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G.R. No. 81561             January 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee

vs.
ANDRE MARTI, accused-appellant.

The Solicitor General for plaintiff-appellee.

Reynaldo B. Tatoy and Abelardo E. Rogacion for accused-appellant.

BIDIN, J.:

This is an appeal from a decision * rendered by the Special Criminal Court of Manila

(Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of
Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i),
Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous
Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his
common-law wife, Shirley Reyes, went to the booth of the "Manila Packing
and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila,
carrying with them four (4) gift wrapped packages. Anita Reyes (the
proprietress and no relation to Shirley Reyes) attended to them. The
appellant informed Anita Reyes that he was sending the packages to a friend
in Zurich, Switzerland. Appellant filled up the contract necessary for the
transaction, writing therein his name, passport number, the date of shipment
and the name and address of the consignee, namely, "WALTER FIERZ,
Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the
packages. Appellant, however, refused, assuring her that the packages
simply contained books, cigars, and gloves and were gifts to his friend in
Zurich. In view of appellant's representation, Anita Reyes no longer insisted
on inspecting the packages. The four (4) packages were then placed inside a
brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed
at the bottom and on top of the packages before the box was sealed with
masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of

Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following
standard operating procedure, opened the boxes for final inspection. When
he opened appellant's box, a peculiar odor emitted therefrom. His curiousity
aroused, he squeezed one of the bundles allegedly containing gloves and felt
dried leaves inside. Opening one of the bundles, he pulled out a cellophane
wrapper protruding from the opening of one of the gloves. He made an
opening on one of the cellophane wrappers and took several grams of the
contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).
 Page 2 of 192

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and
requesting a laboratory examination of the samples he extracted from the
cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics

Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in
the afternoon of that date, i.e., August 14, 1987. He was interviewed by the
Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the
shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents,
and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30,
October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed
and, in the presence of the NBI agents, opened the top flaps, removed the
styro-foam and took out the cellophane wrappers from inside the
gloves. Dried marijuana leaves were found to have been contained inside the
cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job
Reyes. He discovered that the package contained bricks or cake-like dried
marijuana leaves. The package which allegedly contained tabacalera cigars
was also opened. It turned out that dried marijuana leaves were neatly
stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the
contents thereof, after signing a "Receipt" acknowledging custody of the said
effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's
stated address in his passport being the Manila Central Post Office, the agents
requested assistance from the latter's Chief Security. On August 27, 1987,
appellant, while claiming his mail at the Central Post Office, was invited by the NBI
to shed light on the attempted shipment of the seized dried leaves. On the same
day the Narcotics Section of the NBI submitted the dried leaves to the Forensic
Chemistry Section for laboratory examination. It turned out that the dried leaves
were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief,
pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425,

otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY

SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.
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THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE

UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE
UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION

OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS
POSSESSION (Appellant's Brief, p. 1; Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been
obtained in violation of his constitutional rights against unreasonable search and
seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and
therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2),
Art. III).

Sections 2 and 3, Article III of the Constitution provide:

Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Sec. 3. (1) 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.

(2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search

and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures shall not be violated, and
no warrants shall issue but upon probable cause, 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. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United
States Constitution. As such, the Court may turn to the pronouncements of the
United States Federal Supreme Court and State Appellate Courts which are
considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal
Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court,
in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence
 Page 4 of 192

obtained by virtue of a defective search and seizure warrant, abandoning in the

process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948])
wherein the admissibility of evidence was not affected by the illegality of its seizure.
The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is
carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has
struck down the admissibility of evidence obtained in violation of the constitutional
safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v.
Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v.
Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See
also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so
obtained were invariably procured by the State acting through the medium of its
law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence
sought to be excluded was primarily discovered and obtained by a private person,
acting in a private capacity and without the intervention and participation of State
authorities. Under the circumstances, can accused/appellant validly claim that his
constitutional right against unreasonable searches and seizure has been violated?
Stated otherwise, may an act of a private individual, allegedly in violation of
appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties

guaranteed by the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

1. This constitutional right (against unreasonable search and seizure) refers

to the immunity of one's person, whether citizen or alien, from interference
by government, included in which is his residence, his papers, and other
possessions. . . .

. . . There the state, however powerful, does not as such have the access
except under the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain from
any invasion of his dwelling and to respect the privacies of his life. . . . (Cf.
Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116
US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court
there in construing the right against unreasonable searches and seizures declared
that:

(t)he Fourth Amendment gives protection against unlawful searches and

seizures, and as shown in previous cases, its protection applies to
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governmental action. Its origin and history clearly show that it was intended
as a restraint upon the activities of sovereign authority, and was not intended
to be a limitation upon other than governmental agencies; as against such
authority it was the purpose of the Fourth Amendment to secure the citizen in
the right of unmolested occupation of his dwelling and the possession of his
property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a
parking attendant who searched the automobile to ascertain the owner thereof
found marijuana instead, without the knowledge and participation of police
authorities, was declared admissible in prosecution for illegal possession of
narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the
search and seizure clauses are restraints upon the government and its agents, not
upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr,
892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317
P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there
said:

The search of which appellant complains, however, was made by a private

citizen — the owner of a motel in which appellant stayed overnight and in
which he left behind a travel case containing the evidence*** complained of.
The search was made on the motel owner's own initiative. Because of it, he
became suspicious, called the local police, informed them of the bag's
contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion
of evidence obtained through a search by a private citizen. Rather, the
amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government
without the latter transgressing appellant's rights against unreasonable search and
seizure, the Court sees no cogent reason why the same should not be admitted
against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal
search and seizure of the evidence later on used in prosecuting the case which
resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In

both instances, the argument stands to fall on its own weight, or the lack of it.

First, the factual considerations of the case at bar readily foreclose the proposition
that NBI agents conducted an illegal search and seizure of the prohibited
merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the
proprietor of the forwarding agency, who made search/inspection of the packages.
 Page 6 of 192

Said inspection was reasonable and a standard operating procedure on the part of
Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of
Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8;
Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he
took samples of the same to the NBI and later summoned the agents to his place of
business. Thereafter, he opened the parcel containing the rest of the shipment and
entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents
made no search and seizure, much less an illegal one, contrary to the postulate of
accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search
effected by Reyes into a warrantless search and seizure proscribed by the
Constitution. Merely to observe and look at that which is in plain sight is not a
search. Having observed that which is open, where no trespass has been committed
in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the
contraband articles are identified without a trespass on the part of the arresting
officer, there is not the search that is prohibited by the constitution (US v. Lee 274
US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726
[1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the
property was taken into custody of the police at the specific request of the manager
and where the search was initially made by the owner there is no unreasonable
search and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked
against acts of private individuals finds support in the deliberations of the
Constitutional Commission. True, the liberties guaranteed by the fundamental law of
the land must always be subject to protection. But protection against whom?
Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the
query which he himself posed, as follows:

First, the general reflections. The protection of fundamental liberties in the

essence of constitutional democracy. Protection against whom? Protection
against the state. The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation between individuals,
between a private individual and other individuals. What the Bill of Rights
does is to declare some forbidden zones in the private sphere inaccessible to
any power holder. (Sponsorship Speech of Commissioner Bernas , Record of
the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis
supplied)

The constitutional proscription against unlawful searches and seizures therefore

applies as a restraint directed only against the government and its agencies tasked
with the enforcement of the law. Thus, it could only be invoked against the State to
whom the restraint against arbitrary and unreasonable exercise of power is
imposed.
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If the search is made upon the request of law enforcers, a warrant must generally
be first secured if it is to pass the test of constitutionality. However, if the search is
made at the behest or initiative of the proprietor of a private establishment for its
own and private purposes, as in the case at bar, and without the intervention of
police authorities, the right against unreasonable search and seizure cannot be
invoked for only the act of private individual, not the law enforcers, is involved. In
sum, the protection against unreasonable searches and seizures cannot be
extended to acts committed by private individuals so as to bring it within the ambit
of alleged unlawful intrusion by the government.

Appellant argues, however, that since the provisions of the 1935 Constitution has
been modified by the present phraseology found in the 1987 Charter, expressly
declaring as inadmissible any evidence obtained in violation of the constitutional
prohibition against illegal search and seizure, it matters not whether the evidence
was procured by police authorities or private individuals (Appellant's Brief, p.
8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the
principles of the government and fundamental liberties of the people, does not
govern relationships between individuals. Moreover, it must be emphasized that the
modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the
issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of
the judge in the issuance thereof (See Soliven v. Makasiar, 167 SCRA 393 [1988];
Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The
modifications introduced deviate in no manner as to whom the restriction or
inhibition against unreasonable search and seizure is directed against. The restraint
stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be
invoked against the State by an individual unjustly traduced by the exercise of
sovereign authority. To agree with appellant that an act of a private individual in
violation of the Bill of Rights should also be construed as an act of the State would
result in serious legal complications and an absurd interpretation of the
constitution.

Similarly, the admissibility of the evidence procured by an individual effected

through private seizure equally applies, in pari passu, to the alleged violation, non-
governmental as it is, of appellant's constitutional rights to privacy and
communication.

2. In his second assignment of error, appellant contends that the lower court erred
in convicting him despite the undisputed fact that his rights under the constitution
while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of
the case and found nothing to indicate, as an "undisputed fact", that appellant was
not informed of his constitutional rights or that he gave statements without the
assistance of counsel. The law enforcers testified that accused/appellant was
informed of his constitutional rights. It is presumed that they have regularly
performed their duties (See. 5(m), Rule 131) and their testimonies should be given
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full faith and credence, there being no evidence to the contrary. What is clear from
the records, on the other hand, is that appellant refused to give any written
statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the
accused here, did you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused
availed of his constitutional right not to give any written statement, sir. (TSN,
October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the
defense on cross-examination. As borne out by the records, neither was there any
proof by the defense that appellant gave uncounselled confession while being
investigated. What is more, we have examined the assailed judgment of the trial
court and nowhere is there any reference made to the testimony of appellant while
under custodial investigation which was utilized in the finding of conviction.
Appellant's second assignment of error is therefore misplaced.

3. Coming now to appellant's third assignment of error, appellant would like us to

believe that he was not the owner of the packages which contained prohibited
drugs but rather a certain Michael, a German national, whom appellant met in a pub
along Ermita, Manila: that in the course of their 30-minute conversation, Michael
requested him to ship the packages and gave him P2,000.00 for the cost of the
shipment since the German national was about to leave the country the next day
(October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as

incredulous, self-serving and contrary to human experience. It can easily be
fabricated. An acquaintance with a complete stranger struck in half an hour could
not have pushed a man to entrust the shipment of four (4) parcels and shell out
P2,000.00 for the purpose and for appellant to readily accede to comply with the
undertaking without first ascertaining its contents. As stated by the trial court, "(a)
person would not simply entrust contraband and of considerable value at that as
the marijuana flowering tops, and the cash amount of P2,000.00 to a complete
stranger like the Accused. The Accused, on the other hand, would not simply accept
such undertaking to take custody of the packages and ship the same from a
complete stranger on his mere say-so" (Decision, p. 19, Rollo, p. 91). As to why he
readily agreed to do the errand, appellant failed to explain. Denials, if
unsubstantiated by clear and convincing evidence, are negative self-serving
evidence which deserve no weight in law and cannot be given greater evidentiary
weight than the testimony of credible witnesses who testify on affirmative matters
(People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).
 Page 9 of 192

Appellant's bare denial is even made more suspect considering that, as per records
of the Interpol, he was previously convicted of possession of hashish by the Kleve
Court in the Federal Republic of Germany on January 1, 1982 and that the
consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was
likewise convicted for drug abuse and is just about an hour's drive from appellant's
residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p.
244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible
witness, but it must be credible in itself such as the common experience and
observation of mankind can approve as probable under the circumstances (People
v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see
also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]);
Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not
even bother to ask Michael's full name, his complete address or passport number.
Furthermore, if indeed, the German national was the owner of the merchandise,
appellant should have so indicated in the contract of shipment (Exh. "B", Original
Records, p. 40). On the contrary, appellant signed the contract as the owner and
shipper thereof giving more weight to the presumption that things which a person
possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule
131). At this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the
assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable

doubt of the crime charged is hereby AFFIRMED. No costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr. and Feliciano, JJ., concur.

Footnotes

* Penned by Judge Romeo J. Callejo.

** It reads: "The right of the people to be secure in their persons, houses,
papers and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized."

*** Forged checks.

G.R. No. 95322 March 1, 1993

 Page 10 of 192

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PABLITO DOMASIAN AND DR. SAMSON TAN, accused-appellant.

The Solicitor General for plaintiff-appellee.

Silvestre L. Tagarao for appellant Pablito Domasian.

Lino M. Patajo for appellant Dr. Samson Tan.

CRUZ, J.:

The boy was detained for only about three hours and was released even before his
parents received the ransom note. But it spawned a protracted trial spanning all of
8 years and led to the conviction of the two accused. 1

The victim was Enrico Paulo Agra, who was 8 years old at the time of the incident in
question. The accused were Pablito Domasian and Samson Tan, the latter then a
resident physician in the hospital owned by Enrico's parents. They were represented
by separate lawyers at the trial and filed separate briefs in this appeal.

The evidence of the prosecution showed that in the morning of March 11, 1982,
while Enrico was walking with a classmate along Roque street in the poblacion of
Lopez, Quezon, he was approached by a man who requested his assistance in
getting his father's signature on a medical certificate. Enrico agreed to help and
rode with the man in a tricycle to Calantipayan, where he waited outside while the
man went into a building to get the certificate. Enrico became apprehensive and
started to cry when, instead of taking him to the hospital, the man flagged a
minibus and forced him inside, holding him firmly all the while. The man told him to
stop crying or he would not be returned to his father. When they alighted at
Gumaca, they took another tricycle, this time bound for the municipal building from
where they walked to the market. Here the man talked to a jeepney driver and
handed him an envelope addressed to Dr. Enrique Agra, the boy's father. The two
then boarded a tricycle headed for San Vicente, with the man still firmly holding
Enrico, who continued crying. This aroused the suspicion of the driver, Alexander
Grate, who asked the man about his relationship with the boy. The man said he and
the boy were brothers, making Grate doubly suspicious because of the physical
differences between the two and the wide gap between their ages. Grate
immediately reported the matter to two barangay tanods when his passengers
alighted from the tricycle. Grate and the tanods went after the two and saw the
man dragging the boy. Noticing that they were being pursued, the man told Enrico
to run fast as their pursuers might behead them. Somehow, the man managed to
escape, leaving Enrico behind. Enrico was on his way home in a passenger jeep
when he met his parents, who were riding in the hospital ambulance and already
looking for him.2

At about 1:45 in the afternoon of the same day, after Enrico's return, Agra received
an envelope containing a ransom note. The note demanded P1 million for the
release of Enrico and warned that otherwise the boy would be killed. Agra thought
 Page 11 of 192

the handwriting in the note was familiar. After comparing it with some records in
the hospital, he gave the note to the police, which referred it to the NBI for
examination.3

The test showed that it bad been written by Dr. Samson Tan. 4 On the other hand,
Enrico was shown a folder of pictures in the police station so be could identify the
man who had detained him, and he pointed to the picture of Pablito
Domasian.5 Domasian and Tan were subsequently charged with the crime of
kidnapping with serious illegal detention in the Regional Trial Court of Quezon. 6

The defense of both accused was denial and alibi. Domasian claimed that at the
time of the incident he was watching a mahjong game in a friend's house and later
went to an optical clinic with his wife for the refraction of his eyeglasses. 7 Dr. Tan
for his part said he was in Manila.8

After trial Judge Enrico A. Lanzanas found both accused guilty as charged and
sentenced them to suffer the penalty of reclusion perpetua  and all accessory
penalties. They were also required to pay P200,000.00 to Dr. and Mrs. Enrique Agra
as actual and moral damages and attorney's fees.

In the present appeal, the accused-appellants reiterate their denial of any

participation in the incident in question. They belittle the credibility of the
prosecution witnesses and submit that their own witnesses are more believable.
Tan specifically challenges the findings of the NBI and offers anew the opposite
findings of the PC/INP showing that he was not the writer of the ransom note. He
maintains that in any case, the crime alleged is not kidnapping with serious illegal
detention as no detention in an enclosure was involved. If at all, it should be
denominated and punished only as grave coercion. Finally, both Domasian and Tan
insist that there is no basis for the finding of a conspiracy between them to make
them criminally liable in equal degree.

First, on the credibility of the witnesses. This is assessed in the first instance by the
trial judge, whose finding in this regard is received with much respect by the
appellate court because of his opportunity to directly observe the demeanor of the
witnesses on the stand.

In the case at bar, Judge Lanzanas relied heavily on the testimony of the victim
himself, who positively identified Domasian as the person who detained him for
three hours. The trial court observed that the boy was "straight-forward, natural and
consistent" in the narration of his detention. The boy's naivete made him even more
believable. Tirso Ferreras, Enrico's classmate and also his age, pointed to Domasian
with equal certainty, as the man who approached Enrico when they were walking
together that morning of March 11, 1982. Grate, the tricycle driver who suspected
Enrico's companion and later chased him, was also positive in identifying Domasian.
All these three witnesses did not know Domasian until that same morning and could
have no ill motive in testifying against him. By contrast, Eugenia Agtay, who
testified for the defense, can hardly be considered a disinterested witness because
she admitted she had known Domasian for 3 years.
 Page 12 of 192

The defense asks why Domasian openly took Enrico to several public places if the
intention was to kidnap and detain him. That is for Domasian himself to answer. We
do no have to probe the reasons for the irrational conduct of an accused. The more
important question, as we see it, is why Domasian detained Enrico in the first place
after pretending he needed the boy's help. That is also for Domasian to explain. As
for Enrico's alleged willingness to go with Domasian, this was manifested only at the
beginning, when he believed the man sincerely needed his assistance. But he was
soon disabused. His initial confidence gave way to fear when Domasian, after taking
him so far away from the hospital where he was going, restrained and threatened
him if he did not stop crying.

Domasian's alibi cannot stand against his positive identification by Enrico, Grate
and Ferreras, let alone the contradictions made by his corroborating witness, Dr.
Irene Argosino, regarding the time he was in the optical clinic and the manner of his
payment for the refraction.9 Tan's alibi is not convincing either. The circumstance
that he may have been in Manila at the time of the incident does not prove that he
could not have written the ransom note except at that time.

Concerning the note, Rule 132, Section 22, of the Rules of Court provides as follows:

The handwriting of a person may be proved by any witness who

believes it to be the handwriting of such person and has seen the
person write, or has seen writing purporting to be his upon which the
witness has acted or been charged and has thus acquired knowledge
of the handwriting of such person. Evidence respecting the handwriting
may also be given by a comparison, made by the witness or the court
with writings admitted or treated as genuine by the party against
whom the evidence is offered or proved to be genuine to the
satisfaction of the judge.

Two expert witnesses were presented in the case at bar, one from the NBI, 10 who
opined that the ransom note and the standard documents were written by one and
the same person, and another from the PC/INP 11 who expressed a contrary
conclusion. The trial court chose to believe the NBI expert because his examination
and analysis "was more comprehensive than the one conducted by the PC/INP
handwriting expert, who virtually limited his reliance on the perceived similarities
and dissimilarities in the pattern and style of the writing, thereby disregarding the
basic principle in handwriting identification that it is not the form alone nor anyone
feature but rather a combination of all the qualities that identify."

We have held that the value of the opinion of a handwriting expert depends not
upon his mere statements of whether a writing is genuine or false, but upon the
assistance he may afford in pointing out distinguishing marks, characteristics and
discrepancies in and between genuine and false specimens of writing which would
ordinarily escape notice or detection from an unpracticed observer. 12 The test of
genuineness ought to be the resemblance, not the formation of letters in some
other specimens but to the general character of writing, which is impressed on it as
the involuntary and unconscious result
of constitution, habit or other permanent course, and is, therefore itself
permanent. 13
 Page 13 of 192

Presented with the conflicting opinions of the witnesses in the case at bar, the Court
feels that the scales should tilt in favor of the prosecution. Significantly, the NBI
opinion was bolstered by the testimony of Agra, who believed that the ransom note
was written by Tan, with whose handwriting he was familiar because they had been
working in the hospital for four years and he had seen that handwriting every day in
Tan's prescriptions and daily reports. 14

Cesar v. Sandiganbayan  15 is not applicable because that case involved a forgery or
the deliberate imitation of another person's signature. In the case before us, there
was in fact an effort to disguise  the ransom note writer's penmanship to prevent his
discovery.

As for the nature of the crime committed, Article 267 of the Revised Penal Code
provides as follows:

Art. 267. Kidnapping and serious illegal detention. — Any private

individual who shall kidnap or detain another, or in any manner deprive
him of his liberty, shall suffer the penalty of reclusion perpetua to
death:

1. If the kidnapping or detention shall have lasted more than five days.

2. If it shall have been committed simulating public authority.

3. If any serious physical injuries shall have been inflicted upon the
person kidnapped or detained; of if threats to kill him shall have been
made.

4. If the person kidnapped or detained shall be a minor, female or a

public officer.

The penalty shall be death where the kidnapping or detention was

committed for the purpose of extorting ransom from the victim or any
other person; even if none of the circumstances above-mentioned
were present in the commission of the offense.

Contrary to Tan's submission, this crime may consist not only in placing a person in
an enclosure but also in detaining him or depriving him in any manner of his
liberty. 16 In the case at bar, it is noted that although the victim was not confined in
an enclosure, he was deprived of his liberty when Domasian restrained him from
going home and dragged him first into the minibus that took them to the municipal
building in Gumaca, thence to the market and then into the tricycle bound for San
Vicente. The detention was committed by Domasian, who was a private individual,
and Enrico was a minor at that time. The crime clearly comes under Par. 4 of the
above-quoted article.

Tan claims that the lower court erred in not finding that the sending of the ransom
note was an impossible crime which he says is not punishable. His reason is that the
second paragraph of Article 4 of the Revised Penal Code provides that criminal
 Page 14 of 192

liability shall be incurred "by any person performing an act which would be an
offense against persons or property, were it not for the inherent impossibility of its
accomplishment or on account of the employment of inadequate or ineffectual
means." As the crime alleged is not against persons or property but against liberty,
he argues that it is not covered by the said provision.

Tan conveniently forgets the first paragraphs of the same article, which clearly
applies to him, thus:

Art. 4. Criminal liability. — Criminal liability shall be incurred:

1. By any person committing a felony (delito) although the wrongful

act done be different from that which he intended.

x x x           x x x          x x x

Even before the ransom note was received, the crime of kidnapping with serious
illegal detention had already been committed. The act cannot be considered an
impossible crime because there was no inherent improbability of its
accomplishment or the employment of inadequate or ineffective means. The
delivery of the ransom note after the rescue of the victim did not extinguish the
offense, which had already been consummated when Domasian deprived Enrico of
his liberty. The sending of the ransom note would have had the effect only of
increasing the penalty to death under the last paragraph of Article 267 although this
too would not have been possible under the new Constitution.

On the issue of conspiracy, we note first that it exists when two or more persons
come to an agreement concerning the commission of a felony and decide to commit
it, whether they act through physical volition of one or all, proceeding severally or
collectively. 17

It is settled that conspiracy can be inferred from and proven by the acts of the
accused themselves when said acts point to a joint purpose and design, concerted
action and community of interests. 18 In the instant case, the trial court correctly
held that conspiracy was proved by the act of Domasian in detaining Enrico; the
writing of the ransom note by Tan; and its delivery by Domasian to Agra. These acts
were complementary to each other and geared toward the attainment of the
common ultimate objective, viz., to extort the ransom of P1 million in exchange for
Enrico's life.

The motive for the offense is not difficult to discover. According to Agra, Tan
approached him six days before the incident happened and requested a loan of at
least P15,000.00. Agra said he had no funds at that moment and Tan did not believe
him, angrily saying that Agra could even raise a million pesos if he really wanted to
help. 19 The refusal obviously triggered the plan to kidnap Enrico and demand P1
million for his release.

The constitutional issues raised by Domasian do not affect the decision in this case.
His claim that he was arrested without warrant and then tortured and
 Page 15 of 192

held incommunicado to extort a confession from him does not vitiate his conviction.
He never gave any confession. As for the allegation that the seizure of the
documents used for comparison with the ransom note was made without a search
warrant, it suffices to say that such documents were taken by Agra himself and not
by the NBI agents or other police authorities. We held in the case of People vs.
Andre Marti, 20 that the Bill of Rights cannot be invoked against acts of private
individuals, being directed only against the government and its law-enforcement
agencies and limitation on official action.

We are satisfied that Tan and Domasian, in conspiracy with each other, committed
the crime of kidnapping as defined and penalized under Article 267 of the Revised
Penal Code and so deserve the penalty imposed upon them by the trial court.

WHEREFORE, the appealed decision is AFFIRMED, with costs against the accused-
appellants.

Let a copy of this decision be sent to the Commission on Human Rights for
investigation of the alleged violation of the constitutional rights of Pablito
Domasian.

SO ORDERED.

Griño-Aquino, Bellosillo and Quiason, JJ., concur.

G.R. No. L-31195 June 5, 1973

PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION, NICANOR

TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS MARIANO DE LEON,
ASENCION PACIENTE, BONIFACIO VACUNA, BENJAMIN PAGCU and RODULFO
MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF INDUSTRIAL
RELATIONS, respondents.

L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.

Demetrio B. Salem & Associates for private respondent.

MAKASIAR, J.:
 Page 16 of 192

The petitioner Philippine Blooming Mills Employees Organization (hereinafter

referred to as PBMEO) is a legitimate labor union composed of the employees of the
respondent Philippine Blooming Mills Co., Inc., and petitioners Nicanor Tolentino,
Florencio Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio
Vacuna, Benjamin Pagcu and Rodulfo Munsod are officers and members of the
petitioner Union.

Petitioners claim that on March 1, 1969, they decided to stage a mass

demonstration at Malacañang on March 4, 1969, in protest against alleged abuses
of the Pasig police, to be participated in by the workers in the first shift (from 6 A.M.
to 2 P.M.) as well as those in the regular second and third shifts (from 7 A.M. to 4
P.M. and from 8 A.M. to 5 P.M., respectively); and that they informed the respondent
Company of their proposed demonstration.

The questioned order dated September 15, 1969, of Associate Judge Joaquin M.
Salvador of the respondent Court reproduced the following stipulation of facts of the
parties — parties —

3. That on March 2, 1969 complainant company learned of the

projected mass demonstration at Malacañang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM-2:00 PM) workers as well as those working in
the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at

about 11:00 A.M. at the Company's canteen, and those present were:
for the Company: (1) Mr. Arthur L. Ang (2) Atty. S. de Leon, Jr., (3) and
all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union
has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel

manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason, the
Company, thru Atty. C.S. de Leon warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly , the
officers present who are the organizers of the demonstration, who shall
 Page 17 of 192

fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was

convoked Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodolfo Munsod, Benjamin
Pagcu and Florencio Padrigano. In this afternoon meeting of March 3,
1969, Company reiterated and appealed to the PBMEO representatives
that while all workers may join the Malacañang demonstration, the
workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work;
and thus utilize the workers in the 2nd and 3rd shifts in order not to
violate the provisions of the CBA, particularly Article XXIV: NO
LOCKOUT — NO STRIKE'. All those who will not follow this warning of
the Company shall be dismiss; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers
of the mass demonstration. The union panel countered that it was
rather too late to change their plans inasmuch as the Malacañang
demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a

cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)

Because the petitioners and their members numbering about 400 proceeded with
the demonstration despite the pleas of the respondent Company that the first shift
workers should not be required to participate in the demonstration and that the
workers in the second and third shifts should be utilized for the demonstration from
6 A.M. to 2 P.M. on March 4, 1969, respondent Company prior notice of the mass
demonstration on March 4, 1969, with the respondent Court, a charge against
petitioners and other employees who composed the first shift, charging them with a
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as Section 15,
all of Republic Act No. 875, and of the CBA providing for 'No Strike and No Lockout.'
" (Annex "A", pp. 19-20, rec.). The charge was accompanied by the joint affidavit of
Arthur L. Ang and Cesareo de Leon, Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a
corresponding complaint was filed, dated April 18, 1969, by Acting Chief Prosecutor
Antonio T. Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)

In their answer, dated May 9, 1969, herein petitioners claim that they did not violate
the existing CBA because they gave the respondent Company prior notice of the
mass demonstration on March 4, 1969; that the said mass demonstration was a
valid exercise of their constitutional freedom of speech against the alleged abuses
of some Pasig policemen; and that their mass demonstration was not a declaration
of strike because it was not directed against the respondent firm (Annex "D", pp.
31-34, rec.)
 Page 18 of 192

After considering the aforementioned stipulation of facts submitted by the parties,

Judge Joaquin M. Salvador, in an order dated September 15, 1969, found herein
petitioner PBMEO guilty of bargaining in bad faith and herein petitioners Florencio
Padrigano, Rufino Roxas, Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Munsod as directly responsible for
perpetrating the said unfair labor practice and were, as a consequence, considered
to have lost their status as employees of the respondent Company (Annex "F", pp.
42-56, rec.)

Herein petitioners claim that they received on September 23, 1969, the aforesaid
order (p. 11, rec.); and that they filed on September 29, 1969, because September
28, 1969 fell on Sunday (p. 59, rec.), a motion for reconsideration of said order
dated September 15, 1969, on the ground that it is contrary to law and the
evidence, as well as asked for ten (10) days within which to file their arguments
pursuant to Sections 15, 16 and 17 of the Rules of the CIR, as amended (Annex "G",
pp. 57-60, rec. )

In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63, rec.),
respondent Company averred that herein petitioners received on September 22,
1969, the order dated September 17 (should be September 15), 1969; that under
Section 15 of the amended Rules of the Court of Industrial Relations, herein
petitioners had five (5) days from September 22, 1969 or until September 27, 1969,
within which to file their motion for reconsideration; and that because their motion
for reconsideration was two (2) days late, it should be accordingly dismissed,
invoking Bien vs. Castillo,1 which held among others, that a motion for extension of
the five-day period for the filing of a motion for reconsideration should be filed
before the said five-day period elapses (Annex "M", pp. 61-64, rec.).

Subsequently, herein petitioners filed on October 14, 1969 their written arguments
dated October 11, 1969, in support of their motion for reconsideration (Annex "I",
pp. 65-73, rec.).

In a resolution dated October 9, 1969, the respondent en banc  dismissed the

motion for reconsideration of herein petitioners for being  pro forma  as it was filed
beyond the reglementary period prescribed by its Rules (Annex "J", pp. 74-75, rec.),
which herein petitioners received on October 28, 196 (pp. 12 & 76, rec.).

At the bottom of the notice of the order dated October 9, 1969, which was released
on October 24, 1969 and addressed to the counsels of the parties (pp. 75-76, rec.),
appear the requirements of Sections 15, 16 and 17, as amended, of the Rules of the
Court of Industrial Relations, that a motion for reconsideration shall be filed within
five (5) days from receipt of its decision or order and that an appeal from the
decision, resolution or order of the C.I.R., sitting en banc, shall be perfected within
ten (10) days from receipt thereof (p. 76, rec.).

On October 31, 1969, herein petitioners filed with the respondent court a petition
for relief from the order dated October 9, 1969, on the ground that their failure to
file their motion for reconsideration on time was due to excusable negligence and
honest mistake committed by the president of the petitioner Union and of the office
 Page 19 of 192

clerk of their counsel, attaching thereto the affidavits of the said president and clerk
(Annexes "K", "K-1" and "K-2", rec.).

Without waiting for any resolution on their petition for relief from the order dated
October 9, 1969, herein petitioners filed on November 3, 1969, with the Supreme
Court, a notice of appeal (Annex "L", pp. 88-89, rec.).

There is need of briefly restating basic concepts and principles which underlie the
issues posed by the case at bar.

(1) In a democracy, the preservation and enhancement of the dignity and worth of
the human personality is the central core as well as the cardinal article of faith of
our civilization. The inviolable character of man as an individual must be "protected
to the largest possible extent in his thoughts and in his beliefs as the citadel of his
person."2

(2) The Bill of Rights is designed to preserve the ideals of liberty, equality and
security "against the assaults of opportunism, the expediency of the passing hour,
the erosion of small encroachments, and the scorn and derision of those who have
no patience with general principles." 3

In the pithy language of Mr. Justice Robert Jackson, the purpose of the Bill of Rights
is to withdraw "certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials, and to establish them as
legal principles to be applied by the courts. One's rights to life, liberty and property,
to free speech, or free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to a vote; they depend on the outcome of
no elections."4 Laski proclaimed that "the happiness of the individual, not the well-
being of the State, was the criterion by which its behaviour was to be judged. His
interests, not its power, set the limits to the authority it was entitled to exercise." 5

(3) The freedoms of expression and of assembly as well as the right to petition are
included among the immunities reserved by the sovereign people, in the rhetorical
aphorism of Justice Holmes, to protect the ideas that we abhor or hate more than
the ideas we cherish; or as Socrates insinuated, not only to protect the minority who
want to talk, but also to benefit the majority who refuse to listen. 6 And as Justice
Douglas cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected. 7

(4) The rights of free expression, free assembly and petition, are not only civil rights
but also political rights essential to man's enjoyment of his life, to his happiness and
to his full and complete fulfillment. Thru these freedoms the citizens can participate
not merely in the periodic establishment of the government through their suffrage
but also in the administration of public affairs as well as in the discipline of abusive
public officers. The citizen is accorded these rights so that he can appeal to the
appropriate governmental officers or agencies for redress and protection as well as
for the imposition of the lawful sanctions on erring public officers and employees.
 Page 20 of 192

(5) While the Bill of Rights also protects property rights, the primacy of human
rights over property rights is recognized.8 Because these freedoms are "delicate and
vulnerable, as well as supremely precious in our society" and the "threat of
sanctions may deter their exercise almost as potently as the actual application of
sanctions," they "need breathing space to survive," permitting government
regulation only "with narrow specificity." 9

Property and property rights can be lost thru prescription; but human rights are
imprescriptible. If human rights are extinguished by the passage of time, then the
Bill of Rights is a useless attempt to limit the power of government and ceases to be
an efficacious shield against the tyranny of officials, of majorities, of the influential
and powerful, and of oligarchs — political, economic or otherwise.

In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and vitality of
our civil and political institutions; 10 and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions." 11

The superiority of these freedoms over property rights is underscored by the fact
that a mere reasonable or rational relation between the means employed by the law
and its object or purpose — that the law is neither arbitrary nor discriminatory nor
oppressive — would suffice to validate a law which restricts or impairs property
rights. 12 On the other hand, a constitutional or valid infringement of human rights
requires a more stringent criterion, namely existence of a grave and immediate
danger of a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs. Comelec and
reiterated by the writer of the opinion in Imbong vs. Ferrer. 13 It should be added
that Mr. Justice Barredo in Gonzales vs. Comelec, supra, like Justices Douglas, Black
and Goldberg in N.Y. Times Co. vs. Sullivan, 14 believes that the freedoms of speech
and of the press as well as of peaceful assembly and of petition for redress of
grievances are absolute when directed against public officials or "when exercised in
relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-interests
test. 16 Chief Justice Vinson is partial to the improbable danger rule formulated by
Chief Judge Learned Hand, viz. — whether the gravity of the evil, discounted by its
improbability, justifies such invasion of free expression as is necessary to avoid the
danger. 17

II

The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their "concerted
act and the occurrence temporary stoppage of work," herein petitioners are guilty
bargaining in bad faith and hence violated the collective bargaining agreement with
private respondent Philippine Blooming Mills Co., inc.. Set against and tested by
foregoing principles governing a democratic society, such conclusion cannot be
sustained. The demonstration held petitioners on March 4, 1969 before Malacañang
was against alleged abuses of some Pasig policemen, not against their employer,
herein private respondent firm, said demonstrate was purely and completely an
exercise of their freedom expression in general and of their right of assembly and
 Page 21 of 192

petition for redress of grievances in particular before appropriate governmental

agency, the Chief Executive, again the police officers of the municipality of Pasig.
They exercise their civil and political rights for their mutual aid protection from what
they believe were police excesses. As matter of fact, it was the duty of herein
private respondent firm to protect herein petitioner Union and its members fro the
harassment of local police officers. It was to the interest herein private respondent
firm to rally to the defense of, and take up the cudgels for, its employees, so that
they can report to work free from harassment, vexation or peril and as consequence
perform more efficiently their respective tasks enhance its productivity as well as
profits. Herein respondent employer did not even offer to intercede for its
employees with the local police. Was it securing peace for itself at the expenses of
its workers? Was it also intimidated by the local police or did it encourage the local
police to terrorize or vex its workers? Its failure to defend its own employees all the
more weakened the position of its laborers the alleged oppressive police who might
have been all the more emboldened thereby subject its lowly employees to further
indignities.

In seeking sanctuary behind their freedom of expression well as their right of

assembly and of petition against alleged persecution of local officialdom, the
employees and laborers of herein private respondent firm were fighting for their
very survival, utilizing only the weapons afforded them by the Constitution — the
untrammelled enjoyment of their basic human rights. The pretension of their
employer that it would suffer loss or damage by reason of the absence of its
employees from 6 o'clock in the morning to 2 o'clock in the afternoon, is a plea for
the preservation merely of their property rights. Such apprehended loss or damage
would not spell the difference between the life and death of the firm or its owners or
its management. The employees' pathetic situation was a stark reality — abused,
harassment and persecuted as they believed they were by the peace officers of the
municipality. As above intimated, the condition in which the employees found
themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their
right to individual existence as well as that of their families. Material loss can be
repaired or adequately compensated. The debasement of the human being broken
in morale and brutalized in spirit-can never be fully evaluated in monetary terms.
The wounds fester and the scars remain to humiliate him to his dying day, even as
he cries in anguish for retribution, denial of which is like rubbing salt on bruised
tissues.

As heretofore stated, the primacy of human rights — freedom of expression, of

peaceful assembly and of petition for redress of grievances — over property rights
has been sustained. 18 Emphatic reiteration of this basic tenet as a coveted boon —
at once the shield and armor of the dignity and worth of the human personality, the
all-consuming ideal of our enlightened civilization — becomes Our duty, if freedom
and social justice have any meaning at all for him who toils so that capital can
produce economic goods that can generate happiness for all. To regard the
demonstration against police officers, not against the employer, as evidence of bad
faith in collective bargaining and hence a violation of the collective bargaining
agreement and a cause for the dismissal from employment of the demonstrating
employees, stretches unduly the compass of the collective bargaining agreement, is
"a potent means of inhibiting speech" and therefore inflicts a moral as well as
 Page 22 of 192

mortal wound on the constitutional guarantees of free expression, of peaceful

assembly and of petition. 19

The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in effect
imposes on the workers the "duty ... to observe regular working hours." The strain
construction of the Court of Industrial Relations that a stipulated working shifts deny
the workers the right to stage mass demonstration against police abuses during
working hours, constitutes a virtual tyranny over the mind and life the workers and
deserves severe condemnation. Renunciation of the freedom should not be
predicated on such a slender ground.

The mass demonstration staged by the employees on March 4, 1969 could not have
been legally enjoined by any court, such an injunction would be trenching upon the
freedom expression of the workers, even if it legally appears to be illegal picketing
or strike. 20 The respondent Court of Industrial Relations in the case at bar concedes
that the mass demonstration was not a declaration of a strike "as the same not
rooted in any industrial dispute although there is concerted act and the occurrence
of a temporary stoppage work." (Annex "F", p. 45, rec.).

The respondent firm claims that there was no need for all its employees to
participate in the demonstration and that they suggested to the Union that only the
first and regular shift from 6 A.M. to 2 P.M. should report for work in order that loss
or damage to the firm will be averted. This stand failed appreciate the sine qua
non  of an effective demonstration especially by a labor union, namely the complete
unity of the Union members as well as their total presence at the demonstration site
in order to generate the maximum sympathy for the validity of their cause but also
immediately action on the part of the corresponding government agencies with
jurisdiction over the issues they raised against the local police. Circulation is one of
the aspects of freedom of expression. 21 If demonstrators are reduced by one-third,
then by that much the circulation of the issues raised by the demonstration is
diminished. The more the participants, the more persons can be apprised of the
purpose of the rally. Moreover, the absence of one-third of their members will be
regarded as a substantial indication of disunity in their ranks which will enervate
their position and abet continued alleged police persecution. At any rate, the Union
notified the company two days in advance of their projected demonstration and the
company could have made arrangements to counteract or prevent whatever losses
it might sustain by reason of the absence of its workers for one day, especially in
this case when the Union requested it to excuse only the day-shift employees who
will join the demonstration on March 4, 1969 which request the Union reiterated in
their telegram received by the company at 9:50 in the morning of March 4, 1969,
the day of the mass demonstration (pp. 42-43, rec.). There was a lack of human
understanding or compassion on the part of the firm in rejecting the request of the
Union for excuse from work for the day shifts in order to carry out its mass
demonstration. And to regard as a ground for dismissal the mass demonstration
held against the Pasig police, not against the company, is gross vindictiveness on
the part of the employer, which is as unchristian as it is unconstitutional.

III
 Page 23 of 192

The respondent company is the one guilty of unfair labor practice. Because the
refusal on the part of the respondent firm to permit all its employees and workers to
join the mass demonstration against alleged police abuses and the subsequent
separation of the eight (8) petitioners from the service constituted an
unconstitutional restraint on the freedom of expression, freedom of assembly and
freedom petition for redress of grievances, the respondent firm committed an unfair
labor practice defined in Section 4(a-1) in relation to Section 3 of Republic Act No.
875, otherwise known as the Industrial Peace Act. Section 3 of Republic Act No. 8
guarantees to the employees the right "to engage in concert activities for ... mutual
aid or protection"; while Section 4(a-1) regards as an unfair labor practice for an
employer interfere with, restrain or coerce employees in the exercise their rights
guaranteed in Section Three."

We repeat that the obvious purpose of the mass demonstration staged by the
workers of the respondent firm on March 4, 1969, was for their mutual aid and
protection against alleged police abuses, denial of which was interference with or
restraint on the right of the employees to engage in such common action to better
shield themselves against such alleged police indignities. The insistence on the part
of the respondent firm that the workers for the morning and regular shift should not
participate in the mass demonstration, under pain of dismissal, was as heretofore
stated, "a potent means of inhibiting speech." 22

Such a concerted action for their mutual help and protection deserves at least equal
protection as the concerted action of employees in giving publicity to a letter
complaint charging bank president with immorality, nepotism, favoritism an
discrimination in the appointment and promotion of ban employees. 23 We further
ruled in the Republic Savings Bank case, supra, that for the employees to come
within the protective mantle of Section 3 in relation to Section 4(a-1) on Republic
Act No. 875, "it is not necessary that union activity be involved or that collective
bargaining be contemplated," as long as the concerted activity is for the
furtherance of their interests. 24

As stated clearly in the stipulation of facts embodied in the questioned order of

respondent Court dated September 15, 1969, the company, "while expressly
acknowledging, that the demonstration is an inalienable right of the Union
guaranteed by the Constitution," nonetheless emphasized that "any demonstration
for that matter should not unduly prejudice the normal operation of the company"
and "warned the PBMEO representatives that workers who belong to the first and
regular shifts, who without previous leave of absence approved by the Company,
particularly the officers present who are the organizers of the demonstration, who
shall fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and, therefore,
would be amounting to an illegal strike (;)" (p. III, petitioner's brief). Such threat of
dismissal tended to coerce the employees from joining the mass demonstration.
However, the issues that the employees raised against the local police, were more
important to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could happen to
them was to lose a day's wage by reason of their absence from work on the day of
the demonstration. One day's pay means much to a laborer, more especially if he
has a family to support. Yet, they were willing to forego their one-day salary hoping
 Page 24 of 192

that their demonstration would bring about the desired relief from police abuses.
But management was adamant in refusing to recognize the superior legitimacy of
their right of free speech, free assembly and the right to petition for redress.

Because the respondent company ostensibly did not find it necessary to demand
from the workers proof of the truth of the alleged abuses inflicted on them by the
local police, it thereby concedes that the evidence of such abuses should properly
be submitted to the corresponding authorities having jurisdiction over their
complaint and to whom such complaint may be referred by the President of the
Philippines for proper investigation and action with a view to disciplining the local
police officers involved.

On the other hand, while the respondent Court of Industrial Relations found that the
demonstration "paralyzed to a large extent the operations of the complainant
company," the respondent Court of Industrial Relations did not make any finding as
to the fact of loss actually sustained by the firm. This significant circumstance can
only mean that the firm did not sustain any loss or damage. It did not present
evidence as to whether it lost expected profits for failure to comply with purchase
orders on that day; or that penalties were exacted from it by customers whose
orders could not be filled that day of the demonstration; or that purchase orders
were cancelled by the customers by reason of its failure to deliver the materials
ordered; or that its own equipment or materials or products were damaged due to
absence of its workers on March 4, 1969. On the contrary, the company saved a
sizable amount in the form of wages for its hundreds of workers, cost of fuel, water
and electric consumption that day. Such savings could have amply compensated for
unrealized profits or damages it might have sustained by reason of the absence of
its workers for only one day.

IV

Apart from violating the constitutional guarantees of free speech and assembly as
well as the right to petition for redress of grievances of the employees, the
dismissal of the eight (8) leaders of the workers for proceeding with the
demonstration and consequently being absent from work, constitutes a denial of
social justice likewise assured by the fundamental law to these lowly employees.
Section 5 of Article II of the Constitution imposes upon the State "the promotion of
social justice to insure the well-being and economic security of all of the people,"
which guarantee is emphasized by the other directive in Section 6 of Article XIV of
the Constitution that "the State shall afford protection to labor ...". Respondent
Court of Industrial Relations as an agency of the State is under obligation at all
times to give meaning and substance to these constitutional guarantees in favor of
the working man; for otherwise these constitutional safeguards would be merely a
lot of "meaningless constitutional patter." Under the Industrial Peace Act, the Court
of Industrial Relations is enjoined to effect the policy of the law "to eliminate the
causes of industrial unrest by encouraging and protecting the exercise by
employees of their right to self-organization for the purpose of collective bargaining
and for the promotion of their moral, social and economic well-being." It is most
unfortunate in the case at bar that respondent Court of Industrial Relations, the very
governmental agency designed therefor, failed to implement this policy and failed
 Page 25 of 192

to keep faith with its avowed mission — its raison d'etre — as ordained and directed
by the Constitution.

It has been likewise established that a violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void and confers
no rights. Relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even long after the
finality of the judgment. Thus, habeas corpus is the remedy to obtain the release of
an individual, who is convicted by final judgment through a forced confession, which
violated his constitutional right against self-incrimination; 25 or who is denied the
right to present evidence in his defense as a deprivation of his liberty without due
process of law, 26 even after the accused has already served sentence for twenty-
two years. 27

Both the respondents Court of Industrial Relations and private firm trenched upon
these constitutional immunities of petitioners. Both failed to accord preference to
such rights and aggravated the inhumanity to which the aggrieved workers claimed
they had been subjected by the municipal police. Having violated these basic
human rights of the laborers, the Court of Industrial Relations ousted itself of
jurisdiction and the questioned orders it issued in the instant case are a nullity.
Recognition and protection of such freedoms are imperative on all public offices
including the courts 28 as well as private citizens and corporations, the exercise and
enjoyment of which must not be nullified by mere procedural rule promulgated by
the Court Industrial Relations exercising a purely delegate legislative power, when
even a law enacted by Congress must yield to the untrammelled enjoyment of
these human rights. There is no time limit to the exercise of the freedoms. The right
to enjoy them is not exhausted by the delivery of one speech, the printing of one
article or the staging of one demonstration. It is a continuing immunity to be
invoked and exercised when exigent and expedient whenever there are errors to be
rectified, abuses to be denounced, inhumanities to be condemned. Otherwise these
guarantees in the Bill of Rights would be vitiated by rule on procedure prescribing
the period for appeal. The battle then would be reduced to a race for time. And in
such a contest between an employer and its laborer, the latter eventually loses
because he cannot employ the best an dedicated counsel who can defend his
interest with the required diligence and zeal, bereft as he is of the financial
resources with which to pay for competent legal services. 28-a

VI

The Court of Industrial Relations rule prescribes that motion for reconsideration of
its order or writ should filed within five (5) days from notice thereof and that the
arguments in support of said motion shall be filed within ten (10) days from the date
of filing of such motion for reconsideration (Sec. 16). As above intimated, these
rules of procedure were promulgated by the Court of Industrial Relations pursuant
to a legislative delegation. 29

The motion for reconsideration was filed on September 29, 1969, or seven (7) days
from notice on September 22, 1969 of the order dated September 15, 1969 or two
 Page 26 of 192

(2) days late. Petitioners claim that they could have filed it on September 28, 1969,
but it was a Sunday.

Does the mere fact that the motion for reconsideration was filed two (2) days late
defeat the rights of the petitioning employees? Or more directly and concretely,
does the inadvertent omission to comply with a mere Court of Industrial Relations
procedural rule governing the period for filing a motion for reconsideration or
appeal in labor cases, promulgated pursuant to a legislative delegation, prevail over
constitutional rights? The answer should be obvious in the light of the aforecited
cases. To accord supremacy to the foregoing rules of the Court of Industrial
Relations over basic human rights sheltered by the Constitution, is not only
incompatible with the basic tenet of constitutional government that the Constitution
is superior to any statute or subordinate rules and regulations, but also does
violence to natural reason and logic. The dominance and superiority of the
constitutional right over the aforesaid Court of Industrial Relations procedural rule of
necessity should be affirmed. Such a Court of Industrial Relations rule as applied in
this case does not implement or reinforce or strengthen the constitutional rights
affected,' but instead constrict the same to the point of nullifying the enjoyment
thereof by the petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is unreasonable
and therefore is beyond the authority granted by the Constitution and the law. A
period of five (5) days within which to file a motion for reconsideration is too short,
especially for the aggrieved workers, who usually do not have the ready funds to
meet the necessary expenses therefor. In case of the Court of Appeals and the
Supreme Court, a period of fifteen (15) days has been fixed for the filing of the
motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule 52; Sec. 1,
Rule 56, Revised Rules of Court). The delay in the filing of the motion for
reconsideration could have been only one day if September 28, 1969 was not a
Sunday. This fact accentuates the unreasonableness of the Court of Industrial are
concerned.

