ATTY. LARRY D. GACAYAN
(Constitutional Law Review, Constitutional Law I & II & Wills and Succession)
COLLEGE OF LAW
University of the Cordilleras
CPRS PRE-BAR REVIEW CENTER
(Cagayan de Oro City, Zamboanga City, Iloilo City, Tacloban City, Ozamis City, Cebu City, Davao City and Baguio City)
EXCELLENT PRE-BAR REVIEW CENTER
(Naga City, Cebu City and Baguio City)
POWERHAUS PRE-BAR REVIEW CENTER
(Baguio, Manila, Santiago City, Dipolog City, San Fernando City (LU) and Tagbilaran City)
PANGASINAN REVIEW CENTER
HOLY TRINITY REVIEW CENTER
General Santos City
police power---is the power vested in the legislature by the Constitution to make, ordain, establish all manner of wholesome and reasonable laws for the good and welfare of the State and its people. (ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967)
The basic purposes of police power are:
to promote the general welfare, comfort and convenience of the people; (ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY, 175 SCRA 343; US VS. TORIBIO, 15 Phil. 85
to promote and preserve public health; (VILLANUEVA VS. CASTANEDA, September 21, 1987; DECS VS. SAN DIEGO, 180 SCRA 533 [NMAT]; LORENZO VS. DIRECTOR OF HEALTH, 50 Phil. 595—apprehend and confine lepers in a leprosarium)
Police Power as a limitation to the right to practice a profession
After the Professional Regulations Commission (PRC) released the names of successful examinees in the Medical Licensure Examination, the Board of Medicines observed that the grades of the 79 Fatima College of Medicine successful examinees were unusually and exceptionally high in the two (2) most difficult subjects of the exam, i.e., Biochemistry and Obstetrics and Gynecology.
The Board then issued Resolution No. 19 withholding the registration as physicians of all the examinees from Fatima College of Medicine. Compared with other examines from other schools, the results of those from Fatima were not only incredibly high but unusually clustered close to each other. The NBI Investigation found that the “Fatima examinees gained early access to the test questions.”
It must be stressed that the power to regulate the practice of a profession or pursuit of an occupation cannot be exercised by the State in an arbitrary, despotic or oppressive manner. However, the regulating body has the right to grant or forbid such privilege in accordance with certain conditions.
But like all rights and freedoms guaranteed by the Constitution, their exercise may be regulated pursuant to the police power of the State to safeguard health, morals, peace, education, order, safety, and general welfare of the people. As such, mandamus will not lie to compel the Board of Medicine to issue licenses for the respondents to practice medicine.
RA 2382 which prescribes the requirements for admission to the practice of medicine, the qualifications of the candidates for the board examination, the scope and conduct of the examinations, the grounds for the denying of the issuance of a physician’s license, or revoking a license that has been issued. It is therefore clear that the examinee must prove that he has fully complied with all the conditions and requirements imposed by law and the licensing authority to be granted the privilege to practice medicine. In short, he shall have all the qualifications and none of the disqualifications. The petition is therefore granted.
to promote and protect public safety; (AGUSTIN VS. EDU, 88 SCRA 195; TAXICAB OPERATORS VS. JUINIO, 119 SCRA 897 )
to maintain and safeguard peace and order; (GUAZON VS. DE VILLA)
to protect public morals; (CITY OF MANILA VS. JUDGE LAGUIO, JR., 455 SCRA 308; WHITE LIGHT CORPORATION VS. CITY OF MANILA, January 20, 2009; DE LA CRUZ VS. PARAS, 123 SCRA 569; ERMITA MALATE HOTEL VS. CITY MAYOR, July 31, 1967; VILLAVICENCIO VS. MAYOR LUKBAN OF MANILA, 39 Phil. 778; JMM PROMOTIONS VS. CA, 260 SCRA 319; VELASCO VS. VILLEGAS, February 13, 1983)
An Ordinance of the City of Manila prohibiting “short-time” in Motels and Hotels.
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA. MESA TOURIST & DEVELOPMENT CORPORATION vs. CITY OF MANILA, represented by MAYOR ALFREDO S. LIM, G.R. No. 122846, January 20, 2009
With another city ordinance of Manila also principally involving the tourist district as subject, the Court is confronted anew with the incessant clash between government power and individual liberty in tandem with the archetypal tension between law and morality.
In City of Manila v. Laguio, Jr, the Court affirmed the nullification of a city ordinance barring the operation of motels and inns, among other establishments, within the Ermita-Malate area. The petition at bar assails a similarly-motivated city ordinance that prohibits those same establishments from offering short-time admission, as well as pro-rated or “wash up” rates for such abbreviated stays. Our earlier decision tested the city ordinance against our sacred constitutional rights to liberty, due process and equal protection of law. The same parameters apply to the present petition.
This Petition challenges the validity of Manila City Ordinance No. 7774 entitled, “An Ordinance Prohibiting Short-Time Admission, Short-Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels, Inns, Lodging Houses, Pension Houses, and Similar Establishments in the City of Manila” (the Ordinance).
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into law the Ordinance. The Ordinance is reproduced in full, hereunder:
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic], wash-up rate or other similarly concocted terms, are hereby prohibited in hotels, motels, inns, lodging houses, pension houses and similar establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean admittance and charging of room rate for less than twelve (12) hours at any given time or the renting out of rooms more than twice a day or any other term that may be concocted by owners or managers of said establishments but would mean the same or would bear the same meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall
violate any provision of this ordinance shall upon conviction thereof
be punished by a fine of Five Thousand (
Pesos or imprisonment for a period of not exceeding one (1) year or
both such fine and imprisonment at the discretion of the court;
Provided, That in case of [a] juridical person, the president, the
manager, or the persons in charge of the operation thereof shall be
liable: Provided, further, That in case of subsequent conviction for
the same offense, the business license of the guilty party shall
automatically be cancelled.
On December 15, 1992, the Malate Tourist and Development Corporation (MTDC) filed a complaint for declaratory relief with prayer for a writ of preliminary injunction and/or temporary restraining order ( TRO) with the Regional Trial Court (RTC) of Manila, Branch 9 impleading as defendant, herein respondent City of Manila (the City) represented by Mayor Lim. MTDC prayed that the Ordinance, insofar as it includes motels and inns as among its prohibited establishments, be declared invalid and unconstitutional. MTDC claimed that as owner and operator of the Victoria Court in Malate, Manila it was authorized by Presidential Decree (P.D.) No. 259 to admit customers on a short time basis as well as to charge customers wash up rates for stays of only three hours.
They contend that the assailed Ordinance is an invalid exercise of police power.
To students of jurisprudence, the facts of this case will recall to mind not only the recent City of Manila ruling, but our 1967 decision in Ermita-Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor of Manila. Ermita-Malate concerned the City ordinance requiring patrons to fill up a prescribed form stating personal information such as name, gender, nationality, age, address and occupation before they could be admitted to a motel, hotel or lodging house. This earlier ordinance was precisely enacted to minimize certain practices deemed harmful to public morals. A purpose similar to the annulled ordinance in City of Manila which sought a blanket ban on motels, inns and similar establishments in the Ermita-Malate area. However, the constitutionality of the ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at bar goes beyond the singularity of the localities covered under the respective ordinances. All three ordinances were enacted with a view of regulating public morals including particular illicit activity in transient lodging establishments. This could be described as the middle case, wherein there is no wholesale ban on motels and hotels but the services offered by these establishments have been severely restricted. At its core, this is another case about the extent to which the State can intrude into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions including City of Manila has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and pass according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable .
Police power, while incapable of an exact definition, has been purposely veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough room for an efficient and flexible response as the conditions warrant. Police power is based upon the concept of necessity of the State and its corresponding right to protect itself and its people.Police power has been used as justification for numerous and varied actions by the State. These range from the regulation of dance halls, movie theaters, gas stations, and cockpits. The awesome scope of police power is best demonstrated by the fact that in its hundred or so years of presence in our nation’s legal system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use of the covered establishments for illicit sex, prostitution, drug use and alike. These goals, by themselves, are unimpeachable and certainly fall within the ambit of the police power of the State.
The primary constitutional question that confronts us is one of due process, as guaranteed under Section 1, Article III of the Constitution. Due process evades a precise definition. The purpose of the guaranty is to prevent arbitrary governmental encroachment against the life, liberty and property of individuals. The due process guaranty serves as a protection against arbitrary regulation or seizure. Even corporations and partnerships are protected by the guaranty insofar as their property is concerned.
The due process guaranty has traditionally been interpreted as imposing two related but distinct restrictions on government, "procedural due process" and "substantive due process." Procedural due process refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Procedural due process concerns itself with government action adhering to the established process when it makes an intrusion into the private sphere. Examples range from the form of notice given to the level of formality of a hearing.
Substantive due process completes the protection envisioned by the due process clause. It inquires whether the government has sufficient justification for depriving a person of life, liberty, or property.
The question of substantive due process, more so than most other fields of law, has reflected dynamism in progressive legal thought tied with the expanded acceptance of fundamental freedoms. Police power, traditionally awesome as it may be, is now confronted with a more rigorous level of analysis before it can be upheld. The vitality though of constitutional due process has not been predicated on the frequency with which it has been utilized to achieve a liberal result for, after all, the libertarian ends should sometimes yield to the prerogatives of the State. Instead, the due process clause has acquired potency because of the sophisticated methodology that has emerged to determine the proper metes and bounds for its application.
The general test of the validity of an ordinance on substantive due process grounds is best tested when assessed with the evolved footnote 4 test laid down by the U.S. Supreme Court in U.S. v. Carolene Products. Footnote 4 of the Carolene Products case acknowledged that the judiciary would defer to the legislature unless there is a discrimination against a “discrete and insular” minority or infringement of a “fundamental right”. Consequently, two standards of judicial review were established: strict scrutiny for laws dealing with freedom of the mind or restricting the political process, and the rational basis standard of review for economic legislation.
A third standard, denominated as heightened or immediate scrutiny, was later adopted by the U.S. Supreme Court for evaluating classifications based on gender and legitimacy, Immediate scrutiny was adopted by the U.S. Supreme Court in Craig, after the Court declined to do so in Reed v. Reed. While the test may have first been articulated in equal protection analysis, it has in the United States since been applied in all substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis of equal protection challenges. Using the rational basis examination, laws or ordinances are upheld if they rationally further a legitimate governmental interest. Under intermediate review, governmental interest is extensively examined and the availability of less restrictive measures is considered. Applying strict scrutiny, the focus is on the presence of compelling, rather than substantial, governmental interest and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard for determining the quality and the amount of governmental interest brought to justify the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection. The United States Supreme Court has expanded the scope of strict scrutiny to protect fundamental rights such as suffrage, judicial access and interstate travel.
If we were to take the myopic view that an Ordinance should be analyzed strictly as to its effect only on the petitioners at bar, then it would seem that the only restraint imposed by the law which we are capacitated to act upon is the injury to property sustained by the petitioners, an injury that would warrant the application of the most deferential standard – the rational basis test. Yet as earlier stated, we recognize the capacity of the petitioners to invoke as well the constitutional rights of their patrons – those persons who would be deprived of availing short time access or wash-up rates to the lodging establishments in question.
It cannot be denied that the primary animus behind the ordinance is the curtailment of sexual behavior. The City asserts before this Court that the subject establishments “have gained notoriety as venue of ‘prostitution, adultery and fornications’ in Manila since they ‘provide the necessary atmosphere for clandestine entry, presence and exit and thus became the ‘ideal haven for prostitutes and thrill-seekers.’” Whether or not this depiction of a mise-en-scene of vice is accurate, it cannot be denied that legitimate sexual behavior among willing married or consenting single adults which is constitutionally protected will be curtailed as well, as it was in the City of Manila case. Our holding therein retains significance for our purposes:
We cannot discount other legitimate activities which the Ordinance would proscribe or impair. There are very legitimate uses for a wash rate or renting the room out for more than twice a day. Entire families are known to choose pass the time in a motel or hotel whilst the power is momentarily out in their homes. In transit passengers who wish to wash up and rest between trips have a legitimate purpose for abbreviated stays in motels or hotels. Indeed any person or groups of persons in need of comfortable private spaces for a span of a few hours with purposes other than having sex or using illegal drugs can legitimately look to staying in a motel or hotel as a convenient alternative.
Further, it is apparent that the Ordinance can easily be circumvented by merely paying the whole day rate without any hindrance to those engaged in illicit activities. Moreover, drug dealers and prostitutes can in fact collect “wash rates” from their clientele by charging their customers a portion of the rent for motel rooms and even apartments.
The Ordinance needlessly restrains the operation of the businesses of the petitioners as well as restricting the rights of their patrons without sufficient justification. The Ordinance rashly equates wash rates and renting out a room more than twice a day with immorality without accommodating innocuous intentions.
To be candid about it, the oft-quoted American maxim that “you cannot legislate morality” is ultimately illegitimate as a matter of law, since as explained by Calabresi, that phrase is more accurately interpreted as meaning that efforts to legislate morality will fail if they are widely at variance with public attitudes about right and wrong. Our penal laws, for one, are founded on age-old moral traditions, and as long as there are widely accepted distinctions between right and wrong, they will remain so oriented.
WHEREFORE, the Petition is GRANTED. Ordinance No. 7774 is hereby declared UNCONSTITUTIONAL.
An Ordinance requiring the motels in Ermita-Malate area to transfer to another place in the City of Manila as well as prohibiting THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA was held unconstitutional
CITY OF MANILA, HON. ALFREDO S. LIM as the Mayor of the City of Manila, et al vs. HON. PERFECTO A.S. LAGUIO, JR., as Presiding Judge, RTC, Manila and MALATE TOURIST DEVELOPMENT CORPORATION, GR No. 118127, April 12, 2005
The City Council of Manila enacted on 9 March 1993 and approved by petitioner City Mayor on 30 March 1993 an Ordinance is entitled–
AN ORDINANCE PROHIBITING THE ESTABLISHMENT OR OPERATION OF BUSINESSES PROVIDING CERTAIN FORMS OF AMUSEMENT, ENTERTAINMENT, SERVICES AND FACILITIES IN THE ERMITA-MALATE AREA, PRESCRIBING PENALTIES FOR VIOLATION THEREOF, AND FOR OTHER PURPOSES.
The Ordinance is reproduced in full, hereunder:
SECTION 1. Any provision of existing laws and ordinances to the contrary notwithstanding, no person, partnership, corporation or entity shall, in the Ermita-Malate area bounded by Teodoro M. Kalaw Sr. Street in the North, Taft Avenue in the East, Vito Cruz Street in the South and Roxas Boulevard in the West, pursuant to P.D. 499 be allowed or authorized to contract and engage in, any business providing certain forms of amusement, entertainment, services and facilities where women are used as tools in entertainment and which tend to disturb the community, annoy the inhabitants, and adversely affect the social and moral welfare of the community, such as but not limited to:
1. Sauna Parlors
2. Massage Parlors
3. Karaoke Bars
5. Night Clubs
6. Day Clubs
7. Super Clubs
10. Dance Halls
SEC. 2 The City Mayor, the City Treasurer or any person acting in behalf of the said officials are prohibited from issuing permits, temporary or otherwise, or from granting licenses and accepting payments for the operation of business enumerated in the preceding section.
SEC. 3. Owners and/or operator of establishments engaged in, or devoted to, the businesses enumerated in Section 1 hereof are hereby given three (3) months from the date of approval of this ordinance within which to wind up business operations or to transfer to any place outside of the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area, such as but not limited to:
1. Curio or antique shop
2. Souvenir Shops
3. Handicrafts display centers
4. Art galleries
5. Records and music shops
7. Coffee shops
8. Flower shops
9. Music lounge and sing-along restaurants, with well-defined activities for wholesome family entertainment that cater to both local and foreign clientele.
10. Theaters engaged in the exhibition, not only of motion pictures but also of cultural shows, stage and theatrical plays, art exhibitions, concerts and the like.
11. Businesses allowable within the law and medium intensity districts as provided for in the zoning ordinances for Metropolitan Manila, except new warehouse or open-storage depot, dock or yard, motor repair shop, gasoline service station, light industry with any machinery, or funeral establishments.
The Ordinance was questioned as an invalid exercise of police power and violative of the due process and equal protection clause of the 1987 Constitution.
The tests of a valid ordinance are well established. A long line of decisions has held that for an ordinance to be valid, it must not only be within the corporate powers of the local government unit to enact and must be passed according to the procedure prescribed by law, it must also conform to the following substantive requirements: (1) must not contravene the Constitution or any statute; (2) must not be unfair or oppressive; (3) must not be partial or discriminatory; (4) must not prohibit but may regulate trade; (5) must be general and consistent with public policy; and (6) must not be unreasonable.
The Ordinance contravenes
The police power of the City Council, however broad and far-reaching, is subordinate to the constitutional limitations thereon; and is subject to the limitation that its exercise must be reasonable and for the public good. In the case at bar, the enactment of the Ordinance was an invalid exercise of delegated power as it is unconstitutional and repugnant to general laws.
The relevant constitutional provisions are the following:
SEC. 5. The maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.
SEC. 14. The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women and men.
SEC. 1. No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws.
Sec. 9. Private property shall not be taken for public use without just compensation.
A. The Ordinance infringes
the Due Process Clause
The constitutional safeguard of due process is embodied in the fiat “(N)o person shall be deprived of life, liberty or property without due process of law. . . .” There is no controlling and precise definition of due process. It furnishes though a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid. This standard is aptly described as a responsiveness to the supremacy of reason, obedience to the dictates of justice, and as such it is a limitation upon the exercise of the police power. The purpose of the guaranty is to prevent governmental encroachment against the life, liberty and property of individuals; to secure the individual from the arbitrary exercise of the powers of the government, unrestrained by the established principles of private rights and distributive justice; to protect property from confiscation by legislative enactments, from seizure, forfeiture, and destruction without a trial and conviction by the ordinary mode of judicial procedure; and to secure to all persons equal and impartial justice and the benefit of the general law. The guaranty serves as a protection against arbitrary regulation, and private corporations and partnerships are “persons” within the scope of the guaranty insofar as their property is concerned. This clause has been interpreted as imposing two separate limits on government, usually called “procedural due process” and “substantive due process.”
Procedural due process, as the phrase implies, refers to the procedures that the government must follow before it deprives a person of life, liberty, or property. Classic procedural due process issues are concerned with what kind of notice and what form of hearing the government must provide when it takes a particular action.
Substantive due process, as that phrase connotes, asks whether the government has an adequate reason for taking away a person’s life, liberty, or property. In other words, substantive due process looks to whether there is a sufficient justification for the government’s action. Case law in the United States (U.S.) tells us that whether there is such a justification depends very much on the level of scrutiny used. For example, if a law is in an area where only rational basis review is applied, substantive due process is met so long as the law is rationally related to a legitimate government purpose. But if it is an area where strict scrutiny is used, such as for protecting fundamental rights, then the government will meet substantive due process only if it can prove that the law is necessary to achieve a compelling government purpose. The police power granted to local government units must always be exercised with utmost observance of the rights of the people to due process and equal protection of the law. Such power cannot be exercised whimsically, arbitrarily or despotically as its exercise is subject to a qualification, limitation or restriction demanded by the respect and regard due to the prescription of the fundamental law, particularly those forming part of the Bill of Rights. Individual rights, it bears emphasis, may be adversely affected only to the extent that may fairly be required by the legitimate demands of public interest or public welfare. Due process requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty and property.
Requisites for the valid exercise
of Police Power are not met
To successfully invoke the exercise of police power as the rationale for the enactment of the Ordinance, and to free it from the imputation of constitutional infirmity, not only must it appear that the interests of the public generally, as distinguished from those of a particular class, require an interference with private rights, but the means adopted must be reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. It must be evident that no other alternative for the accomplishment of the purpose less intrusive of private rights can work. A reasonable relation must exist between the purposes of the police measure and the means employed for its accomplishment, for even under the guise of protecting the public interest, personal rights and those pertaining to private property will not be permitted to be arbitrarily invaded. Lacking a concurrence of these two requisites, the police measure shall be struck down as an arbitrary intrusion into private rights and a violation of the due process clause.
The Ordinance was enacted to address and arrest the social ills purportedly spawned by the establishments in the Ermita-Malate area which are allegedly operated under the deceptive veneer of legitimate, licensed and tax-paying nightclubs, bars, karaoke bars, girlie houses, cocktail lounges, hotels and motels. Petitioners insist that even the Court in the case of Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila had already taken judicial notice of the “alarming increase in the rate of prostitution, adultery and fornication in Manila traceable in great part to existence of motels, which provide a necessary atmosphere for clandestine entry, presence and exit and thus become the ideal haven for prostitutes and thrill-seekers.” The object of the Ordinance was, accordingly, the promotion and protection of the social and moral values of the community. Granting for the sake of argument that the objectives of the Ordinance are within the scope of the City Council’s police powers, the means employed for the accomplishment thereof were unreasonable and unduly oppressive.
The Ordinance seeks to legislate morality but fails to address the core issues of morality. Try as the Ordinance may to shape morality, it should not foster the illusion that it can make a moral man out of it because immorality is not a thing, a building or establishment; it is in the hearts of men. The City Council instead should regulate human conduct that occurs inside the establishments, but not to the detriment of liberty and privacy which are covenants, premiums and blessings of democracy.
While petitioners’ earnestness at curbing clearly objectionable social ills is commendable, they unwittingly punish even the proprietors and operators of “wholesome,” “innocent” establishments. In the instant case, there is a clear invasion of personal or property rights, personal in the case of those individuals desirous of owning, operating and patronizing those motels and property in terms of the investments made and the salaries to be paid to those therein employed. If the City of Manila so desires to put an end to prostitution, fornication and other social ills, it can instead impose reasonable regulations such as daily inspections of the establishments for any violation of the conditions of their licenses or permits; it may exercise its authority to suspend or revoke their licenses for these violations; and it may even impose increased license fees. In other words, there are other means to reasonably accomplish the desired end.
Means employed are
The Ordinance disallows the operation of sauna parlors, massage parlors, karaoke bars, beerhouses, night clubs, day clubs, super clubs, discotheques, cabarets, dance halls, motels and inns in the Ermita-Malate area. In Section 3 thereof, owners and/or operators of the enumerated establishments are given three (3) months from the date of approval of the Ordinance within which “to wind up business operations or to transfer to any place outside the Ermita-Malate area or convert said businesses to other kinds of business allowable within the area.” Further, it states in Section 4 that in cases of subsequent violations of the provisions of the Ordinance, the “premises of the erring establishment shall be closed and padlocked permanently.”
It is readily apparent that the means employed by the Ordinance for the achievement of its purposes, the governmental interference itself, infringes on the constitutional guarantees of a person’s fundamental right to liberty and property.
Modality employed is
In addition, the Ordinance is unreasonable and oppressive as it substantially divests the respondent of the beneficial use of its property. The Ordinance in Section 1 thereof forbids the running of the enumerated businesses in the Ermita-Malate area and in Section 3 instructs its owners/operators to wind up business operations or to transfer outside the area or convert said businesses into allowed businesses. An ordinance which permanently restricts the use of property that it can not be used for any reasonable purpose goes beyond regulation and must be recognized as a taking of the property without just compensation. It is intrusive and violative of the private property rights of individuals.
The Constitution expressly provides in Article III, Section 9, that “private property shall not be taken for public use without just compensation.” The provision is the most important protection of property rights in the Constitution. This is a restriction on the general power of the government to take property. The constitutional provision is about ensuring that the government does not confiscate the property of some to give it to others. In part too, it is about loss spreading. If the government takes away a person’s property to benefit society, then society should pay. The principal purpose of the guarantee is “to bar the Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.
The second option instructs the owners to abandon their property and build another one outside the Ermita-Malate area. In every sense, it qualifies as a taking without just compensation with an additional burden imposed on the owner to build another establishment solely from his coffers. The proffered solution does not put an end to the “problem,” it merely relocates it. Not only is this impractical, it is unreasonable, onerous and oppressive. The conversion into allowed enterprises is just as ridiculous. How may the respondent convert a motel into a restaurant or a coffee shop, art gallery or music lounge without essentially destroying its property? This is a taking of private property without due process of law, nay, even without compensation.
Petitioners cannot therefore order the closure of the enumerated establishments without infringing the due process clause. These lawful establishments may be regulated, but not prevented from carrying on their business. This is a sweeping exercise of police power that is a result of a lack of imagination on the part of the City Council and which amounts to an interference into personal and private rights which the Court will not countenance. In this regard, we take a resolute stand to uphold the constitutional guarantee of the right to liberty and property.
The foregoing premises show that the Ordinance is an unwarranted and unlawful curtailment of property and personal rights of citizens. For being unreasonable and an undue restraint of trade, it cannot, even under the guise of exercising police power, be upheld as valid.
B. The Ordinance violates Equal
Equal protection requires that all persons or things similarly situated should be treated alike, both as to rights conferred and responsibilities imposed. Similar subjects, in other words, should not be treated differently, so as to give undue favor to some and unjustly discriminate against others. The guarantee means that no person or class of persons shall be denied the same protection of laws which is enjoyed by other persons or other classes in like circumstances. The “equal protection of the laws is a pledge of the protection of equal laws.” It limits governmental discrimination. The equal protection clause extends to artificial persons but only insofar as their property is concerned.
Legislative bodies are allowed to classify the subjects of legislation. If the classification is reasonable, the law may operate only on some and not all of the people without violating the equal protection clause. The classification must, as an indispensable requisite, not be arbitrary. To be valid, it must conform to the following requirements:
1) It must be based on substantial distinctions.
2) It must be germane to the purposes of the law.
3) It must not be limited to existing conditions only.
4) It must apply equally to all members of the class.
In the Court’s view, there are no substantial distinctions between motels, inns, pension houses, hotels, lodging houses or other similar establishments. By definition, all are commercial establishments providing lodging and usually meals and other services for the public. No reason exists for prohibiting motels and inns but not pension houses, hotels, lodging houses or other similar establishments. The classification in the instant case is invalid as similar subjects are not similarly treated, both as to rights conferred and obligations imposed. It is arbitrary as it does not rest on substantial distinctions bearing a just and fair relation to the purpose of the Ordinance.
The Court likewise cannot see the logic for prohibiting the business and operation of motels in the Ermita-Malate area but not outside of this area. A noxious establishment does not become any less noxious if located outside the area.
to promote the economic security of the people. (ichong vs. hernandez, 101 Phil. 11155)
Not a valid exercise of police power:
CITY GOVERNMENT OF QC VS. ERICTA, 122 SCRA 759; (Requiring private cemeteries to set aside a portion of their land area to be given as burial place for “paupers”, free of charge, is an invalid exercise of police power. It constitutes “taking of a private property for public use without just compensation.” The local government units could not validly pass to private cemeteries their obligation under the Local Government Code to provide cemeteries to their constituents)
YNOT VS. IAC, 148 SCRA 659; the Director of Animal Industry or the Chairman if the National Meat Commission “may dispose of the carabaos or carabeef” confiscated for violating the executive order prohibiting the inter-provincial transport of said animals without prior permit issued by the government “to charitable agencies as he may deem fit”. This is oppressive and unreasonable since the owner of the animals is denied due process of law and the Director of Animal Industry or Chairman of the National Meat Commission is given so much discretion as the law is not complete in itself nor is there a standard to guide the official.
DE LA CRUZ VS. PARAS, 123 SCRA 569
(An Ordinance of Bocaue, Bulacan prohibiting the operation of nightclubs is unconstitutional. It is not a valid exercise of police power. This is so because nightclubs are not illegal per se. They can be regulated but not prohibited)
Differences and similarities
The power of eminent domain is the inherent right of the State to condemn or to take private property for public use upon payment of just compensation while police power is the power of the state to promote public welfare by restraining and regulating the use of liberty and property without compensation;
In the exercise of police power, enjoyment of a property is restricted because the continued use thereof would be injurious to public welfare. In such case, there is no compensable taking provided none of the property interests is appropriated for the use or for the benefit of the public. Otherwise, there should be compensable taking if it would result to public use.
Properties condemned under police power are usually noxious or intended for noxious purpose; hence , no compensation shall be paid. Likewise, in the exercise of police power, property rights of private individuals are subjected to restraints and burdens in order to secure the general comfort, health and prosperity of the state.
While the power of eminent domain often results in the appropriation of title to or possession of property, it need not always be the case. Taking may include trespass without actual eviction of the owner, material impairment of the value of the property or prevention of the ordinary uses for which the property was intended such as the establishment of an easement.
As such, an imposition of burden over a private property through easement (by the government) is considered taking; hence, payment of just compensation is required. The determination of just compensation, however, is a judicial function (EPZA vs. Dulay, 149 SCRA 305) and initial determinations on just compensation by the executive department and Congress cannot prevail over the court’s findings.
Limitations in the exercise of said powers
Tests for a valid exercise of police power
the interests of the public, not mere particular class, require the exercise of police power; (LAWFUL SUBJECT)
the means employed is reasonably necessary for the accomplishment of the purpose and not unduly oppressive to individuals. (LAWFUL MEANS). In short, the end does not justify the means.
Illustration: Lawful subject but the means employed is illegal
1. On January, 13, 1984, Ynot transported six carabaos by using a pumpboat from Masbate to Iloilo. The six carabaos, were, however, confiscated by the Police Station Commander of Baratoc Nuevo, Iloilo for alleged violation of Executive Order No. 626-A which prohibits the inter-provincial transporting of carabaos and carabeefs which does not comply with the provisions of Executive No.626;
2. That Section 1 of the said law provides that "henceforth, no carabaos regardless of age, sex physical condition or purpose and no carabeef shall be transported from one province to another. The carabao or carabeef transported in violation of the said law shall be subjected to confiscation and forfeiture by the government to be distributed to charitable institution and similar institutions as the Chairman of the National meat inspection Commission may see fit in the case of the carabeef, and to deserving farmers through the dispersal of the Director of Animal Industry, in the case of carabaos;
3. Ynot filed a suit for recovery and the carabao were returned to him upon the issuance of a writ of replevin upon his filing of a supersede as bond in the amount of P12,000.00;
4. After trial of the case, the Judge upheld the validity of the act of the Police Station Commander in confiscating the carabaos. Ynot was ordered to returned the carabaos but since he could not do so, the court ordered the confiscation of the bond. The court refused to rule on the constitutionality of the said Executive Order on the ground of lack of authority to do so and also because of its presumed validity;
5. The petitioner appealed to the IAC but the said court upheld the decision of the Trial Court. Hence this petition for review on certiorari before the Supreme Court where YNOT claimed that the penalty of confiscation is INVALID the same was imposed without according the owner the right to be heard before a competent and impartial tribunal as guaranteed by due process.
1. May a lower court (like the MTC, RTC, of the Court of Appeals) declare a law unconstitutional?
2. Is Executive Order No. 626-A constitutional?
Sub-issues under this are:
a. Was it a valid police power measure?
b. Was there an undue delegation of legislative power?
1. While the lower courts should observe a becoming modesty in examining constitutional question, THEY ARE NOT PREVENTED FROM RESOLVING THE SAME WHENEVER WARRANTED, subject only to review by the supreme court. This is so because under Section 5,[2(a)], Art. VIII, of the 1987 Constitution provides that the Supreme Court has the power to "review, revise, reverse, modify or affirm on appeal" or certiorari as the rules of court may provide, final judgments and orders of the lower courts in all cases involving the constitutionality of certain measures. This simply means that lower courts may declare whether or not a law is constitutional.
2. In order that a measure or law may be justified under the police power of the state, it must meet two tests:
a. the subject must be lawful; and
b. the means employed is lawful.
Since the prohibition of the slaughtering of carabaos except where they are at least 7 years old when male and at least 11 years old when female is in furtherance of the public interest since said carabaos are very useful to the work at the farm, it is conceded
that the Executive Order meets the first test---- it has lawful subject.
But does the law meets the second requisite or test which is lawful method?
Executive Order No. 626-A imposes an absolute ban not on the slaughtering of carabaos BUT ON THIER MOVEMENT, providing that "no carabao regardless of age, sex, physical condition or purpose and no carabeef shall be transported from one province to another." The reasonable connection between the means employed and the purpose sought to be achieved by the question measure is missing. We do not see how the prohibition of the inter-provincial transport can prevent their indiscriminate slaughter considering that they can be killed any where, with no less difficulty in one province than in the other. Obviously, retaining a carabao in one province will not prevent their slaughter there, any more than moving them to another province will make it easier to kill them there.
The law is unconstitutional because it struck at once and pounced upon the petitioner without giving him a chance to be heard, thus denying him the centuries-old guarantee of elementary fair play.
Since the Executive Order in question is a penal law, then violation thereof should be pronounce not by the police BUT BY A COURT OF JUSTICE, WHICH ALONE WOULD HAVE HAD THE AUTHORITY TO IMPOSE THE PRESCRIBED PENALTY, AND ONLY AFTER TRIAL AND CONVICTION OF THE ACCUSED.
Also, there is no reasonable guidelines or bases of the Director of Animal Industry or the Chairman of the NATIONAL Meat Inspection Commission in the disposition of the carabaos or carabeef other than what "they may see fit" which is very dangerous and could result to opportunities for partiality and abuse, and even graft and corruption.
The Executive Order is, therefore, invalid and unconstitutional and not a valid police power measure because the METHOD EMPLOYED TO CONSERVE CARABAOS IS NOT REASONABLY NECESSARY TO THE PURPOSE OF THE LAW AND, WORSE IS UNDULY OPPRESSIVE. DUE PROCESS IS VIOLATED BECAUSE THE OWNER OF THE PROPERTY CONFISCATED IS DENIED THE RIGHT TO BE HEARD IN HIS DEFENSE AND IS IMMEDIATELY CONDEMNED AND PUNISHED. THE CONFERMENT ON THE ADMINISTRATIVE AUTHORITIES (like the police) OF THE POWER TO ADJUDGE THE GUILT OF THE SUPPOSED OFFENDER IS A CLEAR ENCROACHMENT OF JUDICIAL FUNCTIONS AND MILITATES AGAINST THE DOCTRINE OF SEPARATION OF POWERS.
Also, there is undue delegation of legislative power to the officers mentioned therein (Director of Animal Industry and Head of the National Meat Commission) because they were given unlimited discretion in the distribution of the property confiscated.
JMM Promotions vs. CA, 260 SCRA 319
ERMITA-MALATE HOTEL VS. MAYOR OF MANILA, July 31, 1967;
ICHONG VS. HERNANDEZ, 101 Phil. 1155
CHURCHILL VS. RAFFERTY, 32 Phil. 580
PEOPLE VS. POMAR, 46 Phil. 447
US VS. TORIBIO, 15 Phil. 85
VELASCO VS. VILLEGAS, February 13, 1983
ILOILO ICE & COLD STORAGE VS. MUNICIPAL COUNCIL, 24 Phil. 471
AGUSTIN VS. EDU, 88 SCRA 195
TAXICAB OPERATORS VS. BOT, 119 SCRA 597
BAUTISTA VS. JUINIO, 127 SCRA 329
A law prohibiting the use of Heavy and Extra Heavy Vehicles on weekends and holidays when there is energy crisis is a valid police power measure.
1. On May 31, 1979, President Marcos issued Letter of Instruction No. 869 prohibiting the use of private motor vehicles with H (Heavy Vehicles) and EH (Extra Heavy Vehicles) on week-ends and holidays from 12:00 a.m. Saturday morning to 5:00 a.m. Monday morning, or 1:00 a.m. of the holiday to 5:00 a.m. of the day after the holiday. Motor vehicles of the following classifications are however, exempted:
4. CC---Consular Corps; and
5. TC---Tourist Cars
2. On June 11, 1979, the then Commissioner of Land Transportation, ROMEO EDU issued Circular No. 39 imposing "the penalties of fine, confiscation of vehicle and cancellation of registration on owners of the above-specified found violating such letter of Instructions";
3. Bautista is questioning the constitutionality of the LOI and the Implementing Circular on the grounds that:
a. The banning of H and EH vehicles is unfair, discriminatory, and arbitrary and thus contravenes the EQUAL PROTECTION CLAUSE; and
b. The LOI denies the owners of H and EH vehicles of due process, more specifically of their right to use and enjoy their private property and of their freedom to travel and hold family gatherings, reunions, outings on week-ends and holidays, while those not included in the prohibition are enjoying unrestricted freedom;
c. The Circular violates the prohibition against undue delegation of legislative power because the LOI does not impose the penalty of confiscation.
1. It must be pointed out that the LOI was promulgated to solve the oil crisis which was besetting the country at that time. It was therefore a valid police power measure to ensures the country's economy as a result of spiralling fuel prices. In the interplay of Bautista's right to due process and the exercise of police power by the State, the latter must be given leeway. The police power is intended to promote public health, public morals, public safety and general welfare.
2. The petitioners' claim that their right to equal protection was violated is without basis. This is so because there is a valid classification in this case. Definitely, Heavy and Extra-Heavy vehicles consume more gasoline that the other kinds of vehicles and it is but proper to regulate the use of those which consumes more gasoline. If all the owner of H and EH vehicles are treated in the same fashion, or whatever restrictions cast on some in the group is held equally binding on the rest, there is no violation of the equal protection clause.
3. The penalty of "impounding" the vehicle as embodied in Circular No. 39 has no statutory basis. Therefore, it is not valid being an "ultra vires".
ASSOCIATION OF SMALL LANDOWNERS VS. SECRETARY OF AGRARIAN REFORM, 175 SCRA 343
DECS VS. SAN DIEGO, 180 SCRA 533
VILLANUEVA VS. CASTANEDA, September 21, 1987
5-a. Not a valid exercise of police power
CITY GOVERNMENT OF QUEZON CITY VS. ERICTA, 122 SCRA 759
Section 1---NO PERSON SHALL BE DEPRIVED OF LIFE, LIBERTY OR PROPERTY WITHOUT DUE PROCESS OF LAW, NOR SHALL ANY PERSON BE DENIED EQUAL PROTECTION OF THE LAWS.
Kinds of Due Process:
substantive due process---requires the intrinsic validity of the law in interfering with the rights of the person to life, liberty or property. In short, it is to determine whether it has a valid governmental objective like for the interest of the public as against mere particular class.
Procedural due process---one which hears before it condemns as pointed out by Daniel Webster.
Due process is a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial (Per Daniel Webster in the DARTMOUTH COLLEGE CASE)
Due process have different requisites in:
Due process before judicial bodies or judicial due process;
Due process before administrative bodies;
Due process before the labor tribunals; and
Due process involving students.
If the proceeding is not covered by any of the above, due process may not be invoked if one was “not given the right to be heard”.
On July 5, 2005 respondent Franklin M. Drilon , then the president of the Liberal Party (LP), announced his party’s withdrawal of support for the administration of President Gloria Macapagal-Arroyo. But petitioner Jose L. Atienza, Jr., LP Chairman, and a number of party members denounced Drilon’s move, claiming that he made the announcement without consulting his party.
On March 2, 2006 petitioner Atienza hosted a party conference to supposedly discuss local autonomy and party matters but, when convened, the assembly proceeded to declare all positions in the LP’s ruling body vacant and elected new officers, with Atienza as LP president. Respondent Drilon immediately filed a petition with the Commission on Elections (COMELEC) to nullify the elections. He claimed that it was illegal considering that the party’s electing bodies, the National Executive Council (NECO) and the National Political Council (NAPOLCO), were not properly convened. Drilon also claimed that under the amended LP Constitution, party officers were elected to a fixed three-year term that was yet to end on November 30, 2007.
On the other hand, petitioner Atienza claimed that the majority of the LP’s NECO and NAPOLCO attended the March 2, 2006 assembly. The election of new officers on that occasion could be likened to “people power,” wherein the LP majority removed respondent Drilon as president by direct action. Atienza also said that the amendments to the original LP Constitution, or the Salonga Constitution, giving LP officers a fixed three-year term, had not been properly ratified. Consequently, the term of Drilon and the other officers already ended on July 24, 2006
On October 13, 2006, the COMELEC issued a resolution, partially granting respondent Drilon’s petition. It annulled the March 2, 2006 elections and ordered the holding of a new election under COMELEC supervision. It held that the election of petitioner Atienza and the others with him was invalid since the electing assembly did not convene in accordance with the Salonga Constitution. But, since the amendments to the Salonga Constitution had not been properly ratified, Drilon’s term may be deemed to have ended. Thus, he held the position of LP president in a holdover capacity until new officers were elected.
Both sides of the dispute went to the Supreme Court to challenge the COMELEC rulings. On April 17, 2007 a divided Court issued a resolution, granting respondent Drilon’s petition and denying that of petitioner Atienza. The Court held, through the majority, that the COMELEC had jurisdiction over the intra-party leadership dispute; that the Salonga Constitution had been validly amended; and that, as a consequence, respondent Drilon’s term as LP president was to end only on November 30, 2007.
Subsequently, the LP held a NECO meeting to elect new party leaders before respondent Drilon’s term expired. Fifty-nine NECO members out of the 87 who were supposedly qualified to vote attended. Before the election, however, several persons associated with petitioner Atienza sought to clarify their membership status and raised issues regarding the composition of the NECO. Eventually, that meeting installed respondent Manuel A. Roxas II (Roxas) as the new LP president.
On January 11, 2008 petitioners Atienza, Matias V. Defensor, Jr., Rodolfo G. Valencia, Danilo E. Suarez, Solomon R. Chungalao, Salvacion Zaldivar-Perez, Harlin Cast-Abayon, Melvin G. Macusi, and Eleazar P. Quinto, filed a petition for mandatory and prohibitory injunction before the COMELEC against respondents Roxas, Drilon and J.R. Nereus O. Acosta, the party secretary general. Atienza, et al. sought to enjoin Roxas from assuming the presidency of the LP, claiming that the NECO assembly which elected him was invalidly convened. They questioned the existence of a quorum and claimed that the NECO composition ought to have been based on a list appearing in the party’s 60th Anniversary Souvenir Program. Both Atienza and Drilon adopted that list as common exhibit in the earlier cases and it showed that the NECO had 103 members.
