that
violation of said order would lead to a citation for contempt and arrest." 6

A motion to dismiss,7 dated 10 September 1990, questioned CHR's jurisdiction. The motion also averred,
among other things, that:

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

xxx xxx xxx

 3. . . . , a perusal of the said Agreement (revealed) that the moratorium referred to
therein refers to moratorium in the demolition of the structures of poor dwellers;

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

5. that the complainants (were) occupying government land, particularly the sidewalk
of EDSA corner North Avenue, Quezon City; . . . and

6. that the City Mayor of Quezon City (had) the sole and exclusive discretion and
authority whether or not a certain business establishment (should) be allowed to
operate within the jurisdiction of Quezon City, to revoke or cancel a permit, if already
issued, upon grounds clearly specified by law and ordinance.8

During the 12 September 1990 hearing, the petitioners moved for postponement, arguing that the
motion to dismiss set for 21 September 1990 had yet to be resolved. The petitioners likewise manifested
that they would bring the case to the courts.

On 18 September 1990 a supplemental motion to dismiss was filed by the petitioners, stating that the
Commission's authority should be understood as being confined only to the investigation of violations of
civil and political rights, and that "the rights allegedly violated in this case (were) not civil and political
rights, (but) their privilege to engage in business."9

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

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

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

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

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

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

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

Hence, this recourse.

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

Whether or not the public respondent has jurisdiction:

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

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

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

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

The petition has merit.

The Commission on Human Rights was created by the 1987

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

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

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

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

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

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

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

enhance respect for the primacy of human rights;

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

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

obligations on human rights;

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

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

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

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

. . . (T)he Commission on Human Rights . . . was not meant by the fundamental law to
be another court or quasi-judicial agency in this country, or duplicate much less take
over the functions of the latter.

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

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

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

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

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

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

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

Human rights are rights that pertain to man simply because he is human. They are part
of his natural birth, right, innate and inalienable.28

The Universal Declaration of Human Rights, as well as, or more specifically, the International Covenant
on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights,
suggests that the scope of human rights can be understood to include those that relate to an
individual's social, economic, cultural, political and civil relations. It thus seems to closely identify the
term to the universally accepted traits and attributes of an individual, along with what is generally
considered to be his inherent and inalienable rights, encompassing almost all aspects of life.
Have these broad concepts been equally contemplated by the framers of our 1986 Constitutional
Commission in adopting the specific provisions on human rights and in creating an independent
commission to safeguard these rights? It may of value to look back at the country's experience under
the martial law regime which may have, in fact, impelled the inclusions of those provisions in our
fundamental law. Many voices have been heard. Among those voices, aptly represented perhaps of
the sentiments expressed by others, comes from Mr. Justice J.B.L. Reyes, a respected jurist and an
advocate of civil liberties, who, in his paper, entitled "Present State of Human Rights in the
Philippines,"29 observes:

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

Converging our attention to the records of the Constitutional Commission, we can see the following
discussions during its 26 August 1986 deliberations:

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

So, it is important to delienate the parameters of its tasks so that the commission can
be most effective.

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

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

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

MR. GARCIA. Yes, and as I have mentioned, the International Covenant of Civil and
Political Rights distinguished this right against torture.

MR. BENGZON. So as to distinguish this from the other rights that we have?
MR. GARCIA. Yes, because the other rights will encompass social and economic rights,
and there are other violations of rights of citizens which can be addressed to the
proper courts and authorities.

xxx xxx xxx

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

MR. GARCIA. No. We have already mentioned earlier that we would like to define the
specific parameters which cover civil and political rights as covered by the
international standards governing the behavior of governments regarding the
particular political and civil rights of citizens, especially of political detainees or
prisoners. This particular aspect we have experienced during martial law which we
would now like to safeguard.

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

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

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

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

xxx xxx xxx

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

So, I think we should really limit the definition of human rights to political rights. Is that
the sense of the committee, so as not to confuse the issue?

MR. SARMIENTO. Yes, Madam President.

MR. GARCIA. I would like to continue and respond also to repeated points raised by
the previous speaker.

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

xxx xxx xxx

The PRESIDENT. Commissioner Guingona is recognized.

MR. GUINGONA. Thank You Madam President.

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

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

Universal Declaration of Human Rights of 1948, mentioned or linked the concept of
human right with other human rights specified in other convention which I do not
remember. Am I correct?

MR. GARCIA. Is Commissioner Guingona referring to the Declaration of Torture of 1985?

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

MR. GARCIA. Madam President, the other one is the International Convention on Civil
and Political Rights of which we are signatory.

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

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

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

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

MR. GUINGONA. Correct. Therefore, just for the record, the Gentlemen is no longer
linking his concept or the concept of the Committee on Human Rights with the so-
called civil or political rights as contained in the Universal Declaration of Human Rights.

MR. GARCIA. When I mentioned earlier the Universal Declaration of Human Rights, I
was referring to an international instrument.

MR. GUINGONA. I know.

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

MR. GUINGONA. Madam President, I am not even clear as to the distinction between
civil and social rights.
 MR. GARCIA. There are two international covenants: the International Covenant and
Civil and Political Rights and the International Covenant on Economic, Social and
Cultural Rights. The second covenant contains all the different rights-the rights of labor
to organize, the right to education, housing, shelter, et cetera.

MR. GUINGONA. So we are just limiting at the moment the sense of the committee to
those that the Gentlemen has specified.