It should be stressed here that the motion for reconsideration dated September 27,
1969, is based on the ground that the order sought to be reconsidered "is not in
accordance with law, evidence and facts adduced during the hearing," and likewise
prays for an extension of ten (10) days within which to file arguments pursuant to
Sections 15, 16 and 17 of the Rules of the Court of Industrial Relations (Annex "G",
pp. 57-60, rec.); although the arguments were actually filed by the herein
petitioners on October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day
period required for the filing of such supporting arguments counted from the filing
of the motion for reconsideration. Herein petitioners received only on October 28,
1969 the resolution dated October 9, 1969 dismissing the motion for
reconsideration for being pro forma since it was filed beyond the reglementary
period (Annex "J", pp. 74-75, rec.)

It is true that We ruled in several cases that where a motion to reconsider is filed
out of time, or where the arguments in suppf such motion are filed beyond the 10
day reglementary period provided for by the Court of Industrial Relations rules, the
order or decision subject of29-a reconsideration becomes final and unappealable. But
in all these cases, the constitutional rights of free expression, free assembly and
petition were not involved.
 Page 27 of 192

It is a procedural rule that generally all causes of action and defenses presently
available must be specifically raised in the complaint or answer; so that any cause
of action or defense not raised in such pleadings, is deemed waived. However, a
constitutional issue can be raised any time, even for the first time on appeal, if it
appears that the determination of the constitutional issue is necessary to a decision
of the case, the very lis mota  of the case without the resolution of which no final
and complete determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a constitutional
right. In the instant case, the procedural rule of the Court of Industrial Relations, a
creature of Congress, must likewise yield to the constitutional rights invoked by
herein petitioners even before the institution of the unfair labor practice charged
against them and in their defense to the said charge.

In the case at bar, enforcement of the basic human freedoms sheltered no less by
the organic law, is a most compelling reason to deny application of a Court of
Industrial Relations rule which impinges on such human rights. 30-a

It is an accepted principle that the Supreme Court has the inherent power to
"suspend its own rules or to except a particular case from its operation, whenever
the purposes of justice require." 30-b Mr. Justice Barredo in his concurring opinion
in Estrada vs. Sto. Domingo. 30-c reiterated this principle and added that

Under this authority, this Court is enabled to cove with all situations
without concerning itself about procedural niceties that do not square
with the need to do justice, in any case, without further loss of time,
provided that the right of the parties to a full day in court is not
substantially impaired. Thus, this Court may treat an appeal as a
certiorari and vice-versa. In other words, when all the material facts
are spread in the records before Us, and all the parties have been duly
heard, it matters little that the error of the court a quo is of judgment
or of jurisdiction. We can then and there render the appropriate
judgment. Is within the contemplation of this doctrine that as it is
perfectly legal and within the power of this Court to strike down in an
appeal acts without or in excess of jurisdiction or committed with grave
abuse of discretion, it cannot be beyond the admit of its authority, in
appropriate cases, to reverse in a certain proceed in any error of
judgment of a court a quo which cannot be exactly categorized as a
flaw of jurisdiction.  If there can be any doubt, which I do not entertain,
on whether or not the errors this Court has found in the decision of the
Court of Appeals are short of being jurisdiction nullities or excesses,
this Court would still be on firm legal grounds should it choose to
reverse said decision here and now even if such errors can be
considered as mere mistakes of judgment or only as faults in the
exercise of jurisdiction,  so as to avoid the unnecessary return of this
case to the lower court for the sole purpose of pursuing the ordinary
course of an appeal. (Emphasis supplied). 30-d

Insistence on the application of the questioned Court industrial Relations rule in this
particular case at bar would an unreasoning adherence to "Procedural niceties"
which denies justice to the herein laborers, whose basic human freedoms, including
 Page 28 of 192

the right to survive, must be according supremacy over the property rights of their
employer firm which has been given a full hearing on this case, especially when, as
in the case at bar, no actual material damage has be demonstrated as having been
inflicted on its property rights.

If We can disregard our own rules when justice requires it, obedience to the
Constitution renders more imperative the suspension of a Court of Industrial
Relations rule that clash with the human rights sanctioned and shielded with
resolution concern by the specific guarantees outlined in the organic law. It should
be stressed that the application in the instant case Section 15 of the Court of
Industrial Relations rules relied upon by herein respondent firm is unreasonable and
therefore such application becomes unconstitutional as it subverts the human rights
of petitioning labor union and workers in the light of the peculiar facts and
circumstances revealed by the record.

The suspension of the application of Section 15 of the Court of Industrial Relations

rules with reference to the case at is also authorized by Section 20 of
Commonwealth Act No. 103, the C.I.R. charter, which enjoins the Court of Industrial
Relations to "act according to justice and equity and substantial merits of the case,
without regard to technicalities or legal forms ..."

On several occasions, We emphasized this doctrine which was re-stated by Mr.

Justice Barredo, speaking for the Court, in the 1970 case of Kapisanan, etc. vs.
Hamilton, etc., et. al.,  30-e thus:

As to the point that the evidence being offered by the petitioners in the
motion for new trial is not "newly discovered," as such term is
understood in the rules of procedure for the ordinary courts, We hold
that such criterion is not binding upon the Court of Industrial Relations.
Under Section 20 of Commonwealth Act No. 103, 'The Court of
Industrial Relations shall adopt its, rules or procedure and shall have
such other powers as generally pertain to a court of justice: Provided,
however, That in the hearing, investigation and determination of any
question or controversy and in exercising any duties and power under
this Act, the Court shall act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal
forms and shall not be bound by any technical rules of legal evidence
but may inform its mind in such manner as it may deem just and
equitable.' By this provision the industrial court is disengaged from the
rigidity of the technicalities applicable to ordinary courts. Said court is
not even restricted to the specific relief demanded by the parties but
may issue such orders as may be deemed necessary or expedient for
the purpose of settling the dispute or dispelling any doubts that may
give rise to future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496, Feb.
17, 1940; Manila Trading & Supply Co. v. Phil. Labor, 71 Phil. 124.) For
these reasons, We believe that this provision is ample enough to have
enabled the respondent court to consider whether or not its previous
ruling that petitioners constitute a minority was founded on fact,
without regard to the technical meaning of newly discovered evidence.
 Page 29 of 192

... (Alonso v. Villamor, 16 Phil. 315; Chua Kiong v. Whitaker, 46 Phil.

578). (emphasis supplied.)

To apply Section 15 of the Court of Industrial Relations rules with "pedantic rigor" in
the instant case is to rule in effect that the poor workers, who can ill-afford an alert
competent lawyer, can no longer seek the sanctuary of human freedoms secured to
them by the fundamental law, simply because their counsel — erroneously believing
that he received a copy of the decision on September 23, 1969, instead of
September 22, 1969 - filed his motion for reconsideration September 29, 1969,
which practically is only one day late considering that September 28, 1969 was a
Sunday.

Many a time, this Court deviated from procedure technicalities when they ceased to
be instruments of justice, for the attainment of which such rules have been devised.
Summarizing the jurisprudence on this score, Mr. Justice Fernando, speaking for a
unanimous Court in Palma vs. Oreta, 30-f Stated:

As was so aptly expressed by Justice Moreland in Alonso v.

Villamor  (16 Phil. 315 [1910]. The Villamor decision was cited with
approval in Register of Deeds v. Phil. Nat. Bank, 84 Phil. 600 [1949];
Potenciano v. Court of Appeals, 104 Phil. 156 [1958] and Uy v. Uy,
14243, June 30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to justice and
becomes its great hindrance and chief enemy, deserves scant
consideration from courts." (Ibid., p, 322.) To that norm, this Court has
remained committed. The late Justice Recto in Blanco v. Bernabe, (63
Phil. 124 [1936]) was of a similar mind. For him the interpretation of
procedural rule should never "sacrifice the ends justice." While
"procedural laws are no other than technicalities" view them in their
entirety, 'they were adopted not as ends themselves for the
compliance with which courts have organized and function, but as
means conducive to the realization the administration of the law and of
justice (Ibid., p.,128). We have remained steadfastly opposed, in the
highly rhetorical language Justice Felix, to "a sacrifice of substantial
rights of a litigant in altar of sophisticated technicalities with
impairment of the sacred principles of justice." (Potenciano v. Court of
Appeals, 104 Phil. 156, 161 [1958]). As succinctly put by Justice
Makalintal, they "should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA 1016, 1019). In
the latest decision in point promulgated in 1968, (Udan v. Amon,
(1968, 23 SCRA citing McEntee v. Manotok, L-14968, Oct. 27, 1961, 3
SCRA 272.) Justice Zaldivar was partial to an earlier formulation of
Justice Labrador that rules of procedure "are not to be applied in a very
rigid, technical sense"; but are intended "to help secure substantial
justice." (Ibid., p. 843) ... 30-g

Even if the questioned Court of Industrial Relations orders and rule were to be given
effect, the dismissal or termination of the employment of the petitioning eight (8)
leaders of the Union is harsh for a one-day absence from work. The respondent
Court itself recognized the severity of such a sanction when it did not include the
 Page 30 of 192

dismissal of the other 393 employees who are members of the same Union and who
participated in the demonstration against the Pasig police. As a matter of fact, upon
the intercession of the Secretary of Labor, the Union members who are not officers,
were not dismissed and only the Union itself and its thirteen (13) officers were
specifically named as respondents in the unfair labor practice charge filed against
them by the firm (pp. 16-20, respondent's Brief; Annexes "A", "B" and "C", pp. 20-
30, rec.). Counsel for respondent firm insinuates that not all the 400 or so employee
participated in the demonstration, for which reason only the Union and its thirteen
(13) officers were specifically named in the unfair labor practice charge (p. 20,
respondent's brief). If that were so, then many, if not all, of the morning and regular
shifts reported for work on March 4, 1969 and that, as a consequence, the firm
continued in operation that day and did not sustain any damage.

The appropriate penalty — if it deserves any penalty at all — should have been
simply to charge said one-day absence against their vacation or sick leave. But to
dismiss the eight (8) leaders of the petitioner Union is a most cruel penalty, since as
aforestated the Union leaders depend on their wages for their daily sustenance as
well as that of their respective families aside from the fact that it is a lethal blow to
unionism, while at the same time strengthening the oppressive hand of the petty
tyrants in the localities.

Mr. Justice Douglas articulated this pointed reminder:

The challenge to our liberties comes frequently not from those who
consciously seek to destroy our system of Government, but from men
of goodwill — good men who allow their proper concerns to blind them
to the fact that what they propose to accomplish involves an
impairment of liberty.

... The Motives of these men are often commendable. What we must
remember, however, is that  preservation of liberties does not depend
on motives. A suppression of liberty has the same effect whether the
suppress or be a reformer or an outlaw. The only protection against
misguided zeal is a constant alertness of the infractions of the
guarantees of liberty contained in our Constitution. Each surrender of
liberty to the demands of the moment makes easier another, larger
surrender. The battle over the Bill of Rights is a never ending one.

... The liberties of any person are the liberties of all of us.

... In short, the Liberties of none are safe unless the liberties of all are
protected.

... But even if we should sense no danger to our own liberties, even if

we feel secure because we belong to a group that is important and
respected, we must recognize that our Bill of Rights is a code of fair
play for the less fortunate that we in all honor and good conscience
must be observe. 31
 Page 31 of 192

The case at bar is worse.

Management has shown not only lack of good-will or good intention, but a complete
lack of sympathetic understanding of the plight of its laborers who claim that they
are being subjected to indignities by the local police, It was more expedient for the
firm to conserve its income or profits than to assist its employees in their fight for
their freedoms and security against alleged petty tyrannies of local police officers.
This is sheer opportunism. Such opportunism and expediency resorted to by the
respondent company assaulted the immunities and welfare of its employees. It was
pure and implement selfishness, if not greed.

Of happy relevance is the 1967 case of Republic Savings Bank vs. C.I.R., 32 where
the petitioner Bank dismissed eight (8) employees for having written and published
"a patently libelous letter ... to the Bank president demanding his resignation on the
grounds of immorality, nepotism in the appointment and favoritism as well as
discrimination in the promotion of bank employees." Therein, thru Mr. Justice
Castro, We ruled:

It will avail the Bank none to gloat over this admission of the
respondents. Assuming that the latter acted in their individual
capacities when they wrote the letter-charge they were nonetheless
protected for they were engaged in concerted activity, in the exercise
of their right of self organization that includes concerted activity for
mutual aid and protection, (Section 3 of the Industrial Peace Act ...)
This is the view of some members of this Court. For, as has been aptly
stated, the joining in protests or demands, even by a small group of
employees, if in furtherance of their interests as such, is a concerted
activity protected by the Industrial Peace Act. It is not necessary that
union activity be involved or that collective bargaining be
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).

xxx xxx xxx

Instead of stifling criticism, the Bank should have allowed the

respondents to air their grievances.

xxx xxx xxx

The Bank defends its action by invoking its right to discipline for what
it calls the respondents' libel in giving undue publicity to their letter-
charge. To be sure, the right of self-organization of employees is not
unlimited (Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]), as
the right of the employer to discharge for cause (Philippine Education
Co. v. Union of Phil. Educ. Employees, L-13773, April 29, 1960) is
undenied. The Industrial Peace Act does not touch the normal exercise
of the right of the employer to select his employees or to discharge
them. It is directed solely against the abuse of that right by interfering
with the countervailing right of self organization (Phelps Dodge Corp. v.
NLRB 313 U.S. 177 [1941])...
 Page 32 of 192

xxx xxx xxx

In the final sum and substance, this Court is in unanimity that the

Bank's conduct, identified as an interference with the employees' right
of self-organization or as a retaliatory action, and/or as a refusal to
bargain collectively, constituted an unfair labor practice within the
meaning and intendment of section 4(a) of the Industrial Peace Act.
(Emphasis supplied.) 33

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

WHEREFORE, judgement is hereby rendered:

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

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

With costs against private respondent Philippine Blooming Company, Inc.

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

Makalintal, C.J, took no part.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to

dissent.

The background of this case may be found principally in the stipulation of facts
upon which the decision under review is based. It is as follows:
 Page 33 of 192

1. That complainant Philippine Blooming Mills, Company, Inc., is a

corporation existing and operating under and by virtue of the laws of
the Philippines with corporate address at 666 Muelle de Binondo,
Manila, which is the employer of respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for

short, is a legitimate labor organization, and the respondents herein
are either officers of respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the

projected mass demonstration at Malacañang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM — 2:00 PM workers as well as those working in
the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at

about 11:00 A.M. at the Company's canteen, and those present were:
for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de Leon, Jr.
(3) and all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as the spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union
has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel

manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason, the
Company, thru Atty. C.S. de Leon, warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the
officers present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was

convoked. Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodulfo Munsod, Benjamin
Pagcu and Florencio Padrigano. In this afternoon meeting of March 3,
1969, Company reiterated and appealed to the PBMEO representatives
 Page 34 of 192

that while all workers may join the Malacañang demonstration, the
workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work;
and thus utilize the workers in the 2nd and 3rd shifts in order not to
violate the provisions of the CBA, particularly Article XXIV "NO
LOCKOUT — NO STRIKE". All those who will not follow this warning of
the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers
of the mass demonstration. The union panel countered that it was
rather too late to change their plans inasmuch as the Malacañang
demonstration will be held the following morning; and

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a

cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.

Additionally, the trial court found that "the projected demonstration did in fact occur
and in the process paralyzed to a large extent the operations of the complainant
company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed
with said court a complaint for Unfair Labor Practice against petitioners charging
that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly

those in the first shift, in violation of the existing collective bargaining
agreement and without filing the necessary notice as provided for by
law, failed to report for work, amounting to a declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6,

in relation to Sections 13, 14 and 15 of Republic Act No. 875, and of
the collective bargaining agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which
read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby
ordered to cease and desist from further committing the same and its
representatives namely: respondent Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin
Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly
responsible for perpetrating this unfair labor practice act, are hereby
considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)
 Page 35 of 192

Although it is alleged in the petition herein that petitioners were notified of this
decision on September 23, 1969, there seems to be no serious question that they
were actually served therewith on September 22, 1969. In fact, petitioners admitted
this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969
and filed with the industrial court on the following day. (See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days
after they were notified of the court's decision, that petitioners filed their motion for
reconsideration with the industrial court; as it is also not disputed that they filed
their "Arguments in Support of the Respondents' Motion for Reconsideration" only
on October 14, 1969. (See Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse of the five (5) day period
provided for the filing thereof in the rules of the Court of Industrial Relations,
whereas the "Arguments" were filed five (5) days after the expiration of the period
therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent
private firm, namely, that in view of the failure of petitioners to file not only their
motion for reconsideration but also their arguments in support thereof within the
periods respectively fixed in the rules therefor, the Court of Industrial Relations
acted correctly and within the law in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts

hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of Industrial
Relations1 wherein it was ruled that:

August 6, 1963. Petitioner received a copy of the decision of the then

Associate Judge Arsenio I. Martinez, the dispositive part of which was
set forth earlier in this opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No

arguments were advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its

aforesaid motion seeking reconsideration.

September 16, 1963. CIR en banc  resolved to dismiss the motion for
reconsideration. Ground therefor was that the arguments were filed
out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same
time lodged the present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents

did not file their brief), the case is now before us for resolution.
 Page 36 of 192

1. That the judgment appealed from is a final judgment — not merely

an interlocutory order — there is no doubt. The fact that there is need
for computation of respondent Perlado's overtime pay would not
render the decision incomplete. This in effect is the holding of the
Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next
contended that in ordering the Chief of the Examining Division or his
representative to compute the compensation due, the Industrial Court
unduly delegated its judicial functions and thereby rendered an
incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report
would still have to be submitted to the Industrial Court for its approval,
by the very terms of the order itself. That there was no specification of
the amount of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear enough in the
implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that
it can no longer, be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this

Court both answer the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider
the judgment of the trial judge must do so within five (5) days from the
date on which he received notice of the decision, subject of the motion.
Next follows Section 16 which says that the motion must be submitted
with arguments supporting the same. But if said arguments could not
be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days
from the date of the filing of his motion for reconsideration.' Section 17
of the same rules admonishes a movant that "(f)ailure to observe the
above-specified periods shall be sufficient cause for dismissal of the
motion for reconsideration or striking out of the answer and/or the
supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil.
956) we ruled that where a pro forma motion for reconsideration was
filed out of time its denial is in order pursuant to CIR rules, regardless
of whether the arguments in support of said motion were or were not
filed on time. Pangasinan Employees Laborers & Tenants Association
(PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject
of reconsideration comes final. And so also, where the arguments in
support of the motion for reconsideration are filed beyond the ten-day
reglementary period, the pre forma motion for reconsideration
although seasonably filed must nevertheless be denied. This in
 Page 37 of 192

essence is our ruling in Local 7, Press & Printing Free Workers (FFW)
vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is
denied upon the ground that the arguments in support thereof were
filed out of time, the order or decision subject of the motion becomes
"final and unappealable".

We find no difficulty in applying the foregoing rules and

pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I. Martinez
aforesaid. Petitioner's motion to reconsider — without arguments in
support thereof — of August 12 was filed on time. For, August 11, the
end of the five-day reglementary period to file a motion for
reconsideration, was a Sunday. But, actually, the written arguments in
support of the said motion were submitted to the court on August 27.
The period from August 12 to August 27, is a space of fifteen (15)
days. Surely enough, said arguments were filed out of time — five (5)
days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking

extension of time within which to present its arguments in support of
its motion. Counsel in his petition before this Court pleads that the
foregoing motion was grounded on the 'extremely busy and difficult
schedule of counsel which would not enable him to do so within the
stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be

noted that the motion for expansion of time was filed only on August
21, that is, one day before the due date which is August 22. It was
petitioner's duty to see to it that the court act on this motion forthwith
or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the

disposition of cases", CIR "has a standing rule against the extension of
the ten-day period for filing supporting arguments". That no-extension
policy should have placed petitioner on guard. It should not have
simply folded its arms, sit by supinely and relied on the court's
generosity. To compound petitioner's neglect, it filed the arguments
only on August 27, 1953, knowing full well that by that time the
reglementary period had expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963

dismissing the motion for reconsideration on the ground that the
supporting arguments were filed out of time. That ruling in effect
denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We

may not review the same.
 Page 38 of 192

Notwithstanding this unequivocal and unmistakable precedent, which has not been
in any way modified, much less revoked or reversed by this Court, the main opinion
has chosen not only to go into the merits of petitioners' pose that the respondent
court erred in holding them guilty of bargaining in bad faith but also to ultimately
uphold petitioners' claim for reinstatement on constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an

exposition of the constitutional guarantees of freedoms of speech and peaceful
assembly for redress of grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I am
constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by
petitioners themselves and in the light of its attendant circumstances, this case
does not call for the resolution of any constitutional issue. Admittedly, the
invocation of any constitutional guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights, deserves the closest attention of
this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with
substantive and procedural due process are observed. No doubt no constitutional
right can be sacrificed in the altar of procedural technicalities, very often fittingly
downgraded as niceties but as far as I know, this principle is applied to annul or set
aside final judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or cited in the
well-documented main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the effect of
sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any
judicial precedent or reason of principle, the main opinion nudely and unqualifiedly
asserts, as if it were universally established and accepted as an absolute rule, that
the violation of a constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no rights". Chavez vs. Court
of Appeals, 24 SCRA 663, which is mentioned almost in passing, does uphold the
proposition that "relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus proceedings even
after the finality of the judgment". And, of course, Chavez  is correct; as is
also Abriol vs. Homeres2 which, in principle, served as its precedent, for the very
simple reason that in both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a witness for the
prosecution; in Abriol, the accused was denied his request to be allowed to present
evidence to establish his defense after his demurrer to the People's evidence was
denied.

As may be seen, however, the constitutional issues involved in those cases are a far
cry from the one now before Us. Here, petitioners do not claim they were denied
due process. Nor do they pretend that in denying their motion for reconsideration,
"the respondent Court of Industrial Relations and private firm trenched upon any of
 Page 39 of 192

their constitutional immunities ...," contrary to the statement to such effect in the
main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned
decision of the respondent court as being null and void because it sanctioned a
denial of a valued constitutional liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is

whether or not the respondent Court en banc under the facts and
circumstances, should consider the Motion for Reconsideration filed by
your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari,

humbly beg this Honorable Court to treat this petition under Rule 43
and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the
strict and narrow technical rules of procedure without taking into
account justice, equity and substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on

this point in their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental

right to peaceably assemble and petition the government for redress
of grievances constitute bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith meriting
the dismissal of the persons allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court

refused to act one way or another on the petition for relief from the
resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of

bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is country to
 Page 40 of 192

the evidence on record; that the dismissal of leaders was

discriminatory.

As a result of exercising the constitutional rights of freedom to

assemble and petition the duly constituted authorities for redress of
their grievances, the petitioners were charged and then condemned of
bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were
not borne out by the records. It was not even alleged nor proven by
evidence. What has been alleged and which the respondent company
tried to prove was that the demonstration amounted to a strike and
hence, a violation of the provisions of the "no-lockout — no strike"
clause of the collective bargaining agreement. However, this allegation
and proof submitted by the respondent company were practically
resolved when the respondent court in the same decision stated
categorically:

'The company alleges that the walkout because of the

demonstration is tantamount to a declaration of a strike.
We do not think so, as the same is not rooted in
any industrial dispute although there is a concerted act
and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union

bargained in bad faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the

respondent company convened twice in a meeting to thresh out the
matter of demonstration. Petitioners requested that the employees and
workers be excused but the respondent company instead of granting
the request or even settling the matter so that the hours of work will
not be disrupted, immediately threatened the employees of mass
dismissal;

Third, the refusal of the petitioner union to grant the request of the
company that the first shift shall be excluded in the demonstration is
not tantamount to bargaining in bad faith because the company knew
that the officers of the union belonged to the first shift, and that the
union cannot go and lead the demonstration without their officers. It
must be stated that the company intends to prohibit its officers to lead
and join the demonstration because most of them belonged to the first
shift; and

Fourth, the findings of the respondent court that the demonstration if

allowed will practically give the union the right to change the working
 Page 41 of 192

conditions agreed in the CBA is a conclusion of facts, opinionated and

not borne by any evidence on record. The demonstration did not
practically change the terms or conditions of employment because it
was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in
bad faith, when upon representation of the Bureau of Labor not to
dismiss the employees demonstrating, the company tacitly approved
the same and yet while the demonstration was in progress, the
company filed a ULP Charge and consequently dismissed those who
participated.

Records of the case show that more or less 400 members of the union
participated in the demonstration and yet, the respondent court
selected the eight officers to be dismissed from the union thus losing
their status as employees of the respondent company. The respondent
court should have taken into account that the company's action in
allowing the return of more or less three hundred ninety two (392)
employees/members of the union is an act of condonation and the
dismissal of the eight (8) officers is an act of discrimination (Phil. Air
Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L-8197,
Oct. 31, 1958). Seemingly, from the opinion stated in the decision by
the court, while there is a collective bargaining agreement, the union
cannot go on demonstration or go on strike because it will change the
terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to
demonstrate and the statutory rights of a union to strike as provided
for in Republic Act 875. This creates a bad precedent because it will
appear that the rights of the union is solely dependent upon the CBA.

One of the cardinal primary rights which must be respected in

proceedings before the Court of Industrial Relations is that "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." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S.
88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the
latter be protected in their rights to know and meet the case against
them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla

of evidence to support the findings of the respondent court that the
petitioner union bargained in bad faith. Corollary therefore, the
dismissal of the individual petitioners is without basis either in fact or
in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of

bargaining in bad faith and consequently lost their status as
employees of the respondent company did not meet the meaning and
 Page 42 of 192

comprehension of "substantial merits of the case." Bargaining in bad

faith has not been alleged in the complaint (Annex "C", Petition) nor
proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged
in respondent company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in violation of
the "no strike — no lock out" clause of the Collective Bargaining
Agreement. Petitioners respectfully reiterate and humbly submit, that
the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings,
petitioners should have been absolved of the charges against them.
Nevertheless, the same respondent court disregarding, its own
findings, went out of bounds by declaring the petitioners as having
"bargained in faith." The stand of the respondent court is fallacious, as
it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to

assemble peaceably to air grievances against the duly constituted
authorities as guaranteed in our Constitution is subject to the limitation
of the agreement in the Collective Bargaining Agreement. The
fundamental rights of the petitioners to free speech and assembly is
paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and
void. These fundamental rights of the petitioners were not taken into
consideration in the deliberation of the case by the respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any
issue of due process. They do not posit that the decision of the industrial court is
null and void on that constitutional ground. True it is that they fault the respondent
court for having priced the provisions of the collective bargaining agreement herein
involved over and above their constitutional right to peaceably assemble and
petition for redress of their grievances against the abuses of the Pasig police, but in
no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere error of
judgment rather than that of jurisdiction which the main opinion projects. For this
Court to roundly and indignantly condemn private respondent now for the grievous
violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been
duly presented to Us and properly argued, is to my mind unfair and unjust, for the
simple reason that the manner this case was brought to Us does not afford it the
opportunity to be heard in regard to such supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of

jurisdiction by finding petitioners guilty of bargaining in bad faith when the charge
against them alleged in the complaint was for having conducted a mass
demonstration, which "amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the
trial judge did err in not giving preferential importance to the fundamental freedoms
 Page 43 of 192

invoked by the petitioners over the management and proprietary attributes claimed
by the respondent private firm — still, We cannot rightly hold that such disregard of
petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be
finally settled; and titles to property would become precarious if the losing party
were allowed to reopen them at any time in the future". 3

I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a denial of
due process, should not make any difference. Juridically, a party cannot be less
injured by an overlooked or erroneously sanctioned violation of an ordinary statute
than by a misconstrued or constitutional injunction affecting his individual,
freedoms. In both instances, there is injustice which should be intolerable were it
not for the more paramount considerations that inform the principle of immutability
of final judgments. I dare say this must be the reason why, as I have already noted,
the main opinion does not cite any constitutional provision, law or rule or any
judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of
jurisdiction to render valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of

Colleges and Universities vs. Secretary of Education,4 following Santiago vs. Far
Eastern Broadcasting,5 is that "it is one of our (the Supreme Court's) decisional
practices that unless a constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it". In the case at bar, the petitioners
have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main
opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the
erroneous resolution by a court of a constitutional issue not amounting to a denial
of due process renders its judgment or decision null and void, and, therefore,
subject to attack even after said judgment or decision has become final and
executory. I have actually tried to bring myself into agreement with the views of the
distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence
always comes to the fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with

petitioners under the authority of our constitutionally irreducible appellate
jurisdiction under Section 2(5) of Article VII of the Philippines 6 (reenacted
practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize
upon further reflection that the very power granted to us to review decisions of
lower courts involving questions of law(and these include constitutional issues not
affecting the validity of statutes, treaty, executive agreement, etc.) is not
unqualified but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them,
 Page 44 of 192

those governing appeals from the Court of Industrial Relations involved herein.
Consequently, if by law or rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power and authority to review, much
less alter or modify the same, absent any denial of due process or fatal defect of
jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically
raised by the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the real problem here
is whether or not We have jurisdiction to entertain it. And, in this regard, as already
stated earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra.,
which is being relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this
case, We have no choice but to follow, that is, that in view of reconsideration but
even their argument supporting the same within the prescribed period, "the
judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness thereof
from the constitutional standpoint, and that in truth, whether or not they are correct
is something that is always dependent upon combined opinion of the members of
the Supreme Court, which in turn is naturally as changeable as the members
themselves are changed, I cannot conceive of anything more pernicious and
destructive to a trustful administration of justice than the idea that, even without
any showing of denial of due process or want of jurisdiction of the court, a final and
executory judgment of such court may still be set aside or reopened in instances
other than those expressly allowed by Rule 38 and that of extrinsic fraud under
Article 1146(1) of the Civil Code.7 And just to emphasize the policy of the law of
respecting judgments once they have become final, even as this Court has ruled
that final decisions are mute in the presence of fraud which the law abhors, 8 it is
only when the fraud is extrinsic and not intrinsic that final and executory judgments
may be set aside,9 and this only when the remedy is sought within the prescriptive
period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is

essential to an effective and efficient administration of justice that
once a judgment has become final, the winning party be not, through a
mere subterfuge, deprived of the fruits of the verdict. Courts must
therefore guard against any scheme calculated to bring about that
result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38

Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some
definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose and
 Page 45 of 192

to do so speedily, certain time limits, more or less arbitrary, have to be

set up to spur on the slothful. 'If a vacillating, irresolute judge were
allowed to thus keep causes ever within his power, to determine and
redetermine them term after term, to bandy his judgments about from
one party to the other, and to change his conclusions as freely and as
capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and
invulnerability of final judgments but rather on the correct interpretation of the
contents of the judgment in question therein. Relevantly to this case at bar, I said
then:

The point of res adjudicata discussed in the dissents has not escaped

my attention. Neither am I overlooking the point of the Chief Justice
regarding the dangerous and inimical implications of a ruling that
would authorize the revision, amendment or alteration of a final and
executory judgment. I want to emphasize that my position in this
opinion does not detract a whit from the soundness, authority and
binding force of existing doctrines enjoining any such modifications.
The public policy of maintaining faith and respect in judicial decisions,
which inform said doctrines, is admittedly of the highest order. I am
not advocating any departure from them. Nor am I trying to put forth
for execution a decision that I believe should have been rather than
what it is. All I am doing is to view not the judgment of Judge Tengco
but the decision of this Court in G.R. No. L-20950, as it is and not as I
believe it should have been, and, by opinion, I would like to guide the
court a quo as to what, in my own view, is the true and correct
meaning and implications of decision of this Court, not that of Judge
Tengco's.

The main opinion calls attention to many instant precisely involving cases in the
industrial court, wherein the Court refused to be constrained by technical rules of
procedure in its determination to accord substantial justice to the parties I still
believe in those decisions, some of which were penned by me. I am certain,
however, that in none of those precedents did this Court disturb a judgment already
final and executory. It too obvious to require extended elucidation or even reference
any precedent or authority that the principle of immutability of final judgments is
not a mere technicality, and if it may considered to be in a sense a procedural rule,
it is one that is founded on public policy and cannot, therefore, yield to the ordinary
plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the
main opinion goes far as to maintain that the long existing and constantly applied
rule governing the filing of motions for reconsideration in the Court of Industrial
Relations, "as applied in this case does not implement on reinforce or strengthen
the constitutional rights affected, but instead constricts the same to the point of
nullifying the enjoyment thereof by the petitioning employees. Said Court on
 Page 46 of 192

Industrial Relations Rule, promulgated as it was pursuant to mere legislative

delegation, is unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieve workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court
of Appeal and the Supreme Court, a period of fifteen (15) days has been fixed for
the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec. 1,
Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September 28, 1969
was not a Sunday. This fact accentuates the unreasonableness of the Court of
Industrial Relations Rule insofar as circumstances of the instant case are
concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion
suggested. Viewed objectively, it can readily be seen that there can hardly be any
factual or logical basis for such a critical view of the rule in question. Said rule
provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5)
days from the date on which he receives notice of the order or
decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the allegations of
fact, and serving a copy thereof, personally or by registered mail, on
the adverse party. The latter may file an answer, in six (6) copies, duly
verified under oath.

Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court, the
movant shall file same within ten (10) days from the date of the filing
of his motion for reconsideration. The adverse party shall also file his
answer within ten (10) days from the receipt by him of a copy of the
arguments submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10)
days from the receipt of the arguments in support of said motion
having been filed, the motion shall be deemed submitted for resolution
of the Court in banc, unless it is considered necessary to bear oral
arguments, in which case the Court shall issue the corresponding order
or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause

for dismissal of the motion for reconsideration or striking out of the
answer and/or the supporting arguments, as the case may be. (As
amended April 20, 1951, Court of Industrial Relations.).
 Page 47 of 192

As implemented and enforced in actual practice, this rule, as everyone acquainted

with proceedings in the industrial court well knows, precisely permits the party
aggrieved by a judgment to file no more than a pro-forma motion for
reconsideration without any argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws
and authorities, in the written arguments the be filed (10) days later. In truth, such
a pro-forma motion has to effect of just advising the court and the other party that
the movant does not agree with the judgment due to fundamental defects stated in
brief and general terms. Evidently, the purpose of this requirement is to apprise
everyone concerned within the shortest possible time that a reconsideration is to
sought, and thereby enable the parties concerned to make whatever adjustments
may be warranted by the situation, in the meanwhile that the litigation is prolonged.
It must borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might require
day-to-day solutions and it is to the best interests of justice and concerned that the
attitude of each party at every imports juncture of the case be known to the other
so that both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or
inadequate. In fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable

Court most respectfully moves for the RECONSIDERATION of the Order
of this Honorable Court dated September 17, 1969 on the ground that
the same is not in accordance with law, evidence and facts adduced
during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their

respective arguments within ten (10) days pursuant to Section 15, 16
& 17 as amended of the Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for

Reconsideration be admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such
a motion is to me simply incomprehensible. What worse in this case is
that petitioners have not even taken the trouble of giving an
explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written arguments
in support of their motion, and, the only excuse offered for such delay
is that both the President of the Union and the office clerk who took
charge of the matter forgot to do what they were instructed to do by
counsel, which, according to this Court, as I shall explain anon "is the
most hackneyed and habitual subterfuge employed by litigants who
 Page 48 of 192

fail to observe the procedural requirements prescribed by the Rules of

Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such
nonchalance and indifference.

In this connection, I might add that in my considered opinion, the rules fixing
periods for the finality of judgments are in a sense more substantive than
procedural in their real nature, for in their operation they have the effect of either
creating or terminating rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered such final judgment is
deprived of jurisdiction or authority to alter or modify the same enhances such
substantive character. Moreover, because they have the effect of terminating rights
and the enforcement thereof, it may be said that said rules partake of the nature
also of rules of prescription, which again are substantive. Now, the twin predicates
of prescription are inaction or abandonment and the passage of time or a
prescribed period. On the other hand, procrastination or failure to act on time is
unquestionably a form of abandonment, particularly when it is not or cannot be
sufficiently explained. The most valuable right of a party may be lost by
prescription, and be has no reason to complain because public policy demands that
rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the
case of petitioners. Hence, I feel disinclined to adopt the suggestion that the Court
suspend, for the purposes of this case the rules aforequoted of the Court of
Industrial Relations. Besides, I have grave doubts as to whether we can suspend
rules of other courts, particularly that is not under our supervisory jurisdiction, being
administrative agency under the Executive Department Withal, if, in order to hasten
the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of
reviving a case in which the judo has already become final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated
effort to salvage their Petitioners filed in the industrial court on October 31, 1969 a
Petition for relief alleging that their failure to file "Arguments in Support of their
Motion for Reconsideration within the reglementary period or five (5), if not seven
(7), days late "was due to excusable negligence and honest mistake committed by
the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and
K-2) which in brief, consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of the said office
employee having also coincidentally forgotten "to do the work instructed (sic) to
(him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all
can be evoked these allegations, for, under probably more justification
circumstances, this Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos

as reason for his failure to perfect in due time appeal from the
judgment of the Municipal Court, that counsel's clerk forgot to hand
him the court notice, is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe procedural requirements
 Page 49 of 192

prescribed by the Rules of Court. The uncritical acceptance of this kind

of common place excuses, in the face of the Supreme Court's repeated
rulings that they are neither credible nor constitutive of excusable
negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs.
Judge Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be
reviewed in the present case has already become final and executory, nay, not
without the fault of the petitioners, hence, no matter how erroneous from the
constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this
case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in

protest against alleged abuses of the Pasig police department, upon two days' prior
notice to respondent employer company, as against the latter's insistence that the
first shift 1 should not participate but instead report for work, under pain of
dismissal, the industrial court ordered the dismissal from employment of the eight
individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint

of bargaining in bad faith and unfair labor practice for having so carried out the
mass demonstration, notwithstanding that it concededly was not a declaration of
strike nor directed in any manner against respondent employer, and ordering the
dismissal of the union office manifestly constituted grave abuse of discretion in fact
and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since
respondent firm conceded that "the demonstration is an inalienable right of the
union guaranteed' by the Constitution" and the union up to the day of the
demonstration pleaded by cablegram to the company to excuse the first shift and
allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining
agreement's "no-strike" clause as would warrant the union leaders' dismissal, since
as found by respondent court itself the mass demonstration was not a declaration of
a strike, there being no industrial dispute between the protagonists, but merely the
occurrence of a temporary stoppage of work" to enable the workers to exercise
their constitutional rights of free expression, peaceable assembly and petition for
redress of grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for

reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of petitioners'
counsel and/or the union president should likewise be set aside as a manifest act of
grave abuse of discretion. Petitioners' petition for relief from the normal adverse
 Page 50 of 192

consequences of the late filing of their motion for reconsideration due to such
negligence — which was not acted upon by respondent court — should have been
granted, considering the monstrous injustice that would otherwise be caused the
petitioners through their summary dismissal from employment, simply because
they sought in good faith to exercise basic human rights guaranteed them by the
Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main
opinion's premise that its insistence on dismissal of the union leaders for having
included the first shift workers in the mass demonstration against its wishes was but
an act of arbitrary vindictiveness.

Only thus could the basic constitutional rights of the individual petitioners and the
constitutional injunction to afford protection to labor be given true substance and
meaning. No person may be deprived of such basic rights without due process —
which is but "responsiveness to the supremacy of reason, obedience to the dictates
of justice. Negatively put, arbitrariness is ruled out and unfairness avoided ... Due
process is thus hostile to any official action marred by lack of reasonableness.
Correctly it has been identified as freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent
court and concur in the judgment for petitioners as set forth in the main opinion.

Separate Opinions

BARREDO, J., dissenting:

I bow in respectful and sincere admiration, but my sense of duty compels me to

dissent.

The background of this case may be found principally in the stipulation of facts
upon which the decision under review is based. It is as follows:

1. That complainant Philippine Blooming Mills, Company, Inc., is a

corporation existing and operating under and by virtue of the laws of
the Philippines with corporate address at 666 Muelle de Binondo,
Manila, which is the employer of respondent;

2. That Philippine Blooming Mills Employees Organization PBMEO for

short, is a legitimate labor organization, and the respondents herein
are either officers of respondent PBMEO or members thereof;

3. That on March 2, 1969 complainant company learned of the

projected mass demonstration at Malacañang in protest against
alleged abuses of the Pasig Police Department to be participated by
the first shift (6:00 AM — 2:00 PM workers as well as those working in
 Page 51 of 192

the regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM in the
morning of March 4, 1969;

4. That a meeting was called by the Company on March 3, 1969 at

about 11:00 A.M. at the Company's canteen, and those present were:
for the Company: (1) Mr. Arthur L. Ang, (2) Atty. Cesareo S. de Leon, Jr.
(3) and all department and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4) Asencion
Paciente, (5) Bonifacio Vacuna and (6) Benjamin Pagcu.

5. That the Company asked the union panel to confirm or deny said
projected mass demonstration at Malacañang on March 4, 1969.
PBMEO thru Benjamin Pagcu who acted as the spokesman of the union
panel, confirmed the planned demonstration and stated that the
demonstration or rally cannot be cancelled because it has already
been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union
has no quarrel or dispute with Management;

6. That Management, thru Atty. C.S. de Leon, Company personnel

manager, informed PBMEO that the demonstration is an inalienable
right of the union guaranteed by the Constitution but emphasized,
however, that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For which reason, the
Company, thru Atty. C.S. de Leon, warned the PBMEO representatives
that workers who belong to the first and regular shifts, who without
previous leave of absence approved by the Company, particularly the
officers present who are the organizers of the demonstration, who shall
fail to report for work the following morning (March 4, 1969) shall be
dismissed, because such failure is a violation of the existing CBA and,
therefore, would be amounting to an illegal strike;

7. That at about 5:00 P.M. on March 3, 1969, another meeting was

convoked. Company represented by Atty. C.S. de Leon, Jr. The Union
panel was composed of: Nicanor Tolentino, Rodulfo Munsod, Benjamin
Pagcu and Florencio Padrigano. In this afternoon meeting of March 3,
1969, Company reiterated and appealed to the PBMEO representatives
that while all workers may join the Malacañang demonstration, the
workers for the first and regular shift of March 4, 1969 should be
excused from joining the demonstration and should report for work;
and thus utilize the workers in the 2nd and 3rd shifts in order not to
violate the provisions of the CBA, particularly Article XXIV "NO
LOCKOUT — NO STRIKE". All those who will not follow this warning of
the Company shall be dismissed; De Leon reiterated the Company's
warning that the officers shall be primarily liable being the organizers
of the mass demonstration. The union panel countered that it was
rather too late to change their plans inasmuch as the Malacañang
demonstration will be held the following morning; and
 Page 52 of 192

8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO sent a

cablegram to the Company which was received 9:50 A.M., March 4,
1969, the contents of which are as follows: 'REITERATING REQUEST
EXCUSE DAY SHIFT EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.

Additionally, the trial court found that "the projected demonstration did in fact occur
and in the process paralyzed to a large extent the operations of the complainant
company". (p. 5, Annex F).

Upon these facts the Prosecution Division of the Court of Industrial Relations filed
with said court a complaint for Unfair Labor Practice against petitioners charging
that: .

3. That on March 4, 1969, respondents (petitioners herein) particularly

those in the first shift, in violation of the existing collective bargaining
agreement and without filing the necessary notice as provided for by
law, failed to report for work, amounting to a declaration of strike;

4. That the above acts are in violation of Section 4(a) subparagraph 6,

in relation to Sections 13, 14 and 15 of Republic Act No. 875, and of
the collective bargaining agreement. (Pars. 3 and 4, Annex C.)

After due hearing, the court rendered judgment, the dispositive part of which
read's:

IN VIEW HEREOF, the respondent Philippine Blooming Mills Employees

Organization is found guilty of bargaining in bad faith and is hereby
ordered to cease and desist from further committing the same and its
representatives namely: respondent Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin
Pagcu, Nicanor Tolentino and Rodulfo Monsod who are directly
responsible for perpetrating this unfair labor practice act, are hereby
considered to have lost their status as employees of the Philippine
Blooming Mills, Inc. (p. 8, Annex F.)

Although it is alleged in the petition herein that petitioners were notified of this
decision on September 23, 1969, there seems to be no serious question that they
were actually served therewith on September 22, 1969. In fact, petitioners admitted
this date of notice in paragraph 2 of their Petition for Relief dated October 30, 1969
and filed with the industrial court on the following day. (See Annex K.)

It is not controverted that it was only on September 29, 1969, or seven (7) days
after they were notified of the court's decision, that petitioners filed their motion for
reconsideration with the industrial court; as it is also not disputed that they filed
their "Arguments in Support of the Respondents' Motion for Reconsideration" only
on October 14, 1969. (See Annex I.) In other words, petitioners' motion for
reconsideration was filed two (2) days after the lapse of the five (5) day period
provided for the filing thereof in the rules of the Court of Industrial Relations,
 Page 53 of 192

whereas the "Arguments" were filed five (5) days after the expiration of the period
therefor also specified in the same rules.

Accordingly, the first issue that confronts the Court is the one raised by respondent
private firm, namely, that in view of the failure of petitioners to file not only their
motion for reconsideration but also their arguments in support thereof within the
periods respectively fixed in the rules therefor, the Court of Industrial Relations
acted correctly and within the law in rendering and issuing its impugned order of
October 9, 1969 dismissing petitioners' motion for reconsideration.

Respondent's contention presents no problem. Squarely applicable to the facts

hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of Industrial
Relations1 wherein it was ruled that:

August 6, 1963. Petitioner received a copy of the decision of the then

Associate Judge Arsenio I. Martinez, the dispositive part of which was
set forth earlier in this opinion.

August 12, 1963. Petitioner filed a motion for reconsideration. No

arguments were advanced in support thereof.

August 21, 1963. Petitioner moved for additional time to file its
arguments in support of its motion to reconsider.

August 27, 1963. Petitioner filed its arguments in support of its

aforesaid motion seeking reconsideration.

September 16, 1963. CIR en banc  resolved to dismiss the motion for
reconsideration. Ground therefor was that the arguments were filed
out of time.

October 3, 1963. Petitioner filed its notice of appeal and at the same
time lodged the present petition with this Court.

Upon respondent Perlado's return and petitioner's brief (respondents

did not file their brief), the case is now before us for resolution.

1. That the judgment appealed from is a final judgment — not merely

an interlocutory order — there is no doubt. The fact that there is need
for computation of respondent Perlado's overtime pay would not
render the decision incomplete. This in effect is the holding of the
Court in Pan American World Airways System (Philippines) vs. Pan
American Employees Association, which runs thus: 'It is next
contended that in ordering the Chief of the Examining Division or his
representative to compute the compensation due, the Industrial Court
unduly delegated its judicial functions and thereby rendered an
incomplete decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most. And the report
would still have to be submitted to the Industrial Court for its approval,
 Page 54 of 192

by the very terms of the order itself. That there was no specification of
the amount of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear enough in the
implementation of the decision (see Malate Taxicab & Garage, Inc. vs.
CIR, et al.,
L-8718, May 11, 1956).

2. But has that judgment reached the stage of finality in the sense that
it can no longer, be disturbed?

CIR Rules of Procedure, as amended, and the jurisprudence of this

Court both answer the question in the affirmative.

Section 15 of the CIR Rules requires that one who seeks to reconsider
the judgment of the trial judge must do so within five (5) days from the
date on which he received notice of the decision, subject of the motion.
Next follows Section 16 which says that the motion must be submitted
with arguments supporting the same. But if said arguments could not
be submitted simultaneously with the motion, the same section
commands the 'the movant shall file the same within ten (10) days
from the date of the filing of his motion for reconsideration.' Section 17
of the same rules admonishes a movant that "(f)ailure to observe the
above-specified periods shall be sufficient cause for dismissal of the
motion for reconsideration or striking out of the answer and/or the
supporting arguments, as the case may be".

Not that the foregoing rules stand alone. Jurisprudence has since
stabilized the enforceability thereof. Thus, in Bien vs. Castillo, (97 Phil.
956) we ruled that where a pro forma motion for reconsideration was
filed out of time its denial is in order pursuant to CIR rules, regardless
of whether the arguments in support of said motion were or were not
filed on time. Pangasinan Employees Laborers & Tenants Association
(PELTA) vs. Martinez, (L-13846, May 20, 1960) pronounced that where
a motion to reconsider is filed out of time, the order or decision subject
of reconsideration comes final. And so also, where the arguments in
support of the motion for reconsideration are filed beyond the ten-day
reglementary period, the pre forma motion for reconsideration
although seasonably filed must nevertheless be denied. This in
essence is our ruling in Local 7, Press & Printing Free Workers (FFW)
vs. Tabigne. The teaching in Luzon Stevedoring Co., Inc. vs. Court of
Industrial Relations, is that where the motion for reconsideration is
denied upon the ground that the arguments in support thereof were
filed out of time, the order or decision subject of the motion becomes
"final and unappealable".

We find no difficulty in applying the foregoing rules and

pronouncements of this Court in the case before us. On August 6,
petitioner received a copy of the judgment of Judge Arsenio I. Martinez
aforesaid. Petitioner's motion to reconsider — without arguments in
support thereof — of August 12 was filed on time. For, August 11, the
 Page 55 of 192

end of the five-day reglementary period to file a motion for

reconsideration, was a Sunday. But, actually, the written arguments in
support of the said motion were submitted to the court on August 27.
The period from August 12 to August 27, is a space of fifteen (15)
days. Surely enough, said arguments were filed out of time — five (5)
days late. And the judgment had become final.

3. There is, of course, petitioner's motion of August 21, 1963 seeking

extension of time within which to present its arguments in support of
its motion. Counsel in his petition before this Court pleads that the
foregoing motion was grounded on the 'extremely busy and difficult
schedule of counsel which would not enable him to do so within the
stated ten-day reglementary period. The arguments were only filed on
August 27 — five (5) days late, as aforesaid.

The foregoing circumstances will not avail petitioner any. It is to be

noted that the motion for expansion of time was filed only on August
21, that is, one day before the due date which is August 22. It was
petitioner's duty to see to it that the court act on this motion forthwith
or at least inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the 27th.