Petitioners Atienza, et al. also complained that Atienza, the incumbent party chairman, was not invited to the NECO meeting and that some members, like petitioner Defensor, were given the status of “guests” during the meeting. Atienza’s allies allegedly raised these issues but respondent Drilon arbitrarily thumbed them down and “railroaded” the proceedings. He suspended the meeting and moved it to another room, where Roxas was elected without notice to Atienza’s allies.
On the other hand, respondents Roxas, et al. claimed that Roxas’ election as LP president faithfully complied with the provisions of the amended LP Constitution. The party’s 60th Anniversary Souvenir Program could not be used for determining the NECO members because supervening events changed the body’s number and composition. Some NECO members had died, voluntarily resigned, or had gone on leave after accepting positions in the government. Others had lost their re-election bid or did not run in the May 2007 elections, making them ineligible to serve as NECO members. LP members who got elected to public office also became part of the NECO. Certain persons of national stature also became NECO members upon respondent Drilon’s nomination, a privilege granted the LP president under the amended LP Constitution. In other words, the NECO membership was not fixed or static; it changed due to supervening circumstances.
Respondents Roxas, et al. also claimed that the party deemed petitioners Atienza, Zaldivar-Perez, and Cast-Abayon resigned for holding the illegal election of LP officers on March 2, 2006. This was pursuant to a March 14, 2006 NAPOLCO resolution that NECO subsequently ratified. Meanwhile, certain NECO members, like petitioners Defensor, Valencia, and Suarez, forfeited their party membership when they ran under other political parties during the May 2007 elections. They were dropped from the roster of LP members.
On June 18, 2009 the COMELEC issued the assailed resolution denying petitioners Atienza, et al.’s petition. It noted that the May 2007 elections necessarily changed the composition of the NECO since the amended LP Constitution explicitly made incumbent senators, members of the House of Representatives, governors and mayors members of that body. That some lost or won these positions in the May 2007 elections affected the NECO membership. Petitioners failed to prove that the NECO which elected Roxas as LP president was not properly convened.
As for the validity of petitioners Atienza, et al.’s expulsion as LP members, the COMELEC observed that this was a membership issue that related to disciplinary action within the political party. The COMELEC treated it as an internal party matter that was beyond its jurisdiction to resolve.
Without filing a motion for reconsideration of the COMELEC resolution, petitioners Atienza, et al. filed this petition for certiorari under Rule 65.
I S S U E
Whether or not respondents Roxas, et al. violated petitioners Atienza, et al.’s constitutional right to due process by the latter’s expulsion from the party.
Petitioners Atienza, et al. argue that their expulsion from the party is not a simple issue of party membership or discipline; it involves a violation of their constitutionally-protected right to due process of law. They claim that the NAPOLCO and the NECO should have first summoned them to a hearing before summarily expelling them from the party. According to Atienza, et al., proceedings on party discipline are the equivalent of administrative proceedings and are, therefore, covered by the due process requirements laid down in Ang Tibay v. Court of Industrial Relations.
But the requirements of administrative due process do not apply to the internal affairs of political parties. The due process standards set in Ang Tibay cover only administrative bodies created by the state and through which certain governmental acts or functions are performed. An administrative agency or instrumentality “contemplates an authority to which the state delegates governmental power for the performance of a state function.” The constitutional limitations that generally apply to the exercise of the state’s powers thus, apply too, to administrative bodies
The constitutional limitations on the exercise of the state’s powers are found in Article III of the Constitution or the Bill of Rights. The Bill of Rights, which guarantees against the taking of life, property, or liberty without due process under Section 1 is generally a limitation on the state’s powers in relation to the rights of its citizens. The right to due process is meant to protect ordinary citizens against arbitrary government action, but not from acts committed by private individuals or entities. In the latter case, the specific statutes that provide reliefs from such private acts apply. The right to due process guards against unwarranted encroachment by the state into the fundamental rights of its citizens and cannot be invoked in private controversies involving private parties.
Although political parties play an important role in our democratic set-up as an intermediary between the state and its citizens, it is still a private organization, not a state instrument. The discipline of members by a political party does not involve the right to life, liberty or property within the meaning of the due process clause. An individual has no vested right, as against the state, to be accepted or to prevent his removal by a political party. The only rights, if any, that party members may have, in relation to other party members, correspond to those that may have been freely agreed upon among themselves through their charter, which is a contract among the party members. Members whose rights under their charter may have been violated have recourse to courts of law for the enforcement of those rights, but not as a due process issue against the government or any of its agencies.
But even when recourse to courts of law may be made, courts will ordinarily not interfere in membership and disciplinary matters within a political party. A political party is free to conduct its internal affairs, pursuant to its constitutionally-protected right to free association. In Sinaca v. Mula, the Court said that judicial restraint in internal party matters serves the public interest by allowing the political processes to operate without undue interference. It is also consistent with the state policy of allowing a free and open party system to evolve, according to the free choice of the people.
To conclude, the COMELEC did not gravely abuse its discretion when it upheld Roxas’ election as LP president but refused to rule on the validity of Atienza, et al.’s expulsion from the party. While the question of party leadership has implications on the COMELEC’s performance of its functions under Section 2, Article IX-C of the Constitution, the same cannot be said of the issue pertaining to Atienza, et al.’s expulsion from the LP. Such expulsion is for the moment an issue of party membership and discipline, in which the COMELEC cannot intervene, given the limited scope of its power over political parties.
Requisites of “judicial due process”.
BANCO ESPANOL VS. PALANCA, 37 Phil. 921
There must be an impartial court or tribunal clothed with judicial power to hear and decide the matter before it;
Jurisdiction must be lawfully acquired over the person of the defendant or over the property subject of the proceedings;
The defendant must be given the opportunity to be heard;
Judgment must be rendered only after lawful hearing.
a. GALMAN VS. PAMARAN (the 1st case)
IMELDA MARCOS VS. SANDIGANBAYAN, October 6, 1998
On June 8, 1984, IMELDA MARCOS and JOSE DANS, as Chairman and Vice Chairman of the Light Railway Transit Authority (LRTA) entered into a Lease Contract with the Philippine General Hospital Foundation (PGHFI) involving an LRTA property in Pasay City for P102,760.00 per month for 25 years;
On June 27,1984, the PGHFI subleased the said property for P734,000.00 per month to the Transnational Construction Corporation represented by one Ignacio Jumenez;
After petitioner’s husband was deposed as President of the Philippines, she and Dans were charged of alleged violation of Section 3 [g] of RA 3019, otherwise known as the Anti-Graft and Corrupt Practices Act before the Sandiganbayan;
After trial , the First Division of the Sandiganbayan failed to comply with the legal requirement that all the 3 justices must be unanimous in its Decision because Justice Garchitorena and Justice Jose Balajadia voted for the conviction of both accused while Justice Narciso Atienza voted to acquit them;
Thereafter, Justice Garchitorena as Presiding Justice issued Administrative Order No. 288-93 constituting a Special Division of five and designating Justices Augusto Amores and Cipriano del Rosario;
On September 21, 1993, Justice Amores wrote Justice Garchitorena that he be given 15 days his Manifestation. On the same date, however, Justice Garchitorena dissolved the division of 5 allegedly because he and Justice Balajadia had agreed to the opinion of Justice del Rosario;
On September 24, 1993, a Decision was rendered convicting the petitioner and Dans of violation of Sec. 3 [g] of RA 3019;
On June 29, 1998, the Third Division of the Supreme Court by a vote of 3-2 affirmed the conviction of the petitioner but acquitted DANS;
Petitioner then filed a Motion for Reconsideration and at the same time prayed that her Motion be heard by the Supreme Court en banc claiming that her right to due process of law, both substantive and procedural, was violated:
as a result of the fact that she was convicted as a result of the alleged disparity of the rentals agreed upon with PGHFI and the subsequent sub-lease contract between PGHFI and Transnational Construction Corporation; and
the First Division convicted her after Justice Garchitorena dissolved the Special Division of 5 after a lunch in a Quezon City restaurant where they agreed to convict her in one case and acquit her in her other cases. The said meeting was attended by another justice who is not a member of the First Division or the Special Division in violation of the Rules of the Sandiganbayan which requires that sessions of the court shall be done only in its principal office in Manila and that only justices belonging to the division should join the deliberations.
The petitioner is hereby acquitted.
1. The great disparity between the rental price of the lease agreement signed by the petitioner (P102,760.00 per month) and the sub-lease rental (P734,000.00 per month) does not necessarily render the monthly rate of P102,760.00 manifestly and grossly disadvantageous to the government in the absence of any evidence using rentals of adjacent properties showing that the rentals in the property subject of the lease agreement is indeed very low. NO EVIDENCE WHATSOEVER WAS PRESENTED BY THE PROSECUTION REGARDING THE RENTAL RATE OF ADJACENT PROPERTIES.. As such, the prosecution failed to prove the guilt of the petitioner reasonable doubt.
2. The court notes likewise the bias and prejudice of Presiding Justice Garchitorena against the petitioner as shown by his leading, misleading and baseless hypothetical questions of said justice to RAMON F. CUERVO, witness for the petitioner. Said justice asked 179 questions to the witness as against the prosecutor who cross-examined the witness and asked 73. Said number of questions could no longer be described as “clarificatory questions”. Another ground therefore for the acquittal of the petitioner is that she was denied IMPARTIAL TRIAL before the Sandiganbayan. This is one reason why the case could no longer be remanded to the Sandiganbayan especially so that the other Sandiganbayan Justices in the Special Division of 5 have retired. There is therefore no compelling reason why the case should still be remanded to the lower court when all the evidence are already with the Supreme Court.
(NOTE: The vote was 9-5 for Acquittal. CJ Narvasa, Justices Regalado, Davide, Jr., Romero, and Panganiban voted for conviction while Justice Vitug was the only Justice who voted for the return of the case to the Sandiganbayan “to allow the corrections of the perceived ‘irregularities’ in the proceedings below.”)
DBP VS. CA, January 29, 1999 (Repeated failure of a party to present evidence justifies the court to consider the case submitted for decision and hold that the party has waived the right to present evidence)
MATUGUINA VS. CA, 263 SCRA 490
PEOPLE VS. CA, 262 SCRA 452
JAVIER VS. COMELEC, 144 SCRA 194
1. The petitioner Evelio Javier and the private respondent Arturo Pacificador were candidates in Antique for the Batasang Pambansa election in May 1984;
2. Alleging serious anomalies in the conduct of the elections and the canvass of the election returns, Javier went to the COMELEC to prevent the impending proclamation of his rival;
3. On May 18, 1984, the Second Division of the COMELEC directed the provincial board of canvassers to proceed with the canvass but to suspend the proclamation of the winning candidate until further orders;
4. On June 7, 1984, the same Second Division ordered the board to immediately convene and to proclaim the winner without prejudice to the outcome of the petition filed by Javier with the COMELEC;
5. On certiorari with the S.C. the proclamation made by the Board of Canvassers was set aside as premature, having been made before the lapse of the 5 - day period of appeal, which the petitioner seasonably made;
6. On July 23, 1984 the Second Division itself proclaimed Pacificador the elected assemblyman of Antique.
Was the Second Division of the COMELEC, authorized to promulgate its decision of July 23, 1984 proclaiming Pacificador the winner in the election ?
APPLICABLE PROVISIONS OF THE CONSITUTION:
The applicable provisions of the 1973 Constitution are Art. XII-C, secs. 2 and 3, which provide:
"Section 2. Be the sole judge of all contests relating to the election, returns and qualifications of all members of the Batasang Pambansa and elective provincial and city officials."
"Section 3. The Commission on Elections may sit en banc or in three divisions. All election cases may be heard and decided by divisions except contests involving members of the Batasang Pambansa, which shall be heard and decided en banc. Unless otherwise provided by law, all election cases shall be decided within ninety days from the date of their submission for decision."
CONTENTIONS OF THE PARTIES:
The proclamation made by the Second Division is invalid because all contests involving members of the Batasang Pambansa come under the jurisdiction of the Commission on Elections en banc.
Only "contests" need to be heard and decided en banc, all other cases can be - in fact, should be - filed with and decided only by any of the three divisions.
There is a difference between "contests" and "cases" and also a difference between "pre-proclamation controversies" and "election protests". The pre-proclamation controversy between the petitioner and the private respondent was not yet a contest at the time and therefore could be validly heard by a mere division of the Commission on elections, consonant with Sec. 3. The issue at that stage was still administrative and could be resolved by a division.
a. The S.C. decided to resolve the case even if the Batasang Pambansa had already been abolished by the Aquino government, and even if Javier had already died in the meantime. This was because of its desire for this case to serve as a guidance for the future. Thus it said: "The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the government. The citizen comes to us in quest of law but we must also give him justice. The two are not always the same. There are times when we cannot grant the latter because the issue has been settled and decision is no longer possible according to law. But there are also times when although the dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that we act, then, not only for the vindication of the outraged right, though gone, but also for the guidance of and as a restraint upon the future."
b. The S.C. held on the main issue that in making the COMELEC the sole judge of all contests involving the election, returns and qualifications of the members of the Batasang Pambansa and elective provincial and city officials, the Constitution intended to give it full authority to hear and decide these cases from beginning to end and on all matter related thereto, including those arising before the proclamation of the winners.
The decision rendered by the Second Division alone was therefore set aside as violative of the Constitution. The case should have been decided en banc.
c. Pre-proclamation controversies became known and designated as such only because of Sec. 175 of the 1978 Election Code. The 1973 Constitution could not have therefore been intended to have divided contests between pre and post proclamation when that Constitution was written in 1973.
d. The word "contests" should not be given a restrictive meaning; on the contrary, it should receive the widest possible scope conformably to the rule that the words used in the Constitution should be interpreted liberally. As employed in the 1973 Constitution, the term should be understood as referring to any matter involving the title or claim of title to an elective office, made before or after the proclamation of the winner, whether or not the contestant is claiming the office in dispute.
e. There was also a denial of due process. One of the members of the Second Division, Commissioner Jaime Opinion was a law partner of Pacificador. He denied the motion to disqualify him from hearing the case. The Court has repeatedly and consistently demanded "the cold neutrality of an impartial judge" as the indispensable imperative of due process. To bolster that requirement we have held that the judge must not only be impartial but must also appear to be impartial as an added assurance to the parties that his decision will be just.
AZUL VS. CASTRO, 133 SCRA 271
PADERANGA VS. AZURA, 136 SCRA 266
DAVID VS. AQUILIZAN, 94 SCRA 707
LORENZANA VS. CAYETANO, 78 SCRA 485 (respondent was not a party to the ejectment case) so to enforce the decision on her violates her right to due process of law
ZAMBALES CHROMITE MINING VS. CA, 94 SCRA 261
ANZALDO VS. CLAVE, 119 SCRA 353
SINGSON VS. NLRC, 273 SCRA 258
ANZALDO VS. CLAVE, 119 SCRA 353
MAYOR ALONTE VS. JUDGE SAVELLANO, 287 SCRA 245
Mayor Alonte of Binan, Laguna was charged of rape before Branch 25, RTC of Laguna. However, as a result of a petition for a transfer of venue filed by the prosecution and granted by the SC, his case was transferred to RTC Branch 53, Manila, presided over by the respondent judge.
After the petitioner’s arraignment, the prosecution submitted an AFFIDAVIT OF DESISTANCE signed by the private complainant JUVIE-LYN PUNONGBAYAN where she prayed for the withdrawal of the case because she is no longer interested in pursuing the same with no intention of re-filing the said case in the future.
Pending resolution of the said motion to withdraw, the petitioner filed a motion for bail. The same was not resolved despite several motions filed by the petitioner to resolve the same.
On December 17, 1997, counsel for the petitioner, ATTY. PHILIP SIGFRID FORTUN, received a notice from the respondent judge notifying him of the promulgation of the decision in this case despite the fact that the prosecution and the defense have not presented their evidence in court.
On December 18, 1997, the respondent judge issued a Decision convicting the petitioner of rape and sentenced to suffer a penalty of RECLUSION PERPETUA.
Whether or not the petitioner was denied his right to due process of law.
In order that an accused in a criminal proceedings is deemed to have been given the right to due process of law, the following requisites must be complied with before a decision is rendered:
the court or tribunal trying the case is clothed with jurisdiction to hear and determine the matter before it;
that jurisdiction was lawfully acquired by it over the person of the accused;
that the accused is given the opportunity to be heard; and
that judgment is rendered only upon lawful hearing (PEOPLE VS. DAPITAN, 197 SCRA 378)
The act of the respondent judge in rendering a decision without even giving the petitioner the right to adduce evidence in his behalf is a gross violation of his right to due process of law. The Decision rendered is NULL AND VOID for want of due process.
As long as there is a notice to a party in the hearing of a motion on the custody of their children in a Declaration of Nullity of Marriage case, there is no violation of the right to due process.
Petitioner raises the question of whether the 30 March 2004 decision and the 17 May 2004 resolution of the trial court giving custody to their children have attained finality despite the alleged denial of due process since she was not present during the hearing.
Petitioner contends she was denied due process when her counsel failed to file pleadings and appear at the hearings for respondent’s omnibus motion to amend the partial judgment as regards the custody of the children and the properties in her possession. Petitioner claims the trial court issued the 17 May 2004 resolution relying solely on the testimony of respondent. Respondent stresses neither petitioner nor her counsel appeared in court at the hearings on respondent's omnibus motion or on petitioner’s motion to dismiss.
We also ruled in Tuason that notice sent to the counsel of record is binding upon the client and the neglect or failure of the counsel to inform the client of an adverse judgment resulting in the loss of the latter’s right to appeal is not a ground for setting aside a judgment valid and regular on its face.
Further, petitioner cannot claim that she was denied due process. While she may have lost her right to present evidence due to the supposed negligence of her counsel, she cannot say she was denied her day in court. Records show petitioner, through counsel, actively participated in the proceedings below, filing motion after motion. Contrary to petitioner’s allegation of negligence of her counsel, we have reason to believe the negligence in pursuing the case was on petitioner’s end, as may be gleaned from her counsel’s manifestation dated 3 May 2004:
Undersigned Counsel, who appeared for petitioner, in the nullity proceedings, respectfully informs the Honorable Court that she has not heard from petitioner since Holy Week. Attempts to call petitioner have failed.
Undersigned counsel regrets therefore that she is unable to respond in an intelligent manner to the Motion (Omnibus Motion) filed by respondent.
Clearly, despite her counsel’s efforts to reach her, petitioner showed utter disinterest in the hearings on respondent’s omnibus motion seeking, among others, custody of the children. The trial judge was left with no other recourse but to proceed with the hearings and rule on the motion based on the evidence presented by respondent. Petitioner cannot now come to this Court crying denial of due process.
The right of the accused to due process of law was violated when the judge issued a warrant for her arrest even though she has not received any notice for her arraignment before the Municipal Trial Court of Baguio City because the notice was actually sent to her through the Chief of Police of Quezon City.
Noryn S. Tan (complainant) filed a Complaint dated April 2, 2007 against Judge Maria Clarita Casuga-Tabin (respondent) of the Municipal Trial Court in Cities (MTCC), Branch 4, Baguio City for denial of due process relative to Criminal Case No. 118628.
Complainant avers: On November 9, 2006, the Philippine National
Police (PNP) Quezon City Police District (QCPD) served her a warrant
of arrest dated October 13, 2006, issued by the MTCC Baguio City,
Branch 4, presided by respondent, relative to Criminal Case No.
118628 for alleged violation of Batas Pambansa Blg. 22.
It was only then that she learned for the first time that a criminal
case was filed against her before the court. She was detained
at the Quezon City Hall Complex Police Office and had to post bail of
P1,000.00 before the Office of the Executive Judge
of the Regional Trial Court (RTC) of Quezon City for her temporary
release. Upon verification, she learned that respondent issued
on August 8, 2006 an Order directing her to appear before the court
on October 10, 2006 for arraignment. It was sent by mail to PNP
Quezon City for service to her. However, she did not receive
any copy of the Order and up to the present has not seen the same;
hence, she was not able to attend her arraignment. She also
found out that there was no proof of service of the Order or any
notice to her of the arraignment. This notwithstanding,
respondent issued a warrant for her arrest. Complainant alleges
that she was deeply aggrieved and embarrassed by the issuance of the
warrant for her arrest despite the fact that she was never notified
of her arraignment. Complainant prayed that the appropriate
investigation be conducted as to the undue issuance of a warrant for
In her Comment dated July 5, 2007, respondent answered: She issued the warrant of arrest because when the case was called for appearance, the complainant, as accused therein, failed to appear. Prior to the issuance of the warrant of arrest, her staff sent by registered mail the court's Order dated August 8, 2006 addressed to complainant “through the Chief of Police, PNP, 1104, Quezon City” directing complainant to appear on October 10, 2006 at 8:30 a.m. for the arraignment and preliminary conference in Criminal Case No. 118628, as proven by Registry Receipt No. 0310. It is true that the return on the court's Order dated August 8, 2006 had not yet been made by the QC Police on or before October 10, 2006. Nonetheless, she issued the warrant of arrest in good faith and upon the following grounds: (a) under Sec. 3 of Rule 131 of the Rules of Court, the court was entitled to presume that on October 10, 2006, after the lapse of a little over two months, official duty had been regularly performed and a letter duly directed and mailed had been received in the regular course of mail; and (b) Sec. 12 of the 1983 Rule on Summary Procedure in Special Cases provides that bail may be required where the accused does not reside in the place where the violation of the law or ordinance was committed. The warrant of arrest she issued was meant to implement this provision, which was not repealed by the 1991 Revised Rule on Summary Procedure, since complainant is a resident of Quezon City and not of Baguio City. If her interpretation was erroneous, she (respondent) believes that an administrative sanction for such error would be harsh and unsympathetic. She has nothing personal against complainant and did not want to embarrass or humiliate her. She issued the warrant in the honest belief that her act was in compliance with the rules. She prays that the case against her be dismissed and that a ruling on the interpretation of Secs. 10 & 12, of the 1983 Rule on Summary Procedure in Special Cases, in relation to Sec. 16 of the 1991 Revised Rule on Summary Procedure be made for the guidance of the bench and bar.
Whenever a criminal case falls under the Summary Procedure, the general rule is that the court shall not order the arrest of the accused, unless the accused fails to appear whenever required. This is clearly provided in Section 16 of the 1991 Revised Rule on Summary Procedure which states:
Sec. 16. Arrest of accused. - The court shall not order the arrest of the accused except for failure to appear whenever required. Release of the person arrested shall either be in bail or on recognizance by a responsible citizen acceptable to the court. (Emphasis supplied)
In this case, respondent claims that the issuance of a warrant for the arrest of complainant was justified, since complainant failed to appear during the arraignment in spite of an order requiring her to do so. Respondent admits, however, that a copy of the Order dated August 8, 2006, was sent to complainant “through the Chief of Police, PNP, 1104, Quezon City.”
While it is true that the Rules of Court provides for presumptions, one of which is that official duty has been regularly performed, such presumption should not be the sole basis of a magistrate in concluding that a person called to court has failed to appear as required, which in turn justifies the issuance of a warrant for her arrest, when such notice was not actually addressed to her residence but to the police in her city. So basic and fundamental is a person's right to liberty that it should not be taken lightly or brushed aside with the presumption that the police through which the notice had been sent, actually served the same on complainant whose address was not even specified.
The Court has held that a judge commits grave abuse of authority when she hastily issues a warrant of arrest against the accused in violation of the summary procedure rule that the accused should first be notified of the charges against him and given the opportunity to file his counter-affidavits and countervailing evidence .
Hence, complainant’s right to due process was violated.
Considering that this is respondent's first administrative infraction
in her more than 8 years of service in the judiciary, which serves to
mitigate her liability, the Court holds the imposition of a fine in
the amount of
P10,000.00 to be proper in this case.
Procedural due process before administrative bodies
TIBAY VS. CIR, 69 Phil. 635
the right to a hearing which includes the right to present evidence;
the tribunal must consider the evidence presented;
the decision must have something to support itself;
the evidence must be substantial;
the decision must be based on the evidence presented during the hearing;
the tribunal or body must act on its own independent consideration of the law or facts;
the board or body shall in all controversial questions, render its decision in such a manner that the parties to the proceedings can know the various issues involved.
AMERICAN TOBACCO VS. DIRECTOR, 67 SCRA 287
MANILA ELECTRIC COMPANY VS. NLRC, 263 SCRA 531
DELGADO VS. CA, November 10, 1986
If an accused was represented by a non-lawyer during the trial (though she thought that he is a lawyer), her right to due process was violated and therefore entitled to a new trial.
e. PEDRO CONSULTA VS. PEOPLE, G.R. No. 179462, February 12, 2009
Whether or not appellant was denied due process having been represented by a fake lawyer during arraignment, pre-trial and presentation of principal witnesses for the prosecution.
On the matter of accused-appellant’s claim of having been denied due process, an examination of the records shows that while accused-appellant was represented by Atty. Jocelyn P. Reyes, who “seems not a lawyer,” during the early stages of trial, the latter withdrew her appearance with the conformity of the former as early as July 28, 2000 and subsequently, approved by the RTC in its Order dated August 4, 2000. Thereafter, accused-appellant was represented by Atty. Rainald C. Paggao from the Public Defender’s (Attorney’s) Office of Makati City. Since the accused-appellant was already represented by a member of the Philippine Bar who principally handled his defense, albeit unsuccessfully, then he cannot now be heard to complain about having been denied of due process.
That appellant’s first counsel may not have been a member of the bar does not dent the proven fact that appellant prevented Nelia and company from proceeding to their destination. Further, appellant was afforded competent representation by the Public Attorneys’ Office during the presentation by the prosecution of the medico-legal officer and during the presentation of his evidence. People v. Elesterio1 enlightens:
“As for the circumstance that the defense counsel turned out later to be a non-lawyer, it is observed that he was chosen by the accused himself and that his representation does not change the fact that Elesterio was undeniably carrying an unlicensed firearm when he was arrested. At any rate, he has since been represented by a member of the Philippine bar, who prepared the petition for habeas corpus and the appellant’s brief.”
Procedural due process in disciplinary actions against students
Academic freedom; due process in disciplinary actions involving students
DE LA SALLE UNIVERSITY VS. COURT OF APPEALS, HON.WILFREDO D. REYES, in his capacity as Presiding Judge of Branch 36, Regional Trial Court of Manila, THE COMMISSION ON HIGHER EDUCATION, THE DEPARTMENT OF EDUCATION CULTURE AND SPORTS, ALVIN AGUILAR, JAMES PAUL BUNGUBUNG, RICHARD REVERENTE and ROBERTO VALDES, JR., G.R. No. 127980, December 19, 2007
REYES, R.T., J.:
PRIVATE respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of Tau Gamma Phi Fraternity who were expelled by the De La Salle University (DLSU) and College of Saint Benilde (CSB) Joint Discipline Board because of their involvement in an offensive action causing injuries to petitioner James Yap and three other student members of Domino Lux Fraternity.
The mauling incidents were a result of a fraternity war. The victims, namely: petitioner James Yap and Dennis Pascual, Ericson Cano, and Michael Perez, are members of the “Domino Lux Fraternity,” while the alleged assailants, private respondents Alvin Aguilar, James Paul Bungubung, Richard Reverente and Roberto Valdes, Jr. are members of “Tau Gamma Phi Fraternity,” a rival fraternity.
The next day, March 30, 1995, petitioner Yap lodged a complaint with the Discipline Board of DLSU charging private respondents with “direct assault.” Similar complaints were also filed by Dennis Pascual and Ericson Cano against Alvin Lee and private respondents Valdes and Reverente. Thus, cases entitled “De La Salle University and College of St. Benilde v. Alvin Aguilar (AB-BSM/9152105), James Paul Bungubung (AB-PSM/9234403), Robert R. Valdes, Jr. (BS-BS-APM/9235086), Alvin Lee (EDD/9462325), Richard Reverente (AB-MGT/9153837) and Malvin A. Papio (AB-MGT/9251227)” were docketed as Discipline Case No. 9495-3-25121.
The Director of the DLSU Discipline Office sent separate notices to private respondents Aguilar, Bungubung and Valdes, Jr. and Reverente informing them of the complaints and requiring them to answer. Private respondents filed their respective answers.
Said notices issued by De La Salle Discipline Board uniformly stated as follows:
Please be informed that a joint and expanded Discipline Board had been constituted to hear and deliberate the charge against you for violation of CHED Order No. 4 arising from the written complaints of James Yap, Dennis C. Pascual, and Ericson Y. Cano.
You are directed to appear at the hearing of the Board scheduled on April 19, 1995 at 9:00 a.m. at the Bro. Connon Hall for you and your witnesses to give testimony and present evidence in your behalf. You may be assisted by a lawyer when you give your testimony or those of your witnesses.
During the proceedings before the Board on April 19 and 28, 1995, private respondents interposed the common defense of alibi. No full-blown hearing was conducted nor the students allowed to cross-examine the witnesses against them.
On May 3, 1995, the DLSU-CSB Joint Discipline Board issued a Resolution finding private respondents guilty. They were meted the supreme penalty of automatic expulsion pursuant to CHED Order No. 4. The dispositive part of the resolution reads:
WHEREFORE, considering all the foregoing, the Board finds respondents ALVIN AGUILAR (AB-BSM/9152105), JAMES PAUL BUNGUBUNG (AB-PSM/9234403), ALVIN LEE (EDD/94623250) and RICHARD V. REVERENTE (AB-MGT/9153837) guilty of having violated CHED Order No. 4 and thereby orders their automatic expulsion.
In the case of respondent MALVIN A. PAPIO (AB-MGT/9251227), the Board acquits him of the charge.
I S S U E
Were private respondents accorded due process of law because there was no full-blown hearing nor were they allowed to cross-examine the witnesses against them?
H E L D:
Private respondents’ right to due process of law was not violated.
In administrative cases, such as investigations of students found violating school discipline, “[t]here are withal minimum standards which must be met before to satisfy the demands of procedural due process and these are: that (1) the students must be informed in writing of the nature and cause of any accusation against them; (2) they shall have the right to answer the charges against them and with the assistance if counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.”
Where a party was afforded an opportunity to participate in the proceedings but failed to do so, he cannot complain of deprivation of due process. Notice and hearing is the bulwark of administrative due process, the right to which is among the primary rights that must be respected even in administrative proceedings. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek reconsideration of the action or ruling complained of. So long as the party is given the opportunity to advocate her cause or defend her interest in due course, it cannot be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances, essential to due process – it is enough that the parties are given a fair and reasonable opportunity to explain their respective sides of the controversy and to present supporting evidence on which a fair decision can be based. “To be heard” does not only mean presentation of testimonial evidence in court – one may also be heard through pleadings and where the opportunity to be heard through pleadings is accorded, there is no denial of due process.
Private respondents were duly informed in writing of the charges against them by the DLSU-CSB Joint Discipline Board through petitioner Sales. They were given the opportunity to answer the charges against them as they, in fact, submitted their respective answers. They were also informed of the evidence presented against them as they attended all the hearings before the Board. Moreover, private respondents were given the right to adduce evidence on their behalf and they did. Lastly, the Discipline Board considered all the pieces of evidence submitted to it by all the parties before rendering its resolution in Discipline Case No. 9495-3-25121.
Private respondents cannot claim that they were denied due process when they were not allowed to cross-examine the witnesses against them. This argument was already rejected in Guzman v. National University] where this Court held that “x x x the imposition of disciplinary sanctions requires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary; and cross examination is not, x x x an essential part thereof.”
Petitioners who are students of the National University were barred from enrolment. The school claims that their scholastic standing is poor and that they have been involved in activities that have disrupted classes and had conducted mass actions without the required permits.
a. It is apparent that despite the accusations of alleged violations hurled by the school against the petitioners, the fact is that it had never conducted proceedings of any sort to determine whether or not petitioners-students had indeed led or participated "in activities within the university premises, conducted without prior permit from school authorities, that disturbed or disrupted classes therein".
Also apparent is the omission of respondents to cite any duly published rule of theirs by which students may be expelled or refused re-enrollment for poor scholastic standing.
b. Under the Education Act of 1982, students have the right "to freely choose their field of study subject to existing curricula and to continue their course therein up to graduation, EXCEPT in case of academic deficiency, or violation of disciplinary regulations."
The petitioner were denied of this right, and were being disciplined without due process, in violation of the admonition in the Manual of Regulations for Private Schools that "no penalty shall be imposed upon any student except for cause as defined in *** (the) Manuel and/or in the school rules and regulations as duly promulgated and only after due investigation shall have been conducted. It has already been held in Berina vs. Philippine Maritime Institute, 117 SCRA 581, that it is illegal of a school to impose sanctions on students without conducting due investigation.
c. Of course, all schools have the power to adopt and enforce its rules. In fact the maintenance of good school discipline is a duty specifically enjoined on every private school. The Manual of Regulations for Private Schools provides that:
"* * The school rules governing discipline and the corresponding sanctions therefor must be clearly specified and defined in writing and made known to the students and/or their parents or guardians. Schools shall have the authority and prerogative to promulgate such rules and regulations as they may deem necessary from time to time effective as of the date of their promulgation unless otherwise specified."
d. The imposition of disciplinary sanctions requires observance of procedural due process. Due process in disciplinary cases involving students :
a. need not entail proceedings and hearing similar to those prescribed for actions and proceedings in court of justice;
b. the proceedings may be summary;
c. cross-examination is not an essential part thereof.
But the S.C. said that the following minimum standards must be met to satisfy the demands of procedural due process:
1. the students must be informed in writing of the nature and cause of any accusation against them;
2. they shall have the right to answer the charges against them, with the assistance of counsel;
3. they shall be informed of the evidence against them;
4. they shall have the right to adduce evidence in their own behalf;
5. the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case.
BERINA VS. PMI, September 30, 1982
Due process in the dismissal of employees
Requisites of Due Process before the NLRC
MGG Marine Services vs. NLRC, 259 SCRA 664
Philippine Savings Bank vs. NLRC, 261 SCRA 409
RAYCOR AIR CONTROL VS. NLRC, 261 SCRA 589
WALLEM MARITIME SERVICES VS. NLRC, 263 SCRA 174
SAMILLANO VS. NLRC, 265 SCRA 788
STOLT-NIELSEN VS. NLRC, 264 SCRA 307
GARCIA VS. NLRC, 264 SCRA 261
Effect of a Motion for Reconsideration to violation of the right to due process
CASUELA VS. OFFICE OF THE OMBUDSMAN, 276 SCRA 635
CORDENILLO VS. EXECUTIVE SECRETARY, 276 SCRA 652
In administrative proceedings, does due process require that  a party be assisted by counsel and  be able to cross-examine the witnesses?
LUMIQUED VS. EXENEA, 282 SCRA 125
There is no law, whether the Civil Service Act or the Administrative Code of 1987, which provides that a respondent in an administrative case should be assisted by counsel in order that the proceedings therein is considered valid. Not only, that, petitioner herein was given the opportunity several times to engage the services of a lawyer to assist him but he confidently informed the investigators that he could protect himself.
Administrative Due Process before the Civil Service Commission does not require cross-examination of the complainant and his witnesses by the respondent.
ATTY. ROMEO ERECE VS. LYN MACALINGAY, ET AL., G.R. No. 166809, April 22, 2008
Petitioner is the Regional Director of the Commission on Human Rights (CHR) Region I, whose office is located in San Fernando City, La Union. Respondent employees of the CHR Region I filed an Affidavit-Complaint dated October 2, 1998 against petitioner alleging that he denied them the use of the office vehicle assigned to petitioner, that petitioner still claimed transportation allowance even if he was using the said vehicle, and that he certified that he did not use any government vehicle, when in fact he did, in order to collect transportation allowance.
Respondent filed his answer denying the allegations against him.
After a fact-finding investigation, the CSC Proper in CSC Resolution No. 99-1360 dated July 1, 1999 charged petitioner with Dishonesty and Grave Misconduct for using a government vehicle in spite of his receipt of the monthly transportation allowance and for certifying that he did not use any government vehicle, when in fact, he did, in order to receive the transportation allowance.
Pertinent portions of the formal charge read:
1. That despite the regular receipt of Erece of his monthly
Representation and Transportation Allowance (RATA) in the amount of
P4,000.00, he still prioritizes himself in the use
of the office vehicle (Tamaraw FX) in spite of the directive from the
Central Office that he cannot use the service vehicle for official
purposes and at the same time receive his transportation allowance;
2. That Erece did not comply with the directive of the Central Office addressed to all Regional Human Rights Directors, as follows: ‘to regularize your receipt of the transportation allowance component of the RATA to which you are entitled monthly, you are hereby directed to immediately transfer to any of your staff, preferably one of your lawyers, the memorandum receipt of the vehicle(s) now still in your name;’
3. That he certified in his monthly liquidation of his RATA that he did not use any government vehicle for the corresponding month, which is not true because he is the regular user of the government vehicle issued to CHR-Region I.
The foregoing facts and circumstances indicate that government service has been prejudiced by the acts of Erece.
WHEREFORE, Romeo L. Erece is hereby formally charged with Dishonesty and Grave Misconduct. Accordingly, he is given five (5) days from receipt hereof to submit his Answer under oath and affidavits of his witnesses, if any, to the Civil Service Commission-Cordillera Administrative Region (CSC-CAR). On his Answer, he should indicate whether he elects a formal investigation or waives his right thereto. Any Motion to Dismiss, request for clarification or Bills of Particulars shall not be entertained by the Commission. Any of these pleadings interposed by the respondent shall be considered as an Answer and shall be evaluated as such. Likewise, he is advised of his right to the assistance of counsel of his choice.2
After a formal investigation of the case, the CSC issued Resolution No. 020124, dated January 24. 2002, finding petitioner guilty of dishonesty and conduct prejudicial to the best interest of the service and penalizing him with dismissal from the service.
Petitioner filed a petition for review of the CSC Resolution with the CA.
In the Decision promulgated on January 7, 2005, the CA upheld the CSC Resolution, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the petition is DENIED and the assailed Resolutions of the Civil Service Commission are hereby AFFIRMED.
Hence, this petition.
I S S U E:
Petitioner raised the issue of violation of his right to due process because he was denied the right to cross-examine the respondents on their affidavit-complaint.
H e l d:
Petitioner contends that he was denied due process as he was not afforded the right to cross-examine his accusers and their witnesses. He stated that at his instance, in order to prevent delay in the disposition of the case, he was allowed to present evidence first to support the allegations in his Counter-Affidavit. After he rested his case, respondents did not present their evidence, but moved to submit their position paper and formal offer of evidence, which motion was granted by the CSC over his (petitioner’s) objection. Respondents then submitted their Position Paper and Formal Offer of Exhibits.
Petitioner submits that although he was allowed to present evidence first, it should not be construed as a waiver of his right to cross-examine the complainants. Although the order of presentation of evidence was not in conformity with the procedure, still petitioner should not be deemed to have lost his right to cross-examine his accusers and their witnesses. This may be allowed only if he expressly waived said right.
The Court agrees with the CA that petitioner was not denied due process when he failed to cross-examine the complainants and their witnesses since he was given the opportunity to be heard and present his evidence. In administrative proceedings, the essence of due process is simply the opportunity to explain one’s side.
Velez v. De Vera it was held that :
Due process of law in administrative cases is not identical with “judicial process” for a trial in court is not always essential to due process. While a day in court is a matter of right in judicial proceedings, it is otherwise in administrative proceedings since they rest upon different principles. The due process clause guarantees no particular form of procedure and its requirements are not technical. Thus, in certain proceedings of administrative character, the right to a notice or hearing are not essential to due process of law. The constitutional requirement of due process is met by a fair hearing before a regularly established administrative agency or tribunal. It is not essential that hearings be had before the making of a determination if thereafter, there is available trial and tribunal before which all objections and defenses to the making of such determination may be raised and considered. One adequate hearing is all that due process requires. . . .
The right to cross-examine is not an indispensable aspect of due process. Nor is an actual hearing always essential. . . .
The dismissal of the petitioner from the government is valid.
There is violation of the right to due process of law if a party he is declared as having waived the right to file his answer despite improper service of summons.
LEONARDO-DE CASTRO, J.:
Datu Pax Pakung S. Mangudadatu (petitioner) and Angelo O. Montilla (private respondent) were congressional candidates for the First District of Sultan Kudarat during the May 14, 2007 national elections. Petitioner won by 17,451 votes and was proclaimed on May 22, 2007 by the Provincial Board of Canvassers as the duly elected Representative of the said congressional district. On May 31, 2007, respondent filed with the HRET a Petition of Protest (Ad Cautelam)3 contesting the results of the elections and the proclamation of petitioner. On June 14, 2007, the Secretary of the HRET caused the service of summons4 upon petitioner through registered mail at Purok Losaria,5 Tamnag (Poblacion), Lutayan, Sultan Kudarat, requiring petitioner to file an Answer to the protest within ten (10) days from receipt thereof.
On July 11, 2007, the HRET received the Registry Return Receipt Card,6 showing that a certain Aileen R. Baldenas7 (Baldenas) received the summons on June 27, 2007. On August 16, 2007, the HRET issued Resolution No. 07-1798 which noted the aforementioned Registry Return Receipt Card and that despite the fact that 43 days from June 27, 2007 had passed since Baldenas received the summons, petitioner had not filed an answer in accordance with Rule 279 of the 2004 HRET Rules. In the same Resolution, the HRET considered petitioner to have entered a general denial of the allegations of the protest.
In an Order dated August 17, 2007, the HRET set the preliminary conference on September 27, 2007 at 11:00 a.m.
Meanwhile, petitioner informally learned of respondent’s protest, prompting petitioner to request his lawyers to verify the same from the records of the HRET. Thereafter, his lawyers entered their appearance on September 4, 2007 and requested that they be furnished with copies of the petition of protest as well as notices, orders and resolutions pertaining to the protest.