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

MR. GUINGONA. Thank you.

xxx xxx xxx

SR. TAN. Madam President, from the standpoint of the victims of human rights, I cannot
stress more on how much we need a Commission on Human Rights. . . .

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

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

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

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

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

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

Political rights,33 on the other hand, are said to refer to the right to participate, directly or indirectly, in
the establishment or administration of government, the right of suffrage, the right to hold public office,
the right of petition and, in general, the rights appurtenant to citizenship vis-a-vis the management of
government.34

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

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

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

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

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

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

The challenge on the CHR's disbursement of the amount of P200,000.00 by way of financial aid to the
vendors affected by the demolition is not an appropriate issue in the instant petition. Not only is there
lack of locus standi on the part of the petitioners to question the disbursement but, more importantly,
the matter lies with the appropriate administrative agencies concerned to initially consider.

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

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

SO ORDERED.

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

Separate Opinions

PADILLA, J., dissenting:

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

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

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

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

# Separate Opinions

PADILLA, J., dissenting:

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

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

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

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

#Footnotes

1 Rollo, p. 16.

2 Rollo, p. 17.

3 Ibid., pp. 16-17.

4 Ibid., p. 21.

5 Ibid., see also Annex "C-3", Rollo, pp. 102-103.

6 Ibid., p. 79.

7 Annex "C", Rollo, p. 26.

8 Rollo, pp. 26-27.

9 Annex "E", Ibid., p. 34.

10 Rollo, p. 5.

11 Annex "F", Petition, rollo, pp. 36-42.

12 Annex "G", Petition, Rollo, pp. 44-46.

13 Rollo, p. 46.

14 Annex "J", pp. 56-57.

15 Rollo, p. 59.

16 Ibid., p. 66.
17 Ibid., p. 67.

18 Rollo, pp. 77-88.

19 Art. XIII, Sec. 17, [1].

20 DECLARING THE EFFECTIVITY OF THE CREATION OF THE COMMISSION ON HUMAN

RIGHTS AS PROVIDED FOR IN THE 1987 CONSTITUTION, PROVIDING GUIDELINES FOR THE
OPERATION THEREOF, AND FOR OTHER PURPOSES.

21 Ibid., Sec. 17, [3]; E.O. No. 163, Sec. 4.

22 Ibid., Sec. 18.

23 Rollo, p. 45.

24 204 SCRA 483, 492.

25 Remigio Agpalo, Roxas Professor of Political Science, University of the Philippines,

Human Rights in the Philippines: An Unassembled Symposium, 1977, pp. 1-2.

26 Emerenciana Arcellana, Department of Political Science, U.P., Ibid., pp. 2-3.

27 Nick Joaquin, National Artist, Ibid., p. 15.

28 Salvador Lopez, Professor, U.P. Law Center, Ibid., p. 20.

29 Submitted to the LAWASIA Human Rights Standing Committee: Recent Trends in

Human Rights, circa, 1981-1982, pp. 47-52.

30 Records of the Constitutional Commission, Volume 3, pp. 722-723; 731; 738-739.

31 Black's Law Dictionary, Sixth edition, 1324; Handbook of American Constitutional

Law, (4th ed., 1927), p. 524.

32 Malcolm, The Constitutional Law of the Philippine Islands, (2nd ed., 1926),
pp. 431-457.

33 Black's Law Dictionary, Ibid., p. 1325.

34 Anthony vs. Burrow, 129 F. 783, 789 [1904].

35 Sec. 19, Art. XIII.

36 208 SCRA 125, 131.

37 See Export Processing Zone Authority vs. Commission on Human Rights,

208 SCRA 125.

38 Cabañero vs. Torres, 61 Phil. 523; Agustin vs. dela Fuente, 84 Phil. 515; Navarro vs.
Lardizabal, 25 SCRA 370.

39 See Magallanes vs. Sarita, 18 SCRA 575.

Facts :

Petitioner Mayor Simon asks to prohibit CHR from further hearing and investigating "demolition case" on
vendors of North EDSA.
Constitutional Issue :
Whether the CHR is authorized to hear and decide on the "demolition case" and to impose a fine for
contempt.
Ruling :
Section 18, Article XIII, of the 1987 Constitution empowered the CHR to investigate all forms of human
rights violations involving civil and political rights. The demolition of stalls, sari-sari stores and carenderia
cannot fall within the compartment of "human rights violations involving civil and political rights".
Human rights are the basic rights which inhere in man by virtue of his humanity and are the same in all
parts of the world.
Human rights include civil rights (right to life, liberty and property; freedom of speech, of the press, of
religion, academic freedom; rights of the accused to due process of law), political rights (right to elect
public officials, to be elected to public office, and to form political associations and engage in politics),
social rights (right to education, employment and social services.
Human rights are entitlements that inhere in the individual person from the sheer fact of his
humanity...Because they are inherent, human rights are not granted by the State but can only be
recognized and protected by it.
Human rights includes all the civil, political, economic, social and cultural rights defined in the Universal
Declaration of Human Rights.
Human rights are rights that pertain to man simply because he is human. They are part of his natural
birth, right, innate and inalienable.
CIVIL RIGHTS - are those that belong to every citizen and are not connected with the organization or
administration of the government.
POLITICAL RIGHTS - are rights to participate, directly or indirectly, in the establishment or administration
of the government.