Law Journal New Copy For Website

SILLIMAN
LAW JOURNAL
VOLUME 7
DECEMBER 2014
NUMBER 1
SILLIMAN LAW JOURNAL
VOLUME 7 | NUMBER 1 | DECEMBER 2014
UNIVERSITY EXECUTIVE OFFICERS

Ben S. Malayang III, Ph.D.
President
Betsy Joy B. Tan, Ph.D.

Vice President for Academic Affairs
Cleonico Y. Fontelo, CPA, MMPM

Vice President for Finance and Administration
Jane Annette L. Belarmino, CPA, MBA

Vice President for Development
Elmer L. Saa, MDiv

Pastoral Team Coordinator
iii
SILLIMAN UNIVERSITY COLLEGE OF LAW

M. Mikhail Lee L. Maxino, LL.B., LL.M
Dean, Silliman University College of Law
Concurrent Director, Dr. Jovito Salonga Center for Law and Development
Myles Nicholas G. Bejar, LL.B., MA

Office of the General Counsel
Atty. Jose Riodil D. Montebon

Faculty Coordinator, Legal Publications
Atty. Karissa Faye R. Tolentino

Director, Office of the City Legal Aid Services (OCLAS), Dr. Jovito Salonga Center for Law and
Development
Atty. Elizabeth Karla P. Aguilan

Deputy Director, Dr. Jovito Salonga Center for Law and Development
Mrs. Belen B. Kinilitan

Secretary, College of Law
iv
COLLEGE OF LAW FACULTY

Atty. Joshua Francisco J. Ablong
BS Information Technology (Silliman University);
LL.B. (Silliman University)
Myrish C. Antonio, LL.B., LL.M.

(on leave)
AB Political Science (Silliman University);
LL.B. (Silliman University);
LL.M. (George Washington University)
Atty. Karissa Faye R. Tolentino

BBA Management (Silliman University);
J.D. (Silliman University);
Atty. Golda Benjamin

BS Psychology (UP Diliman);
J.D. (UP College of Law);
LL.M (Stockholm University, Sweden)
Atty. Elizabeth Karla P. Aguilan

Atty. Manuel R. Arbon

LL.M. (University of Miami)
Atty. Myles Nicholas G. Bejar

M.A.-Internal Relations (The American University)
Atty. Sheila Lynn C. Besario

(on leave)
BS Chemistry (Silliman University);
LL.M. (Arizona State University)
Pros. Angela Charina M. Cortes

BBA Accounting (Silliman University);
LL.B. (San Beda College of Law)
Atty. Norberto L. Denura

(on leave)
BS Chemistry (Silliman University);
Atty. Fe Marie D. Dicen-Tagle

BS Accountancy (Silliman University);
vi
Atty. Alex Andrew P. Icao

BS Economics (University of the Philippines-Diliman);
Atty. Janette L. Icao

AB Public Administration (University of the Philippines-Diliman);
LL.M. (University of Warwick)
Pros. Marites F. Macarubbo

BBA Accounting (Silliman University);
Atty. Marcelino C. Maxino

AB Political Science (Foundation University);
BS Jurisprudence (Foundation University);
LL.B. (Foundation University);
LL.M. (University of Michigan)
Atty. M. Mikhail Lee L. Maxino

LL.B. (University of the Philippines-Diliman);
LL.M. (Dalhousie University)
Atty. Vicente C. Maxino

AB Political Science (St. Paul University-Dumaguete);
vii
Atty. Jose Riodil D. Montebon

LL.B. (University of the Philippines-Diliman)
Judge Gerardo A. Paguio, Jr.

AB Psychology (University of the Philippines-Diliman);
LL.B. (University of the Philippines-Diliman);
MPA (University of the Philippines-Diliman)
Dr. David J. Padilla

Bachelor of Arts (University of Detroit);
J.D. (University of Detroit);
MA International Relations (University of Pennsylvania);
LL.M. International Law (George Washington University);
MPA (Harvard University)
Judge Marie Rose I. Paras

BBA Management (Silliman University);
viii
Atty. Ramon Antonio D. Ruperto

Atty. Eduardo T. Sedillo

Judge Rafael Crescencio C. Tan, Jr.

AB Mathematics (Silliman University);
MPA (Silliman University)
ix
The Silliman Law Journal is a yearly publication by the Silliman University College of Law.
First published in 1968, it contains articles and essays by incumbent faculty members, special
contributions from alumni and friends, and the best theses from each graduating batch of the
JD program.
The views expressed by the contributors do not necessarily reflect the views of Silliman
University, the Silliman University College of Law or the Editorial Staff of the SLJ.
Any inquiries regarding the SLJ may be addressed to the Office of the Dean, Villareal Hall,
Silliman University, Dumaguete City, Negros Oriental, Philippines.
EDITORIAL STAFF
Abel C. Montejo
Editor-in-Chief
Francis George S. Yap
Ram Michael M. Santos
Asst. Editor-in-Chief
Creative Editor
Elaine Gerald C. Cepeda
Maria Carmela R. Caupayan
Content Editor
Content Editor
April Anne C. Justalero