To be underscored at this point is that "obviously to speed up the

disposition of cases", CIR "has a standing rule against the extension of
the ten-day period for filing supporting arguments". That no-extension
policy should have placed petitioner on guard. It should not have
simply folded its arms, sit by supinely and relied on the court's
generosity. To compound petitioner's neglect, it filed the arguments
only on August 27, 1953, knowing full well that by that time the
reglementary period had expired.

Petitioner cannot complain against CIR's ruling of September 16, 1963

dismissing the motion for reconsideration on the ground that the
supporting arguments were filed out of time. That ruling in effect
denied the motion for extension.

We rule that CIR's judgment has become final and unappealable. We

may not review the same.

Notwithstanding this unequivocal and unmistakable precedent, which has not been
in any way modified, much less revoked or reversed by this Court, the main opinion
has chosen not only to go into the merits of petitioners' pose that the respondent
court erred in holding them guilty of bargaining in bad faith but also to ultimately
uphold petitioners' claim for reinstatement on constitutional grounds.

Precisely because the conclusions of the main opinion are predicated on an

exposition of the constitutional guarantees of freedoms of speech and peaceful
assembly for redress of grievances, so scholarly and masterful that it is bound to
overwhelm Us unless We note carefully the real issues in this case, I am
 Page 56 of 192

constrained, over and above my sincere admiration for the eloquence and zeal of
Mr. Justice Makasiar's brilliant dissertation, to dutifully state that as presented by
petitioners themselves and in the light of its attendant circumstances, this case
does not call for the resolution of any constitutional issue. Admittedly, the
invocation of any constitutional guarantee, particularly when it directly affects
individual freedoms enshrined in the bill of rights, deserves the closest attention of
this Court. It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights may be
protected by the courts only when their jurisdiction over the subject matter is
unquestionably established and the applicable rules of procedure consistent with
substantive and procedural due process are observed. No doubt no constitutional
right can be sacrificed in the altar of procedural technicalities, very often fittingly
downgraded as niceties but as far as I know, this principle is applied to annul or set
aside final judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or cited in the
well-documented main opinion, wherein a final and executory judgment has been
invalidated and set aside upon the ground that the same has the effect of
sanctioning the violation of a constitutional right, unless such violation amounts to a
denial of due process.

Without support from any provision of the constitution or any law or from any
judicial precedent or reason of principle, the main opinion nudely and unqualifiedly
asserts, as if it were universally established and accepted as an absolute rule, that
the violation of a constitutional right divests the court of jurisdiction; and as a
consequence its judgment is null and void and confers no rights". Chavez vs. Court
of Appeals, 24 SCRA 663, which is mentioned almost in passing, does uphold the
proposition that "relief from a criminal conviction secured at the sacrifice of
constitutional liberties, may be obtained through habeas corpus proceedings even
after the finality of the judgment". And, of course, Chavez  is correct; as is
also Abriol vs. Homeres2 which, in principle, served as its precedent, for the very
simple reason that in both of those cases, the accused were denied due process. In
Chavez, the accused was compelled to testify against himself as a witness for the
prosecution; in Abriol, the accused was denied his request to be allowed to present
evidence to establish his defense after his demurrer to the People's evidence was
denied.

As may be seen, however, the constitutional issues involved in those cases are a far
cry from the one now before Us. Here, petitioners do not claim they were denied
due process. Nor do they pretend that in denying their motion for reconsideration,
"the respondent Court of Industrial Relations and private firm trenched upon any of
their constitutional immunities ...," contrary to the statement to such effect in the
main opinion. Indeed, neither in the petition herein nor in any of the other pleading
of petitioners can any direct or indirect assertion be found assailing the impugned
decision of the respondent court as being null and void because it sanctioned a
denial of a valued constitutional liberty.

In their petition, petitioners state the issue for Our resolution as follows:

Petitioners herein humbly submit that the issue to be resolved is

whether or not the respondent Court en banc under the facts and
 Page 57 of 192

circumstances, should consider the Motion for Reconsideration filed by

your petitioners.

Petitioners, therefore, in filing this petition for a writ of certiorari,

humbly beg this Honorable Court to treat this petition under Rule 43
and 65 of the Rules of Court.

xxx xxx xxx

The basic issue therefore is the application by the Court en banc of the
strict and narrow technical rules of procedure without taking into
account justice, equity and substantial merits of the case.

On the other hand, the complete argument submitted by petitioners on

this point in their brief runs thus:

III

ISSUES

1. Does the refusal to heed a warning in the exercise of a fundamental

right to peaceably assemble and petition the government for redress
of grievances constitute bargaining in bad faith? and,

Do the facts found by the court below justify the declaration and
conclusion that the union was guilty of bargaining in bad faith meriting
the dismissal of the persons allegedly responsible therefore?

2. Was there grave abuse of discretion when the respondent court

refused to act one way or another on the petition for relief from the
resolution of October 9, 1969?

IV

ARGUMENT

The respondent Court erred in finding the petition union guilty of

bargaining in bad faith and consequently dismissing the persons
allegedly responsible therefor, because such conclusion is country to
the evidence on record; that the dismissal of leaders was
discriminatory.

As a result of exercising the constitutional rights of freedom to

assemble and petition the duly constituted authorities for redress of
their grievances, the petitioners were charged and then condemned of
bargaining in bad faith.

The findings that petitioners were guilty of bargaining in bad faith were
not borne out by the records. It was not even alleged nor proven by
 Page 58 of 192

evidence. What has been alleged and which the respondent company
tried to prove was that the demonstration amounted to a strike and
hence, a violation of the provisions of the "no-lockout — no strike"
clause of the collective bargaining agreement. However, this allegation
and proof submitted by the respondent company were practically
resolved when the respondent court in the same decision stated
categorically:

'The company alleges that the walkout because of the

demonstration is tantamount to a declaration of a strike.
We do not think so, as the same is not rooted in
any industrial dispute although there is a concerted act
and the occurrence of a temporary stoppage of work.'
(Emphasis supplied, p. 4, 5th paragraph, Decision.)

The respondent court's findings that the petitioner union

bargained in bad faith is not tenable because:

First, it has not been alleged nor proven by the respondent company; .

Second, before the demonstration, the petitioner union and the

respondent company convened twice in a meeting to thresh out the
matter of demonstration. Petitioners requested that the employees and
workers be excused but the respondent company instead of granting
the request or even settling the matter so that the hours of work will
not be disrupted, immediately threatened the employees of mass
dismissal;

Third, the refusal of the petitioner union to grant the request of the
company that the first shift shall be excluded in the demonstration is
not tantamount to bargaining in bad faith because the company knew
that the officers of the union belonged to the first shift, and that the
union cannot go and lead the demonstration without their officers. It
must be stated that the company intends to prohibit its officers to lead
and join the demonstration because most of them belonged to the first
shift; and

Fourth, the findings of the respondent court that the demonstration if

allowed will practically give the union the right to change the working
conditions agreed in the CBA is a conclusion of facts, opinionated and
not borne by any evidence on record. The demonstration did not
practically change the terms or conditions of employment because it
was only for one (1) day and the company knew about it before it went
through. We can even say that it was the company who bargained in
bad faith, when upon representation of the Bureau of Labor not to
dismiss the employees demonstrating, the company tacitly approved
the same and yet while the demonstration was in progress, the
company filed a ULP Charge and consequently dismissed those who
participated.
 Page 59 of 192

Records of the case show that more or less 400 members of the union
participated in the demonstration and yet, the respondent court
selected the eight officers to be dismissed from the union thus losing
their status as employees of the respondent company. The respondent
court should have taken into account that the company's action in
allowing the return of more or less three hundred ninety two (392)
employees/members of the union is an act of condonation and the
dismissal of the eight (8) officers is an act of discrimination (Phil. Air
Lines Inc., vs. Phil. Air Lines Employees Association, G.R. No. L-8197,
Oct. 31, 1958). Seemingly, from the opinion stated in the decision by
the court, while there is a collective bargaining agreement, the union
cannot go on demonstration or go on strike because it will change the
terms and conditions of employment agreed in the CBA. It follows that
the CBA is over and above the constitutional rights of a man to
demonstrate and the statutory rights of a union to strike as provided
for in Republic Act 875. This creates a bad precedent because it will
appear that the rights of the union is solely dependent upon the CBA.

One of the cardinal primary rights which must be respected in

proceedings before the Court of Industrial Relations is that "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." (Interstate Commerce Commission vs. L & N R. Co., 227 U.S.
88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining the
administrative tribunal to the evidence disclosed to the parties, can the
latter be protected in their rights to know and meet the case against
them. (Ang Tibay vs. CIR, G.R. No. L-45496, February 27, 1940.)

The petitioners respectfully and humbly submit that there is no scintilla

of evidence to support the findings of the respondent court that the
petitioner union bargained in bad faith. Corollary therefore, the
dismissal of the individual petitioners is without basis either in fact or
in law.

Additionally, in their reply they also argued that:

1) That respondent court's finding that petitioners have been guilty of

bargaining in bad faith and consequently lost their status as
employees of the respondent company did not meet the meaning and
comprehension of "substantial merits of the case." Bargaining in bad
faith has not been alleged in the complaint (Annex "C", Petition) nor
proven during the hearing of the can. The important and substantial
merit of the case is whether under the facts and circumstances alleged
in respondent company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in violation of
the "no strike — no lock out" clause of the Collective Bargaining
Agreement. Petitioners respectfully reiterate and humbly submit, that
the respondent court had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with that findings,
petitioners should have been absolved of the charges against them.
 Page 60 of 192

Nevertheless, the same respondent court disregarding, its own

findings, went out of bounds by declaring the petitioners as having
"bargained in faith." The stand of the respondent court is fallacious, as
it follows the principle in logic as "non-siquitor";

2) That again respondents wanted to impress that the freedom to

assemble peaceably to air grievances against the duly constituted
authorities as guaranteed in our Constitution is subject to the limitation
of the agreement in the Collective Bargaining Agreement. The
fundamental rights of the petitioners to free speech and assembly is
paramount to the provision in the Collective Bargaining Agreement and
such attempt to override the constitutional provision would be null and
void. These fundamental rights of the petitioners were not taken into
consideration in the deliberation of the case by the respondent court;

Thus, it is clear from the foregoing contentions that petitioners are not raising any
issue of due process. They do not posit that the decision of the industrial court is
null and void on that constitutional ground. True it is that they fault the respondent
court for having priced the provisions of the collective bargaining agreement herein
involved over and above their constitutional right to peaceably assemble and
petition for redress of their grievances against the abuses of the Pasig police, but in
no sense at all do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere error of
judgment rather than that of jurisdiction which the main opinion projects. For this
Court to roundly and indignantly condemn private respondent now for the grievous
violation of the fundamental law the main opinion sees in its refusal to allow all its
workers to join the demonstration in question, when that specific issue has not been
duly presented to Us and properly argued, is to my mind unfair and unjust, for the
simple reason that the manner this case was brought to Us does not afford it the
opportunity to be heard in regard to such supposed constitutional transgression.

To be sure, petitioners do maintain, that respondent court committed an error of

jurisdiction by finding petitioners guilty of bargaining in bad faith when the charge
against them alleged in the complaint was for having conducted a mass
demonstration, which "amounted to a strike", in violation of the Collective
Bargaining Agreement, but definitely, this jurisdictional question has no
constitutional color. Indeed, We can even assume for the sake of argument, that the
trial judge did err in not giving preferential importance to the fundamental freedoms
invoked by the petitioners over the management and proprietary attributes claimed
by the respondent private firm — still, We cannot rightly hold that such disregard of
petitioners' priceless liberties divested His Honor of jurisdiction in the premises. The
unbending doctrine of this Court is that "decisions, erroneous or not, become final
after the period fixed by law; litigations would be endless, no questions would be
finally settled; and titles to property would become precarious if the losing party
were allowed to reopen them at any time in the future". 3

I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a denial of
due process, should not make any difference. Juridically, a party cannot be less
 Page 61 of 192

injured by an overlooked or erroneously sanctioned violation of an ordinary statute

than by a misconstrued or constitutional injunction affecting his individual,
freedoms. In both instances, there is injustice which should be intolerable were it
not for the more paramount considerations that inform the principle of immutability
of final judgments. I dare say this must be the reason why, as I have already noted,
the main opinion does not cite any constitutional provision, law or rule or any
judicial doctrine or principle supporting its basic holding that infringement of
constitutional guarantees, other than denial of due process, divests courts of
jurisdiction to render valid judgments.

In this connection, it must be recalled that the teaching of Philippine Association of

Colleges and Universities vs. Secretary of Education,4 following Santiago vs. Far
Eastern Broadcasting,5 is that "it is one of our (the Supreme Court's) decisional
practices that unless a constitutional point is specifically raised, insisted upon and
adequately argued, the court will not consider it". In the case at bar, the petitioners
have not raised, they are not insisting upon, much less have they adequately
argued the constitutional issues so extendedly and ably discussed in the main
opinion.

Indeed, it does not seem wise and sound for the Supreme Court to hold that the
erroneous resolution by a court of a constitutional issue not amounting to a denial
of due process renders its judgment or decision null and void, and, therefore,
subject to attack even after said judgment or decision has become final and
executory. I have actually tried to bring myself into agreement with the views of the
distinguished and learned writer of the main opinion, if only to avoid dissenting from
his well prepared thesis, but its obvious incongruity with settled jurisprudence
always comes to the fore to stifle my effort.

As a matter of fact, for a moment, it appeared to me as if I could go along with

petitioners under the authority of our constitutionally irreducible appellate
jurisdiction under Section 2(5) of Article VII of the Philippines 6 (reenacted
practically ipssisimis verbis in Section 5(2) of the 1973 Constitution), only to realize
upon further reflection that the very power granted to us to review decisions of
lower courts involving questions of law(and these include constitutional issues not
affecting the validity of statutes, treaty, executive agreement, etc.) is not
unqualified but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate jurisdiction over
constitutional issues, no matter how important they may be, there must first be a
showing of compliance with the applicable procedural law or rules, among them,
those governing appeals from the Court of Industrial Relations involved herein.
Consequently, if by law or rule, a judgment of the industrial court is already final
and executory, this Court would be devoid of power and authority to review, much
less alter or modify the same, absent any denial of due process or fatal defect of
jurisdiction. It must be borne in mind that the situation confronting Us now is not
merely whether or not We should pass upon a question or issue not specifically
raised by the party concerned, which, to be sure, could be enough reason to
dissuade Us from taking pains in resolving the same; rather, the real problem here
is whether or not We have jurisdiction to entertain it. And, in this regard, as already
stated earlier, no less than Justice Conrado Sanchez, the writer of Chavez, supra.,
which is being relied upon by the main opinion, already laid down the precedent
 Page 62 of 192

in Elizalde vs. Court, supra, which for its four-square applicability to the facts of this
case, We have no choice but to follow, that is, that in view of reconsideration but
even their argument supporting the same within the prescribed period, "the
judgment (against them)has become final, beyond recall".

Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness thereof
from the constitutional standpoint, and that in truth, whether or not they are correct
is something that is always dependent upon combined opinion of the members of
the Supreme Court, which in turn is naturally as changeable as the members
themselves are changed, I cannot conceive of anything more pernicious and
destructive to a trustful administration of justice than the idea that, even without
any showing of denial of due process or want of jurisdiction of the court, a final and
executory judgment of such court may still be set aside or reopened in instances
other than those expressly allowed by Rule 38 and that of extrinsic fraud under
Article 1146(1) of the Civil Code.7 And just to emphasize the policy of the law of
respecting judgments once they have become final, even as this Court has ruled
that final decisions are mute in the presence of fraud which the law abhors, 8 it is
only when the fraud is extrinsic and not intrinsic that final and executory judgments
may be set aside,9 and this only when the remedy is sought within the prescriptive
period. 10

Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw, 82 Phil. 776:

Litigation must end and terminate sometime and somewhere, and it is

essential to an effective and efficient administration of justice that
once a judgment has become final, the winning party be not, through a
mere subterfuge, deprived of the fruits of the verdict. Courts must
therefore guard against any scheme calculated to bring about that
result. Constituted as they are to put an end to controversies, courts
should frown upon any attempt to prolong them.

Likewise the stern admonition of Justice George Malcolm in Dy Cay v. Crossfield, 38

Phil. 521, thus:

... Public policy and sound practice demand that, at the risk of
occasional errors, judgments of courts should become final at some
definite date fixed by law. The very object for which courts were
instituted was to put an end to controversies. To fulfill this purpose and
to do so speedily, certain time limits, more or less arbitrary, have to be
set up to spur on the slothful. 'If a vacillating, irresolute judge were
allowed to thus keep causes ever within his power, to determine and
redetermine them term after term, to bandy his judgments about from
one party to the other, and to change his conclusions as freely and as
capriciously as a chamelon may change its hues, then litigation might
become more intolerable than the wrongs it is intended to redress.'
(See Arnedo vs. Llorente and Liongson (1911), 18 Phil., 257.).

My disagreement with the dissenters in Republic vs. Judge de los Angeles,

L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability and
 Page 63 of 192

invulnerability of final judgments but rather on the correct interpretation of the

contents of the judgment in question therein. Relevantly to this case at bar, I said
then:

The point of res adjudicata discussed in the dissents has not escaped

my attention. Neither am I overlooking the point of the Chief Justice
regarding the dangerous and inimical implications of a ruling that
would authorize the revision, amendment or alteration of a final and
executory judgment. I want to emphasize that my position in this
opinion does not detract a whit from the soundness, authority and
binding force of existing doctrines enjoining any such modifications.
The public policy of maintaining faith and respect in judicial decisions,
which inform said doctrines, is admittedly of the highest order. I am
not advocating any departure from them. Nor am I trying to put forth
for execution a decision that I believe should have been rather than
what it is. All I am doing is to view not the judgment of Judge Tengco
but the decision of this Court in G.R. No. L-20950, as it is and not as I
believe it should have been, and, by opinion, I would like to guide the
court a quo as to what, in my own view, is the true and correct
meaning and implications of decision of this Court, not that of Judge
Tengco's.

The main opinion calls attention to many instant precisely involving cases in the
industrial court, wherein the Court refused to be constrained by technical rules of
procedure in its determination to accord substantial justice to the parties I still
believe in those decisions, some of which were penned by me. I am certain,
however, that in none of those precedents did this Court disturb a judgment already
final and executory. It too obvious to require extended elucidation or even reference
any precedent or authority that the principle of immutability of final judgments is
not a mere technicality, and if it may considered to be in a sense a procedural rule,
it is one that is founded on public policy and cannot, therefore, yield to the ordinary
plea that it must give priority to substantial justice.

Apparently vent on looking for a constitutional point of due process to hold on, the
main opinion goes far as to maintain that the long existing and constantly applied
rule governing the filing of motions for reconsideration in the Court of Industrial
Relations, "as applied in this case does not implement on reinforce or strengthen
the constitutional rights affected, but instead constricts the same to the point of
nullifying the enjoyment thereof by the petitioning employees. Said Court on
Industrial Relations Rule, promulgated as it was pursuant to mere legislative
delegation, is unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a motion for
reconsideration is too short, especially for the aggrieve workers, who usually do not
have the ready funds to meet the necessary expenses therefor. In case of the Court
of Appeal and the Supreme Court, a period of fifteen (15) days has been fixed for
the filing of the motion for re-hearing or reconsideration (Sec. 10, Rule 51; Sec. 1,
Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September 28, 1969
was not a Sunday. This fact accentuates the unreasonableness of the Court of
 Page 64 of 192

Industrial Relations Rule insofar as circumstances of the instant case are

concerned."

I am afraid the zeal and passion of these arguments do not justify the conclusion
suggested. Viewed objectively, it can readily be seen that there can hardly be any
factual or logical basis for such a critical view of the rule in question. Said rule
provides:

MOTIONS FOR RECONSIDERATION

Sec. 15. The movant shall file the motion, in six copies, within five (5)
days from the date on which he receives notice of the order or
decision, object of the motion for reconsideration, the same to be
verified under oath with respect to the correctness of the allegations of
fact, and serving a copy thereof, personally or by registered mail, on
the adverse party. The latter may file an answer, in six (6) copies, duly
verified under oath.

Sec. 16. Both the motion and the answer shall be submitted with
arguments supporting the same. If the arguments can not be
submitted simultaneously with said motions, upon notice Court, the
movant shall file same within ten (10) days from the date of the filing
of his motion for reconsideration. The adverse party shall also file his
answer within ten (10) days from the receipt by him of a copy of the
arguments submitted by the movant.

Sec. 17. After an answer to the motion is registered, or after ten (10)
days from the receipt of the arguments in support of said motion
having been filed, the motion shall be deemed submitted for resolution
of the Court in banc, unless it is considered necessary to bear oral
arguments, in which case the Court shall issue the corresponding order
or notice to that effect.

Failure to observe the above-specified periods shall be sufficient cause

for dismissal of the motion for reconsideration or striking out of the
answer and/or the supporting arguments, as the case may be. (As
amended April 20, 1951, Court of Industrial Relations.).

As implemented and enforced in actual practice, this rule, as everyone acquainted

with proceedings in the industrial court well knows, precisely permits the party
aggrieved by a judgment to file no more than a pro-forma motion for
reconsideration without any argument or lengthy discussion and with barely a brief
statement of the fundamental ground or grounds therefor, without prejudice to
supplementing the same by making the necessary exposition, with citations laws
and authorities, in the written arguments the be filed (10) days later. In truth, such
a pro-forma motion has to effect of just advising the court and the other party that
the movant does not agree with the judgment due to fundamental defects stated in
brief and general terms. Evidently, the purpose of this requirement is to apprise
everyone concerned within the shortest possible time that a reconsideration is to
 Page 65 of 192

sought, and thereby enable the parties concerned to make whatever adjustments
may be warranted by the situation, in the meanwhile that the litigation is prolonged.
It must borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might require
day-to-day solutions and it is to the best interests of justice and concerned that the
attitude of each party at every imports juncture of the case be known to the other
so that both avenues for earlier settlement may, if possible, be explored.

There can be no reason at all to complain that the time fixed by the rule is short or
inadequate. In fact, the motion filed petitioners was no more than the following:

MOTION FOR RECONSIDERATION

COME NOW movant respondents, through counsel, to this Honorable

Court most respectfully moves for the RECONSIDERATION of the Order
of this Honorable Court dated September 17, 1969 on the ground that
the same is not in accordance with law, evidence and facts adduced
during the hearing of the above entitled case.

Movant-respondents most respectfully move for leave to file their

respective arguments within ten (10) days pursuant to Section 15, 16
& 17 as amended of the Rules of Court.

WHEREFORE, it is respectfully prayed that this Motion for

Reconsideration be admitted.

Manila, September 27, 1969.

To say that five (5) days is an unreasonable period for the filing of such
a motion is to me simply incomprehensible. What worse in this case is
that petitioners have not even taken the trouble of giving an
explanation of their inability to comply with the rule. Not only that,
petitioners were also late five (5) days in filing their written arguments
in support of their motion, and, the only excuse offered for such delay
is that both the President of the Union and the office clerk who took
charge of the matter forgot to do what they were instructed to do by
counsel, which, according to this Court, as I shall explain anon "is the
most hackneyed and habitual subterfuge employed by litigants who
fail to observe the procedural requirements prescribed by the Rules of
Court". (Philippine Airlines, Inc. vs. Arca, infra). And yet, very
indignantly, the main opinion would want the Court to overlook such
nonchalance and indifference.

In this connection, I might add that in my considered opinion, the rules fixing
periods for the finality of judgments are in a sense more substantive than
procedural in their real nature, for in their operation they have the effect of either
creating or terminating rights pursuant to the terms of the particular judgment
concerned. And the fact that the court that rendered such final judgment is
deprived of jurisdiction or authority to alter or modify the same enhances such
 Page 66 of 192

substantive character. Moreover, because they have the effect of terminating rights
and the enforcement thereof, it may be said that said rules partake of the nature
also of rules of prescription, which again are substantive. Now, the twin predicates
of prescription are inaction or abandonment and the passage of time or a
prescribed period. On the other hand, procrastination or failure to act on time is
unquestionably a form of abandonment, particularly when it is not or cannot be
sufficiently explained. The most valuable right of a party may be lost by
prescription, and be has no reason to complain because public policy demands that
rights must be asserted in time, as otherwise they can be deemed waived.

I see no justification whatsoever for not applying these self-evident principles to the
case of petitioners. Hence, I feel disinclined to adopt the suggestion that the Court
suspend, for the purposes of this case the rules aforequoted of the Court of
Industrial Relations. Besides, I have grave doubts as to whether we can suspend
rules of other courts, particularly that is not under our supervisory jurisdiction, being
administrative agency under the Executive Department Withal, if, in order to hasten
the administration of substance justice, this Court did exercise in some instances its
re power to amend its rules, I am positively certain, it has done it for the purpose of
reviving a case in which the judo has already become final and executory.

Before closing, it may be mentioned here, that as averred their petition, in a belated
effort to salvage their Petitioners filed in the industrial court on October 31, 1969 a
Petition for relief alleging that their failure to file "Arguments in Support of their
Motion for Reconsideration within the reglementary period or five (5), if not seven
(7), days late "was due to excusable negligence and honest mistake committed by
the President of the respondent Union and on office clerk of the counsel for
respondents as shown attested in their respective affidavits", (See Annexes K, and
K-2) which in brief, consisted allegedly of the President's having forgotten his
appointment with his lawyer "despite previous instructions and of the said office
employee having also coincidentally forgotten "to do the work instructed (sic) to
(him) by Atty. Osorio" because he "was busy with clerical jobs". No sympathy at all
can be evoked these allegations, for, under probably more justification
circumstances, this Court ruled out a similar explanation previous case this wise:

We find merit in PAL's petition. The excuse offered respondent Santos

as reason for his failure to perfect in due time appeal from the
judgment of the Municipal Court, that counsel's clerk forgot to hand
him the court notice, is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe procedural requirements
prescribed by the Rules of Court. The uncritical acceptance of this kind
of common place excuses, in the face of the Supreme Court's repeated
rulings that they are neither credible nor constitutive of excusable
negligence (Gaerlan vs. Bernal, L-4039, 29 January 1952; Mercado vs.
Judge Domingo, L-19457, December 1966) is certainly such whimsical
exercise of judgment to be a grave abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)

For the reason, therefore, that the judgment of the industrial court sought to be
reviewed in the present case has already become final and executory, nay, not
without the fault of the petitioners, hence, no matter how erroneous from the
 Page 67 of 192

constitutional viewpoint it may be, it is already beyond recall, I vote to dismiss this
case, without pronouncement as to costs.

TEEHANKEE, J., concurring:

For having carried out a mass demonstration at Malacañang on March 4, 1969 in

protest against alleged abuses of the Pasig police department, upon two days' prior
notice to respondent employer company, as against the latter's insistence that the
first shift 1 should not participate but instead report for work, under pain of
dismissal, the industrial court ordered the dismissal from employment of the eight
individual petitioners as union officers and organizers of the mass demonstration.

Respondent court's order finding petitioner union guilty on respondent's complaint

of bargaining in bad faith and unfair labor practice for having so carried out the
mass demonstration, notwithstanding that it concededly was not a declaration of
strike nor directed in any manner against respondent employer, and ordering the
dismissal of the union office manifestly constituted grave abuse of discretion in fact
and in law.

There could not be, in fact, bargaining in bad faith nor unfair labor practice since
respondent firm conceded that "the demonstration is an inalienable right of the
union guaranteed' by the Constitution" and the union up to the day of the
demonstration pleaded by cablegram to the company to excuse the first shift and
allow it to join the demonstration in accordance with their previous requests.

Neither could there be, in law, a willful violation of the collective bargaining
agreement's "no-strike" clause as would warrant the union leaders' dismissal, since
as found by respondent court itself the mass demonstration was not a declaration of
a strike, there being no industrial dispute between the protagonists, but merely the
occurrence of a temporary stoppage of work" to enable the workers to exercise
their constitutional rights of free expression, peaceable assembly and petition for
redress of grievance against alleged police excesses.

Respondent court's en banc resolution dismissing petitioners' motion for

reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of petitioners'
counsel and/or the union president should likewise be set aside as a manifest act of
grave abuse of discretion. Petitioners' petition for relief from the normal adverse
consequences of the late filing of their motion for reconsideration due to such
negligence — which was not acted upon by respondent court — should have been
granted, considering the monstrous injustice that would otherwise be caused the
petitioners through their summary dismissal from employment, simply because
they sought in good faith to exercise basic human rights guaranteed them by the
Constitution. It should be noted further that no proof of actual loss from the one-day
stoppage of work was shown by respondent company, providing basis to the main
opinion's premise that its insistence on dismissal of the union leaders for having
included the first shift workers in the mass demonstration against its wishes was but
an act of arbitrary vindictiveness.
 Page 68 of 192

Only thus could the basic constitutional rights of the individual petitioners and the
constitutional injunction to afford protection to labor be given true substance and
meaning. No person may be deprived of such basic rights without due process —
which is but "responsiveness to the supremacy of reason, obedience to the dictates
of justice. Negatively put, arbitrariness is ruled out and unfairness avoided ... Due
process is thus hostile to any official action marred by lack of reasonableness.
Correctly it has been identified as freedom from arbitrariness." 2

Accordingly, I vote for the setting aside of the appealed orders of the respondent
court and concur in the judgment for petitioners as set forth in the main opinion.

G.R. No. L-27833               April 18, 1969

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE

CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and
FELICISIMO R. CABIGAO, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

F. R. Cabigao in his own behalf as petitioner.

B. F. Advincula for petitioner Arsenio Gonzales.
Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Tañada as
amicus curiae.

FERNANDO, J.:

A statute designed to maintain the purity and integrity of the electoral process by
Congress calling a halt to the undesirable practice of prolonged political campaign
bringing in their wake serious evils not the least of which is the ever increasing cost
of seeking public office, is challenged on constitutional grounds. More precisely, the
basic liberties of free speech and free press, freedom of assembly and freedom of
association are invoked to nullify the act. Thus the question confronting this Court is
one of transcendental significance.

It is faced with the reconciliation of two values esteemed highly and cherished
dearly in a constitutional democracy. One is the freedom of belief and of expression
availed of by an individual whether by himself alone or in association with others of
 Page 69 of 192

similar persuasion, a goal that occupies a place and to none in the legal hierarchy.
The other is the safeguarding of the equally vital right of suffrage by a prohibition of
the early nomination of candidates and the limitation of the period of election
campaign or partisan political activity, with the hope that the time-consuming
efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries
that may end in violence, to paraphrase the explanatory note of the challenged
legislation, could be devoted to more fruitful endeavors.

The task is not easy, but it is unavoidable. That is of the very essence of judicial
duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so
not on the assumption that to us is granted the requisite knowledge to set matters
right, but by virtue of the responsibility we cannot escape under the Constitution,
one that history authenticates, to pass upon every assertion of an alleged
infringement of liberty, when our competence is appropriately invoked.

This then is the crucial question: Is there an infringement of liberty? Petitioners so

alleged in his action, which they entitled Declaratory Relief with Preliminary
Injunction, filed on July 22, 1967, a proceeding that should have been started in the
of Court of First Instance but treated by this Court as one of prohibition in view of
the seriousness and the urgency of the constitutional issue raised. Petitioners
challenged the validity of two new sections now included in the Revised Election
Code, under Republic Act No. 4880, which was approved and took effect on June 17,
1967, prohibiting the too early nomination of candidates  2 and limiting the period of
election campaign or partisan political activity.  3

The terms "candidate" and "election campaign" or "partisan political activity" are
likewise defined. The former according to Act No. 4880 "refers to any person
aspiring for or seeking an elective public office regarded of whether or not said
person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate." "Election campaign" or "partisan political activity"
refers to acts designed to have a candidate elected or not or promote the candidacy
of a person or persons to a public office." Then the acts were specified. There is a
proviso that simple expression of opinion and thoughts concerning the election shall
not be considered as part of an election campaign. There is the further proviso that
nothing stated in the Act "shall be understood to prevent any person from
expressing his views on current political problems or issues, or from mentioning the
names of the candidates for public office whom he supports."  4

Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official candidate
for Vice-Mayor of Manila to which he was subsequently elected on November 11,
1967; petitioner Gonzales, on the other hand, is a private individual, a registered
voter in the City of Manila and a political leader of his co-petitioner. It is their claim
that "the enforcement of said Republic Act No. 4880 in question [would] prejudice
[their] basic rights..., such as their freedom of speech, their freedom of assembly
and their right to form associations or societies for purpose not contrary to law,
guaranteed under the Philippine Constitution," and that therefore said act is
unconstitutional.
 Page 70 of 192

After invoking anew the fundamental rights to free speech, free press, freedom of
association and freedom of assembly with a citation of two American Supreme
Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the
law that would legally justify its passage and [enforcement] whether for reasons of
public policy, public order or morality, and that therefore the enactment of Republic
Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment
of the constitutional rights of freedom of speech, freedom of assembly and the right
to form associations and societies for purposes not contrary to law, ..." There was
the further allegation that the nomination of a candidate and the fixing of period of
election campaign are matters of political expediency and convenience which only
political parties can regulate or curtail by and among themselves through self-
restraint or mutual understanding or agreement and that the regulation and
limitation of these political matters invoking the police power, in the absence of
clear and present danger to the state, would render the constitutional rights of
petitioners meaningless and without effect.

To the plea of petitioners that after hearing, Republic Act No. 4880 be declared
unconstitutional, null and void, respondent Commission on Elections, in its answer
filed on August 1, 1967, after denying the allegations as to the validity of the act
"for being mere conclusions of law, erroneous at that," and setting forth special
affirmative defenses, procedural and substantive character, would have this Court
dismiss the petition.

Thereafter the case was set for hearing on August 3, 1967. On the same date a
resolution was passed by us to the following effect: "At the hearing of case L-27833
(Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao
appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent
and they were given a period of four days from today within which to submit,
simultaneously,, their respective memorandum in lieu of oral argument."

On August 9, 1967, another resolution, self-explanatory in character, came from this

Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al. vs. Commission on
Elections), the Court, with eight (8) Justice present, having deliberated on the issue
of the constitutionality of Republic Act No. 4880; and a divergence of views having
developed among the Justices as to the constitutionality of section 50-B, pars. (c),
(d) and (e) of the Revised Election Code: considering the Constitutional provision
that "no treaty or law may be declared unconstitutional without the concurrence of
two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court
[resolved] to defer final voting  on the issue until after the return of the Justices now
on official leave."

The case was then reset for oral argument. At such hearing, one of the co-
petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as
counsel, assailed the validity of the challenged legislation relying primarily on
American Supreme Court opinion that warn against curtailment in whatever guise or
form of the cherished freedoms of expression, of assemble and of association, all
embraced in the First Amendment of the United States Constitution. Respondent
Commission on Elections was duly represented by Atty. Ramon Barrios.
 Page 71 of 192

Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he did,
arguing most impressively with a persuasive exposition of the existence of
undeniable conditions that imperatively called for regulation of the electoral process
and with full recognition that Act No. 4880 could indeed be looked upon as a
limitation on the preferred rights of speech and press, of assembly and of
association. He did justify its enactment however under the clear and present
danger doctrine, there being the substantive evil of elections, whether for national
or local officials, being debased and degraded by unrestricted campaigning, excess
of partisanship and undue concentration in politics with the loss not only of
efficiency in government but of lives as well.

The matter was then discussed in conference, but no final action was taken. The
divergence of views with reference to the paragraphs above mentioned having
continued, on Oct. 10, 1968, this Court, by resolution, invited certain entities to
submit memoranda as amici curiae on the question of the validity of R.A. Act No.
4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center
and the U.P. Women Lawyers' Circle were included, among them. They did file their
respective memoranda with this Court and aided it in the consideration of the
constitutional issues involved.

1. In the course of the deliberations, a serious procedural objection was raised by

five members of the Court. 6 It is their view that respondent Commission on Elections
not being sought to be restrained from performing any specific act, this suit cannot
be characterized as other than a mere request for an advisory opinion. Such a view,
from the remedial law standpoint, has much to recommend it. Nonetheless, a
majority would affirm, the original stand that under the circumstances it could still
rightfully be treated as a petition for prohibition.

The language of Justice Laurel fits the case "All await the decision of this Court on
the constitutional question. Considering, therefore, the importance which the
instant case has assumed and to prevent multiplicity of suits, strong reasons of
public policy demand that [its] constitutionality ... be now resolved."  7 It may
likewise be added that the exceptional character of the situation that confronts us,
the paramount public interest, and the undeniable necessity for a ruling, the
national elections being, barely six months away, reinforce our stand.

It would appear undeniable, therefore, that before us is an appropriate invocation of

our jurisdiction to prevent the enforcement of an alleged unconstitutional statute.
We are left with no choice then; we must act on the matter.

There is another procedural obstacle raised by respondent to be hurdled. It is not

insuperable. It is true that ordinarily, a party who impugns the validity of a statute
or ordinance must have a substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement.  8 Respondent
cannot see such interest as being possessed by petitioners. It may indicate the
clarity of vision being dimmed, considering that one of the petitioners was a
candidate for an elective position. Even if such were the case, however, the
objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently
relaxed to allow a taxpayer to bring an action to restrain the expenditure of public
 Page 72 of 192

funds through the enforcement of an invalid or unconstitutional legislative

measure. 9

2. In the answer of the respondent as well as its memorandum, stress was laid on
Republic Act No. 4880 as an exercise of the police power of the state, designed to
insure a free, orderly and honest election by regulating "conduct which Congress
has determined harmful if unstrained and carried for a long period before elections
it necessarily entails huge expenditures of funds on the part of the candidates,
precipitates violence and even deaths, results in the corruption of the electorate,
and inflicts direful consequences upon public interest as the vital affairs of the
country are sacrificed to purely partisan pursuits." Evidently for respondent that
would suffice to meet the constitutional questions raised as to the alleged
infringement of free speech, free press, freedom of assembly and 'freedom' of
association. Would it were as simple as that?

An eloquent excerpt from a leading American decision 10 admonishes though against

such a cavalier approach. "The case confronts us again with the duty our system
places on this Court to say where the individual's, freedom ends the State's power
begins. Choice on that border, now as always delicate, is perhaps more so where
the usual. presumption supporting legislation is balanced by the preferred place
given in our scheme to the great, the indispensable democratic freedoms secured
by the First Amendment.... That priority gives these liberties a sanctity and a
sanction not permitting dubious intrusions. And it is the character of the right, not of
the limitation, which determines what standard governs the choice..."

Even a leading American State court decision on a regulatory measure dealing with
elections, cited in the answer of respondent, militates against a stand minimizing
the importance and significance of the alleged violation of individual rights: "As so
construed by us, it has not been made to appear that section 8189, Comp. Gen.
Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either
the state or Federal Constitution on the subject of free speech or liberty of the
press, nor that its operation is in any wise subversive of any one's constitutional
liberty." 11 Another leading State decision is much more emphatic: "Broad as the
power of the legislature is with respect to regulation of elections, that power is not
wholly without limitation. Under the guise of regulating elections, the legislature
may not deprive a citizen of the right of trial by jury. A person charged with its
violation may not be compelled to give evidence against himself. If it destroys the
right of free speech, it is to that extent void." 12

The question then of the alleged violation of Constitutional rights must be squarely
met.lawphi1.nêt

3. Now as to the merits. A brief resume of the basic rights on which petitioners
premise their stand that the act is unconstitutional may prove illuminating. The
primacy, the high estate accorded freedom of expression is of course a fundamental
postulate of our constitutional system. No law shall be passed abridging the
freedom of speech or of the press .... 13 What does it embrace? At the very least,
free speech and free press may be identified with the liberty to discuss publicly and
truthfully any matter of public interest without censorship or punishment. 14 There is
to be then no previous restraint on the communication of views or subsequent
 Page 73 of 192

liability whether in libel suits, 15 prosecution for sedition, 16 or action for

damages, 17 or contempt proceedings 18 unless there be a clear and present danger
of substantive evil that Congress has a right to prevent.

The vital need in a constitutional democracy for freedom of expression is

undeniable whether as a means of assuring individual self-fulfillment, of attaining
the truth, of assuring participation by the people in social including political
decision-making, and of maintaining the balance between stability and
change. 19 The trend as reflected in Philippine and American decisions is to
recognize the broadcast scope and assure the widest latitude to this constitutional
guaranty. It represents a profound commitment to the principle that debate of
public issue should be uninhibited, robust, and wide-open. 20 It is not going too far,
according to another American decision, to view the function of free speech as
inviting dispute. "It may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or even stirs
people to anger." 21 Freedom of speech and of the press thus means something
more than the right to approve existing political beliefs or economic arrangements,
to lend support to official measures, to take refuge in the existing climate of opinion
on any matter of public consequence. So atrophied, the right becomes meaningless.
The right belongs as well, if not more, for those who question, who do not conform,
who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate,
no less than for the thought that agrees with us. 22

So with Emerson one may conclude that "the theory of freedom of expression
involves more than a technique for arriving at better social judgments through
democratic procedures. It comprehends a vision of society, a faith and a whole way
of life. The theory grew out of an age that was awakened and invigorated by the
idea of new society in which man's mind was free, his fate determined by his own
powers of reason, and his prospects of creating a rational and enlightened
civilization virtually unlimited. It is put forward as a prescription for attaining a
creative, progressive, exciting and intellectually robust community. It contemplates
a mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities. It spurns the alternative of a
society that is tyrannical, conformist, irrational and stagnant." 23

From the language of the specified constitutional provision, it would appear that the
right is not susceptible of any limitation. No law may be passed abridging the
freedom of speech and of the press. The realities of life in a complex society
preclude however a literal interpretation. Freedom of expression is not an absolute.
It would be too much to insist that at all times and under all circumstances it should
remain unfettered and unrestrained. There are other societal values that press for
recognition. How is it to be limited then?

This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an
acceptable criterion for permissible restriction. Thus: "These are the 'clear and
present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a
number of cases, means that the evil consequence of the comment or utterance
must be extremely serious and the degree of imminence extremely high' before the
utterance can be punished. The danger to be guarded against is the 'substantive
evil' sought to be prevented." It has the advantage of establishing according to the
 Page 74 of 192

above decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."

The Cabansag case likewise referred to the other test, the "dangerous tendency"
rule and explained it thus: "If the words uttered create a dangerous tendency which
the state has a right to prevent, then such words are punishable. It is not necessary
that some definite or immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated in general terms. Nor is it
necessary that the language used be reasonably calculated to incite persons to acts
of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the
legislative body seeks to prevent.

We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to
a fair administration of justice? Did its remittance to the PCAC create a danger
sufficiently imminent to come under the two rules mentioned above?" The choice of
this Court was manifest and indisputable. It adopted the clear and present danger
test. As a matter of fact, in an earlier decision, Primicias v. Fugoso, 25 there was
likewise an implicit acceptance of the clear and present danger doctrine.

Why repression is permissible only when the danger of substantive evil is present is
explained by Justice Branders thus: ... the evil apprehended is so imminent that it
may befall before there is opportunity for full discussion. If there be time to expose
through discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence." 26 For
him the apprehended evil must be "relatively serious." For "[prohibition] of free
speech and assembly is a measure so stringent that it would be inappropriate as
the means for averting a relatively trivial harm to society." Justice Black would go
further. He would require that the substantive evil be "extremely serious." 27 Only
thus may there be a realization of the ideal envisioned by Cardozo: "There shall be
no compromise of the freedom to think one's thoughts and speak them, except at
those extreme borders where thought merges into action." 28 It received its original
formulation from Holmes. Thus: "The question in every case is whether the words
used in such circumstances and of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of proximity and degree." 29

This test then as a limitation on freedom of expression is justified by the danger or

evil a substantive character that the state has a right to prevent. Unlike
the dangerous tendency  doctrine, the danger must not only be clear but also
present. The term clear seems to point to a causal connection with the danger of
the substantially evil arising from the utterance questioned. Present refers to the
time element. It used to be identified with imminent and immediate danger. The
danger must not only be probable but very likely inevitable.

4. How about freedom of assembly? The Bill of Rights as thus noted prohibits
abridgment by law of freedom of speech or of the press. It likewise extends the
same protection to the right of the people peaceably to assemble. As was pointed
out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a
necessary consequence of our republican institution and complements the right of
 Page 75 of 192

free speech. Assembly means a right on the part of citizens to meet peaceably for
consultation in respect to public affairs. From the same Bustos opinion: "Public
policy, the welfare of society and orderly administration of government have
demanded protection for public opinion." To paraphrase the opinion of Justice
Rutledge speaking for the majority in Thomas v. Collins, 31 it was not by accident or
coincidence that the rights to freedom of speech and of the press were coupled in a
single guaranty 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. They are cognate rights and the assurance afforded by the clause of
this section of the Bill of Rights wherein they are contained, applies to all. As
emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea
of a government, republican in form, implies a right on the part of its citizens to
meet peaceably for consultation in respect to public affairs and to petition for
redress of grievances." As in the case of freedom of expression, this right is not to
be limited, much less denied, except on a showing of a clear and present danger of
a substantive evil that Congress has a right to prevent.

5. Our Constitution likewise recognizes the freedom to form association for purposes
not contrary to law. 33 With or without a constitutional provision of this character, it
may be assumed that the freedom to organize or to be a member of any group or
society exists. With this explicit provision, whatever doubts there may be on the
matter are dispelled. Unlike the cases of other guarantee which are mostly
American in origin, this particular freedom has an indigenous cast. It can trace its
origin to the Malolos Constitution.

In the United States, in the absence of an explicit provision of such character, it is

the view of Justice Douglas that it is primarily the first amendment of her
Constitution, which safeguards freedom of speech and of the press, of assembly and
of petition "that provides [associations] with the protection they need if they are to
remain viable and continue to contribute to our Free Society." 34 He adopted the
view of De Tocqueville on the importance and the significance of the freedom to
associate. Thus: "The most natural privilege of man, next to the right of acting for
himself, is that of combining his exertions with those of his fellow creatures and of
acting in common with them. The right of association therefore appears to me
almost inalienable in its nature as the right of personal liberty. No legislator can
attack it without impairing the foundation of society." 35

There can be no dispute as to the soundness of the above observation of De

Tocqueville. Since man lives in social it would be a barren existence if he could not
freely associate with others of kindred persuasion or of congenial frame of mind. As
a matter of fact, the more common form of associations may be likely to be
fraternal, cultural, social or religious. Thereby, for almost everybody, save for those
exceptional few who glory in aloofness and isolation life is enriched and becomes
more meaningful.

In a sense, however, the stress on this freedom of association should be on its

political significance. If such a right were non-existent then the likelihood of a one-
party government is more than a possibility. Authoritarianism may become
unavoidable. Political opposition will simply cease to exist; minority groups may be
 Page 76 of 192

outlawed, constitutional democracy as intended by the Constitution may well

become a thing of the past.

Political parties which, as is originally the case, assume the role alternately of being
in the majority or in the minority as the will of the electorate dictates, will lose their
constitutional protection. It is undeniable therefore, that the utmost scope should be
afforded this freedom of association.

It is indispensable not only for its enhancing the respect that should be accorded a
human personality but equally so for its assurance that the wishes of any group to
oppose whatever for the moment is the party in power and with the help of the
electorate to set up its own program of government would not be nullified or
frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political
and academic affiliations have a preferred position under the due process version of
the First Amendment. But the associational rights protected by the First
Amendment are in my view much broader and cover the entire spectrum in political
ideology as well as in art, in journalism, in teaching, and in religion. In my view,
government can neither legislate with respect to nor probe the intimacies of
political, spiritual, or intellectual relationships in the myriad of lawful societies and
groups, whether popular or unpopular, that exist in this country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that there
could be an abridgment of the right to form associations or societies when their
purposes are "contrary to law". How should the limitation "for purposes not contrary
to law" be interpreted? It is submitted that it is another way of expressing the clear
and present danger rule for unless an association or society could be shown to
create an imminent danger to public safety, there is no justification for abridging
the right to form association societies.37 As was so aptly stated: "There is no other
course consistent with the Free Society envisioned by the First Amendment. For the
views a citizen entertains, the beliefs he harbors, the utterances he makes, the
ideology he embraces, and the people he associates with are no concern to
government — until and unless he moves into action. That article of faith marks
indeed the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles in
mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the
too early nomination of candidates and the limitation found therein on the period of
election campaign or partisan political activity alleged by petitioners to offend
against the rights of free speech, free press, freedom of assembly and freedom of
association. In effect what are asked to do is to declare the act void on its face
evidence having been introduced as to its actual operation. There is respectable
authority for the court having the power to so act. Such fundamental liberties are
accorded so high a place in our constitutional scheme that any alleged infringement
manifest in the wording of statute cannot be allowed to pass unnoticed. 39

In considering whether it is violative of any of the above rights, we cannot ignore of

course the legislative declaration that its enactment was in response to a serious
substantive evil affecting the electoral process, not merely in danger of happening,
but actually in existence, and likely to continue unless curbed or remedied. To
assert otherwise would be to close one's eyes to the realities of the situation. Nor
can we ignore the express legislative purpose apparent in the proviso "that simple
 Page 77 of 192

expressions of opinion and thoughts concerning the election shall not be considered
as part of an election campaign," and in the other proviso "that nothing herein
stated shall be understood to prevent any person from expressing his views on
current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the entire
provision restricting the period of an election campaign or partisan political activity.

The prohibition of too early nomination of candidates presents a question that is not
too formidable in character. According to the act: "It shall be unlawful for any
political party political committee, or political group to nominate candidates for any
elective public officio voted for at large earlier than one hundred and fifty days
immediately preceding an election, and for any other elective public, office earlier
than ninety days immediately preceding an election." 40

The right of association is affected. Political parties have less freedom as to the time
during which they may nominate candidates; the curtailment is not such, however,
as to render meaningless such a basic right. Their scope of legitimate activities,
save this one, is not unduly narrowed. Neither is there infringement of their freedom
to assemble. They can do so, but not for such a purpose. We sustain in validity. We
do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity"

calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is
unlawful for any person whether or not a voter or candidate, or for any group or
association of persons whether or not a political party or political committee, to
engage in an election campaign or partisan political activity except during the
period of one hundred twenty days immediately preceding an election involving a
public office voted for at large and ninety days immediately preceding an election
for any other elective public office. The term 'candidate' refers to any person
aspiring for or seeking an elective public office, regardless of whether or not said
person has already filed his certificate of candidacy or has been nominated by any
political party as its candidate. The term 'election campaign' or 'partisan political
activity' refers to acts designed to have a candidate elected or not or promote the
candidacy of a person or persons to a public office ..."