On September 10, 2007, petitioner filed a Motion to Reconsider10 Resolution No. 07-179 and Motion to Admit Answer with Counter-Protest, alleging that he never received the summons issued by the HRET. In his affidavit11 attached to the motion, petitioner denied that Baldenas was a member of his household or his employee. He further claimed that she was not authorized to receive any important documents addressed to him. And assuming that he had authorized her, the summons received by her was never brought to his attention.
On September 19, 2007, the HRET issued Resolution No. 07-30012 denying for lack of merit.
Hence, this petition.
Petitioner filed the instant petition imputing grave abuse of discretion amounting to lack of jurisdiction on the part of the HRET for issuing Resolution Nos. 07-179 and 07-300. He also prayed for a temporary restraining order and/or a writ of preliminary injunction for this Court to enjoin the HRET from further proceeding with HRET Case No.07-021. Petitioner contended that the HRET never acquired jurisdiction over his person because of the absence of a valid service of summons. He argued that a substitute service of summons is made only “when the defendant cannot be served personally at a reasonable time after efforts to locate him have failed.”13 In his case, since the process server’s return failed to show on its face the impossibility of personal service, then the substituted service was improper and invalid.
In his comment, respondent countered that the HRET did not commit grave abuse of discretion in issuing Resolution Nos. 07-179 dated August 16, 2007 and 07-300 dated September 19, 2007. He argued that Rule 22 of the 2004 HRET Rules merely states that “the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be.” He posited then that the intent of the HRET in not expressly specifying personal service of summons on the protestee or respondent was to give it a reasonable discretion or leeway in serving the summons by other means such as registered mail. Thus, service of summons on petitioner through registered mail did not violate Rule 22 of the 2004 HRET Rules. Further, respondent claimed that Rule 14, Sections 6 and 7 of the Rules of Court were inconsistent with Rule 22 of the 2004 HRET Rules and therefore should not be given suppletory application to HRET proceedings.
Rule 22 of the 2004 HRET Rules provides:
RULE 22. Summons. – If the petition is not summarily dismissed in accordance with Rule 21 of these Rules, the Secretary of the Tribunal shall issue the corresponding summons to the protestee or respondent, as the case may be, together with a copy of the petition, requiring him within ten (10) days from receipt thereof to file his answer.
The 2004 HRET Rules on summons is silent on how the summons should be served on the protestee. Significantly, Rule 8014 of the 2004 HRET Rules provides that the 1997 Rules of Civil Procedure applies by analogy or suppletorily in so far as the latter may be applicable and not inconsistent therewith as well as with the orders, resolutions and decisions of the HRET. In view of the failure of the HRET Rules to specify the authorized modes of service of summons, resort then is necessary to Sections 6 and 7, Rule 14, 1997 Rules of Civil Procedure, which state:
SEC. 6. Service in person on defendant. – Whenever practicable, the summons shall be served handling a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him.
SEC. 7. Substituted service. – If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant’s residence with some person of suitable age and discretion then residing therein, or (b) by leaving copies at defendant’s office or regular place of business with some competent person in charge thereof.
In the case at bar, the service of the summons was made through registered mail, which is not among the allowed modes of service under Rule 14 of the Rules of Court.
Indeed, if in ordinary civil cases (which involve only private and proprietary interests) personal service of summons is preferred and service by registered mail is not allowed on jurisdictional and due process grounds, with more reason should election cases (which involve public interest and the will of the electorate) strictly follow the hierarchy of modes of service of summons under the Rules of Court.
The Court sees no reason why the HRET cannot make use of its own process servers to personally serve the summons, or alternatively, delegate the matter to the process server of a court with territorial jurisdiction over the place of residence of the respondent/protestee in the election case, at the expense of the petitioner/protestant. Considering that the proper service of summons on the respondent/protestee is a jurisdictional requirement and goes to heart of due process, we cannot allow service of summons by a method not sanctioned by the HRET Rules in relation to the Rules of Court.
In view of the foregoing, we find that the HRET committed grave abuse of discretion in considering petitioner to have entered a general denial of the allegations in respondent’s petition of protest and in denying his motion to reconsider as well as his motion to admit answer with counter-protest.
The right to due process on the part of the respondent was violated when the Civil Service Commission reconsidered its earlier decision in favor of the former based on a Motion for Reconsideration wherein said respondent was not furnished a copy thereof nor given the chance to comment on it.
The factual background of the case is as follows:
On March 11, 1996, Luzviminda Borja and Juliana Castro, on behalf of their respective minor daughters, Lily Borja and Charo Castro, filed before the Department of Education, Culture and Sports - Regional Office No. III (DECS-RO No. III), Cabanatuan City, two separate administrative complaints for Sexual Harassment and Conduct Unbecoming a Public Officer against Cuanan, then Principal of Lawang Kupang Elementary School in San Antonio, Nueva Ecija.
Acting on the complaints, DECS-RO No. III Regional Director Vilma L. Labrador constituted an Investigating Committee, composed of three DepEd officials from the province, to conduct a formal investigation. Following the investigation, the Investigating Committee submitted its Investigation Report dated December 14, 1999, finding Cuanan guilty of sexual harassment and recommending his forced resignation without prejudice to benefits. In a Decision dated January 28, 2000, Regional Director Labrador concurred in the findings of the Investigating Committee and meted out the penalty of forced resignation to Cuanan without prejudice to benefits.
In an Order dated April 13, 2000, then DepEd Secretary Andrew Gonzales affirmed the Decision of Regional Director Labrador. On May 30, 2000, Cuanan filed a Petition for Reconsideration thereof, but the same was denied for lack of merit by Secretary Gonzales in a Resolution dated June 19, 2000.
Cuanan elevated his case to the CSC. On January 20, 2003, the CSC issued Resolution No. 030069 , which set aside the June 19, 2000 Resolution of Secretary Gonzales and exonerated Cuanan from the charge of sexual harassment. On January 23, 2003, copies of the resolution were duly sent to the parties, including the DepEd , Cuanan received a copy of Resolution No. 030069 on January 31, 2003 .
In a Letter dated February 3, 2003, Cuanan requested his reinstatement as Elementary School Principal I . In a 1st Indorsement, the District Supervisor recommended appropriate action. In a 2nd Indorsement dated February 4, 2003, Schools Division Superintendent Dioscorides D. Lusung (Superintendent) recommended that Cuanan be reinstated to duty as School Principal of San Antonio District upon finality of the decision of the CSC . In a Letter dated February 10, 2003, Regional Director Ricardo T. Sibug informed the Superintendent that Cuanan could not be immediately reinstated to the service until an order of implementation was received from the Department Secretary.
Sometime in March 2003, DepEd Undersecretary Jose Luis Martin C. Gascon sent a letter to the CSC requesting a copy of CSC Resolution No. 030069 dated January 20, 2003. In a Letter dated March 25, 2003, the CSC informed the DepEd that a copy of the requested resolution was duly sent to it on January 23, 2003. Nonetheless, the CSC sent another copy of the resolution to the DepEd for its reference. The DepEd received said reference copy on March 28, 2003.
On April 11, 2003, then DepEd Secretary Edilberto C. de Jesus filed a Petition for Review/Reconsideration with the CSC. No copy of the pleading was served upon Cuanan.
On July 29, 2003, Secretary De Jesus filed a Supplemental Petition for Review/Reconsideration reiterating the prayer for reversal of the resolution. Again, no copy of the pleading was served upon Cuanan.
Subsequently, pursuant to Division Special Order No. 001 series of 2003 dated June 18, 2003, Cuanan was reinstated to his former position as school principal effective April 30, 2003 In Division Special Order No. 285, series of 2003 dated July 8, 2003, Cuanan was directed to return to duty . Based thereon, Cuanan requested payment of salaries and his inclusion in the payroll, which the Division School Superintendent of Nueva Ecija duly endorsed on November 7, 2003 .
However, on October 22, 2004, the CSC issued Resolution No. 041147 setting aside CSC Resolution No. 030069 dated January 20, 2003. It found Cuanan guilty of Sexual Harassment, Grave Misconduct and Conduct Grossly Prejudicial to the Best Interest of the Service and meted out the penalty of dismissal from the service with forfeiture of retirement benefits, cancellation of his service eligibility, and perpetual disqualification from holding public office. Cuanan received a copy of the Resolution on November 9, 2004 .
Thirteen days later, or on November 22, 2004, Cuanan filed a petition for certiorari with the CA seeking to annul Resolution No. 041147, alleging that the CSC should not have entertained the petition for review/reconsideration since the DepEd was not the complainant or the party adversely affected by the resolution; that the petition for review/reconsideration was filed out of time; and that Cuanan was not furnished copies of the pleadings filed by the DepEd in violation of procedural due process.
The DepEd sought the dismissal of the petition on the ground of improper remedy, the mode of review from a decision of the CSC being a petition for review under Rule 43 of the Rules of Court.
On May 16, 2005, the CA rendered a Decision granting the petition for certiorari and setting aside CSC Resolution No. 041147 dated October 12, 2004. The CA held that while a motion for reconsideration and a petition for review under Rule 43 were available remedies, Cuanan's recourse to a petition for certiorari was warranted, since the act complained of was patently illegal; that the CSC gravely abused its discretion in granting the petition for review/reconsideration filed by the DepEd without regard for Cuanan's fundamental right to due process, since he was not duly notified of the petition for review/reconsideration, nor was he required by the CSC to file a comment thereon, much less, given a copy of the said petition; that the DepEd failed to establish that the resolution was not yet final and executory when it filed its petition for review/reconsideration.
DepEd filed a Motion for Reconsideration but the CA denied the same in its Resolution dated July 18, 2005.
Hence, the present petition on the following grounds:
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN TAKING COGNIZANCE OF THE PETITION IN CA-G.R. SP NO. 87499, THE SAME NOT BEING THE PROPER REMEDY IN ASSAILING CSC RESOLUTION NO. 041147 DATED OCTOBER 22, 2004.
WITH DUE RESPECT, THE COURT OF APPEALS GRAVELY ERRED ON A QUESTION OF LAW IN ADJUDGING CSC AS HAVING COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING RESOLUTION NO. 041147 DATED OCTOBER 22, 2004 .
DepEd contends that the CA should have dismissed outright the petition for certiorari because CSC decisions are appealable to the CA by petition for review under Rule 43; that the filing of a motion for reconsideration was a precondition to the filing of a petition for certiorari under Rule 65; that the DepEd, even if not the complainant, may question the resolution of the CSC; that Cuanan failed to prove that the CSC's petition for review/reconsideration was not seasonably filed; that even if Cuanan was not served a copy of the pleadings filed by the DepEd, the CSC was not bound by procedural rules.
Cuanan, on the other hand, contends that the DepEd cannot file a motion for reconsideration from the CSC Resolution exonerating him, since it is not the complainant in the administrative case and therefore not a party adversely affected by the decision therein; that even if DepEd may seek reconsideration of the CSC Resolution, the petition for review/reconsideration was filed out of time; and that Cuanan’s right to due process was violated when he was not given a copy of the pleadings filed by the DepEd or given the opportunity to comment thereon.
The Court finds it necessary, before delving on the grounds relied upon by the DepEd in support of the petition, to first resolve the question of whether the DepEd can seek reconsideration of the CSC Resolution exonerating Cuanan.
In a long line of cases, beginning with Civil Service Commission v. Dacoycoy , and reiterated in Philippine National Bank v. Garcia, Jr ., the Court has maintained that the disciplining authority qualifies as a party adversely affected by the judgment, who can file an appeal of a judgment of exoneration in an administrative case. CSC Resolution No. 021600 allows the disciplining authority to appeal from a decision exonerating an erring employee, thus:
Section 2. Coverage and Definition of Terms. – x x x (l) PARTY ADVERSELY AFFECTED refers to the respondent against whom a decision in a disciplinary case has been rendered or to the disciplining authority in an appeal from a decision exonerating the said employee. (Emphasis supplied)
Hence, Cuanan's exoneration under CSC Resolution No. 030069 may be subject to a motion for reconsideration by the DepEd which, as the appointing and disciplining authority, is a real party in interest.
Now, as to the merits of DepEd's arguments, the Court finds none.
The remedy of an aggrieved party from a resolution issued by the CSC is to file a petition for review thereof under Rule 43 of the Rules of Court within fifteen days from notice of the resolution. Recourse to a petition for certiorari under Rule 65 renders the petition dismissible for being the wrong remedy. Nonetheless, there are exceptions to this rule, to wit: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority . As will be shown forthwith, exception (c) applies to the present case.
Furthermore, while a motion for reconsideration is a condition precedent to the filing of a petition for certiorari, immediate recourse to the extraordinary remedy of certiorari is warranted where the order is a patent nullity, as where the court a quo has no jurisdiction; where petitioner was deprived of due process and there is extreme urgency for relief; where the proceedings in the lower court are a nullity for lack of due process; where the proceeding was ex parte or one in which the petitioner had no opportunity to object . These exceptions find application to Cuanan's petition for certiorari in the CA.
At any rate, Cuanan's petition for certiorari before the CA could be treated as a petition for review, the petition having been filed on November 22, 2004, or thirteen (13) days from receipt on November 9, 2004 of CSC Resolution No. 041147, clearly within the 15-day reglementary period for the filing of a petition for review . Such move would be in accordance with the liberal spirit pervading the Rules of Court and in the interest of substantial justice .
Furthermore, CSC Resolution No. 030069 has long become final and executory. It must be noted that the records show that copies of CSC Resolution No. 030069 were duly sent to the parties, including DepEd, on January 23, 2003 . Cuanan received a copy thereof on January 31, 2003 while the DepEd requested a copy sometime in March 2003, or about two months later. Under the Rules of Evidence, it is presumed that official duty has been regularly performed, unless contradicted . This presumption includes that of regularity of service of judgments, final orders or resolutions.
Consequently, the burden of proving the irregularity in official conduct -- that is, non-receipt of the duly sent copy of CSC Resolution No. 030069 -- is on the part of the DepEd, which in the present case clearly failed to discharge the same . Thus, the presumption stands that CSC Resolution No. 030069 dated January 20, 2003 had already become final and executory when the DepEd filed its Petition for Review/Reconsideration on April 11, 2003, more than two months later.
It is elementary that once judgment has become final and executory, it becomes immutable and can no longer be amended or modified. In Gallardo-Corro v. Gallardo , this Court held:
Nothing is more settled in law than that once a judgment attains finality it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, the winning party also has the correlative right to enjoy the finality of the resolution of his case. The doctrine of finality of judgment is grounded on fundamental considerations of public policy and sound practice, and that, at the risk of occasional errors, the judgments or orders of courts must become final at some definite time fixed by law; otherwise, there would be no end to litigations, thus setting to naught the main role of courts of justice which is to assist in the enforcement of the rule of law and the maintenance of peace and order by settling justiciable controversies with finality .
Moreover, while it is true that administrative tribunals exercising quasi-judicial functions are free from the rigidity of certain procedural requirements, they are bound by law and practice to observe the fundamental and essential requirements of due process in justiciable cases presented before them . The relative freedom of the CSC from the rigidities of procedure cannot be invoked to evade what was clearly emphasized in the landmark case of Ang Tibay v. Court of Industrial Relations that all administrative bodies cannot ignore or disregard the fundamental and essential requirements of due process.
Furthermore, Section 43.A of the Uniform Rules in Administrative Cases in the Civil Service provides:
Section 43.A. Filing of Supplemental Pleadings. - All pleadings filed by the parties with the Commission, shall be copy furnished the other party with proof of service filed with the Commission.
Any supplemental pleading to supply deficiencies in aid of an original pleading but which should not entirely substitute the latter can be filed only upon a favorable action by the Commission on the motion of a party to the case. The said motion should be submitted within five (5) days from receipt of a copy of the original pleading and it is discretionary upon the Commission to allow the same or not or even to consider the averments therein.(Emphasis supplied)
Cuanan undoubtedly was denied procedural due process. He had no opportunity to participate in the proceedings for the petition for review/ reconsideration filed by the DepEd, since no copy of the pleadings filed by the DepEd were served upon him or his counsel; nor was he even required by the CSC to file his comments thereon. Considering that pleadings filed by the DepEd were not served upon Cuanan, they may be treated as mere scraps of paper which should not have merited the attention or consideration of the CSC.
WHEREFORE, the petition is DENIED. The assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 87499 are AFFIRMED.
There is no violation of the petitioner’s right to due process when after the election protest against him was already submitted for decision and the ballots transferred to the Senate Electoral Tribunal, the COMELEC went to deliberate on the case at the Senate Electoral Tribunal using the ballots therein in the process without notice to the petitioner.
JOSELITO MENDOZA VS. COMELEC and ROBERTO PAGDANGANAN, G.R. No. 188308, October 15, 2009
The petitioner and the respondent vied for the position of Governor of the Province of Bulacan in the May 14, 2007 elections. The petitioner was proclaimed winning candidate and assumed the office of Governor.
The respondent seasonably filed an election protest with the COMELEC, which was raffled to the Second Division and docketed as EPC No. 2007-44. Revision of ballots involving the protested and counter-protested precincts in Angat, Bocaue, Calumpit, Doña Remedios Trinidad, Guiginto, Malolos, Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San Jose del Monte soon followed. The revision was conducted at the COMELEC’s office in Intramuros. After revision, the parties presented their other evidence, leading to the parties’ formal offer of their respective evidence.
The COMELEC approved the parties’ formal offer of evidence and then required the parties to submit their respective memoranda. The parties complied with the COMELEC’s order. The case was thereafter submitted for resolution.
On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes, including those involved in the provincial election contest, to the Senate Electoral Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III against Juan Miguel Zubiri. In light of this development, the petitioner moved to suspend further proceedings. .
The COMELEC’s Second Division denied the petitioner’s motion in its Order of April 29, 2009, ruling that the COMELEC has plenary powers to find alternative methods to facilitate the resolution of the election protest; thus, it concluded that it would continue the proceedings after proper coordination with the SET. The petitioner moved to reconsider this Order, but the COMELEC’s Second Division denied the motion in its Order of May 26, 2009. These inter-related Resolutions led to the COMELEC’s continued action – specifically, the appreciation of ballots – on the provincial election contest at the SET offices---which the COMELEC did without informing the petitioner.
Allegedly alarmed by information on COMELEC action on the provincial election contest within the SET premises without notice to him and without his participation, the petitioner’s counsel wrote the SET Secretary, Atty. Irene Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported conduct of proceedings.15 The SET Secretary responded on June 17, 2009 as follows:
x x x please be informed that the conduct of proceedings in COMELEC EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio, upon formal request of the Office of Commissioner Lucenito N. Tagle.
Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17 October 1995, stating that “(t)he Tribunals, the Commission and the Courts shall coordinate and make arrangement with each other so as not to delay or interrupt the revision of ballots being conducted. The synchronization of revision of ballots shall be such that the expeditious disposition of the respective protest case shall be the primary concern.” While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested. [emphasis supplied]16
WHETHER OR NOT THE COMELEC VIOLATED DUE PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE NOTICE TO THE PETITIONER.
The petitioner argues that the election protest involves his election as Governor; thus, its subject matter involves him and the people of the Province of Bulacan who elected him. On this basis, he claims entitlement to notice and participation in all matters that involve or are related to the election protest. He further asserts that he had the legitimate expectation that no further proceedings would be held or conducted in the case after its submission for decision.
Citing the commentaries of Father Joaquin Bernas,17 the petitioner argues that the proceedings before the COMELEC in election protests are judicial in nature and character. Thus, the strictures of judicial due process – specifically, (a) opportunity to be heard and (b) that judgment be rendered only after lawful hearing – apply. Notices in judicial dispute, he claims, are not really just a matter of courtesy; they are elementary fundamental element of due process, they are part and parcel of a right of a party to be heard. He further cites Justice Isagani A. Cruz,18 who wrote:
x x x Every litigant is entitled to his day in court. He has a right to be notified of every incident of the proceeding and to be present at every stage thereof so that he may be heard by himself and counsel for the protection of his interest.
The petitioner claims that without notice to him of the proceedings, the due process element of the right to have judgment only after lawful hearing is absent. There is no way, he claims, that a judicial proceeding held without notice to the parties could be described as a lawful hearing, especially a proceeding which has as its subject matter the sovereign will of an entire province.
He was therefore denied his day in court, he claims, when the COMELEC conducted the examination and appreciation of ballots. The proceedings should be stopped and declared null and void; its future results, too, should be nullified, as nothing derived from the anomalous and unconstitutional clandestine and unilateral proceedings should ever be part of any decision that the COMELEC may subsequently render. The poisonous fruits (derived from the proceedings) should have no part and should not be admitted for any purpose and/or in any judicial proceeding.
The petition is anchored on the alleged conduct of proceedings in the election protest – following the completed revision of ballots – at the SET premises without notice to and without the participation of the petitioner. Significantly, “the conduct of proceedings” is confirmed by the SET Secretary in the letter we quoted above.19 As the issues raised show – the petitioner’s focus is not really on the COMELEC Orders denying the suspension of proceedings when the ballot boxes and other election materials pertinent to the election contest were transferred to the SET; the focus is on what the COMELEC did after to the issuance of the Resolutions. We read the petition in this context as these COMELEC Orders are now unassailable as the period to challenge them has long passed.20
The substantive issue we are primarily called upon to resolve is whether there were proceedings within the SET premises, entitling the petitioner to notice and participation, which were denied to him; in other words, the issue is whether the petitioner’s right to due process has been violated. A finding of due process violation, because of the inherent arbitrariness it carries, necessarily amounts to grave abuse of discretion.
As a preliminary matter, we note that the petitioner has claimed that COMELEC exercises judicial power in its action over provincial election contests and has argued its due process position from this view. We take this opportunity to clarify that judicial power in our country is “vested in one Supreme Court and in such lower courts as may be established by law.”21 This exclusive grant of authority to the Judiciary is reinforced under the second paragraph of Section 1, Article VIII of the Constitution which further states that “Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.. .,” thus constitutionally locating the situs of the exercise of judicial power in the courts.
In contrast with the above definitions, Section 2, Article IX(C) of the Constitution lists the COMELEC’s powers and functions, among others, as follows:
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay officials shall be final, executory, and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of polling places, appointment of election officials and inspectors, and registration of voters.
Under these terms, the COMELEC under our governmental structure is a constitutional administrative agency and its powers are essentially executive in nature (i.e., to enforce and administer election laws),22 quasi-judicial (to exercise original jurisdiction over election contests of regional, provincial and city officials and appellate jurisdiction over election contests of other lower ranking officials), and quasi-legislative (rulemaking on all questions affecting elections and the promulgation of its rules of procedure).
The COMELEC’s adjudicative function is quasi-judicial since it is a constitutional body, other than a court, vested with authority to decide election contests, and in the course of the exercise of its jurisdiction, to hold hearings and exercise discretion of a judicial nature;23 it receives evidence, ascertain the facts from these submissions, determine the law and the legal rights of the parties, and on the basis of all these decides on the merits of the case and renders judgment.24 Despite the exercise of discretion that is essentially judicial in character, particularly with respect to election contests, COMELEC is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense;25 hence, its adjudicative function, exercised as it is in the course of administration and enforcement, is quasi-judicial.
The appropriate due process standards that apply to the COMELEC, as an administrative or quasi-judicial tribunal, are those outlined in the seminal case of Ang Tibay v. Court of Industrial Relations,26 quoted below:
(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. xxx
(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to establish the rights which he asserts but the tribunal must consider the evidence presented.
(3) While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which cannot be disregarded, namely, that of having something to support its decision. A decision with absolutely nothing to support it is a nullity, a place when directly attached.
(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."
(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.
(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.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reasons for the decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.
These are now commonly referred to as cardinal primary rights in administrative proceedings.
The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of.27 A formal or trial-type hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process.
The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence.28
Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is based.29 As a component of the rule of fairness that underlies due process, this is the “duty to give reason” to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker.
In the present case, the petitioner invokes both the due process component rights at the hearing and deliberative stages and alleges that these component rights have all been violated. We discuss all these allegations below.
The Right to Notice and to be Heard.
At the Hearing and Revision of Ballots.
Based on the pleadings filed, we see no factual and legal basis for the petitioner to complain of denial of his hearing stage rights. In the first place, he does not dispute that he fully participated in the proceedings of the election protest until the case was deemed submitted for resolution; he had representation at the revision of the ballots, duly presented his evidence, and summed up his case through a memorandum. These various phases of the proceedings constitute the hearing proper of the election contest and the COMELEC has more than satisfied the opportunity to be heard that the Ang Tibay hearing stage rights require. In these proceedings, the petitioner stood head-to-head with the respondent in an adversarial contest where both sides were given their respective rights to speak, make their presentations, and controvert each other’s submission, subject only to established COMELEC rules of procedures. Under these undisputed facts, both parties had their day in court, so to speak, and neither one can complain of any denial of notice or of the right to be heard.
b. At the “Proceedings” at the SET.
A critical question to be answered in passing upon due process questions at this stage of the election contest is the nature of the so-called “proceedings” after the ballots and other materials pertinent to the provincial election contest were transferred to the SET.
In the petition, the petitioner alleged that there were “strange proceedings”30 which were “unilateral, clandestine and surreptitious” within the premises of the SET, on “documents, ballots and election materials whose possession and custody have been transferred” to the SET, and the “petitioner was NEVER OFFICIALLY NOTIFIED of the strange on-goings” at the SET.31 Attached to the petition was the letter of the Secretary of the SET confirming the “conduct of proceedings” in the provincial election contest, and citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio, upon the formal request of the Office of Commissioner Lucenito N. Tagle, and citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the coordination envisioned among the COMELEC, the SET and the courts “so as not to delay or interrupt the revision of ballots being conducted.” While the SET letter made the reservation that “While the said provision speaks only of revision, it has been the practice of the Tribunal to allow the conduct of other proceedings in local election protest cases within its premises as may be requested,” no mention whatsoever was made of the kind of proceedings taking place.
It was at this point that this Court intervened, in response to the petitioner’s prayer for the issuance of temporary injunctive relief, through the issuance of a Status Quo Order with a non-extendible directive for the respondents to file their comments on the petition; for indeed, any further revision of ballots or other adversarial proceedings after the case has been submitted for resolution, would not only be strange and unusual but would indicate a gross violation of due process rights.
After consideration of the respondents’ Comments and the petitioner’s petition and Reply, we hold that the contested proceedings at the SET (“contested proceedings) are no longer part of the adversarial aspects of the election contest that would require notice of hearing and the participation of the parties. As the COMELEC stated in its Comment and without any contrary or disputing claim in the petitioner’s Reply:32
“However, contrary to the claim of petitioner, public respondent in the appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the SET in SET Case No. 001-07 is not conducting “further proceedings” requiring notice to the parties. There is no revision or correction of the ballots because EPC No. 2007-04 was already submitted for resolution. Public respondent, in coordinating with the SET, is simply resolving the submitted protest case before it. The parties necessarily take no part in said deliberation, which require utmost secrecy. Needless to state, the actual decision-making process is supposed to be conducted only by the designated members of the Second Division of the public respondent in strict confidentiality.”
In other words, what took place at the SET were the internal deliberations of the COMELEC, as a quasi-judicial body, in the course of appreciating the evidence presented and deciding the provincial election contest on the merits. These deliberations are no different from judicial deliberations which are considered confidential and privileged.33 We find it significant that the private respondent’s Comment fully supported the COMELEC’s position and disavowed any participation in the contested proceeding the petitioner complained about. The petitioner, on the other hand, has not shown that the private respondent was ever present in any proceeding at the SET relating to the provincial election contest.
To conclude, the rights to notice and to be heard are not material considerations in the COMELEC’s handling of the Bulacan provincial election contest after the transfer of the ballot boxes to the SET; no proceedings at the instance of one party or of COMELEC has been conducted at the SET that would require notice and hearing because of the possibility of prejudice to the other party. The COMELEC is under no legal obligation to notify either party of the steps it is taking in the course of deliberating on the merits of the provincial election contest. In the context of our standard of review for the petition, we see no grave abuse of discretion amounting to lack or excess of jurisdiction committed by the COMELEC in its deliberation on the Bulacan election contest and the appreciation of ballots this deliberation entailed.
Alleged Violations of
Deliberation Stage Rights.
On the basis of the above conclusion, we see no point in discussing any alleged violation of the deliberative stage rights. First, no illegal proceeding ever took place that would bear the “poisonous fruits” that the petitioner fears. Secondly, in the absence of the results of the COMELEC deliberations through its decision on the election protest, no basis exists to apply the Ang Tibay deliberative stage rights; there is nothing for us to test under the standards of the due process deliberative stages rights before the COMELEC renders its decision. Expressed in terms of our standard of review, we have as yet no basis to determine the existence of any grave abuse of discretion.
Conduct of COMELEC
Deliberations at the SET Premises
We turn to the issue of the propriety of the COMELEC’s consideration of the provincial election contest (specifically its appreciation of the contested ballots) at the SET premises and while the same ballots are also under consideration by the SET for another election contest legitimately within the SET’s own jurisdiction.
We state at the outset that the COMELEC did not lose jurisdiction over the provincial election contest, as the petitioner seems to imply, because of the transmittal of the provincial ballot boxes and other election materials to the SET. The Constitution conferred upon the COMELEC jurisdiction over election protests involving provincial officials. The COMELEC in this case has lawfully acquired jurisdiction over the subject matter, i.e., the provincial election contest, as well as over the parties. After its jurisdiction attached, this jurisdiction cannot be ousted by subsequent events such as the temporary transfer of evidence and material records of the proceedings to another tribunal exercising its own jurisdiction over another election contest pursuant to the Constitution. This is the rule of adherence of jurisdiction.34
Thus, the jurisdiction of the COMELEC over provincial election contest exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each tribunal being supreme in their respective areas of concern (the Senate election contests for the SET, and the regional, provincial and city election contests for the COMELEC), and with neither one being higher than the other in terms of precedence so that the jurisdiction of one must yield to the other.
But while no precedence in jurisdiction exists, the COMELEC, vowing to the reality that only a single ballot exists in an election for national and local officials, saw it fit to lay down the rule on the “order of preference in the custody and revision of ballots and other documents contained in the ballot boxes.” The order, in terms of the adjudicatory tribunal and as provided in COMELEC Resolution No. 2812, runs:
Presidential Electoral Tribunal;
Senate Electoral Tribunal;
House of Representatives Electoral Tribunal;
Commission on Elections; and
Regional Trial Courts.
This order of preference dictated that the ballot boxes and other election materials in Bulacan’s provincial election contest, had to be transferred to the SET when the latter needed these materials for its revision of ballots. The transfer to the SET, however, did not mean that the Bulacan provincial election contest – at that time already submitted for decision – had to be suspended as the COMELEC held in its Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44.35 This is particularly true in Bulacan’s case as no revision had to be undertaken, the revision having been already terminated.
WHEREFORE, premises considered, we DISMISS the petition for certiorari for lack of merit. We accordingly LIFT the STATUS QUO ORDER we issued, effective immediately.
Sec. 1…nor shall any person be denied the equal protection of the laws.
The laws considering appointed officials of the government who filed their certificates of candidacy “considered resigned” while elected officials are not does not violate the equal protection clause of the Constitution.
The main issue in this case is whether or not the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, Section 66 of the Omnibus Election Code and Section 4(a) of COMELEC Resolution No. 8678, providing that appointive officials are deemed automatically resigned from their jobs upon the filing of their certificates of candidacy (while the elected officials are not) is unconstitutional mainly on the ground that they violate the equal protection clause of the Constitution and suffer from overbreadth.
On December 1, 2009, the Supreme Court held that the questioned provisions of the above-mentioned laws are unconstitutional for being violative of the equal protection clause.
On Motion for Reconsideration, the Supreme Court reconsidered its earlier Decision and declared the above laws and COMELEC Resolution constitutional.
In support of their respective motions for reconsideration, respondent COMELEC and movants-intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription against the participation of public appointive officials and members of the military in partisan political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord differential treatment to elective and appointive officials, because such differential treatment rests on material and substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest demand such reversal.
We find the foregoing arguments meritorious.
The assailed December 1, 2009 Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code, on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding appointive posts: (a) without distinction as to whether or not they occupy high/influential positions in the government, and (b) they limit these civil servants’ activity regardless of whether they be partisan or nonpartisan in character, or whether they be in the national, municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal protection clause of the Constitution.
i. Fariñas, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned provisions challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al. v. Executive Secretary, et al.
In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are no longer considered ipso facto resigned from their respective offices upon their filing of certificates of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials continues to be operative – they are deemed resigned when they file their certificates of candidacy.
The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the end in view of having the deemed-resigned provisions “apply equally” to both elected and appointive officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable classification, as there are material and significant distinctions between the two classes of officials. Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and 67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to elective officials gives undue benefit to such officials as against the appointive ones and violates the equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from the other. The Court has explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation which is limited either in the object to which it is directed or by territory within which it is to operate. It does not demand absolute equality among residents; it merely requires that all persons shall be treated alike, under like circumstances and conditions both as to privileges conferred and liabilities enforced. The equal protection clause is not infringed by legislation which applies only to those persons falling within a specified class, if it applies alike to all persons within such class, and reasonable grounds exist for making a distinction between those who fall within such class and those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former occupy their office by virtue of the mandate of the electorate. They are elected to an office for a definite term and may be removed therefrom only upon stringent conditions. On the other hand, appointive officials hold their office by virtue of their designation thereto by an appointing authority. Some appointive officials hold their office in a permanent capacity and are entitled to security of tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8, Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987 (Executive Order No. 292), appointive officials, as officers and employees in the civil service, are strictly prohibited from engaging in any partisan political activity or take (sic) part in any election except to vote. Under the same provision, elective officials, or officers or employees holding political offices, are obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators deemed it proper to treat these two classes of officials differently with respect to the effect on their tenure in the office of the filing of the certificates of candidacy for any position other than those occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis appointive officials, is anchored upon material and significant distinctions and all the persons belonging under the same classification are similarly treated, the equal protection clause of the Constitution is, thus, not infringed.
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta movere. This doctrine, which is really “adherence to precedents,” mandates that once a case has been decided one way, then another case involving exactly the same point at issue should be decided in the same manner. This doctrine is one of policy grounded on the necessity for securing certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite way between another. “If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.
Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the issues presented by the case cannot be considered as obiter dictum. This rule applies to all pertinent questions that are presented and resolved in the regular course of the consideration of the case and lead up to the final conclusion, and to any statement as to the matter on which the decision is predicated. For that reason, a point expressly decided does not lose its value as a precedent because the disposition of the case is, or might have been, made on some other ground; or even though, by reason of other points in the case, the result reached might have been the same if the court had held, on the particular point, otherwise than it did. As we held in Villanueva, Jr. v. Court of Appeals, et al.:
… A decision which the case could have turned on is not regarded as obiter dictum merely because, owing to the disposal of the contention, it was necessary to consider another question, nor can an additional reason in a decision, brought forward after the case has been disposed of on one ground, be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is sufficient to determine the ultimate issue, but the court actually decides all such points, the case as an authoritative precedent as to every point decided, and none of such points can be regarded as having the status of a dictum, and one point should not be denied authority merely because another point was more dwelt on and more fully argued and considered, nor does a decision on one proposition make statements of the court regarding other propositions dicta. (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all persons or things without distinction. What it simply requires is equality among equals as determined according to a valid classification. The test developed by jurisprudence here and yonder is that of reasonableness, which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and
(4) It applies equally to all members of the same class.
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first, third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of the law, because “whether one holds an appointive office or an elective one, the evils sought to be prevented by the measure remain,” viz.:
… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the recent past, elected Vice-Presidents were appointed to take charge of national housing, social welfare development, interior and local government, and foreign affairs). With the fact that they both head executive offices, there is no valid justification to treat them differently when both file their [Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President, in the example, running this time, let us say, for President, retains his position during the entire election period and can still use the resources of his office to support his campaign.
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice, the Legislature need not address every manifestation of the evil at once; it may proceed “one step at a time.” In addressing a societal concern, it must invariably draw lines and make choices, thereby creating some inequity as to those included or excluded. Nevertheless, as long as “the bounds of reasonable choice” are not exceeded, the courts must defer to the legislative judgment. We may not strike down a law merely because the legislative aim would have been more fully achieved by expanding the class. Stated differently, the fact that a legislative classification, by itself, is under inclusive will not render it unconstitutionally arbitrary or invidious. There is no constitutional requirement that regulation must reach each and every class to which it might be applied; that the Legislature must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law creates a classification that is “palpably arbitrary or capricious.” He must refute all possible rational bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the enactment, such that the constitutionality of the law must be sustained even if the reasonableness of the classification is “fairly debatable.” In the case at bar, the petitioners failed – and in fact did not even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair, underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find that there is no reasonably rational reason for the differing treatment.
In the instant case, is there a rational justification for excluding elected officials from the operation of the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign power of the people. It involves the choice or selection of candidates to public office by popular vote. Considering that elected officials are put in office by their constituents for a definite term, it may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded to the will of the electorate that they be served by such officials until the end of the term for which they were elected. In contrast, there is no such expectation insofar as appointed officials are concerned.
The dichotomized treatment of appointive and elective officials is therefore germane to the purposes of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign will. (emphasis in the original)
In fine, the assailed Decision would have us “equalize the playing field” by invalidating provisions of law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would favor a situation in which the evils are unconfined and vagrant, existing at the behest of both appointive and elected officials, over another in which a significant portion thereof is contained. The absurdity of that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the Legislature. It is the Legislature that is given the authority, under our constitutional system, to balance competing interests and thereafter make policy choices responsive to the exigencies of the times. It is certainly within the Legislature’s power to make the deemed-resigned provisions applicable to elected officials, should it later decide that the evils sought to be prevented are of such frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot and should not arrogate unto itself the power to ascertain and impose on the people the best state of affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision adverted to, and extensively cited, Mancuso v. Taft. This was a decision of the First Circuit of the United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is “inextricably linked” with two fundamental freedoms – freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its public work force, the deemed-resigned provisions pursue their objective in a far too heavy-handed manner as to render them unconstitutional.
It then concluded with the exhortation that since “the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit.”
Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the fact that the United States Supreme Court effectively overruled Mancuso three months after its promulgation by the United States Court of Appeals. In United States Civil Service Commission, et al. v. National Association of Letter Carriers AFL-CIO, et al. and Broadrick, et al. v. State of Oklahoma, et al., the United States Supreme Court was faced with the issue of whether statutory provisions prohibiting federal and state employees from taking an active part in political management or in political campaigns were unconstitutional as to warrant facial invalidation. Violation of these provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in regulating the speech of its employees, the state as employer has interests that differ significantly from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must therefore balance the legitimate interest of employee free expression against the interests of the employer in promoting efficiency of public services; (iii) if the employees’ expression interferes with the maintenance of efficient and regularly functioning services, the limitation on speech is not unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining which positions are to be covered by any statutory restrictions. Therefore, insofar as government employees are concerned, the correct standard of review is an interest-balancing approach, a means-end scrutiny that examines the closeness of fit between the governmental interests and the prohibitions in question.
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education, the government has an interest in regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the (government), as an employer, in promoting the efficiency of the public services it performs through its employees.’ Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government-the impartial execution of the laws-it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power-or the party out of power, for that matter-using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that ‘the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any event. x x x
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan political conduct of state employees. Appellants freely concede that such restrictions serve valid and important state interests, particularly with respect to attracting greater numbers of qualified people by insuring their job security, free from the vicissitudes of the elective process, and by protecting them from ‘political extortion.’ Rather, appellants maintain that however permissible, even commendable, the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s 818 are void in toto and cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague. We have little doubt that s 818 is similarly not so vague that ‘men of common intelligence must necessarily guess at its meaning.’ Whatever other problems there are with s 818, it is all but frivolous to suggest that the section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit standards' for those who must apply it. In the plainest language, it prohibits any state classified employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other political purpose’ and taking part ‘in the management or affairs of any political party or in any political campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest.' x x x
x x x x
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as well as unprotected conduct, and must therefore be struck down on its face and held to be incapable of any constitutional application. We do not believe that the overbreadth doctrine may appropriately be invoked in this manner here.
x x x x
The consequence of our departure from traditional rules of standing in the First Amendment area is that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. Application of the overbreadth doctrine in this manner is, manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x x x
x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from ‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter protected speech to some unknown extent, there comes a point where that effect-at best a prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the matter another way, particularly where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its terms, at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute, directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal trespass. This much was established in United Public Workers v. Mitchell, and has been unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no question that s 818 is valid at least insofar as it forbids classified employees from: soliciting contributions for partisan candidates, political parties, or other partisan political purposes; becoming members of national, state, or local committees of political parties, or officers or committee members in partisan political clubs, or candidates for any paid public office; taking part in the management or affairs of any political party's partisan political campaign; serving as delegates or alternates to caucuses or conventions of political parties; addressing or taking an active part in partisan political rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get voters to the polls; participating in the distribution of partisan campaign literature; initiating or circulating partisan nominating petitions; or riding in caravans for any political party or partisan political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some other improper applications. But, as presently construed, we do not believe that s 818 must be discarded in toto because some persons’ arguably protected conduct may or may not be caught or chilled by the statute. Section 818 is not substantially overbroad and it not, therefore, unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be interpreted to mean a reversal of Mancuso, since they “pertain to different types of laws and were decided based on a different set of facts,” viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act’s prohibition against “active participation in political management or political campaigns.” The plaintiffs desired to campaign for candidates for public office, to encourage and get federal employees to run for state and local offices, to participate as delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the (sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of the State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan political activities of federal employees. Prior to the commencement of the action, the appellants actively participated in the 1970 reelection campaign of their superior, and were administratively charged for asking other Corporation Commission employees to do campaign work or to give referrals to persons who might help in the campaign, for soliciting money for the campaign, and for receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim, Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as representative to the Rhode Island General Assembly. He assailed the constitutionality of §14.09(c) of the City Home Rule Charter, which prohibits “continuing in the classified service of the city after becoming a candidate for nomination or election to any public office.”