If that is all there is to that provision, it suffers from the fatal constitutional infirmity
of vagueness and may be stricken down. What other conclusion can there be
extending as it does to so wide and all-encompassing a front that what is valid,
being a legitimate exercise of press freedom as well as freedom of assembly,
becomes prohibited? That cannot be done; such an undesirable eventuality, this
Court cannot allow to pass.

It is a well-settled principle that stricter standard of permissible statutory vagueness

may be applied to a statute having inhibiting effect on speech; a man may the less
be required to act at his peril here, because the free dissemination of ideas may be
the loser.41 Where the statutory provision then operates to inhibit the exercise of
individual freedom affirmatively protected by the Constitution, the imputation of
vagueness sufficient to invalidate the statute is inescapable. 42 The language of
Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are
vague and fluid ... may be as much of a trap for the innocent as the ancient laws of
 Page 78 of 192

Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and
vulnerable, as well as supremely precious in our society. The threat of sanctions
may deter their exercise almost as potently as the actual application of
sanctions." 44

7. The constitutional objections are thus formidable. It cannot be denied that the
limitations thus imposed on the constitutional rights of free speech and press, of
assembly, and of association cut deeply, into their substance. This on the one hand.

On the other, it cannot be denied either that evils substantial in character taint the
purity of the electoral process. There can be under the circumstances then no
outright condemnation of the statute. It could not be said to be unwarranted, much
less arbitrary. There is need for refraining from the outright assumption that the
constitutional infirmity is apparent from a mere reading thereof.

For under circumstances that manifest abuses of the gravest character, remedies
much more drastic than what ordinarily would suffice would indeed be called for.
The justification alleged by the proponents of the measures weighs heavily with the
members of the Court, though in varying degrees, in the appraisal of the aforesaid
restrictions to which such precious freedoms are subjected. They are not unaware
of the clear and present danger that calls for measures that may bear heavily on
the exercise of the cherished rights of expression, of assembly, and of association.

This is not to say, that once such a situation is found to exist there is no limit to the
allowable limitations on such constitutional rights. The clear and present danger
doctrine rightly viewed requires that not only should there be an occasion  for the
imposition of such restrictions but also that they be limited in scope.

There are still constitutional questions of a serious character then to be faced. The
practices which the act identifies with "election campaign" or "partisan political
activity" must be such that they are free from the taint of being violative of free
speech, free press, freedom of assembly, and freedom of association. What
removes the sting from constitutional objection of vagueness is the enumeration of
the acts deemed included in the terms "election campaign" or "partisan political
activity."

They are: "(a) Forming organizations, associations, clubs, committees or other

groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate; (b) holding political
conventions, caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate or party;(c) making speeches,
announcements or commentaries or holding interviews for or against the election or
any party or candidate for public office; (d) publishing or distributing campaign
literature or materials; (e) directly or indirectly soliciting votes and/or undertaking
any campaign or propaganda for or against any party; (f) giving, soliciting, or
receiving contributions for election campaign purposes, either directly or
indirectly." 45 As thus limited the objection that may be raised as to vagueness has
been minimized, if not totally set at rest. 46
 Page 79 of 192

8. This Court, with the aforementioned five Justices unable to agree, is of the view
that no unconstitutional infringement exists insofar as the formation of organization,
associations, clubs, committees, or other groups of persons for the purpose of
soliciting votes or undertaking any campaign or propaganda or both for or against a
candidate or party is restricted 47 and that the prohibition against giving, soliciting,
or receiving contribution for election purposes, either directly or indirectly, is
equally free from constitutional infirmity. 48

The restriction on freedom of assembly as confined to holding political conventions,

caucuses, conferences, meetings, rallies, parades or other similar assemblies for the
purpose of soliciting votes or undertaking any campaign or propaganda or both for
or against a candidate or party, 49 leaving untouched all other legitimate exercise of
such poses a more difficult question. Nevertheless, after a thorough consideration,
and with the same Justices entertaining the opposite conviction, we reject the
contention that it should be annulled. Candor compels the admission that the writer
of this opinion suffers from the gravest doubts. For him, such statutory prescription
could very well be within the outermost limits of validity, beyond which lies the
abyss of unconstitutionality.

The other acts, likewise deemed included in "election campaign" or "partisan

political activity" tax to the utmost the judicial predisposition to view with sympathy
legislative efforts to regulate election practices deemed inimical, because of their
collision with the preferred right of freedom of expression. From the outset, such
provisions did occasion divergence of views among the members of the Court.
Originally only a minority was for their being adjudged as invalid. It is not so. any
more. 50 This is merely to emphasize that the scope of the curtailment to which
freedom of expression may be subjected is not foreclosed by the recognition of the
existence of a clear and present danger of a substantive evil, the debasement of the
electoral process.

The majority of the Court is thus of the belief that the solicitation or undertaking of
any campaign or propaganda whether directly or indirectly, by an individual, 51 the
making of speeches, announcements or commentaries or holding interview for or
against the election for any party or candidate for public office, 52 or the publication
or distribution of campaign literature or materials, 53 suffer from the corrosion of
invalidity. It lacks however one more affirmative vote to call for a declaration of
unconstitutionality.

This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns. The
direful consequences and the harmful effects on the public interest with the vital
affairs of the country sacrificed many a time to purely partisan pursuits were known
to all. Moreover, it is no exaggeration to state that violence and even death did
frequently occur because of the heat engendered by such political activities. Then,
too, the opportunity for dishonesty and corruption, with the right to suffrage being
bartered, was further magnified.

Under the police power then, with its concern for the general welfare and with the
commendable aim of safe-guarding the right of suffrage, the legislative body must
 Page 80 of 192

have felt impelled to impose the foregoing restrictions. It is understandable for

Congress to believe that without the limitations thus set forth in the challenged
legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and
nullified. Whatever persuasive force such approach may command failed to elicit
the assent of a majority of the Court. This is not to say that the conclusion reached
by the minority that the above poisons of the statute now assailed has passed the
constitutional test is devoid of merit.

It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against the
election of any party or candidate for public office and the prohibition of the
publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged statute
prohibits what under the Constitution cannot by any law be abridged.

More specifically, in terms of the permissible scope of legislation that otherwise

could be justified under the clear and present danger doctrine, it is the
consideration opinion of the majority, though lacking the necessary vote for an
adjudication of invalidity, that the challenged statute could have been more
narrowly drawn and the practices prohibited more precisely delineated to satisfy the
constitutional requirements as to a valid limitation under the clear and present
danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence of
such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court
could discern "an over breadth that makes possible oppressive or capricious
application" 55 of the statutory provisions, the line dividing the valid from the
constitutionally infirm has been crossed. Such provisions offend the constitutional
principle that "a governmental purpose constitutionally subject to control or prevent
activities state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms. 56

It is undeniable, therefore, that even though the governmental purposes be

legitimate and substantial, they cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. 57 For
precision of regulation is the touchstone in an area so closely related to our most
precious freedoms. 58

Under the circumstances then, a majority of the Court feels compelled to view the
statutory provisions in question as unconstitutional on their face inasmuch as they
appear to range too widely and indiscriminately across the fundamental liberties
associated with freedom of the mind. 59

Such a conclusion does not find favor with the other members of the Court. For this
minority group, no judgment of nullity insofar as the challenged sections are
concerned is called for. It cannot accept the conclusion that the limitations thus
imposed on freedom of expression vitiated by their latitudinarian scope, for
 Page 81 of 192

Congress was not at all insensible to the problem that an all-encompassing

coverage of the practices sought to be restrained would seriously pose.

Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Tañada, appearing before us as amicus curiae. He did
clearly explain that such provisions were deemed by the legislative body to be part
and parcel of the necessary and appropriate response not merely to a clear and
present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as violence that of late
has invariably marred election campaigns and partisan political activities in this
country. He did invite our attention likewise to the well-settled doctrine that in the
choice of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed by it,
unless clearly repugnant to fundamental rights, be ignored or disregarded.

More than that, he would stress the two provisos already mentioned, precisely
placed in the state as a manifestation of the undeniable legislative determination
not to transgress the preferred freedom of speech, of press, of assembly and of
association. It is thus provided: "That simple expressions or opinion and thoughts
concerning the election shall not be considered as part of an election campaign
[and that nothing in the Act] shall be understood to prevent any person from
expressing his views on current political problems or issues, or from mentioning the
names of the candidates for public office whom he supports. 60 If properly
implemented then, as it ought to, the barrier to free, expression becomes minimal
and far from unwarranted.

For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution commands as far
as freedom of the mind and of association are concerned. It is its opinion that it
would be premature to say the least, for a judgment of nullity of any provision found
in Republic Act No. 4880. The need for adjudication arises only if in the
implementation of the Act, there is in fact an unconstitutional application of its
provisions. Nor are we called upon, under this approach, to anticipate each and
every problem that may arise. It is time enough to consider it when there is in fact
an actual, concrete case that requires an exercise of judicial power.

9. To recapitulate, we give due recognition to the legislative concern to cleanse,

and, if possible, render spotless, the electoral process. There is full acceptance by
the Court of the power of Congress, under narrowly drawn legislation to impose the
necessary restrictions to what otherwise would be liberties traditionally accorded
the widest scope and the utmost deference, freedom of speech and of the press, of
assembly, and of association. We cannot, however, be recreant to the trust reposed
on us; we are called upon to safeguard individual rights. In the language of Justice
Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall
not obstruct the popular will as manifested through proper organs... But, in the
same way that it cannot renounce the life breathed into it by the Constitution, so
may it not forego its obligation, in proper cases, to apply the necessary,..." 61
 Page 82 of 192

We recognize the wide discretion accorded Congress to protect vital interests.

Considering the responsibility incumbent on the judiciary, it is not always possible,
even with the utmost sympathy shown for the legislative choice of means to cure an
admitted evil, that the legislative judgment arrived at, with its possible curtailment
of the preferred freedoms, be accepted uncritically. There may be times, and this is
one of them, with the majority, with all due reject to a coordinate branch, unable to
extend their approval to the aforesaid specific provisions of one of the sections of
the challenged statute. The necessary two-third vote, however, not being obtained,
there is no occasion for the power to annul statutes to come into play.

Such being the case, it is the judgment of this Court that Republic Act No. 4880
cannot be declared unconstitutional.

WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without
costs.

Concepcion, C.J., Reyes, J.B.L., Makalintal and Teehankee, JJ., concur in the result.

Separate Opinions

SANCHEZ, J., concurring and dissenting:

Petitioners in the present case aim at striking down as violative of constitutional

guarantees Republic Act 4880, the principal features of which are contained in its
Sections 1, inserting Sections 50-A and 50-B between Sections, 50 and 51 of the
Revised Election Code, reproduced herein as follows: 1

SECTION 1. Republic Act Numbered One hundred and eighty, as amended, is

hereby further amended by inserting new sections to be known as Sections
50-A and 50-B, between Sections 50 and 51 thereof, which shall read as
follows:

SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be

unlawful for any political party, Political Committee, or Political group to
nominate candidates for any elective public office voted for a large earlier
than one hundred and fifty days immediately preceding an election, and for
any other elective public office earlier than ninety days immediately
preceding an election.

SEC 50-B. Limitation upon the period of Election Campaign or Partisan

Political Activity. — It is unlawful for any person whether or not a voter or
candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign or
 Page 83 of 192

partisan political activity except during the period of one hundred twenty
days immediately preceding an election for any public office.

The term "Candidate" refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its
candidate.

The term "Election Campaign" or "Partisan Political Activity" refers to acts

designed to have a candidate elected or not or promote the candidacy of a
person or persons to a public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other

groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate;

(b) Holding political conventions, caucuses, conferences, meetings,

rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or
against any candidate or party;

(c) Making speeches, announcements or commentaries or holding

interviews for or against the election of any party or candidate for
public office;

(d) Publishing or distribution campaign literature or materials;

(e) Directly or indirectly soliciting vote and/or undertaking any

campaign or propaganda for or against any candidate or party;

(f) Giving, soliciting, or receiving contributions for election campaign

purposes, either directly or indirectly: Provided, That simple
expressions or 2 opinion and thoughts concerning the election shall
not be considered as part of an election campaign: Provided, further,
That nothing herein stated shall be understood to prevent any person
from expressing his views on current political problems or issues, or
from mentioning the names of the candidates for public office whom
he supports.

Appropriately to be stated right at the start is that violation of the above provisions
is considered a serious election offense. The penalty is "imprisonment of not less
than one (1) year and one (1) day but not more than five (5) years" with
accompanying "disqualification to hold a public office and deprivation of the right of
suffrage for not less than one (1) year but more than nine (9) years" and payment
of costs. 3

1. The issue of constitutionality of R.A. 4880 again brings to the fore the eternally-
warring concepts of individual liberty and state authority.
 Page 84 of 192

Invalidity is pressed on the ground that the statute violates the rights of free speech
and press, of peaceable assembly, and of association.  4 This Court is asked to rule
that in the context of the ill-effects to be cured, the legislative remedy adopted, vis-
a-vis  the rights affected, does not meet what petitioners claim to be the rational
basis test; that, on the contrary, the relief prescribed would more likely produce the
very evils sought to be prevented. This necessitates a circumspect discussion of the
issue.

In proceeding the working assumption is that individual liberty is not absolute.

Neither is state authority, inspite of its sweep, limitable. Fixed formulas and ready-
made rules that seek to balance these two concepts could well redeem one from
the unnerving task of deciding which ought to prevail.

It is at this point that we call to mind the principle that the relation between remedy
and evil should be of such proximity that unless prohibited, conduct affecting these
rights would create a "clear and present danger that will bring about substantive
evils that Congress has a right to prevent." 5

Withal doctrines which conceal behind the cloak of authoritative origin a tendency
to muffle the demands of society, must pass the glaring light of contemporaneity.
For, in the consideration of questions on constitutionality, one should remain
receptive to the implication of John Marshall's resonant words that "it is a
constitution we are expounding."6

Such authority here manifests itself in legislation intended as an answer to the

strong public sentiment that politics is growing into a way of life, that political
campaigns are becoming longer and more bitter. It is a result of legislative
Appraisal that protracted election campaign is the root of undesirable conditions.
Bitter rivalries precipitate violence and deaths. Huge expenditures of funds give
deserving but poor candidates slim chances of winning. They constitute an
inducement to graft to winning candidates already in office in order to recoup
campaign expenses. Handouts doled out by and expected from candidates corrupt
the electorate. Official duties and affairs of state are neglected by incumbent
officials desiring to run for reelection. The life and health of candidates and their
followers are endangered. People's energies are dissipated in political bickerings
and long drawn-out campaigns.  7 Indeed, a drawn-out political campaign taxes the
reservoir of patience and undermines respect of the electorate for democratic
processes. Sustained and bilious political contests eat away even the veneer of
civility among candidates and their followers and transplant brute force into the
arena.

Such legislative appraisal, such ill-effects, then must constitute a principal lever by
which one concept could win mastery over the other.

R.A. 4880 is a police power legislation. It was enacted by virtue of the inherent
power of Congress to legislate on matters affecting public interest and welfare,  8 as
well as in pursuance of the constitutional policy of insuring a free, honest and
orderly election. 9 Basically, the undefined scope of that power extends as far as the
frontiers of public interest would advance. Fittingly, legislative determination of the
breadth of public interest should Command respect. For, Congress is the
 Page 85 of 192

constitutional body vested with the power to enact laws. Its representative
composition induces judgment culled from the diverse regions of the country.
Normally, this should assure that a piece of police legislation is a reflection of what
public interest contemporaneously encompasses.

2. It is, however, postulated that the right of peaceable assembly is violated by the
prohibition on holding political assemblies for a period lasting more than one year;
that the right to form associations is contravened by forbidding, for the same
period, the formation of political groups; that, finally, freedom of speech and of the
press is unduly restricted by a legislative fiat against speeches, announcements,
commentaries or interviews favorable or unfavorable to the election of any party or
candidate, publishing or distributing campaign literature or materials, and directly
or indirectly soliciting votes and/or under-taking any campaign or propaganda for or
against any candidate or party, except during a number of days immediately
preceding the election.

What has repeatedly been urged is the view that the underlying historic importance
of the foregoing specified rights in democratic societies requires that the posture of
defense against their invasion be firmer and more uncompromising than what may
be exhibited under the general due process protection. 10 The absolute terms by
which these specific rights are recognized in the Constitution justifies this
conclusion. 11

And yet, sight should not be lost of the fact that Congress has made a
determination that certain specific evils are traceable directly to protracted election,
activities. Congress has found a solution to minimize, if not prevent, those evils by
limiting the period of engaging in such activities. The proponents of validity would
rely upon experience to deduce the connection between the cited evils and
prolonged political campaign. By limiting the period of campaign, so they say, it is
expected that the undesirable effects will be wiped out, at least, relieved to a
substantial degree.

This, of course, is largely an assumption. Congress we must stress, has put up an

untried measure to solve the problematic situation. Deduction then is the only
avenue open: for Congress, to determine the necessity for the law; for the Court, its
validity. The possibility of its inefficaciousness is not remote. But so long as a
remedy adopted by Congress, as far as can logically be assumed, measures up to
the standard of validity, it stands.

We give our imprimatur to Section 50-A. We may not tag as unconstitutional 50-B,
and its subsections (a), (b) and (f). We fear no serious evil with their enforcement.
They do not offend the constitutionally protected speech and press freedoms, and
rights of peaceable assembly and association. The latter must yield. The
proscriptions set forth in all of them are clear-cut, not open to reasonable doubt, nor
easily susceptible to unreasonable interpretation. Public interest and welfare
authorize their incorporation into the statute books.

3. To this writer, however, the center of controversy is to be found in subsections

(c), (d) and (e) of Section 50-B.
 Page 86 of 192

Those who espouse validity assert that no undue restriction results because, by
jurisprudence, solicitation and campaign are outside the ambit of protected
speech. 12 But this rule, it would seem to us, has relevance only to commercial
solicitation and campaign. There is no point here in delving into the desirability of
equating, in social importance, political campaign with advertisements of gadgets
and other commercial propaganda or solicitation. 13 For, the statute under
consideration goes well beyond matters commonly regarded as solicitation and
campaign. Suffice it to say that jurisprudence tends to incline liberally towards
freedom of expression in any form when placed in juxtaposition with the regulatory
power of the State. 14

Legislative history of the statute now before us indicates that what Congress
intends to regulate are partisan activities and active campaigning.

Campaigning, as defined by the sponsor of Senate Bill 209 in the Senate, is a

"series of operations." This, evidently, must have been adopted from the dictionary
meaning of campaign: a connected series of operations to bring about some desired
result.

The term "partisan political activity" has somehow acquired a more or less definite
signification. It is not a new feature in Philippine political law. It has been regulated
to stem dangers to specific state interests. The Constitution itself contains an
injunction against civil service officers and employees from engaging directly or
indirectly in partisan political activity or taking part in any election except to
vote. 15 The civil service law 16 and the Revised Election Code, 17 echo this absolute
prohibition which is obviously aimed at the possible neglect of public service and its
prostitution with partisan interests. The following are cited in the Civil Service Rules
as examples of partisan political activity: candidacy for elective office; being a
delegate to any political convention or member of any political committee or officer
of any political club or other similar political organization; making speeches,
canvassing or soliciting votes or political support in the interest of any party or
candidate; soliciting or receiving contributions for political purposes either directly
or indirectly; and becoming prominently identified with the success or failure of any
candidate or candidates for election to public office. 18

In the context in which the terms "partisan political activity" and "election
campaign" are taken together with the statutory purpose, the following from Justice
Holmes would be particularly instructive: "Wherever the law draws a line there will
be cases very near each other on opposite sides. The precise course of the line may
be uncertain, but no one can come near it without knowing that he does so, if he
thinks, and if he does so it is familiar to the criminal law to make him take the
risk." 19

4. Perhaps if the phrases "election campaign" or "partisan political activity" were

left to be explained by the general terms of the law as solely referring "to
acts designed  to have a candidate elected or not or promote the candidacy of a
person or persons to a public office", it would be difficult to say that such prohibition
is offensive to speech or press freedoms. But then the law itself sought to expand
its meaning to include an area of prohibited acts relating to candidates and political
parties, wider than an ordinary person would otherwise define them.
 Page 87 of 192

Specifically, discussion — oral or printed — is included among the prohibited

conduct when done in the following manner (Section 50- B)

(c) Making speeches, announcements or commentaries or holding interviews

for or against the election of any party or candidate for public office:

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking any campaign or

propaganda for or against any candidate or party.

Defined only as lawful discussion is the following:

Provided. That simple expressions of opinion and thoughts concerning the

election shall not be considered as part of an election campaign: Provided,
further, That nothing herein stated shall be understood to prevent any person
from expressing his views on current political problems or issues, or from
mentioning the names of the candidates for public office whom he supports.

The conduct involved in the discussion as to make it illegal is not clearly defined at
all. The implication then is that what is prohibited is discussion which in the view of
another may mean political campaign or partisan political activity. The speaker or
writer becomes captive under the vigilant but whimsical senses of each listener or
reader. His words acquire varying shades of forcefullness, persuasion and meaning
to suit the convenience of those interpreting them. A position becomes solicitation.
As admonition becomes a campaign or propaganda.

As worded in R.A. 4880, prohibited discussion could cover the entire spectrum of
expression relating to can candidates and political parties. No discussion is safe.
Every political discussion becomes suspect. No one can draw an indisputable
dividing line between lawful and unlawful discussion. More so that statutory
restraint falls upon any person whether or not a voter or candidate.

Candidacy is not enjoined during the proscriptive period. A person may thus make
public his intention to run for public office. So may an incumbent official profess his
desire to run for reelection. The law therefore leaves open, especially to the
electorate, the occasion if the temptation for making statements relating to a
candidacy .The natural course is to comment upon or to discuss the merits of a
candidate, his disqualifications, his opponents for public office, his
accomplishments, his official or private conduct. For, it can hardly be denied that
candidacy for public office is a matter of great public concern and interest.

Yet, this normal reaction to discuss or comment is muzzled by an unqualified

prohibition on announcements or commentaries or interviews for or against the
election of any party or candidate, on publishing campaign literature, and on
indirect solicitation and campaign or propaganda for or against any party or
candidate. Even incumbent officials are stopped. Every appearance before the
public, every solicitous act for the public welfare may easily become tainted.
 Page 88 of 192

5. Nor does the proviso offer any corresponding protection against uncertainty.
"Simple expressions of opinion and thoughts concerning the election" and
expression of "views on current political problems or issues" leave the reader to
conjecture, to guesswork, upon the extent of protection offered, be it as to the
nature of the utterance it simple expressions of opinion and thoughts") or the
subject of the utterance ("current political problems or issues"). The line drawn to
distinguish unauthorized "political activity" or "election campaign" — specifically, a
speech designed to promote the candidacy of a person from a simple expression of
opinion on current political problems is so tenuous as to be indistinguishable. 20 If we
are to paraphrase Mr. Justice Holmes, then the thought should run something like
this: The only difference between expression of an opinion and the endorsement of
a candidate is "the speaker's enthusiasm for the result." 21

Only one area is certain. A person may only mention the candidate whom he
supports. Beyond mentioning the name, it is no longer safe. But is it not unduly
constricting the from of rational-minded-persons to back up their statements of
support with reasons?

The peculiarity of discussion, be it oral or printed, is that it carries with it varying

degrees of "enthusiasm and inclination to persuade", 22 depending upon the listener
or reader. It falls short of a partisan political activity when it is devoid of partisan
interest in the sense that it is not made in the interest of a candidate or party. This
is the only criterion for validity. But who is to decide this? And how? The law does
not even require that there be an operation or a series of operations in order to
measure up to an election campaign as it is commonly understood. In this way, the
law may well become an instrument of harassment. Worse, it could lull the potential
had defendant into a false sense of security. It then becomes a dragnet that may
trap anyone who attempts to express a simple opinion on political issues.

6. More than this, the threat of punishment will continually hound a speaker who
expounds his views on political issues. Because of its punitive provisions, the
statute surely tends to restrict what one might, say his utterance be misunderstood
as "designed to promote the candidacy of a person." A person would be kept
guessing at the precise limits of the permissible "simple expression". To play safe,
he would be compelled to put reins on his words for fear that they may stray
beyond the protected area of "simple expression". The offshoot could only be a
continuous and pervasive restraint on all forms of discussion which might time
within the purview of the statute. This thought is not new. It is underscibed
in NAACP vs. Button, 371 U.S. 415, 9 L. ed, 405, in language expressive, thus. —

The objectionable quality of vagueness and over breadth does not depend
upon absence of fair notice to a criminally accused or upon unchanneled
delegation of legislative powers, but upon the danger of tolerating, in the
area of first amendment freedoms, the existence of a penal statute
susceptible of sweeping and improper application.... These freedoms are
delicate and vulnerable as well as supremely precious in our society. The
threat of sanctions way deter their exercise almost as the actual application
of the sanctions. Because the first amendment freedoms need breathing
space to survive, government may regulate in the area only With narrow
specificity.23
 Page 89 of 192

It is thus in the self-imposed restraint that works in the minds of ordinary, law-
abiding citizens that a vague statute becomes unjust.

Because of the indefiniteness created in subsections (c), (d) and (e) of Section 50-B,
they readily lend themselves to harsh application. Vagueness of the law enforcers.
Arbitrary enforcement of the letter of the law by an expansive definition of election
campaign or partisan political activity, should not be branded as improbable. For,
political rivalries spawn persecution. The law then becomes an unwitting tool.
Discussion may be given a prima facie  label as against the harassed. This is not
altogether remote. To be sure, harassment and persecution are not unknown to the
unscrupulous.

7. Those who favor validity find comfort in the theory that it is better for the
meantime to leave the statute well enough alone. They say that it is preferable that
courts of justice be allowed to hammer out the contours of the statute case by case.
This may not, however, be entirely acceptable. To forego the question of
constitutionality for now and take risks may not be the wiser move. As well
advocated elsewhere. 24 a series of court prosecutions will a statute, still leaving
uncertain other portion thereof. And then, in deciding whether or statute can be
salvaged, one must not hedge and assume that when it is enforced in the be
resolved in favor of upholding free speech and press.

More important, there is the heavy penalty prescribed. A candidate, or any person
for that matter, can unreasonably be saddled by court suits. Even if the accused
were later to be declared innocent, thoroughly unnecessary is the burden of
lawyers' fees, bail bonds and other expenses, not to say of energy to be consumed,
effort to be expended, time to be spent, and the anxieties attendant in litigation.

It cannot really be said that the courage to speak out, barring all risks, is an
ordinary human trait. Timorous men should not grow in number. And yet, it would
appear that this is the effect of the enforcement of the law. The constant guide
should be the warning of Justice Brandeis "that it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression breeds
hate; that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies." 25

As we analyze the import of the law, we come to the conclusion that subsections
(c), (d) and (e) of Section 50-B inserted into the Revised Election Code by Republic
Act 4880, heretofore transcribed, run smack against the constitutional guarantees
of freedom of speech and of the press. Hence, this concurrence and dissent.

CASTRO, J., dissenting:

Presented for consideration and decision is the constitutionality of Section 50-A and
50-B of the Revised Election Code, which were inserted as amendatory provisions
by Republic Act 4880. 1 These sections read in full as follows:

SEC. 50-A. Prohibition of too early nomination of Candidates. — It shall be

unlawful for any political party, Political Committee or Political group to
 Page 90 of 192

nominate candidates for any elective public office voted for at large earlier
than one hundred and fifty days immediately preceding an election, and for
any other elective public office earlier than ninety days immediately
preceding an election.

SEC. 50-B. Limitation upon the period of Election Campaign or Partisan

Political Activity. — It is unlawful for any person whether or not a voter or
candidate, or for any group or association of persons, whether or not a
political party or political committee, to engage in an election campaign or
partisan political activity except during the period of one hundred twenty
days immediately preceding an election involving a public office voted for at
large and ninety days immediately preceding an election for any other
elective public office.

The term "Candidate" refers to any person aspiring for or seeking an elective
public officer, regardless of whether or not said has already filed his
certificate of candidacy or has been nominated by any political candidate.

The term "Election Campaign" or Partisan Political Activity refers to the acts
designed to have a candidate elected or not or promote the candidacy of a
person or persons to a public office which shall include:

(a) Forming Organizations, Associations, Clubs, Committees or other

groups of persons for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a party or
candidate;

(b) Holding political conventions, caucuses, conferences, meetings,

rallies, parades, or other similar assemblies, for the purpose of
soliciting votes and/or against a candidate or party;

(c) Making speeches, announcements or commentaries or holding

interviews for or against the election of any party or candidate for
public office;

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking any

campaign or propaganda for or against any candidate or party;

(f) Giving, soliciting, or receiving contributions for election campaign

purposes, either directly or indirectly. Provided, That simple
expressions of opinion and thoughts concerning the election shall not
be considered as part of an election campaign; Provided, further. That
nothing herein stated shall understood to prevent any person from
expressing his views on current political problems or issues, or from
mentioning the names of the candidates for public office who he
supports.
 Page 91 of 192

Violation of these two section are classified as "serious election offenses" under
Section 183 of the Revised Election Code, as amended R.A 4880, punishable with
"imprisonment of not less than one year and one day but not more than five years"
and "disqualification to hold a public office and deprivation of the right of suffrage
for not less than one year but not more than nine years."  2

The basic purpose of R.A. 4880 is easily discenible. Congress felt the need of
curtailing excessive and extravagant partisan political activities, especially during
an election year, and, to this end, sought to impose limitations upon the times
during which such activities may be lawfully pursued. The legislative concern over
excessive political activities was expressed in the following terms in the explanatory
note of Senate Bill 209, which finally came R.A. 4880:

There is nothing basically wrong in engaging in an election campaign.

Election campaign is indispensable part of election just as election is one of
the most important fundamental requirements of popular government.

It is also during election campaign that the stands of prospective political

parties on vital national and local issues are made known to the public,
thereby guiding the enfranchised citizenry in the proper and appropriate
expression of its sovereign will.

Past experience, however, has brought to light some very disturbing

consequences of protracted election campaigns. Because of prolonged
exposure of both candidates and the people to political tension, what starts
out at first as gentlemanly competition ends up into bitter rivalries
precipitating violence and even deaths. Prolonged election campaigns
necessarily entail huge expenditures of funds on the part of the candidates.
Now, no matter how deserving and worthy he is, a poor man has a very slim
chance of winning an election. Prolonged election campaigns indeed carry
with it not only the specter of violence and death, not only the objectionable
dominion of the rich in the political arena, but also the corruption of our
electorate. We must adapt our democratic processes to the needs of the
times.

The prohibitions introduced by R.A. 4880 purport to reach two types of activities,
namely, (a) early nomination of candidates for elective public offices (Sec. 50-A),
and (b) early election campaigns or partisan political activities (Sec. 50-B). The first
prohibition is specifically directed against political parties, committees, and groups;
the second prohibition is much more comprehensive in its intended reach, for it
operates upon "any person whether or not a voter or a candidate" and "any group
or association of persons  whether or not a political party or political committee."

Section 50-B brings within the ambit of its proscription a wide range of activities.
The catalogue of activity ties covered by the prohibition against early election
campaigning embraces two distinguishable types of acts; (a) giving, soliciting or
receiving contributions for election campaign purposes, either directly or indirectly;
 Page 92 of 192

and (b) directly or indirectly soliciting votes or under-taking any campaign or

propaganda for or against any candidate or party, whether by means of speech,
publication, formation of organizations, or by holding conventions, caucuses,
meetings or other similar assemblies. The term "candidate" is itself broadly defined
to include "any person aspiring for or seeking an elective public office," whether or
not such person has been formally nominated.

The sweeping character of the prohibitions in Section 50-B is sought to be mitigated

and delimited by the provisos exempting from their operation (a) "simple
expressions of opinion and thoughts concerning the election," (b) expression of
"views on current political problems or issues," and (c) "mentioning the names of
the candidates for public office" whom one supports.

Before assaying the constitutional quality of Sections 50-A and 50-B, it is relevant to
point out that these two section are not wholly consistent with each other, and that
considerable practical difficulties may be expected by those who would comply with
the requirements of both. Under Section 50-A, political parties are allowed to
nominate their official candidates for offices voted for at large within 150 days
immediately preceding the election. At the very least, this section would seem to
permit a political party to hold a nominating convention within the 150 days period.
Section 50-B, however, makes it unlawful to promote or oppose the candidacy of
any person seeking such office, whether or not such person "has been nominated
by any political party," and to engage in an election campaign "for and against a
candidate or party," except within the period of 120 days immediately preceding
the election. I find it difficult to see how a political party can stage a nominating
convention 150 days before an election if, at such time, neither any person nor
group within such party may seek a nomination by campaigning among the
delegates to the convention. By its very, nature, a nominating convention is
intrinsically a forum for intensely partisan political activity. It is at the nominating
convention that contending candidates obtain the formal endorsement and active
support of their party the ultimate purpose of victory at the polls. A nominating
convention, at which activity promoting or opposing the candidacies of particular
persons seeking nominations is forbidden, is a practical impossibility. Thus, the very
broadness of prohibitions contained in Section 50-B has the effect of reducing, as a
practical matter, the time period specified in Section 50-A for nomination of
candidates for national offices from 150 to 120 days before an election.

II

We turn to the central issue of constitutionality. That the legislature has, in broad
principle, competence to enact laws relative to the conduct of elections is
conceded. Congress may not only regulate and control the place, time and manner
in which elections shall be held, but may also provide for the manner by which
candidates shall be chosen. In the exercise of the police power, Congress regulate
the conduct of election campaigns and activities by political parties and candidates,
and prescribe measures reasonably appropriate to insure the integrity and purity of
the electoral process. Thus, it has not been seriously contested that Congress may
establish restraints on expenditures of money in political campaigns,  3 prohibit
solicitation of votes for a consideration,  4 and penalize unlawful expenditures relative
to the nominations of dates. 5 Laws of this kind lie fairly within the area of
 Page 93 of 192

permissible regulation, and I think, that, in shaping specific regulations,

Congressional discretion may be exercised within a wide range without
remonstrance from the courts.

If no more were at stake in Sections 50-A and 50-B than the political or personal
convenience of a candidates faction or political group, we could with the least
hesitation resolve the issue of constitutionality in favor of the legislative
intendment. But infinitely more is at stake, for in enacting this prohibitions of
Sections 50-A and 50-B, Congress has place undeniable burdens upon the exercise
of fundamental political and personal freedoms encased in the Bill of Rights from
legislative intrusion. There is firstly, a manifest restriction on the free exercise of
the rights of speech and of the press in the provisions of Section 50-B imposing a
limitation of time on the following activities.

(c) Making speeches, announcements or commentaries or holding interviews

for or against the election of any party or candidate or party;

(d) Publishing or distributing, campaign. literature or materials

(e) Directly or indirectly soliciting votes and or undertaking any campaign or

propaganda for or against any candidate or party;

Likewise, the regulation of the time within which nominations of candidates by

political parties may take place, under Section 50-A, and fixing a time limit for
holding "political conventions, caucuses, conference meetings, rallies, parades, or
other similar assemblies" for campaign purposes under paragraph (b) of Section 50-
B, curtails the freedom of peaceful assembly. And finally, the right to form
associations for purposes not contrary to law is impinged upon by the provision of
paragraph (a) of Section 50-B regulating the forming of "Organizations,
Associations, Clubs, Committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign or propaganda for or against a
party or candidate."

It is fairly accurate to say that legislations imposing restrictions upon the right of
free expression, and upon the right of assembly and of political association
indispensable to the full exercise of free expression, have commonly been subjected
to more searching and exacting judicial scrutiny than statutes directed at other
personal activities. As aptly said by the United States Supreme Court in Schneider
v. Irvington:6

In every case, ... where legislative abridgment of the rights is asserted, the
courts should be astute to examine the effect of the challenged legislation.
Mere legislative preference or beliefs respecting matters of public
convenience may well support regulation directed at other personal activities
but be in sufficient to justify such as diminishes are exercise of rights so vital
to the maintenance of democratic institutions.

Thomas v. Collins7exemplifies the same approach: "The rational connection

between the remedy provided and the evil to be curbed, which in other contexts
 Page 94 of 192

might support legislation against attack on other grounds, will not suffice. These
rights [of expression and assembly] rest on firmed foundations."

The belief that more exacting constitutional tests are appropriately applied upon
statutes having an actual or potential inhibiting effect on the right of speech, and
the cognate rights of assembly and association, flows from recognition of the nature
and function of these rights in a free democratic society. Historically the guarantees
of free expression were intended to provide some assurance that government would
remain responsive to the will of the people, in line with the constitutional principle
that sovereignty resides in the people and all government authority emanates from
them. 8 The viability of a truly representative government depends upon the
effective protection and exercise of the rights of the people to freely think, to freely
discuss and to freely assemble for redress of their grievances; for these underlie the
mechanisms of peaceful change in a democratic polity. There is ample authority in
history for the belief that those who value freedom, but are frustrated in its
exercise, will tend to resort to force and violent opposition to obtain release from
their repression. So essential are these freedoms to the preservation and vitality of
democratic institutions that courts have on numerous occasions categorized them
as occupying a "preferred position" in the hierarchy of civil liberties.  9 "That priority,"
intoned the court in Thomas v. Collins, supra, "gives these liberties a sanctity and a
sanction not per permitting dubious instrusions."

This is not to say that the rights of free expression and of peaceful assembly may
not be constitutionally restricted by legislative action. No one has seriously doubted
that these rights do not accord immunity to every possible use of language or to
every form of assembly. Circumstances may arise in which the safety, perhaps the
very survival of our society, would demand deterrence and compel punishment of
whomsoever would abuse these freedoms as well as whomsoever would exercise
them to subvert the very public order upon the stability of which these freedoms
depend.

... It is a fundamental principle, long established, that the freedom of speech

and of the press which is secured by the Constitution does not confer an
absolute right to speak or publish, without responsibility, whatever one may
choose, or unrestricted or unbridled license that gives immunity for every
possible use of language and prevents the punishment of those who abuse
this freedom.10

The right to freedom of speech, and to peaceful assembly 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 people.11
 Page 95 of 192

But in every case where there arises a clash between an assertion of State authority
and the exercise of free speech and assembly, it is ultimate the high function and
duty of this court to locate the point of accomodation and equilibrium and draw the
line between permissible regulation and forbidden restraint.

It is now conventional wisdom that this function of delimitation and adjustment

cannot meaningfully be carried out through the iteration of abstract generalizations.
The restriction that is assailed as unconstitutional must be judged in the context of
which it is part, taking into account the nature and substantiality of the community
interest sought to be protected or promoted by the legislation under assay, in
relation to the nature and importance of the freedom restricted and the character
and extent of the restriction sought to be imposed.

III

Various standards have been evolved for the testing of the validity of a rule or
regulation curtailing the rights of free speech, free press, and peaceful assembly. At
the earlier stages in the development of jurisprudence on the matter, it was said
that the State has the power to proscribe and punish speech which the State has
the right to prevent." 12 The "dangerous tendency" rule, as this formulation has been
called, found favor in many decisions of this Court. 13

In the United States, the "dangerous tendency" doctrine was early abandoned, and
superseded by the "clear and present danger" rule. By the year 1919, the majority
of the members of the United States Supreme Court got around to accepting Justice
Holmes' view that "the question in every case is whether the words are used in such
circumstances and are of such a nature as to create a clear and present danger that
they will bring about the substantive evils that Congress has a right to
prevent." 14 To sustain legislation imposing limitations upon freedom of speech or of
assembly, a court must find that the evil sought to be avoided by the legislative
restriction is both serious and imminent in high degree. As stated in Bridges v.
California: 15

... the likelihood, however great, that a substantive evil will result cannot
alone justify a restriction upon freedom of the speech or the press. The evil
itself must be "substantial" ...; it must be "serious" ....

What clearly emerges from the "clear and present danger" cases is a working
principle that the substantive evil must be extremely serious and the degree
of imminence extremely high before utterances can be punished ...

The "clear and present danger" rule has been cited with approval, in at least two
decisions of this Court. 16

The "dangerous tendency" and "clear and present danger" doctrines, it should not
escape notice, were fashioned in the course of testing legislation of a particular type
legislation limiting speech expected to have deleterious consequences on the
security and public order of the community. The essential difference between the
two doctrines related to the degree of proximity of the apprehended danger which
 Page 96 of 192

justified the restriction upon speech. The "dangerous tendency" doctrine permitted
the application of restrictions once a rational connection between the speech
restrained and the danger apprehended — the "tendency" of one to create the
other — was shown. The "clear and present danger" rule, in contrast, required the
Government to defer application of restrictions until the apprehended danger was
much more visible until its realization was imminent and nigh at hand. The latter
rule was thus considerably more permissive of speech than the former, in contexts
for the testing of which they were originally designed.

In other types of contexts, however, where the "substantive evil" which Congress
seeks to avoid or mitigate does not relate to the maintenance of public order in
society, the adequacy or perhaps even the relevancy of these doctrines cannot be
casually assumed. It would appear to me that one of these contexts would be 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 speech
and assembly in terms of the probability of realization of a specific danger is not
susceptible even of impressionistic calculation. I believe that Sections 50-A and 50-
B come within such context. Congress enacted these provisions not because it
feared that speeches and assemblies in the course of election campaigns would,
probably or imminently, result in a direct breach of public order or threaten national
security. Sections 50-A and 50-B explicitly recognize that such speech and assembly
are lawful while seeking to limit them in point of time.

However useful the "clear and present danger" formulation was in the appraisal of a
specific type of situation, there is fairly extensive recognition that it is not a rule of
universal applicability and validity, not an automatic mechanism that relieves a
court of the need for careful scrutiny of the features of a given station and
evaluation of the competing interests involved.

In American Communications Ass'n v. Douds. 17 the United States Supreme Court

unequivocally said that "in suggesting that the substantive evil must be serious and
substantial, it was never the intention of this Court to lay down an absolutist test
measured in terms of danger to the Nation." Rejecting the criterion of "clear and
present danger" as applicable to a statute requiring labor union officers to subscribe
to a non-communist affidavit before the union may avail of the benefits of the Labor
Management Relations Act of 1947, the Court, speaking through Chief Justice
Vinson, said:

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.... We must, therefore undertake the delicate and difficult task ...
to weigh the circumstances and to appraise the substantiality of the reasons
advanced in support of the regulation of the free enjoyment of rights.... 18

In enunciating a 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
 Page 97 of 192

the U.S. Supreme Court. 19 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. 20

In the actual application of the "balancing-of-interests" test, the crucial question is:
how much deference should be given to the legislative judgment? It does not seem
to me enough to say that this Court should not concern itself with the wisdom of a
particular legislative measure but with the question of constitutional power. I
believe that we cannot avoid addressing ourselves to the question whether the
point of viable equilibrium represented by the legislative judgment embodied in R.A.
4880 is an appropriate and reasonable one, in the light of both the historic purpose
of the constitutional safeguards of speech and press and assembly and the general
conditions obtaining in the community.

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," 21 a wide range of factors are necessarily relevant in ascertaining the
point or line of equilibrium. Among these are (a) the social values 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. 22

In my view, the "balancing-of-interests" approach is more appropriately used in

determining the constitutionality of Sections 50-A and 50-B. Both the "dangerous
tendency" and "clear and present danger" criteria have minimum relevancy to our
task of appraising these provisions. Under these two tests, the statute is to be
assayed by considering the degree of probability and imminence with which
"prolonged election campaigns" would increase the incidence of "violence and
deaths," "dominion of the rich in the political arena" and "corruption of the
electorate." This kind of constitutional testing would involve both speculation and
prophecy of a sort for which this Court, I am afraid, has neither the inclination nor
any special competence.

IV

Applying the "balancing-of-interests" test or approach outlined above, I am

persuaded that Congress did not exceed constitutional limits in enacting Section 50-
A. This Section, it will be recalled, makes it unlawful for any political party or group
to nominate a candidate for an elective public office earlier than the period of 150
or 90 days, as the case may be, immediately preceding the election. No political
party or group can claim a constitutional right to nominate a candidate for public
office at any time that such party or group pleases. The party nomination process is
a convenient method devised by political parties and groups, as a means of
 Page 98 of 192

securing unity of political action. 23 As a device designed for expediency of

candidates and of political parties, the process of nomination — or at least the time
aspect thereof — must yield to the requirements of reasonable regulations imposed
by the State. It may be well to note that in many jurisdictions in the United States,
the nomination of candidates for public office is regulated and controlled in many
aspects by statutes. 24 While the act of nominating a candidate has speech and
assembly aspects, the restrictive effect of Section 50-A would appear negligible. The
reach of the statute is itself limited: it applies only to political parties, political
committees or political groups, leaving everyone else free from restraint. The thrust
of Section 50-A is also limited: it does not prohibit political parties from holding
nominating conventions or from doing any lawful thing during such conventions;
what it controls is the scheduling of the nominating conventions; While control of
the scheduling  of conventions of course involves delimitation of the time period
which the formally revealed candidates have to convince the electorate of their
respective merits, those periods — 150 days and 90 days — do not appear
unreasonably short, at least not in this age of instantaneous and mass media.

On the other hand, the legitimacy and importance of the public interest sought to
be promoted by Section 50-A must be conceded. Congress has determined that
inordinately early nominations by political parties or groups have the tendency of
dissipating the energies of the people by exposing them prematurely to the
absorbing excitement of election campaigns as we know them, and detracting from
the attention that ought to be given to the pursuit of the main task of a developing
society like ours, which is the achievement of increasing levels of economic
development and social welfare.

The rational connection between the prohibition of Section 50-A and its object, the
indirect and modest scope of its restriction on the rights of speech and assembly,
and the embracing public interest which Congress has found in the moderation of
partisan political activity, lead us to the conclusion that the statute may stand
consistently with and does not offend against the Constitution. The interest of the
community in limiting the period of election campaigns, on balance, far outweighs
the social value of the kind of speech and assembly that is involved in the formal
nomination of candidates for public office.

I reach a different conclusion with respect to Section 50-B. Here, the restraint on the
freedoms of expression, assembly and association is direct. Except within the "open
seen" of 120 and 90 days preceding the election, the statute prevents and punishes
— by heavy criminal sanction — speeches, writings, assemblies and associations
intended to promote or oppose the candidacy of any person aspiring for an elective
public office, or which may be deemed a direct or an indirect "campaign" or as
"propaganda" for or against a political party. The prohibition reaches not only "a
relative handful of persons;" 25 applies to any person "whether or not a voter or
candidate," and to any group of persons "whether or not a political party or political
committee." The effect of the law, therefore, is to impose a comprehensive and
prolonged prohibition of speech of a particular content, except during the 120 or 80
days, respectively, immediately preceding an election.
 Page 99 of 192

Thus, the moment any person announces his intention of seeking an elective public
office, "regardless of whether or not said person has already filed his certificate of
candidacy or has been nominated by any political party as its candidate," Section
50-B would become immediately operative. Should the aspirant make known his
intention, say, one year before the election, the law forthwith steps in to impose a
"blackout," as it were, of all manner of discussion in support of or in opposition to
his candidacy. The lips of the candidate himself are by the threat of penal sanction
sealed, and he may not make a speech, announcement, commentary, or hold an
interview to explain his claim to public office or his credentials for leadership until
the commencement of the period allowed for an "election campaign." Neither
may any person, before that period, speak out in open support or criticism of his
candidacy, for that would constitute a prohibited commentary "for or against the
election of [a] candidate [albeit not a formally nominated candidate] for public
office," within the purview of paragraph (c) of Section 50-B. In practical effect,
Section 50-B would stifle comment or criticism, no matter how fair-minded, in
respect of a given political party (whether in our out of power) and prospective
candidates for office (whether avowed or merely intending), and would abide all the
citizens to hold their tongues in the meantime.

What of the social value and importance of the freedoms impaired by Section 50-B?
The legislation strikes at the most basic political right of the citizens in a republican
system, which is the right actively to participate in the establishment or
administration of government. This right finds expression in multiple forms but it
certainly embraces that right to influence the shape of policy and law directly by the
use of ballot. It has been said so many times it scarcely needs to be said again, that
the realization of the democratic ideal of self-government depends upon an
informed and committed electorate. This can be accomplished only by allowing the
fullest measure of freedom in the public discussion of candidates and the issues
behind which they rally; to this end, all avenues of persuasion — speech, press,
assembly, organization — must be kept always  open. It is in the context of the
election process that these fundamental rigths secured by the Constitution assume
the highest social importance. 26

As to the formation of "organizations, associations, clubs, committees or other

groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate," 27 this is a right which,
like freedom of expression and peaceable assembly, lies at the foundation of a
libertarian and democratic society. 28 As Professor Kauper has explained, with
characteristic lucidity:

When we speak of freedom of association we may, have reference to it in a

variety of contexts. Probably the highest form of freedom of association, at
least as many would see it, is the freedom to associate for political purposes
by means of organization of a political party and participation in its activities.
The effective functioning of a democratic society depends on the formation of
political parties and the use of parties as vehicles for the formulation and
expression of opinions and policies. The minority party or parties become
vehicles for registering opposition and dissent. The political party is the
indispensable agency both for effective participation in political affairs by the
individual citizen and for registering the diversity of views in a pluralistic
 Page 100 of 192

society. Indeed, under some other constitutional systems political parties are
viewed as organs of government and have a high constitutional status. 29

We turn to the other end of the scales. As I have herein before observed, the
interest of the state in regulating partisan political activity, which is sought to, be
secured by Section 50-B no less than by Section 50-A, is a legitimate one and its
protection a proper aim for reasonable exercise of the public power. I think,
however, that that interest, important as it is, does not offset the restrictions which
Section 50-B imposes with indiscriminate sweep upon the even more fundamental
community interests embodied in the constitutional guarantees of speech,
assembly and association. I have adverted to Mills v. Alabama  where the United
States Supreme Court struck down the Alabama Corrupt Practices Act to the extent
that it prohibited, under penal sanctions, comments and criticism by the press on
election day. The statutory provision there in question 11, not unlike Section 50-B
here, was sought to be sustained in the interest of preserving the purity and
integrity of the electoral process. The restriction which the Alabama statute
imposed upon freedom of speech and assembly would seem an inconsequential one
— a restriction, imposed for one day, only one day, election day; nevertheless, the
United States Supreme Court regarded such restriction as sufficient to outweigh the
concededly legitimate purpose of the statute. We can do no less in respect of
restrictious of such reach, scope and magnitude as to make the limitation of the
Alabama statute appear, in comparison, as an altogether trifling inconvenience.

Indeed, if a choice is to be made between licentious election campaigns, which

Section 50-B seeks to curtail, and the muzzling, as it were, of public discussion of
political issues and candidates, which the provision would effectuate, I have no
hesitancy in opting for the former. It is the only choice consistent with the
democratic process. Fortunately, there is no need to choose between one and the
other; the dichotomy need not be a real one. I am not to be understood as holding
that Congress may not, in appropriate instances, forbid the abusive exercise of
speech in election campaigns. There is no constitutional immunity for a defamatory
attack on a public candidate. Neither is there protection for slander of public
officials. 30 It has been held to be within the power of the legislature to penalize
specifically the making, in bad faith, of false charges of wrongdoing against a
candidate for nomination or election to public office, 31 and to prohibit the
publication or circulation of charges against such candidate without serving him a
copy of such charges several days before the election. 32 Statutes of this kind have
been sustained against broad claims of impairment of freedom of speech and of the
press. 33 "But it is an entirely different matter when the State, instead of prosecuting
[offenders] for such offenses, seizes upon mere participation in a peaceable
assembly and a lawful public discussion as a basis for criminal charge. 34

That remedies less destructive of the basic rights enshrined in the Constitution
are not available, has not been shown. The applicable principle here has been
formulated in the following terms:

... even though the governmental purposes be legitimate and substantial,

that purpose cannot be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved. The breadth
 Page 101 of 192

of legislative abridgment must be viewed in the light of less drastic means for
achieving the same purpose.35

Section 50-B, as it would casually lump together the activities of citizens  exercising
their constitutional rights  and those of politicians seeking the privilege  of an
elective office, is to broadly drawn to satisfy the constitutional test. The more
pernicious aspects of our national preoccupation with "politics" do not arise from
the exercise, even the abuse, by the electorate of the freedoms of speech and of
the press; I find it difficult to suppose that these can be met by curtailing
expression, assembly and association. The great majority of our people are too
preoccupied with demands upon their time imposed by our generally marginal or
submarginal standards of living. "Politics," as I see the contemporary scene, is a
dominant pre-occupation of only a handful of persons — the politicians, the
professional partymen. If the people at large become involved in the heat and
clamor of an election campaign, it is ordinarily because they are unduly provoked or
frenetically induced to such involvement by the politicians themselves. As it is, the
great masses of our people do not speak loud enough — and, when they do, only
infrequently — about our government. The effect of the ban on speech would serve
only to further chill constitutionally protected conduct on their part which, instead of
being suppressed, should on the contrary be encouraged.

It is not amiss to observe here that the making of politically oriented speeches and
the dissemination of similar literature, while they may divert the energies of those
who make or write them and their audiences, would appear to me to be among the
less pernicious aspects of our national preoccupation with "politics." The more
dangerous aspects of our national preoccupation probably occur in privacy or
secrecy and may be beyond the reach of measures like Section 50-B.

It is argued in defense of the statute, nonetheless, that under the two provisos of
Section 50-B, "simple expressions of opinion and thoughts concerning the election"
and expression of "views on current political problems or sues," including
mentioning the names of candidates for public offices whom one supports, are not
prohibited; hence, freedom of expression is not unconstitutionally abridged by
Section 50-B.

This argument is gravely flawed by the assumption that "simple expressions of

opinion" and "views on current political problems" cover the whole reach of the
relevant constitutional guarantees. What about the rights of assembly and lawful
association? As to freedom of expression that cannot be confined to the realm of
abstract political discussions. It comprehends expression which advocates action,
no less than that which merely presents an academic viewpoint. Indeed, the value
of speech in a democratic society lies, in large measure, in its role as an instrument
of persuasion, of consensual action, and for this reason it must seek to move to
action by advocacy, no less than by mere exposition of views. It is not mere
coincidence that the farmers of our Constitution, in protecting freedom of speech
and of the press against legislative abridgment, coupled that freedom with a
guarantee of the right of the people to peaceably assemble and petition the
government for the redress of grievances. The right of peaceful assembly for the
redress of grievances would be meaningless and hollow if it authorized merely the
 Page 102 of 192

public expression of political views, but not the advocacy of political reforms — even
changes in the composition of the elective officialdom of the administration.

There is another, equally basic, difficulty that vitiates the avowed constitutional
utility of the provisos appended to Section 50-B. Under the first proviso, it
"simple expressions of opinion and thoughts concerning the election shall not be
considered as part of an election campaign." From the precise use of the word
"simple" may be rationally drawn an inference that "non-simple" expressions fall
within the proscription of election campaigns. But the law conspicuously fails to lay
dawn a standard by which permissible electioneering. How simple  is "simple"? In
the absence of such a standard, every speaker or writer wishing to make publicly
known his views concerning the election and his preferences among the candidates,
must speak at his own peril. He could carefully choose his word's with the intention
of remaining within the area of speech left permissible by Section 50-B. But, in the
nature of things, what and who can provide him assurance that his words, "simple
expressions of opinion and thoughts concerning the election" as they may be, will
not be understood by his audience or at least by some of them, or by the
prosecuting officers of the Government, or by the courts even, as a "speech" or
"commentary" "for or against the election of ... a candidate for public office," or at
least an indirect solicitation of votes?

It is pertinent to advert to the Texas statute involved in Thomas v. Collins, supra, as

illustrative of the vice of vagueness that we find in Section 50-B. The Texas statute
required all labor union organizers to first obtain organizer's cards from the
Secretary of State "before soliciting any members for his organization," and
authorized the courts to compel compliance by the issuance of court processes.
Thomas, the president of a nationwide labor union, came to Houston to address a
mass meeting of employees of an oil plant which was undergoing unionization; but
six hours before he was scheduled to speak, he was served with a court order
restraining him from soliciting members for the local union which was affiliated with
his organization, without first obtaining an organizer's card. For disobeying the
restraining order, he was found in contempt of court. The U.S. Supreme Court,
reversing his conviction, found the registration requirement an invalid restraint
upon free speech and free assembly, thus:

That there was restriction upon Thomas' right to speak and the rights of the
workers to hear what he had to say, there can be no doubt. The threat of the
restraining order, backed by the power of contempt, and of arrest for crime,
hung over every word. A speaker in such circumstance could avoid the words
"solicit," "invite," "join". It would be impossible to avoid the idea. The statute
requires no specific formula. It is not contended that only the use of the word
"solicit" would violate the prohibition. Without such a limitation, the statute
forbids any language which conveys, or reasonably could be found to convey,
the meaning of invitation. That Thomas chose to meet, the issue squarely,
not to hide in ambiguous phrasing, does not counteract this fact. General
words create different and often particular impressions on different minds. No
speaker, however careful, can convey exactly his meaning, or the same
meaning, to the different members of an audience. How one might "land
unionism," as the State and the State Supreme Court concedes Thomas was
free to do, yet in these circumstances not imply an invitation, is hard to
 Page 103 of 192

conceive. This is the nub of the case, which the State fails to meet because it
cannot do so, Workingmen to do lack capacity for making rational
connections. They would understand, or some would, that the president of
U.A.W. and vice president of C.I.O. addressing an organization meeting, was
not urging merely, a philosophy attachment to abstract principles of
unionism, disconnected from the business immediately at hand. The feat
would be incredible for a national leader, addressing such a meeting, lauding
unions and their principles, urging adherence to union philosophy, not also
and thereby to suggest attachment to the union by becoming a member.

Furthermore, whether words intended and designed to fall short of invitation

would miss that mark is a question, of intent and of effect. No speaker, in
such circumstance safely could assume that anything lie might say upon the
general subject would not be understood by as an invitation. In short, the
supposedly clear-cut distinction between discussion and laudation, general
advocacy, and solicitation puts the speaker in these circumstance wholly at
the mercy of the varied understanding of his hearers and consequently of
whatever inference may be drawn as to his intent and meaning.

Such a distinction offers no security for free discussion. In these conditions it

blankets with uncertainty whatever may be said. It compels the speaker to
hedge and trim. He must take care in every word to create no impression
that he means, in advocating unionism's most central principle, namely, that
workingmen should unite for collective bargaining, to urge those present to
do so. The vice is not merely that invitation, in the circumstances shown
here, is speech. It is also that its prohibition forbids or restrains discussion
which is not or may not be invitation. The sharp line cannot be drawn surely
or securely. The effort to observe it could not be free speech, free press, or
free assembly, in any sense of free advocacy of principle or cause. The
restriction's effect, as applied, in a very practical sense was to prohibit
Thomas not only to solicit members and memberships but also to speak in
advocacy of the cause or trade unionism in Texas, without having first
procured the card. Thomas knew this and faced the alternatives it
presented. When served with the order he had three choices: (1) to stand on
his right and speak freely; (2) to quit, refusing entirety to speak; (3) to trim,
and even thus to risk the penalty. He chose the first alternative. We think he
was within his lights in doing so.36

The realism of the approach and reasoning employed in Thomas v.

Collins  commends itself; I think this kind of realism should be applied to the task of
appraising Section 50-B. Section 50-B forbids "directly or indirectly soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate or
party," including any language "for or against the election of any party or candidate
for public office," except within the specified periods preceding the election.

If a minority political party were to hold a mass rally at Plaza Miranda within the
prohibited period of an election year, for the purpose of publicly expressing their
criticism of the party in power, it is unthinkable that the public speeches delivered
during the occasion will not understood, by many if not by all, as a direct or an
indirect campaign or propaganda against a political party, as well as a direct or an
 Page 104 of 192

indirect solicitation of votes. The audience will certainly understand the occasion,
not as a forum for indulging in criticism for criticism's sake, nor as a "simple"
discussion of political, philosophy, but as an invitation to unseat the party in power
at the next election. If, upon the other hand, the minority party should control one
or both Houses of Congress and, for selfish partisan motives, oppose all or a major
portion of the significant measures sponsored by the Administration, regardless of
their merits, for the purpose of obtaining political partisan advantage, the Chief
executive would, during the restricted period, find himself hampered in vigorously
placing blame squarely on such minority party. The Administration (and this
includes the Chief Executive himself) would be hard put to appeal to public opinion
to exert pressure on the legislature to gain support for what it may honestly believe
to be constructive measures sorely needed to promote the country's progress. The
right of any party or politician to appeal to public opinion cannot be assailed; yet,
when would such an appeal, in which the opposition may have to be several
criticized not constitute a violation of Section 50-B? Actual, pre-war and postwar
experience has shown that in a number of instances, the Chief Executive and
leaders of his administration had to mobilize public opinion (largely expressed
through the press) to frustrate what they regarded as a calculated scheme the
opposition party of unreasonably interposing obstacles to a major part of essential
legislation. It would indeed be most difficult to determine with exactitude what
utterances of the Administration leaders, including the Chief Executive himself,
would or would not constitute propaganda "for or against a political  party."

Under these circumstances, I find the contraposition in Section 50-B between

"expressions of opinion," on the one hand, and "solicitation" and "campaign or
propaganda," on the other, as too uncertain and shifting a line of distinction to be of
any practical utility either to the citizen or official who must speak at his own peril
or to the prosecutors and the courts who must enforce and apply the distinction.

Paragraph (f) of Section 50-B is tautological and question-begging. It

defines "election campaign" as "giving, soliciting, or receiving contributions for
election campaign purposes, either directly or indirectly." Insofar, therefore, as the
phrase "election campaign purposes" in paragraph (f) depends for its meaning on
the preceding paragraphs (a), (b), (c), (d) and(e), paragraph (f) likewise suffers from
constitutional infirmity. Upon the other hand, if the meaning of paragraph (f) be that
the act of soliciting, giving or receiving contributions for the purpose of advancing
the candidacy of a person or party is "campaigning," then it is just as must a
curtailment of the freedom of thought that the Constitution vouchsafes to every
citizen.

The foregoing disquisition could be compressed into the compelling perspective of

this simple admonition: that "speech concerning public affairs is more than self-
expression; it is the essence of self-government." 37

In sum and substance, it is my considered view that Section 50-B of the Revised
Election Code constitutes an unconstitutional abridgment of the freedoms of
speech, of the press, of peaceful assembly, and of lawful association.

I vote for its total excision from the statute books.

 Page 105 of 192

Dizon, Zaldivar and Capistrano, JJ., concur.

BARREDO, J., concurring and dissenting:

I concur in the resulting dismissal of this case, but I candidate give my assent to so
much of the opinion, brilliantly written for the Court by Mr. Justice Fernando, as
would give the imprimatur of constitutionality to any portion of Section 50-B of the
statute before Us. Hereunder are my humble but sincere observations.

I am of the firms conviction that this case should be dismissed. In fact, it is not clear
to me why the petition herein was ever given due course at all No matter how I scan
its allegations, I cannot find anything in them more than a petition for relief which is
definitely outside the original jurisdiction of this Court. Petitioners themselves have
expressly brought it as a petition for relief; it is the majority that has decided to pull
the chestnuts out of the fire by holding that it should be "treated by this Court as
one of prohibition in view of the seriousness and the urgency of the constitutional
issue raised." Frankly I consider this relaxation rather uncalled for; it could border
on over eagerness on the part of the Supreme Court, which is not only taboo in
constitutional cases but also certainly not befitting the role of this Tribunal in the
tripartite scheme of government We have in this Republic of ours. I am afraid the
majority is unnecessarily opening wide the gate for a flood of cases hardly worthy of
our attention, because the parties concerned in many cases that will come to Us
may not see as clearly as We do the real reasons of public interest which will move
Us when We choose in the future to either entertain or refuse to take cognizance, of
cases of constitutionality. Withal, We cannot entirely escape the suspicion that We
discriminate.

Since after all, the majority admits that "When We act in these matters, We do not
do so on the assumption that to Us is granted the requisite knowledge to set
matters right, but by virtue of the responsibility We cannot escape under the
Constitution, one that history authenticates, to pass upon every assertion of an
alleged infringement of liberty, when our competence is appropriately invoked",
(underscoring mine) and, further, no one can deny that it is now firmly established
that among the indispensable requirements before this Court can take up
constitutional question is that We can do it only when it, involves a real and genuine
situation causing direct substantial injury to specific persons, as contradistinguished
from mere speculative fears of possible general hardship or mere inconvenience, I
feel it would be much safer for Us, and our position would be more in word with the
rule of law, if We adhered strictly to the above requirement and threw out cases of
the nature of the present one, if only out of the traditional respect this Tribunal
owes the two other coordinate and co-equal departments of our government. In the
petition at bar, there are no allegations of specific acts of the respondent
Commission on Elections or even only threatened to be committed by it, pursuant to
the challenged legislation, which they claim impairs, impedes, or negates any rights
of theirs considered to be constitutionally protected against such impairment,
impeding or negation. It is very clear to me that in this case, our jurisdiction has not
been properly invoked. Considering how multifaceted the law in question is, one is
completely at a loss as to how petitioner request for a blanket prohibition and
injunction can be considered, in the light of existing principles that strictly limit our
 Page 106 of 192

power to take cognizance of constitutional cases only to those that can pass the
test I have mentioned above.

What is more, I regret to have to say that what the majority is doing by taking
further cognizance of and deciding this case is to brush aside the stark reality that
the interest in this case of petitioners Cabigao and Gonzales, the first, as candidate,
and the second, as his leader, related only to the elections of 1967 wherein, in fact,
Cabigao was elected Vice-Mayor of Manila. Accordingly, this case has already
become entirely academic even as a prohibition, because neither Cabigao nor his
leader, Gonzales, can conceivably have any further imaginable interest in these
proceedings. How can we proceed then, when petitioners' interest no longer exists
and whatever decision We may make will no longer affect any situation involving
said petitioners. Clearly to me, what the majority has done is to motu
proprio convert the action of petitioners into a taxpayer's suit, which may not be
proper because there no specific expenditure of public funds involved here. Besides,
if petitioners have not come with a supplemental petition still complaining, why are
We going to assume that they are still complaining or, for that matter, that there
are other persons who are minded to complain, such that We have to give or deny
to them here and now the reason to do so?

Again, I say, the Court seems to be trying to bite more than it can chew, since cases
of this nature 1 will surely come in great numbers and We will have to accommodate
them all, otherwise the exercise of our discretion in rejecting any of them can be
questioned and may at times be really questionable. My basic principle is that the
rule of law avoids creating areas of discretionary powers, and the fact that it is the
Supreme Court that exercises the discretion does not make it tolerable in any
degree, for such an eventuality can be worse because no other authority can check
Us and the people would be helpless, since We cannot be changed, unlike the
President and the Members of Congress who can, in effect, be recalled in the
elections. Of course, I have faith in the individual and collective wisdom and
integrity of each and every one of my fellow members of this Court, but I still prefer
that We exercise discretion only when it is clearly granted to Us, rather than for Us
to create by our own fiat the basis for its exercise.

The other question assailing my mind now, is this: Is there any precedent, whether
here or in any other jurisdiction where the Supreme Court has the power to declare
legislative or executive acts unconstitutional, wherein any supreme court had
insisted on deciding grave constitutional questions after the case had become
completely moot and academic because the interest of the actors alleged in their
pleading had ceased to exist? I don't believe there has been any, which is as it
should be, because if this Court and even inferior court dismiss ordinary cases
which have become moot and academic, with much more reason should such action
be taken, in cases wherein the unconstitutionality of a law or executive order is
raised, precisely for the reasons of principle already stated and fully discussed in
other constitutional cases so well known that they need not be cited here anymore.

It is for these considerations that I join the majority in dismissing this case. And I
want to acknowledge that I am heartened in any stand by the fact that in the
deliberations, at least, Mr. Justice Makalintal expressed similar views as mine, so
much so that, in his particular case, he did not even care to discuss the
 Page 107 of 192

constitutional questions herein invoIved precisely because they are not

appropriately before this Court. 1a On the other hand, if the majority's position is
correct that this Court may properly consider this case as one of prohibition and
that it should be decided despite its having become clearly academic, I would
definitely cast my vote with Mr. Justice Castro to declare unconstitutional Section
50-B of the legislative enactment in question, Republic Act 4880, more popularly
known as the Tañada-Singson Law. Unlike him, however, I shall not indulge in a
complete discussion of my stand on the constitutional questions herein involved,
since the opportunity to voice fully my views will come anyway when the proper
case is filed with Us. It is only because some members of the Court feel that we
should make known what are, more or less, our personal opinions, so that the
parties concerned may somehow be guided in what they propose to do or are doing
in relation to the coming election, that I shall state somehow my fundamental
observations, without prejudice to their needed enlargement if and when the
appropriate opportunity comes. Indeed, in my humble view, what the Court is
rendering here is in the nature of an advisory opinion and I am sure all the members
of the Court will agree with me that in doing this we are departing from the
invariable posture this Court has always taken heretofore. In other words, we are
just advancing now, individually and collectively, what our votes and judgment will
be should an appropriate case come, unless, of course, as some of our colleagues
have wisely observed in other cases where I have made similar observations, We
change our mind after hearing the real parties in interest.

Coming now to the constitutional problems posed by the pleadings, I have these to
say, for the time being:

1. The first specific act defined by the statute in question as "election campaign" or
"partisan political activity" proscribed by it within the stipulated limited period of
one hundred twenty days prior to an election at large and ninety days in the case of
any other election is to "form(ing) organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a party or candidate." No law more
effective, if less disguised, could have been conceived to render practically
impossible the organization of new political parties in this country. If for this reason
alone, I consider this provision to be deserving of the severest condemnation as an
unparalleled assault on the most sacred and fundamental political rights of our
citizenry. In the light of the recent political experience of the strong of heart and
idealists amongst us, this measure appears to me as a perfect or, at least, a near-
perfect scheme for the perpetuation of the status quo and the entrenchment of the
presently existing political parties, particularly, the two major ones, whether or not
we share the cynical reference to them by the discerning as nothing but twin peas
in the same pod. This is not to say that such was what motivated its authors,
particularly Senator Tanada, for whom I have always had the highest regard for his
never-questioned sincerity of purpose, patriotism and libertarian principles, which
opinion of mine is undoubtedly shared by all the member of this Court. I must insist,
however, that such is what appears to me to be unmistakably the evident effect of
the prohibition under discussion it is most probable that in its passion to remedy as
early as possible the evils it feels exist, Congress has overlooked unwittingly some
of the possible implications of this particular measure.
 Page 108 of 192

It is one thing to prohibit a political party from actively campaigning outside a

certain period of time and it is entirely another thing to prohibit citizens who are not
contented with the existing political parties to organize, outside the same period,
any new political party which they feel will better serve the public weal. 1b Before it
is contended that this provision does allow the organization of new political parties
within the abovementioned periods of one hundred twenty and ninety days
preceding each respective election referred to, I hasten to add that the said periods
are so obviously insufficient that to some it would appear as if the reference to such
brief periods of free organization in the provision was just inserted into it to
camouflage its real but unmentionable intentions and/or to blunt any challenge of
unconstitutionality.

All our people have been witnesses to events of contemporary history which have
clearly demonstrated the futility of organizing a new political party or even just a
front or alliance within such a short time. To name the gallant national figures who
have met frustration in such endeavor even with much more time at their disposal
is to prove that the task is simply next to impossible, no matter if it were
undertaken by men of the best reputation in integrity and nobility of ideals. It is
surely of common knowledge that the work of organization alone of a party, not to
speak of the actual participation and influence such party is intended to effectuate
in the ensuing election, can hardly be accomplished, within the four months
provided by the statute, with sufficient success to be of any consequence, specially,
on a national level, which is what is needed most, because while local issues seem
to arouse more interest among the electors, national issues have a profound effect
on the lives and liberties of all the people. It must be borne in mind, in this
connection, that our country is made up of more than 7,000 islands scattered
throughout the length and breadth of the archipelago. Those who have taken part in
one way or another in an electoral campaign of national dimension know only too
well that one can hardly cover a majority of these islands, not to speak of all of
them, within such an abbreviated period.

Moreover, in the light of contemporary trends of political thinking and action, very
much more than the present condition of things about which there is, to be sure, so
much hypocritical hue and cry, particularly, among those whom the present-day
Robin Hoods, in and out of the government have not attended to, to engender a
general feeling of dissatisfaction and need for change in such widespread
proportions as to readily galvanize enough elements to rise in peaceful revolution
against the existing political parties and bring about the formation within the short
span of four months of a new political party of adequate or at least appreciable
strength and effectiveness in the national arena. Even the obviously sincere efforts
of the undaunted who keep on trying their luck, pitted against the marked
complacency and indifference of the present and passing generations, if not their
incomprehensible inability to overcome the inertia that seems to be holding them
from pushing the scattered protests here and there, more or less valid and urgent,
to their logical conclusion, generate but very little hope that the expected reaction
can materialize during our time.

Needless to say, no matter if one looks at the current scenes thru the most rosy
spectacles, a ban against the formation of new political parties is definitely out of
the question. A total expressed ban is, of Course, repugnant to any decent sense of
 Page 109 of 192

freedom. Indeed, a disguised even if only partial, is even more intolerable in this
country that does not pretend to have but does truly have democratic bearings
deeply rooted in the history of centuries of heroic uprisings which logically
culminated in the first successful revolution of a small nation against despotism and
colonialism in this part of the world.

It is to be conceded that the adequacy or inadequacy of the means adopted by

Congress in the pursuit of a legislative recognized objective is generally irrelevant
to the courts in the determination of the constitutionality of a congressional action. I
must be quick to add, however, that this rule can be salutary only if the adequacy is
controversial, but when the inadequacy of the means adopted is palpable and can
reasonably be assumed to be known or ought to be known generally by the people,
such that it is a foregone conclusion that what is left licit by the law can be nothing
more than futile gestures of empty uselessness, I have no doubt that the judicial
can rightfully expose the legislative act for what it is — an odious infraction of the
charter of our liberties. Other the principle of respect for coordinate and co-equal
authority can be a tyranny forbidding the courts from striking down what is not
constitutionally permissible. I am ready to agree that the judiciary should give
allowances for errors of appreciation and evaluation of the circumstances causing
the passage of a law, but if it is true, as it is indeed true, that the Supreme Court is
the guardian next only to the people themselves of the integrity of the Constitution
and the rights and liberties it embodies and sanctifies, I would consider it an
unpardonable abdication of our peculiar constitutionally-destined role, if We closed
Our eyes and folded Our arms when a more or less complete ban against the
organization of new political parties in this countries is being attempted to be
passed before Us as a legitimate exercise of police power.

At this point, it is best to make it clear that the particular constitutional precept with
which the statutory provision in question is inconsistent and to which therefore, it
must yield is Paragraph 6, Section 1, Article III of the Bill of Rights of the
Constitution which ordains:

The right to form associations or societies for purposes not contrary to law
shall not be abridged.

Incidentally, the indigenous cast of this provision is seemingly emphasized by Mr.

Justice Fernando by his reference to its origin in the Malolos Constitution of
1896. 2 Indeed, there it was provided:

Article 19

No Filipino in the full enjoyment of his civil and political rights shall be hindered in
the free exercise thereof.

Article 20

Neither shall any Filipino, be deprived of:

1. ...
 Page 110 of 192

2. The right of joining any associations for all objects of human life which may
not be contrary to public moral; ...

It is to be observed that in the light of its text and origin, the statutory provision
under scrutiny forbids the abridgement of the right of inhabitants of this country to
form associations and societies of all kinds, including and most of all, for the
citizens, political parties, the sole exception being when the association or society is
formed for purposes contrary to law. It is unquestionable that the formation of an
ordinary political party cannot be for purposes contrary to law. On the contrary, the
organization of political parties not dedicated to the violent overthrow of the
government is an indispensable concomitant of any truly democratic government.
Partyless governments are travesties of the genuine concept of democracy. The
immediate repulsion that fated straws in the wind thrown in favor of such an
anachronistic proposal here in the Philippines is still fresh in the memory of many of
our countrymen. Our people are firmly set on the inseparability of political parties
from a democratic way of life. To ban political parties here is to kill democracy itself.

And now comes this legislation banning the formation of political parties except
within certain limited periods of time, so short, as I have already demonstrated, that
in effect, the ban is a total one. Can them be a more flagrant violation of the
constitutional guarantee of freedom of association? Besides, since it is undeniable
that the evils Congress seeks to remedy cannot be said to have all been brought
about by the formation of new political parties, but rather by the anomalous,
irregular, corrupt and illegal practices of the existing political parties, why does the
legislature have to direct its wrath against new political parties, which, for all we
know, can yet be the ones that will produce the much needed innovation in the
political thinking and actions of our electorate which will precisely do away with the
defects of the present political system? As I see it, therefore, the remedy embodied
in the disputed provision is so clearly misdirected that it cannot, under any concept
of constitutional law, be tolerated and considered constitutionally flawless, on the
theory that it is just a case of error in the choice of means, on the part of Congress,
to attain the objective it has in mind, hence beyond the pale of judicial review.

To be sure, the phrase "for purposes not contrary to law" in the constitutional
provision above quoted did not pass unnoticed during the debates in the
constitutional convention. To some delegates, it appeared that said phrase renders
nugatory the freedom it guarantees, for the simple reason that with said phrase the
lawmakers are practically given the attribute to determine what specific
associations may be allowed or not allowed, by the simple expedient of outlawing
their purposes — prophetic vision, indeed! No less than Delegate Jose P. Laurel, who
later became an honored member of this Court, had to explain that "the phrase was
inserted just to show that the right of association guaranteed in the Constitution
was subject to the dominating police power of the state." (Aruego, id.)

To my mind, this explanation of Delegate Laurel renders the prohibition in the law in
question more vulnerable to the charge of unconstitutionality. It is to me simply
inconceivable that the state can ever forbid the formation of political parties in the
assertion of its "dominating police power". I reiterate that political parties are an
absolute necessity in a democracy like ours. As a matter of fact, I dare say police
power would be inexistent unless the political parties that give life to the
 Page 111 of 192

government which exercises police power are allowed to exist. That is not to say
that political parties are above the state. All that I mean is that without political
parties, a democratic state cannot exist; what we will have instead is a police state.

No more than momentary reflection is needed to realize that much as our

Constitution projects, it would appear, the desirability of the two-party system of
government. there is nothing in it that even remotely suggests that the present
political parties are the ones precisely that should be perpetuated to the prejudice
of any other. Less reflection is needed for one to be thoroughly convinced that to
prohibit the organization of any new political party is but a short step away from
implanting here the totalitarian practice of a one-ticket election which We all abhor.
Absolute freedom of choice of the parties and men by whom we shall be governed,
even if only among varying evils, is of the very essence in the concept of
democracy consecrated in the fundamental law of our land.

So much, for the time being, for the prohibition against new political parties. Let us
go now to the other freedoms unconstitutionally impinged by the legislation at bar.

2. If I vehemently decry the attempt in this law to curtail our freedom to organize
political parties whenever it may please us to do so for being not only violative of
the letter of the constitution but contrary also to the democratic traditions of our
people and likewise a patent disregard of the very essence of a democratic form of
government, I cannot have less repugnance and abhorence for the further attempt
in this law to do away with the freedoms of speech and the press and peaceful
assembly. Lest I be misunderstood, however, as being an ultra-activist, it should be
clear at the outset that in holding that the above prohibitions contained in the
statute in question are violative of the Constitution, my stand is limited to my
fundamental conviction that the freedoms of speech, of the press and of peaceful
assembly and redress of grievances are absolute when they are being exercised in
relation to our right to choose the men and women by whom we shall be governed. I
hold neither candle nor brief for licentious speech and press, but I recognize no
power that can pre-censor much less forbid any speech or writing, and peaceful
assembly and petition for the redress of grievances, the purpose of which is no
more than to express one's belief regarding the qualification or lack of them, the
merits and the demerits of persons who are candidates for public office or of
political parties vying for power, as well as the principles and programs of
government and public service they advocate, to the end that when voting time
comes the right of suffrage may be intelligently and knowingly, even if not always
wisely, exercised. If, in the process, there should be in any manner any baseless
attacks on the character and private life of any candidate or party or some form of
inciting to public disorder or sedition, the offender can be rightfully haled to court
for libel or the violation of the penal provisions on public order and national security,
as the facts may warrant, but never can anyone, much less the state, have the
power to priorly forbid him to say his piece.

Paragraphs (b), (c), (d) and (e) of Section 1 of the challenged legislation cover
practically a common subject matter. They all define as "election campaign" or is
"partisan political activity" forbidden to be exercised within the aforementioned
periods the following liberties:
 Page 112 of 192

The term "Election Campaign" or "Partisan Political Activity" refers to acts

designed to have a candidate elected or not or promote the candidacy of a
person or persons to a public office which shall include:

(a) ...

(b) Holding political conventions, caucuses, conferences, meetings, rallies,

parades, or other similar assemblies, for the purposes of soliciting votes
and/or undertaking any campaign or propaganda for or against any candidate
or party;

(c) Making speeches, announcements or commentaries or holding interviews

for or against the election of any party or candidate for public office;

(d) Publishing or distributing campaign literature or materials;

(e) Directly or indirectly soliciting votes and/or undertaking propaganda for or

against any candidate or party;

Naturally, it is my uncompromising view, that by these provisions the act directly

violates the plain injunction provision of the Constitution to the effect that:

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. (Par. [8], Sec. 1, Art. III of the Constitution)

My colleagues are impressed by the objectives of the legislative measure before Us.
Mr. Justice Fernando voices the feeling of some of them in the opening paragraph of
the Court's opinion thus: "A statute designed to maintain the purity and integrity of
the electoral process by Congress calling a halt to the undesirable practice of
prolonged political campaigns, bringing in their wake serious evils not the least of
which is the ever-increasing cost of seeking public office, is challenged on
constitutional grounds." Mr. Justice Castro proclaims said objectives as practically
self-evident and heartily endorses, by quoting in toto, the purposes avowed in the
explanatory note of Senate Bill 209 which finally became the subject statute. Mr.
Justice Sanchez is a little more factual as he opines:

State authority here manifests itself in legislation intended as an answer to

the strong public sentiment that politics is growing into a way of life, that
political campaigns are becoming longer and more bitter. It is a result of a
legislative appraisal that protracted election campaign is the root of
undesirable conditions. Bitter rivalries precipitate violence and deaths. Huge
expenditures of funds give deserving but poor candidates slim chances of
winning. They constitute an inducement to graft to winning candidates
already in office in order to recoup campaign expenses. Handouts doled out
by and expected from candidates corrupt the electorate. Official duties and
affairs of state are neglected by incumbent officials desiring to run for
reelection. The life and health of candidates and their followers are
endangered. People's energies are dissipated in political bickerings and long
 Page 113 of 192

drawn-out campaigns. (2nd par., p. 4, concurring & dissenting opinion of Mr.

Justice Sanchez) .

I hope I will be forgiven for having to view things differently. Indeed, I would like to
ask the optimists in and out of Congress to silence the trumpets they have sounded
to herald the approval of this law. I agree that generally no court and no member of
this Tribunal has the right to quarrel with Congress in its choice of means to combat
the evils in a legislatively recognized situation, but are We, as the Supreme Court,
to seal our lips even when we can plainly see that a congressional measure
purported allegedly to do away with certain evils does, on the contrary, promote
those very same evils it is supposed to remedy, on top of impinging on our sacred
constitutional freedoms, and at that, with the aggravating element of giving undue
advantage to the incumbents in office and to the existing political parties?

A closer look at the way the prohibitions contained in the section of the law in
dispute will work will reveal how detrimental they are to the basic public interest,
nay, to the right of suffrage itself. I like to reiterate over and over, for it seems this
is the fundamental point others miss, that genuine democracy thrives only where
the power and right of the people to elect the men to whom they would entrust the
privilege to run the affairs of the state exist. In the language of the declaration of
principles of our Constitution, "The Philippines is a republican state. Sovereignty
resides in the people and all government authority emanates from them." (Section
1, Article II) Translating this declaration into actuality, the Philippines is a republic
because and solely because the people in it can be governed only by officials whom
they themselves have placed in office by their votes. And it is on this cornerstone
that I hold it to be self-evident that when the freedoms of speech, press and
peaceful assembly and redress of grievances are being exercised in relation to
suffrage or as a means to enjoy the inalienable right of the qualified citizen to vote,
they are absolute and timeless. If our democracy and republicanism are to be
worthwhile, the conduct of public affairs by our officials must be allowed to suffer
incessant and unabating scrutiny, favorable or unfavorable, everyday and at all
times. Every holder of power in our government must be ready to undergo exposure
any moment of the day or night, from January to December every year, as it is only
in this way that he can rightfully gain the confidence of the people. I have no
patience for those who would regard public dissection of the establishment as an
attribute to be indulged by the people only at certain periods of time. I consider the
freedoms of speech, press and peaceful assembly and redress of grievances, when
exercised in the name of suffrage, as the very means by which the right itself to
vote can only be properly enjoyed. It stands to reason therefore, that suffrage itself
would be next to useless if the liberties cannot be untrammelled whether as to
degree or time.

It must be noted that the proscription contained in this law is against the use
altogether of the freedom of speech, press and peaceful assembly in relation to the
candidacy of a person for public office, not against the use of such freedoms in
order to damage the character of any particular person or to endanger the security
of the state. No matter how I view, it I cannot see how using said freedoms in the
interest of someone's candidacy beyond the prescribed abbreviated period can do
any harm to the common weal. I regret I came too late to this Court to be able to
hear what I have been made to understand was Senator Tañadas very informative
 Page 114 of 192

arguments. With all due respect to what might have been showing by the
distinguished Senator, I personally feel the present measure premature and
misdirected. The incidence and reincidence of bloody occurences directly or
indirectly caused by electoral rivalries cannot be denied, but unless shown
convincing and reliable statistical data, I have a strong feeling that those who
entertain these apprehensions are influenced by unwarranted generalizations of
isolated cases. Not even the residents of such allegedly troublous areas as Ilocos
Sur, the Lanao provinces, Cavite, Cebu and Nueva Vizcaya will admit that the
situation in those places is so beyond control as to necessitate, at any time, the
complete suppression of expression of views, oral and in writing for or against
person handling public affairs or; aspiring to do so.

As the above-quoted provisions stand, every imaginable form of political activity,

whether done individually or suprisingly by a person, or collectively, by a number of
persons, is covered by their prohibitions. Under the said provisions, during twenty
months in every two years, there are only three things Filipinos can do in relation to
the conduct of public affairs by those they have voted into power and the relative
capacity or incapacity of others to take their places, namely: (1) simple expressions
of opinion and thought concerning the election; (2) expression of views on current
political problems and issues; and (3) mention the candidates whom one supports.

If these exceptions in the statute are not absurd, little comfort can be found
beneath their umbrage. As to the first exception, Mr. Justice Castro very aptly asks,
how simple is simple? I would like to add to the impeccable structures of my
esteemed colleague, if I may be permitted, the humble observation that the phrase
"concerning the election" is to me too equivocal, if it is not incomprehensible, to be
part of a penal statute such as this law is, with the heavy penalty of imprisonment
from one year to five years, disqualification to hold public office for not less than
one year nor more than nine years and deprivation of the right to vote for a like
period that it imposes. To express an opinion as regards elections in general is
something that is indubitably outside the area of any possible legislative
proscription and to do so in relation to a forthcoming specific election without any
discernible hue of an appeal for support for one protagonist or another is to say
nothing worthwile, that is, if it is possible to conceive of anyone referring to an
actual impending election with complete impartiality. On the other hand, to express
one's views regarding an actual election with mention of the qualifications or
disqualifications of the candidates and the political parties involved, cannot escape
the coverage of the prohibition in question.

As to the second exception, what views on current political problems and issues can
be expressed without necessarily carrying with them undercurrents of conformity or
non-conformity with the present state of things and, directly or indirectly, with the
ways of the incumbents in office? And as to the last exception, who can be these
candidates whose names would possibly be mentioned by any sympathizer, when
candidates are not allowed by this law to be nominated earlier than practically the
same period as the prohibitions against campaigns? .

I can well understand the predicament of Congress. It has attempted to define the
indefinable. Any intent to circumscribe the areas of basic liberties cannot end but in
absurdity. To insist on drawing artificial boundaries for their enjoyment must
 Page 115 of 192

necessarily result in confusion and consequent protracted controversy and debate

which can only give occasion for the inordinate exercise of power for power's sake.
A definition that comprehends substantially what should not be included is no
definition at all. The right of our people to speak and write freely at all times about
our government and those who govern us, only because we have elected them,
cannot be subjected to any degree of limitation without virtual loss of the right
itself. The moment it become impossible for the inhabitants of this country to
express approval or disapproval of the acts of the government and its officials
without imperilling their personal liberty, their right to hold office and to vote, and
such appears to be the natural consequence of the injunctions of this law, we
cannot be far away from the day when our Constitution will be hardly worth the
paper on which it is written.

I find it difficult to dissociate the prohibition in this law from the obvious advantages
they give to those presently holding office by election and to the existing political
parties.

Under the definition of the terms "candidate" and "election campaign or "partisan
political activity" contained in the section we are assaying it is clear that what the
statute contemplates are candidates for public offices. Accordingly, candidates for
nomination by their respective political parties do not appear to be comprehended
within the prohibition; so, as long as a person campaigns, even publicly, only for
nomination by his party, he is free to expose himself in any way and to
correspondingly criticize and denounce all his rivals. The fact that the law permits in
Section 50-A the holding of political conventions and the nominations of official
candidates one month before the start of the period of the prohibitions in Section
50-B, lends strength to this conclusion. 3 .

Such being the case, the undue advantage of the aspirants for nomination within
the existing political parties over independent candidates becomes evident. The
legal period fixed by the law will start in July, and yet, we have long been witnesses
already to all sorts of campaigns, complete to the last detail - what with the
newspaper and radio and television campaign matters being published and
broadcast as widely as possible, the campaigners armed or endowed with either
experience, money or pulchritude or what may pass for it, welcoming wave after
wave of party delegates arriving at the airports and the piers, the billeting of these
delegates in luxurious and costly hotels, at the cost of the candidates and with
pocket money to boot, the sumptuous banquets and parties, etc., etc. And to top it
all, a well publicized marathon "consensus" which has reportedly cost the
candidates millions of pesos! In other words, in the actual operation of this law, it is
only the independent candidate, the candidate who does not belong to the existing
political parties and who is prohibited to organize a new one, who must keep his
ambitions and aspirations all to himself and say nary a word, lest he jeopardize his
liberty and his rights to hold office and to vote, while those who belong to the said
parties merrily go about freely gaining as much exposure as possible before the
public. I need not refer to the tremendous advantages that accrue to the party in
power and to all incumbents, irrespective of political party color, from the operation
of this law. They should be obvious to any observer of current events.
 Page 116 of 192

Under these circumstances, can it be successfully maintained that such disparity of

opportunities for those who legitimately want to offer their services to the people by
getting elected to public office, resulting from a congressional act approved by
those who would benefit from it, is constitutionally flawless? When it is considered
that this law impinges on the freedoms of speech, press, assembly and redress of
grievances and that its only justification is that it is intended to remedy existing evil
practices and undesirable conditions and occurrences related to the frequency of
elections and the extended campaigns in connection therewith, and it is further
considered that, as demonstrated above, this law, in its actual operation impairs
and defeats its avowed purposes because, in effect, it deprives the independent
candidates or those who do not belong to the established political parties of equal
opportunity to expose themselves to the public and make their personal
qualifications, principles and programs of public service known to the electorate, to
the decided advantage of the incumbents or, at least, those who are members of
the existing political parties, it can be easily seen that the curtailment of freedom
involved in this measure cannot be permitted in the name of police power. I am
certain none can agree that resort to police power may be sanctioned when under
the guise of regulating allegedly existing evils, a law is passed that will result in
graver evil than that purported to be avoided. As far as I can understand the
commitment of our people to the principle of democracy and republicanism, we
would rather have the bloodshed, corruption and other alleged irregularities that
come with protracted electoral campaigns and partisan political activity, than suffer
the continued mockery of their right to vote by limiting, as this legislation does,
their right of choice only to those whom the existing political parties might care to
present as official candidates before them. If this would be all that the right of
suffrage would amount to, the death of Hitler and Mussolini might just as well be
considered as the most lamentable tragedies in the history of freemen and we
should welcome with open arms the importation into this country of the kind of
elections held in Russia and Red China.

A few considerations more should make those who believe in the efficacy and
constitutionality of this law take a second hard look at it. Then, they will realize how
mistaken they must be. I have said earlier that this act defeats its own avowed
purposes. Well, all that have to be considered for anyone to see my point is that in
the matter of reducing the cost of elections by limiting the period of campaigns,
current events have clearly proven that instead of lessening their expenditures,
candidates have spent more than they would have done without such limitation.
Because of the shortness of the period provided for the calling of conventions for
the nomination of official candidates by political parties and the more abbreviated
period that the candidate who would be ultimately nominated and the parties
themselves will have to campaign to win in the election, these parties have resorted
to other means of having, at least, even a semi-official candidate, without calling
him so. And this, as everybody knows means money, money and money.

The truth known to all who have political experience is that no candidate for a
position voted at large nationally can entertain any hopes of winning after a
campaign of only four months. It took at least a year for Presidents Magsaysay,
Macapagal and Marcos to win the presidency. None of the senators we have and
have had can boast of having campaigned only for four months. In view of the
abbreviated period of campaign fixed in this law, necessarily the candidates have to
 Page 117 of 192

redouble their efforts, try to cover more area in less time, see more people every
moment, distribute more propaganda, etc., etc., and all these mean money, more
money and more money. In this set up, so neatly produced by this law, it is
regretably evident that the poor candidates have no chance. How can a poor
candidate cover the more than 7,000 islands of our archipelago in four months? If it
was impossible to do so when there was no limitation of the period for campaigns,
what chance can such a poor candidate have now? Thus, it can be seen that this
law has not only made candidates spend more than they used to do before, it has
effectively reduced the chances and practically killed the hopes of poor candidates.
Under this law, it may truthfully be said that the right to be elected to a public office
is denied by reason of poverty.

My brethren view the problem before Us as one calling for the reconciliation of two
values in our chosen way of life - individual freedom, on the one hand, and public
welfare, on the other. I do not see it that way. To my mind, if the freedoms of
speech, press, peaceful assembly and redress of grievances in regard to the right to
vote can be impinged, if not stifled, by standards and limitations fixed by those who
are temporarily in power, I would regard those freedoms as no freedoms at all, but
more concessions of the establishment which can be reduced or enlarged as its
convenience may dictate. Of what use can such kind of freedom be? .

Taking all circumstances into account, it is entirely beyond my comprehension, how

anyone could have conceived the idea of limiting the period of electoral campaigns
in this country, when what we need precisely is more intelligent voting by the
greater portion of our people. I do not believe our mass media have reached the
degree of efficiency in the dissemination of information needed to enable the voters
to make their choices conscientiously and with adequate knowledge of the bases of
their decisions. I am not convinced that at this stage of our national life we are
already prepared to enjoy the luxury of abbreviated electoral campaigns, unless we
are inclined to forever have with us the areas of political bossism, apparent
statistical improbabilities and politico-economic blocs and even politico-religious
control which we have; in varying degrees these days and which will naturally
continue as long as our people are not better informed about the individual worth of
the candidates for or against whom they vote. I dare say that there is enough
reason to hold that if mistakes have been committed by our people in the selection
of their elective officials, it is because the information needed to serve as basis for
intelligent voting have not fully reached all segments of the population. Inadequacy
of reliable information among the voters, regarding the qualification of the
candidates and the relevant circumstances of the election they are taking part in
can be the greatest bane of popular suffrage.

Modesty aside, it is quite well known that it has been my lot to have handled, alone
or with others, some of the most important political cases in the country since the
end of the second world war. To be able to do so, I had to study our election laws
assiduously perhaps as any other Filipino has. From what I have thus learned, I can
safely say that the present laws are reasonably adequate to prevent lavish and
excessive expenditures for electoral purposes. The real cause for regret is the lack
of proper implementation of these laws. I dare say that even the courts, not
excluding this Supreme Court, and specially the Electoral Tribunals of the Senate
and the House of Representatives have been rather liberal in interpreting them, so
 Page 118 of 192

much so, that the unscrupulous have succeeded in practically openly violating them
with a cynical sense of impunity. The recent case of the ouster of Senators
Manglapus, Kalaw and Antonino was a singular one, wherein the spirit of the law
triumphed, even as it brought to the fore the necessity of making more realistic the
ceilings of allowable expenditures at the time when the cost of everything has
multiplied several times compared to that when the existing limitations were
established. Indeed, these unrealistic limitations, as to the amounts of expenditures
candidates may make, has somehow compelled the corresponding authorities to
overlook or even condone violations of these laws, and somehow also, this attitude
has given courage to practically everybody to pay little heed to the statutory
limitations, thus giving cause to the excessive overspending the authors of the law
now in question are seeking to stop or, at least, minimize. I say again, Congress
does not have to sacrifice or even just risk the loss or diminution only of any of our
sacred liberties to accomplish such a laudable objective. All that has to be done, in
my considered opinion, is to have more sincerity, mental honesty and firm
determination in the implementation of the limitations fixed in the Election Law,
after they have been made more realistic, and real devotion and integrity in the
official's charged with said implementation. If few may agree with me, I still
entertain the trustful feeling that it is not entirely hoping against hope to expect our
national leaders to regain their moral bearings and, in a bold effort to sweep away
the darkening clouds of despair that envelope a great many of our countrymen,
with well recognized intellectuals and non-politicians among them, to take active
measures to exert their moral leadership, to the end that our nation may
regenerate by revising our people's sense of political values and thus, as much as
possible, put exactly where they belong the vote-buyers the political terrorist, the
opportunists and the unprincipled who have sprung in this era of moral decadence
that seem to have come naturally in the wake of the havoc and devastation
resulting from the extension of the area of the last world war to our shores. If even
this hope cannot linger in our hearts, I dread to imagine how the Filipinos who will
come after us will enjoy their lives, when in the exercise of their right of suffrage
they would be able to use their freedoms of speech, press, peaceful assembly and
redress of grievances only in measured doses to be administered to them by those
in power in the legislature.

Frankly, I am not aware of any similar legislation in other democracies of the world.
The defenders of the law in question have not cited any. If perhaps the cases of
some countries I hear may be mentioned, I loathe to follow their example because I
hold it is illogical for us to legislate for our people, who have been reared in the
principles of democracy, in the light of what is being done by people who from time
immemorial have been disciplined under more or less dictatorial and totalitarian
governments.

Before I close, I like to add, in the interest of truth, that even stripped of the
ornaments of foreign wisdom expressed in embellished language that adorn the
opinions of our learned colleagues, Justice Sanchez, Castro and Fernando, their own
views so exquisitely articulated by them in their respective singular styles which
have been the object of admiration and respect by all, are in themselves not only
gems of forensic literatures but are also indubitable evidence of judicial sagacity
and learning. I am making it a point to separate their own personal views from their
quotations of alien authorities, because as a matter of national pride and dignity, I
 Page 119 of 192

would like it known that when it comes to constitutional matters particularly, civil
liberties and the other individual freedoms, the members of this Tribunal are not
without their own native geniuses and individual modes of expression that can
stand on their own worth without any reinforcement from imported wisdom and
language.

May I say in closing that, if my above analysis and perspectives, if these views and
conclusions of mine regarding the constitutional questions herein involved are not
exactly factual and valid, I would still reiterate them, if only to serve as a feeble
voice of alarm that somehow our basic liberties may be in jeopardy and it is best
that we revolve early to man the outposts and steady our guard, least we awaken
one dawn with nothing left to us but repentance, for having failed to act when we
could, amidst the ashes of the freedoms we did not know how to defend and
protect. That eternal, incessant and unyielding vigilance is the price of liberty is still
and will ever be true at all times and in all lands.

G.R. No. 79269             June 5, 1991

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. PROCORO J. DONATO, in his official capacity as Presiding Judge,
Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias
Commander Bilog, respondents.