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act’s prohibition against “active participation in political management or political campaigns” with respect to certain defined activities in which they desired to engage. The plaintiffs relevant to this discussion are
(a) The National Association of Letter Carriers, which alleged that its members were desirous of, among others, running in local elections for offices such as school board member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for the office of Borough Councilman in his local community for fear that his participation in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he would do so except for fear of losing his job by reason of violation of the Hatch Act.
The Hatch Act defines “active participation in political management or political campaigns” by cross-referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State, county, or municipal office is not permissible. The prohibition against political activity extends not merely to formal announcement of candidacy but also to the preliminaries leading to such announcement and to canvassing or soliciting support or doing or permitting to be done any act in furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes an infraction of the prohibitions against political activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds thereafter to pay compensation to these persons.
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit System of Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that “[n]o employee in the classified service shall be … a candidate for nomination or election to any paid public office…” Violation of Section 818 results in dismissal from employment, possible criminal sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso. By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of Appeals – the same court that decided Mancuso – to hold categorically and emphatically in Magill v. Lynch that Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s “Little Hatch Act” prohibits city employees from engaging in a broad range of political activities. Becoming a candidate for any city office is specifically proscribed, the violation being punished by removal from office or immediate dismissal. The firemen brought an action against the city officials on the ground that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It observed that the view that political candidacy was a fundamental interest which could be infringed upon only if less restrictive alternatives were not available, was a position which was no longer viable, since the Supreme Court (finding that the government’s interest in regulating both the conduct and speech of its employees differed significantly from its interest in regulating those of the citizenry in general) had given little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of Congress, and applying a “balancing” test to determine whether limits on political activity by public employees substantially served government interests which were “important” enough to outweigh the employees’ First Amendment rights.
It must be noted that the Court of Appeals ruled in this manner even though the election in Magill was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances of that case, that politically active bureaucrats might use their official power to help political friends and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which bars a city employee's candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity. Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the Hatch Act as to federal employees. Broadrick sustained Oklahoma's “Little Hatch Act” against constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.
x x x x
What we are obligated to do in this case, as the district court recognized, is to apply the Court’s interest balancing approach to the kind of nonpartisan election revealed in this record. We believe that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after Letter Carriers. We have particular reference to our view that political candidacy was a fundamental interest which could be trenched upon only if less restrictive alternatives were not available. While this approach may still be viable for citizens who are not government employees, the Court in Letter Carriers recognized that the government's interest in regulating both the conduct and speech of its employees differs significantly from its interest in regulating those of the citizenry in general. Not only was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to the argument that prohibitions against the coercion of government employees were a less drastic means to the same end, deferring to the judgment of the Congress. We cannot be more precise than the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process". It appears that the government may place limits on campaigning by public employees if the limits substantially serve government interests that are "important" enough to outweigh the employees' First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient government, faithful to the Congress rather than to party. The district court discounted this interest, reasoning that candidates in a local election would not likely be committed to a state or national platform. This observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned. But a different kind of possible political intrusion into efficient administration could be thought to threaten municipal government: not into broad policy decisions, but into the particulars of administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers identified a second governmental interest in the avoidance of the appearance of "political justice" as to policy, so there is an equivalent interest in avoiding the appearance of political preferment in privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's authors evidently feared is not exorcised by the nonpartisan character of the formal election process. Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the city might reasonably fear that politically active bureaucrats would use their official power to help political friends and hurt political foes. This is not to say that the city's interest in visibly fair and effective administration necessarily justifies a blanket prohibition of all employee campaigning; if parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor foe is as easily identified.
A second major governmental interest identified in Letter Carriers was avoiding the danger of a powerful political machine. The Court had in mind the large and growing federal bureaucracy and its partisan potential. The district court felt this was only a minor threat since parties had no control over nominations. But in fact candidates sought party endorsements, and party endorsements proved to be highly effective both in determining who would emerge from the primary election and who would be elected in the final election. Under the prevailing customs, known party affiliation and support were highly significant factors in Pawtucket elections. The charter's authors might reasonably have feared that a politically active public work force would give the incumbent party, and the incumbent workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small size of the electorate and the limited powers of local government may inhibit the growth of interest groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan issues and candidacies are at stake, isolated government employees may seek to influence voters or their co-workers improperly; but a more real danger is that a central party structure will mass the scattered powers of government workers behind a single party platform or slate. Occasional misuse of the public trust to pursue private political ends is tolerable, especially because the political views of individual employees may balance each other out. But party discipline eliminates this diversity and tends to make abuse systematic. Instead of a handful of employees pressured into advancing their immediate superior's political ambitions, the entire government work force may be expected to turn out for many candidates in every election. In Pawtucket, where parties are a continuing presence in political campaigns, a carefully orchestrated use of city employees in support of the incumbent party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's nominating procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity. The district court did not address this factor, but looked only to the possibility of a civil servant using his position to influence voters, and held this to be no more of a threat than in the most nonpartisan of elections. But we think that the possibility of coercion of employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers. Once again, it is the systematic and coordinated exploitation of public servants for political ends that a legislature is most likely to see as the primary threat of employees' rights. Political oppression of public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to ride herd on the politics of their employees even in a nonpartisan context, but without party officials looking over their shoulders most supervisors will prefer to let employees go their own ways.
In short, the government may constitutionally restrict its employees' participation in nominally nonpartisan elections if political parties play a large role in the campaigns. In the absence of substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court lose much of their force. While the employees' First Amendment rights would normally outbalance these diminished interests, we do not suggest that they would always do so. Even when parties are absent, many employee campaigns might be thought to endanger at least one strong public interest, an interest that looms larger in the context of municipal elections than it does in the national elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate running directly against his superior or running for a position that confers great power over his superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct challenge to the command and discipline of his agency than a fireman or policeman who runs for mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should an employee gather substantial political support, are considerable. (citations omitted)
The court, however, remanded the case to the district court for further proceedings in respect of the petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is “not to be taken lightly, much less to be taken in the dark,” the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a closely analogous case. Under Broadrick, when one who challenges a law has engaged in constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth. We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for a candidate, and they were subject to discipline under a law proscribing a wide range of activities, including soliciting contributions for political candidates and becoming a candidate. The Court found that this combination required a substantial overbreadth approach. The facts of this case are so similar that we may reach the same result without worrying unduly about the sometimes opaque distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a statute restricting partisan campaigning. Pawtucket has gone further, banning participation in nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently requires, inter alia, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with some idea of the number of potentially invalid applications the statute permits. Often, simply reading the statute in the light of common experience or litigated cases will suggest a number of probable invalid applications. But this case is different. Whether the statute is overbroad depends in large part on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees. For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively contested by political parties. Certainly the record suggests that parties play a major role even in campaigns that often are entirely nonpartisan in other cities. School committee candidates, for example, are endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs may very well feel that further efforts are not justified, but they should be afforded the opportunity to demonstrate that the charter forecloses access to a significant number of offices, the candidacy for which by municipal employees would not pose the possible threats to government efficiency and integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft, heavily relied upon by the ponencia, has effectively been overruled. As it is no longer good law, the ponencia’s exhortation that “[since] the Americans, from whom we copied the provision in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too, should follow suit” is misplaced and unwarranted.
Accordingly, our assailed Decision’s submission that the right to run for public office is “inextricably linked” with two fundamental freedoms – those of expression and association – lies on barren ground. American case law has in fact never recognized a fundamental right to express one’s political views through candidacy, as to invoke a rigorous standard of review. Bart v. Telford pointedly stated that “[t]he First Amendment does not in terms confer a right to run for public office, and this court has held that it does not do so by implication either.” Thus, one’s interest in seeking office, by itself, is not entitled to constitutional protection. Moreover, one cannot bring one’s action under the rubric of freedom of association, absent any allegation that, by running for an elective position, one is advancing the political ideas of a particular set of voters.
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar, are not violative of the equal protection clause. The deemed-resigned provisions substantially serve governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather than to party; (ii) avoidance of the appearance of “political justice” as to policy; (iii) avoidance of the danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on their merits and that they be free from both coercion and the prospect of favor from political activity). These are interests that are important enough to outweigh the non-fundamental right of appointive officials and employees to seek elective office.
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing and Morial, et al. v. Judiciary Commission of the State of Louisiana, et al. to buttress his dissent. Maintaining that resign-to-run provisions are valid only when made applicable to specified officials, he explains:
…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when applied to specified or particular officials, as distinguished from all others, under a classification that is germane to the purposes of the law. These resign-to-run legislations were not expressed in a general and sweeping provision, and thus did not violate the test of being germane to the purpose of the law, the second requisite for a valid classification. Directed, as they were, to particular officials, they were not overly encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a general class); the questioned provisions were found valid precisely because the Court deferred to legislative judgment and found that a regulation is not devoid of a rational predicate simply because it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the claim that the State of Texas failed to explain why some public officials are subject to the resign-to-run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically resign their positions if they become candidates for any other elected office, unless the unexpired portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are even less substantial than those imposed by § 19. The two provisions, of course, serve essentially the same state interests. The District Court found § 65 deficient, however, not because of the nature or extent of the provision's restriction on candidacy, but because of the manner in which the offices are classified. According to the District Court, the classification system cannot survive equal protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials are subject to § 65 and why others are not. As with the case of § 19, we conclude that § 65 survives a challenge under the Equal Protection Clause unless appellees can show that there is no rational predicate to the classification scheme.
The history behind § 65 shows that it may be upheld consistent with the "one step at a time" approach that this Court has undertaken with regard to state regulation not subject to more vigorous scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a transitional provision applying only to the 1954 election. Section 65 extended the terms of those offices enumerated in the provision from two to four years. The provision also staggered the terms of other offices so that at least some county and local offices would be contested at each election. The automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities who serve terms longer than two years. Section 11 allows home rule cities the option of extending the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of 1958. That the State did not go further in applying the automatic resignation provision to those officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection Clause. A regulation is not devoid of a rational predicate simply because it happens to be incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's candidacy for another elected office unless and until it places similar restrictions on other officeholders. The provision's language and its history belie any notion that § 65 serves the invidious purpose of denying access to the political process to identifiable classes of potential candidates. (citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that “there is no blanket approval of restrictions on the right of public employees to become candidates for public office” out of context. A correct reading of that line readily shows that the Court only meant to confine its ruling to the facts of that case, as each equal protection challenge would necessarily have to involve weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should be taken to imply that public employees may be prohibited from expressing their private views on controversial topics in a manner that does not interfere with the proper performance of their public duties. In today's decision, there is no blanket approval of restrictions on the right of public employees to become candidates for public office. Nor do we approve any general restrictions on the political and civil rights of judges in particular. Our holding is necessarily narrowed by the methodology employed to reach it. A requirement that a state judge resign his office prior to becoming a candidate for non-judicial office bears a reasonably necessary relation to the achievement of the state's interest in preventing the actuality or appearance of judicial impropriety. Such a requirement offends neither the first amendment's guarantees of free expression and association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment positions require restrictions on partisan political activities and which may be left unregulated. And a State can hardly be faulted for attempting to limit the positions upon which such restrictions are placed. (citations omitted)
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election Code on equal protection ground, our assailed Decision struck them down for being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts without due regard for the type of position being held by the employee seeking an elective post and the degree of influence that may be attendant thereto; and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive positions without due regard for the type of office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad because they apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of position being held by the employee running for elective office and the degree of influence that may be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when the incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the government posed by the partisan potential of a large and growing bureaucracy: the danger of systematic abuse perpetuated by a “powerful political machine” that has amassed “the scattered powers of government workers” so as to give itself and its incumbent workers an “unbreakable grasp on the reins of power.” As elucidated in our prior exposition:
Attempts by government employees to wield influence over others or to make use of their respective positions (apparently) to promote their own candidacy may seem tolerable – even innocuous – particularly when viewed in isolation from other similar attempts by other government employees. Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on the part of an emerging central party structure to advance its own agenda through a “carefully orchestrated use of [appointive and/or elective] officials” coming from various levels of the bureaucracy.
…[T]he avoidance of such a “politically active public work force” which could give an emerging political machine an “unbreakable grasp on the reins of power” is reason enough to impose a restriction on the candidacies of all appointive public officials without further distinction as to the type of positions being held by such employees or the degree of influence that may be attendant thereto. (citations omitted)
ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid
The assailed Decision also held that the challenged provisions of law are overly broad because they are made to apply indiscriminately to all civil servants holding appointive offices, without due regard for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in the national, municipal or barangay level.
This erroneous ruling is premised on the assumption that “the concerns of a truly partisan office and the temptations it fosters are sufficiently different from those involved in an office removed from regular party politics [so as] to warrant distinctive treatment,” so that restrictions on candidacy akin to those imposed by the challenged provisions can validly apply only to situations in which the elective office sought is partisan in character. To the extent, therefore, that such restrictions are said to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the alleged overbreadth is more apparent than real. Our exposition on this issue has not been repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein refer to the filing of certificates of candidacy and nomination of official candidates of registered political parties, in connection with the May 10, 2010 National and Local Elections. Obviously, these rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted, are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678 applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10, 2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section 4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election Code, in conjunction with other related laws on the matter, will confirm that these provisions are likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay offices, since these are the only elections in this country which involve nonpartisan public offices.
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code in 1985, Congress has intended that these nonpartisan barangay elections be governed by special rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus Election Code. Said provision states:
Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from the commencement of the election period but not later than the day before the beginning of the campaign period in a form to be prescribed by the Commission. The candidate shall state the barangay office for which he is a candidate.
x x x x
Any elective or appointive municipal, city, provincial or national official or employee, or those in the civil or military service, including those in government-owned or-controlled corporations, shall be considered automatically resigned upon the filing of certificate of candidacy for a barangay office.
Since barangay elections are governed by a separate deemed resignation rule, under the present state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any election other than a partisan one. For this reason, the overbreadth challenge raised against Section 66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail.
In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again, we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not received judicial imprimatur, because the general proposition of the relevant US cases on the matter is simply that the government has an interest in regulating the conduct and speech of its employees that differs significantly from those it possesses in connection with regulation of the speech of the citizenry in general.
Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly broad, particularly where, as in this case, “conduct” and not “pure speech” is involved, the overbreadth must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.
In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among other things, a rough balancing of the number of valid applications compared to the number of potentially invalid applications. In this regard, some sensitivity to reality is needed; an invalid application that is far-fetched does not deserve as much weight as one that is probable. The question is a matter of degree. Thus, assuming for the sake of argument that the partisan-nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e. the number of elections that were insulated from party rivalry but were nevertheless closed to appointive employees) that may in all probability result from the enforcement of the statute.
The state of the record, however, does not permit us to find overbreadth. Borrowing from the words of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the dark, especially since an overbreadth finding in this case would effectively prohibit the State from ‘enforcing an otherwise valid measure against conduct that is admittedly within its power to proscribe.’
This Court would do well to proceed with tiptoe caution, particularly when it comes to the application of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that must be used sparingly, and only as a last resort.
In the United States, claims of facial overbreadth have been entertained only where, in the judgment of the court, the possibility that protected speech of others may be muted and perceived grievances left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible harm to society in allowing some unprotected speech or conduct to go unpunished. Facial overbreadth has likewise not been invoked where a limiting construction could be placed on the challenged statute, and where there are readily apparent constructions that would cure, or at least substantially reduce, the alleged overbreadth of the statute.
In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain in office, even as they actively pursue elective posts, far outweighs the less likely evil of having arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad statute.
In this light, the conceivably impermissible applications of the challenged statutes – which are, at best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State from enforcing them against conduct that is, and has for more than 100 years been, unquestionably within its power and interest to proscribe. Instead, the more prudent approach would be to deal with these conceivably impermissible applications through case-by-case adjudication rather than through a total invalidation of the statute itself.
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had already filed their Certificates of Candidacy without relinquishing their posts. Several COMELEC election officers had likewise filed their Certificates of Candidacy in their respective provinces. Even the Secretary of Justice had filed her certificate of substitution for representative of the first district of Quezon province last December 14, 2009 – even as her position as Justice Secretary includes supervision over the City and Provincial Prosecutors, who, in turn, act as Vice-Chairmen of the respective Boards of Canvassers. The Judiciary has not been spared, for a Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA 9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’ Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision; DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1) Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.
1. The scope of the equal protection clause, 95 SCRA 420
2. Equal protection of the law, 13 SCRA 266
3. Requisites for a valid classification-
People vs. Cayat, 68 Phil. 12
There must be real and substantial distinctions;
It must be germane tot he purposes of the law;
It must not be limited to existing conditions only; and
It must apply equally to all members of the same class.
2. Read again, Association of Small Landowners vs. Sec. of Agrarian reform, July 14, 1989
4. Equal protection in general-
P. vs. Vera, 65 Phil. 56
TIU VS. CA, 301 SCRA 278 (There is real and substantial distinction between business inside the Subic Special Economic Zone and outside wherein those inside are exempt from other taxes as a result of the policy of the government to accelerate the development of the portion of Subic left by the Americans)
IMELDA MARCOS VS. CA, 278 SCRA 843
HIMAGAN VS. PEOPLE, October 7, 1994
The fact that policemen charged with a criminal offense punishable by more than 6 years are to be suspended during the entire duration of the case unlike other government employees is valid since it rests on valid classification because policemen carry weapons and the badge of the law which can be used to harass or intimidate witnesses against them.
There is no violation of the equal protection clause when the Compensation and Classification Act of 1989 includes certain allowances and fringe benefits into the standardized salaries of most government employees but not to police and military personnel.
These consolidated cases question the inclusion of certain allowances and fringe benefits into the standardized salary rates for offices in the national government, state universities and colleges, and local government units as required by the Compensation and Position Classification Act of 1989 and implemented through the challenged National Compensation Circular 59 (NCC 59) while the said allowances and other fringe benefits are not included insofar as members of the police and military are concerned.
The Facts and the Case
Congress enacted in 1989 Republic Act (R.A.) 6758, called the Compensation and Position Classification Act of 1989 to rationalize the compensation of government employees. Its Section 12 directed the consolidation of allowances and additional compensation already being enjoyed by employees into their standardized salary rates. But it exempted certain additional compensations that the employees may be receiving from such consolidation. Thus:
Section 12. Consolidation of Allowances and Compensation. -- All allowances, except for representation and transportation allowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels and hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensation not otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary rates herein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of July 1, 1989 not integrated into the standardized salary rates shall continue to be authorized.
Whether or not the grant of COLA to military and police personnel to the exclusion of other government employees violates the equal protection clause.
The Court’s Ruling
At the heart of the present controversy is Section 12 of R.A. 6758 as quoted above. .
As will be noted from the first sentence above, “all allowances” were deemed integrated into the standardized salary rates except the following:
(1) representation and transportation allowances;
(2) clothing and laundry allowances;
(3) subsistence allowances of marine officers and crew on board government vessels;
(4) subsistence allowances of hospital personnel;
(5) hazard pay;
(6) allowances of foreign service personnel stationed abroad; and
(7) such other additional compensation not otherwise specified in Section 12 as may be determined by the DBM.
But, while the provision enumerated certain exclusions, it also authorized the DBM to identify such other additional compensation that may be granted over and above the standardized salary rates. In Philippine Ports Authority Employees Hired After July 1, 1989 v. Commission on Audit, the Court has ruled that while Section 12 could be considered self-executing in regard to items (1) to (6), it was not so in regard to item (7). The DBM still needed to amplify item (7) since one cannot simply assume what other allowances were excluded from the standardized salary rates. It was only upon the issuance and effectivity of the corresponding implementing rules and regulations that item (7) could be deemed legally completed.
Clearly, COLA is not in the nature of an allowance intended to reimburse expenses incurred by officials and employees of the government in the performance of their official functions. It is not payment in consideration of the fulfillment of official duty. As defined, cost of living refers to “the level of prices relating to a range of everyday items” or “the cost of purchasing those goods and services which are included in an accepted standard level of consumption.” Based on this premise, COLA is a benefit intended to cover increases in the cost of living. Thus, it is and should be integrated into the standardized salary rates.
Petitioners contend that the continued grant of COLA to military and police to the exclusion of other government employees violates the equal protection clause of the Constitution.
But as respondents pointed out, while it may appear that petitioners are questioning the constitutionality of these issuances, they are in fact attacking the very constitutionality of Section 11 of R.A. 6758. It is actually this provision which allows the uniformed personnel to continue receiving their COLA over and above their basic pay, thus:
Section 11. Military and Police Personnel. - The base pay of uniformed personnel of the Armed Forces of the Philippines and the Integrated National Police shall be as prescribed in the salary schedule for these personnel in R.A. 6638 and R.A. 6648. The longevity pay of these personnel shall be as prescribed under R.A. 6638, and R.A. 1134 as amended by R.A. 3725 and R.A. 6648: Provided, however, That the longevity pay of uniformed personnel of the Integrated National Police shall include those services rendered as uniformed members of the police, jail and fire departments of the local government units prior to the police integration.
All existing types of allowances authorized for uniformed personnel of the Armed Forces of the Philippines and Integrated National Police such as cost of living allowance, longevity pay, quarters allowance, subsistence allowance, clothing allowance, hazard pay and other allowances shall continue to be authorized.
Nothing is more settled than that the constitutionality of a statute cannot be attacked collaterally because constitutionality issues must be pleaded directly and not collaterally.
In any event, the Court is not persuaded that the continued grant of COLA to the uniformed personnel to the exclusion of other national government officials run afoul the equal protection clause of the Constitution. The fundamental right of equal protection of the laws is not absolute, but is subject to reasonable classification. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated and regulated differently from another. The classification must also be germane to the purpose of the law and must apply to all those belonging to the same class.
To be valid and reasonable, the classification must satisfy the following requirements: (1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it must not be limited to existing conditions only; and (4) it must apply equally to all members of the same class.
It is clear from the first paragraph of Section 11 that Congress intended the uniformed personnel to be continually governed by their respective compensation laws. Thus, the military is governed by R.A. 6638, as amended by R.A. 9166 while the police is governed by R.A. 6648, as amended by R.A. 6975.
Certainly, there are valid reasons to treat the uniformed personnel differently from other national government officials. Being in charged of the actual defense of the State and the maintenance of internal peace and order, they are expected to be stationed virtually anywhere in the country. They are likely to be assigned to a variety of low, moderate, and high-cost areas. Since their basic pay does not vary based on location, the continued grant of COLA is intended to help them offset the effects of living in higher cost areas.
2-A Gumabon vs. Director of Prisons, 37 SCRA 420
2-b. PANFILO LACSON VS. SANDIGANBAYAN, January 20, 1999
2-b-1. BASCO VS. PAGCOR, May 14, 1991
No violation of the equal protection clause if Congress would legalize cock-fighting and horse racing since police power could regulate gambling.
PHILIPPINE JUDGES ASSOCIATION VS. PRADO, November 11, 1993
There is no valid distinction for a law removing the franking privilege of the judiciary while leaving the same to the Executive and Legislative despite the fact that there is considerable volume of mails from the courts. Loss of revenue is not a valid ground unless it would be withdrawn to all government offices.
FRANCISCO TATAD vs. THE SECRETARY OF DEPARTMENT OF ENERGY, G. R. No. 124360, November 5, 1997
EDCEL LAGMAN, JOKER ARROYO, ENRIQUE GARCIA, WIGBERTO TANADA, FLAG HUMAN RIGHTS FOUNDATION vs. HON. RUBEN TORRES, HON. FRANCISCO VIRAY, PETRON, FILIPINAS SHELL and CALTEX PHILIPPINES, G.R. No. 127867, November 5, 1997.
These petitions challenge the constitutionality of Republic Act No. 8180 entitled “An Act Deregulating the Downstream Oil Industry and for Other Purposes”. RA 8180 seeks to end 26 years of government regulation of the downstream oil industry.
Prior to 1971, no government agency was regulating the oil industry. New players were free to enter the oil market without any government interference. There were four (4) refining companies at that time. SHELL, CALTEX, BATAAN REFINING COMPANY and FILOIL MARKETING and six (6) petroleum marketing companies: ESSO, FILOIL, CALTEX, GETTY, MOBIL and SHELL;
In 1971, the country was driven to its knees by the crippling oil crisis and in order to remedy the same, the OIL INDUSTRY COMMISSION ACT was enacted REGULATING the oil industry ;
On November 9, 1973, then President Marcos created the Philippine national Oil Corporation (PNOC) t break the control of the foreigners to the oil industry. It acquired ownership of ESSO Philippines and Filoil and likewise bought controlling shares of the Bataan Refining Corporation. PNOC then operated under the business name PETRON CORPORATION and for the first time, there was a Filipino presence in the Philippine oil market;
In 1984, Pres. Marcos through section 8 of PD 1956 created the OIL PRICE STABILIZATION FUND (OPSF) to cushion the effects of frequent changes in the price of oil caused by the exchange rate adjustments or increase of the world market prices crude oil and imported petroleum products;
By 1985, only three (3) oil companies were left operating in the country. These are: CALTEX, FILIPINAS SHELL and PNOC;
In May, 1987, Pres. Corazon Aquino signed Executive Order No. 172 creating the ENERGY REULATORY BOARD to regulate the business of importing, exporting, shipping, transporting, processing, refining, marketing and distributing energy resources “WHEN WARRANTED AND ONLY WHEN PUBLIC NECESSITY REQUIRES”. The Board was empowered to “fix and regulate the prices of petroleum products and other related merchandise;
In March, 1996, Congress enacted RA 8180 deregulating the Oil Industry not later than March, 1997. The law requires that the implementation of the regulation, shall as far as practicable be made at a time WHEN THE PRICES OF CRUDE OIL AND PETROLEUM PRODUCTS IN THE WORLD ARE DECLINING AND WHEN THE EXCHANGE RATE OF THE PESO IN RELATION TO THE US DOLLAR; IS STABLE;
On February 8, 1997, Executive Order No. 372 was issued by President Fidel Ramos implementing full deregulation ON THE GROUND THAT THE OPSF FUND HAS BEEN DEPLETED;
The petitioners questioned the constitutionality of RA 8180 on the following grounds:
Section 5 of RA 8180 violates the equal protection clause of the Constitution;
The imposition of different tariff rates does not deregulate the oil industry and even bars the entry of other players in the oil industry but instead effectively protects the interest of the oil companies with existing refineries. Thus, it runs counter to the objective of the law “to foster a truly competitive market”; The inclusion of Sec. 5 [b] providing for tariff differential violates Section 26  of Art. VI of the 1987 Constitution which requires every law to have only one subject which should be expressed in the title thereof;
Section 15 of RA 8180 and EO No. 392 are unconstitutional for undue delegation of legislative power to the President and the Secretary of Energy;
EO 392 implementing the full deregulation of the oil industry is unconstitutional since it is arbitrary and unreasonable since it was enacted due to the alleged depletion of the OPSF fund, a condition which is not found in RA No. 8180;
Section 15 of RA 8180 is unconstitutional for it allows the formation of a de facto cartel among three existing oil companies in violation of the Constitution prohibiting against monopolies, combination in restraint of trade and unfair competition.
The provisions of the law being questioned as unconstitutional are Section 5 [b] and Section 15 which provide:
“Section 5 [b] Any law to the contrary notwithstanding and starting with the effectivity of this Act, tariff duty shall be imposed and collected on imported crude oil at the rate of 3% and imported refined petroleum products at the rate of seven (7%) percent, except fuel oil and LPG, the rate for which shall be the same; Provided, that beginning on January 1, 2004, the tariff rate on imported crude oil and refined petroleum products shall be the same; Provided, further, that this provision may be amended only by an Act of Congress.”
x x x
“Section 15. Implementation of full deregulation. Pursuant to Section 5 [e] of RA 7638, the DOE, upon approval of the President, implement full deregulation of the downstream oil industry not later than March, 1997. As far as practicable, the DOE shall time the full deregulation when the prices of crude oil and petroleum products in the world market are declining and when the exchange rate of the peso in relation to the US dollar is stable.”
The issues are:
Whether or not the petitions raise justiciable controversy; and
Whether or not the petitioners have the standing to question the validity of the subject law and executive order.
Whether or not Section 5 of RA 8180 violates the one title—one subject requirement of the Constitution;
Whether or not Section 5 of RA 8180 violates the equal protection clause of the Constitution;
Whether section 15 violates the constitutional prohibition on undue delegation of legislative power;
Whether or not EO 392 is arbitrary and unreasonable; and
Whether or not RA 8180 violates the constitutional prohibition against monopolies, combinations in restraint of trade and unfair competition.
Judicial power includes not only the duty of the courts to settle controversies involving rights but also the duty to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any agency or branch of the government. The courts, as guardians of the Constitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed by the fundamental law. When the statute violates the Constitution, it is not only the right of the judiciary to declare such act as unconstitutional and void.
The question of locus standi must likewise fall . As held in KAPATIRAN NG MGA NAGLILINGKOD SA PAMAHALAAN NG PILIPINAS, INC. VS. TAN, it was held that:
“Objections to taxpayer’s suit for lack of sufficient personality, standing, or interest are , however, in the main procedural matters. CONSIDERING THE IMPORTANCE OF THE CASES TO THE PUBLIC, AND IN KEEPING WITH THE COURT’S DUTY TO DETERMINE WHETHER OR NOT THE OTHER BRANCHEDS OF GOVERNMENT HAVE KEPT THEMSELVES WITHIN THE LIMITS OF THE CONSTITUTION AND THE LAWS AND THAT THEY HAVE NOT ABUSE THE DISCRETION GIVEN TO THEM, THE COURT HAS BRUSHED ASIDE TECHNICALITIES OF PROCEDURE AND HAS TAKEN COGNIZANCE OF THESE PETITIONS.”
There is no disagreement on the part of the parties as to the far-reaching importance of the validity of RA 8180. Thus, there is no good sense in being hyper-technical on the standing of the petitioners for they pose issues which are significant to our people and which deserve our forthright resolution.
It is contended that Section 5[b[ of RA 8180 on tariff differentials violates the Constitutional prohibition requiring every law to have only one subject which should be expressed in its title. We do not concur with this contention. As a policy, the Court has adopted a liberal construction of the one title---one subject rule. We have consistently ruled that the title need not mirror, fully index or catalogue all contents and minute details of a law. A law having a single general subject indicated in the title may contain a number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the general subject. We hold that Section 5 providing for tariff differential is germane to the subject of RA 8180 which is the deregulation of the downstream oil industry.
The contention that there is undue delegation of legislative power when it authorized the President to determine when deregulation starts is without merit. The petitioners claim that the phrases “as far as practicable”, “decline of crude oil prices in the world market” and “stability of the peso exchange rate to the US dollar” are ambivalent, unclear and inconcrete in meaning and could not therefore provide the “determinate or determinable standards” which can guide the President in his decision to fully deregulate the oil industry. The power of Congress to delegate the execution of laws has long been settled by this Court in 1916 in the case of COMPANIA GENERAL DE TABACOS DE FILIPINA VS. THE BOARD OF PUBLIC UTILITY COMMISSIONERS WHERE IT WAS HELD THAT:
“The true distinction is between the delegation of power to make the law , which necessarily involves a discretion as to what it shall be, and conferring authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter, no valid objection can be made.”
Two tests have been developed to determine whether the delegation of the power to execute laws does not involve the abdication of the power to make law itself. We delineated the metes and bounds of these tests in EASTERM SHIPPING LINES VS. POEA, thus:
There are two accepted tests to determine whether or not there is a valid delegation of legislative power , viz: the completeness test and the sufficiency of standard test. Under the first test, the law must be complete in all its terms and conditions when it leaves the legislative such that when it reaches the delegate, the only thing he will do is enforce it. Under the sufficient standard test, there must be adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot. BOTH TESTS ARE INTENDED TO PREVENT A TOTAL TRANSFERENCE OF LEGISLATIVE AUTHORITY TO THE DELEGATE, WHO IS NOT ALLOWED TO STEP INTO THE SHOES OF THE LEGISLATURE AND EXERCISE A POWER ESSENTIALLY LEGISLATIVE.”
The validity of delegating legislative power is now a quiet area in our constitutional landscape because such has become an inevitability in light of the increasing complexity of the task of government. In fact, in HIRABAYASHI VS. UNITED STATES, the Supreme Court through Justice ISAGANI CRUZ held that “even if the law does not expressly pinpoint the standard, THE COURTS WILL BEND BACKWARD TO LOCATE THE SAME ELSEWHERE IN ORDER TO SPARE THE STATUTE; IF IT CAN, FROM CONSTITUTIONAL INFIRMITY.”
EO No. 392 failed to follow faithfully the standards set by RA 8180 when it considered the extraneous factor of depletion of the OPSF Fund. The misapplication of this extra factor cannot be justified. The executive is bereft of any right to alter either by addition or subtraction the standards set by RA 8180 for it has no power to make laws. To cede to the executive the power to make laws would invite tyranny and to transgress the separation of powers. The exercise of delegated power is given a strict scrutiny by courts for the delegate is a mere agent whose action cannot infringe the terms of the agency.
Section 19 of Article XII of the Constitution provides:
“The state shall regulate or prohibit monopolies when the public interests so requires. No combinations in restraint of trade or unfair competition shall be allowed.”
A monopoly is a privilege or peculiar advantage vested in one or more persons or companies, consisting of the exclusive right or power to carry on a particular business or trade, manufacture a particular article or control the sale or the whole market structure in which one or only a few firms dominate the total sales of a product or service. On the other hand, a combination in restraint of trade is an agreement or understanding between two or more persons, in the form of contract, trust, pool, holding company, for the purpose of unduly restricting competition, monopolizing trade and commerce in a certain commodity, controlling its production, distribution and price or otherwise interfering with freedom of trade without statutory authority. Combination in restraint of trade refers to means while monopoly refers to the end.
Respondents aver that the 4% tariff differential is designed to encourage new entrants to invest in refineries. They stress that the inventory requirement is meant to guaranty continuous domestic supply of petroleum and to discourage fly-by-night operators. They also claim that the prohibition against predatory pricing is intended to protect prospective entrants.
The validity of the assailed provisions of RA 8180 has to be decided in the light of the letter and spirit of Section 19, Art. XII of the Constitution. While the Constitution embraced free enterprise as an economic creed, it did not prohibit per se the operation of monopolies which can, however, be regulated in the public interest. This distinct free enterprise system is dictated by the need to achieve the goals of our national economy as defined under Section 1, Art. XII of the Constitution which are: more equitable distribution of opportunities, income and wealth; a sustained increase in the amount of goods and services produced by the nation for all, especially the underprivileged . It also calls for the State to protect Filipino enterprises against unfair and trades practices.
The provisions on 4% tariff differential, predatory pricing and inventory requirement blocks the entry of other players and give undue advantage to the 3 oil companies resulting to monopolies or unfair competition. This is so because it would take billions for new players to construct refineries, and to have big inventories. This would effectively prevent new players.
In the case at bar, it cannot be denied that our oil industry is operated and controlled by an oligopoly (dominated by a handful of players) and a foreign oligopoly at that. As the dominant players, SHELL, CALTEX & PETRON boast of existing refineries of various capacities. The tariff differential of 4% works to their immense advantage. Yet, this is only one edge on tariff differential. THE OTHER EDGE CUTS AND CUTS DEEP IN THE HEART OF THEIR COMPETITORS. IT ERECTS HIGH BARRIERS TO NE PLAYERS. New players in order to equalize must build their refineries worth billions of pesos. Those without refineries had to compete with a higher cost of 4%.They will be competing on an uneven field.
The provision on inventory widens the advantage of PETRON, SHELL AND CALTEX against prospective new players. The three (3) could easily comply with the inventory requirement in view of their numerous storage facilities. Prospective competitors again find compliance oft his requirement difficult because of prohibitive cost in constructing new storage facilities. The net effect would be to effectively prohibit the entrance of new players.
Now comes the prohibition on predatory pricing or “selling or offering to sell any product at a price unreasonably below the industry average cost so as to attract customers to the detriment of the competitors”. According to HOVENKAMP:
“The rationale for predatory pricing is the sustaining of losses today that will give a firm monopoly profits in the future. The monopoly profits will never materialize, however, if the market is flooded with new entrants as soon as the successful predator attempts to raise its price. Predatory pricing will be profitable only if the market contains significant barriers to new entry.”
Coupled with the 4% tariff differential and the inventory requirement, the predatory pricing is a significant barrier which discourage new players to enter the oil market thereby promoting unfair competition, monopoly and restraint of trade which are prohibited by the Constitution.
2-d.LACSON VS. SANDIGANBAYAN, January 20, 1999
3. Taxicab Operators vs. BOT, September 30,l982
4. Bautista vs. Juinio,127 SCRA 329
5. Dumlao vs. COMELEC, 95 SCRA 392
6. Villegas vs. Hiu, 86 SCRA 270
7. Ceniza vs. COMELEC, 95 SCRA 763
8. UNIDO vs. COMELEC, 104 SCRA 38
9. Nunez vs. Sandiganbayan, 111 SCRA 433(Read also the dissenting opinion of Justice Makasiar
10. Sison vs. Ancheta, 130 SCRA 654
11. Citizens Surety vs. Puno, 119 SCRA 216
12. Peralta vs. COMELEC, 82 SCRA 30
13. Hawaiian-Phil. Co. vs. Asociacion, 151 SCRA 306
14. Ormoc Sugar Co. vs. Ormoc City, 22 SCRA 603
15. Flores vs. COMELEC, 184 SCRA 484
Section 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)
Sec. 18. Period of detention without judicial warrant of arrest.- The provisions of Article 125 of the Revised Penal Code, notwithstanding, any police or law enforcement personnel, who, having been duly authorized in writing by the Anti-Terrorism Council has taken custody of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall, WITHOUT INCURRING ANY CRIMINAL LIABILITY FOR DELAY IN THE DELIVERY OF DETAINED PERSONS TO THE PROPER JUDICIAL AUTHORITIES, DELIVER SAID CHARGED OR SUSPECTED PERSON TO THE PROPER JUDICIAL AUTHORITY WITHIN A PERIOD OF THREE (3) DAYS counted from the moment said charged or suspected person has been apprehended or arrested, detained, and taken into custody by the said police, or law enforcement personnel: Provided, That the arrest of those suspected of the crime of terrorism or conspiracy to commit terrorism must result from the surveillance under Section 7 and examination of bank deposits under Section 27 pf this Act.
The police or law enforcement personnel concerned shall, before detaining the person suspected of the crime of terrorism, present him or her before any judge at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night. It shall be the duty of the judge, among other things, to ascertain the identity of the police or law enforcement personnel and the person or persons they have arrested and presented before him or her, to inquire of them the reasons why they have arrested the person and determine by questioning and personal observation whether or not the subject has been subjected to any physical, moral or psychological torture by whom and why. The judge shall then submit a written report of what he/she had observed when the subject was brought before him to the proper court that has jurisdiction over the case of the person thus arrested.
The judge shall forthwith submit his report within 3 calendar days from the time the suspect was brought to his/her residence or office.
Immediately after taking custody of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; provided, That where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested. The penalty of 10 years and 1 day to 12 years imprisonment shall be imposed upon the police or law enforcement personnel who fails to notify any judge as provided in the preceding paragraph.
Section 19. Period of Detention in the event of an actual or imminent terrorist attack.- In the vent of an actual or imminent terrorist attack,, suspects may not be detained for more than three days without the written approval of a municipal, city, provincial or regional official of a Human Rights Commission, or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of arrest. If the arrest is made during Saturdays, Sundays or holidays, or after office hours, the arresting police of law enforcement personnel shall bring the person thus arrested to the residence of any of the officials mentioned above that is nearest the place where the accused was arrested. The approval in writing of any of the said officials shall be secured by the police or law enforcement personnel concerned within five days after the date of the detention of the persons concerned; Provided, however, That within three days after the detention the suspects whose connection with the terror attack or threat is not established, shall be released immediately.
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism---even if they have been granted bail because evidence of guilt is not strong—can be:
Detained under house arrest;
Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.
Section 39. Seizure and Sequestration.- The deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature belonging:
To any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
to a judicially declared and outlawed terrorist organization or group of persons;
to a member of such judicially declared and outlawed organization, association or group of persons,
-shall be seized, sequestered, and frozen in order to prevent their use, transfer or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.
The accused or suspect may withdraw such sums as are reasonably needed by his family including the services of his counsel and his family’s medical needs upon approval of the court. He or she may also use any of his property that is under seizure or sequestration or frozen because of his/her indictment as a terrorist upon permission of the court for any legitimate reason.
Section 40. The seized, sequestered and frozen bank deposits…shall be deemed property held in trust by the bank or financial institution and that their use or disposition while the case is pending shall be subject to the approval of the court before which the case or cases are pending.
Section 41. If the person suspected as terrorist is acquitted after arraignment or his case dismissed before his arraignment by a competent court, the seizure…shall be lifted by the investigating body or the competent court and restored to him without delay. The filing of an appeal or motion for reconsideration shall not stay the release of said funds from seizure, sequestration and freezing.
If convicted, said seized, sequestered and frozen assets shall automatically forfeited in favor of the government.
Requisites of a valid search warrant
a. Essentials of a valid search warrant,145 SCRA 739
b. Validity of a search warrant and the admissibility of evidence obtained in violation thereof.
c. The place to be searched as indicated in the warrant is controlling
In applying for a search warrant, the police officers had in their mind the first four (4) separate apartment units at the rear of ABIGAIL VARIETY STORE in Quezon City to be the subject of their search. The same was not, however, what the Judge who issued the warrant had in mind, AND WAS NOT WHAT WAS ULTIMATELY DESCRIBED IN THE SEARCH WARRANT. As such, any evidence obtained from the place searched which is different from that indicated in the search warrant is inadmissible in evidence for any purpose and in any proceeding.
This is so because it is neither licit nor fair to allow police officers to search a place different from that stated in the warrant on the claim that the place actually searched---although not that specified in the search warrant---is exactly what they had in view when they applied for the warrant and had demarcated in their supporting evidence. WHAT IS MATERIAL IN DETERMINING THE VALIDITY OF A SEARCH IS THE PLACE STATED IN THE WARRANT ITSELF, NOT WHAT THE APPLICANTS HAD IN THEIR THOUGHTS, OR HAD REPRESENTED IN THE PROOFS THEY SUBMITTED TO THE COURT ISSUING THE WARRANT. As such, it was not just a case of “obvious typographical error”, but a clear case of a search of a place different from that clearly and without ambiguity identified in the search warrant.
NOTE: Very Important: Where a search warrant is issued by one court and the criminal action base don the results of the search is afterwards commenced in another court, IT IS NOT THE RULE THAT A MOTION TO QUASH THE WARRANT (or to retrieve the things seized) MAY BE FILED ONLY IN THE ISSUING COURT---SUCH A MOTION MAY BE FILED FOR THE FIRST TIME IN EITHER THE ISSUING COURT OR THAT IN WHICH THE CRIMINAL PROCEEDING IS PENDING.
d. Validity of a warrantless search and seizure as a result of an informer’s tip. Note the two (2) conflicting decisions of the Supreme Court.
PEOPLE VS. ARUTA, 288 SCRA 626
On December 13, 1988, P/Lt. Abello of the Olongapo PNP was tipped off by an informer that Aling Rosa would be arriving from Baguio City the following day with a large volume of marijuana. As a result of the tip, the policemen waited for a Victory Bus from Baguio City near the PNB Olongapo, near Rizal Ave. When the accused got off, she was pointed to by the informer. She was carrying a traveling bag at that time. She was not acting suspiciously. She was arrested without a warrant.
The bag allegedly contained 8.5 kilos of marijuana. After trial, she was convicted and imposed a penalty of life imprisonment.
Whether or not the marijuana allegedly taken from the accused is admissible in evidence.
Warrantless search is allowed in the following instances:
searches of moving vehicle;
seizure of evidence in plain view;
search incidental to a lawful arrest; and
stop and frisk measures.
The above exceptions to the requirement of a search warrant, however, should not become unbridled licenses for law enforcement officers to trample upon the conditionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted. In order that the information received by the police officers may be sufficient to be the basis of probable cause, it must be based on reasonable ground of suspicion or belief a crime has been committed or is about to be committed.
The marijuana obtained as a result of a warrantless search is inadmissible as evidence for the following reasons:
the policemen had sufficient time to apply for a search warrant but they failed to do so;
the accused was not acting suspiciously;
the accused’s identity was previously ascertained so applying for a warrant should have been easy;
the accused in this case was searched while innocently crossing a street
Consequently, there was no legal basis for the police to effect a warrantless search of the accused’s bag, there being no probable cause and the accused’s not having been legally arrested. The arrest was made only after the accused was pointed to by the informant at a time when she was not doing anything suspicious. The arresting officers do not have personal knowledge that the accused was committing a crime at that time.
Since there was no valid warrantless arrest, it logically follows that the subsequent search is similarly illegal, it being not incidental to a lawful arrest. This is so because if a search is first undertaken, and an arrest effected based on the evidence produced by the search, both such search and arrest would be unlawful, for being contrary to law.
This case is similar tot he case of PEOPLE VS. AMINNUDIN, and PEOPLE VS. ENCINADA.
On June 19, 1994, at about 2 p.m., SPO1 Talingting and SPO1 Clarin of the Dasmarinas, Cavite PNP were informed by an INFORMER that a drug courier would be arriving in Barangay Salitran, Dasmarinas, Cavite, from Baguio City, with an undetermined amount of marijuana. The informer likewise informed them that he could recognize said person.
At about 4 in the morning of June 20, 1994, the appellant was arrested by the above-named police officers while alighting from a passenger jeepney near a waiting shed in Salitran, Dasmarinas, Cavite, upon being pointed to by the informer. The policemen recovered 28 kilos of dried marijuana leaves. The arrest was without warrant.
The trial court convicted the appellant for transporting marijuana based on the testimonies of the Above-named police officers without presenting the alleged informer.
Was the warrantless arrest valid?
The accused claims that the warrantless search and seizure is illegal because the alleged information was received by the police on June 19, 1994 and therefore, they could have applied for a search warrant. The said contention is without merit considering that the information given by the informer is too sketchy and not detailed enough for the obtention of the corresponding arrest or search warrant. While there is indication that the informer knows the courier, the records do not show that he knew his name. On bare information, the police could not have secured a warrant from a judge.
Furthermore, warrantless search is allowed in the following instances:
searches of moving vehicle;
seizure of evidence in plain view;
search incidental to a lawful arrest; and
stop and frisk measures.
Since the accused was arrested for transporting marijuana, the subsequent search on his person is justified. An arresting officer has the right to validly search and seize from the offender (1) dangerous weapons; and (2) those that may be used as proof of the commission of the offense.
In the case at bar, upon being pointed to by the informer as the drug courier, the policemen requested the accused to open and show them the contents of his bag and the cartoon he was carrying and he voluntarily opened the same and upon cursory inspection, it was found out that it contains marijuana. Hence the arrest.
The accused insists that it is normal for a person traveling with a bag and cartoon which should not elicit the slightest suspicion that he was committing a crime. In short, there was no probable cause for this policemen to think that he was committing a crime.
The said contention was considered without merit by the Supreme Court considering the fact that he consented to the search as well as the fact that the informer was a reliable one who had supplied similar information to the police in the past which proved positive.
(NOTE: The SC held that the non-presentation of the informer does not affect the case for the prosecution because he is not even the best witness. He is merely a corroborative witness to the arresting officers. )
To say that “reliable tips” from informers constitute probable cause for a warrantless arrest or search IS A DANGEROUS PRECEDENT AND PLACES IN GREAT JEOPARDY THE DOCTRINES LAID DOWN IN MANY DECISIONS MADE BY THIS COURT. (PEOPLE VS. BURGOS, 144 SCRA 1; PEOPLE VS. AMINNUDIN, 163 SCRA 402; PEOPLE VS. ENCINADA, October 2, 1997; PEOPLE VS. MENGOTE, 220 SCRA).
The case is similar to the case of People vs. Encimada where the appellant was searched without a warrant while disembarking from a ship on the strength of a tip from an informer received by the police the previous afternoon that the appellant would be transporting prohibited drugs. The search yielded a plastic package containing marijuana. On Appeal, the SC reversed the decision of conviction and held that Encinada did not manifest any suspicious behavior that would necessarily and reasonably invite the attention of the police.
Warrantless Arrest, search and seizure in “buy-bust operations”.
VELASCO, JR., J.:
This is an appeal from the December 13, 2007 Decision of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00025B entitled People of the Philippines v. SPO3 Sangki Ara y Mirasol, Mike Talib y Mama, Jordan Musa y Bayan, which affirmed the Decision of the Regional Trial Court (RTC), Branch 9 in Davao City, convicting accused-appellants of violation of Republic Act No. (RA) 9165 or the Comprehensive Dangerous Drugs Act of 2002.
Criminal Case No. 51,471-2002 against Ara
That on or about December 20, 2002, in the City of Davao, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, willfully, unlawfully and consciously traded, transported and delivered 26.6563 grams of Methamphetamine Hydrochloride or “shabu,” which is a dangerous drug, with the aggravating circumstance of trading, transporting and delivering said 26.6563 grams of “shabu” within 100 meters from [the] school St. Peter’s College of Toril, Davao City.
CONTRARY TO LAW.
During their arraignment, accused-appellants all gave a “not guilty” plea.
Version of the Prosecution
In the morning of December 20, 2002, a confidential informant (CI) came to the Heinous Crime Investigation Section (HCIS) of the Davao City Police Department and reported that three (3) suspected drug pushers had contacted him for a deal involving six (6) plastic sachets of shabu. He was instructed to go that same morning to St. Peter’s College at Toril, Davao City and look for an orange Nissan Sentra car.
Police Chief Inspector Fulgencio Pavo, Sr. immediately formed a buy-bust team composed of SPO3 Reynaldo Capute, SPO4 Mario Galendez, SPO3 Antonio Balolong, SPO2 Arturo Lascaños, SPO2 Jim Tan, SPO1 Rizalino Aquino, SPO1 Bienvenido Furog, PO2 Vivencio Jumawan, Jr., PO2 Ronald Lao, and PO1 Enrique Ayao, Jr., who would act as poseur-buyer.
The team proceeded to the school where PO1 Ayao and the CI waited by the gate. At around 8:45 a.m., an orange Nissan Sentra bearing plate number UGR 510 stopped in front of them. The two men approached the vehicle and the CI talked briefly with an old man in the front seat. PO1 Ayao was then told to get in the back seat as accused-appellant Mike Talib opened the door. The old man, later identified as accused-appellant SPO3 Ara, asked PO1 Ayao if he had the money and the latter replied in the positive. Ara took out several sachets with crystalline granules from his pocket and handed them to PO1 Ayao, who thereupon gave the pre-arranged signal of opening the car door. The driver of the car, later identified as accused-appellant Jordan Musa, tried to drive away but PO1 Ayao was able to switch off the car engine in time. The back-up team appeared and SPO1 Furog held on to Musa while PO2 Lao restrained Talib. PO1 Ayao then asked Ara to get out of the vehicle.
Recovered from the group were plastic sachets of white crystalline substance: six (6) big sachets, weighing 26.6563 grams, from Ara by PO1 Ayao; five (5) big sachets, weighing 14.2936 grams, from Musa by SPO1 Furog; and a small sachet, weighing 0.3559 gram, from Talib by PO2 Lao.
The three suspects were brought to the HCIS and the seized items indorsed to the Philippine National Police (PNP) Crime Laboratory for examination. Forensic Chemist Austero, who conducted the examination, found that the confiscated sachets all tested positive for shabu.
Version of the Defense
The defense offered the sole testimony of Ara, who said that he had been a member of the PNP for 32 years, with a spotless record. On December 20, 2002, SPO3 Ara was in Cotabato City, at the house of his daughter Marilyn, wife of his co-accused Musa. He was set to go that day to the Ombudsman’s Davao City office for some paperwork in preparation for his retirement on July 8, 2003. He recounted expecting at least PhP 1.6 million in retirement benefits. Early that morning, past three o’clock, he and Musa headed for Davao City on board the latter’s car. As he was feeling weak, Ara slept in the back seat.
Upon reaching Davao City, he was surprised to see another man, Mike Talib, in the front seat of the car when he woke up. Musa explained that Talib had hitched a ride on a bridge they had passed.
When they arrived in Toril, Ara noticed the car to be overheating, so they stopped. Ara did not know that they were near St. Peter’s College since he was not familiar with the area. Talib alighted from the car and Ara transferred to the front seat. While Talib was getting into the back seat, PO1 Ayao came out of nowhere, pointed his .45 caliber pistol at Ara even if he was not doing anything, and ordered him to get off the vehicle. He saw that guns were also pointed at his companions. As the group were being arrested, he told PO1 Ayao that he was also a police officer. Ara insisted that he was not holding anything and that the shabu taken from him was planted. He asserted that the only time he saw shabu was on television.
The Ruling of the Trial Court
The dispositive portion of the RTC Decision reads:
WHEREFORE, premised on the foregoing the Court finds the following:
In Criminal Case No. 51,471-2002, the accused herein SANGKI ARA Y MASOL, Filipino, 55 years old, widower, a resident of Kabuntalan, Cotabato City, is hereby found GUILTY beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec. 5, 1st paragraph of Republic Act 9165. He is hereby imposed the DEATH PENALTY and FINE of TEN MILLION PESOS (PhP 10,000,000) with all the accessory penalties corresponding thereto, including absolute perpetual disqualification from any public office, in view of the provision of section 28 of RA 9165 quoted above.
Since the prosecution proved beyond reasonable doubt that the crime was committed in the area which is only five (5) to six (6) meters away from the school, the provision of section 5 paragraph 3 Article II of RA 9165 was applied in the imposition of the maximum penalty against the herein accused.
In Criminal Case No. 51,472-2002, the accused herein MIKE TALIB y MAMA, Filipino, of legal age, single and a resident of Parang, Cotabato, is found GUILTY beyond reasonable doubt, and is CONVICTED of the crime of violation of Sec. 11, 3rd paragraph, Article II of Republic Act 9165. He is hereby imposed a penalty of Imprisonment of SIXTEEN (16) YEARS and a fine of THREE HUNDRED THOUSAND PESOS (PhP 300,000) with all the accessory penalties corresponding thereto.
In Criminal Case No. 51,473-2002 the accused herein JORDAN MUSA Y BAYAN, Filipino, 30 years old, married and a resident of Cotabato City, is hereby found GUILTY beyond reasonable doubt and is CONVICTED of the crime for Violation of Sec. 11, 1st paragraph, Article II of Republic Act No. 9165. He is hereby sentenced to suffer a penalty of LIFE IMPRISONMENT and FINE of FOUR HUNDRED THOUSAND PESOS (PhP 400,000) with all the accessory penalties corresponding thereto.
As the death penalty was imposed on Ara, the case went on automatic review before this Court. Conformably with People v. Mateo, we, however, ordered the transfer of the case to the CA.
Whether the Court of Appeals erred in holding that the arrest of the accused-appellants was valid based on the affidavits of the complaining witnesses
Warrantless Arrest and Seizure Valid
In calling for their acquittal, accused-appellants decry their arrest without probable cause and the violation of their constitutional rights. They claim that the buy-bust team had more than a month to apply for an arrest warrant yet failed to do so.
Owing to the special circumstances surrounding the drug trade, a buy-bust operation has long been held as a legitimate method of catching offenders. It is a form of entrapment employed as an effective way of apprehending a criminal in the act of commission of an offense. We have ruled that a buy-bust operation can be carried out after a long period of planning. The period of planning for such operation cannot be dictated to the police authorities who are to undertake such operation. It is unavailing then to argue that the operatives had to first secure a warrant of arrest given that the objective of the operation was to apprehend the accused-appellants in flagrante delicto. In fact, one of the situations covered by a lawful warrantless arrest under Section 5(a), Rule 113 of the Rules of Court is when a person has committed, is actually committing, or is attempting to commit an offense in the presence of a peace officer or private person.
It is erroneous as well to argue that there was no probable cause to arrest accused-appellants. Probable cause, in warrantless searches, must only be based on reasonable ground of suspicion or belief that a crime has been committed or is about to be committed. There is no hard and fast rule or fixed formula for determining probable cause, for its determination varies according to the facts of each case. Probable cause was provided by information gathered from the CI and from accused-appellants themselves when they instructed PO1 Ayao to enter their vehicle and begin the transaction. The illegal sale of shabu inside accused-appellants’ vehicle was afterwards clearly established. Thus, as we have previously held, the arresting officers were justified in making the arrests as accused-appellants had just committed a crime when Ara sold shabu to PO1 Ayao. Talib and Musa were also frisked for contraband as it may be logically inferred that they were also part of Ara’s drug activities inside the vehicle. This inference was further strengthened by Musa’s attempt to drive the vehicle away and elude arrest.
Moreover, the trial court correctly denied the Motion to Suppress or Exclude Evidence. We need not reiterate that the evidence was not excluded since the buy-bust operation was shown to be a legitimate form of entrapment. The pieces of evidence thus seized therein were admissible. As the appellate court noted, it was within legal bounds and no anomaly was found in the conduct of the buy-bust operation. There is, therefore, no basis for the assertion that the trial court’s order denying said motion was biased and committed with grave abuse of discretion.
Right against unreasonable searches and seizures; Mission Order does not authorize an illegal search. Waiver of the right against an unreasonable search and seizure.
In search of the allegedly missing amount of P45,000.00 owned by the employer, the residence of a relative of the suspect was forcibly open by the authorities by kicking the kitchen door to gain entry into the house. Thereafter, they confiscated different personal properties therein which were allegedly part of those stolen from the employer. They were in possession of a mission order but later on claimed that the owner of the house gave his consent to the warrantless search. Are the things admissible in evidence? Can they be sued for damages as a result of the said warrantless search and seizure?
The right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. BUT A WAIVER BY IMPLICATION CANNOT BE PRESUMED. There must be clear and convincing evidence of an actual intention to relinquish the right. There must be proof of the following:
that the right exists;
that the person involved had knowledge, either constructive or actual, of the existence of said right;
that the said person had an actual intention to relinquish the right.
Finally, the waiver must be made voluntarily, knowingly and intelligently in order that the said is to be valid.
The search was therefore held illegal and the members of the searching party held liable for damages in accordance with the doctrine laid down in Lim vs. Ponce de Leon and MHP Garments vs. CA.
e. General or roving warrants
Stonehill vs. Diokno,June 19,1967
The petitioners are questioning the validity of a total of 42 search warrants issued on different dates against them and the corporations in which they are officers, directing the peace officer to search the persons above-named and/or the premises of their offices, warehouses and to seize and take possession of the following personal property, to wit:
"Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, typewriters and other documents or papers showing all business transactions including disbursement receipts, balance sheets and profit and loss statements"
since they are the subject of the offense of violating the CENTRAL BANK LAWS, TARIFF AND CUSTOMS LAWS, INTERNAL REVENUE CODE AND THE REVISED PENAL CODE.
The petitioners claim that the search warrants are void being violative of the Constitutional provision on search and seizure on the ground that:
a. The search warrants did not particularly describe the documents, books and things to be seized;
b. cash money not mentioned in the warrant were actually seized;
c. The warrants were issued to fish evidence in the deportation cases against them;
d. the searches and seizures were made in an illegal manner;
e. the things seized were not delivered to the court to be disposed of in a manner provided for by law.
Were the searches and seizures made in the offices and residences of the petitioners valid?
a. As to the searches made on their offices, they could not question the same in their personal capacities because the corporations have a personality separate and distinct with its officers. An objection to an unlawful search and seizure IS PURELY PERSONAL AND CANNOT BE AVAILED OF BY THIRD PARTIES. CONSEQUENTLY, THE PETITIONERS MAY NOT VALIDLY OBJECT TO THE USE IN EVIDENCE AGAINST THEM OF THE DOCUMENTS, PAPERS AND THINGS SEIZED FROM THE OFFICES AND PREMISES OF THE CORPORATIONS, TO WHOM THE SEIZED EFFECTS BELONG, AND MAY NOT BE INVOKED BY THE CORPORATE OFFICERS IN PROCEEDINGS AGAINST THEM IN THEIR INDIVIDUAL CAPACITY.
b. As to the documents seized in the residences of the petitioners, the same may not be used in evidence against them because the warrants issued were in the nature of a general warrant for failure to comply with the constitutional requirement that:
1. that no warrant shall issue but upon probable cause, to be determined by the judge in the manner set forth in said provision; and
2. that the warrant shall particularly describe the things to be seized.
None of these requirements has been complied with in the contested warrants. They were issued upon applications stating that the natural and juridical persons therein named had committed a violation of Central bank Laws, Tariff and Customs Laws, Internal revenue Code and Revised Penal Code. IN OTHER WORDS, NO SPECIFIC OFFENSE HAD BEEN ALLEGED IN SAID APPLICATIONS. THE AVERMENTS THEREOF WITH RESPECT TO THE OFFENSE COMMITTED WERE ABSTRACT. AS A CONSEQUENCE, IT WAS IMPOSSIBLE FOR THE JUDGE WHO ISSUED THE WARRANTS TO HAVE FOUND THE EXISTENCE OF PROBABLE CAUSE, FOR THE SAME PRESUPPOSES THE INTRODUCTION OF COMPETENT PROOF THAT THE PARTY AGAINST WHOM IT IS SOUGHT HAS PERFORMED PARTICULAR ACTS, OR COMMITTED SPECIFIC OMISSIONS, VIOLATING A GIVEN PROVISION OF OUR CRIMINAL LAWS.
2. Bache vs. Ruiz, 37 SCRA 823
3. Secretary vs. Marcos, 76 SCRA 301
4. Castro vs. Pabalan, April 30,l976
5. Asian Surety vs. Herrera, 54 SCRA 312 (A search warrant for estafa, falsification, tax evasion and insurance fraud is a general warrant and therefore not valid)
6. Collector vs. Villaluz, June 18,1976
7. Viduya vs. Verdiago, 73 SCRA 553
8. Dizon vs. Castro, April 12, 1985
9. People vs. Veloso, 48 Phil. 169
TAMBASEN VS. PEOPLE, July 14, 1995; PEOPLE VS. CA, 216 SCRA 101. “A SCATTER-SHOT WARRANT is a search warrant issued for more than one specific offense like one for estafa, robbery, theft and qualified theft”)
f. Define probable cause. Who determines probable cause?
ROBERTS VS. CA, 254 SCRA 307
DE LOS SANTOS VS. MONTESA, 247 SCRA 85
GUTIERREZ, JR. J.
Petitioners are suspects of the slaying of Congressman Moises Espinosa, Sr. and three of his security escorts and the wounding of another. They were initially charged, with three others, with the crime of multiple murder with frustrated murder. After conducting a preliminary investigation, a warrant of arrest was issued on July 31, 1989. Bail was fixed at P200,000.
On September 22, 1989, Fiscal Alfane, designated to review the case, issued a Resolution affirming the finding of a prima facie case against the petitioners but ruled that a case of Murder for each of the killing of the four victims and a physical injuries case for inflicting gunshot wound on the survivor be filled instead against the suspects. Thereafter, four separate informations to that effect were filed with the RTC of Masbate with no bail recommended.
On November 21, 1989, a motion for change of venue, filed by the petitioners was granted by the SC. It ordered that the case may be transferred from the RTC of Masbate to the RTC of Makati.
Petitioners then moved that another hearing ba conducted to determine if there really exists a prima facie case against them in the light of documents showing recantations of some witnesses in the preliminary investigation. They likewise filed a motion to order the transmittal of initial records of the preliminary investigation conducted by the municipal judge of Barsaga of Masbate. These motions were however denied by the court because the prosecution had declared the existence of probable cause, informations were complete in form in substance , and there was no defect on its face. Hence it found it just and proper to rely on the prosecutors certification in each information.
Whether or not a judge may issue a warrant of arrest without bail by simply relying on the prosecutions certification and recommendation that a probable cause exists?
1. The judge committed a grave abuse of discretion.
In the case of Placer vs. Villanueva, the sc ruled that a judge may rely upon the fiscal's certification of the existence of a probable cause and on the basis thereof, issue a warrant of arrest. However, the certification does not bind the judge to come out with the warrant of arrest. This decision interpreted the "search and seizure" provision of the 1973 Constitution. Under this provision, the judge must satisfy himself of the existence of probable cause before issuing a warrant of order of arrest. If on the face of information, the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of the affidavits of witness to aid him at arriving at a conclusion as to the existence of a probable cause. This has been the rule since U.S vs. Ocampo and Amarga vs. Abbas.
2. In the case of Soliven vs. Makasiar, decided under the 1987 Constitution, the Court noted that the addition of the word personally after the word determined and the deletion of the grant of authority by the 1973 Constitution to issue warrants to other respondent officers as to may be authorized by law does not require the judge to personally examine the complainant and his witness in his determination of probable cause for the issuance of a warrant of arrest.What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. Following established doctrine and procedures, he shall:
(1) personally evaluate the reports and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest;
(2) If on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
3. The case of People vs. Honorable Enrique B. Inting reiterates the following doctrines:
(1) The determination of probable cause is a function of the judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the judge alone makes this detemination.
(2) The preliminary inquiry made by the prosecutor does not bind the judge. It merely assist him to make the determination of probable cause. The judge does not have to follow what the prosecutor's present to him. By itself, the prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes, and all other supporting documents behind the prosecutor's certification which are material in assisting the judge to make his determination.
(3) Preliminary inquiry should be distinguished from the preliminary investigation proper. While the former seeks to determine probable cause for the issuance of warrant of arrest, the latter ascertains whether the offender should be held for trial or be released.
4. In the case of Castillo vs. Villaluz, the court ruled that judges of RTC no longer have authority to conduct preliminary investigations: This authority was removed from them by the 1985 Rules on Criminal Procedure, effective on January 1, 1985.
5. In the present case, the respondent judge relies solely on the certification of the prosecutor. Considering that all the records of the investigation are in Masbate, he has not personally determined the existence of probable cause. The determination was made by the provincial prosecutor. The constitutional requirement had not been satisfied.
The records of the preliminary investigation conducted by the Municipal Court of Masbate and reviewed by the respondent Fiscal were still in Masbate when the respondent Fiscal issued the warrant of arrest against the petitioners. There was no basis for the respondent judge to make his personal determination regarding the existence of probable cause from the issuance of warrant of arrest as mandated by the Constitution. He could not have possibly known what has transpired in Masbate as he had nothing but a certification. Although the judge does not have to personally examine the complainant and his witnesses (for the prosecutor can perform the same functions as commissioner for taking of evidence) there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the judge.
1. Amarga vs. Abbas, 98 Phil. 739
1-a. 20th Century Fox vs. CA, 164 SCRA 655
1-b. Quintero vs. NBI, 162 SCRA 467
1-c. The Presidential Anti-Dollar Salting Task Force vs. CA, GR No. 83578, March 16, 1989
The word “personally” after the word determined does not necessarily mean that the judge should examine the complainant and his witnesses personally before issuing the search warrant or warrant of arrest but the exclusive responsibility on the part of said judge to satisfy himself of the existence of probable cause. As such, there is no need to examine the complainant and his witnesses face to face. It is sufficient if the judge is convinced of the existence of probable cause upon reading the affidavits or deposition of the complainant and his witnesses.
1-e. Pendon vs. CA, Nov. 16, 1990
1-f. P. vs. Inting, July 25, 1990
1-g. Umil vs. Ramos, et al., July 9, 1990 with the Resolution of the Motion for Reconsideration in November, 1991
1-h. Paderanga vs. Drilon, April 19, 1991
2. Department of Health vs. Sy Chi Siong, Inc., GR No. 85289, February 20, 1989
2-a. P. vs. Villanueva, 110 SCRA 465
2-b. Placer vs. Villanueva, 126 SCRA 463 (Only a judge has the power to determine probable insofar as the issuance of a warrant of arrest is concerned)
3. Tolentino vs. Villaluz,July 27,1987
4. Cruz vs. Gatan, 74 SCRA 226
5. Olaes vs. P., 155 SCRA 486
Geronimo vs. Ramos, 136 SCRA 435
Due process; right to bail; probable cause for the issuance of a warrant of arrest
(Note: This might be useful also in your Criminal Law)
On February 27, 1990, Senator Juan Ponce Enrile was arrested by law enforcement officers led by NBI Director Alfredo Lim on the strength of a warrant of arrest issued by the respondent judge, HON. JAIME SALAZAR, Regional trial Court, Branch 103, Quezon City in Criminal Case No. 90-10941. The warrant was issued on an information signed and filed earlier in the day by Senior State Prosecutor AURELIO TRAMPE charging Senator Enrile, the spouses Rebecco and Erlinda Panlilio, and Gregorio Honasan with the crime of rebellion with murder and multiple frustrated murder allegedly committed during the period of the failed coup attempt from November 29 to December 10, 1990. Senator Enrile was taken to and held overnight at the NBI Headquarters on Taft Ave., Manila, WITHOUT BAIL, NONE HAVING BEEN RECOMMENDED IN THE INFORMATION AND NONE FIXED IN THE WARRANT OF ARREST.
On February 28, 1990, petitioner through counsel filed a petition for Habeas Corpus alleging that he was deprived of his constitutional rights in being, or having been:
a. held to answer for a criminal offense which does not exist in the statute books;
b. charged with a criminal offense in an information for which no complaint was initially filed or preliminary investigation was conducted, hence, he was denied due process;
c. denied the right to bail; and
d. arrested or detained on the strength of warrant issued without the judge who issued it first having personally determined the existence of probable cause.
The parties' oral and written arguments presented the following options:
1. Abandon the Hernandez Doctrine and adopt the dissenting opinion of Justice Montemayor that "rebellion cannot absorb more serious crimes";
2. Hold Hernandez Doctrine applicable only to offenses committed in furtherance, or as necessary means for the commission, of rebellion, BUT NOT TO ACTS COMMITTED IN THE COURSE OF A REBELLION WHICH ALSO CONSTITUTE COMMON CRIMES OF GRAVE OR LESS GRAVE CHARACTER;
3. Maintain Hernandez Doctrine as applying to make rebellion absorb all other offenses committed in its course, whether or not necessary to its commission or in furtherance thereof.
1. On the first option, 11 justices voted AGAINST abandoning Hernandez. Two members felt that the doctrine should be re-examined. In view of the majority, THE RULING REMAINS GOOD LAW, ITS SUBSTANTIVE AND LEGAL BASES HAVE WITHSTOOD ALL SUBSEQUENT CHALLENGES AND NO NEW ONES ARE PRESENTED HERE PERSUASIVE ENOUGH TO WARRANT A COMPLETE REVERSAL. This is so because of the fact that the incumbent President (exercising legislative powers under the 1986 Freedom Constitution) repealed PD No. 942 which added a new provision of the Revised Penal Code, particularly Art. 142-A which sought to nullify if not repealed the Hernandez Doctrine. In thus acting, the President in effect by legislative fiat reinstated the Hernandez as a binding doctrine with the effect of law. The Court can do no less than accord it the same recognition, absent any sufficiently powerful reason against so doing.
2. On the second option, the Supreme Court was unanimous in voting to reject the same though four justices believe that the arguments in support thereof is not entirely devoid of merit.
3. With the rejection of the first two options, the Hernandez Doctrine remains a binding doctrine operating to prohibit the complexing of rebellion with any other offense committed on the occasion thereof, either as a means necessary to its commission or as unintended effect of an activity that constitutes rebellion.
On the issues raised by the petitioner:
a. By a vote of 11-3, the Court ruled that the information filed against the petitioner does in fact charge an offense despite the objectionable phrasing that would complex rebellion with murder and multiple frustrated murder, that indictment is to be read as charging SIMPLE REBELLION. The petitioner's contention that he was charged with a crime that does not exist in the statute books, WHILE TECHNICALLY CORRECT SO FAR AS THE COURT RULED THAT REBELLION MAY NOT BE COMPLEXED WITH OTHER OFFENSES COMMITTED ON THE OCCASION THEREOF, MUST THEREFORE BE DISMISSED AS A MERE FLIGHT OF RHETORIC. Read in the context of Hernandez, the information does indeed charge the petitioner with a crime defined and punished by the Revised Penal Code: SIMPLE REBELLION.
b. Was the petitioner charged without a complaint having been initially filed and/or preliminary investigation conducted? The record shows that a complaint for simple rebellion against petitioner was filed by the NBI Director and that based on the strength of said complaint a preliminary investigation was conducted by the respondent prosecutors culminating in the filing of the questioned information. THERE IS NOTHING INHERENTLY IRREGULAR OR CONTRARY TO LAW IN FILING AGAINST A RESPONDENT AN INDUCTMENT FOR AN OFFENSE DIFFERENT FROM WHAT IS CHARGED IN THE INITIATORY COMPLAINT, IF WARRANTED BY THE EVIDENCE DEVELOPED DURING THE PRELIMINARY INVESTIGATION.
c. The petitioner claims that the warrant issued is void because it was issued barely one hour and twenty minutes after the case was raffled to the respondent judge which could hardly gave him sufficient time to personally go over the voluminous records of the preliminary investigation. Also, the petitioner claims that the respondent judge issued the warrant for his arrest without first personally determining the existence of probable cause by examining under oath or affirmation the complainant and his witnesses, in violation of Art. III, Section 2, of the Constitution. This Court has already ruled that it is not unavoidable duty of the judge to make such a personal examination, it being sufficient that he follows established procedure by PERSONALLY EVALUATING THE REPORT AND THE SUPPORTING DOCUMENT SUBMITTED BY THE PROSECUTOR. MEREBY BECAUSE SAID RESPONDENT JUDGE HAD WHAT SOME MIGHT CONSIDER ONLY A RELATIVELY BRIEF PERIOD WITHIN WHICH TO COMPLY WITH THAT DUTY , GIVES NO REASON TO ASSUME THAT HE HAD NOT, OR COULD NOT HAVE, SO COMPLIED; NOR DOES THAT SINGLE CIRCUMSTANCE SUFFICE TO OVERCOME THE LEGAL PRESUMPTION THAT OFFICIAL DUTY HAS BEEN REGULARLY PERFORMED.
d. Petitioner also claims that he is denied of his constitutional right to bail. In the light of the Court's affirmation of Hernandez as applicable to petitioner's case, and of the logical and necessary corollary that the information against him should be considered as charging only the crime of simple rebellion which is bailable before conviction, THAT MUST NOW BE ACCEPTED AS A CORRECT PROPOSITION.
This might be useful also in your Remedial Law.
Was a petition for Habeas Corpus before the Supreme Court the appropriate vehicle for asserting a right to bail or vindicating its denial?
The Supreme Court held that the criminal case before the respondent judge is the normal venue for invoking the petitioner's right to have provisional liberty pending trial and judgment. The correct course was for the petitioner to invoke that jurisdiction by filing a petition to be admitted to bail, claiming a right to bail per se or by reason of the weakness of the evidence against him. ONLY AFTER THAT REMEDY WAS DENIED BY THE TRIAL COURT SHOULD THE REVIEW JURISDICTION OF THE SUPREME COURT BE INVOKED, AND EVEN THEN, NOT WITHOUT FIRST APPLYING TO THE COURT OF APPEALS IF APPROPRIATE RELIEF WAS ALSO AVAILABLE THERE.
Even assuming that the petitioner's premise that the information charges a non-existent crime would not excuse or justify his improper choice of remedies. Under either hypothesis, the obvious recourse would have been a motion to quash brought in the criminal action before the respondent judge.
g. Warrantless searches and seizures--when valid
or not. Is "Operation Kapkap" valid?
Warrantless search and
1. On August 8, 1987, the Western Police District received a telephone call from an informer that there were three suspicious-looking persons at the corner of Juan Luna and North Bay Blvd., in Tondo, Manila;
2. When the surveilance team arrived therein, they saw the accused "looking from side to side" and "holding his abdomen". They approched these persons and identified themselves as policement that is why they tried to ran away because of the other lawmen, they were unable to escape;
3. After their arrest, a .38 cal. Smith and Wessor revolver was confiscated from the accused and several days later, an information for violation of PD 1866 was filed against him;
4. After trial, Mengote was convicted of having violated PD 1866 and was sentenced to suffer reclusion perpetua based on the alleged gun as the principal evidence. Hence this automatic appeal.
Was there a valid warrantless search and seizure?
There is no question that evidence obtained as a result of an illegal search or seizure is inadmissible in any proceeding for any purpose. That is the absolute prohibition of Article III, Section 3 , of the Constitution. This is the celebrated exclusionary rule based on the justification given by Justice Learned Hand that "only in case the prosecution, which itself controls the seizing officials, knows that it cannot profit by their wrong will the wrong be repressed."
Section 5, Article 113 of the Rules of Court provides:
Sec. 5. Arrest without warrant; when lawful.- A peace officer or private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
x x x
We have carefully examined the wording of this Rule and cannot see how we we can agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee from a penal institution when he was arrested. We therefore confine ourselves to determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this Section.
Par. (a) requires that the person be arrested (1) after he has committed or while he is actually committing or is at least attempting to commit an offense, (2) in the presence of the arresting officer.
These requirements have not been established in the case at bar. At the time of the arrest in question, the accused-appellant was merely "looking from side to side" and "holding his abdomen," according to the arresting officers themselves. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by Mengote in thie presence.
The Solicitor General submits that the actual existence of an offense was not necessary as long as Mengote's acts created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that accused-appellant had committed it". The question is, What offense? What offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in aplace not exactly forsaken.
These are certainly not sinister acts. And the setting of the arrest made them less so, if at all. It might have been different if Mengote had been apprehended at an unholy hour and in a place where he had no reason to be, like a darkened alley at 3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a crowded street shortly after alighting from a passenger jeep with his companion.He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them innoent, why hiseyes were darting from side to sideand he was holding his abdomen. If they excited suspicion in the minds of the arresting officers, as the prosecution suggests, it has nevertheless not been shown what their suspicion was all about.
x x x
The case before us is different because there was nothing to support the arresting officers' suspicion other than Mengote's darting eyes and his hand on his abdomen. By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was actually being committed, or was at least being attempted in their presence.
This is similar to PEOPLE vs. AMMINUIDIN, 163 SCRA 402 where the Court held that a warrantless arrest of the accused was unconstitutional. This was effected while he was coming down the vessel, to all appearances no less innocent than the other disembarking passengers. He had not committed nor was actually committing or attempting to commit an offense in the presence of the arresting officers. He was not even acting suspiciously. In short, there was no probable cause that, as the prosecution incorrectly suggested, dispensed with the constitutional requirement of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also not been satisfied. Theprosecution has not shown that at the time of Mengote's arrest an offense had in fact been committed and that the arresting officers had personal knowldge of facts indicating that Mengote had committed it. All they had was hearsay information from the telephone caller, and about a crime that had yet to bem committed.
x x x
Before these events, the peace officers had no knowledge even of Mengote's identity, let alone the fact that he was involved in the robbery of Danganan's house.
In the landmark case of People vs. Burgos, 144 SCRA 1, this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personalknowledge of that fact. The offense must also be committed in his presence or within his view. (SAYO vs. CHIEF OF POLICE, 80 Phil. 859).
x x x
In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator..
This doctrine was affirmed in Alih vs. Castro, 151 SCRA 279, thus:
If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed, being committed, or just committed, what was that crime? There is no allegation in the record of such a falsification. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the recent case of People vs. Burgos.
It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part ofthe arresting officer may be justified in the name of security.
x x x
The court feels that if the peace officers had been more mindful of the provisions of the Bill of Rights, the prosecution of the accused-appellant might have succeeded. As it happened, they allowed their over zealousness to get the better of them, resulting in their disregard of the requirements of a valid search and seizure that rendered inadmissible the evidence they had invalidly seized.
This should be a lesson to other peace officers. Their impulsiveness may be the very cause of the acquittal of persons who deserve to be convicted, escaping the clutches of the law, because, ironically enough, it has not been observed by those who are supposed to enforce it.
When illegal arrest is deemed waived.
Warrantless arrest; no personal knowledge of the arresting officer
The policeman arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.
g-1. Warrantless Search and seizure by a private person. (Valid since the constitutional provision is not applicable to him; when it is not valid)
PEOPLE VS. MENDOZA, 301 SCRA 66
Warrantless searches and seizures by private individuals
The petitioner suspects that the respondents who are officers of the Silahis International Hotel Union were using the Union Office located inside the hotel in the sale or use of marijuana, dollar smuggling, and prostitution. They arrived at the said conclusion through surveillance.
In the morning of January 11, 1988, while the respondent union officer was opening the Union Office, security officers of the plaintiff entered the union office despite objections thereto by forcibly opening the same. Once inside the union office they started to make searches which resulted in the confiscation of a plastic bag of marijuana. An information for violation of the dangerous drugs act was filed against the respondent before the RTC of Manila which acquitted them on the ground that the search conducted was illegal since it was warrantless and without consent by the respondents.
After their acquittal, the respondents filed a case for Malicious Prosecution against the petitioner for violation of Art. 32 of the Civil Code. After trial, the Regional Trial Court held that petitioners are liable for damages as a result of an illegal search. The same was affirmed by the Court of Appeals.
Whether the warrantless search conducted by the petitioners (private individual and corporation) on the union office of the private respondents is valid.
The search is not valid and they are civilly liable under Art. 32 of the Civil Code. The fact that the union office is part of the hotel owned by the petitioners does not justify the warrantless search. The alleged reports that the said union office is being used by the union officers for illegal activities does not justify their acts of barging into the said office without the consent of the union officers and without a search warrant. If indeed there was surveillance made, then they should have applied for a search warrant.
The ruling in People vs. Andre Marti is not applicable here because in Marti, a criminal case, the issue was whether an act of a private individual, allegedly in violation of one’s constitutional rights may be invoked against the State. In other words, the issue in Marti is whether the evidence obtained by a private person acting in his private capacity without the participation of the State, is admissible.
Warrantless Search and seizure
by a private person
Andre Marti and his common-law wife, Shirley Reyes went to Manila Packaging and Export Forwarders to send four (4) packages to Zurich, Switzerland. Anita Reyes, owner of the place (no relation to Shirley), received said goods and asked if she could examine and inspect it. Marti refused. However later, following standard operating procedure, Job Reyes, co-owner and husband of Anita opened the boxes for final inspection, before delivering it to the Bureau of Customs and/or Bureau of Posts.
Upon opening, a peculiar odor emanated from the box that was supposed to contain gloves. Upon further perusal, he felt and saw a dried leaves inside the box. Job Reyes then brought samples to the NBI, he told them that the boxes to be shipped were still in his office. In the presence of the NBI agents, Reyes opened the box and discovered that the odor came from the fact that the dried leaves were actually those of the marijuana flowering tops.
Two other boxes,marked as containing books and tabacalera cigars; also revealed bricks or case-like marijuana leaves and dried marijuana leaves respectively.
Marti was later invited by the NBI to shed light on the attempted shipment of the dried leaves. Thereafter an information was filed against the appellant for violating RA 6425 or the Dangerous Drugs Act. The Special Criminal Court of Manila convicted accused Marti of violating sec.21(b) of said RA.
1. Did the search conducted by a private person, violate accused's right against unreasonable searches seizures and invocable against the state?
2. Was the evidence procured from the search admissible?
1. No, constitutional protection on search and seizure is imposable only against the state and not to private persons.
Since Art. III,2 of the 1987 constitution is almost verbatim from the United States constitution, the SC may consider US Fed. SC cases as likewise doctrinal in this jurisdiction. Hence, in US cases, the constitutional provision against unreasomable searches and seizure was intended as a restraint upon the activities of the sovereign authority and NOT intended against private persons. If a search was initiated by a private person the provision does not apply since it only proscribes government action. This view is supported by the deliberations by the 1986 Constitutional Commission.