The Solicitor General for petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for
Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

DAVIDE, JR., J.:

The People of the Philippines, through the Chief State Prosecutor of the Department
of Justice, the City Fiscal of Manila and the Judge Advocate General, filed the instant
petition for certiorari and prohibition, with a prayer for restraining order/preliminary
injunction, to set aside the order of respondent Judge dated July 7, 1987 granting
bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-
48926 for Rebellion,1 and the subsequent Order dated July 30, 1987 granting the
motion for reconsideration of 16 July 1987 by increasing the bail bond from
P30,000.00 to P50,000.00 but denying petitioner's supplemental motion for
reconsideration of July 17, 1987 which asked the court to allow petitioner to present
evidence in support of its prayer for a reconsideration of the order of 7 July 1987.

The pivotal issues presented before Us are whether the right to bail may, under
certain circumstances, be denied to a person who is charged with an otherwise
bailable offense, and whether such right may be waived.

The following are the antecedents of this petition:

 Page 120 of 192

In the original Information2 filed on 2 October 1986 in Criminal Case No. 86-48926 of

the Regional Trial Court of Manila, later amended in an Amended Information 3 which
was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander
Bilog", and his co-accused were charged for the crime of rebellion under Article 134,
in relation to Article 135, of the Revised Penal Code allegedly committed as follows:

That in or about 1968 and for some time before said year and continuously
thereafter until the present time, in the City of Manila and elsewhere in the
Philippines, the Communist Party of the Philippines, its military arm, the New
People's Army, its mass infiltration network, the National Democratic Front
with its other subordinate organizations and fronts, have, under the direction
and control of said organizations' leaders, among whom are the aforenamed
accused, and with the aid, participation or support of members and followers
whose whereabouts and identities are still unknown, risen publicly and taken
arms throughout the country against the Government of the Republic of the
Philippines for the purpose of overthrowing the present Government, the seat
of which is in the City of Manila, or of removing from the allegiance to that
government and its laws, the country's territory or part of it;

That from 1970 to the present, the above-named accused in their capacities
as leaders of the aforenamed organizations, in conspiracy with, and in
support of the cause of, the organizations aforementioned, engaged
themselves in war against the forces of the government, destroying property
or committing serious violence, and other acts in the pursuit of their unlawful
purpose, such as . . .

(then follows the enumeration of specific acts committed before and after
February 1986).

At the time the Information was filed the private respondent and his co-accused
were in military custody following their arrest on 29 September 1986 at the
Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military
detention and a cash reward of P250,000.00 was offered for his
capture.4

A day after the filing of the original information, or on 3 October 1986, a petition
for habeas corpus for private respondent and his co-accused was filed with this
Court5 which, as shall hereafter be discussed in detail, was dismissed in Our
resolution of 16 October 1986 on the basis of the agreement of the parties under
which herein private respondent "will remain in legal custody and will face trial
before the court having custody over his person" and the warrants for the arrest of
his co-accused are deemed recalled and they shall be immediately released but
shall submit themselves to the court having jurisdiction over their person.

On November 7, 1986 , private respondent filed with the court below a Motion to
Quash the Information alleging that: (a) the facts alleged do not constitute an
offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has
no jurisdiction over the persons of the defendants; and (d) the criminal action or
liability has been extinguished,6 to which petitioner filed an Opposition7 citing,
among other grounds, the fact that in the Joint Manifestation and Motion dated
 Page 121 of 192

October 14, 1986, in G.R. No. 76009, private respondent categorically conceded
that:

x x x           x x x          x x x

Par. 2 (B) — Petitioner Rodolfo Salas will remain in legal custody and face
trial before the court having custody over his person.

In his Order of March 6, 1987,8 respondent Judge denied the motion to quash.

Instead of asking for a reconsideration of said Order, private respondent filed on 9

May 1987 a petition for bail,9 which herein petitioner opposed in an Opposition filed
on 27 May 198710 on the ground that since rebellion became a capital offense under
the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the
Revised Penal Code, by imposing the penalty of reclusion perpetua to death on
those who promote, maintain, or head a rebellion the accused is no longer entitled
to bail as evidence of his guilt is strong.

On 5 June 1987 the President issued Executive Order No. 187 repealing, among
others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article
135 of the Revised Penal Code as it existed before the amendatory decrees. Thus,
the original penalty for rebellion,  prision mayor and a fine not to exceed
P20,000.00, was restored.

Executive Order No. 187 was published in the Official Gazette in its June 15, 1987
issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987.

In his Order of 7 July 198711 respondent Judge, taking into consideration Executive

Order No. 187, granted private respondent's petition for bail, fixed the bail bond at
P30,000.00 and imposed upon private respondent the additional condition that he
shall report to the court once every two (2) months within the first ten (10) days of
every period thereof. In granting the petition respondent Judge stated:

. . . There is no more debate that with the effectivity of Executive Order No.
187, the offense of rebellion, for which accused Rodolfo Salas is herein
charged, is now punishable with the penalty of prision mayor and a fine not
exceeding P20,000.00, which makes it now bailable pursuant to Section 13,
Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal
Procedure. Unlike the old rule, bail is now a matter of right in non-capital
offenses before final judgment. This is very evident upon a reading of Section
3, Rule 114, aforementioned, in relation to Section 21, same rule. In view,
therefore, of the present circumstances in this case, said accused-applicant is
now entitled to bail as a matter of right inasmuch as the crime of rebellion
ceased to be a capital offense.

As to the contention of herein petitioner that it would be dangerous to grant bail to

private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate
and overriding goal is to wipe out all vestiges of our democracy and to replace it
with their ideology, and that his release would allow his return to his organization to
 Page 122 of 192

direct its armed struggle to topple the government before whose courts he invokes
his constitutional right to bail, respondent Judge replied:

True, there now appears a clash between the accused's constitutional right to
bail in a non-capital offense, which right is guaranteed in the Bill of Rights
and, to quote again the prosecution, "the existence of the government that
bestows the right, the paramount interest of the state." Suffice to state that
the Bill of Rights, one of which is the right to bail, is a "declaration of the
rights of the individual, civil, political and social and economic, guaranteed by
the Constitution against impairment or intrusion by any form of governmental
action. Emphasis is placed on the dignity of man and the worth of individual.
There is recognition of certain inherent and inalienable rights of the
individual, which the government is prohibited from violating" (Quisumbing-
Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in
case of such conflict as now pictured by the prosecution, the same should be
resolved in favor of the individual who, in the eyes of the law, is alone in the
assertion of his rights under the Bill of Rights as against the State. Anyway,
the government is that powerful and strong, having the resources, manpower
and the wherewithals to fight those "who oppose, threathen (sic) and destroy
a just and orderly society and its existing civil and political institutions." The
prosecution's fear may or may not be founded that the accused may later on
jump bail and rejoin his comrades in the field to sow further disorders and
anarchy against the duly constituted authorities. But, then, such a fear can
not be a reason to deny him bail. For the law is very explicit that when it
comes to bailable offenses an accused is entitled as a matter of light to
bail. Dura est lex sed lex.

In a motion to reconsider12 the above order filed on 16 July 1987, petitioner asked

the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that
per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the,
provisional release of an accused should be in an amount computed at P10,000.00
per year of imprisonment based on the medium penalty imposable for the offense
and explaining that it is recommending P100,000.00 because the private
respondent "had in the past escaped from the custody of the military authorities
and the offense for which he is charged is not an ordinary crime, like murder,
homicide or robbery, where after the commission, the perpetrator has achieved his
end" and that "the rebellious acts are not consummated until the well-organized
plan to overthrow the government through armed struggle and replace it with an
alien system based on a foreign ideology is attained."

On 17 July 1987, petitioner filed a supplemental motion for

reconsideration13 indirectly asking the court to deny bail to the private respondent
and to allow it to present evidence in support thereof considering the "inevitable
probability that the accused will not comply with this main condition of his bail –– to
appear in court for trial," a conclusion it claims to be buttressed "by the following
facts which are widely known by the People of the Philippines and which this
Honorable Court may have judicial notice of:

1. The accused has evaded the authorities for thirteen years and was an
escapee from detention when arrested;
 Page 123 of 192

2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his
arrest and presented a Driver's License to substantiate his false identity;

4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a

false address;

5. He and his companions were on board a private vehicle with a declared

owner whose identity and address were also found to be false;

6. Pursuant to Ministry Order No. 1-A dated 11 January 1982 , a reward of

P250,000.00 was offered and paid for his arrest,

which "clearly indicate that the accused does not entertain the slightest intention to
appear in court for trial, if released." Petitioner further argues that the accused, who
is the Chairman of the Communist Party of the Philippines and head of its military
arm, the NPA, together with his followers, are now engaged in an open warfare and
rebellion against this government and threatens the existence of this very Court
from which he now seeks provisional release," and that while he is entitled to bail as
a matter of right in view of Executive Order No. 187 which restored the original
penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the
interest of the State conflicts with that of an individual, that of the former prevails
for "the right of the State of self-preservation is paramount to any of the rights of an
individual enshrined in the Bill of Rights of the Constitution." Petitioner further
invokes precedents in the United States of America holding "that there is no
absolute constitutional barrier to detention of potentially dangerous resident aliens
pending deportation proceedings,14 and that an arrestee may be incarcerated until
trial as he presents a risk of flight;15 and sustaining a detention prior to trial of
arrestee charged with serious felonies who are found after an adversary hearing to
pose threat to the safety of individuals and to the community which no condition of
release can dispel.16

On 30 July 1987 respondent Judge handed down the Order 17 adverted to in the
introductory portion of this decision the dispositive portion of which reads:

WHEREFORE, in the light of the foregoing considerations, the Court finds the
"supplemental" motion for reconsideration to be without merit and hereby
denies it but finds the first motion for reconsideration to be meritorious only
insofar as the amount of bail is concerned and hereby reconsiders its Order of
July 7, 1987 only to increase the amount of bail from P30,000.00 to
P50,000.00, subject to the approval of this Court, and with the additional
condition that accused Rodolfo Salas shall report to the court once every two
(2) months within the first ten (10) days of every period thereof (Almendras
vs. Villaluz, et al., L-31665, August 6, 1975, 66 SCRA 58).

In denying the supplemental motion for reconsideration the respondent Judge took
into account the "sudden turn-about" on the part of the petitioner in that a day
earlier it filed a motion for reconsideration wherein it conceded the right of the
 Page 124 of 192

private respondent to bail but merely asked to increase the amount of bail;
observed that it is only a reiteration of arguments in its opposition to the petition for
bail of 25 May 1987; asserted that the American precedents are not applicable since
the cases involved deportation of aliens and, moreover, the U.S. Federal
Constitution does not contain a proviso on the right of an accused to bail in bailable
offenses, but only an injunction against excessive bail; and quoted the concurring
opinion of the late Justice Pedro Tuason in the cases of Nava, et al. vs. Gatmaitan, L-
4853, Hernandez vs. Montesa, L-4964 and Angeles vs. Abaya, L-5108, October 11,
1951, 90 Phil, 172.

Unable to agree with said Order, petitioner commenced this petition submitting
therein the following issues:

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH

GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN
TOTAL DISREGARD OF THE PREVAILING REALITIES, WHEN HE DENIED
PETITIONER'S SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER
TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS
OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS.

THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH

GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN
HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS.

in support of which petitioner argues that private respondent is estopped from

invoking his right to bail, having expressly waived it in G.R. No. 76009 when he
agreed to "remain in legal custody and face trial before the court having custody of
his person" in consideration of the recall of the warrant of arrest for his co-
petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-
capital offenses, is not absolute when there is  prima facie evidence that the
accused is a serious threat to the very existence of the State, in which case the
prosecution must be allowed to present evidence for the denial of bail.
Consequently, respondent Judge acted with grave abuse of discretion when he did
not allow petitioner to present all the evidence it may desire to support its prayer
for the denial of bail and when he declared that the State has forfeited its right to
do so since during all the time that the petition for bail was pending, it never
manifested, much less hinted, its intention to adduce such evidence. And that even
if release on bail may be allowed, respondent judge, in fixing the amount of bail at
P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy
record of private respondents' criminal background, the gravity of the pending
charge, and the likelihood of flight.18

In Our resolution of 11 August 198719 We required the respondents to comment on

the petition and issued a Temporary Restraining Order ordering respondent Judge to
cease and desist from implementing his order of 30 July 1987 granting bail to
private respondent in the amount of P50,000.00.

In his Comment filed on 27 August 1987,20 private respondent asks for the outright
dismissal of the petition and immediate lifting of the temporary restraining order on
the following grounds:
 Page 125 of 192

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE

ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS
PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE
FIRST TIME ON APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE

PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL.

III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE

(RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED
BY THE CONSTITUTION.

IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO

PRESENT EVIDENCE IS CORRECT. PETITIONER'S ALLEGED RIGHT TO PRESENT
EVIDENCE IS NON-EXISTENT AND/OR HAD BEEN WAIVED.

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE

VIOLATES NOT ONLY RESPONDENT SALAS' RIGHT TO BAIL BUT ALSO HIS
OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS.

We required the petitioner to reply to the comment of private respondent. 21 The

reply was filed on 18 September 1987.22

In Our resolution of 15 October 198723 We gave due course to the petition and
required the parties to file simultaneously their memoranda within twenty days
from notice.

In their respective manifestations and motions dated 5 November 24 and 23

November 198725 petitioner and private respondents asked to be excused from
filing their Memoranda and that the petition and reply be considered as the
Memorandum for petitioner and the Comment as the Memorandum for private
respondent, which We granted in Our resolution of 19 November 1987 26 and 1
December 1987,27 respectively.

In Our resolution of 14 September 1989 We required the Solicitor General to

express his stand on the issues raised in this petitions, 28 which he complied with by
filing his Manifestation on 30 May 199029 wherein he manifests that he supports the
petition and submits that the Order of respondent Judge of July 7, July 17 and July
30, 1987 should be annulled and set aside asserting that private respondent had
 Page 126 of 192

waived the light to bail in view of the agreement in G.R. No. 76009; that granting
bail to him is accepting wide-eyed his undertaking which he is sure to break; in
determining bail, the primary consideration is to insure the attendance of the
accused at the trial of the case against him which would be frustrated by the
"almost certainty that respondent Salas will lump bail of whatever amount"; and
application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on
Criminal Procedure on the amount of bail dictates denial of bail to private
respondent. The Solicitor General likewise maintains that the right of the petitioner
to hearing on the application of private respondent for bail cannot be denied by
respondent Judge.

And now on the issues presented in this case.

I.

Unquestionably, at the time the original and the amended Informations for rebellion
and the application for bail were filed before the court below the penalty imposable
for the offense for which the private respondent was charged was reclusion
perpetua to death. During the pendency of the application for bail Executive Order
No. 187 was issued by the President, by virtue of which the penalty for rebellion as
originally provided for in Article 135 of the Revised Penal Code was restored. The
restored law was the governing law at the time the respondent court resolved the
petition for bail.

We agree with the respondent court that bail cannot be denied to the private
respondent for he is charged with the crime of rebellion as defined in Article 134 of
the Revised Penal Code to which is attached the penalty of prision mayor and a fine
not exceeding P20,000.00.30 It is, therefore, a bailable offense under Section 13 of
Article III of the 1987 Constitution which provides thus:

Sec. 13. All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be released on recognizance
as may be prescribed by law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is suspended. Excessive bail
shall not be required.

Section 3, Rule 114 of the Rules of Court, as amended, also provides:

Bail, a matter of right:  exception. — All persons in custody shall, before final
conviction, be entitled to bail as a matter of right, except those charged with
a capital offense or an offense which, under the law at the time of its
commission and at the time of the application for bail, is punishable
by reclusion perpetua, when evidence of guilt is strong.

Therefore, before conviction bail is either a matter of right or of discretion. It is a

matter of right when the offense charged is punishable by any penalty lower
than  reclusion perpetua.31 To that extent the right is absolute.32
 Page 127 of 192

And so, in a similar case for rebellion, People vs. Hernandez, et al., 99 Phil. 515,
despite the fact that the accused was already convicted, although erroneously, by
the trial court for the complex crime of rebellion with multiple murders, arsons and
robberies, and sentenced to life imprisonment, We granted bail in the amount of
P30,000.00 during the pendency of his appeal from such conviction. To the vigorous
stand of the People that We must deny bail to the accused because the security of
the State so requires, and because the judgment of conviction appealed from
indicates that the evidence of guilt of Hernandez is strong, We held:

. . . Furthermore, individual freedom is too basic, too transcendental and vital

in a republican state, like ours, to be derived upon mere general principles
and abstract consideration of public safety. Indeed, the preservation of liberty
is such a major preoccupation of our political system that, not satisfied with
guaranteeing its enjoyment in the very first paragraph of section (1) of the
Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5),
(6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said
section (1) to the protection of several aspects of freedom.

The 1987 Constitution strengthens further the right to bail by explicitly providing
that it shall not be impaired even when the privilege of the writ of habeas corpus is
suspended. This overturns the Court's ruling in Garcia-Padilla vs. Enrile, et
al.,  supra., to wit:

The suspension of the privilege of the writ of habeas corpus must, indeed,

carry with it the suspension of the right to bail, if the government's campaign
to suppress the rebellion is to be enhanced and rendered effective. If the
right to bail may be demanded during the continuance of the rebellion, and
those arrested, captured and detained in the course thereof will be released,
they would, without the least doubt, rejoin their comrades in the field thereby
jeopardizing the success of government efforts to bring to an end the
invasion, rebellion or insurrection.

Upon the other hand, if the offense charged is punishable by reclusion perpetua bail
becomes a matter of discretion. It shall be denied if the evidence of guilt is strong.
The court's discretion is limited to determining whether or not evidence of guilt is
strong.33 But once it is determined that the evidence of guilt is not strong, bail also
becomes a matter of right. In Teehankee vs. Director of Prisons, supra., We held:

The provision on bail in our Constitution is patterned after similar provisions

contained in the Constitution of the United States and that of many states of
the Union. And it is said that:

The Constitution of the United States and the constitution of the many
states provide that all persons shall be bailable by sufficient sureties,
except for capital offenses, where the proof is evident or the
presumption of guilt is great, and, under such provisions, bail is a
matter of right which no court or judge can properly refuse, in all cases
not embraced in the exceptions. Under such provisions  bail is a matter
of right even in cases of capital offenses, unless the proof of guilt is
evident or the presumption thereof is great! 34
 Page 128 of 192

Accordingly, the prosecution does not have the right to present evidence for
the denial of bail in the instances where bail is a matter of right. However, in
the cases where the grant of bail is discretionary, due process requires that
the prosecution must be given an opportunity to present, within a reasonable
time, all the evidence that it may desire to introduce before the court should
resolve the motion for bail.35

We agree, however, with petitioner that it was error for the respondent court
to fix the bond at P30,000.00, then later at P50,000.00 without hearing the
prosecution. The guidelines for the fixing of the amount of bail provided for in
Section 10 of Rule 114 of the Rules of Court are not matters left entirely to
the discretion of the court. As We stated in People vs. Dacudao, et al., 170
SCRA, 489, 495:

Certain guidelines in the fixing of a bailbond call for the presentation of

evidence and reasonable opportunity for the prosecution to refute it.
Among them are the nature and circumstances of the crime, character
and reputation of the accused, the weight of the evidence against him,
the probability of the accused appearing at the trial, whether or not the
accused is a fugitive from justice, and whether or not the accused is
under bond in other case. . . .

In the instant case petitioner has sufficiently made out allegations which
necessitate a grant of an opportunity to be heard for the purpose of
determining the amount of bail, but not for the denial thereof because
aforesaid Section 10 of Rule 114 does not authorize any court to deny bail.

II.

It must, however, be stressed that under the present state of the law,
rebellion is no longer punishable by  prision mayor and fine not exceeding
P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which
took effect after publication in at least two newspapers of general circulation,
amended, among others, Article 135 of the Revised Penal Code by increasing
the penalty for rebellion such that, as amended, it now reads:

Article 135. Penalty for rebellion, insurrection or coup d'etat. ––– Any

person who promotes, maintains, or heads a rebellion or insurrection
shall suffer the penalty of reclusion perpetua.

Any person merely participating or executing the commands of others

in a rebellion or insurrection shall suffer the penalty of reclusion
perpetua.

x x x           x x x          x x x

This amendatory law cannot apply to the private respondent for acts
allegedly committed prior to its effectivity. It is not favorable to him. "Penal
laws shall have a retroactive effect insofar as they favor the person guilty of a
 Page 129 of 192

felony, who is not a habitual criminal, as this term is defined in Rule 5 of

Article 62 of this Code, although at the time of the publication of such laws a
final sentence has been pronounced and the convict is serving the same. 36

III.

We agree with Petitioner that private respondent has, however, waived his
right to bail in G.R. No. 76009.

On 3 October 1986, or the day following the filing of the original information
in Criminal Case No. 86-48926 with the trial court, a petition for habeas
corpus for herein private respondent, and his co-accused Josefina Cruz and
Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion
Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig.
Gen. Renato de Villa, Brig. Gen. Ramon Montaño, and Col. Saldajeno praying,
among others, that the petition be given due course and a writ of habeas
corpus be issued requiring respondents to produce the bodies of herein
private respondent and his co-accused before the Court and explain by what
authority they arrested and detained them. The following proceedings took
place thereafter in said case:

1. In a resolution of 7 October 1986 We issued a writ of habeas corpus,

required respondents to make a return of the writ on or before the close of
office hours on 13 October and set the petition for hearing on 14 October
1986 at 10:00 o'clock in the morning.

2. On 13 October 1986 respondents, through the Office of the Solicitor

General, filed a Return To The Writ of Habeas Corpus alleging therein that
private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo
Concepcion alias "Eugene Zamora" were apprehended by the military on
September 29, 1986 in the evening at the Philippine General Hospital
Compound at Taft Ave., Mangga being leaders or members of the Communist
Party of the Philippines, New People's Army and National Democratic Front,
organizations dedicated to the overthrow of the Government through violent
means, and having actually committed acts of rebellion under Article 134 of
the Revised Penal Code, as amended. After their arrest they were forthwith
charged with rebellion before Branch XII of the Regional Trial Court, National
Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for
their arrest were issued and respondents continue to detain them because of
the warrants of arrest and the pendency of the criminal cases against them.
Respondents further allege that, contrary to the allegation in the petition,
herein private respondent was not a member of the NDF panel involved in
peace negotiations with the Government; neither is he and his companions
Cruz and Concepcion covered by any, safe conduct pass issued by competent
authorities.

3. At the hearing on 14 October 1986 the parties informed the Court of

certain agreements reached between them. We issued a resolution reading
as follows:
 Page 130 of 192

When this case was called for hearing this morning, Attorneys Romeo
Capulong, Arno V. Sanidad, Efren H. Mercado, Edgardo Pamin-tuan,
Casiano Sabile, Ramon Cura, and William Chua appeared for the
petitioners with Atty. Capulong arguing for the petitioners. Solicitor
General Sedfrey Ordonez, Assistant Solicitor General Romeo C. de la
Cruz and Trial Attorney Josue E. Villanueva appeared for the
respondents, with Solicitor General Ordoñez arguing for the
respondents.

Petitioners' counsel, Atty. Romeo Capulong, manifested in open Court

that in conformity with the agreement reached with the government,
the petition for habeas corpus will be withdrawn with detainee Rodolfo
Salas to remain under custody, whereas his co-detainees Josefina Cruz
and Jose Milo Concepcion will be released immediately.

Solicitor General Sedfrey Ordoñez, also in open Court, confirmed the

foregoing statement made by petitioners' counsel regarding the
withdrawal of the petition for  habeas corpus, declaring that no
objection will be interposed to the immediate release of detainees
Josefina Cruz and Jose Milo Concepcion, and that no bond will be
required of them, but they will continue to face trial with their co-
accused, Rodolfo Salas; further, that they will not be rearrested on the
basis of the warrants issued by the trial court provided that they
manifest in open Court their willingness to subject themselves to the
jurisdiction of the Court and to appear in court when their presence is
required.

In addition, he stated that he is willing to confer with petitioners'

counsel today relative to the compromise agreement that they have
previously undertaken to submit.

Upon manifestation of petitioners' counsel, Atty. Romeo Capulong, that

on his oath as member of the Bar, the detainees Josefina Cruz and Jose
Milo Concepcion have agreed to subject themselves to the jurisdiction
of the trial court, the Court ordered their immediate release.

Thereafter, the Court approved the foregoing manifestations and

statements and required both parties to SUBMIT to the Court their
compromise agreement by 4:00 o'clock this afternoon. Teehankee, C.J.,
is on official leave.

4. At 3:49 o'clock in the afternoon of 14 October 1986 the parties submitted a

Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel
for petitioners, and Solicitor General Sedfrey Ordoñez, Assistant Solicitor
General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel
for respondents, which reads as follows:
 Page 131 of 192

COME NOW petitioners and the respondents, assisted by their

respective counsel, and to this Honorable Tribunal respectfully
manifest:

1. That in the discussion between Romeo Capulong, petitioners'

counsel, and Solicitor General Sedfrey A. Ordoñez on October 13, 1986
exploratory talks were conducted to find out how the majesty of the
law may be preserved and human considerations may be called into
play.

2. That in the conference both counsel agreed to the following terms of

agreement:

a. The petition for habeas corpus will be withdrawn by

petitioners and Josefina Cruz and Jose Milo Concepcion will be
immediately released but shall appear at the trial of the criminal
case for rebellion (People v. Rodolfo Salas, et al., Criminal Case
No. 4886 [should be 86-48926], Regional Trial Court, National
Capital Judicial Region) filed against them under their personal
recognizance.

b. Petitioner Rodolfo Salas will remain in legal custody and face

trial before the court having custody over his person.

c. The warrant of arrest for the persons of Josefina Cruz and Jose
Milo Concepcion is hereby deemed recalled in view of formal
manifestation before the Supreme Court that they will submit
themselves to the court having jurisdiction over their person.

3. That on October 14, the Solicitor General was able to obtain the
conformity of the Government to the foregoing terms which were
likewise accepted by petitioner (sic) and their counsel of record.

4. That the two counsel submitted their oral manifestation during the
hearing on October 14 and the present manifestation in compliance
with the resolution announced in court this morning.

WHEREFORE, it is prayed that the petition for habeas corpus be

dismissed.

5. On 16 October 1986 We issued the following resolution:

G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of
Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, et al. v. Hon.
Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig.
Gen. Ramon Montaño and Col. Virgilio Saldajeno] considering the Joint
Manifestation and Motion dated October 14, 1986 filed by Attorneys
Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo
Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey
 Page 132 of 192

A. Ordonez and Assistant Solicitor General Romeo C. de la Cruz and

Trial Attorney Josue S. Villanueva as counsel for respondents which
states that they have entered into an agreement whereby: [a] the
petition for habeas corpus will be withdrawn by petitioners, and
Josefina Cruz and Jose Milo Concepcion will be immediately released
but shall appear at the trial of the criminal case for rebellion [People
vs. Rodolfo Salas, et al., Criminal Case No. 4886, Regional Trial Court,
National Capital Judicial Region, Branch XII, Manila], filed against them,
on their personal recognizance; [b] petitioner Rodolfo Salas will remain
in legal custody and face trial before the court having custody over his
person; and [c] the warrant of arrest for the person of Josefina Cruz
and Jose Milo Concepcion is hereby deemed recalled in view of the
formal manifestation before this Court that they will submit themselves
to the court having jurisdiction over their person and in view of the
said agreement, the petition for habeas corpus be dismissed, the Court
Resolved to DISMISS the petition for habeas corpus but subject to the
condition that petitioners' lead counsel, Atty. Capulong, upon his oath
as member of the Bar, shall abide by his commitment to ensure the
appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the
criminal case for rebellion filed against them. Teehankee, C.J., is on
official leave.

It is the stand of the petitioner that private respondent, "in agreeing to remain in
legal custody even during the pendency of the trial of his criminal case, [he] has
expressly waived his right to bail."37 Upon the other hand, private respondent
asserts that this claim is totally devoid of factual and legal basis, for in their petition
for habeas corpus they precisely questioned the legality of the arrest and the
continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which
was not resolved by this Court or by the compromise agreement of the parties but
left open for further determination in another proceeding. Moreover, the matter of
the right to bail was neither raised by either party nor resolved by this Court, and
the legal steps promptly taken by private respondent after the agreement was
reached, like the filing of the motion to quash on 7 November 1986 and the petition
for bail on 14 May 1987, were clear and positive assertions of his statutory and
constitutional rights to be granted not only provisional but final and permanent
liberty. Finally, private respondent maintains that the term "legal custody" as used
in the Joint Manifestation and Motion simply means that private respondent agreed
to continue to be in the custody of the law or in custodia legis and nothing else; it is
not to be interpreted as waiver.

Interestingly, private respondent admits that:

"Custody" has been held to mean nothing less than actual imprisonment. It is
also defined as the detainer of a person by virtue of a lawful authority, or the
"care and possession of a thing or person." (Bouviers Law Dictionary, Third
Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82
Pa. 306)

He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and
settled jurisprudence, the "constitutional right to bail is subject to the limitation that
 Page 133 of 192

the person applying for admission to bail should be in the custody of the law or
otherwise deprived of his liberty."38

When the parties in G.R. No. 76009 stipulated that:

b. Petitioner Rodolfo Salas will remain in legal custody and face trial before

the court having custody over his person.

they simply meant that Rodolfo Salas, herein respondent, will remain in actual
physical custody of the court, or in actual confinement or detention, as
distinguished from the stipulation concerning his co-petitioners, who were to
be released in view of the recall of the warrants of arrest against them; they
agreed, however, "to submit themselves to the court having jurisdiction over their
persons." Note should be made of the deliberate care of the parties in making a fine
distinction between legal custody and court having custody over the person in
respect to Rodolfo Salas and court having jurisdiction over the persons of his co-
accused. Such a fine distinction was precisely intended to emphasize the agreement
that Rodolfo Salas will not be released, but should remain in custody. Had the
parties intended otherwise, or had this been unclear to private respondent and his
counsel, they should have insisted on the use of a clearer language. It must be
remembered that at the time the parties orally manifested before this Court on 14
October 1986 the terms and conditions of their agreement and prepared and signed
the Joint Manifestation and Motion, a warrant of arrest had already been issued by
the trial court against private respondent and his co-accused. The stipulation that
only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be
recalled and that only they shall be released, further confirmed the agreement that
herein petitioner shall remain in custody of the law, or detention or confinement.

In defining bail as:

. . . the security given for the release of a person in custody of the law, . . .

Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or
interpretation for the term "in custody of the law" than that as above indicated. The
purpose of bail is to relieve an accused from imprisonment until his conviction and
yet secure his appearance at the trial.39 It presupposes that the person applying for
it should be in the custody of the law or otherwise deprived of liberty. 40

Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private

respondent had unequivocably waived his right to bail.

But, is such waiver valid?

Article 6 of the Civil Code expressly provides:

Art. 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs, or prejudicial to a third person
with a right recognized by law.
 Page 134 of 192

Waiver is defined as "a voluntary and intentional relinquishment or abandonment of

a known existing legal right, advantage, benefit, claim or privilege, which except for
such waiver the party would have enjoyed; the voluntary abandonment or
surrender, by a capable person, of a right known by him to exist, with the intent
that such right shall be surrendered and such person forever deprived of its benefit;
or such conduct as warrants an inference of the relinquishment of such right; or the
intentional doing of an act inconsistent with claiming it." 41

As to what rights and privileges may be waived, the authority is settled:

. . . the doctrine of waiver extends to rights and privileges of any character,

and, since the word "waiver" covers every conceivable right, it is the general
rule that a person may waive any matter which affects his property, and any
alienable right or privilege of which he is the owner or which belongs to him
or to which he is legally entitled, whether secured by contract, conferred with
statute, or guaranteed by constitution, provided such rights and privileges
rest in the individual, are intended for his sole benefit, do not infringe on the
rights of others, and further provided the waiver of the right or privilege is not
forbidden by law, and does not contravene public policy; and the principle is
recognized that everyone has a right to waive, and agree to waive, the
advantage of a law or rule made solely for the benefit and protection of the
individual in his private capacity, if it can be dispensed with and relinquished
without infringing on any public right, and without detriment to the
community at large. . . .

Although the general rule is that any right or privilege conferred by statute
or guaranteed by constitution may be waived, a waiver in derogation of a
statutory right is not favored, and a waiver will be inoperative and void if it
infringes on the rights of others, or would be against public policy or morals
and the public interest may be waived.

While it has been stated generally that all personal rights conferred by
statute and guaranteed by constitution may be waived, it has also been said
that constitutional provisions intended to protect property may be waived,
and even some of the constitutional rights created to secure personal liberty
are subjects of waiver.42

In Commonwealth vs. Petrillo,43 it was held:

Rights guaranteed to one accused of a crime fall naturally into two classes:
(a) those in which the state, as well as the accused, is interested; and (b)
those which are personal to the accused, which are in the nature of personal
privileges. Those of the first class cannot be waived; those of the second may
be.

It is "competent for a person to waive a right guaranteed by the Constitution, and to

consent to action which would be invalid if taken against his will." 44
 Page 135 of 192

This Court has recognized waivers of constitutional rights such as, for example, the
right against unreasonable searches and seizures; 45 the right to counsel and to
remain silent;46 and the right to be heard.47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by

its Bill of Rights.1âwphi1 Section 12(l) of Article III thereof on the right to remain
silent and to have a competent and independent counsel, preferably of his own
choice states:

. . . These rights cannot be waived except in writing and in the presence of

counsel.

This provision merely particularizes the form and manner of the waiver; it,
nevertheless, clearly suggests that the other rights may be waived in some other
form or manner provided such waiver will not offend Article 6 of the Civil Code.

We hereby rule that the right to bail is another of the constitutional rights which can
be waived. It is a right which is personal to the accused and whose waiver would not
be contrary to law, public order, public policy, morals, or good customs, or
prejudicial to a third person with a right recognized by law.

The respondent Judge then clearly acted with grave abuse of discretion in granting
bail to the private respondent.

WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in
Criminal Case No. 86-48926 entitled People of the Philippines vs. Rodolfo C.
Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo
Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET
ASIDE.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano,

Gancayco, Padilla, Bidin, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
 Page 136 of 192

G.R. No. L-68955 September 4, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RUBEN BURGOS y TITO, defendant-appellant.

GUTIERREZ, JR., J.:

This is an appeal from the decision of the Regional Trial Court of Davao del Sur, 11
th Judicial Region, Digos, Davao del Sur convicting defendant- appellant Ruben
Burgos y Tito of The crime of Illegal Possession of Firearms in Furtherance of
Subversion. The dispositive portion of the decision reads:

WHEREFORE, finding the guilt of accused Ruben Burgos sufficiently

established beyond reasonable doubt, of the offense charges ,
pursuant to Presidential Decree No. 9, in relation to General Order No.
6, dated September 22, 1972, and General Order No. 7, dated
September 23, 1972, in relation further to Presidential Decree No. 885,
and considering that the firearm subject of this case was not used in
the circumstances as embraced in paragraph I thereof, applying the
provision of indeterminate sentence law, accused Ruben Burgos is
hereby sentenced to suffer an imprisonment of twenty (20) years of
reclusion temporal maximum, as minimum penalty, to reclusion
perpetua, as maximum penalty, pursuant to sub-paragraph B, of
Presidential Decree No. 9, as aforementioned, with accessory
penalties, as provided for by law.

As a result of this judgment, the subject firearm involved in this case

(Homemade revolver, caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor of the government, to
be disposed of in accordance with law. Likewise, the subversive
documents, leaflets and/or propaganda seized are ordered disposed of
in accordance with law.

The information charged the defendant-appellant with the crime of illegal

possession of firearm in furtherance of subversion in an information which reads as
follows:

That in the afternoon of May 13, 1982 and thereabout at Tiguman,

Digos, Davao del Sur, Philippines, within the jurisdiction of this Court,
the above- named accused with intent to possess and without the
 Page 137 of 192

necessary license, permit or authority issued by the proper

government agencies, did then and there wilfully, unlawfully and
feloniously keep, possess, carry and have in his possession, control
and custody one (1) homemade revolver, caliber .38, make Smith and
Wesson, with Serial No. 8.69221, which firearm was issued to and used
by the accused at Tiguman, Digos, Davao del Sur, his area of
operations by one Alias Commander Pol for the New People's Army
(NPA), a subversive organization organized for the purpose of
overthrowing the Government of the Republic of the Philippines
through lawless and violent means, of which the accused had
knowledge, and which firearm was used by the accused in the
performance of his subversive tasks such as the recruitment of New
Members to the NPA and collection of contributions from the members.

CONTRARY TO LAW.

The evidence for the prosecution is summarized in the decision of the lower court as
follows:

xxx xxx xxx

. . . Through the testimony of Pat. Pepito Bioco, and Sgt. Romeo Taroy,
it appears that by virtue of an intelligent information obtained by the
Constabulary and INP units, stationed at Digos, Davao del Sur, on May
12, 1982, one Cesar Masamlok personally and voluntarily surre0ndered
to the authorities at about 9:00 o'clock A.M. at Digos, Davao del Sur
Constabulary Headquarters, stating that he was forcibly recruited by
accused Ruben Burgos as member of the NPA, threatening him with
the use of firearm against his life, if he refused.

Along with his recruitment, accused was asked to contribute one (1)
chopa of rice and one peso (P1.00) per month, as his contribution to
the NPA TSN, page 5, Hearing-October 14, 1982).

Immediately, upon receipt of said information, a joint team of PC-INP

units, composed of fifteen (15) members, headed by Captain
Melchesideck Bargio, (PC), on the following day, May 13, 1982, was
dispatched at Tiguman; Davao del Sur, to arrest accused Ruben
Burgos. The team left the headquarter at 1:30 P.M., and arrived at
Tiguman, at more or less 2:00 o'clock PM where through the help of
Pedro Burgos, brother of accused, the team was able to locate
accused, who was plowing his field. (TSN, pages 6-7, Hearing-October
14, 1982).

Right in the house of accused, the latter was caned by the team and
Pat. Bioco asked accused about his firearm, as reported by Cesar
Masamlok. At first accused denied possession of said firearm but later,
upon question profounded by Sgt. Alejandro Buncalan with the wife of
the accused, the latter pointed to a place below their house where a
 Page 138 of 192

gun was buried in the ground. (TSN, page 8, Hearing-October 14,

1982).

Pat. Bioco then verified the place pointed by accused's wife and dug
the grounds, after which he recovered the firearm, Caliber .38
revolver, marked as Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the

team, subversive documents which he allegedly kept in a stock pile of
qqqcogon at a distance of three (3) meters apart from his house. Then
Sgt. Taroy accordingly verified beneath said cogon grass and likewise
recovered documents consisting of notebook colored maroon with
spiral bound, Exhibit "B" for the prosecution; a pamphlet consisting of
eight (8) leaves, including the front and back covers entitled Ang
Bayan, Pahayagan ng Partido Komunista ng Pilipinas, Pinapatnubayan
ng Marxismo, Leninismo Kaisipang Mao qqqZedong dated December
31, 1980, marked as Exhibit "C", and another pamphlet Asdang
Pamantalaang Masa sa Habagatang Mindanao, March and April 1981
issue, consisting of ten (10) pages, marked as Exhibit "D" for the
prosecution.

Accused, when confronted with the firearm Exhibit "A", after its
recovery, readily admitted the same as issued to him by Nestor
Jimenez, otherwise known as a certain Alias Pedipol, allegedly team
leader of the sparrow unit of New People's Army, responsible in the
liquidation of target personalities, opposed to NPA Ideological
movement, an example was the killing of the late Mayor Llanos and
Barangay Captain of Tienda Aplaya Digos, Davao del Sur. (TSN, pages
1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former

NPA convert was presented, who declared that on March 7, 1972, in his
former residence at Tiguman Digos, Davao del Sur, accused Ruben
Burgos, accompanied by his companions Landrino Burgos, Oscar
Gomez and Antonio Burgos, went to his house at about 5:00 o'clock
P.M. and called him downstair. Thereupon, accused told Masamlok,
their purpose was to ask rice and one (1) peso from him, as his
contribution to their companions, the NPA of which he is now a
member. (TSN, pages 70, 71, 72, Hearing-January 4, 1983).

Accused and his companions told Masamlok, he has to join their group
otherwise, he and his family will be killed. He was also warned not to
reveal anything with the government authorities. Because of the threat
to his life and family, Cesar Masamlok joined the group. Accused then
told him, he should attend a seminar scheduled on April 19, 1982.
Along with this invitation, accused pulled gut from his waistline a .38
caliber revolver which Masamlok really saw, being only about two (2)
meters away from accused, which make him easily Identified said
firearm, as that marked as Exhibit "A" for the prosecution. (TSN, pages
72, 73, and 74, Hearing-January 4, 1983).
 Page 139 of 192

On April 19, 1982, as previously invited, Masamlok, accompanied by

his father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the
house of accused and attended the seminar, Those present in the
seminar were: accused Ruben Burgos, Antonio Burgos, Oscar Gomez,
Landrino Burgos, alias Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly
that he is an NPA together with his companions, to assure the unity of
the civilian. That he encouraged the group to overthrow the
government, emphasizing that those who attended the seminar were
already members of the NPA, and if they reveal to the authorities, they
will be killed.

Accused, while talking, showed to the audience pamphlets and

documents, then finally shouted, the NPA will be victorious. Masamlok
likewise Identified the pamphlets as those marked as Exh. exhibits "B",
"C", and "D" for the prosecution. (TSN, pages 75, 76 and 77, Hearing-
January 4, 1983)

Other speakers in said meeting were Pedipol, Jamper and Oscar

Gomez, who likewise expounded their own opinions about the NPA. It
was also announced in said seminar that a certain Tonio Burgos, will be
responsible for the collection of the contribution from the members.
(TSN, pages 78-79, Hearing- January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain

Bargio of the Provincial Headquarters of the Philippine Constabulary,
Digos, Davao del Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on

May 19, 1982, he administered the subscription of th extra-judicial
confession of accused Ruben Burgos, marked as Exhibit "E " for the
prosecution, consisting of five (5) pages.

Appearing voluntarily in said office, for the subscription of his

confession, Fiscal Lovitos, realizing that accused was not represented
by counsel, requested the services of Atty. Anyog, whose office is
adjacent to the Fiscal's Office, to assist accused in the subscription of
his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from

English to Visayan language, resulting to the deletion of question No.
19 of the document, by an inserted certification of Atty. Anyog and
signature of accused, indicating his having understood, the allegations
of his extra-judicial statement.

Fiscal Lovitos, before accused signed his statement, explained to him

his constitutional rights to remain silent, right to counsel and right to
answer any question propounded or not.
 Page 140 of 192

With the aid of Atty. Anyog, accused signed his confession in the
presence of Atty. Anyog and Fiscal Lovitos, without the presence of
military authorities, who escorted the accused, but were sent outside
the cubicle of Fiscal Lovitos while waiting for the accused. (TSN, pages
36-40, nearing November 15, 1982)

Finally, in order to prove illegal possession by accused of the subject

firearm, Sgt. Epifanio Comabig in-charge of firearms and explosives,
NCO Headquarter, Philippine Constabulary, Digos, Davao del Sur, was
presented and testified, that among the lists of firearm holders in
Davao del Sur, nothing was listed in the name of accused Ruben
Burgos, neither was his name included among the lists of persons who
applied for the licensing of the firearm under Presidential Decree No.
1745.

After the above-testimony the prosecution formally closed its case and
offered its exhibits, which were all admitted in evidence, despite
objection interposed by counsel for accused, which was accordingly
overruled.

On the other hand, the defendant-appellant's version of the case against him is
stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot

recognize, brought him to the PC Barracks at Digos, Davao del Sur, and
arrived there at about 3:00 o'clock, on the same date. At about 8:00
o'clock P.M., in the evening, he was investigated by soldiers, whom he
cannot Identify because they were wearing a civilian attire. (TSN, page
14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was

detained with respect to the subject firearm, which the investigator,
wished him to admit but accused denied its ownership. Because of his
refusal accused was mauled, hitting him on the left and right side of
his body which rendered him unconscious. Accused in an atmosphere
of tersed solemnity, crying and with emotional attachment, described
in detail how he was tortured and the ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted

with subject firearm, Exhibit "A", for him to admit and when he
repeatedly refused to accept as his own firearm, he was subjected to
further prolong (sic) torture and physical agony. Accused said, his eyes
were covered with wet black cloth with pungent effect on his eyes. He
was undressed, with only blindfold, pungent water poured in his body
and over his private parts, making his entire body, particularly his
penis and testicle, terribly irritating with pungent pain.

All along, he was investigated to obtain his admission, The process of

beating, mauling, pain and/or ordeal was repeatedly done in similar
 Page 141 of 192

cycle, from May 13 and 14, 1982. intercepted only whenever he fell
unconscious and again repeated after recovery of his senses,

Finally on May 15, 1982, after undergoing the same torture and
physical ordeal he was seriously warned, if he will still adamantly
refuse to accept ownership of the subject firearm, he will be salvaged,
and no longer able to bear any further the pain and agony, accused
admitted ownership of subject firearm.

After his admission, the mauling and torture stopped, but accused was
made to sign his affidavit marked as Exhibit "E" for the prosecution,
consisting of five (5) pages, including the certification of the
administering officer, (TSN, pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused,

by way of explanation and commentary in details, and going one by
one, the allegations and/or contents of his alleged extrajudicial
statement, attributed his answers to those questions involuntarily
made only because of fear, threat and intimidation of his person and
family, as a result of unbearable excruciating pain he was subjected by
an investigator, who, unfortunately he cannot Identify and was able to
obtain his admission of the subject firearm, by force and violence
exerted over his person.

To support denial of accused of being involved in any subversive

activities, and also to support his denial to the truth of his alleged
extra-judicial confession, particularly questions Nos. 35, 38, 41, 42, 43,
44, 45, 46 and 47, along with qqqs answers to those questions,
involving Honorata Arellano ahas Inday Arellano, said Honorata
Arellano appeared and declared categorically, that the above-
questions embraced in the numbers allegedly stated in the
extrajudicial confession of accused, involving her to such NPA
personalities, as Jamper, Pol, Anthony, etc., were not true because on
the date referred on April 28, 1982, none of the persons mentioned
came to her house for treatment, neither did she meet the accused nor
able to talk with him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that
she was personally charged with subversion in the Office of the
Provincial Commander, Philippine Constabulary, Digos, Davao del Sur,
but said charge was dismissed without reaching the Court. She likewise
stated that her son, Rogelio Arellano, was likewise charged for
subversion filed in the Municipal Trial Court of Digos, Davao del Sur,
but was likewise dismissed for lack of sufficient evidence to sustain his
conviction. (TSN, pages 121-122, in relation to her cross-examination,
Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay

Captain of Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was
presented, who declared, he was not personally aware of any
 Page 142 of 192

subversive activities of accused, being his neighbor and member of his

barrio. On the contrary, he can personally attest to his good character
and reputation, as a law abiding citizen of his barrio, being a carpenter
and farmer thereat. (TSl pages 128-129, Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of

arrests made by the authorities in his barrio involving subversive
activities but they were released and were not formally charged in
Court because they publicly took their oath of allegiance with the
government. (TSN, pages 133-134, in relation to page 136, Hearing-
May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife,

Urbana Burgos, was presented and who testified that the subject
firearm was left in their house by Cesar Masamlok and one Pedipol on
May 10, 1982. It was night time, when the two left the gun, alleging
that it was not in order, and that they will leave it behind, temporarily
for them to claim it later. They were the ones who buried it. She said,
her husband, the accused, was not in their house at that time and that
she did not inform him about said firearm neither did she report the
matter to the authorities, for fear of the life of her husband. (TSN, page
24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery

of the firearm, was wearing a mask, she can still Identify him. (TSN,
page 6, Hearing-November 22, 1983)

After the above-testimony, accused through counsel formally rested

his case in support of accused's through counsel manifestation for the
demurrer to evidence of the prosecution, or in the alternative for
violation merely of simple illegal possession of firearm, 'under the
Revised Administrative Code, as amended by Republic Act No. 4,
reflected in the manifestation of counsel for accused. (TSN, pages 113-
114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments of error, to

wit:

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF

ACCUSED-APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF

ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE
LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN
RELATION TO GENERAL ORDERS NOS. 6 AND 7
 Page 143 of 192

Was the arrest of Ruben Burgos lawful? Were the search of his house and the
subsequent confiscation of a firearm and documents allegedly found therein
conducted in a lawful and valid manner? Does the evidence sustaining the crime
charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the house
of Ruben Burgos for the purpose of arresting him upon information given by Cesar
Masamlok that the accused allegedly recruited him to join the New People's Army
(NPA), they did not have any warrant of arrest or search warrant with them (TSN, p.
25, October 14, 1982; and TSN, p. 61, November 15, 1982).

Article IV, Section 3 of the Constitution provides:

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 not be violated, and no search
warrant or warrant of arrest shall issue except upon probable cause to
be determined by the judge, or such other responsible officer as may
be authorized by law, 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 constitutional provision is a safeguard against wanton and unreasonable

invasion of the privacy and liberty of a citizen as to his person, papers and effects.
This Court explained in Villanueva vs. Querubin (48 SCRA 345) why this right is so
important:

It is deference to one's personality that lies at the core of this right, but
it could be also looked upon as a recognition of a constitutionally
protected area, primarily one's home, but not necessarily thereto
confined. (Cf. Hoffa v. United States, 385 US 293 [19661) What is
sought to be guarded is a man's prerogative to choose who is allowed
entry to his residence. In that haven of refuge, his individuality can
assert itself not only in the choice of who shall be welcome but likewise
in the kind of objects he wants around him. There the state, however
powerful, does not as such have access except under the
circumstances above noted, for in the traditional formulation, his
house, however humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is called upon to refrain
from any invasion of his dwelling and to respect the privacies of his
life, (Cf. Schmerber v. California, 384 US 757 [1966], Brennan, J. and
Boyd v. United States, 116 US 616, 630 [1886]). In the same vein,
Landynski in his authoritative work (Search and Seizure and the
Supreme Court [1966], could fitly characterize this constitutional right
as the embodiment of a 'spiritual concept: the belief that to value the
privacy of home and person and to afford its constitutional protection
against the long reach of government is no legs than to value human
dignity, and that his privacy must not be disturbed except in case of
 Page 144 of 192

overriding social need, and then only under stringent procedural

safeguards.' (Ibid, p. 47).