In short, the protection against unreasonable searches and seizures cannot be extended to acts comitted by private individuals so as to bring it within the ambit of alleged unlawful intrusion.
Case at bar will show that it was Job Reyes` initiative that perpetrated the search. He opened the packages and took the samples to NBI. All the NBI agents did was to observe and look in plain sight. This did not convert it to a search as contemplated by the constitution.
2. Yes, since the search was valid, the evidence from therein is admissible evidence.
Art.III , on the admissibility of evidence in violation of the right against unreasonable searches and seizures, likewise applies only to the government and its agencies and not to private persons.
(U.S. cases cited: Burdeau v. McDowell (256 us 465 , state v. Bryan (457 p 2d 661 , Walker v. state (429 s.w 2d 121 ), Barnes v. us (373 F 2d 517 ), Chadwick v. state (329 sw 2d 135).
VALID WARRANTLESS SEARCH AND SEIZURE:
Search made incidental to a valid arrest
Moreno vs. Ago Chi, 12 Phil. 439
PEOPLE VS. ANG CHUN KIT, 251 SCRA 660
PEOPLE VS. LUA, 256 SCRA 539
PEOPLE VS. Figueroa, 248 SCRA 679
NOLASCO VS. PANO, 139 SCRA 541 (A search incidental to a valid arrest must be done at the place where the accused is arrested. As such, if accused was arrested while inside a jeepney, there is no valid search incidental to a valid arrest if she will be brought to her residence and thereafter search the said place)
ESPANO VS. CA, 288 SCRA 588 (If the accused was arrested in the street during a buy-bust operation, the search of his house nearby is not a valid search incidental to a valid arrest)
Where the gun tucked in a person’s waist is plainly visible to the police, no search warrant is necessary and in the absence of any license for said firearm, he may be arrested at once as he is in effect committing a crime in the presence of the police officers. No warrant is necessary in such a situation, it being one of the recognized exceptions under the Rules.
As a consequence of the accused’s valid warrantless arrest inside the nightclub, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant in accordance with Section 12, Rule 126. This is a valid search incidental to a lawful arrest.
In fact, the subsequent discovery in his car which was parked in a distant place from where the illegal possession of firearm was committed [after he requested that he will bring his car to the Police Station after his warrantless arrest) , of a drug paraphernalia and shabu, CANNOT BE SAID TO HAVE BEEN MADE DURING AN ILLEGAL SEARCH. As such, the items do not fall under the exclusionary rule and the unlicensed firearms, drug paraphernalia and the shabu, can be used as evidence against the accused.
Search of moving vehicles
P. VS. MARIACOS, G.R. No. 188611, June 16, 2010
Carrol vs. US, 267 US 132
PEOPLE VS. LO HO WING, et al.
(G. R. No. 88017) January 21, 1991
MUSTANG LUMBER VS. CA, 257 SCRA 430
PEOPLE VS. CFI, 101 SCRA 86
PEOPLE VS. MALMSTEDT198 SCRA 401
In July 1987, the Special Operations Group of the CIS received a tip from one of its informers about an organized group engaged in importation of illegal drugs and smuggling of contraband items. To infiltrate the crime syndicate, they recruited confidential men and "deep penetration agents" under OPLAN SHARON 887. One such agent was Reynaldo Tia (the dicharged/accused). As an agent, he submitted regular reports of undercover activities of suspected syndicates. CAPTAIN PALMERA, head of oplan sharon 887, in turned informed the Dan
gerous Drugs Board of Tia's activities.
Tia was introduced to his co-accused Lim Cheng Huat by another agent named George. Lim wanted a male travelling companion for his business trips abroad. Tia offered his services and was hired by Lim. Later, Tia was introduced to Peter Lo (alias of accused/appellant Lo Ho Wing), the later turning out to be Tia's intended companion.
Appellant Lo Ho Wing and Tia left for Hongkong on October 4, 1987. Tia telephoned Capt. Palmera that they would return to the Philippines on October 6. From Hongkong, the two proceeded to Guangzhou in mainland China. There, appeallant Lo Ho Wing bought six (6) cans of tea.Tia saw these 6 bags when they were opened for examination. That evening, they went to Lo Ho Wing's room and he saw two other men with him. One was fixing the tea bags, while the other was burning a substance on a piece of aluminum foil using a lighter. Appellant Lo Ho Wing joined the second man and sniffed the smoke emitted by the burning substance. When Tia asked Lo Ho Wing what cargo they would bring to Manila, the latter replied that they would be bringing Chinese drugs.
The next day en route to Manila, customs examiners inspected the bags containing the tin cans of tea. Since the bags were not closely examined, appellant Lo Ho Wing and Tia were cleared. In Manila, They were met by Lim Cheng Huat. Appelant Lo Ho Wing and Tia boarded a taxi from the airport and loaded their luggage in the taxi's compartment. Lim Cheng Huat followed them in another taxi.
Meamwhile, a team composed by Capt. Palmera positioned themselves in strategic areas around the airport. The CIS men who first saw Lo Ho and Tia followed them. Along Imelda Avenue, the CIS car overtook the taxi ridden by Lo Ho Wing and Tia , forcing the taxi driver to stop his vehicle. The CIS team asked the taxi driver to open the baggage compartment. The CIS team asked permission to search their luggage.
A tin can of tea was taken out of the compartment. Sgt. Cayabyab of the CIS pried the lid open and pressed it in the middle to pull out the contents. Crystalline white powder resmbling crushed alum came out. Suspecting the crystalline powder to be a dangerous drug, he had the three travelling bags opened for inspection. All the bags threshed out a total of six tin cans. Tia and appellant were taken to the CIS headquarters for questioning. Meanwhile, the second taxi carrying Lim Cheng Huat sped in attempt to escape. However, they were later captured.
Samples from the bag tested positive for metamphetamine. The three suspects were indicted for violating Art. III, sec.15 of the Dangerous Drug Act. Appellant Lo Ho Wing and Lim Cheng Huat were sentenced to suffer life imprisonment and to pay a fine of P25,000 each. Reynaldo Tia was discharged as a state witness. The trial court gave full credence to the testimonies of government agents since the presumption of regularity in the performance of official duties were in their favor.
1. Was the warrantless search valid?
2. Are the effects taken admissible as evidence?
1. This is a case of search on a moving vehicle which is one of the well-known exceptions to the valid warrantless search and seizure. To stilol get a search warrant from a judge would allow the accused go scot-free.
2. Since the search and seizure are valid, the evidence obtained is admissible as evidence in any proceeding.
Seizure of goods concealed to avoid duties/taxes (Valid)
Papa vs. Mago, 22 SCRA 857
Pacis vs. Pamaran, 56 SCRA 16
HIZON VS. CA, 265 SCRA 517
PEOPLE VS. QUE, 265 SCRA 721
Seize of evidence in plain view
Harris vs. US, 390 US 234
PEOPLE VS. DAMASO, 212 SCRA 547
PEOPLE VS. VELOSO, 252 SCRA 135
PEOPLE VS. LESANGIN, 252 SCRA 213
When there is waiver of right or gives his consent;
De Garcia vs. Locsin, 65 Phil. 689
Lopez vs. Commissioner, 65 SCRA 336
PEOPLE VS. DAMASO, 212 SCRA (In order that there is a valid waiver to a warrantless search, the waiver or consent should be given by the person affected, not just anybody. Example: The landlady could not give a valid consent to the search of a room occupied by a tenant. Said tenant himself should give the consent in order to be valid. The doctrine in Lopez vs. Commissioner to the effect that it could be given by any occupant of a hotel room being rented by the respondent is deemed abandoned)
VEROY VS. LAYAGUE, 210 SCRA 97. (If the owner of the house allowed the policemen/soldiers to enter his house because they are searching for rebel soldiers but once inside the house, they instead seized an unlicensed firearm,)
STOP AND FRISK.
People vs. Mengote, June, 1992
PEOPLE VS. POSADAS, 188 SCRA 288
MANALILI VS. PEOPLE, October 9, 1997. (The policemen saw several suspicious looking men at dawn who ran when they went near them. As the policemen ran after them, an unlicensed firearm was confiscated. The search is valid)
MALACAT VS. CA, 283 SCRA 159. (Mere suspicions not sufficient to validate warrantless arrest)
"zonings" and "saturation drives"
Section 17, Art. VII of the Constitution
Gutierrez, Jr., J.
This is a petition for Prohibition with preliminary injunction to prohibit military and police officers from conducting "Areal target zonings" or "saturation drive" in Metro Manila particularly in places where they suspect that the subversives are hiding. The 41 petitioners claim that the saturation drives conducted by the military is in violation of their human rights because with no specific target house in mind, in the dead of the night or early morning hours, police and military officers without any search warrant cordon an area of more than one residence and sometimes the whole barangay. Most of them are in civilian clothes and w/o nameplates or identification cards; that the raiders rudely rouse residents from their sleep by banging on the walls and windows of their homes, shouting, kicking their doors open (destroying some) and ordering the residents to come out; the residents are herded like cows at the point of high powered guns, ordered to strip down to their briefs and examined for tattoo marks; that while examination of the bodies of the men are being conducted, the other military men conduct search and seizures to each and every house without civilian witnesses from the neighbors; some victims complained that their money and other valuables were lost as a result of these illegal operations.
The respondents claim that they have legal authority to conduct saturation drives under Art. VII, Sec. 17 of the Constitution which provides:
The respondents would want to justify said military operation on the following constitutional provisions:
The President shall be the Commander-in-Chief of all the armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion x x x
x x x x
The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the laws are faithfully executed.
There can be no question that under ordinary circumstances, the police action of the nature described by the petitioners would be illegal and blatantly violative of the Bill of Rights. If the military wants to flush out subversive and criminal elements, the same must be consistent with the constitutional and statutory rights of the people. However, nowhere in the Constitution can we see a provision which prohibits the Chief Executive from ordering the military to stop unabated criminality, rising lawlessness and alarming communist activities. However, all police actions are governed by the limitations of the Bill of Rights. The government cannot adopt the same reprehensible methods of authoritarian systems both of the right and of the left. This is so because Art. III, Section 3 of the Constitution is very clear as explained in Roan vs. Gonzales, 145 SCRA 687 and Century Fox vs. Court of Appeals, 164 SCRA 655. Also, it must be pointed out that police actions should not be characterized by methods that offend one's sense of justice (Rochin vs. California, 342 US 165).
The Court believes it highly probable that some violations were actually committed. But the remedy is not to stop all police actions, including the essential and legitimate ones. A show of force is sometimes necessary as long as the rights of people are protected and not violated. However, the remedy of the petitioners is not an original action for prohibition since not one victim complains and not one violator is properly charged. It is basically for the executive department and the trial courts. The problem is appropriate for the Commission of Human Rights.
The petition was therefore remanded to the Regional Trial Courts of Manila, Malabon and Pasay City where the petitioners may present evidence supporting their allegations so that the erring parties may be pinpointed and prosecuted. In the meantime, the acts violative of human rights alleged by the petitioners as committed during the police actions are ENJOINED until such time as permanent rules to govern such actions are promulgated.
Cruz, Padilla and Sarmiento, JJ. , Dissenting
The ruling of the majority that the petitioners are not proper parties is a specious pretext for inaction. We have held that technical objections may be brushed aside where there are constitutional questions that must be met (RODRIGUEZ VS. GELLA, 92 PHIL. 603; TOLENTINO VS. COMELEC, 41 SCRA 702; PHILCONSA VS. JIMENEZ, 65 SCRA 479; EDU VS. ERICTA, 35 SCRA 481; GONZALES VS. COMELEC, 27 SCRA 835; LAGUNZAD VS. CA, 154 SCRA 199; DEMETRIA VS. ALBA,148 SCRA 208). Lozada was in fact an aberration.
Where liberty is involved, every person is a proper party even if he may not be directly injured. Each of us has a duty to protect liberty and that alone makes him a proper party. It is not only the owner of a burning house who has the right to call the firemen.
Section 2, Art. III of the constitution is very clear: Unreasonable searches and seizures of whatever nature and for whatever purpose is prohibited.
Saturation drives are NOT AMONG THE ACCEPTED INSTANCES WHEN A SEARCH OR AN ARREST MAY BE MADE WITHOUT A WARRANT. THEY COME UNDER THE CONCEPT OF THE FISHING EXPEDITIONS STIGMATIZED BY LAW AND DOCTRINE X X X I submit that this court should instead categorically and emphatically that these saturation drives are violative of human rights and individual liberty and should be stopped immediately. While they may be allowed in the actual theater of military operations against the insurgents, the Court should also make it clear that Metro Manila is not such a battleground.
7. IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA. MANOLITA UMIL and NICANOR DURAL, FELICITAS SESE VS. FIDEL RAMOS, ET AL. and companion cases, G.R. No. 81567, July 9, 1990 (An NPA may be arrested without warrant while sleeping or being treated in a hospital because his being a communist rebel is a continuing crime)
h. If the judge finds that there's probable cause, must he issue a warrant of arrest as a matter of course? See the distinctions.
SAmulde vs. Salvani, September 26, 1988 (No because a warrant is issued in order to have jurisdiction of the court over the person of an accused and to assure the court of his presence whenever his case is called in court. As such, if the court believes that the presence of the accused could be had even without a warrant of arrest, then he may not issue said warrant. Note: This case involves a minor offense)
GOZO VS. TAC-AN, 300 SCRA 265. If the offense committed is a serious one like that obtaining in this case for murder, the Judge must issue a warrant of arrest after determining the existence of probable cause)
i. Searching questions
DR. NEMESIO PRUDENTE VS. THE HON. EXECUTIVE JUDGE ABELARDO M. DAYRIT, RTC 33, Manila & People of the Philippines, GR No. 82870, December 14, 1989 (En Banc)
Search and seizure; requirements/requisites of a valid search warrant; searching questions
This is a petition to annul and set aside the Order of respondent Judge DENYING the motion of the petitioner to quash Search Warrant No. 87-14 as well as its Order denying the petitioner's Motion for Reconsideration.
1. On October 31, 1987, P/Major Alladin Dimagmaliw, Chief of the Intelligence Special Action Division (ISAD) of the Western Police District (WPD) filed with the Regional Trial Court of Manila, Branch 33, presided by the respondent Judge, an application for the issuance of a Search Warrant for violation of PD 1866 against the petitioner;
2. In his application for search warrant, P/Major Dimagmaliw alleged that:
"1. That he has been informed and has good and sufficient reasons to believe that NEMESIO PRUDENTE who may be found at the Polytechnic University of the Philippines x x x has in his control or possession firearms, explosives, hand grenades and ammunition intended to be used as the means of committing an offense x x x;
"2. That the undersigned has verified the report and found it to be a fact x x x ".
In support of said application, P/Lt. Florencio Angeles executed a "Deposition of Witness dated October 31, 1987 .
3. On November 1, 1987, a Sunday and All Saints Day, the search warrant was enforced by some 200 WPD operatives led by Col. Edgar Dula Torre and Major Maganto;
4. On November 2, 1987, Ricardo Abando, a member of the searching team executed an affidavit alleging that he found in the drawer of a cabinet inside the wash room of Dr. Prudente's office a bulging brown envelope with three live fragmentation hand grenades separately with old newspapers;
5. On November 6, 1987, the petitioner moved to quash the search warrant on the grounds that:
a. the complainant's lone witness, Lt. Angeles had no personal knowledge of the facts which formed the basis for the issuance of the search warrant;
b. the examination of said witness was not in the form of searching questions and answers;
c. the search warrant was a general warrant, for the reason that it did not particularly describe the place to be searched and that it failed to charge one specific offense; and
d. the warrant was issued in violation of Circular No. 19 of the Supreme Court in that the complainant failed to allege that the issuance of the search warrant on a Saturday was urgent.
6. On March 9, 1986, the respondent judge denied the motion to quash and on April 20, 1988, the same judge denied petitioner's motion for reconsideration. Hence this petition.
Was the Search Warrant issued by the respondent judge valid? Was there probable cause?
a. For a valid search warrant to issue, there must be probable cause, which is to be determined by the judge, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The probable cause must be in connection with one specific offense and the judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce, on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted.
The "probable cause" for a valid search warrant, has been defined "as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched". (Quintero vs. NBI, June 23, 1988). This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. (P. VS. SY JUCO, 64 PHIL. 667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS. ADDISON, 28 PHIL. 566).
In his affidavit, Major Dimagmaliw declared that "he has been informed" that Nemesio Prudente "has in his control and possession" the firearms and explosivees described therein, and that he "has verified the report and found it to be a fact." On the other hand, Lt. Angeles declared that as a result of continuous surveillance for several days, they "gathered information’s from verified sources" that the holders of said firearms and explosives are not licensed t possess them. It is clear from the foregoing that the applicant and his witness HAD NO PERSONAL KNOWLEDGE OF THE FACTS AND CIRCUMSTANCES which became the basis for issuing the questioned search warrant, but acquired knowledge thereof only through information from other sources or persons.
Despite the fact that Major Dimagmaliw stated in his affidavit that "he verified the information he had earlier received and found it to be a fact, YET THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE HOW AND WHEN SAID APPLICANT VERIFIED THE EARLIER INFORMATION ACQUIRED BY HIM AS TO JUSTIFY HIS CONCLUSION. He might have clarified this point if there had been searching questions and answers, but there were none. In fact, the records yield no questions and answers, whether searching or not, vis-a-vis the said applicant.
In ALVAREZ VS. CFI, 64 PHIL. 33, it was held that the following test must be complied with in an application for search warrant or in a supporting deposition based on personal knowledge or not-
"The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it was drawn in a manner that perjury could be charged thereon and the affiant be held liable for damage caused. The oath required must refer to the truth of the facts within the personal knowledge of the applicant of a search warrant and/or his witnesses, not of the facts merely reported by a person whom one considers to be reliable."
Tested by the above standards, the allegation of the witness, Lt. Angeles, do not come up to the level of facts based on his personal knowledge so much so that he cannot be held liable for perjury for such allegations in causing the issuance of the questioned search warrant.
Besides, respondent judge did not take the deposition of the applicant as required by the Rules of Court. As held in Roan vs. Gonzales, 145 SCRA 694, "mere affidavits of the complainant and his witnesses are thus insufficient. The examining judge has to take the depositions in writing of the complainant and the witnesses he may produce and attach them to the record."
b. There was also no searching questions asked by the respondent judge because as shown by the record, his questions were too brief and short and did not examine the complainant and his witnesses in the form of searching questions and answers. On the contrary, the questions asked were leading as they called for a simple "yes" or "no" answer. As held in Quintero vs. NBI, June 23, 1988, "the questions propounded are not sufficiently searching to establish probable cause. Asking of leading questions to the deponent in an application for search warrant and conducting of examination in a general manner would not satisfy the requirements for the issuance of a valid search warrant."
The Court avails of this decision to reiterate the strict requirements for determination of probable cause in the valid issuance of a search warrant as enunciated in earlier cases. True, this requirements are stringent but the purpose is to assure that the constitutional right of the individual against unreasonable search and seizure shall remain both meaningful and effective.
c. The rule is, that a description of a place to be searched is sufficient if the officer with the warrant can with reasonable effort ascertain and identify the place intended (P VS. VELOSO, 48 PHIL. 180). In the case at bar, the warrant described the place to be searched as the premises of the PUP, more particularly the offices of the Department of Science and Tactics as well as the Office of the President, Nemesio Prudente.
There is also no violation of the "one specific offense" requirement considering that the application for a search warrant explicitly described the offense: illegal possession of firearms and ammunitions under PD 1866.
d. CIRCULAR NO. 19 OF THE SUPREME COURT merely provides for a guideline, departure from which would not necessarily affect the validity of the search warrant provided the constitutional requirements are complied with.
HUBERT WEBB VS. DE LEON, 247 SCRA 650
1. Alvarez vs. CFI, 64 Phil. 33 (When the applicant is basing his knowledge from an informant, the same is not valid)
2. Luna vs. Plaza, 26 SCRA 313
3. De Mulata vs. Irizari, 62 SCRA 210
4. Marinas vs. Siochi, 104 SCRA 423
5. Roan vs. Gonzales, 145 687
6. Mata vs. Bayona, 128 SCRA 388 (Depositions of the applicants and witnesses should be attached to the record of the case)
7. Corro vs. Lising, 137 SCRA 541
8. Nolasco vs Pano, 147 SCRA 509
9. Burgos vs. Chief of Staff, 133 SCRA 800
10. P. vs. Burgos, September 14,1986
11. P. vs. Aminnudin Y Ahni, July 6,1988
12. Ponsica vs. Ignalaga, July 31,1987 (When the statements in the affidavits of witnesses are mere generalities, mere conclusions of law, and not positive statements of particular acts, the warrant is not valid)
13. Aberca vs. Ver, April 15,1988
Panganiban vs. Cesar, 159 SCRA 599
PENDON VS. CA, November 16, 1990. (When the questions asked to the applicant for a search warrant was pre-typed, the same is not valid since there could have been no searching questions)
j. Warrantless searches and seizures--when valid
Warrantless searches and seizures;
validity of checkpoints
1. On January 20, 1987, the National Capital Region District Command (NCRDC) was activated with the mission of conducting security operations within its area of responsibility for the purpose of maintaining peace and order. As part of its duty to maintain peace and order, the NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners claim that because of these checkpoints, the residents of Valenzuela, MM are worried of being harassed and of their safety being placed at the arbitrary, capricious and whimsical disposition of the military authorities manning the checkpoints considering that their cars and vehicles are being subjected to regular searches and check-ups, especially at night or dawn, without the benefit of a search warrant and/or court order.
2. On July 9, 1988 at dawn, the apprehensions of the residents of Valenzuela increased because Benjamin Parpon, the supply officer of the Municipality of Valenzuela was gunned down in cold blood by the military men manning the checkpoints for ignoring or refusing to submit himself to the checkpoint and for continuing to speed off inspite of several warning shots fired in the air.
Whether or not the existence of said checkpoints as well as the periodic searches and seizures made by the military authorities without search warrant valid?
Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are not sufficient grounds to declare the checkpoints as per se illegal.
Not all searches and seizures are prohibited. Those which are reasonable are not forbidden. A reasonable search is not to be determined by any fixed formula but is to be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the curtain of a vacant vehicle which is parked on a public fair grounds (People vs. Case, 190 MW 289), or simply looks into a vehicle (State vs. Gaina, 97 SE 62), or flashes a light therein (Rowland vs. Commonwealth, 259 SW 33), these do not constitute unreasonable search.
The setting up of checkpoints in Valenzuela, Metro Manila may be considered as security measure to effectively maintain peace and order and to thwart plots to destabilize the government. In this connection, the Court may take judicial notice of the shift to urban centers and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police and military men by NPA's "sparrow units," not to mention the abundance of unlicensed firearms.
BETWEEN THE INHERENT RIGHT OF THE STATE TO PROTECT ITS EXISTENCE AND PROMOTE PUBLIC WELFARE AND AN INDIVIDUAL'S RIGHT AGAINST A WARRANTLESS SEARCH WHICH IS HOWEVER REASONABLY CONDUCTED, THE FORMER SHALL PREVAIL.
True, the manning of these checkpoints by the military is susceptible of abuse by the men in uniform, in the same manner that all governmental power is susceptible to abuse. BUT , AT THE COST OF OCCASIONAL INCONVENIENCE, DISCOMFORT AND EVEN IRRITATION TO THE CITIZEN, THE CHECKPOINTS DURING THESE ABNORMAL TIMES ARE PART OF THE PRICE WE PAY FOR AN ORDERLY SOCIETY AND PEACEFUL COMMUNITY.
Finally, it must be emphasized that on July 17, 1988, the military checkpoints in Metro Manila were temporarily lifted and a review and refinement of the rules in the conduct of the police and military manning the checkpoints upon order of the NCRDC Chief.
Cruz and Sarmiento, JJ., dissenting:
The bland declaration by the majority that individual rights must yield to the demands of national security ignores the fact that the Bill of Rights was intended precisely to limit the authority of the State even if asserted on the ground of national security.
The Supreme Court in its Resolution of the Motion for Reconsideration dated 15 June, 1990, held that military and police checkpoints are not illegal as these measures to protect the government and safeguards the lives of the people. The checkpoints are legal as where the survival of the organized government is on the balance, or where the lives and safety of the people are in grave peril. However, the Supreme Court held further that the military officers manning the checkpoints may conduct VISUAL SEARCH ONLY, NOT BODILY SEARCH.
1-a. Rizal Alih vs. Gen. Castro, June 23,1987
1-b. P s. Cendana, October 17, 1990
1-c. P. vs. Castiller, August 6, 1990
1-d. P. vs. Olaes, July 30, 1990
2. Papa vs. Mago, 22 SCRA 857
3. Roldan vs. Arca, 65 SCRA 336
4. P. vs. CFI, 101 SCRA 86
5. Pacis vs. Pamaran, 56 SCRA 16
6. Lopez vs. Commisioner, 65 SCRA 336
7. P vs. Cruz, 165 SCRA 135
8. Nolasco vs. Pano, 147 SCRA 509 & 139 SCRA 152
9. P vs. Claudio, 160 SCRA 646 (There is a valid warrantless search when a NARCOM (now PDEA) officer arrests the person who owns a bag which contains marijuana which he found out when he smelled the same. Here , there is a probable cause since he has personal knowledge due to his expertise on drugs)
PEOPLE VS. DEL ROSARIO, July 10, 1994. (After the informant was given by the police the amount of P100.00, he went to buy marijuana from the accused then returned to the police headquarters with said article. Thereafter, the policemen went to arrest the accused without warrant. The arrest is not valid since it does not fall under Section 5 Rule 113)
Likewise, after securing a search warrant authorizing the seizure of shabu and its paraphernalia and an unlicensed firearm was seized instead, said gun is inadmissible in evidence.
k. May a non-judicial officer issue a warrant of arrest? (NO)
Harvey vs. Miriam Defensor-Santiago, June 26,1988
Moreno vs. Vivo, 20 SCRA 562
Lim vs. Ponce de Leon, 66 SCRA 299
HORTENCIA SALAZAR VS. HON TOMAS ACHACOSO, G.R. NO. 81510, March 14, 1990 (En banc)
Presidential Anti_Dollar Salting Task Force vs. CA, March 16, 1989
l. Properties subject to seizure
1. Sec. 2, Rule 126,1985 Rules on Crimial Procedure, as amended
2. ESPANO VS. CA, 288 SCRA 558
m. Warrantless searches and arrests
1. P. vs. Bati, August 27, 1990
1-a. Manuel et al., vs. Judge Tirso Velasco, GR No. 84666, February 9, 1989
1-b. Garcia-Padilla vs. Enrile,121 SCRA 47 & 137 SCRA 647
1-c. P. vs. Maspil, Jr., August 20, 1990 (Compare with P. vs. Aminnudin, July 6, 1988, supra)
1-d. Posadas vs. CA, Aug. 2, 1990
1-e. P. vs. De la Cruz
1-f. P. vs. ortiz, Dec. 3, 1990
1-g. Rolito Go vs. CA, Feb. 11, 1992
1-h. People vs. Mati, January 18, 1991
2. Morales vs. Ponce Enrile, 121 SCRA 538
2-a. P vs. Burgos, 144 SCRA 1
2-b. People vs. de la Cruz, 184 SCRA 416
2-c. Gatchalian vs. Board, May 31, 1991
2-d. People vs. Sucro, March 18, 1991
2-e. PEOPLE VS. SOLAYAO, 262 SCRA 255
2-f. PEOPLE VS. CUISON, 256 SCRA 325
2-g. PEOPLE VS. DAMASO, 212 SCRA 547
2-h. OPOSADAS VS. CA, 258 SCRA 188
2-i. PEOPLE VS. JUATAN, 260 SCRA 532 (Buy-bust operation)
3. Sec. 6, Rule 113, 1985 Rules on Criminal Procedure, as amended
n. Effect posting bail or entering a plea during the arraignment, if the arrest was illegal. (The alleged illegality of the arrest is deemed waived upon posting of the bond by the accused)
The policeman arrested the accused-appellant on the basis solely of what Reynaldo Castro had told him and not because he saw the accused-appellant commit the crime charged against him. Indeed, the prosecution admitted that there was no warrant of arrest issued against accused-appellant when the latter was taken into custody. Considering that the accused-appellant was not committing a crime at the time he was arrested nor did the arresting officer have any personal knowledge of facts indicating that accused-appellant committed a crime, his arrest without a warrant cannot be justified.
However, by entering a plea of not guilty during the arraignment, the accused-appellant waived his right to raise the issue of illegality of his arrest. IT IS NOW SETTLED THAT OBJECTION TO A WARRANT OF ARREST OR THE PROCEDURE BY WHICH A COURT ACQUIRES JURISDICTION OVER THE PERSON OF AN ACCUSED MUST BE MADE BEFORE HE ENTERS HIS PLEA, OTHERWISE, THE OBJECTION IS DEEMED WAIVED. THE FACT THAT THE ARREST WAS ILLEGAL DOES NOT RENDER THE SUBSEQUENT PROCEEDINGS VOID AND DEPRIVE THE STATE OF ITS RIGHT TO CONVICT THE GUILTY WHEN ALL THE FACTS POINT TO THE CULPABILITY OF THE ACCUSED.
Callanta vs. Villanueva, 77 SCRA 377
PEOPLE VS. NAZARENO, 260 SCRA 256
FILOTEO VS. SANDIGANBAYAN, 263 SCRA 222
PEOPLE VS. NAZARENO, 260 SCRA 256
PEOPLE VS. LAPURA, 255 SCRA 85
PEOPLE VS. SILAN, 254 SCRA 491
o . Penalty for illegal arrest
Palon vs. NAPOLCOM, May 28, 1989
p. Judicial pronouncements on illegally seized evidence, 106 SCRA 336
q. The exclusionary rule,155 SCRA 494
n. What is the status of a document obtained through subpoena?
Dianalan vs. Pros., Office of the Tanodbayan, Nov. 27, 1990
r. Search warrant for pirated video tapes
Century Fox vs. CA, 164 SCRA 655 (The master copy of the allegedly pirated tape should be presented before the judge in order to convince him of the existence of probable cause)
COLUMBIA PICTURES VS. CA, 261 SCRA 144
The following are the requisites of a valid search warrant:
The warrant must be issued upon probable cause;
The probable cause must be determined by the judge himself and not by applicant or any other person;
In determining probable cause, the judge must examine under oath and affirmation the complainant and such witnesses as the latter may produce; and
The warrant issued must particularly describe the place to be searched and the person or things to be seized.
A description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Search warrants are not issued on loose, vague or doubtful basis of fact, nor on mere suspicion or belief. In this case, most of the items listed in the warrants fail to meet the test of particularity, especially since the witness had furnished the judge photocopies of the documents sought to be seized. THE SEARCH WARRANT IS SEPARABLE, AND THOSE ITEMS NOT PARTICULARLY DESCRIBED MAY BE CUT OFF WITHOUT DESTROYING THE WHOLE WARRANT.
The protection against unreasonable search and seizure covers both innocent and guilty alike against any form of highhandedness of law enforces.
The “plain view” doctrine, which may justify a search without warrant, APPLIES ONLY WHERE THE POLICE OFFICER IS NOT SEARCHING FOR EVIDENCE AGAINST THE ACCUSED, BUT INADVERTENTLY COMES ACROSS AN INCRIMINATING OBJECT.
Just because the marijuana plants were found in an unfenced lot does nor prevent the appellant from invoking the protection afforded by the Constitution. The right against unreasonable search and seizure is the immunity of one’s person, which includes his residence, papers and other possessions. For a person to be immune against unreasonable searches and seizures, he need not be in his home or office, within a fenced yard or private place.
In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental that to constitute waiver, IT MUST APPEAR THAT THE RIGHT EXISTS; THE PERSONS INVOLVED HAD KNOWLEDGE, EITHER ACTUAL OR CONSTRUCTIVE, of the existence of such right. The third condition did not exist in the instant case. Neither was the search incidental to a valid warrantless arrest. (PEOPLE VS. FIFUEROA, July 6, 2000) An alleged consent to a warrantless search and seizure cannot be based merely on the presumption of regularity in the performance of official duty. THE PRESUMPTION BY ITSELF, CANNOT PREVAIL AGAINST THE CONSTITUTIONALLY PROTECTED RIGHTS OF AN INDIVIDUAL, AND ZEAL IN THE PURSUIT OF CRIMINALS CANNOT ENNOBLE THE USE OF ARBITRARY METHODS THAT THE CONSTITUTION ITSELF ABHORS.
Section 3. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)
Please observe the procedure in obtaining the “The Warrant [or Order] of Surveillance”, not found in the 1987 Philippine Constitution.
SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS OF SUSPECTS OR CHARGED OF TERRORISM
Section 7. Surveillance of suspects and interception and recording of communications. The provisions of RA 4200 (Anti-Wiretapping Law) to the contrary notwithstanding, a police or law enforcement official and the members of his team may, upon a written order of the Court of Appeals, listen to, intercept and record, with the use of any mode, form or kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any other suitable ways or means for that purpose, any communication, message, conversation, discussion, or spoken or written words between members of a judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.
Section 8. Formal Application for Judicial Authorization.- The written order of the authorizing division of the Court of Appeals to track down, tap, listen, intercept, and record communications, messages, conversations, discussions, or spoken or written words of any person suspected of the crime of terrorism or the crime of conspiracy to commit terrorism, shall only be granted by the authorizing division of the Court of Appeals UPON AN EX-PARTE written application of a police or law enforcement official who has been duly authorized in writing by the Anti-Terrorism Council created in Section 53 of this Act to file such ex-parte application, and upon examination under oath and affirmation of the applicant and the witnesses who may produce to establish:
That there is probable cause to believe based on personal knowledge of facts and circumstances that the said crime of terrorism or conspiracy to commit terrorism has been committed, or is being committed, or is about to be committed;
That there is probable cause to believe based on personal knowledge of facts and circumstances that evidence which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of any such crimes, will be obtained; and
That there is no other effective means readily available for acquiring such evidence.
Sec. 9. Classification and Contents of the Order of the Court. The written order granted by the authorizing division of the Court of Appeals as well as its order, if any, to extend or renew the same, the original application of the applicant, including his application to extend or renew, if any, and the written authorizations of the Anti-Terrorism Council shall be deemed and are hereby declared as classified information: Provided, That the person being surveilled or whose communications, letters, papers, messages, conversations, discussions, spoken or written words and effects have been monitored, listened to, bugged or recorded by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorities in the premises or to challenge, if he or she intends to do so, the legality of the interference before the Court of Appeals which issued said written order. The written order of the authorizing division of the court of Appeals shall specify the following:
The identity, such as name and address, if known, of the charged of suspected persons whose communications, messages, conversations, discussions, or spoken or written words are to be tracked down, tapped, listened to, intercepted or recorded and, in case of radio, electronic, or telephone (whether wireless or otherwise) communications, messages, conversations, discussions, or spoken or written words, the electronic transmission systems or the telephone numbers to be tracked down, tapped, listened to, intercepted, and recorded and their locations if the person suspected of the crime of terrorism or conspiracy to commit terrorism is not fully known, such person shall be subject to continuous surveillance provided there is reasonable ground to do so;
The identity (name and address, and the police or law enforcement organization) of the members of his team judicially authorized to track down, tap, listen to, intercept, and record the communications, messages, conversations, discussions, or spoken or written words;
The offense or offenses committed, or being committed, or sought to be prevented; and
The length of time which the authorization shall be used or carried out.
Section. 10. Effective Period of Judicial Authorization. Any authorization granted by the authorizing division of the court of Appeals…shall only be effective for the length of time specified in the written order of the authorizing division of the Court of Appeals, which shall not exceed 30 days from the date of receipt of the written order of the authorizing division of the court of Appeals by the applicant police or law enforcement official.
The CA may extend or renew the said authorization for another non-extendible period, which shall not exceed 30 days from the expiration of the original period…The ex-parte application for renewal has been duly authorized by the Anti-terrorism Council in writing.
If no case is filed within the 30-day period, the applicant police or law enforcement official shall immediately notify the person subject of the surveillance, interception, and recording of the termination of the said surveillance, interception and recording. [Penalty to be imposed on the police official who fails to inform the person subject of surveillance of the termination of the surveillance, monitoring, interception and recording shall be penalized to 10 years and 1 day to 12 years.
Section 15. Evidentiary Value of Deposited Materials. Any listened to, intercepted, and recorded communications, messages, conversations…WHICH HAVE BEEN SECURED IN VIOLATION OF THE PERTINENT PROVISIONS OF THIS ACT, SHALL ABSOLUTELY NOT BE ADMISSIBLE AND USABLE AS EVIDENCE AGAINST ANYBODY IN ANY JUDICIAL, QUASI-JUDICIAL, LEGISLATIVE, OR ADMINISTRATIVE INVESTIGATION, INQUIRY, PROCEEDING, OR HEARING.
JUDICIAL AUTHORIZATION TO EXAMINE BANK DEPOSITS, ACCOUNTS, AND RECORDS OF SUSPECTED OR CHARGED TERRORISTS
Section 27. judicial authorization required to examine bank deposits, accounts and records.
The justices of CA designated as special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that:
A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of persons, may authorize in writing any police or law enforcement officer and the members of his team duly authorized in writing by the anti-terrorism council to:
examine or cause the examination of, the deposits, placements, trust accounts, assets, and records in a bank or financial institution; and
gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution. The bank or financial institution shall not refuse to allow such examination or to provide the desired information, when so ordered by and served with the written order of the Court of Appeals.
Sec. 28. Application to examine deposits, accounts and records.
The written order of the CA authorizing the examination of bank deposits, placements, trust accounts, assets and records:
A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of persons, in a bank or financial institution-
-SHALL ONLY BE GRANTED BY THE AUTHORIZING DIVISION OF THE CA UPON AN EX-PARTE APPLICATION TO THAT EFFECT OF A POLICE OR LAW ENFORCEMENT OFFICIAL who has been duly authorized by the Anti-Terrorism Council to file such ex-parte application and upon examination under oath or affirmation of the applicant and his witnesses he may produce to establish the facts that will justify the need and urgency of examining and freezing the bank deposits, placements, trust accounts, assets and records:
Of A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of persons.
Section 35. Evidentiary value of deposited bank materials.- Any information, data, excerpts, summaries, notes, memoranda, work sheets, reports or documents acquired from the examination of the bank deposits, placements, trust accounts, assets and records of:
A person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism;
Of a judicially declared and outlawed terrorist organization or group of persons;
Of a member of such judicially declared and outlawed organization, association or group of persons,
-which have been secured in violation of the provisions of this Act, shall absolutely not be admissible and usable as evidence against anybody in any judicial, quasi-judicial, legislative or administrative investigation, inquiry, proceeding or hearing.
1. PEOPLE VS. CABALQUINTO, September 19, 2006, 502 SCRA 419
The wife forcibly opened the drawers at the clinic of her doctor-husband and took diaries, checks and greeting cards of his alleged paramours. Thereafter, she used the same in their legal separation case. Said documents are inadmissible in evidence. This is so because the intimacies of husband and wife does not justify the breaking of cabinets to determine marital infidelity.
On December 12, 1996, then President FIDEL V. RAMOS issued Administrative Order No. 308 entitled “ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM”.
The AO seeks to have all Filipino citizens and foreign residents to have a Population Reference Number (PRN) generated by the National Statistics Office (NSO) through the use of BIOMETRICS TECHNOLOGY .
The AO was questioned by Senator Ople on the following grounds:
The establishment of the PRN without any law is an unconstitutional usurpation of the legislative powers of the Congress of the Philippines;
The appropriation of public funds for the implementation of the said AO is unconstitutional since Congress has the exclusive authority to appropriate funds for such expenditure; and
The AO violates the citizen’s right to privacy protected by the Bill of Rights of the Constitution.
The AO establishes a system of identification that is all-encompassing in scope, affects the life and liberty of every Filipino citizens and foreign residents and therefore, it is supposed to be a law passed by Congress that implements it, not by an Administrative Order issued by the President. Administrative Power, which is supposed to be exercised by the President, is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs. It enables the President to fix a uniform standard of administrative efficiency and check the official conduct of his agents. Prescinding from the foregoing precepts, AO 308 involves a subject that is not appropriate to be covered by an Administrative Order. An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative operation of the government. It must be in harmony with the law and should be for the sole purpose of implementing the law and carrying out the legislative policy. The subject of AO 308 therefore is beyond the power of the President to issue and it is a usurpation of legislative power.
The AO likewise violates the right to privacy since its main purpose is to provide a “common reference number to establish a linkage among concerned agencies through the use of BIOMETRICS TECHNOLOGY. Biometry is the science of the application of statistical methods to biological facts; a mathematical analysis of a biological data. It is the confirmation of an individual’s identity through a fingerprint, retinal scan, hand geometry or facial features. Through the PRN, the government offices has the chance of building a huge and formidable information base through the electronic linkage of the files of every citizen. The data, however, may be gathered for gainful and useful government purposes; but the existence of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great for some of our authorities to resist.
Further, the AO does not even tells us in clear and unequivocal terms how these informations gathered shall be handled. It does not provide who shall control and access the data and under what circumstances and for what purpose. These factors are essential to safeguard the privacy and guaranty the integrity of the information. The computer linkage gives other government agencies access to the information. YET, THERE ARE NO CONTROLS TO GUARD AGAINST LEAKAGE OF INFORMATIONS. WHEN THE ACCESS CODE OF THE CONTROL PROGRAMS OF THE PARTICULAR COMPUTER SYSTEM IS BROKEN, AN INTRUDER, WITHOUT FEAR OF SANCTION OR PENALTY, CAN MAKE USE OF THE DATA FOR WHATEVER PURPOSE, OR WORSE, MANIPULATE THE DATA STORED WITHIN THE SYSTEM.