The trial court justified the arrest of the accused-appelant without any warrant as
falling under one of the instances when arrests may be validly made without a
warrant. Rule 113, Section 6 * of the Rules of Court, provides the exceptions as
follows:

a) When the person to be arrested has committed, is actually committing, or is

about to commit an offense in his presence;

b) When an offense has in fact been committed, and he has reasonable ground to
believe that the person to be arrested has committed it;

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.

The Court stated that even if there was no warrant for the arrest of Burgos, the fact
that "the authorities received an urgent report of accused's involvement in
subversive activities from a reliable source (report of Cesar Masamlok) the
circumstances of his arrest, even without judicial warrant, is lawfully within the
ambit of Section 6-A of Rule 113 of the Rules of Court and applicable jurisprudence
on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and the
alleged subversive documents would become an incident to a lawful arrest as
provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous

weapons or anything which may be used as proof of the commission of
the offense.

The conclusions reached by the trial court are erroneous.

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 personal knowledge of that fact. The offense must also be committed in his
presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was

possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any firearm
or subversive document. Neither was he committing any act which could be
described as subversive. He was, in fact, plowing his field at the time of the arrest.
 Page 145 of 192

The right of a person to be secure against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and fundamental one. The statute or
rule which allows exceptions to the requirement of warrants of arrest is strictly
construed. Any exception must clearly fall within the situations when securing a
warrant would be absurd or is manifestly unnecessary as provided by the Rule. We
cannot liberally construe the rule on arrests without warrant or extend its
application beyond the cases specifically provided by law. To do so would infringe
upon personal liberty and set back a basic right so often violated and so deserving
of full protection.

The Solicitor General is of the persuasion that the arrest may still be considered
lawful under Section 6(b) using the test of reasonableness. He submits that. the
information given by Cesar Masamlok was sufficient to induce a reasonable ground
that a crime has been committed and that the accused is probably guilty thereof.

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.

In this case, the accused was arrested on the sole basis of Masamlok's verbal
report. Masamlok led the authorities to suspect that the accused had committed a
crime. They were still fishing for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on the basis of information from the lips
of a frightened wife cannot make the arrest lawful, If an arrest without warrant is
unlawful at the moment it is made, generally nothing that happened or is
discovered afterwards can make it lawful. The fruit of a poisoned tree is necessarily
also tainted.

More important, we find no compelling reason for the haste with which the arresting
officers sought to arrest the accused. We fail to see why they failed to first go
through the process of obtaining a warrant of arrest, if indeed they had reasonable
ground to believe that the accused had truly committed a crime. There is no
showing that there was a real apprehension that the accused was on the verge of
flight or escape. Likewise, there is no showing that the whereabouts of the accused
were unknown,

The basis for the action taken by the arresting officer was the verbal report made by
Masamlok who was not required to subscribe his allegations under oath. There was
no compulsion for him to state truthfully his charges under pain of criminal
prosecution. (TSN, p. 24, October 14, 1982). Consequently, the need to go through
the process of securing a search warrant and a warrant of arrest becomes even
more clear. The arrest of the accused while he was plowing his field is illegal. The
arrest being unlawful, the search and seizure which transpired afterwards could not
likewise be deemed legal as being mere incidents to a valid arrest.
 Page 146 of 192

Neither can it be presumed that there was a waiver, or that consent was given by
the accused to be searched simply because he failed to object. To constitute a
waiver, it must appear first that the right exists; secondly, that the person involved
had knowledge, actual or constructive, of the existence of such a right; and lastly,
that said person had an actual intention to relinquish the right (Pasion Vda. de
Garcia v. Locsin, 65 Phil. 689). The fact that the accused failed to object to the entry
into his house does not amount to a permission to make a search therein (Magoncia
v. Palacio, 80 Phil. 770). As pointed out by Justice Laurel in the case of Pasion Vda.
de Garcia V. Locsin (supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any

affirmative act of the citizen, the courts do not place the citizen in the
position of either contesting an officer's authority by force, or waiving
his constitutional rights; but instead they hold that a peaceful
submission to a search or seizure is not a consent or an invitation
thereto, but is merely a demonstration of regard for the supremacy of
the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable presumption against

waiver  of fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights." (Johnson v. Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutional rights at
the time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you

were not armed with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house

when you went there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed

him?
 Page 147 of 192

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm,

you surrender that firearm, first he denied but when Sgt.
Buncalan interviewed his wife, his wife told him that it is
buried, I dug the firearm which was wrapped with a
cellophane.

Q In your interview of Burgos you did not remind him of

his rights under the constitution considering that he was
purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was

buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive documents
were obtained in violation of the accused's constitutional rights against
unreasonable searches and seizures, it follows that they are inadmissible as
evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive documents,

the prosecution presented the two arresting officers who testified that the accused
readily admitted ownership of the gun after qqqs wife pointed to the place where it
was buried. The officers stated that it was the accused himself who voluntarily
pointed to the place where the alleged subversive documents were hidden.
 Page 148 of 192

Assuming this to be true, it should be recalled that the accused was never informed
of his constitutional rights at the time of his arrest. So that when the accused
allegedly admitted ownership of the gun and pointed to the location of the
subversive documents after questioning, the admissions were obtained in violation
of the constitutional right against self-incrimination under Sec. 20 of Art. IV of the
Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any

person under investigation for the commission of an offense shall have
the right to remain silent and to counsel, and to be informed of such
right.. . .

The Constitution itself mandates that any evidence obtained in violation of this right
is inadmissible in evidence. Consequently, the testimonies of the arresting officers
as to the admissions made by the appellant cannot be used against him.

The trial court validly rejected the extra-judicial confession of the accused as
inadmissible in evidence. The court stated that the appellant's having been
exhaustively subjected to physical terror, violence, and third degree measures may
not have been supported by reliable evidence but the failure to present the
investigator who conducted the investigation gives rise to the "provocative
presumption" that indeed torture and physical violence may have been committed
as stated.

The accused-appellant was not accorded his constitutional right to be assisted by

counsel during the custodial interrogation. The lower court correctly pointed out
that the securing of counsel, Atty. Anyog, to help the accused when he subscribed
under oath to his statement at the Fiscal's Office was too late. It could have no
palliative effect. It cannot cure the absence of counsel at the time of the custodial
investigation when the extrajudicial statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive
documents inadmissible in evidence against the accused-appellant, the only
remaining proof to sustain the charge of Illegal Possession of Firearm in Furtherance
of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond

reasonable doubt. It is true that the trial court found Masamlok's testimony credible
and convincing. However, we are not necessarily bound by the credibility which the
trial court attaches to a particular witness. As stated in People vs.. Cabrera (100
SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of

credibility the findings of the trial court are entitled to great respect
upon appeal for the obvious reason th+at it was able to observe the
demeanor, actuations and deportment of the witnesses during the
trial. But we have also said that this rule is not absolute for otherwise
 Page 149 of 192

there would be no reversals of convictions upon appeal. We must

reject the findings of the trial court where the record discloses
circumstances of weight and substance which were not properly
appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that found
in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the

issue hinges on how much credence can be accorded to him. The first
consideration is that said testimony stands uncorroborated. Ternura
was the only witness who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his
fate depended upon how much he cooperated with the authorities,
who were then engaged in a vigorous anti-dissident campaign. As in
the case of Rodrigo de Jesus, whose testimony We discounted for the
same reason, that of Ternura cannot be considered as proceeding from
a totally unbiased source. . . .

In the instant case, Masamlok's testimony was totally uncorroborated. Considering

that Masamlok surrendered to the military certainly his fate depended on how
eagerly he cooperated with the authorities. Otherwise, he would also be charged
with subversion. The trade-off appears to be his membership in the Civil Home
Defense Force. (TSN, p. 83, January 4, 1983). Masamlok may be considered as an
interested witness. It can not be said that his testimony is free from the opportunity
and temptation to be exaggerated and even fabricated for it was intended to secure
his freedom.

Despite the fact that there were other persons present during the alleged NPA
seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok, Isabel Ilan
and Ayok Ides (TSN, p. 74, January 4, 1983) who could have corroborated Cesar
Masamlok's testimony that the accused used the gun in furtherance of subversive
activities or actually engaged in subversive acts, the prosecution never presented
any other witness.

This Court is, therefore, constrained to rule that the evidence presented by the
prosecution is insufficient to prove the guilt of the accused beyond reasonable
doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v.

Dramayo (42 SCRA 59), where after stressing that accusation is not,
according to the fundamental law, synonymous with guilt, it was made
clear: 'Only if the judge below and the appellate tribunal could arrive at
a conclusion that the crime had been committed precisely by the
 Page 150 of 192

person on trial under such an exacting test should the sentence be one
of conviction. It is thus required that every circumstance favoring his
innocence be duly taken into account. The proof against him must
survive the test of reason; the strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on
the defendant could be laid the responsibility for the offense charged;
that not only did he perpetrate the act but that it amounted to a crime.
What is required then is moral certainty.' (Ibid, 64. Cf. People v.
Alvarez, 55 SCRA 81; People v. Joven, 64 SCRA 126; People vs.
Ramirez, 69 SCRA 144; People vs. Godov 72 SCRA 69; People v. Lopez,
74 SCRA 205; People v. Poblador, 76 SCRA 634; People v. Quiazon, 78
SCRA 513; People v. Nazareno, 80 SCRA 484; People vs. Gabilan 115
SCRA 1; People v. Gabiana, 117 SCRA 260; and People vs. Ibanga 124
SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur where
there appears to be a well-organized plan to overthrow the Government through
armed struggle and replace it with an alien system based on a foreign ideology. The
open defiance against duly constituted authorities has resulted in unfortunate levels
of violence and human suffering publicized all over the country and abroad. Even as
we reiterate the need for all freedom loving citizens to assist the military authorities
in their legitimate efforts to maintain peace and national security, we must also
remember the dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court
stated:

While the government should continue to repel the communists, the

subversives, the rebels, and the lawless with an the means at its
command, it should always be remembered that whatever action is
taken must always be within the framework of our Constitution and our
laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier attitude

towards constitutional liberties and protections will only fan the increase of
subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is REVERSED

and SET ASIDE. The accused-appellant is hereby ACQUITTED, on grounds of
reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38, Smith
and Wesson, with Serial No. 8.69221) and the alleged subversive documents are
ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.

Feria (Chairman), Fernan, Alampay and Paras, JJ., concur.

 Page 151 of 192

G.R. No. L-72119 May 29, 1987

VALENTIN L. LEGASPI, petitioner,
vs.
CIVIL SERVICE COMMISSION, respondent.

CORTES, J.:
 Page 152 of 192

The fundamental right of the people to information on matters of public concern is

invoked in this special civil action for mandamus instituted by petitioner Valentin L.
Legaspi against the Civil Service Commission. The respondent had earlier denied
Legaspi's request for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City. These government
employees, Julian Sibonghanoy and Mariano Agas, had allegedly represented
themselves as civil service eligibles who passed the civil service examinations for
sanitarians.

Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy and
Mariano Agas, is guaranteed by the Constitution, and that he has no other plain,
speedy and adequate remedy to acquire the information, petitioner prays for the
issuance of the extraordinary writ of mandamus to compel the respondent
Commission to disclose said information.

This is not the first tune that the writ of mandamus is sought to enforce the
fundamental right to information. The same remedy was resorted to in the case
of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April 24,1985,136 SCRA 27)
wherein the people's right to be informed under the 1973 Constitution (Article IV,
Section 6) was invoked in order to compel the publication in the Official Gazette of
various presidential decrees, letters of instructions and other presidential issuances.
Prior to the recognition of the right in said Constitution the statutory right to
information provided for in the Land Registration Act (Section 56, Act 496, as
amended) was claimed by a newspaper editor in another mandamus proceeding,
this time to demand access to the records of the Register of Deeds for the purpose
of gathering data on real estate transactions involving aliens (Subido vs. Ozaeta, 80
Phil. 383 [1948]).

The constitutional right to information on matters of public concern first gained

recognition in the Bill of Rights, Article IV, of the 1973 Constitution, which states:

Sec. 6. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations as
may be provided by law.

The foregoing provision has been retained and the right therein provided amplified
in Article III, Sec. 7 of the 1987 Constitution with the addition of the phrase, "as well
as to government research data used as basis for policy development." The new
provision reads:

The right of the people to information on matters of public concern

shall be recognized. Access to official records, and to documents, and
papers pertaining to official acts, transactions, or decisions, as well as
to government research data used as basis. for policy development,
shall be afforded the citizen, subject to such stations as may be
provided by law.
 Page 153 of 192

These constitutional provisions are self-executing. They supply the rules by means
of which the right to information may be enjoyed (Cooley, A Treatise on the
Constitutional Limitations 167 [1927]) by guaranteeing the right and mandating the
duty to afford access to sources of information. Hence, the fundamental right
therein recognized may be asserted by the people upon the ratification of the
constitution without need for any ancillary act of the Legislature. (Id. at, p. 165)
What may be provided for by the Legislature are reasonable conditions and
limitations upon the access to be afforded which must, of necessity, be consistent
with the declared State policy of full public disclosure of all transactions involving
public interest (Constitution, Art. 11, Sec. 28). However, it cannot be
overemphasized that whatever limitation may be prescribed by the Legislature, the
right and the duty under Art. III Sec. 7 have become operative and enforceable by
virtue of the adoption of the New Charter. Therefore, the right may be properly
invoked in a mandamus proceeding such as this one.

The Solicitor General interposes procedural objections to Our giving due course to
this Petition. He challenges the petitioner's standing to sue upon the ground that
the latter does not possess any clear legal right to be informed of the civil service
eligibilities of the government employees concerned. He calls attention to the
alleged failure of the petitioner to show his actual interest in securing this particular
information. He further argues that there is no ministerial duty on the part of the
Commission to furnish the petitioner with the information he seeks.

1. To be given due course, a Petition for mandamus must have been instituted by a
party aggrieved by the alleged inaction of any tribunal, corporation, board or person
which unlawfully excludes said party from the enjoyment of a legal right. (Ant;-
Chinese League of the Philippines vs. Felix, 77 Phil. 1012 [1947]). The petitioner in
every case must therefore be an "aggrieved party" in the sense that he possesses a
clear legal right to be enforced and a direct interest in the duty or act to be
performed.

In the case before Us, the respondent takes issue on the personality of the
petitioner to bring this suit. It is asserted that, the instant Petition is bereft of any
allegation of Legaspi's actual interest in the civil service eligibilities of Julian
Sibonghanoy and Mariano Agas, At most there is a vague reference to an unnamed
client in whose behalf he had allegedly acted when he made inquiries on the subject
(Petition, Rollo, p. 3).

But what is clear upon the face of the Petition is that the petitioner has firmly
anchored his case upon the right of the people to information on matters of public
concern, which, by its very nature, is a public right. It has been held that:

* * * when the question is one of public right and the object of the
mandamus is to procure the enforcement of a public duty, the people
are regarded as the real party in interest and the relator at whose
instigation the proceedings are instituted need not show that he has
any legal or special interest in the result, it being sufficient to show
that he is a citizen and as such interested in the execution of the laws
* * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L- 63915, April 24,
1985, 136 SCRA 27, 36).
 Page 154 of 192

From the foregoing, it becomes apparent that when a mandamus proceeding

involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the
general "public" which possesses the right.

The Court had opportunity to define the word "public" in

the Subido case, supra,  when it held that even those who have no direct or tangible
interest in any real estate transaction are part of the "public" to whom "(a)ll records
relating to registered lands in the Office of the Register of Deeds shall be open * * *"
(Sec. 56, Act No. 496, as amended). In the words of the Court:

* * * "Public" is a comprehensive, all-inclusive term. Properly

construed, it embraces every person. To say that only those who have
a present and existing interest of a pecuniary character in the
particular information sought are given the right of inspection is to
make an unwarranted distinction. *** (Subido vs. Ozaeta, supra at p.
387).

The petitioner, being a citizen who, as such is clothed with personality to seek
redress for the alleged obstruction of the exercise of the public right. We find no
cogent reason to deny his standing to bring the present suit.

2. For every right of the people recognized as fundamental, there lies a

corresponding duty on the part of those who govern, to respect and protect that
right. That is the very essence of the Bill of Rights in a constitutional regime. Only
governments operating under fundamental rules defining the limits of their power
so as to shield individual rights against its arbitrary exercise can properly claim to
be constitutional (Cooley, supra, at p. 5). Without a government's acceptance of the
limitations imposed upon it by the Constitution in order to uphold individual
liberties, without an acknowledgment on its part of those duties exacted by the
rights pertaining to the citizens, the Bill of Rights becomes a sophistry, and liberty,
the ultimate illusion.

In recognizing the people's right to be informed, both the 1973 Constitution and the
New Charter expressly mandate the duty of the State and its agents to afford
access to official records, documents, papers and in addition, government research
data used as basis for policy development, subject to such limitations as may be
provided by law. The guarantee has been further enhanced in the New Constitution
with the adoption of a policy of full public disclosure, this time "subject to
reasonable conditions prescribed by law," in Article 11, Section 28 thereof, to wit:

Subject to reasonable conditions prescribed by law, the State adopts

and implements a policy of full public disclosure of all its transactions
involving public interest. (Art. 11, Sec. 28).

In the Tanada case, supra, the constitutional guarantee was bolstered by what this

Court declared as an imperative duty of the government officials concerned to
publish all important legislative acts and resolutions of a public nature as well as all
executive orders and proclamations of general applicability. We granted mandamus
 Page 155 of 192

in said case, and in the process, We found occasion to expound briefly on the nature
of said duty:

* * * That duty must be enforced if the Constitutional right of the

people to be informed on matters of public concern is to be given
substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves
respondents with no discretion whatsoever as to what must be in
included or excluded from such publication. (Tanada v.
Tuvera, supra, at 39). (Emphasis supplied).

The absence of discretion on the part of government agencia es in allowing the

examination of public records, specifically, the records in the Office of the Register
of Deeds, is emphasized in Subido vs. Ozaeta, supra:

Except, perhaps when it is clear that the purpose of the examination is

unlawful, or sheer, idle curiosity, we do not believe it is the duty under
the law of registration officers to concern themselves with the motives,
reasons, and objects of the person seeking access to the records. It is
not their prerogative to see that the information which the records
contain is not flaunted before public gaze, or that scandal is not made
of it. If it be wrong to publish the contents of the records, it is the
legislature and not the officials having custody thereof which is called
upon to devise a remedy. *** (Subido v. Ozaeta, supra at 388).
(Emphasis supplied).

It is clear from the foregoing pronouncements of this Court that government

agencies are without discretion in refusing disclosure of, or access to, information of
public concern. This is not to lose sight of the reasonable regulations which may be
imposed by said agencies in custody of public records on the manner in which the
right to information may be exercised by the public. In the Subido case, We
recognized the authority of the Register of Deeds to regulate the manner in which
persons desiring to do so, may inspect, examine or copy records relating to
registered lands. However, the regulations which the Register of Deeds may
promulgate are confined to:

* * * prescribing the manner and hours of examination to the end that

damage to or loss of, the records may be avoided, that undue
interference with the duties of the custodian of the books and
documents and other employees may be prevented, that the right of
other persons entitled to make inspection may be insured * * * (Subido
vs. Ozaeta, 80 Phil. 383, 387)

Applying the Subido ruling by analogy, We recognized a similar authority in a

municipal judge, to regulate the manner of inspection by the public of criminal
docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-MJ, May
5, 1976, 71 SCRA 14). Said administrative case was filed against the respondent
judge for his alleged refusal to allow examination of the criminal docket records in
his sala. Upon a finding by the Investigating Judge that the respondent had allowed
the complainant to open and view the subject records, We absolved the respondent.
 Page 156 of 192

In effect, We have also held that the rules and conditions imposed by him upon
the manner of examining the public records were reasonable.

In both the Subido and the Baldoza cases, We were emphatic in Our statement that

the authority to regulate the manner of examining public records does not carry
with it the power to prohibit. A distinction has to be made between the discretion to
refuse outright the disclosure of or access to a particular information and the
authority to regulate the manner in which the access is to be afforded. The first is a
limitation upon the availability of access to the information sought, which only the
Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to
the government agency charged with the custody of public records. Its authority to
regulate access is to be exercised solely to the end that damage to, or loss of,
public records may be avoided, undue interference with the duties of said agencies
may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal supra).

Thus, while the manner of examining public records may be subject to reasonable
regulation by the government agency in custody thereof, the duty to disclose the
information of public concern, and to afford access to public records cannot be
discretionary on the part of said agencies. Certainly, its performance cannot be
made contingent upon the discretion of such agencies. Otherwise, the enjoyment of
the constitutional right may be rendered nugatory by any whimsical exercise of
agency discretion. The constitutional duty, not being discretionary, its performance
may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public
right to be enforced and the concomitant duty of the State are unequivocably set
forth in the Constitution. The decisive question on the propriety of the issuance of
the writ of mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee.

3. The incorporation in the Constitution of a guarantee of access to information of

public concern is a recognition of the essentiality of the free flow of ideas and
information in a democracy (Baldoza v. Dimaano, Adm. Matter No. 1120-MJ, May 5,
1976, 17 SCRA 14). In the same way that free discussion enables members of
society to cope with the exigencies of their time (Thornhill vs. Alabama, 310 U.S.
88,102 [1939]), access to information of general interest aids the people in
democratic decision-making (87 Harvard Law Review 1505 [1974]) by giving them a
better perspective of the vital issues confronting the nation.

But the constitutional guarantee to information on matters of public concern is not

absolute. It does not open every door to any and all information. Under the
Constitution, access to official records, papers, etc., are "subject to limitations as
may be provided by law" (Art. III, Sec. 7, second sentence). The law may therefore
exempt certain types of information from public scrutiny, such as those affecting
national security (Journal No. 90, September 23, 1986, p. 10; and Journal No. 91,
September 24, 1986, p. 32, 1986 Constitutional Commission). It follows that, in
every case, the availability of access to a particular public record must be
circumscribed by the nature of the information sought, i.e., (a) being of public
concern or one that involves public interest, and, (b) not being exempted by law
 Page 157 of 192

from the operation of the constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of public interest or public
concern.

a. This question is first addressed to the government agency having custody of the
desired information. However, as already discussed, this does not give the agency
concerned any discretion to grant or deny access. In case of denial of access, the
government agency has the burden of showing that the information requested is
not of public concern, or, if it is of public concern, that the same has been exempted
by law from the operation of the guarantee. To hold otherwise will serve to dilute
the constitutional right. As aptly observed, ". . . the government is in an
advantageous position to marshall and interpret arguments against release . . ." (87
Harvard Law Review 1511 [1974]). To safeguard the constitutional right, every
denial of access by the government agency concerned is subject to review by the
courts, and in the proper case, access may be compelled by a writ of Mandamus.

In determining whether or not a particular information is of public concern there is

no rigid test which can be applied. "Public concern" like "public interest" is a term
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives,
or simply because such matters naturally arouse the interest of an ordinary citizen.
In the final analysis, it is for the courts to determine in a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.

The public concern invoked in the case of Tanada v. Tuvera, supra, was the need for
adequate notice to the public of the various laws which are to regulate the actions
and conduct of citizens. In Subido vs. Ozaeta, supra, the public concern deemed
covered by the statutory right was the knowledge of those real estate transactions
which some believed to have been registered in violation of the Constitution.

The information sought by the petitioner in this case is the truth of the claim of
certain government employees that they are civil service eligibles for the positions
to which they were appointed. The Constitution expressly declares as a State policy
that:

Appointments in the civil service shall be made only according to merit

and fitness to be determined, as far as practicable, and except as to
positions which are policy determining, primarily confidential or highly
technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).

Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate concern
of citizens to ensure that government positions requiring civil service eligibility are
occupied only by persons who are eligibles. Public officers are at all times
accountable to the people even as to their eligibilities for their respective positions.

b. But then, it is not enough that the information sought is of public interest. For
mandamus to lie in a given case, the information must not be among the species
exempted by law from the operation of the constitutional guarantee.
 Page 158 of 192

In the instant, case while refusing to confirm or deny the claims of eligibility, the
respondent has failed to cite any provision in the Civil Service Law which would limit
the petitioner's right to know who are, and who are not, civil service eligibles. We
take judicial notice of the fact that the names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various
professions, are released to the public. Hence, there is nothing secret about one's
civil service eligibility, if actually possessed. Petitioner's request is, therefore,
neither unusual nor unreasonable. And when, as in this case, the government
employees concerned claim to be civil service eligibles, the public, through any
citizen, has a right to verify their professed eligibilities from the Civil Service
Commission.

The civil service eligibility of a sanitarian being of public concern, and in the
absence of express limitations under the law upon access to the register of civil
service eligibles for said position, the duty of the respondent Commission to confirm
or deny the civil service eligibility of any person occupying the position becomes
imperative. Mandamus, therefore lies.

WHEREFORE, the Civil Service Commission is ordered to open its register of eligibles
for the position of sanitarian, and to confirm or deny, the civil service eligibility of
Julian Sibonghanoy and Mariano Agas, for said position in the Health Department of
Cebu City, as requested by the petitioner Valentin L. Legaspi.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras,
Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

Feliciano, J., is on leave.

G.R. No. L-22554 August 29, 1975

DELFIN LIM and JIKIL TAHA, plaintiffs-appellants,

vs.
FRANCISCO PONCE DE LEON AND ORLANDO MADDELA, defendants-appellees.

Ricardo L. Manalilig for plaintiffs-appellants.

Iñigo R. Peña for defendants-appellees.

MARTIN, J.:

Appeal on a question of law from the decision of the Court of First Instance of
Palawan in Civil Case No. 416, entitled "Delfin Lim and Jikil Taha vs. Francisco Ponce
de Leon and Orlando Maddela", dismissing the complaint of the plaintiffs and
ordering them to pay each of the defendants jointly and severally the sum of
 Page 159 of 192

P500.00 by way of actual damages; P500.00 by way of attorney's fees; and

P1,000.00 by way of exemplary damages.

On April 29, 1961, plaintiff-appellant Jikil Taha sold to a certain Alberto Timbangcaya
of Brooke's Point, Palawan a motor launch named M/L "SAN RAFAEL". A year later or
on April 9, 1962 Alberto Timbangcaya filed a complaint with the Office of the
Provincial Fiscal of Palawan alleging that after the sale Jikil Taha forcibly took away
the motor launch from him.

On May 14, 1962, after conducting a preliminary investigation, Fiscal Francisco

Ponce de Leon in his capacity as Acting Provincial Fiscal of Palawan, filed with the
Court of First Instance of Palawan the corresponding information for Robbery the
Force and Intimidation upon Persons against Jikil Taha. The case was docketed as
Criminal Case No. 2719.

On June 15, 1962, Fiscal Francisco Ponce de Leon, upon being informed that the
motor launch was in Balabac, Palawan, wrote the Provincial Commander of Palawan
requesting him to direct the detachment commander-in Balabac to impound and
take custody of the motor launch.1

On June 26, 1962, Fiscal Ponce de Leon reiterated his request to the Provincial
Commander to impound the motor launch, explaining that its subsequent sale to a
third party, plaintiff-appellant Delfin Lim, cannot prevent the court from taking
custody of the same.2 So, on July 6, 1962 upon order of the Provincial Commander,
defendant-appellee Orlando Maddela, Detachment Commander of Balabac,
Palawan, seized the motor launch "SAN RAFAEL" from plaintiff-appellant Delfin Lim
and impounded it.

On July 15, 1962 plaintiff-appellant Delfin Lim pleaded with Orlando Maddela to
return the motor launch but the latter refused. Likewise, on September 20, 1962,
Jikil Taha through his counsel made representations with Fiscal Ponce de Leon to
return the seized property to plaintiff-appellant Delfin Lim but Fiscal Ponce de Leon
refused, on the ground that the same was the subject of a criminal offense.

All efforts to recover the motor launch going to naught, plaintiffs-appellants Delfin
Lim and Jikil Taha, on November 19, 1962, filed with the Court of First Instance of
Palawan a complaint for damages against defendants-appellees Fiscal Francisco
Ponce de Leon and Orlando Maddela, alleging that on July 6, 1962 Orlando Maddela
entered the premises of Delfin Lim without a search warrant and then and there
took away the hull of the motor launch without his consent; that he effected the
seizure upon order of Fiscal Ponce de Leon who knew fully well that his office was
not vested with authority to order the seizure of a private property; that said motor
launch was purchased by Delfin Lim from Jikil Taha in consideration of Three
Thousand Pesos (P3,000.00), Two Thousand Pesos (P2,000.00) of which has been
given to Jikil Taha as advance payment; that as a consequence of the unlawful
seizure of the motor launch, its sale did not materialize; and that since July 6, 1962,
the said motor launch had been moored at the Balabac Bay, Palawan and because
of exposure to the elements it had become worthless and beyond repair. For the
alleged violation of their constitutional rights, plaintiffs-appellants prayed that
defendants-appellees be ordered to pay jointly and severally each of them the sum
 Page 160 of 192

of P5,750.00 representing actual, moral and exemplary damages and attorney's

fees.

In their answer, defendants-appellees denied the material allegations of the

complaint and as affirmative defenses alleged that the motor launch in question
which was sold by Jikil Taha to Alberto Timbangcaya on April 29, 1961 was
sometime in April 1962, forcibly taken with violence upon persons and with intent to
gain by Jikil Taha from Alfredo Timbangcaya without the latter's knowledge and
consent, thus giving rise to the filing of a criminal charge of robbery against Jikil
Taha; that Fiscal Ponce de Leon, in his capacity as Acting Provincial Fiscal of
Palawan ordered Orlando Maddela to seize and impound the motor launch "SAN
RAFAEL", for being the corpus delicti  of the robbery; and that Orlando Maddela
merely obeyed the orders of his superior officer to impound said launch. By way of
counterclaim, defendants-appellees alleged that because of the malicious and
groundless filing of the complaint by plaintiffs-appellants, they were constrained to
engage the services of lawyers, each of them paying P500.00 as attorney's fees;
and that they suffered moral damages in the amount of P5,000.00 each and actual
damages in the amount of P500.00 each. They also prayed that each of them
awarded exemplary damages in the amount of P1,000.00.

On September 13, 1965, the trial court rendered its decision, upholding the validity
of the seizure of the motor launch on the ground that "the authority to impound
evidences or exhibits or corpus delicti in a case pending investigation is inherent in
the Provincial Fiscal who controls the prosecution and who introduces those exhibits
in the court." Accordingly, the trial court dismissed the complaint of plaintiffs-
appellants and ordered them to pay jointly and severally each of the defendants-
appellees the amount of P500.00 by way of actual damages another amount of
P500.00 for attorney's fees and P1,000.00 as exemplary damages.

Hence, this appeal.

Two vital issues call for resolution by this Court. First, whether or not defendant-
appellee Fiscal Ponce de Leon had the power to order the seizure of the motor
launch in question without a warrant of search and seizure even if the same was
admittedly the corpus delicti  of the crime. Second, whether or not defendants-
appellees are civilly liable to plaintiffs-appellants for damages allegedly suffered by
them granting that the seizure of the motor launch was unlawful.

The gravamen of plaintiffs-appellants' argument is that the taking of the motor

launch on July 6, 1962 by Orlando Maddela upon the order of Fiscal Ponce de Loon
was in violation of the constitutional guarantee against unreasonable searches and
seizures since it was done without a warrant.

The pertinent provision of the Constitution then in force reads:

3) The right of the people to be secure in their persons, houses, papers

and effects against unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon probable cause, to be
determined by the judge after examination under oath or affirmation of
 Page 161 of 192

the complainant and the witnesses he may produce, and particularly

describing the place to be searched, and the persons or things to be
seized.3

A cursory reading of the above provision easily brings into focus the
unreasonableness of the seizure of the aforementioned motor launch. A search and
seizure to be reasonable, must be effected by means of a valid search warrant. And
for a search warrant to be valid: (1) it must be issued upon probable cause; (2) the
probable cause must be determined by the judge himself and not by the applicant
or any other person; (3) in the determination of probable cause, the judge must
examine, under oath or affirmation, the complainant and such witnesses as the
latter may produce; and (4) the warrant issued must particularly describe the place
to be searched and persons or things to be seized. 4 Thus in a long line of decisions,
this Court has declared invalid search warrants which were issued in utter disregard
of the constitutional injunction.5

Defendants-appellees admitted that when Orlando Maddela entered the premises of

Delfin Lim and impounded the motor launch he was not armed with a search
warrant; that he effected the seizure of the motor launch in the absence of and
without the consent of Delfin Lim. There can be no question that without the proper
search warrant, no public official has the right to enter the premises of another
without his consent for the purpose of search and seizure. 6 And since in the present
case defendants-appellees seized the motor launch without a warrant, they have
violated the constitutional right of plaintiffs-appellants against unreasonable search
and seizure.

Defendants-appellees however would want to justify the seizure of the motor launch
even without a warrant because of Fiscal Ponce de Leon's alleged inherent power to
order the seizure of a personal property which is the corpus delicti  of a crime, he
being a quasi  judicial officer who has the control of the prosecution and the
presentation of the evidence in the criminal case. They argue that inasmuch as the
motor launch in question was allegedly stolen by Jikil Taha from Timbangcaya,
Fiscal Ponce de Leon could order its seizure even without a search warrant. We
cannot agree. Under the old Constitution 7 the power to issue a search warrant is
vested in a judge or magistrate and in no other officer and no search and seizure
can be made without a proper warrant. At the time the act complained of was
committed, there was no law or rule that recognized the authority of Provincial
Fiscals to issue a search warrant. In his vain attempt to justify the seizure of the
motor launch in question without a warrant Fiscal Ponce de Leon invoked the
provisions of Republic Act No. 732, which amended Sections 1674 and 1687 of the
Revised Administrative Code. But there is nothing in said law which confers upon
the provincial fiscal; the authority to issue warrants, much less to order without
warrant the seizure of a personal property even if it is the corpus delicti of a crime.
True, Republic Act No. 732 has broadened the power of provincial fiscals to conduct
preliminary investigations, but said law did not divest the judge or magistrate of its
power to determine, before issuing the corresponding warrant, whether or not
probable cause exists therefor.8

Moreover, under Sections 2 and 3 of Rule 122 of the Rules of Court 9 which

complement the constitutional provision earlier cited, two principles are made clear,
 Page 162 of 192

namely: (1) that in the seizure of a stolen property search warrant is still necessary;
and (2) that in issuing a search warrant the judge alone determines whether or not
there is a probable cause. The fact that a thing is a corpus delicti of a crime does
not justify its seizure without a warrant. As held in U.S. v. de los
Reyes  and Esguerra, 10 citing McClurg v. Brenton: 11

The mere fact that a man is an officer, whether of high or low degree,
gives him no more right than is possessed by the ordinary private
citizen to break in upon the privacy of a home and subject its occupant
to the indignity of a search for the evidence of crime, without a legal
warrant procured for that purpose. No amount of incriminating
evidence whatever its source, will supply the place of such warrant. At
the closed door of the home be it palace or hovel even bloodhounds
must wait till the law, by authoritative process, bids it open. (Emphasis
supplied.)

Defendant-appellee Fiscal Ponce de Leon would also invoke lack of time to procure
a search warrant as an excuse for the seizure of the motor launch without one. He
claimed that the motor launch had to be seized immediately in order to preserve it
and to prevent its removal out of the locality, since Balabac, Palawan, where the
motor launch was at the time, could only be reached after three to four days' travel
by boat. 12 The claim cannot be sustained. The records show that on June 15,
1962 13 Fiscal Ponce de Leon made the first request to the Provincial Commander for
the impounding of the motor launch; and on June 26, 1962 14 another request was
made. The seizure was not effected until July 6, 1962. In short, Fiscal Ponce de Leon
had all the time to procure a search warrant had he wanted to and which he could
have taken in less than a day, but he did not. Besides, there is no basis for the
apprehension that the motor launch might be moved out of Balabac because even
prior to its seizure the motor launch was already without its engine. 15 In sum, the
fact that there was no time to secure a search warrant would not legally justify a
search without one. 16

As to whether or not they are entitled to damages, plaintiffs-appellants anchor their

claim for damages on Articles 32 and 2219 of the New Civil Code which provide in
part as follows:

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.

xxx xxx xxx

(9) The rights to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures.

xxx xxx xxx

 Page 163 of 192

The indemnity shall include moral damages. Exemplary damages may

also be adjudicated.

ART. 2219. Moral damages may be recovered in the following and

analogous cases:

xxx xxx xxx

(6) Illegal search;

xxx xxx xxx

(1) Acts and action referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34
and 35.

Pursuant to the foregoing provisions, a person whose constitutional rights have

been violated or impaired is entitled to actual and moral damages from the public
officer or employee responsible therefor. In addition, exemplary damages may also
be awarded. In the instant case, plaintiff-appellant Delfin Lim claimed that he
purchased the motor launch from Jikil Taha in consideration of P3,000.00, having
given P2,000.00 as advanced payment; that since or seizure on July 6, 1962 the
motor launch had been moored at Balabac Bay and because of exposure to the
elements it has become worthless at the time of the filing of the present action; that
because of the illegality of the seizure of the motor launch, he suffered moral
damages in the sum of P1,000.00; and that because of the violation of their
constitutional rights they were constrained to engage the services of a lawyer whom
they have paid P1,500.00 for attorney's fees. We find these claims of Delfin Lim
amply supported by the evidence and therefore should be awarded the sum of
P3,000.00 as actual damages; P1,000.00 as moral damages and P750.00 for
attorney's fees. However, with respect co plaintiff Jikil Taha, he is not entitled to
recover any damage which he alleged he had suffered from the unlawful seizure of
the motor launch inasmuch as he had already transferred the ownership and
possession of the motor launch to Delfin Lim at the time it was seized and therefore,
he has no legal standing to question the validity of the seizure. Well settled is the
rule that the legality of a seizure can be contested only by the party whose rights
have been impaired thereby, and that the objection to an unlawful search and
seizure is purely personal and cannot be availed of by third parties. 17 Consequently,
one who is not the owner, lessee, or lawful occupant of the premise searched
cannot raise the question of validity of the search and seizure. 18 Jikil Taha is not
without recourse though. He can still collect from his co-plaintiff, Delfin Lim the
unpaid balance of P1,000.00.

Defendant-appellee Fiscal Ponce de Leon wanted to wash his hands of the incident
by claiming that "he was in good faith, without malice and without the slightest
intention of inflicting injury to plaintiff-appellant, Jikil Taha" 19 when he ordered the
seizure of the motor launch. We are not prepared to sustain his defense of good
faith. To be liable under Article 32 of the New Civil Code it is enough that there was
a violation of the constitutional rights of the plaintiffs and it is not required that
defendants should have acted with malice or bad faith. Dr. Jorge Bocobo, Chairman
 Page 164 of 192

of the Code Commission, gave the following reasons during the public hearings of
the Joint Senate and House Committees, why good faith on the part of the public
officer or employee is immaterial. Thus:

DEAN BOCOBO. Article 32, regarding individual rights; Attorney Cirilo

Paredes proposes that Article 32 be so amended as to make a public
official liable for violation of another person's constitutional rights only
if the public official acted maliciously or in bad faith. The Code
Commission opposes this suggestion for these reasons:

The very nature of Article 32 is that the wrong may be civil or criminal.
It is not necessary therefore that there should be malice or bad faith.
To make such a requisite would defeat the main purpose of Article 32
which is the effective protection of individual rights. Public officials in
the past have abused their powers on the pretext of justifiable motives
or good faith in the performance of their duties. Precisely, the object of
the Article is to put an end to official abuse by the plea of good faith. In
the United States this remedy is in he nature of a tort.

Mr. Chairman, this article is firmly one of the fundamental articles

introduced in the New Civil Code to implement democracy. There is no
real democracy if a public official is abusing, and we made the article
so strong and so comprehensive that it concludes an abuse of
individual rights even if done in good faith, that official is liable. As a
matter of fact, we know that there are very few public officials who
openly and definitely abuse the individual rights of the citizens. In most
cases, the abuse is justified on a plea of desire to enforce the law to
comply with one's duty. And so, if we should limit the scope of this
article, that would practically nullify the object of the article. Precisely,
the opening object of the article is to put an end to abuses which are
justified by a plea of good faith, which is in most cases the plea of
officials abusing individual rights. 20

But defendant-appellee Orlando Maddela cannot be held accountable because he

impounded the motor launch upon the order of his superior officer. While a
subordinate officer may be held liable for executing unlawful orders of his superior
officer, there are certain circumstances which would warrant Maddela's exculpation
from liability. The records show that after Fiscal Ponce de Leon made his first
request to the Provincial Commander on June 15, 1962 Maddela was reluctant to
impound the motor launch despite repeated orders from his superior officer. 21 It
was only after he was furnished a copy of the reply of Fiscal Ponce de Leon, dated
June 26, 1962, to the letter of the Provincial Commander, justifying the necessity of
the seizure of the motor launch on the ground that the subsequent sale of the
launch to Delfin Lim could not prevent the court from taking custody of the
same, 22 that he impounded the motor launch on July 6, 1962. With said letter
coming from the legal officer of the province, Maddela was led to believe that there
was a legal basis and authority to impound the launch. Then came the order of his
superior officer to explain for the delay in the seizure of the motor launch. 23 Faced
with a possible disciplinary action from his Commander, Maddela was left with no
 Page 165 of 192

alternative but to seize the vessel. In the light of the above circumstances. We are
not disposed to hold Maddela answerable for damages.

IN VIEW OF THE FOREGOING, the decision appealed from is hereby reversed and
another one entered declaring the seizure illegal and ordering defendant-appellee
Fiscal Francisco Ponce de Leon to pay to plaintiff-appellant Delfin Lim the sum of
P3,000.00 as actual damages, plus P1,000.00 moral damages, and, in addition,
P750.00 for attorney's fees. With costs against defendant-appellee Fiscal Ponce de
Leon.

SO ORDERED.

Castro (Chairman), Teehankee, Makasiar and Esguerra, JJ., concur.

Muñoz Palma, J, is on leave.

Footnotes

1 Exhibit 7-C.

2 Exhibit 7-F.

3 Article III Section 1, 1935 Phil. Constitution. The pertinent provisions

of the Rules of Court also read as follows:

Sec. 1. Search warrant defined a search warrant is an order in writing

issued in the name of the People of the Philippines, signed by a judge
or a justice of the peace and directed to a peace officer, commanding
him to search for personal property and bring it before the court.

Sec. 2. Personal property to be seized. — A search warrant may be

issued for the search and seizure of the following personal property:

(a) Property subject of the offense,

(b) Property stolen or embezzled and other proceeds or fruits of the

offense; and

(c) Property used or intended to be used as the means of committing

an offense.

Sec. 3. Requisites for issuing search warrant. — A search warrant shall

not issue but upon probable cause to be determined by the judge or
justice of the peace 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.
 Page 166 of 192

Sec. 4. Examinations of the applicant. — The judge or justice of the

peace must, before issuing the warrant examine on oath or affirmation
the complainant and any witnesses he may produce and take their
depositions in writing. (Rule 122, Rules of Court; now Rule 126 of the
New Rules of Court).

PEOPLE OF THE PHILIPPINES, Appellee,

v. BENNY GO, Appellant.

DECISION

CARPIO-MORALES, J.:

On direct appeal before this Court is the Decision of the Regional Trial Court of
Manila, Branch 41, in Criminal Case No. 99-174439 finding appellant Benny Go
guilty of violating Section 16, Article III in relation to Section 2 (e-2), Article I of
Republic Act No. 6425, 1 as amended, and sentencing him to suffer the penalty of
 Page 167 of 192

reclusion perpetua and to pay a fine of P1,000,000.00.chanrob1es virtua1 1aw

1ibrary

The Information filed against appellant charged as follows:chanrob1es virtual 1aw

library

That on or about June 14, 1999, in the City of Manila, Philippines, the said accused
without being authorized by law to possess or use any regulated drug, did then and
there willfully, unlawfully and knowingly have in his possession and under his
custody and control one (1) knot tied transparent plastic bag containing TWO
HUNDRED FOUR (204) grams of white crystalline substance known as "Shabu"
containing methamphetamine hydrochloride, a regulated drug, without the
corresponding license or prescription thereof.

Contrary to law. 2

Upon arraignment, appellant, assisted by counsel, pleaded not guilty to the offense
charged. 3 Subsequently, at the pre-trial conference on August 10, 1999, the parties
stipulated that" (1) the subject Search Warrant is valid; and (2) the Forensic
Chemist conducted only a qualitative examination on the subject specimen." 4

The prosecution presented the following witnesses: (1) Police Inspector Edwin Zata,
Forensic Chemical Officer of the Philippine National Police (PNP) Crime Laboratory;
(2) PO2 Gerardo Abulencia (PO2 Abulencia); (3) SPO1 Edgardo G. Fernandez (SPO1
Fernandez); and (4) SPO1 Ver M. Serqueña (SPO1 Ver Serqueña) whose testimonies
sought to establish the following facts:chanrob1es virtual 1aw library

On April 28, 1999, SPO1 Fernandez, SPO1 Serqueña and a confidential informant
conducted a "test buy" operation at the residence of appellant at 1480 General
Luna Street, Ermita, Manila during which they purchased from him P1,500.00 worth
of methamphetamine hydrochloride or "shabu." 5 The police officers did not
immediately arrest him, however. Instead, they applied for a Search Warrant for
appellant’s residence from the Regional Trial Court (RTC) of Pasay City 6 based on
their firm belief that there was a large quantity of illegal drugs in his house. 7

On June 14, 1999, a raiding team composed of SPO1 Fernandez and SPO1
Serqueña, together with PO2 Abulencia, PO3 Noel Adtu and PO2 Gerardo Jimenez, 8
proceeded to appellant’s above-said residence armed with Search Warrant No. 99-
0038 9 issued by Br. 109 of the RTC of Pasay City commanding them to "make an
immediate search anytime of the day or night" of appellant’s residence and to seize
and take possession of "METAMPHETAMINE HYDROCHLORIDE (Shabu), weighing
scale, other drug paraphernalias and proceeds of the above crime."cralaw
virtua1aw library

Soon after the police officers arrived at appellant’s residence at around 6:00 in the
evening, 10 they, to enable them to gain entry to the two-storey house, "sideswept
(sinagi) a little" appellant’s Toyota Corolla GLI car which was parked outside. 11 Jack
Go, appellant’s son and the only one present at the house at the time, thereupon
opened the door of the house and the policemen at once introduced themselves,
informed him that they had a warrant for the search of the premises, and promptly
 Page 168 of 192

handcuffed him to a chair. SPO1 Fernandez, SPO1 Serqueña and PO2 Abulencia
entered the house, while PO3 Adtu and PO2 Jimenez remained outside. 12

On instruction of SPO1 Fernandez, SPO1 Serqueña left to summon barangay officials

to witness the search. SPO1 Serqueña returned five minutes later with Barangay
Kagawads Gaspar Lazaro (Kagawad Lazaro) and Emmanuel Manalo (Kagawad
Manalo) who were advised by SPO1 Fernandez to be witnesses to the search and to
afterwards sign the inventory receipt and affidavit of orderly search.

As instructed, the two barangay kagawads proceeded to the upper floor of

appellant’s house with SPO1 Serqueña and PO2 Abulencia. 13 While SPO1
Fernandez, who remained downstairs in the sala, 14 instructed the handcuffed Jack
Go to witness the search, the latter refused since "there will be no more left in the
sala of the house anyway there is a barangay official." 15

In the course of the search of the premises which took place from 6:00 to 11:00 in
the evening, 16 Kagawad Lazaro and PO2 Abulencia recovered "one knot tied
transparent plastic bag containing white crystalline substance" 17 from the drawer
of a cabinet.

Also seized from the residence of appellant were the following: (a) "one plastic bag
containing yellowish substance" 18 found by SPO1 Serqueña; 19 (b) a weighing
scale discovered by SPO1 Fernandez; (c) assorted documents; (d) passports; (e)
bank books; (f) checks; (g) a typewriter; (h) a check writer; (i) several dry seals and
(j) stamp pads; 20 (k) Chinese and Philippine currency; 21 (l) and appellant’s Toyota
Corolla GLI 22 car (the car).

The plastic bag containing the white crystalline substance was marked by SPO1
Fernandez as "EGF-A-1," while the plastic bag with the yellowish substance was
marked as "EGF-A-2." 23

With the exception of the car, all the seized items were brought to the dining table
on the ground floor of appellant’s house for inventory. 24

In the meantime, appellant’s wife Shi Xiu Ong and his friends Samson Go and Peter
Co arrived one after the other at the house. 25 Appellant himself arrived at 9:30 in
the evening when the search was almost through. 26

After the inventory had been taken, SPO1 Fernandez prepared a handwritten
Inventory Receipt 27 and a document captioned "Affidavit of Orderly Search," 28
the contents of which he read to appellant. On instruction of SPO1 Fernandez, Jack
Go also explained the contents of the documents to appellant who then signed
them as did kagawads Manalo and Lazaro and Jack Go as witnesses. 29

The police officers then brought appellant, his wife, son and friends, along with the
seized items, to Camp Bagong Diwa, Bicutan, Taguig, Metro Manila for "verification"
and investigation.

Appellant was detained while the others were eventually released. 30 The arresting
officers jointly prepared an Affidavit of Arrest dated June 15, 1999 31 which, among
 Page 169 of 192

other things, contained an enumeration of the seized items identical to that in the
handwritten Inventory Receipt. And SPO1 Fernandez prepared a Return of Search
Warrant 99-0038 dated June 18, 1999 and a referral paper — "1st Indorsement" 32
— with the same enumeration of seized items.