AO No. 308 is unconstitutional since it falls short of assuring that personal information gathered about our people will be used only for specified purposes thereby violating the citizen’s right to privacy.
President Gloria Macapagal-Arroyo issued Presidential Proclamation No. 420 that mandates the Adoption of a Unified, Multi-purpose Identification System by all Government Agencies in the Executive Department. This is so despite the fact that the Supreme Court held in an En Banc decision in 1998 OPLE VS. EXECUTIVE SECRETARY RUBEN TORRES Administrative Order No. 308[National computerized Identification Reference System] issued by then President Fidel V. Ramos that the same is unconstitutional because “a national ID card system requires legislation because it creates a new national data collection and card issuance system, where none existed before”. The Supreme Court likewise held that EO 308 as unconstitutional for it violates the citizen’s right to privacy.
Based on the Ople ruling, the petitioners claimed that Proclamation No. 420 is unconstitutional on two (2) grounds:
usurpation of legislative powers; and
it infringes on the citizen’s right to privacy
The said Executive Order No. 420 does not violate the citizen’s right to privacy since it does not require all the citizens to be issued a national ID as what happened in AO 308. Only those dealing or employed with the said government entities who are required to provide the required information for the issuance of the said ID.
On February 20, 2006, Senator Miriam Defensor Santiago introduced Philippine Senate Resolution No. 455 (Senate Res. No. 455),36 “directing an inquiry in aid of legislation on the anomalous losses incurred by the Philippines Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and PHILCOMSAT Holdings Corporation (PHC) due to the alleged improprieties in their operations by their respective Board of Directors.”
On May 8, 2006, Chief of Staff Rio C. Inocencio, under the authority of Senator Richard J. Gordon, wrote Chairman Camilo L. Sabio of the PCGG, one of the herein petitioners, inviting him to be one of the resource persons in the public meeting jointly conducted by the Committee on Government Corporations and Public Enterprises and Committee on Public Services. The purpose of the public meeting was to deliberate on Senate Res. No. 455.37
On May 9, 2006, Chairman Sabio and other commissioners of the PCGG declined the invitation because of prior commitment.38 At the same time, they invoked Section 4(b) of E.O. No. 1 earlier quoted.
On September 12, 2006, at around 10:45 a.m., Major General Balajadia arrested Chairman Sabio in his office at IRC Building, No. 82 EDSA, Mandaluyong City and brought him to the Senate premises where he was detained.
Hence, Chairman Sabio filed with the Supreme Court a petition for habeas corpus against the Senate Committee on Government Corporations and Public Enterprises and Committee on Public Services, their Chairmen, Senators Richard Gordon and Joker P. Arroyo and Members.
I S S U E S:
Is the investigation conducted on the petitioners violative of their right to privacy?
H E L D:
Zones of privacy are recognized and protected in our laws.39 Within these zones, any form of intrusion is impermissible unless excused by law and in accordance with customary legal process. The meticulous regard we accord to these zones arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,”40 but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.”41
Our Bill of Rights, enshrined in Article III of the Constitution, provides at least two guarantees that explicitly create zones of privacy. It highlights a person’s “right to be let alone” or the “right to determine what, how much, to whom and when information about himself shall be disclosed.”42 Section 2 guarantees “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose.” Section 3 renders inviolable the “privacy of communication and correspondence” and further cautions that “any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.”
In evaluating a claim for violation of the right to privacy, a court must determine whether a person has exhibited a reasonable expectation of privacy and, if so, whether that expectation has been violated by unreasonable government intrusion.43 Applying this determination to these cases, the important inquiries are: first, did the directors and officers of Philcomsat Holdings Corporation exhibit a reasonable expectation of privacy?; and second, did the government violate such expectation?
The answers are in the negative. Petitioners were invited in the Senate’s public hearing to deliberate on Senate Res. No. 455, particularly “on the anomalous losses incurred by the Philippine Overseas Telecommunications Corporation (POTC), Philippine Communications Satellite Corporation (PHILCOMSAT), and Philcomsat Holdings Corporations (PHC) due to the alleged improprieties in the operations by their respective board of directors.” Obviously, the inquiry focus on petitioners’ acts committed in the discharge of their duties as officers and directors of the said corporations, particularly Philcomsat Holdings Corporation. Consequently, they have no reasonable expectation of privacy over matters involving their offices in a corporation where the government has interest. Certainly, such matters are of public concern and over which the people have the right to information.
This goes to show that the right to privacy is not absolute where there is an overriding compelling state interest. In Morfe v. Mutuc,44 the Court, in line with Whalen v. Roe,45 employed the rational basis relationship test when it held that there was no infringement of the individual’s right to privacy as the requirement to disclosure information is for a valid purpose, i.e., to curtail and minimize the opportunities for official corruption, maintain a standard of honesty in public service, and promote morality in public administration.46 In Valmonte v. Belmonte,47 the Court remarked that as public figures, the Members of the former Batasang Pambansa enjoy a more limited right to privacy as compared to ordinary individuals, and their actions are subject to closer scrutiny. Taking this into consideration, the Court ruled that the right of the people to access information on matters of public concern prevails over the right to privacy of financial transactions.
Under the present circumstances, the alleged anomalies in the PHILCOMSAT, PHC and POTC, ranging in millions of pesos, and the conspiratorial participation of the PCGG and its officials are compelling reasons for the Senate to exact vital information from the directors and officers of Philcomsat Holdings Corporations, as well as from Chairman Sabio and his Commissioners to aid it in crafting the necessary legislation to prevent corruption and formulate remedial measures and policy determination regarding PCGG’s efficacy. There being no reasonable expectation of privacy on the part of those directors and officers over the subject covered by Senate Res. No. 455, it follows that their right to privacy has not been violated by respondent Senate Committees.
Let it be stressed at this point that so long as the constitutional rights of witnesses, like Chairman Sabio and his Commissioners, will be respected by respondent Senate Committees, it their duty to cooperate with them in their efforts to obtain the facts needed for intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of proper investigation.
In fine, PCGG Chairman Camilo Sabio and Commissioners Ricardo Abcede, Narciso Nario, Nicasio Conti, and Tereso Javier; and Manuel Andal and Julio Jalandoni, PCGG’s nominees to Philcomsat Holdings Corporation, as well as its directors and officers, must comply with the Subpoenae Ad Testificandum issued by respondent Senate Committees directing them to appear and testify in public hearings relative to Senate Resolution No. 455.
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for the redress of their grievances.
NOTE: Applicable provisions of the Human Security Act/Anti-Terrorism Law, Republic Act No. 9372, Approved on March 6, 2007 and effective on July 15, 2007 (This Law shall be automatically suspended one (1) month before and two (2) months after the holding of any election)
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism---even if they have been granted bail because evidence of guilt is not strong—can be:
Detained under house arrest;
Restricted from traveling; and/or
Prohibited from using any cellular phones, computers, or other means of communications with people outside their residence.
1. Rule on criticisms against acts of public officers
1. Espuelas vs. People, 90 Phil. 524
2. US vs. Bustos, 37 Phil. 731 (A public official should not be onion-skinned with reference to comments upon his official acts. The interest of the government and the society demands full discussion of public affairs)
3. P. vs. Perez, 45 Phil. 599
4. Mercado vs. CFI, 116 SCRA 93
2. Freedom of the press, in general
Freedom of Expression; the public has the right to be informed on the mental, moral and physical fitness of candidates for public office.
In the January 3, 1988 issue of the Baguio Midland Courier (BMC), Cecille Afable, the Editor-in-Chief, in her column “In and Out of Baguio” made the following comments:
“Of all the candidates for Mayor of Baguio City), Labo has the most imponderables about him. People would ask: “can he read and write”? Why is he always talking about his Japanese father-in-law? Is he really a Japanes Senator or a barrio Kapitan? Is it true that he will send P18M aid to Baguio? Somebody wanted to put an advertisement of Labo in the Midland Courier but was refused because he has not yet paid his account of the last time he was a candidate for Congress. We will accept all advertisements for him if he pays his old account first.”
In the same column, Cecille Afable wrote the following comments in her January 10, 1988 column at the Courier:
“I heard that the ‘Dumpty in the Egg’ is campaigning for Cortes. Not fair. Some real doctors are also busy campaigning against Labo because he has not also paid their medical services with them. Since he is donating millions he should also settle his small debts like the reportedly insignificant amount of P27,000 only. If he wins, several teachers were signifying to resign and leave Baguio forever, and Pangasinan will be the franca-liqua of Baguio.”
As a result of the above articles, Ramon Labor, Jr. filed a complaint for Damages before the regional trial Court of Baguio City as he claimed said articles were libelous. He likewise filed a separate criminal complaint before the Office of the City Prosecutor of Baguio but was dismissed;
Labo claimed that the said articles were tainted with malice because he was allegedly described as “Dumpty in the Egg” or one “who is a failure in his business” which is false because he is a very successful businessman or to mean “zero or a big lie”; that he is a “balasubas” due to his alleged failure to pay his medical expenses;
The petitioners, however, were able to prove that Labo has an unpaid obligation to the Courier in the amount of P27,415.00 for the ads placed by his campaigners for the 1984 Batasang Pambansa elections;
The Regional Trial Court, Branch 6, Baguio City, in its Decision dated June 14, 1990 dismissed Labo’s complaint for damages on the ground that the article of petitioner Afable was privileged and constituted fair comment on matters of public interest as it dealt with the integrity, reputation and honesty of private respondent Labo who was a candidate for Mayor of Baguio City;
On January 7, 1992, the Court of Appeals reversed the RTC Decision and ordered the petitioners to pay Ramon Labo, Jr. damages in the total amount of P350,000.00 after concluding that the “Dumpty in the Egg” refers to no one but Labo himself.
Hence, the Petition to the Supreme Court.
The Court of Appeals is wrong when it held that Labo is the “Dumpty in the Egg” in the questioned article. This is so because the article stated that “The Dumpty in the Egg is campaigning for Cortes”, another candidate for mayor and opponent of Labo himself. It is unbelievable that Labo campaigned for his opponent and against himself. Although such gracious attitude on the part of Labo would have been commendable, it is contrary to common human experience. As pointed out by the petitioners, had he done that, it is doubtful whether he could have won as City Mayor of Baguio in the 1988 elections, which he actually did. In line with the doctrine in BORJAL VS. CA, 310 SCRA 1, that ‘it is also not sufficient that the offended party recognized himself as the person attacked or defamed, but it must be shown that at least a 3rd person could identify him as the object of the libelous publication’, the case should be dismissed since Labo utterly failed to dispose of this responsibility.
Labo claims that the petitioners could not invoke “public interest” to justify the publication since he was not yet a public official at that time. This argument is without merit since he was already a candidate for City mayor of Baguio. As such, the article is still within the mantle of protection guaranteed by the freedom of expression provided in the Constitution since it is the public’s right to be informed of the mental, moral and physical fitness of candidates for public office. This was recognized as early as the case of US VS. SEDANO, 14 Phil. 338  and the case of NEW YORK TIMES VS. SULLIVAN, 376 U.S. 254 where the US Supreme Court held:
“…it is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the State and to society of such discussions is so vast, and the advantages derived so great, that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small, that such discussion must be privileged. “
Clearly, the questioned articles constitute fair comment on a matter of public interest as it dealt with the character of the private respondent who was running for the top elective post in Baguio City at that time.
Freedom of expression and of the press
1. On October 23, 1989, RA 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law;
2. Pursuant to said law, the City of Baguio and Provinces of Benguet, Abra, Mt. Province, Ifugao and Kalinga-Apayao, all comprising the autonomous region shall take part in a plebiscite originally scheduled for December 27, 1989 but was reset to January 30, 1990 specifically for the ratification or rejection of the said act;
3. By virtue of the 1987 Constitution and the Omnibus Election Code (BP 881), the Comelec issued Comelec Resolution No. 2167, Section 19 of which provides:
"Section 19. Prohibition on columnist, commentators or announcers.- During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues."
4. On November 20, 1989, petitioner PABLITO V. SANIDAD who is a columnist ("OVERVIEW") for the Baguio Midland Courier, a weekly newspaper circulated in the City of Baguio and the Cordilleras, filed a petition for Prohibition with prayer for the issuance of a temporary restraining order or a writ of preliminary injunction against the Comelec to enjoin the latter from enforcing Section 19 of resolution No. 2167. Petitioner claims that the said provision is violative of his constitutional freedom of expression and of the press and it also constitutes a prior restraint because it imposes subsequent punishment for those who violate the same;
5. On November 28, 1989, the Supreme Court issued a temporary restraining order enjoining the respondent from enforcing Section 19 of Resolution No. 2167;
6. On January 9, 1990, Comelec through the Solicitor General filed its Comment and moved for the dismissal of the petition on the ground that Section 19 of Resolution No. 2167 does not absolutely bar the petitioner from expressing his views because under Section 90 and 92 of BP 881, he may still express his views or campaign for or against the act through the Comelec space and airtime.
What is granted by Art. IX-C of the Constitution to the Comelec is the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are insured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give undue advantage to a candidate in terms of advertising time and space. This is also the reason why a columnist, commentator or announcer is required to take a leave of absence from his work during the campaign period if he is a candidate.
HOWEVER, NEITHER ARTICLE IX-C OF THE CONSTITUTION NOR SECTION 11(B), 2ND PAR. OF RA 6646 CAN BE CONSTRUED TO MEAN THAT THE COMELEC HAS ALSO BEEN GRANTED THE RIGHT TO SUPERVISE AND REGULATE THE EXERCISE BY MEDIA PRACTITIONERS THEMSELVES OF THEIR RIGHT TO EXPRESSION DURING THE PLEBISCITE PERIODS. Media practitioners exercising their freedom of expression during the plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates in a plebiscite.
While it is true that the petitioner is not absolutely barred from campaigning for or against the Organic Act, said fact does not cure the constitutional infirmity of Section 19, Comelec Resolution No. 2167. This is so because IT IS STILL A RESTRICTION ON HIS CHOICE OF THE FORUM WHERE HE MAY EXPRESS HIS VIEW.
Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, INCLUDING THE FORUM. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised.
ACCORDINGLY, Section 19 of Comelec Resolution No. 2167 is hereby declared UNCONSTITUTIONAL.
In re: Ramon Tulfo,March 19, 199
In re: Atty. Emil Jurado, July 12, 1990
Burgos vs. Chief of Staff, 133 SCRA 800
Corro vs. Lising, 137 SCRA 448
Babst vs. NIB, 132 SCRA 316
Elizalde vs. Gutierrez,76 SCRA 448 (In order that any news item relating to a judicial proceeding will not be actionable for being libelous, the same must be [a] a true and fair report of the actual proceedings; [b] must be done in good faith; and [c] no comments nor remarks shall be made by the writer.
Policarpio vs. Manila Times, 5 SCRA 148
Lopez vs. CA, 34 SCRA 116
New York Times vs. Sullivan,376 U.S.254
Liwayway Publishing vs. PCGG, April 15,l988
3. Freedom of expression in general
RANDY DAVID VS. ARROYO, May 3, 2006, 489 SCRA 160;
Adiong vs. Comelec, March 31, 1992 (putting of decals and stickers in one’s car is within the protected freedom of expression)
National Press Club vs. Comelec, March 5, 1992. Real also the dissenting and separate opinions of the justices. (Preventing campaigns through radio, TV and newspapers is valid in order to even the playing field between rich and poor candidates)
Zaldivar vs. Sandiganbayan, GR No. 7960-707 & Zaldivar vs. Gonzales, GR No. 80578, February 1, 1989
Eastern Broadcasting vs. Dans,137 SCRA 628
Newsweek vs. IAC, 142 SCRA 171
Kapisanan vs. Camara Shoes, 11 SCRA 477
IN RE: Atty. Tipon, 79 SCRA 372
Lacsa vs. IAC, May 23,1988
Kapunan vs. De Villa, December 6, 1988
4. Not within the protection of the freedom of expression clause of the Constitution
1. Obscenity; test of
a. P. vs. Kottinger, 45 Phil. 352
P vs. GO PIN, August 8, 1955
Whether the average person applying to contemporary community standards would find the work appeals to prurient interest;
Whether the work depicts or describes a patently offensive sexual conduct;
Whether the work as a whole lacks serious literary , artistic, political or scientific value.
c. Miller vs. California, 37 L. Ed. 2d 419
d. Ginsberg vs. New York,390 U.S. 629
e. Pita vs. CA, 178 SCRA 362 (A City Mayor may not order the warrantless seizure of magazines which he believes to be obscene; otherwise, he will become the complainant, prosecutor and judge at the same time. He should obtain a search warrant from a judge)
2. Libel or slander; test of-
a. Lopez and Manila Times cases, supra
b. Quisumbing vs. Lopez, 96 Phil. 510
3. Cases undersub-judice
a. P. vs. Alarcon, 69 Phil. 265
5. Freedom of assembly and to petition the government for redress of grievances
CARPIO MORALES, J.:
Petitioners Integrated Bar of the Philippines (IBP) and lawyers H. Harry L. Roque and Joel R. Butuyan appeal the June 28, 2006 Decision and the October 26, 2006 Resolution of the Court of Appeals that found no grave abuse of discretion on the part of respondent Jose “Lito” Atienza, the then mayor of Manila, in granting a permit to rally in a venue other than the one applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter application for a permit to rally at the foot of Mendiola Bridge on June 22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and members, law students and multi-sectoral organizations.
Respondent issued a permit dated June 16, 2006 allowing the IBP to stage a rally on given date but indicated therein Plaza Miranda as the venue, instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a petition for certiorari docketed as CA-G.R. SP No. 94949. The petition having been unresolved within 24 hours from its filing, petitioners filed before this Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951 which assailed the appellate court’s inaction or refusal to resolve the petition within the period provided under the Public Assembly Act of 1985.
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November 20, 2006, respectively, denied the petition for being moot and academic, denied the relief that the petition be heard on the merits in view of the pendency of CA-G.R. SP No. 94949, and denied the motion for reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila Police District (MPD) earlier barred petitioners from proceeding thereto. Petitioners allege that the participants voluntarily dispersed after the peaceful conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action, docketed as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in staging a rally at a venue not indicated in the permit, to which charge Cadiz filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the first assailed issuance, that the petition became moot and lacked merit. The appellate court also denied petitioners’ motion for reconsideration by the second assailed issuance.
Hence, the filing of the present petition for review on certiorari, to which respondent filed his Comment of November 18, 2008 which merited petitioners’ Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the modification of the venue in IBP’s rally permit does not constitute grave abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the Pubic Assembly Act and violates their constitutional right to freedom of expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006 became moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value. Generally, courts decline jurisdiction over such case or dismiss it on ground of mootness. However, even in cases where supervening events had made the cases moot, this Court did not hesitate to resolve the legal or constitutional issues raised to formulate controlling principles to guide the bench, bar and public. Moreover, as an exception to the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition, yet evading review.
In the present case, the question of the legality of a modification of a permit to rally will arise each time the terms of an intended rally are altered by the concerned official, yet it evades review, owing to the limited time in processing the application where the shortest allowable period is five days prior to the assembly. The susceptibility of recurrence compels the Court to definitively resolve the issue at hand.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application [sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed. (underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita, the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of 1985 practically codified the 1983 ruling in Reyes v. Bagatsing. In juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent portion of the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion when he did not immediately inform the IBP who should have been heard first on the matter of his perceived imminent and grave danger of a substantive evil that may warrant the changing of the venue. The opportunity to be heard precedes the action on the permit, since the applicant may directly go to court after an unfavorable action on the permit.
Respondent failed to indicate how he had arrived at modifying the terms of the permit against the standard of a clear and present danger test which, it bears repeating, is an indispensable condition to such modification. Nothing in the issued permit adverts to an imminent and grave danger of a substantive evil, which “blank” denial or modification would, when granted imprimatur as the appellate court would have it, render illusory any judicial scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place.” (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or explanation for his action. It smacks of whim and caprice for respondent to just impose a change of venue for an assembly that was slated for a specific public place. It is thus reversible error for the appellate court not to have found such grave abuse of discretion.
The Court DECLARES that respondent committed grave abuse of discretion in modifying the rally permit issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge to Plaza Miranda.
Freedom of public school teachers to peaceably assemble and petition the government for redress of grievances; right of public school teachers to form union.
The petitioners admitted that they participated in concerted mass actions in Metro Manila from September to the first half of October, 1990 which temporarily disrupted classes in Metro Manila but they claimed that they were not on strike. They claimed that they were merely exercising their constitutional right to peaceably assemble and petition the government for redress of their grievances. Thus, they may not be penalized administratively.
The issue of whether or not the mass action launched by the public school teachers during the period from September up to the 1st half of October, 1990 was a strike or not has been decided in the case of MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION VS. LAGUIO, 200 SCRA 323 where it was held that “these mass actions were to all intents and purposes a strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the teachers’ duty to perform, undertaken for essentially economic reasons.”
It is undisputed fact that there was a work stoppage and that petitioners’ purpose was to realize their demands by withholding their services. The fact that the conventional term “strike” was not used by the striking employees to describe their common course of action is inconsequential, SINCE THE SUBSTANCE OF THE SITUATION, AND NOT ITS APPEARANCE, WILL BE DEEMED CONTROLLING.
Despite the constitutional right to form associations under the Constitution, employees in the public service may not engage in strikes, mass leaves, walkouts and other forms of mass actions that will lead to temporary stoppage or disruption of public service. The right of government employees to organize IS LIMITED TO THE FORMATIONS OF UNIONS OR ASSOCIATIONS ONLY, WITHOUT INCLUDING THE RIGHT TO STRIKE. (Bangalisan vs. CA, 276 SCRA 619)
The petitioners are not therefore entitled to their salaries during their suspension because the general proposition is that a public official is not entitled to any compensation if he had not rendered any service.
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838, allege that they are citizens and taxpayers of the Philippines and that their rights as organizations and individuals were violated when the rally they participated in on October 6, 2005 was violently dispersed by policemen implementing Batas Pambansa (B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al., in G.R. No. 169848, who allege that they were injured, arrested and detained when a peaceful mass action they held on September 26, 2005 was preempted and violently dispersed by the police. They further assert that on October 5, 2005, a group they participated in marched to Malacañang to protest issuances of the Palace which, they claim, put the country under an “undeclared” martial rule, and the protest was likewise dispersed violently and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. 169881, allege that they conduct peaceful mass actions and that their rights as organizations and those of their individual members as citizens, specifically the right to peaceful assembly, are affected by Batas Pambansa No. 880 and the policy of “Calibrated Preemptive Response” (CPR) being followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was scheduled to proceed along España Avenue in front of the University of Santo Tomas and going towards Mendiola bridge. Police officers blocked them along Morayta Street and prevented them from proceeding further. They were then forcibly dispersed, causing injuries on one of them. Three other rallyists were arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek to stop violent dispersals of rallies under the “no permit, no rally” policy and the CPR policy recently announced.
B.P. No. 880, “The Public Assembly Act of 1985,” provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably To Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title . – This Act shall be known as “The Public Assembly Act of 1985.”
Sec. 2. Declaration of policy. – The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law.
Sec. 3. Definition of terms. – For purposes of this Act:
(b) “Public place” shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza square, and/or any open space of public ownership where the people are allowed access.
(c) “Maximum tolerance” means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same.
Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines:
The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.
The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.
The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.
Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.
The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.
If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.
In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying if in terms satisfactory to the applicant shall be immediately executory.
All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
In all cases, any decision may be appealed to the Supreme Court.
CPR, on the other hand, is a policy set forth in a press release by Malacañang dated September 21, 2005, shown in Annex “A” to the Petition in G.R. No. 169848, thus:
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government groups to inflame the political situation, sow disorder and incite people against the duty constituted authorities, we have instructed the PNP as well as the local government units to strictly enforce a “no permit, no rally” policy, disperse groups that run afoul of this standard and arrest all persons violating the laws of the land as well as ordinances on the proper conduct of mass actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of maximum tolerance. The authorities will not stand aside while those with ill intent are herding a witting or unwitting mass of people and inciting them into actions that are inimical to public order, and the peace of mind of the national community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens have the right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a violation of the Constitution and the International Covenant on Civil and Political Rights and other human rights treaties of which the Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can stage a public assembly regardless of the presence or absence of a clear and present danger. It also curtails the choice of venue and is thus repugnant to the freedom of expression clause as the time and place of a public assembly form part of the message for which the expression is sought. Furthermore, it is not content-neutral as it does not apply to mass actions in support of the government. The words “lawful cause,” “opinion,” “protesting or influencing” suggest the exposition of some cause not espoused by the government. Also, the phrase “maximum tolerance” shows that the law applies to assemblies against the government because they are being tolerated. As a content-based legislation, it cannot pass the strict scrutiny test.
Furthermore, the law delegates powers to the Mayor without providing clear standards. The two standards stated in the laws (clear and present danger and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No. 880 cannot put the prior requirement of securing a permit. And even assuming that the legislature can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the permit on clear and convincing evidence of a clear and present danger is too comprehensive. Second, the five-day requirement to apply for a permit is too long as certain events require instant public assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government takes action even before the rallyists can perform their act, and that no law, ordinance or executive order supports the policy. Furthermore, it contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes a chilling effect on the exercise by the people of the right to peaceably assemble.
I s s u e s:
On the constitutionality of Batas Pambansa No. 880, specifically Sections 4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
Are these content-neutral or content-based regulations?
Are they void on grounds of overbreadth or vagueness?
Do they constitute prior restraint?
Are they undue delegations of powers to Mayors?
Do they violate international human rights treaties and the Universal Declaration of Human Rights?
On the constitutionality and legality of the policy of Calibrated Preemptive Response (CPR):
Is the policy void on its face or due to vagueness?
Is it void for lack of publication?
Is the policy of CPR void as applied to the rallies of September 26 and October 4, 5 and 6, 2005?
H e l d:
Petitioners’ standing cannot be seriously challenged. Their right as citizens to engage in peaceful assembly and exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880 which requires a permit for all who would publicly assemble in the nation’s streets and parks. They have, in fact, purposely engaged in public assemblies without the required permits to press their claim that no such permit can be validly required without violating the Constitutional guarantee. Respondents, on the other hand, have challenged such action as contrary to law and dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.
The first point to mark is that the right to peaceably assemble and petition for redress of grievances is, together with freedom of speech, of expression, and of the press, a right that enjoys primacy in the realm of constitutional protection. For these rights constitute the very basis of a functional democratic polity, without which all the other rights would be meaningless and unprotected. As stated in Jacinto v. CA, the Court, as early as the onset of this century, in U.S. v. Apurado already upheld the right to assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to petition the government for a redress of grievances and, for that matter, to organize or form associations for purposes not contrary to law, as well as to engage in peaceful concerted activities. These rights are guaranteed by no less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights, Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence abounds with hallowed pronouncements defending and promoting the people’s exercise of these rights. As early as the onset of this century, this Court in U.S. vs. Apurado, already upheld the right to assembly and petition and even went as far as to acknowledge:
“It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater, the grievance and the more intense the feeling, the less perfect, as a rule will be the disciplinary control of the leaders over their irresponsible followers. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would expose all those who took part therein to the severest and most unmerited punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising.”
Again, in Primicias v. Fugoso, the Court likewise sustained the primacy of freedom of speech and to assembly and petition over comfort and convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the government for redress of grievances, are fundamental personal rights of the people recognized and guaranteed by the constitutions of democratic countries. But it is a settled principle growing out of the nature of well-ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights, nor injurious to the rights of the community or society. The power to regulate the exercise of such and other constitutional rights is termed the sovereign “police power,” which is the power to prescribe regulations, to promote the health, morals, peace, education, good order or safety, and general welfare of the people. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights, and it may be delegated to political subdivisions, such as towns, municipalities and cities by authorizing their legislative bodies called municipal and city councils enact ordinances for purpose
Reyes v. Bagatsing further expounded on the right and its limits, as follows:
1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: “No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances.” Free speech, like free press, may be identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a “clear and present danger of a substantive evil that [the State] has a right to prevent.” Freedom of assembly connotes the right of the people to meet peaceably for consultation and discussion of matters of public concern. It is entitled to be accorded the utmost deference and respect. It is not to be limited, much less denied, except on a showing, as is the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. Even prior to the 1935 Constitution, Justice Malcolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. To paraphrase the opinion of Justice Rutledge, speaking for the majority of the American Supreme Court in Thomas v. Collins, it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guarantee with the right of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not identical, are inseparable. In every case, therefore, where there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: “It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution.” What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. Resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: “It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers.” It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided. To give free rein to one’s destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage of, Justice Roberts in Hague v. CIO: “Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but must not, in the guise of respondents, be abridged or denied.” The above excerpt was quoted with approval in Primicias v. Fugoso. Primicias made explicit what was implicit in Municipality of Cavite v. Rojas, a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza “being a promenade for public use,” which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the gates of the US embassy, hardly two blocks away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: “Our conclusion finds support in the decision in the case of Willis Cox v. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P.L. chap. 145, section 2, providing that no parade or procession upon any ground abutting thereon, shall be permitted unless a special license therefor shall first be obtained from the selectmen of the town or from licensing committee,’ was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that ‘a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, * * *. “Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored: “Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.”
x x x
6. x x x The principle under American doctrines was given utterance by Chief Justice Hughes in these words: “The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.” There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption – especially so where the assembly is scheduled for a specific public place – is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be “abridged on the plea that it may be exercised in some other place.”
x x x
8. By way of a summary. [a] The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. [b] If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. [c] Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. [d] It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. [e] If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. [f] Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, -- even more so than on the other departments – rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitously termed by Justice Holmes “as the sovereign prerogative of judgment.” Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, they can have recourse to the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not required.-- A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act.
Sec. 5. Application requirements.-- All applications for a permit shall comply with the following guidelines:
(a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used.
(b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall be immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time, place and manner of the assemblies. This was adverted to in Osmeña v. Comelec,48 where the Court referred to it as a “content-neutral” regulation of the time, place, and manner of holding public assemblies.49
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to all kinds of public assemblies50 that would use public places. The reference to “lawful cause” does not make it content-based because assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled to protection. Neither are the words “opinion,” “protesting” and “influencing” in the definition of public assembly content based, since they can refer to any subject. The words “petitioning the government for redress of grievances” come from the wording of the Constitution, so its use cannot be avoided. Finally, maximum tolerance is for the protection and benefit of all rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and present danger to public order, public safety, public convenience, public morals or public health. This is a recognized exception to the exercise of the right even under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.
Neither is the law overbroad. It regulates the exercise of the right to peaceful assembly and petition only to the extent needed to avoid a clear and present danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and sufficient standard – the clear and present danger test stated in Sec. 6(a). The reference to “imminent and grave danger of a substantive evil” in Sec. 6(c) substantially means the same thing and is not an inconsistent standard. As to whether respondent Mayor has the same power independently under Republic Act No. 716051 is thus not necessary to resolve in these proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an alternative forum through the creation of freedom parks where no prior permit is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable “freedom park” or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity this Act.
The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus:
The truth of the matter is the policy of “calibrated preemptive response” is in consonance with the legal definition of “maximum tolerance” under Section 3 (c) of B.P. Blg. 880, which is the “highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same.” Unfortunately, however, the phrase “maximum tolerance” has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be “tolerated.” Clearly, the popular connotation of “maximum tolerance” has departed from its real essence under B.P. Blg. 880.
It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that “maximum tolerance” is not in conflict with a “no permit, no rally policy” or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence.
Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, “we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed.” None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.
In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, “maximum tolerance” is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally “permits” is valid because it is subject to the constitutionally-sound “clear and present danger” standard.
WHEREFORE, the petitions are GRANTED in part, and Calibrated Preemptive Response (CPR), insofar as it would purport to differ from or be in lieu of maximum tolerance, is NULL and VOID and respondents are ENJOINED to REFRAIN from using it and to STRICTLY OBSERVE the requirements of maximum tolerance.
1. Right of assembly..31 SCRA 734 and 742
2. Evangelista vs. Earnshaw, 57 Phil 255
3. Primicias vs. Fuguso, 80 Phil. 71
4. De la Cruz vs. Ela, 99 Phil. 346
5. Navarro vs. Villegas, 31 SCRA 731
6. Philippine Blooming Mills Case,51 SCRA 189
7. Reyes vs. Bagatsing, 125 SCRA 553;see guidelines
8. Ruiz vs. Gordon, 126 SCRA 233
9. Villar vs. TIP, 135 SCRA 705
10. Malabanan vs. Ramento, 129 SCRA 359
11. Carpio vs. Guevara, 106 SCRA 685
12. Nestle' Phils. vs. Sanchez, 154 SCRA 542
13. Arreza vs. Araneta University Foundation, 137 SCRA 94
Freedom from prior restraint
Closing a radio station is definitely prior restraint
Bombo Radyo Philippines (“Bombo Radyo”) operates several radio stations under the AM and FM band throughout the Philippines. These stations are operated by corporations organized and incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc. (“Newsounds”) and Consolidated Broadcasting System, Inc. (“CBS”). Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan (“Star FM”), also operating out of Cauayan City, airing on the FM band. The service areas of DZNC and Star FM extend from the province of Isabela to throughout Region II and the Cordillera region.52 THE ONLY OTHER STATION OPERATING IN CAUAYAN CITY, ISABELA, is owned by the family of respondent Mayor Dy.
In 1996, Newsounds commenced relocation of its broadcasting stations, management office and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network which holds title over the properties used by Bombo Radyo stations throughout the country.53 On 28 June 1996, CDC was issued by the then municipal government of Cauayan a building permit authorizing the construction of a commercial establishment on the property.54 On 5 July 1996, the Housing and Land Use Regulatory Board (HLURB) issued a Zoning Decision certifying the property as commercial.55 That same day, the Office of the Municipal Planning and Development Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be constructed by CDC conformed to local zoning regulations, noting as well that the location “is classified as a Commercial area.”56 Similar certifications would be issued by OMPDC from 1997 to 2001.57
A building was consequently erected on the property, and therefrom, DZNC and Star FM operated as radio stations. Both stations successfully secured all necessary operating documents, including mayor’s permits from 1997 to 2001.58 During that period, CDC paid real property taxes on the property based on the classification of the land as commercial.59
All that changed beginning in 2002. On 15 January of that year, petitioners applied for the renewal of the mayor’s permit. The following day, the City Assessor’s Office in Cauayan City noted on CDC’s Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDC’s property was classified as “commercial.”60 On 28 January, representatives of petitioners formally requested then City Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning clearance for the property.61 Maximo, however, required petitioners to submit “either an approved land conversion papers from the Department of Agrarian Reform (DAR) showing that the property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.”62 Petitioners had never been required to submit such papers before, and from 1996 to 2001, the OMPDC had consistently certified that the property had been classified as commercial. THEREAFTER, THE MUNICIPAL OFFICIALS PADLOCKED THE RADIO STATIONS BASED ON THE GROUND THAT THE PETITIONERS FAILED TO SUBMIT THE requisite zoning clearance needed for the issuance of the mayor’s permit because there was allegedly no DAR Decision converting said land from agricultural to commercial.
Petitioners filed a petition for mandamus, docketed as SCA No. 20-171, with the RTC of Cauayan City, Branch 20 to compel the municipality to allow the radio stations to operate. The petition was accompanied by an application for the issuance of temporary restraining order and writ of preliminary prohibitory injunction, both provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Thereafter, the petition was dismissed by the RTC as well as the Court of Appeals.
Hence, this case before the Supreme Court.
I S S U E:
Is the closure of the petitioners’ radio stations constitutional?
The closure constitutes prior restraint.
The fundamental constitutional principle that informs our analysis of both petitions is the freedom of speech, of expression or the press.63 Free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent.64
Petitioners have taken great pains to depict their struggle as a textbook case of denial of the right to free speech and of the press. In their tale, there is undeniable political color. They admit that in 2001, Bombo Radyo “was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty.”65 Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant station manager at petitioners’ own DZNC Bombo Radyo.66 A rival AM radio station in Cauayan City, DWDY, is owned and operated by the Dy family.67 Petitioners likewise direct our attention to a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending “to file disenfranchisement proceedings against DZNC-AM.”68
The following undisputed facts bring the issue of free expression to fore. Petitioners are authorized by law to operate radio stations in Cauayan City, and had been doing so for some years undisturbed by local authorities. Beginning in 2002, respondents in their official capacities have taken actions, whatever may be the motive, that have impeded the ability of petitioners to freely broadcast, if not broadcast at all. These actions have ranged from withholding permits to operate to the physical closure of those stations under color of legal authority. While once petitioners were able to broadcast freely, the weight of government has since bore down upon them to silence their voices on the airwaves. An elementary school child with a basic understanding of civics lessons will recognize that free speech animates these cases.
Without taking into account any extenuating circumstances that may favor the respondents, we can identify the bare acts of closing the radio stations or preventing their operations as an act of prior restraint against speech, expression or of the press. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.69 While any system of prior restraint comes to court bearing a heavy burden against its constitutionality,70 not all prior restraints on speech are invalid.71
That the acts imputed against respondents constitute a prior restraint on the freedom of expression of respondents who happen to be members of the press is clear enough. There is a long-standing tradition of special judicial solicitude for free speech, meaning that governmental action directed at expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior.72 We had said in SWS v. COMELEC: “Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, ‘any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint.’ There is thus a reversal of the normal presumption of validity that inheres in every legislation.”73
At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.74 Content-based laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression.75 Content-neutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.76
Ostensibly, the act of an LGU requiring a business of proof that the property from which it operates has been zoned for commercial use can be argued, when applied to a radio station, as content-neutral since such a regulation would presumably apply to any other radio station or business enterprise within the LGU.
However, the circumstances of this case dictate that we view the action of the respondents as a content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the following relevant allegations:
6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing public issues that include, among others, the conduct of public officials that are detrimental to the constituents of Isabela, including Cauayan City. In view of its wide coverage, DZNC has been a primary medium for the exercise of the people of Isabela of their constitutional right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to maintain and uphold freedom of the press, and the people’s corollary right to freedom of speech, expression and petition the government for redress of grievances.
6.2. Newsound’s only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned and operated by the family of respondent Dy.77
x x x x
35. Respondents closure of petitioners’ radio stations is clearly tainted with ill motives.
35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty. It is just too coincidental that it was only after the 2001 elections (i.e., 2002) that the Mayor’s Office started questioning petitioners’ applications for renewal of their mayor’s permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy was quoted as saying that he will “disenfranchise the radio station.” Such statement manifests and confirms that respondents’ denial of petitioners’ renewal applications on the ground that the Property is commercial is merely a pretext and that their real agenda is to remove petitioners from Cauayan City and suppress the latter’s voice. This is a blatant violation of the petitioners’ constitutional right to press freedom.
35.3. The timing of respondents’ closure of petitioners’ radio stations is also very telling. The closure comes at a most critical time when the people are set to exercise their right of suffrage. Such timing emphasizes the ill motives of respondents.78
All those circumstances lead us to believe that the steps employed by respondents to ultimately shut down petitioner’s radio station were ultimately content-based. The United States Supreme Court generally treats restriction of the expression of a particular point of view as the paradigm violation of the First Amendment.79 The facts confronting us now could have easily been drawn up by a constitutional law professor eager to provide a plain example on how free speech may be violated.
The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.80 The immediate implication of the application of the “strict scrutiny” test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners’ constitutional rights. As content regulation cannot be done in the absence of any compelling reason,81 the burden lies with the government to establish such compelling reason to infringe the right to free expression.
It is thus evident that respondents had no valid cause at all to even require petitioners to secure “approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land.” That requirement, assuming that it can be demanded by a local government in the context of approving mayor’s permits, should only obtain upon clear proof that the property from where the business would operate was classified as agricultural under the LGU’s land use plan or zoning ordinances and other relevant laws. No evidence to that effect was presented by the respondents either to the petitioners, or to the courts.
Having established that respondents had violated petitioners’ legal and constitutional rights, let us now turn to the appropriate reliefs that should be granted.
We turn to the issue of damages. Petitioners had sought to recover
P8 Million in temperate damages, P1
Million in exemplary damages, and P1 Million in
attorney’s fees. Given respondents’ clear violation of
petitioners’ constitutional guarantee of free expression, the right
to damages from respondents is squarely assured by Article 32 (2) of
the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:
x x x x
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that “[p]ublic officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties… [and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good faith.”82 The application of Article 32 not only serves as a measure of pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves notice to public officers and employees that any violation on their part of any person’s guarantees under the Bill of Rights will meet with final reckoning.
The present prayer for temperate damages is premised on the existence
of pecuniary injury to petitioner due to the actions of respondents,
the amount of which nevertheless being difficult to prove.83
Temperate damages avail when the court finds that some pecuniary loss
has been suffered but its amount can not, from the nature of the
case, be proved with certainty.84
The existence of pecuniary injury at bar cannot be denied.
Petitioners had no way of knowing it when they filed their petition,
but the actions of respondents led to the closure of their radio
stations from June 2004 until this Court issued a writ of
preliminary injunction in January 2006.85
The lost potential income during that one and a half year of closure
can only be presumed as substantial enough. Still, despite that fact,
possibly unanticipated when the original amount for claimed temperate
damages was calculated, petitioners have maintained before this Court
the same amount,
P8 Million, for temperate damages.
The said amount is “reasonable under the circumstances.”86
Exemplary damages can be awarded herein, since temperate damages are
available. Public officers who violate the Constitution they are
sworn to uphold embody “a poison of wickedness that may not run
through the body politic.”87
Respondents, by purposely denying the commercial character of the
property in order to deny petitioners’ the exercise of their
constitutional rights and their business, manifested bad faith in a
wanton, fraudulent, oppressive and malevolent manner.88
The amount of exemplary damages need not be proved where it is shown
that plaintiff is entitled to temperate damages,89
and the sought for amount of
P1 Million is more than
appropriate. We likewise deem the prayer for P1
Million in attorney’s fees as suitable under the circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby reversed and set aside.
Suspension for three (3) months of TV Host, as well as his own TV Program held not prior restraint.
VELASCO, JR., J.:
On August 10, 2004, at around 10:00 p.m., petitioner, as host of the program Ang Dating Daan, aired on UNTV 37, made the following remarks:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC), against petitioner in connection with the above broadcast. Respondent Michael M. Sandoval, who felt directly alluded to in petitioner’s remark, was then a minister of INC and a regular host of the TV program Ang Tamang Daan.90 Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.91
After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of Procedure.92 The same order also set the case for preliminary investigation.
The following day, petitioner sought reconsideration of the preventive suspension order, praying that Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves from hearing the case.93 Two days after, however, petitioner sought to withdraw94 his motion for reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,95 docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his program, “Ang Dating Daan”.
Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed as G.R. No. 165636.
In G.R. No. 164785, petitioner raises the following issues:
THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF PREVENTIVE SUSPENSION ORDERS;
BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.97
In G.R. No. 165636, petitioner relies on the following grounds:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF JURISDICTION x x x CONSIDERING THAT:
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW; CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
[PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH98
G.R. No. 164785
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive suspension, although its implementability had already been overtaken and veritably been rendered moot by the equally assailed September 27, 2004 decision.
It is petitioner’s threshold posture that the preventive suspension imposed against him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to issue preventive suspension.
Petitioner’s contention is untenable.
Administrative agencies have powers and functions which may be administrative, investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the Constitution or by statute.99 They have in fine only such powers or authority as are granted or delegated, expressly or impliedly, by law.100 And in determining whether an agency has certain powers, the inquiry should be from the law itself. But once ascertained as existing, the authority given should be liberally construed.101
A perusal of the MTRCB’s basic mandate under PD 1986 reveals the possession by the agency of the authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority stems naturally from, and is necessary for the exercise of, its power of regulation and supervision.
Sec. 3 of PD 1986 pertinently provides the following:
Section 3. Powers and Functions.—The BOARD shall have the following functions, powers and duties:
x x x x
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x x x exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the board applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime such as but not limited to:
x x x x
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether living or dead;
x x x x
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television;
x x x x
k) To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x. (Emphasis added.)
The issuance of a preventive suspension comes well within the scope of the MTRCB’s authority and functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which empowers the MTRCB to “supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television.”
Surely, the power to issue preventive suspension forms part of the MTRCB’s express regulatory and supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied from such mandate. Any other construal would render its power to regulate, supervise, or discipline illusory.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in an administrative investigation.102 And the power to discipline and impose penalties, if granted, carries with it the power to investigate administrative complaints and, during such investigation, to preventively suspend the person subject of the complaint.103
To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION ORDER.––Any time during the pendency of the case, and in order to prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board may issue a Preventive Suspension Order mandating the preventive x x x suspension of the permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from the date of issuance.
But the mere absence of a provision on preventive suspension in PD 1986, without more, would not work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioner’s assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed pursuant, to repeat, to the MTRCB’s duty of regulating or supervising television programs, pending a determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCB’s assailed action. Petitioner’s restrictive reading of PD 1986, limiting the MTRCB to functions within the literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. Sec. 3(k), we reiterate, provides, “To exercise such powers and functions as may be necessary or incidental to the attainment of the purposes and objectives of this Act x x x.” Indeed, the power to impose preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers, implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary or fair implication of the enabling act.104 As we held in Angara v. Electoral Commission, when a general grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also conferred by necessary implication.105 Clearly, the power to impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.
We cannot agree with petitioner’s assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCB’s authority extends beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law makes specific reference to the closure of a television network, the suspension of a television program is a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD 1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions petitioner envisages.
Just as untenable is petitioner’s argument on the nullity of the preventive suspension order on the ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in response to a written notice, appeared before that Board for a hearing on private respondents’ complaint. No less than petitioner admitted that the order was issued after the adjournment of the hearing,106 proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the IRR of PD 1986, preventive suspension shall issue “[a]ny time during the pendency of the case.” In this particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD 1986107 and of administrative complaints that had been filed against him for such violation.108
At any event, that preventive suspension can validly be meted out even without a hearing.109
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the INC ministers.
Petitioner’s position does not persuade. The equal protection clause demands that “all persons subject to legislation should be treated alike, under like circumstances and conditions both in the privileges conferred and liabilities imposed.”110 It guards against undue favor and individual privilege as well as hostile discrimination.111 Surely, petitioner cannot, under the premises, place himself in the same shoes as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For another, he offers no proof that the said ministers, in their TV programs, use language similar to that which he used in his own, necessitating the MTRCB’s disciplinary action. If the immediate result of the preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his critics, this does not become a deprivation of the equal protection guarantee. The Court need not belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply too different to even consider whether or not there is a prima facie indication of oppressive inequality.
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious speech, adding that words like “putang babae” were said in exercise of his religious freedom.
The argument has no merit.
The Court is at a loss to understand how petitioner’s utterances in question can come within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows:
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
There is nothing in petitioner’s statements subject of the complaints expressing any particular religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements in a televised bible exposition program does not automatically accord them the character of a religious discourse. Plain and simple insults directed at another person cannot be elevated to the status of religious speech.
Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for three months on the main ground that the decision violates, apart from his religious freedom, his freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:
No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievance.
He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons articulated in this petition.
It is settled that expressions by means of newspapers, radio, television, and motion pictures come within the broad protection of the free speech and expression clause.112 Each method though, because of its dissimilar presence in the lives of people and accessibility to children, tends to present its own problems in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a lesser degree of protection.113 Just as settled is the rule that restrictions, be it in the form of prior restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt proceedings, are anathema to the freedom of expression. Prior restraint means official government restrictions on the press or other forms of expression in advance of actual publication or dissemination.114 The freedom of expression, as with the other freedoms encased in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to serve important public interests, some forms of speech not being protected. As has been held, the limits of the freedom of expression are reached when the expression touches upon matters of essentially private concern.115 In the oft-quoted expression of Justice Holmes, the constitutional guarantee “obviously was not intended to give immunity for every possible use of language.”116 From Lucas v. Royo comes this line: “[T]he freedom to express one’s sentiments and belief does not grant one the license to vilify in public the honor and integrity of another. Any sentiments must be expressed within the proper forum and with proper regard for the rights of others.”117
Indeed, as noted in Chaplinsky v. State of New Hampshire,118 “there are certain well-defined and narrowly limited classes of speech that are harmful, the prevention and punishment of which has never been thought to raise any Constitutional problems.” In net effect, some forms of speech are not protected by the Constitution, meaning that restrictions on unprotected speech may be decreed without running afoul of the freedom of speech clause.119 A speech would fall under the unprotected type if the utterances involved are “no essential part of any exposition of ideas, and are of such slight social value as a step of truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”120 Being of little or no value, there is, in dealing with or regulating them, no imperative call for the application of the clear and present danger rule or the balancing-of-interest test, they being essentially modes of weighing competing values,121 or, with like effect, determining which of the clashing interests should be advanced.
Petitioner asserts that his utterance in question is a protected form of speech.
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low-value expression refers to libelous statements, obscenity or pornography, false or misleading advertisement, insulting or “fighting words”, i.e., those which by their very utterance inflict injury or tend to incite an immediate breach of peace and expression endangering national security.
The Court finds that petitioner’s statement can be treated as obscene, at least with respect to the average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but nonetheless stated the ensuing observations on the matter:
There is no perfect definition of “obscenity” but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is “patently offensive.” x x x What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judge’s sound discretion.122
Following the contextual lessons of the cited case of Miller v. California,123 a patently offensive utterance would come within the pale of the term obscenity should it appeal to the prurient interest of an average listener applying contemporary standards.
A cursory examination of the utterances complained of and the circumstances of the case reveal that to an average adult, the utterances “Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba!” may not constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a play on words. In the context they were used, they may not appeal to the prurient interests of an adult. The problem with the challenged statements is that they were uttered in a TV program that is rated “G” or for general viewership, and in a time slot that would likely reach even the eyes and ears of children.
While adults may have understood that the terms thus used were not to be taken literally, children could hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such language as that of petitioner in a television broadcast could corrupt impressionable young minds. The term “putang babae” means “a female prostitute,” a term wholly inappropriate for children, who could look it up in a dictionary and just get the literal meaning, missing the context within which it was used. Petitioner further used the terms, “ang gumagana lang doon yung ibaba,” making reference to the female sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon learning the meanings of the words used, young minds, without the guidance of an adult, may, from their end, view this kind of indecent speech as obscene, if they take these words literally and use them in their own speech or form their own ideas on the matter. In this particular case, where children had the opportunity to hear petitioner’s words, when speaking of the average person in the test for obscenity, we are speaking of the average child, not the average adult. The average child may not have the adult’s grasp of figures of speech, and may lack the understanding that language may be colorful, and words may convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female sexual organ and its function as such. In this sense, we find petitioner’s utterances obscene and not entitled to protection under the umbrella of freedom of speech.
Even if we concede that petitioner’s remarks are not obscene but merely indecent speech, still the Court rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements were made in a medium easily accessible to children. With respect to the young minds, said utterances are to be treated as unprotected speech.
No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is veritably one of first impression, it being the first time that indecent speech communicated via television and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal Communications Commission (FCC) v. Pacifica Foundation,124 a 1978 American landmark case cited in Eastern Broadcasting Corporation v. Dans, Jr.125 and Chavez v. Gonzales,126 is a rich source of persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component coming under the category of protected speech depending on the context within which it was made, irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized as unprotected, ergo, susceptible to restriction.
In FCC, seven of what were considered “filthy” words127 earlier recorded in a monologue by a satiric humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the language used as “patently offensive” and “indecent” under a prohibiting law, though not necessarily obscene. FCC added, however, that its declaratory order was issued in a “special factual context,” referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience. Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however, hastened to add that the monologue would be protected speech in other contexts, albeit it did not expound and identify a compelling state interest in putting FCC’s content-based regulatory action under scrutiny.
The Court in Chavez128 elucidated on the distinction between regulation or restriction of protected speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time, place, and manner of the expression under well-defined standards tailored to serve a compelling state interest, without restraint on the message of the expression. Courts subject content-based restraint to strict scrutiny.
With the view we take of the case, the suspension MTRCB imposed under the premises was, in one perspective, permissible restriction. We make this disposition against the backdrop of the following interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw Katigbak,129 easily “reaches every home where there is a set [and where] [c]hildren will likely be among the avid viewers of the programs therein shown”; second, the broadcast was aired at the time of the day when there was a reasonable risk that children might be in the audience; and third, petitioner uttered his speech on a “G” or “for general patronage” rated program. Under Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is “[s]uitable for all ages,” meaning that the “material for television x x x in the judgment of the BOARD, does not contain anything unsuitable for children and minors, and may be viewed without adult guidance or supervision.” The words petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is categorized as indecent, as in petitioner’s utterances on a general-patronage rated TV program, it may be readily proscribed as unprotected speech.
A view has been advanced that unprotected speech refers only to pornography,130 false or misleading advertisement,131 advocacy of imminent lawless action, and expression endangering national security. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule against censorship in the past, this particular case constitutes yet another exception, another instance of unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected speech, petitioner’s utterances can be subjected to restraint or regulation.
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his utterances must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent and such danger must be grave and imminent.132
Petitioner’s invocation of the clear and present danger doctrine, arguably the most permissive of speech tests, would not avail him any relief, for the application of said test is uncalled for under the premises. The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or spoken words may not be subject to prior restraint or subsequent punishment unless its expression creates a clear and present danger of bringing about a substantial evil which the government has the power to prohibit.133 Under the doctrine, freedom of speech and of press is susceptible of restriction when and only when necessary to prevent grave and immediate danger to interests which the government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for rebellion and other crimes involving the overthrow of government.134 It was originally designed to determine the latitude which should be given to speech that espouses anti-government action, or to have serious and substantial deleterious consequences on the security and public order of the community.135 The clear and present danger rule has been applied to this jurisdiction.136 As a standard of limitation on free speech and press, however, the clear and present danger test is not a magic incantation that wipes out all problems and does away with analysis and judgment in the testing of the legitimacy of claims to free speech and which compels a court to release a defendant from liability the moment the doctrine is invoked, absent proof of imminent catastrophic disaster.137 As we observed in Eastern Broadcasting Corporation, the clear and present danger test “does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums.”138
To be sure, the clear and present danger doctrine is not the only test which has been applied by the courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even other evils which do not clearly undermine national security. Since not all evils can be measured in terms of “proximity and degree” the Court, however, in several cases—Ayer Productions v. Capulong139 and Gonzales v. COMELEC,140 applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion that “where the legislation under constitutional attack interferes with the freedom of speech and assembly in a more generalized way and where the effect of the speech and assembly in terms of the probability of realization of a specific danger is not susceptible even of impressionistic calculation,”141 then the “balancing of interests” test can be applied.
The Court explained also in Gonzales v. COMELEC the “balancing of interests” test:
When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the two conflicting interests demands the greater protection under the particular circumstances presented. x x x We must, therefore, undertake the “delicate and difficult task x x x to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of rights x x x.
In enunciating standard premised on a judicial balancing of the conflicting social values and individual interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the basis for what has been called the “balancing-of-interests” test which has found application in more recent decisions of the U.S. Supreme Court. Briefly stated, the “balancing” test requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation.
x x x
Although the urgency of the public interest sought to be secured by Congressional power restricting the individual’s freedom, and the social importance and value of the freedom so restricted, “are to be judged in the concrete, not on the basis of abstractions,” a wide range of factors are necessarily relevant in ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few; (c) the value and importance of the public interest sought to be secured by the legislation––the reference here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by some other measure less restrictive of the protected freedom.142
This balancing of interest test, to borrow from Professor Kauper,143 rests on the theory that it is the court’s function in a case before it when it finds public interests served by legislation, on the one hand, and the free expression clause affected by it, on the other, to balance one against the other and arrive at a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that constitutional freedoms are not absolute, not even those stated in the free speech and expression clause, and that they may be abridged to some extent to serve appropriate and important interests.144 To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.
In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of his freedom of speech is ranged against the duty of the government to protect and promote the development and welfare of the youth.
After a careful examination of the factual milieu and the arguments raised by petitioner in support of his claim to free speech, the Court rules that the government’s interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioner’s prayer to continue as program host of Ang Dating Daan during the suspension period.
No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide protection to the youth against illegal or improper activities which may prejudice their general well-being. The Article on youth, approved on second reading by the Constitutional Commission, explained that the State shall “extend social protection to minors against all forms of neglect, cruelty, exploitation, immorality, and practices which may foster racial, religious or other forms of discrimination.”145
Indisputably, the State has a compelling interest in extending social protection to minors against all forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling interest in helping parents, through regulatory mechanisms, protect their children’s minds from exposure to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State, as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-being of the youth to better prepare them fulfill their role in the field of nation-building.146 In the same way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the development of moral character.147
Petitioner’s offensive and obscene language uttered in a television broadcast, without doubt, was easily accessible to the children. His statements could have exposed children to a language that is unacceptable in everyday use. As such, the welfare of children and the State’s mandate to protect and care for them, as parens patriae,148 constitute a substantial and compelling government interest in regulating petitioner’s utterances in TV broadcast as provided in PD 1986.
FCC explains the duty of the government to act as parens patriae to protect the children who, because of age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus:
[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohen’s written message, [“Fuck the Draft”], might have been incomprehensible to a first grader, Pacifica’s broadcast could have enlarged a child’s vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York that the government’s interest in the “well-being of its youth” and in supporting “parents’ claim to authority in their own household” justified the regulation of otherwise protected expression. The ease with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely will be among the avid viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young.149
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on the following considerations: (1) the use of television with its unique accessibility to children, as a medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the “G” rating of the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with approval the following excerpts from FCC:
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x x x The [FFC’s] decision rested entirely on a nuisance rationale under which context is all important. The concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The content of the program in which the language is used will affect the composition of the audience x x x. As Mr. Justice Sutherland wrote a ‘nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard.’ We simply hold that when the [FCC] finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation omitted.)
There can be no quibbling that the remarks in question petitioner uttered on prime-time television are blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the inherent prerogative, nay duty, to regulate and prevent should such action served and further compelling state interests. One who utters indecent, insulting, or offensive words on television when unsuspecting children are in the audience is, in the graphic language of FCC, a “pig in the parlor.” Public interest would be served if the “pig” is reasonably restrained or even removed from the “parlor.”
Ergo, petitioner’s offensive and indecent language can be subjected to prior restraint.
Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent punishment that, however, includes prior restraint, albeit indirectly.
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.
To clarify, statutes imposing prior restraints on speech are generally illegal and presumed unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies, television, and radio broadcast censorship in view of its access to numerous people, including the young who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or license before showing a motion picture or broadcasting a TV program. The Board can classify movies and television programs and can cancel permits for exhibition of films or television broadcast.
The power of MTRCB to regulate and even impose some prior restraint on radio and television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
We thus reject petitioner’s postulate that its religious program is per se beyond review by the respondent Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that the exercise of religious freedom can be regulated by the State when it will bring about the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment to the more overriding interest of public health, public morals, or public welfare. x x x
x x x
While the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:
“The use of the mails by private persons is in the nature of a privilege which can be regulated in order to avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of its character.”150
Under the decree a movie classification board is made the arbiter of what movies and television programs or parts of either are fit for public consumption. It decides what movies are “immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people,” and what “tend to incite subversion, insurrection, rebellion or sedition,” or “tend to undermine the faith and confidence of the people in their government and/or duly constituted authorities,” etc. Moreover, its decisions are executory unless stopped by a court.151
Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,152 it was held that the power of review and prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are required to get a permit before they air their television programs. Consequently, their right to enjoy their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga, government regulations through the MTRCB became “a necessary evil” with the government taking the role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters will interfere or co-opt each other’s signals. In this scheme, station owners and broadcasters in effect waived their right to the full enjoyment of their right to freedom of speech in radio and television programs and impliedly agreed that said right may be subject to prior restraint—denial of permit or subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its charter without running afoul of the free speech clause. And the imposition is separate and distinct from the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for petitioner’s exercise of his freedom of speech via television, but for the indecent contents of his utterances in a “G” rated TV program.
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of speech to regulation under PD 1986 and its IRR as television station owners, program producers, and hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry.
Neither can petitioner’s virtual inability to speak in his program during the period of suspension be plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, the suspension meted was simply part of the duties of the MTRCB in the enforcement and administration of the law which it is tasked to implement. Viewed in its proper context, the suspension sought to penalize past speech made on prime-time “G” rated TV program; it does not bar future speech of petitioner in other television programs; it is a permissible subsequent administrative sanction; it should not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,153 sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV episode without Board authorization in violation of Sec. 7 of PD 1986.
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a “G” rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, “the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.” The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts should be subject to some form of regulation, considering the ease with which they can be accessed, and violations of the regulations must be met with appropriate and proportional disciplinary action. The suspension of a violating television program would be a sufficient punishment and serve as a deterrent for those responsible. The prevention of the broadcast of petitioner’s television program is justified, and does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the changing times, and craft jurisprudence to reflect these times.
Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not provide for the range of imposable penalties that may be applied with respect to violations of the provisions of the law.
The argument is without merit.
In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not delegate its legislative power to the two other branches of the government, subject to the exception that local governments may over local affairs participate in its exercise. What cannot be delegated is the authority under the Constitution to make laws and to alter and repeal them; the test is the completeness of the statute in all its term and provisions when it leaves the hands of the legislature. To determine whether or not there is an undue delegation of legislative power, the inquiry must be directed to the scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it describes what job must be done, who is to do it, and what is the scope of his authority. For a complex economy, that may indeed be the only way in which the legislative process can go forward. A distinction has rightfully been made between delegation of power to make laws which necessarily involves a discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or discretion as to its execution to be exercised under and in pursuance of the law, to which no valid objection can be made. The Constitution is thus not to be regarded as denying the legislature the necessary resources of flexibility and practicability.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances under which the legislative command is to be effected. It is the criterion by which legislative purpose may be carried out. Thereafter, the executive or administrative office designated may in pursuance of the above guidelines promulgate supplemental rules and regulations.154
Based on the foregoing pronouncements and analyzing the law in question, petitioner’s protestation about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond the terms of the law.
Petitioner’s posture is flawed by the erroneous assumptions holding it together, the first assumption being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of power and functions, is charged with supervising and regulating, granting, denying, or canceling permits for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity materials to the end that no such objectionable pictures, programs, and materials shall be exhibited and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the MTRCB “to exercise such powers and functions as may be necessary or incidental to the attainment of the purpose and objectives of [the law].” As earlier explained, the investiture of supervisory, regulatory, and disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize the supervised or the regulated as may be proportionate to the offense committed, charged, and proved. As the Court said in Chavez v. National Housing Authority:
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does not specify the particular method to be followed or used by a government agency in the exercise of the power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its function.155
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and supervise the exhibition of TV programs carries with it or necessarily implies the authority to take effective punitive action for violation of the law sought to be enforced. And would it not be logical too to say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily includes the lesser power to suspend?
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides that agency with the power “[to] promulgate such rules and regulations as are necessary or proper for the implementation of this Act, and the accomplishment of its purposes and objectives x x x.” And Chapter XIII, Sec. 1 of the IRR providing:
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.––Without prejudice to the immediate filing of the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section 13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, television programs, and related promotional materials shall be penalized with suspension or cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties attached without prejudice to the power of the Board to amend it when the need arises. In the meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.)
This is, in the final analysis, no more than a measure to specifically implement the aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion pictures, television programs, and publicity materials “applying contemporary Filipino cultural values as standard,” and, from there, determine whether these audio and video materials “are objectionable for being immoral, indecent, contrary to law and/or good customs, [etc.] x x x” and apply the sanctions it deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a particular statute.156 The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an exception to the non-delegation of legislative powers.157 Administrative regulations or “subordinate legislation” calculated to promote the public interest are necessary because of “the growing complexity of modern life, the multiplication of the subjects of governmental regulations, and the increased difficulty of administering the law.”158 Allowing the MTRCB some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case may be, would be consistent with its mandate to effectively and efficiently regulate the movie and television industry.
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD 1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is the Board empowered to suspend the program host or even to prevent certain people from appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be considered to be within the decree’s penal or disciplinary operation. And when it exists, the reasonable doubt must be resolved in favor of the person charged with violating the statute and for whom the penalty is sought. Thus, the MTRCB’s decision in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent order issued pursuant to said decision must be modified. The suspension should cover only the television program on which petitioner appeared and uttered the offensive and obscene language, which sanction is what the law and the facts obtaining call for.
In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute permissiveness is the norm. Petitioner’s flawed belief that he may simply utter gutter profanity on television without adverse consequences, under the guise of free speech, does not lend itself to acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute freedoms. To say “any act that restrains speech should be greeted with furrowed brows” is not to say that any act that restrains or regulates speech or expression is per se invalid. This only recognizes the importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts that may restrain or regulate speech.
WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as follows:
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.
DISSENTING OPINION, Justice Antonio Carpio.
I dissent because the three-month suspension of petitioner’s TV program Ang Dating Daan constitutes an unconstitutional prior restraint on freedom of expression. The suspension prevents petitioner from even reciting the Lord’s Prayer, or even saying “hello” to viewers, in his TV program. The suspension bars the public airing of petitioner’s TV program regardless of whatever subject matter petitioner, or anyone else, wishes to discuss in petitioner’s TV program.
This is like suspending the publication of the Philippine Daily Inquirer for three months if its editorial describes a private person as “masahol pa sa putang babae.” This is also similar to suspending for three months the column of a newspaper columnist for using the expletive “putang ina mo” in his column. Such suspension is the censorship that the Constitution outlaws when it states that “[n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x.”159
The remedy of any aggrieved person is to file a libel or tort case after the utterance or publication of such cusswords. Our libels laws punish with fine, imprisonment or damages libelous language already uttered or published.160 Our tort laws also allow recovery of damages for tortious speech already uttered or published.161 However, both our libel and tort laws never impose a gag order on future expression because that will constitute prior restraint or censorship. Thus, our libel and tort laws do not allow the filing of a suit to enjoin or punish an expression that has yet to be uttered or written.
Indeed, there can never be a prior restraint on future expression, whether for fear of possible libelous utterance or publication, or as a punishment for past libelous utterance or publication. Otherwise, many of the radio and TV political programs will have to be banned for the frequent use of cusswords and other libelous language. Even politicians will have to be barred from addressing political rallies, or the rallies themselves will have to be banned, because politicians often use cusswords and other profanities during political rallies.
In the present case, the three-month preventive suspension of petitioner’s TV program bars petitioner from talking about the weather, or from talking about the birds and the bees, or even from talking about nothingness, in his TV program. The public airing of the entire TV program, regardless of its content, is totally suppressed for three months. The Government has no power under the Constitution to so brazenly suppress freedom of expression. This Court should never give its imprimatur to such a blatant violation of a fundamental constitutional right, which has been described as the one basic right that makes all other civil, human and political rights possible.
Prior Restraint on Expression
The well-settled rule is there can be no prior restraint on expression. This rule emanates from the constitutional command that “[n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x.” The history of freedom of expression has been a constant struggle against the censor’s prior restraint on expression. The leading American case of Near v. Minnesota162 teaches us that the primordial purpose of the Free Expression Clause is to prevent prior restraint on expression.
This well-settled rule, however, is subject to exceptions narrowly carved out by courts over time because of necessity. In this jurisdiction, we recognize only four exceptions, namely: pornography,163 false or misleading advertisement,164 advocacy of imminent lawless action,165 and danger to national security.166 Only in these instances may expression be subject to prior restraint. All other expression is not subject to prior restraint.
Although pornography, false or misleading advertisement, advocacy of imminent lawless action, and expression endangering national security may be subject to prior restraint, such prior restraint must hurdle a high barrier. First, such prior restraint is strongly presumed as unconstitutional. Second, the government bears a heavy burden of justifying such prior restraint.167
The test to determine the constitutionality of prior restraint on pornography, advocacy of imminent lawless action, and expression endangering national security is the clear and present danger test. The expression subject to prior restraint must present a clear and present danger of bringing about a substantive evil the State has a right and duty to prevent, and such danger must be grave and imminent.168
The power of Congress to impose prior restraint on false or misleading advertisements emanates from the constitutional provision that the “advertising industry is impressed with public interest, and shall be regulated by law for the protection of consumers and the promotion of the general welfare.”169
Prior restraint on expression may be either content-based or content-neutral. Content-based prior restraint is aimed at suppressing the message or idea contained in the expression. Courts subject content-based restraint to strict scrutiny. Content-neutral restraint on expression is restraint that regulates the time, place or manner of expression in public places without any restraint on the content of the expression. Courts subject content-neutral restraint to intermediate scrutiny.
Subsequent Punishment of Expression
The rule is also well-settled that expression cannot be subject to subsequent punishment. This rule also emanates from the constitutional command that “[n]o law shall be passed abridging the freedom of speech, of expression, or of the press x x x.” However, courts again have carved out narrow exceptions to this rule out of necessity.
The exceptions start with the four types of expression that may be subject to prior restraint. If a certain expression is subject to prior restraint, its utterance or publication in violation of the lawful restraint naturally subjects the person responsible to subsequent punishment. Thus, acts of pornography,170 false or misleading advertisement,171 advocacy of imminent lawless action,172 and endangering national security,173 are all punishable under the law.
Two other exceptions are defamation,174 which includes libel and slander, and tortious speech.175 Defamatory and tortious speech, per se, are not subject to prior restraint because by definition they do not constitute a clear and present danger to the State that is grave and imminent. Once defamatory or tortuous speech rises to the level of advocacy of imminent lawless action, then it may be subject to prior restraint because it is seditious176 but not because it is defamatory or tortious. Defamation and tortious conduct, however, may be subject to subsequent punishment, civilly or criminally.
Fighting words are not subject to subsequent punishment unless they are defamatory or tortious. Fighting words refer to profane or vulgar words that are likely to provoke a violent response from an audience. Profane or vulgar words like “Fuck the draft,” when not directed at any particular person, ethnic or religious group, are not subject to subsequent punishment.177 As aptly stated, “one man’s vulgarity may be another man’s lyric.”178
If profane or vulgar language like “Fuck the draft” is not subject to subsequent punishment, then with more reason it cannot be subject to prior restraint. Without a law punishing the actual utterance or publication of an expression, an expression cannot be subject to prior restraint because such expression is not unlawful or illegal.
Prior restraint is more deleterious to freedom of expression than subsequent punishment. Although subsequent punishment also deters expression, still the ideas are disseminated to the public. Prior restraint prevents even the dissemination of ideas to the public. Thus, the three-month suspension of petitioner’s TV program, being a prior restraint on expression, has far graver ramifications than any possible subsequent punishment of petitioner.
Three-Month Suspension is a Prohibited Prior Restraint
The three-month suspension of petitioner’s TV program is indisputably a prior restraint on expression. During the three-month suspension, petitioner cannot utter a single word in his TV program because the program is totally suppressed. A prior restraint may be justified only if the expression falls under any of the four types of expression that may be subject to prior restraint, namely, pornography, false or misleading advertisement, advocacy of imminent lawless action, and danger to national security.
Obviously, what petitioner uttered does not fall under any of the four types of expression that may be subject to prior restraint. What respondents assail is the following ranting of petitioner:
Lehitimong anak ng demonyo; sinungaling;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito…
No matter how offensive, profane or vulgar petitioner’s words may be, they do not constitute pornography, false or misleading advertisement, advocacy of imminent lawless action, or danger to national security. Thus, petitioner’s offensive, profane or vulgar language cannot be subject to prior restraint but may be subject to subsequent punishment if defamatory or tortious.
Any prior restraint is strongly presumed to be unconstitutional and the government bears a heavy burden of justifying such prior restraint.179 Such prior restraint must pass the clear and present danger test. The majority opinion, which imposes a prior restraint on expression, is totally bereft of any discussion that petitioner’s ranting poses a clear and present danger to the State that is grave and imminent. The respondents have not presented any credible justification to overcome the strong presumption of unconstitutionality accorded to the three-month suspension order.
The three-month suspension cannot be passed off merely as a preventive suspension that does not partake of a penalty. The actual and real effect of the three-month suspension is a prior restraint on expression in violation of a fundamental constitutional right. Even Congress cannot validly pass a law imposing a three-month preventive suspension on freedom of expression for offensive or vulgar language uttered in the past. Congress may punish such offensive or vulgar language, after their utterance, with damages, fine or imprisonment but Congress has no power to suspend or suppress the people’s right to speak freely because of such past utterances.
In short, Congress may pass a law punishing defamation or tortious speech but the punishment cannot be the suspension or suppression of the constitutional right to freedom of expression. Otherwise, such law would be “abridging the freedom of speech, of expression, or of the press.” If Congress cannot pass such a law, neither can respondent MTRCB promulgate a rule or a decision suspending for three months petitioner’s constitutional right to freedom of expression. And of course, neither can this Court give its stamp of imprimatur to such an unconstitutional MTRCB rule or decision.
1. Gonzales vs. Kalaw Katigbak, 137 SCRA 717
2. New York Times vs. U.S., 403 U.S. 713 (Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its validity)
3. Near vs. Minnesota, 283 U.S. 697
4. Times Film vs. City of Chicago, 365 U.S. 43
5. Freedman vs. Maryland, 380 U.S. 51
Clear and present danger and dangerous tendency rule (whether the words used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the State has the right to prevent)
7-a. Dangerous tendency rule (If the words uttered create a dangerous tendency which the State has the right to prevent, then such words are punishable)
1. Cabansag vs. Fernandez, 102 Phil. 152
2. Read again the Reyes and Ruiz cases, supra
3. Read again Zaldivar vs. Sandiganbayan, GR No. 7960-707& Zaldivar vs. Gonzales, GR No. 80578, February 1, 1989
8. The balancing-of-interest test (When a particular conduct is regulated in the interest of the public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the 2 conflicting interests demand greater protection under the circumstances presented.)
AYER PRODUCTION VS. JUDGE CAPULONG, JUAN PONCE ENRILE, ET AL., 160 SCRA 861
1. Lagunzad vs. Gonzales, 92 SCRA 476
2. Gitlow vs. New York, 268 U.S. 652, including the criticism on this test by Justice Holmes
3. See also Zaldivar case above
Section 5. No law shall be made respecting the establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.
Respondent is the Court interpreter of RTC Branch 253, Las Pinas City. Complainant requested for an investigation of respondent for living with a man not her husband while she was still legally married and having borne a child within this live-in arrangement. Estrada believes that Escritor is committing a grossly immoral act which tarnishes the image of the judiciary, thus she should not be allowed to remain employed therein as it might appear that the court condones her act.
Respondent admitted she started living with Luciano Quilapio, Jr. more than 20 years ago when her husband was still alive but living with another woman. She likewise admitted having a son with Quilapio but denies any liability for alleged grossly immoral conduct because:
She is a member of the Jehovah’s Witnesses and the Watch Tower Society;
That the conjugal arrangement was in conformity with their religious beliefs;
That the conjugal arrangement with Quilapio has the approval of her congregation.
Escritor likewise claimed that she had executed a “DECLARATION OF PLEDGING FAITHFULNESS” in accordance with her religion which allows members of the Jehovah’s witnesses who have been abandoned by their spouses to enter into marital relations. The Declaration thus makes the resulting union moral and binding within the congregation all over the world except in countries where divorce is allowed.
Escritor’s conjugal arrangement cannot be penalized as she has made out a case for exemption from the law based on her fundamental right to religion. The Court recognizes that state interests must be upheld in order that freedoms---including religious freedom---may be enjoyed. IN THE AREA OF RELIGIOUS EXERCISE AS A PREFERRED FREEDOM, HOWEVER, MAN STANDS ACCOUNTABLE TO AN AUTHORITY HIGHER THAN THE STATE, and so the state interest sought to be upheld must be so compelling that its violation will erode the very fabric of the state that will also protect the freedom. In the absence of a showing that the state interest exists, man must be allowed to subscribe to the Infinite.
Escritor was therefore held not administratively liable for grossly immoral conduct.
-any specific system of belief, worship or conduct, often involving a code of ethics and philosophy.
-A profession of faith to an active power that binds and elevates man to his Creator.
The existence of a Divine being is not necessarily inherent in religion; the Buddhists espouses a way of life without reference to an omnipotent God.
“Strong fences make good neighbors”. The idea is to delineate the boundaries between two institutions and prevent encroachments by one against the other.
The doctrine cuts both ways. It is not only the State that is prohibited from interfering in purely ecclesiastical affairs; the Church is likewise barred from meddling in purely secular matters.
It simply means “that the State cannot set up a church; nor pass laws which aids one religion; aid all religion, or prefer one religion over another nor force nor influence a person to go to or remain away from church against his will; or force him to profess a belief or disbelief; that the State cannot openly or secretly participate in the affairs of any religious organization or group and vice versa” (EVERSON VS. BOARD OF EDUCATION, 330 US 1)
This clause seeks to protect:
Voluntarism---must come into existence through the voluntary support of its members;
Insulation from political process—growth through voluntary support of its members will not take place if there is intervention from the State.
There will be no violation of the non-establishment clause if:
the statute has a secular legislative purpose;
its principal or primary effect is one that neither advances nor inhibits religion; and
it does not foster an excessive government entanglement with religion. (LEMON VS. KURTZMAN, 403 US 602)
The government is neutral and while protecting all, it prefers none and disparages none. “All” here applies both to the believer and the non-believer. FREEDOM OF RELIGION INCLUDES FREEDOM FROM RELIGION; THE RIGHT TO WORHIP INCLUDES THE RIGHT NOT TO WORSHIP.
SCHOOL PRAYER CASE (ENGEL VS. VITALE, 370 US 421)
It is unconstitutional for a school to require the students to recite a prayer composed by the Board of Regents at the starts of the day’s class. “It is no part of the business of government to compose official prayers for any group of the American People.”
SCHOOL DISTRICT OF ABINGTON VS. SCHEMPP, 374 US 203
It is unconstitutional for a law to require that at least 10 verses from the Holy Bible be read daily without comment because the same constitute a religious exercise which violates the non-establishment clause.
A law requiring the Board of Education to lend textbooks free of charge to all students from grades 7-12 of parochial school. This is constitutional since it is not the parochial school which gets the benefits but the parents.
The law authorizing reimbursement of transportation expenses of school children going to and from parochial schools is not violative of the non-establishment clause because it will be the parents who get benefits, not the parochial school.
RIGHT TO RELIGIOUS PROFESSION AND WORSHIP HAS TWO ASPECTS:
Freedom to believe; and
Freedom to act.
IN the first, such freedom is absolute. He may indulge in his own theories about life and death; worship any god he chooses, or none at all. He may not be punished even if he cannot prove what he believes.
In the second, if the individual externalizes what he believes, his freedom to do so becomes subject to the authority of the State. This is so because religious freedom can be exercised only with due regard to the rights of others. Example: “Go forth and multiply---cannot marry several times just to comply.
Avoiding military duties based on religious grounds is not allowed in the Philippines because of Section 4, Article II—The state is the protector of the people and it is the prime duty of the people to defend the State and in the fulfillment of this duty, the State may call all citizens to render military or civil service.
The act of the Illinois Supreme Court denying admission to the bar because of his refusal to take in good faith an oath to support the Constitution of the State of Illinois which requires mandatory service in the military in times of war was reversed by the US Supreme Court stating that this constitutes a violation of the 1st Amendment which guarantees religious freedom.
1. Religious freedom in relation to impairment of contracts and the right to join associations,36 SCRA 445
1. Aglipay vs. Ruiz, 64 Phil. 201
2. Garces vs. Estenzo, 104 SCRA 510
3. INK vs. Gironella, 106 SCRA 1
4. American Bible Society vs. City of Manila, 101 Phil. 398
5. Gerona vs. Sec. of Education, 106 Phil. 11
6. Pamil vs. Teleron, November 20, 1978
7. Victoriano vs. Elizalde Rope, 59 SCRA 54
German vs. Barangan, 135 SCRA 514
DEL CASTILLO, J.:
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009 (the First Assailed Resolution) and December 16, 2009 (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.
Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals (LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition for registration with the COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes, LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections. Ang Ladlad laid out its national membership base consisting of individual members and organizational supporters, and outlined its platform of governance.
On November 11, 2009, after admitting the petitioner’s evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and sexual attraction to, and intimate and sexual relations with, individuals of a different gender, of the same gender, or more than one gender.”
This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs.
The ANG LADLAD apparently advocates sexual immorality as indicated in the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and lesbians who are already of age’. It is further indicated in par. 24 of the Petition which waves for the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as ‘Any act, omission, establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or disregards decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order or public policy. Art 1409 of the Civil Code provides that ‘Contracts whose cause, object or purpose is contrary to law, morals, good customs, public order or public policy’ are inexistent and void from the beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes ‘Immoral doctrines, obscene publications and exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. — The penalty of prision mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;
When Ang Ladlad sought reconsideration to the COMELEC EN BANC, three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y. Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlad’s Motion for Reconsideration (Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion, upheld the First Assailed Resolution, stating that:
Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-representation and marginalization, it cannot be said that Ladlad’s expressed sexual orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives.
If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a tool for the realization of aspirations of marginalized individuals whose interests are also the nation’s – only that their interests have not been brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system will remain just that.
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s is elevated, there can be no denying that Ladlad constituencies are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike.
The COMELEC likewise used the Holy Bible and the Koran in denying Ladlad’s application.
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang Ladlad’s application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.
On January 6, 2010, the Office of the Solicitor General (OSG was ordered to file its Comment on behalf of COMELEC not later than 12:00 noon of January 11, 2010. Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16, 2010 to Comment. Somewhat surprisingly, the OSG later filed a Comment in support of petitioner’s application. Thus, in order to give COMELEC the opportunity to fully ventilate its position, we required it to file its own comment. The COMELEC, through its Law Department, filed its Comment on February 2, 2010.
In the meantime, due to the urgency of the petition, a temporary restraining order was issued on January 12, 2010, effective immediately and continuing until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions.
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its Comment-in-Intervention. The CHR opined that the denial of Ang Ladlad’s petition on moral grounds violated the standards and principles of the Constitution, the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the CHR’s motion to intervene.
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No. 7941
The COMELEC denied Ang Ladlad’s application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA 7941, nor is it associated with or related to any of the sectors in the enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections, “the enumeration of marginalized and under-represented sectors is not exclusive”. The crucial element is not whether a sector is specifically enumerated, but whether a particular organization complies with the requirements of the Constitution and RA 7941.
A cursory perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. Ang Ladlad also represented itself to be “a national LGBT umbrella organization with affiliates around the Philippines composed of the following LGBT networks:”
Abra Gay Association
Aklan Butterfly Brigade (ABB) – Aklan
Albay Gay Association
Arts Center of Cabanatuan City – Nueva Ecija
Boys Legion – Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
Cebu Pride – Cebu City
Circle of Friends
Dipolog Gay Association – Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro Manila
Gay Men’s Support Group (GMSG) – Metro Manila
Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
Iloilo City Gay Association – Iloilo City
Kabulig Writer’s Group – Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA – Baguio City
Marikina Gay Association – Metro Manila
Metropolitan Community Church (MCC) – Metro Manila
Naga City Gay Association – Naga City
Order of St. Aelred (OSAe) – Metro Manila
Rainbow Rights Project (R-Rights), Inc. – Metro Manila
San Jose del Monte Gay Association – Bulacan
Sining Kayumanggi Royal Family – Rizal
Society of Transexual Women of the Philippines (STRAP) – Metro Manila
Soul Jive – Antipolo, Rizal
The Link – Davao City
Tayabas Gay Association – Quezon
Women’s Bisexual Network – Metro Manila
Zamboanga Gay Association – Zamboanga City
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside from COMELEC’s moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not qualified to register as a party-list organization un