Also on June 15, 1999, SPO1 Serqueña brought the plastic bag containing the white
crystalline substance (Exhibit "A") and the plastic bag containing the yellowish
substance (Exhibit "B") to the PNP Crime Laboratory 33 together with a request for
laboratory examination. 34 Upon examination, Exhibit "A" was found to contain 204
grams of white crystalline substance containing methamphetamine hydrochloride, a
regulated drug. 35 Exhibit "B," on the other hand, was found negative for any
prohibited and/or regulated drug. 36

Meanwhile, the seized documents, passports, dry seals and stamp pads were
brought to the Bureau of Immigration and Deportation, 37 while the bank books
were forwarded to the corresponding banks for verification. 38

The prosecution presented in evidence the Yamato weighing scale, 39 claimed to

have been recovered by SPO1 Fernandez from the top of appellant’s refrigerator, 40
although it was not among those listed in the handwritten Inventory Receipt,
Affidavit of Arrest or Return of the Search Warrant. 41 Also presented by the
prosecution, as a hostile witness, to corroborate in part the foregoing facts was
Kagawad Lazaro. He claimed, however, that the first page of the handwritten
Inventory Receipt submitted in evidence had been substituted with another,
asserting that he and the other witnesses affixed their signatures on the left-hand
margin of the first page of the handwritten Inventory Receipt which they were asked
to sign whereas that submitted in court did not bear their signatures. 42

Kagawad Lazaro further claimed that the first entry on the first page of the
Inventory Receipt, whereon he and his co-witnesses affixed their signatures,
reading "Chinese Medicine" had been replaced with "undetermined quantity of
white crystalline granules;" 43 that what was recovered from the room of Jack Go by
PO2 Abulencia was Exhibit "B," the plastic bag containing the yellowish powder, and
not Exhibit "A," the plastic bag containing the suspected shabu; and that Exhibit "A"
was not even among the items seized and inventoried. 44

The defense, which adopted the testimony of Kagawad Lazaro, presented appellant,
his son Jack Go, and Kagawad Manalo whose version of the facts of the case
follows:chanrob1es virtual 1aw library

In November 1998, while appellant was walking along Gen. Luna Street, he was
accosted by SPO1 Serqueña and another police officer who accused him of
manufacturing shabu and divested him of money amounting to more than
P5,000.00. He was later released as the policemen could not charge him with
anything. 45

On July 14, 1999 at around 5:30 in the afternoon, Jack Go opened the door of their
house after hearing somebody shout that the car had been bumped. Five armed
policemen then entered the house, one of whom handcuffed him while two went up
to the upper floor of the house and searched for about thirty (30) minutes. 46
 Page 170 of 192

At past 6:00 p.m., as the two kagawads entered the house which was already in
disarray, SPO1 Fernandez formed two groups to conduct the search at the second
floor: (1) that of PO2 Abulencia, with Kagawad Lazaro to serve as witness, and (2)
that of SPO1 Serqueña, with Kagawad Manalo to serve as witness. 47

PO2 Abulencia, together with Kagawad Lazaro, searched the room of Jack Go. SPO1
Serqueña, accompanied by Kagawad Manalo, searched the study room where he
seized documents, passports and assorted papers.

SPO1 Serqueña and Kagawad Manalo then proceeded to the room of appellant
followed by PO2 Abulencia and Kagawad Lazaro. From the room of appellant, the
policemen seized documents, passports, bankbooks and money. 48

After the search, the policemen and barangay kagawads went down with three
boxes containing passports, money and assorted Chinese medicine. 49

When appellant’s wife arrived at around 7:30 p.m., 50 SPO1 Fernandez ordered her
to open the safe ("kaha de yero") inside appellant’s room where the police officers
seized money, passports, bankbooks, Chinese currency and pieces of jewelry. 51

The seized items were placed on appellant’s table on the first floor of the house
where they were inventoried by SPO1 Fernandez 52 during which the barangay
kagawads did not see either Exhibit "A," the plastic bag containing the suspected
shabu, or the weighing scale. 53

After SPO1 Fernandez prepared a two-page Inventory Receipt and Affidavit of

Orderly Search, he asked Jack Go to sign the receipt. While Jack Go initially refused,
he eventually did sign both documents without having read them completely after
he was hit by the policemen. The two barangay kagawads also signed both pages of
the Inventory Receipt as witnesses. 54

When appellant arrived at around 8:30 p.m., he was handcuffed and likewise made
to sign the Inventory Receipt without having been able to read its contents. 55 Jack
Go was prevented from explaining its contents to him. 56

The first page of the handwritten Inventory Receipt presented in court, which
includes an "undetermined quantity of white crystalline granules placed inside a
transparent plastic envelope" as among those seized from the residence of
appellant, does not bear the signatures of appellant, the kagawads and Jack Go,
hence, it is not the same first page of the handwritten Inventory Report on which
they affixed their signatures. 57 In fact the policemen did not leave a copy of this
Inventory Receipt with either appellant or the barangay kagawads. 58

The policemen continued to search appellant’s residence until around 11:00 p.m.
when they brought appellant, Jack Go, Shi Xiu Ong, Samson Go and Peter Co,
together with the seized items, to Bicutan. 59

On the way to Bicutan, PO2 Abulencia, who boarded the same vehicle as appellant,
told the latter that the policemen wanted P10,000,000.00 from him or he would be
 Page 171 of 192

charged with possession of illegal drugs. The amount demanded was later reduced
to P5,000,000.00, then to P2,000,000.00, and finally to P500,000.00. Appellant
refused, however, to heed the policemen’s demands since he did not commit any
crime. 60

Finding for the prosecution, the trial court rendered the appealed Decision on June
7, 2000, the dispositive portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, judgment is hereby ordered rendered finding the accused Benny Go

guilty of the offense charged in the information and sentencing him to suffer the
penalty of reclusion perpetua and a fine of One Million Pesos (P1,000,000.00)

The subject shabu is hereby ordered forfeited in favor of the government and the
Clerk of Court is hereby directed to deliver and/or cause the delivery of the said
shabu to the Dangerous Drugs Board for proper disposition, upon the finality of this
Decision.

SO ORDERED. 61

His Motion for Reconsideration 62 of the decision having been denied by Order of
July 24, 2000, 63 appellant lodged the present appeal. In his Brief, 64 he assigns the
following errors:chanrob1es virtual 1aw library

FIRST ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN ACCORDING THE POLICE OFFICERS THE PRESUMPTION
OF REGULARITY IN THE PERFORMANCE OF DUTY IN IMPLEMENTING THE SEARCH
WARRANT BASED ON THEIR TESTIMONIES, THERE BEING CONVINCING PROOFS TO
THE CONTRARY.

SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN HOLDING THAT 204 GRAMS OF SHABU WAS
RECOVERED FROM THE HOUSE OF ACCUSED-APPELLANT ON JUNE 14, 1999 BASED
ON THE TESTIMONY OF PO1 GERARDO ABULENCIA AND THE SUPPORTING
INVENTORY RECEIPT, BOTH OF WHICH WERE COMPLETELY CONTRADICTED BY THE
PROSECUTION WITNESS BARANGAY KAGAWAD GASPAR LAZARO AS WELL AS BY
DEFENSE WITNESSES.

THIRD ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN RENDERING JUDGMENT FINDING ACCUSED-APPELLANT

GUILTY OF ILLEGAL POSSESSION OF TWO HUNDRED FOUR (204) GRAMS OF SHABU
AS CHARGED IN THE INFORMATION AND SENTENCING HIM TO SUFFER THE (sic)
PENALTY OF RECLUSION PERPETUA AND A FINE OF ONE MILLION PESOS
(P1,000,000.00), INSTEAD OF ACQUITTING ACCUSED-APPELLANT FOR FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 65
(Emphasis supplied)

During the pendency of the appeal, appellant filed a verified Motion for Return of
 Page 172 of 192

Personal Documents, Vehicle and Paraphernalia dated September 10, 2001 66

praying for the release of the following seized properties:chanrob1es virtual 1aw
library

a. several pcs. transparent plastic envelopes

b. one (1) unit Toyota Corolla GLI with PN UTT 658

c. Cash amounting to Fifty Two Thousand Seven Hundred Sixty Pesos (P52,760.00)
in different denominations

d. Twenty-Five Thousand Chinese Yuan (CY25,000.00)

e. Sixty-Seven (67) pieces of Chinese passports

f. Twenty-Eight (28) pieces of assorted bankbooks

g. Two Hundred Eighty Five (285) pieces of assorted checks

h. Fifty-Three (53) pcs. rubber stamp and related paraphernalia

i. One (1) piece "Underwood" typewriter with SN 9861952

j. One (1) piece check writer

k. Two (2) pieces of dry seal

m. Five (5) boxes of assorted documents

n. Three (3) bags of assorted documents 67

This Court is thus called upon to determine (1) whether appellant’s guilt has been
proven beyond reasonable doubt; and (2) whether the items enumerated in
appellant’s Motion for Return of Personal Documents, Vehicle and Paraphernalia,
which items are allegedly not among those particularly described in Search Warrant
No. 99-0038, should be returned to him. These issues shall be resolved in seriatim.

Illegal Possession of 204 Grams of Shabu

As appellant questions the legality of the search of his residence, the actions of the
police officers, as agents of the State, must be carefully considered in light of
appellant’s right against unreasonable searches and seizures guaranteed by
Sections 2 and 3, Article III of the Constitution. 68

What constitutes a reasonable or unreasonable search or seizure is a purely judicial

question determinable from a consideration of the attendant circumstances
including the purpose of the search, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place or thing searched, and
the character of the articles procured. 69
 Page 173 of 192

Since no presumption of regularity may be invoked by an officer to justify an

encroachment of rights secured by the Constitution, 70 courts must cautiously
weigh the evidence before them. As early as in the 1937 case of People v. Veloso,
71 this Court held:chanrob1es virtual 1aw library

A search warrant must conform strictly to the requirements of the constitutional and
statutory provisions under which it is issued. Otherwise, it is void. The proceedings
upon search warrants, it has rightly been held, must be absolutely legal, "for there
is not a description of process known to law, the execution of which is more
distressing to the citizen. Perhaps there is none which excites such intense feeling
in consequence of its humiliating and degrading effect." The warrant will always be
construed strictly without, however, going the full length of requiring technical
accuracy. No presumptions of regularity are to be invoked in aid of the process
when an officer undertakes to justify under it. 72 (Emphasis supplied; Citations
omitted)

Indeed, a strict interpretation of the constitutional, statutory and procedural rules

authorizing search and seizure is required, and strict compliance therewith is
demanded because:chanrob1es virtual 1aw library

. . . Of all the rights of a citizen, few are of greater importance or more essential to
his peace and happiness than the right of personal security, and that involves the
exemption of his private affairs, books, and papers from the inspection and scrutiny
of others. While the power to search and seize is necessary to the public welfare,
still it must be exercised and the law enforced without transgressing the
constitutional rights of citizens, for the enforcement of no statute is of sufficient
importance to justify indifference to the basic principles of government. 73

In arriving at the appealed decision, the trial court placed greater weight on the
testimony of the police officers to whom it accorded the presumption of regularity in
the performance of duty, viz:chanrob1es virtual 1aw library

Coming to the first issue raised, the Court gives credence to the testimonies of the
police officers and accords them the presumption of regularity in the performance
of their duty. The Court has observed the demeanor of the witnesses and finds the
prosecution witnesses more credible than the defense witnesses. . . .

On the other hand, there is no showing that the police officers had ill motive when
they applied for and secured the Search Warrant, raided the house of the accused
and arrested him. Accused is a Chinese national who appeared to have no quarrel
with the arresting police officers and thus the police officers had no reason to
fabricate or trump up charges against him. Hence, there appears to be no reason
the police officers should not be accorded the presumption of regularity in the
performance of their duty. As held by the Supreme Court," (L)aw enforcers are
presumed to have regularly performed their official duty, in the absence of the
evidence to the contrary. . . . We see no valid obstacle to the application of the
ruling in People v. Capulong, (160 SCRA 533 {1988}) that credence is accorded to
the testimonies of the prosecution witnesses who are law enforcers for it is
presumed that they have regularly performed their duty in the absence of
convincing proof to the contrary. The appellant has not shown that the prosecution
 Page 174 of 192

witnesses were motivated by any improper motive other than that of accomplishing
their mission." (People of the Philippines, Plaintiff-appellee, v. Said Sariol Y
Muhamading, Accused-appellant, 174 SCRA 238). 74 (Emphasis supplied)

At the same time, the trial court based its finding that the search of appellant’s
residence was proper and valid on the so-called "Affidavit of Orderly Search."cralaw
virtua1aw library

On the second issue raised, the validity of the Search Warrant is clearly shown by
the Affidavit of Orderly Search signed by the accused and his son Jack Go and his
witnesses Salvador Manalo and Gaspar Lazaro. Such Affidavit of Orderly Search
coupled with the testimonies of the police officers have clearly established the
propriety and validity of the search." 75 (Emphasis supplied)

The rule that a trial court’s findings are accorded the highest degree of respect, it
being in a position to observe the demeanor and manner of testifying of the
witnesses, 76 is not absolute and does not apply when a careful review of the
records and a meticulous evaluation of the evidence reveal vital facts and
circumstances which the trial court overlooked or misapprehended and which if
taken into account would alter the result of the case. 77

In the case at bar, an examination of the testimonies of the police officers brings to
light several irregularities in the manner by which the search of appellant’s
residence was conducted.

By PO2 Abulencia’s own account, in order to enter the premises to be searched, the
police officers deliberately side-swiped appellant’s car which was parked alongside
the road, instead of following the regular "knock and announce" procedure as
outlined in Section 7 (formerly Section 6), Rule 126 of the Rules of Court. 78

Q Mr. Witness, how did you enter the house of Benny Go?

A It’s really heard (sic) to enter the house. Before the door, there was a still (sic)
supporting the door and they will not allow us to enter because they don’t know us.
Then, in order that we could enter the house, we side swept (sinagi) a little the
vehicle that was parked in front of their house. And their neighbor knocked at the
house of the subject and that’s the time that we were able to enter. 79 (Emphasis
supplied)

Since the police officers had not yet notified the occupant of the residence of their
intention and authority to conduct a search and absent a showing that they had any
reasonable cause to believe that prior notice of service of the warrant would
endanger its successful implementation, the deliberate sideswiping of appellant’s
car was unreasonable and unjustified.

Also by PO2 Abulencia’s own account, upon entry to appellant’s residence, he

immediately handcuffed Jack Go to a chair. Justifying his action, PO2 Abulencia
explained that not only was he unfamiliar with Jack Go and unsure of how the latter
would react, but it was a standard operating procedure:chanrob1es virtual 1aw
library
 Page 175 of 192

Pros. Rebagay:chanrob1es virtual 1aw library

Now, what happened on June 14, 1999 at 6:00 p.m. when you were armed with the
Search Warrant issued by Judge Lilia Lopez?

A We entered inside the house of the subject and we were able to see (nadatnan
naming) Jack Go, the son of Benny Go, sir.

x           x          x

Q And what was the reaction of Jack Go, if any?

A We introduced ourselves as police officers and we have a Search Warrant to

conduct a search to the above subject place and also we handcuffed Jack Go to the
chair, sir.

Q Why did you do that, Mr. witness?

A "Hindi naming kakilala iyong mga tao, sir kaya ganoon ang ginawa namin para
hindi kami maano, eh hindi naming kabisado iyong ugali," sir.

Pros. Rebagay:chanrob1es virtual 1aw library

And is that an (sic) standard operating procedure Mr. witness, when you are serving
a search warrant?

A Yes, sir. 80 (Emphasis supplied)

There is no showing, however, of any action of provocation by Jack Go when the

policemen entered appellant’s residence. Considering the degree of intimidation,
alarm and fear produced in one suddenly confronted under similar circumstances,
the forcible restraint of Jack Go all the more was unjustified as was his continued
restraint even after Barangay Kagawads Lazaro and Manalo had arrived to justify
his forcible restraint.

While Search Warrant No. 99-99-0038 authorized the immediate search of

appellant’s residence to seize "METAMPHETAMINE HYDROCHLORIDE (Shabu),
weighing scale, other drug paraphernalias and proceeds of the above crime," the
policemen, by SPO1 Fernandez’s admission, seized numerous other items, which
are clearly unrelated to illegal drugs or illegal drug paraphernalia:chanrob1es virtual
1aw library

Q In the presence of the barangay officials, what are those items which you seized
or your raiding team seized, if any?

A With the permission of the Honorable Court, Your Honor, can I take a look at my
notes.
 Page 176 of 192

Court

Proceed.

Witness

Thank you very much.

A Seized or confiscated form the said residence are: (1) undetermined quantity of
white crystalline granules placed inside the transparent plastic envelope, (2)
undetermined quantity of yellowish powder placed inside the transparent plastic
envelope; (3) several pieces of transparent plastic envelopes; (4) one unit Toyota
Corolla GLI with Plate No. UPT-658; (5) P52,760.00 in different denominations; (6)
25,000.00 Chinese Yuan; (7) 67 pieces of Chinese passports; (8) 28 pieces of
assorted bank book; (9) 285 pieces of assorted checks; (10) 53 pieces rubber
stamps and related paraphernalia; (11) one piece Underwood typewriter with Serial
No. 9861952; (12) one piece checkwriter; (13) two pieces dry seals; (14) 5 boxes of
assorted documents; (15) 3 bags of assorted documents; and I will add another one
Your Honor, a weighing scale. 81

While an inventory of the seized items was prepared, also by SPO1 Fernandez’s
admission, it did not contain a detailed list of all the items seized, particularly the
voluminous documents:chanrob1es virtual 1aw library

Q Why is it that you did not make a detailed inventory or receipt of the passports?
Why did you not give any detailed receipt or inventory on the passports.

A There were lots of documents during the time on the table, voluminous
documents that I was not able to make a listing of the said passports.

Q And it was only this October 8, 1999 or four months after that you made a
detailed receipt of those seized items, am I right?

A Yes, sir.

x           x          x

Q Is it your standard operating procedure that when there are voluminous seized
items you will not (sic) longer made (sic) an inventory report, am I right?

A It’s not an SOP.

Q Why did you not make a detailed inventory or receipt?

A As I’ve said earlier, it’s voluminous. 82" (Emphasis supplied)

In Asian Surety And Insurance Co., Inc. v. Herrera, 83 this Court stressed the
necessity for a detailed receipt of the items seized in order to adequately safeguard
the constitutional rights of the person searched:chanrob1es virtual 1aw library
 Page 177 of 192

Moreover, as contended by petitioner, respondents in like manner transgressed

Section 10 of Rule 126 of the Rules for failure to give a detailed receipt of the things
seized. Going over the receipts (Annexes "B", "B-1", "B-2", "B-3" and "B-4" of the
Petition) issued, We found the following: one bordereau of reinsurance, 8 fire
registers, 1 marine register, four annual statements, folders described only as
Bundle gm-1 red folders; bundle 17-22 big carton folders; folders of various sizes,
etc., without stating therein the nature and kind of documents contained in the
folders of which there were about a thousand of them that were seized. In the
seizure of two carloads of documents and other papers, the possibility that the
respondents took away private papers of the petitioner, in violation of his
constitutional rights, is not remote, for the NBI agents virtually had a field day with
the broad and unlimited search warrant issued by respondent Judge as their
passport. 84 (Emphasis and Italics supplied)

After the inventory had been prepared, PO2 Abulencia presented it to appellant for
his signature 85 without any showing that appellant was informed of his right not to
sign such receipt and to the assistance of counsel. Neither was he warned that the
same could be used as evidence against him. Faced with similar circumstances, this
Court in People v. Gesmundo 86 stated:chanrob1es virtual 1aw library

It is true that the police were able to get an admission from the accused-appellant
that marijuana was found in her possession but said admission embodied in a
document entitled "PAGPATUNAY" previously prepared by the police, is inadmissible
in evidence against the accused-appellant for having been obtained in violation of
her rights as a person under custodial investigation for the commission of an
offense. The records show that the accused-appellant was not informed of her right
not to sign the document; neither was she informed of her right to the assistance of
counsel and the fact that the document may be used as evidence against her." 87
(Emphasis and Italics supplied, Citations omitted)

In People v. Policarpio, 88 this Court held that such practice of inducing suspects to
sign receipts for property allegedly confiscated from their possession is unusual and
violative of the constitutional right to remain silent, viz:chanrob1es virtual 1aw
library

What the records show is that appellant was informed of his constitutional right to
be silent and that he may refuse to give a statement which may be used against
him, that is why he refused to give a written statement unless it is made in the
presence of his lawyer as shown by the paper he signed to this effect. However, he
was made to acknowledge that the six (6) small plastic bags of dried marijuana
leaves were confiscated from him by signing a receipt and to sign a receipt for the
P20.00 bill as purchase price of the dried marijuana leaves he sold to Pat. Mangila.

Obviously the appellant was the victim of a clever ruse to make him sign these
alleged receipts which in effect are extra-judicial confessions of the commission of
the offense. Indeed it is unusual for appellant to be made to sign receipts for what
were taken from him. It is the police officers who confiscated the same who should
have signed such receipts. No doubt this is a violation of the constitutional right of
appellant to remain silent whereby he was made to admit the commission of the
 Page 178 of 192

offense without informing him of his right. Such a confession obtained in violation of
the Constitution is inadmissible in evidence. 89 (Emphasis supplied)

The Inventory Receipt signed by appellant is thus not only inadmissible for being
violative of appellant’s custodial right to remain silent; it is also an indicium of the
irregularity in the manner by which the raiding team conducted the search of
appellant’s residence.

At the same time, it is unclear whether appellant was furnished a copy of the
Inventory Receipt as mandated by Sec. 11, Rule 126 of the Rules of Court. 90

Q Now, while you were making an inventory of that, am I right, that you did not give
a copy to Benny Go, am I right?

A I gave them a xerox copy. I remember I gave them a xerox copy.

Q Is there any proof that they received an inventory report?

A Nothing, sir. 91

Moreover, an examination of Exhibit "Z," the Return of Search Warrant No. 99-0038
submitted by SPO1 Fernandez to Br. 109 of the RTC of Pasay City was not verified
under oath, 92 as required by Section 12(a) (formerly Section 12), Rule 126 of the
Rules of Court. 93

The delivery of the items seized to the court which issued the warrant together with
a true and accurate inventory thereof, duly verified under oath, is mandatory in
order to preclude the substitution of said items by interested parties. 94 Under
Section 12 of Rule 126, 95 the judge which issued the search warrant is mandated
to ensure compliance with the requirements for (1) the issuance of a detailed
receipt for the property received, (2) delivery of the seized property to the court,
together with (3) a verified true inventory of the items seized. Any violation of the
foregoing constitutes contempt of court.

Given the foregoing deviations from the normal and prescribed manner of
conducting a search, as disclosed by the members of the raiding team themselves,
the reliance by the trial court on the disputable presumption that the police officers
regularly performed their official duty was evidently misplaced.

The "Affidavit of Orderly Search" is not of any help in indicating the regularity of the
search. Not having been executed under oath, it is not actually an affidavit, but a
pre-prepared form which the raiding team brought with them. It was filled up after
the search by team leader SPO1 Fernandez who then instructed appellant to sign it
as he did instruct Jack Go, Kagawad Manalo and Kagawad Lazaro to sign as
witnesses.

More importantly, since the "Affidavit of Orderly Search" purports to have been
executed by appellant, the same cannot establish the propriety and validity of the
search of his residence for he was admittedly not present when the search took
place, he having arrived only when it was "almost through."cralaw virtua1aw library
 Page 179 of 192

Q And while your officers and the barangay kagawad were searching the house Mr.
Benny Go is not yet present in that house, am I right?

A Yes, sir.

Q And you made to sign Benny Go in the inventory receipt when the search was
already over, am I right?

A He was already present when I was making the inventory. He arrived at around
9:30.

Q Yes, and the search was already finished, am I right?

A Almost through. 96

In fine, since appellant did not witness the search of his residence, his alleged
"Affidavit of Orderly Search," prepared without the aid of counsel and by the very
police officers who searched his residence and eventually arrested him, provides no
proof of the regularity and propriety of the search in question.

On the contrary, from the account of the police officers, their search of appellant’s
residence failed to comply with the mandatory provisions of Section 8 (formerly
Section 7), Rule 126 of the Rules of Court, viz:chanrob1es virtual 1aw library

SEC. 8. Search of house, room, or premises, to be made in presence of two

witnesses. — No search of a house, room, or any other premise shall be made
except in the presence of the lawful occupant thereof or any member of his family
or in the absence of the latter, two witnesses of sufficient age and discretion
residing in the same locality. (Emphasis supplied)

As pointed out earlier, the members of the raiding team categorically admitted that
the search of the upper floor, which allegedly resulted in the recovery of the plastic
bag containing the shabu, did not take place in the presence of either the lawful
occupant of the premises, i.e. appellant (who was out), or his son Jack Go (who was
handcuffed to a chair on the ground floor). Such a procedure, whereby the
witnesses prescribed by law are prevented from actually observing and monitoring
the search of the premises, violates both the spirit and letter of the law:chanrob1es
virtual 1aw library

Furthermore, the claim of the accused-appellant that the marijuana was planted is
strengthened by the manner in which the search was conducted by the police
authorities. The accused-appellant was seated at the sala together with Sgt. Yte
when they heard someone in the kitchen uttered "ito na." Apparently, the search of
the accused-appellant’s house was conducted in violation of Section 7, Rule 126 of
the Rules of Court which specifically provides that no search of a house, room or
any other premise shall be made except in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, in the presence
of two (2) witnesses of sufficient age and discretion residing in the same locality.
This requirement is mandatory to ensure regularity in the execution of the search
 Page 180 of 192

warrant. Violation of said rule is in fact punishable under Article 130 of the Revised
Penal Code.

As we have ruled in Eduardo Quintero v. The National Bureau of Investigation, Et. Al.
a procedure, wherein members of a raiding party can roam around the raided
premises unaccompanied by any witness, as the only witnesses available as
prescribed by law are made to witness a search conducted by the other members of
the raiding party in another part of the house, is violative of both the spirit and
letter of the law. 97 (Emphasis and Italics supplied)

That the raiding party summoned two barangay kagawads to witness the search at
the second floor is of no moment. The Rules of Court clearly and explicitly
establishes a hierarchy among the witnesses in whose presence the search of the
premises must be conducted. Thus, Section 8, Rule 126 provides that the search
should be witnessed by "two witnesses of sufficient age and discretion residing in
the same locality" only in the absence of either the lawful occupant of the premises
or any member of his family. Thus, the search of appellant’s residence clearly
should have been witnessed by his son Jack Go who was present at the time. The
police officers were without discretion to substitute their choice of witnesses for
those prescribed by the law.

The claim of SPO1 Fernandez and PO2 Abulencia that Jack Go voluntarily waived his
right to witness the search, allegedly because there would be no one left in the sala
and anyway barangay officials were present, cannot be accepted. To be valid, a
waiver must be made voluntarily, knowingly and intelligently. 98 Futhermore, the
presumption is always against the waiver of a constitutionally protected right. 99

While Jack Go was present from the time the raiding team entered the premises
until after the search was completed, he was, however, handcuffed to a chair in the
sala. 100 All alone and confronted by five police officers who had deprived him of
his liberty, he cannot thus be considered to have "voluntarily, knowingly and
intelligently" waived his right to witness the search of the house. "Consent" given
under such intimidating, coercive circumstances is no consent within the purview of
the constitutional guaranty. 101

The search conducted by the police officers of appellant’s residence is essentially

no different from that in People v. Del Rosario 102 where this Court
observed:chanrob1es virtual 1aw library

We thus entertain serious doubts that the shabu contained in a small canister was
actually seized or confiscated at the residence of Accused-Appellant. In
consequence, the manner the police officers conducted the subsequent and much-
delayed search is highly irregular. Upon barging into the residence of accused-
appellant, the police officers found him lying down and they immediately arrested
and detained him in the living room while they searched the other parts of the
house. Although they fetched two persons to witness the search, the witnesses
were called in only after the policemen had already entered accused-appellant’s
residence (pp. 22–23, tsn, December 11, 1991), and, therefore, the policemen had
more than ample time to plant the shabu. Corollary to the Constitutional precept
that, in all criminal prosecutions, the accused shall be presumed innocent until the
 Page 181 of 192

contrary is proved (Sec. 14 (2), Article III, Constitution of the Republic of the
Philippines) is the rule that in order to convict an accused the circumstances of the
case must exclude all and each and every hypothesis consistent with his innocence
(People v. Tanchoco, 76 Phil. 463 [1946]; People v. Constante, 12 SCRA 653 [1964];
People v. Jara, 144 SCRA 516 [1986]). The facts of the case do not rule out the
hypothesis that accused-appellant is innocent. 103 (Emphasis supplied)

The raiding team’s departure from the procedure mandated by Section 8, Rule 126
of the Rules of Court, taken together with the numerous other irregularities
attending the search of appellant’s residence, tainted the search with the vice of
unreasonableness, thus compelling this Court to apply the exclusionary rule and
declare the seized articles inadmissible in evidence. This must necessarily be so
since it is this Court’s solemn duty to be ever watchful for the constitutional rights
of the people, and against any stealthy encroachments thereon. 104 In the oft-
quoted language of Judge Learned Hand:chanrob1es virtual 1aw library

As we understand it, the reason for the exclusion of evidence competent as such,
which has been unlawfully acquired, is that exclusion is the only practical way of
enforcing the constitutional privilege. In earlier times the action of trespass against
the offending official may have been protection enough; but that is true no longer.
Only in case the prosecution which itself controls the seizing officials, knows that it
cannot profit by their wrong, will that wrong be repressed. 105 (Emphasis supplied)

In all prosecutions for violation of The Dangerous Drugs Act, the existence of the
dangerous drug is a condition sine qua non for conviction since the dangerous drug
is the very corpus delicti of the crime. 106 With the exclusion of Exhibit "A," the
plastic bag containing the shabu allegedly recovered from appellant’s residence by
the raiding team, the decision of the trial court must necessarily be reversed and
appellant acquitted.

What is more, a thorough evaluation of the testimonies and evidence given before
the trial court fails to provide the moral certainty necessary to sustain the
conviction of Appellant.

In particular, Barangay Kagawads Lazaro and Manalo, the two witnesses to the
search chosen by the police officers in substitution of Jack Go, both categorically
testified under oath that no shabu was recovered from appellant’s residence by the
police. Thus, Kagawad Lazaro testified that the plastic bag containing white
crystalline granules, later found positive for shabu, was not recovered from the
room of Jack Go:chanrob1es virtual 1aw library

Atty. Reyes:chanrob1es virtual 1aw library

You were shown a while ago by the prosecution of (sic) an Inventory Receipt
allegedly prepared by Office Fernandez which includes the list of the items seized
from the premises of Benny Go, now, you said that there’s no white crystalline
granules included in that list which you signed during the inventory?

A Yes, sir.
 Page 182 of 192

Q Can you recall what was the first item included in that list which you signed in the
first page?

A Chinese medicine, sir.

Q Now, you also testified that you were with Officer Abulencia when you conducted
the search inside the room of Jack Go, now, did you recover anything from the room
of Jack Go?

A PO2 Abulencia recovered one small plastic in the drawer of Jack Go and
Naphthalene balls, sir.

x           x          x

Atty. Reyes:chanrob1es virtual 1aw library

If that small plastic will be shown to you, will you be able to identify it?

A Yes, sir.

Atty. Reyes:chanrob1es virtual 1aw library

I have here a plastic which contained yellowish powder. Could you go over this and
tell us if this was the one recovered from the room of Jack Go?

A This is the one, sir.

Q I have here another plastic containing white crystalline substance marked by the
prosecution as Exh. "A" Will you tell us if this is also recovered from the room of Jack
Go?

A No, this was not recovered from the room of Jack Go, sir.

Q During the preparation of the inventory of the seized items, was this also
included?

A I did not see that, sir. 107 (Emphasis supplied)

Similarly, Kagawad Manalo testified that neither the plastic bag of shabu nor the
weighing scale was among the seized items inventoried by the raiding
team:chanrob1es virtual 1aw library

Q You said that you were present during the time when SPO1 Fernandez was
preparing the inventory of all the items taken from the premises of Benny Go, can
you recall what are these items?

A Yes sir, assorted Chinese medicines, assorted documents, papers, passports,

stamp pad, bankbooks and checks and it was placed in five (5) boxes and three (3)
ladies bag.
 Page 183 of 192

Q What about a weighing scale? Is there a weighing scale, Mr. Witness?

A I did not see any weighing scale, sir.

Q How about drugs or shabu contained in a plastic pack?

A I did not see any also. 108 (Emphasis supplied)

On rebuttal, SPO1 Fernandez alleged that the two barangay kagawads were lying
when they claimed that no shabu was recovered from appellant’s residence, and
implied that they had been asked to falsify their testimonies in court:chanrob1es
virtual 1aw library

Pros. Rebagay:chanrob1es virtual 1aw library

Mr. witness, when Salvador Manalo testified before this Honorable Court when he
was confronted with Exh. "B" which is the inventory receipt the said witness denied
that the first page of Exh. "B" was genuine on the fact that his signature and
likewise [that of] his co-colleague did not appear on the first page of the said
inventory receipt, what can you say to that statement made by Salvador Manalo?

A Well, it has not been our practice to let the witness sign on the first page of the 2-
page inventory receipt and with regards to the said inventory receipt that he signed
on June 4, it is the same inventory receipt that I prepared, sir.

x           x          x

Q Likewise, Mr. witness, the said witness Salvador Manalo also denied that the
shabu which is the subject of this case has never been recovered by them, what can
you say to that?

A Well, it’s a lie, sir.

Q Why do you say that?

A Because when the illegal drug was found by PO2 Abulencia, he was accompanied
by Gaspar Lazaro at that time. Then he called my attention and he also called the
attention of SPO2 Serqueña as well as the attention of Mr. Salvador Manalo. When I
went upstairs, they were already inside the said room so the five of us saw the
illegal drugs, sir.

x           x          x

Pros. Rebagay:chanrob1es virtual 1aw library

Mr. witness, when Salvador Manalo testified here on cross-examination, he

mentioned that after the search of the house of Benny Go, a certain investigator, a
 Page 184 of 192

policeman pretended that he is making a follow-up with respect to the search made
by you and your team, will you please tell us if immediately after the incident or
after the investigation conducted by the City Prosecutor’s Office when you had an
occasion to meet Salvador Manalo after that?

A Yes, sir.

Q And what happened to that meeting with Salvador Manalo after the preliminary
investigation?

Witness:chanrob1es virtual 1aw library

Because during the preliminary investigation, we were surprised why our witness
has taken side, it is on the side of the accused Benny Go so I decided to pay him a
visit that day after that confrontation on June 23 and I asked him what happened,
"tinanong ko siya kung ano ang nangyari bakit mukhang nakampi na siya roon sa
kabila." Ang sagot niya sa akin "ang sabi sa amin ni Atty. Galing kakausapin ka rin
niya." That is the exact words.

Atty. Reyes:chanrob1es virtual 1aw library

We will object to that for being hearsay. May we move that the latter portion be
stricken off the record.

Court:chanrob1es virtual 1aw library

Let it remain

Pros. Rebagay:chanrob1es virtual 1aw library

And will you please tell us exactly when this incident occur (sic), Mr. witness?

A That was after June 23, sir.

Q Where?

A At his store in A. Linao Street, Paco, sir.

Q And what was your response after you heard that answer from Salvador Manalo, if
any, Mr. witness?

Witness:jgc:chanrobles.com.ph

"Siyempre nagtaka ako, bakit ganoon ibig sabihin implied baka nagka-aregluhan na,
iyan ang iniisip ko," sir 109 (Emphasis supplied)

Regrettably, no further evidence, aside from the foregoing allegations and

suspicions of SPO1 Fernandez, was ever presented to substantiate the claim that
the two kagawads had deliberately falsified their testimonies. On the contrary, it
appears that the police officers did not actively pursue their complaint for
 Page 185 of 192

obstruction of justice against the two kagawads with the Department of Justice.
Moreover, to completely discount the testimonies of kagawads Lazaro and Manalo
would be tantamount to having no witnesses to the search of appellant’s residence
at all except the police officers themselves, a situation clearly contrary to the tenor
and spirit of Section 8 of Rule 126.

The prosecution’s attempt to introduce the weighing scale, supposedly seized

during the search, only casts more doubt on its case. Said weighing scale was
conspicuously absent from the enumeration of seized items in the handwritten
Inventory Receipt, the Return of the Search Warrant and the Affidavit of Arrest
prepared by the police officers. SPO1 Fernandez’s claim that the omission was an
honest mistake, to wit:chanrob1es virtual 1aw library

Pros. Rebagay

Q Mr. Witness, a while ago you added another item which was not included in the
inventory list and this was the weighing scale. Please tell us, why is it only now that
you are adding it to the list of those items that you seized?

A Well, with all honesty Your Honor, I cannot offer any alibi except to say that I
committed an honest mistake when I did not include that weighing scale in the
inventory receipts. 110

does not inspire credence. Neither does SPO1 Serqueña’s explanation:chanrob1es

virtual 1aw library

Q What was the search warrant all about? It commands you to search and seize
what items?

A Regarding drugs, drug paraphernalias and proceeds of the crime, sir.

Atty. Reyes:chanrob1es virtual 1aw library

What else?

A Weighing scale, sir.

Q Weighing scale is included in the search warrant. So the warrant specifically

commands you to seize drugs, drug paraphernalias and weighing scale?

A Yes, sir.

Q And you read this Affidavit of Arrest before you signed this. Did you notice that
the weighing scale is not included here?

A Yes, sir. Now I noticed.

Q No, during the time that you signed this?

A No, sir.
 Page 186 of 192

Q You did not notice that?

A No, sir.

Q As well as the time when Officer Fernandez was preparing this Inventory, you did
not call his attention that there are some items missing in that Inventory?

A I did not call his attention. Honestly speaking . . . (unfinished)

x           x          x

A Honestly speaking, we confiscated so many evidence including papers, boxes,

voluminous quantity of evidence recovered and only one officer is conducting the
Inventory. We cannot conduct Inventory two at a time or three at a time, only one.
Because maybe, you see, he’s only one. Maybe he did not list it because of that so
many evidence confiscated.

Atty. Reyes:chanrob1es virtual 1aw library

But the weighing scale is not a small item, is that correct? It’s a big item?

A Yes, sir.

Q Do you want to tell us that you missed that item?

A I was not the one who missed it, sir.

Q How about your Affidavit of Arrest?

A Officer Fernandez prepared that Affidavit, sir.

Q So you are not the one who prepared this? You merely signed it?

A I signed it in their presence, sir. 111

The foregoing explanations are improbable and far from persuasive. Considering
that a weighing scale was among the items particularly described in Search Warrant
No. 99-0038, it would be expected that the police officers would be actively
searching for it and, if found, they would take care to include it in the inventory and
the return of the search warrant. But while numerous seals, stamps, checks and
documents not described in the search warrant were seized and carefully
inventoried by the raiding team, none of the five police officers bothered to point
out that the weighing scale had not been included in the inventory.

The implausibility of the story put forward by the police officers leads to no other
conclusion than that the weighing scale was introduced as an afterthought in order
to bolster the case against Appellant.
 Page 187 of 192

With the persistence of nagging doubts surrounding the alleged discovery and
seizure of the shabu, it is evident that the prosecution has failed to discharge its
burden of proof and overcome the constitutional presumption of innocence. It is
thus not only the accused’s right to be freed; it is, even more, this Court’s
constitutional duty to acquit him. 112 Apropos is the ruling in People v. Aminnudin,
113 viz:chanrob1es virtual 1aw library

The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its
protection that innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the
right of the individual in the name of order. Order is too high a price for the loss of
liberty. As Justice Holmes, again, said "I think it is less evil that some criminals
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself. 114

Return of Seized Property Not Described in the Search Warrant

Turning now to the Motion for Return of Personal Documents, Vehicle and
Paraphernalia, the general rule is that only the personal properties particularly
described in the search warrant may be seized by the authorities. Thus, in
Tambasen v. People, 115 this Court held:chanrob1es virtual 1aw library

Moreover, by their seizure of articles not described in the search warrant, the police
acted beyond the parameters of their authority under the search warrant. Section 2,
Article III of the 1987 Constitution requires that a search warrant should particularly
describe the things to be seized. "The evident purpose and intent of the
requirement is to limit the things to be seized to those, and only those, particularly
described in the search warrant — to leave the officers of the law with no discretion
regarding what articles they should seize, to the end that unreasonable searches
and seizures may not be made and that abuses may not be committed" (Corro v.
Lising, 137 SCRA 541, 547 [1985]; Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA 823
[1971]; Uy Kheytin v. Villareal, 42 Phil. 886 [1920]). 116 (Emphasis supplied)

There are, however, several well-recognized exceptions to the foregoing rule. Thus,
evidence obtained through a warrantless search and seizure may be admissible
under the following circumstances: (1) search incident to a lawful arrest; (2) search
of a moving motor vehicle; (3) search in violation of customs laws; (4) seizure of
evidence in plain view; and (5) when the accused himself waives his right against
unreasonable searches and seizures. 117

To be valid, therefore, the seizure of the items enumerated in appellant’s Motion for
Return of Personal Documents, Vehicle and Paraphernalia must fall within the ambit
 Page 188 of 192

of Search Warrant No. 99-0038 or under any of the foregoing recognized exceptions
to the search warrant requirement.

In this regard, the raiding team sought to justify the seizure of the car, the Fifty Two
Thousand Seven Hundred Sixty Pesos (P52,760.00) in different denominations, and
the Twenty Five Thousand Chinese Yuan (C¥25,000.00) as either "proceeds of the
offense" or "means of committing an offense" within the purview of the warrant.
Thus PO2 Abulencia testified:chanrob1es virtual 1aw library

Q And how about the money, Mr. witness? Why did you confiscate the money?

A It’s considered as proceed of the crime, sir.

Q How about the vehicle, Mr. witness? Why did you took (sic) custody of the vehicle
when it was not listed in the search warrant?

A This is part and parcel of the evidence, sir. Because it’s being used in transporting
drugs, sir. 118

Similarly, with respect to the car, SPO1 Fernandez stated:chanrob1es virtual 1aw
library

Q This vehicle, Toyota Corolla GLI with Plate No. PNU-TT-658, where was it during
the time that you . . . (unfinished)

A It was parked in front of the house of Benny Go.

Q And you seized it?

A Yes, sir.

Q Why?

A Because during the surveillance operation we saw some known pusher riding in
that car?

Q Who are these drug pushers?

A One of those guys is Mr. Peter Co, also a subject of our investigation.

Q Which (sic) you released after the arrest, after he was invited for investigation in
your office on June 14, 1999?

A Yes, sir. 119

The foregoing rationalizations are unacceptable. Admittedly, neither the money nor
the car was particularly described in the search warrant. In seizing the said items
then, the police officers were exercising their own discretion and determining for
themselves which items in appellant’s residence they believed were "proceeds of
the crime" or "means of committing the offense." This is absolutely impermissible. It
 Page 189 of 192

bears reiterating that the purpose of the constitutional requirement that the articles
to be seized be particularly described in the warrant is to limit the things to be
seized to those, and only those, particularly described in the search warrant — to
leave the officers of the law with no discretion regarding what articles they should
seize. A search warrant is not a sweeping authority empowering a raiding party to
undertake a fishing expedition to seize and confiscate any and all kinds of evidence
or articles relating to a crime. 120

At the same time, the raiding team characterized the seizure of the assorted
documents, passports, bankbooks, checks, check writer, typewriter, dry seals and
stamp pads as "seizure of evidence in plain view." 121

Under the plain view doctrine, objects falling in the "plain view" of an officer who
has a right to be in the position to have that view are subject to seizure and may be
presented as evidence. 122 This Court had the opportunity to summarize the rules
governing plain view searches in the recent case of People v. Doria, supra, to
wit:chanrob1es virtual 1aw library

The "plain view" doctrine applies when the following requisites concur: (a) the law
enforcement officer in search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent
to the officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure. The law enforcement officer must lawfully make an
initial intrusion or properly be in a position from which he can particularly view the
area. In the course of such lawful intrusion, he came inadvertently across a piece of
evidence incriminating the accused. The object must be open to eye and hand and
its discovery inadvertent. (Emphasis supplied; Citations omitted) 123

Measured against the foregoing standards, it is readily apparent that the seizure of
the passports, bankbooks, checks, typewriter, check writer, dry seals and stamp
pads and other assorted documents does not fall within the "plain view" exception.
The assertions of the police officers that said objects were "inadvertently" seized
within their "plain view" are mere legal conclusions which are not supported by any
clear narration of the factual circumstances leading to their discovery. PO2
Abulencia could not even accurately describe how the raiding team came across
these items:chanrob1es virtual 1aw library

Q This Box "A" marked as Exhibit "G", in what part of the room did you recover this?

A We recovered all the evidence within our plain view, sir. The evidence were
scattered in his house. I cannot remember whether Box "A" or Box "B", but all the
evidence were within our plain view that’s why we confiscated them, sir.

Q What do you mean by plain view?

A "Nakikita namin, sir. Yung kitang-kita namin."cralaw virtua1aw library

Q Where in the premises of Benny Go did you see all these documents?
 Page 190 of 192

A Ground floor and upstairs but mostly in the ground floor, on the table and on the
floor, sir.

Atty. Reyes:chanrob1es virtual 1aw library

This Box "A" marked as Exh. "G" contains what documents again?

A Can I see my notes, sir?

Atty. Reyes:chanrob1es virtual 1aw library

Go ahead.

A Box "A" contains different bundle of pieces of document, NBI and BI clearances,
Application of Chinese National, different papers, sir.

Q Can you remember where in particular did you recover these documents?

A I cannot remember, sir.

Q All of these documents were recovered primarily on the ground floor and on the
second floor?

A Yes, sir.

Q Where in particular at the second floor, there are three to four rooms there?

A "Sir, nandoon sa mesa lahat iyan eh don sa taas rin may mesa din doon at saka
doon naming nakuha ang ibang mga dokumento."cralaw virtua1aw library

Q Is (sic) that room belongs (sic) to Jack Go?

A I don’t know, sir, but all these (sic) evidence were recovered from the house of
Benny Go. 124

SPO1 Fernandez’s account of how he came across the dry seals, rubber stamps and
papers is just as opaque:chanrob1es virtual 1aw library

Q For how long have you been inside the house of Benny Go when you noticed
these dry seals?

A I think more than an hour, I don’t exactly remember the time.

Q But during the time you have not yet noticed the documents which you brought
to this Court, what call (sic) your attention was these dry seals first?

A Well, actually the dry seals and the rubber stamps were all placed atop the table
and as well as the documents because the box where the documents were placed
are half opened. They are opened actually that’s why I saw them.
 Page 191 of 192

Q So, you first saw the rubber stamps and the dry seals, is that correct? Because
they are atop the table?

A Yes, sir.

Q And then later on you also saw the documents?

A Yes, sir it’s beside the table.

Q Contained in a box half opened?

A Yes, sir.

Q Which did you touch first, the rubber stamps, the dry seals or the documents?

A I did not touch anything, I only inventoried that when the searching team were
through with what they are doing. Now, all the evidence were placed atop the
dining table, located also at the sala of the house or at the dining area. Then, that’s
when I asked some of my co-members to place all those document and the other
confiscated items atop the table also. 125

The foregoing testimonies are clearly evasive and do not establish how the police
officers became aware of the seized items which were allegedly within their "plain
view."cralaw virtua1aw library

Finally, it appears from the testimony of SPO1 Fernandez that the supposed illegal
character of the items claimed to have been seized within the "plain view" of the
policemen was not readily and immediately apparent. Rather, the suspicions of the
policemen appear to have been aroused by the presence of the numerous passports
and immigration documents which they discovered in the course of their search.
After they confirmed that appellant was not operating a travel agency, they
concluded that his possession of said documents and passports was illegal even
though they could not identify the alleged law supposedly violated. 126

To be sure, the policemen also filed a complaint against appellant for alleged
possession of instruments or implements intended for the commission of
falsification under Paragraph 2 of Article 176 of the Revised Penal Code on the basis
of dry seals and rubber stamps also found in appellant’s residence. 127

However, the illegal character of said dry seals and stamp pads cannot be said to
have been immediately apparent. For SPO1 Fernandez had to first make an
impression of the dry seal on paper before he could determine that it purported to
be the seal of the Bureau of Immigration and Deportation. 128 The counterfeit
nature of the seals and stamps was in fact not established until after they had been
turned over to the Chinese embassy and Bureau of Immigration and Deportation for
verification. It is, therefore, incredible that SPO1 Fernandez could make such
determination from a "plain view" of the items from his vantage point in the sala.

In sum, the circumstances attendant to the case at bar do not warrant the
application of the "plain view" doctrine to justify the seizure and retention of the
 Page 192 of 192

questioned seized items. The things belonging to appellant not specifically

mentioned in the warrants, like those not particularly described, must thus be
ordered returned to him. 129

Be that as it may, considering that the two (2) dry seals and eight (8) of the rubber
stamps have been certified to be counterfeit by the Bureau of Immigration and
Deportation, 130 they may not be returned and are hereby declared confiscated in
favor of the State to be disposed of according to law. 131 Moreover, the various
bankbooks and passports not belonging to appellant may not be ordered returned in
the instant proceedings. The legality of the seizure can be contested only by the
party whose rights have been impaired thereby, and the objection to an unlawful
search and seizure is purely personal and cannot be availed of by third parties. 132

WHEREFORE, the decision of the Regional Trial Court of Manila, Branch 41,
convicting appellant Benny Go of violation of Section 16, Article III in relation to
Section 2 (e-2) Article I of Republic Act No. 6425, as amended, is REVERSED and
SET ASIDE.

Appellant Benny Go is ACQUITTED of the crime charged and is hereby ordered

immediately RELEASED from confinement, unless he is lawfully held in custody for
another cause.

The Director of the Bureau of Corrections is ORDERED to forthwith IMPLEMENT this

Decision and to INFORM this Court, within ten (10) days from receipt hereof, of the
date appellants was actually released from confinement.

Appellant’s Motion For Return of Personal Documents, Vehicle and Paraphernalia is

GRANTED IN PART, and the trial court is hereby ordered to return to him those items
seized from the subject premises which belong to him as listed in said Motion.

The subject shabu is ORDERED forfeited in favor of the State and the trial court is
hereby directed to deliver and/or cause its delivery to the Dangerous Drugs Board
for proper disposition.chanrob1es virtua1 1aw 1ibrary

The two (2) dry seals and eight (8) of the rubber stamps certified to be counterfeit
by the Bureau of Immigration and Deportation are likewise ORDERED forfeited in
favor of the State for proper disposition.

SO ORDERED.

Panganiban, Sandoval-Gutierrez and Corona, JJ., concur.

Puno, J., is on leave.