Content Editor
Atty. Marcelino C. Maxino

Faculty Adviser
FROM THE DEAN
xi
FOREWORD
STILL TO BE CONTRIBUTED BY ATTY M ARS. PICTURE TO FOLLOW AS
WELL.
xii
FROM THE EDITOR
xiii
TABLE OF CONTENTS
UNIVERSITY EXECUTIVE OFFICERS ...................................................................... III
SILLIMAN UNIVERSITY COLLEGE OF LAW.......................................................... IV
COLLEGE OF LAW FACULTY ....................................................................................V
EDITORIAL STAFF ...................................................................................................... X
FROM THE DEAN ....................................................................................................... XI
FOREWORD ............................................................................................................... XII
FROM THE EDITOR .................................................................................................XIII
TABLE OF CONTENTS .............................................................................................XIV
RIGHT TO LIFE, LIBERTY, PROPERTY: A SEAMLESS TRILOGY TO
PROSPERITY ............................................................................................................... 20
INDEPENDENT AND DEPENDENT CIVIL ACTIONS THROUGH THE EYES OF
RES JUDICATA ........................................................................................................... 43
I.
INTRODUCTION..................................................................................................... 43
II. NOMENCLATURE .................................................................................................. 44

A. Civil liability ex delicto ...................................................................................... 44
B. Breach of contract or Culpa contractual ............................................................. 46
C. Quasi-Delict or Culpa Aquiliana ........................................................................ 47
D. Dependent vs independent civil action / civil liability ......................................... 47
III.
COMMON ELEMENTS AND STANDARD OF PROOF ................................................ 52
A. Elements of civil liability / base concept of civil liability: .................................... 52

B. Standard of Proof .............................................................................................. 53
IV.
PRINCIPLE OF RES JUDICATA & LITIS PENDENTIA ................................................ 55
A. LITIS PENDENTIA AND FORUM SHOPPING AS RELATED TO RES JUDICATA .............. 57

B. OBJECTIVE OF RES JUDICATA, LITIS PENDENTIA & FORUM SHOPPING ................... 58
V. DEPENDENT & INDEPENDENT CIVIL ACTIONS ....................................................... 59
A. Adjective (procedural or remedial) nature of the rules ......................................... 59
B. Integral approach .............................................................................................. 62
C. Independent civil action under Article 31 ........................................................... 64
1.
Under the 1985 Rules on Criminal Procedure ................................................. 64
2.
Under the 2000 Rules on Criminal Procedure ................................................. 68
xiv
D. Res judicata (conclusiveness of judgment) and Article 31 covered causes of action

78
E. Dependent civil actions ..................................................................................... 80
1. Rules to make sure that civil liability ex delicto is not litigated in more than one
proceeding at any moment in time ........................................................................ 81
2. Rules to ensure that there are no conflicting factual findings as to the fact from
which the civil liability may arise. ......................................................................... 81
F. Article 33 covered civil actions........................................................................... 82
1. Rules to make sure that civil liability ex delicto is not litigated in more than one
proceeding at any moment in time ........................................................................ 83
2.
An exception to res judicata (conclusiveness of judgement) principle? .............. 85
3.
Estafa and BP 22 cases involving unfunded checks .......................................... 86
VI.
ARTICLE 29: CIVIL LIABILITY IN CASES OF ACQUITTAL....................................... 88
1.
Acquittal and there is no award of damages ....................................................... 88

a.
Acquittal merely based on reasonable doubt.................................................... 89
b. Acquittal with a finding that the fact from which civil liability may arise does not
exist ..................................................................................................................... 91
2.
Acquittal and there is an award of damages in the same criminal case ................. 92
VII.
DOCTRINE OF ELECTION OF REMEDIES ............................................................... 93
VIII. CONSOLIDATION WITH THE CRIMINAL CASE ..................................................... 96

IX.
CONCLUSION ..................................................................................................... 98
THE CONSTITUTIONALITY OF THE CONGRESSIONAL PORK BARREL FUNDS

..................................................................................................................................... 102
PORK BARREL, DEFINED. ........................................................................................... 102
THE SUPREME COURT'S DECISIONS FOR THE CONSTITUTIONALITY OF PORK BARREL.... 103
THE SUPREME COURT'S DECISION AGAINST THE CONSTITUTIONALITY OF PORK BARREL.
.................................................................................................................................. 105
A. Separation of Powers. ....................................................................................... 105
B. Non-delegability of Legislative Power. .............................................................. 106
C. Checks and Balances. ....................................................................................... 107
D. Accountability .................................................................................................. 107
E. Political Dynasties ............................................................................................ 107
F. Local Autonomy .............................................................................................. 107
NETIQUETTE: TO WHAT EXTENT IS THE RIGHT TO PRIVACY PROTECTED IN
ONLINE SOCIAL NETWORKS? ................................................................................ 109
xv
THE CONTROVERSY. ............................................................................................ 109

ONLINE PRIVACY VS. RIGHT TO INFORMATIONAL PRIVACY IN THE INTERNET ............ 109
RIGHT TO INFORMATIONAL PRIVACY IN THE INTERNET ............................................ 110
THE RIGHT TO PRIVACY. ..................................................................................... 111
SURVEY OF SOME CASES INVOLVING THE RIGHT TO PRIVACY IN THE
PHILIPPINES. .......................................................................................................... 115
1.
MAY BE LIMITED BY LAW. ................................................................................. 115
2.
IT IS NECESSARILY NARROWER IF THE PERSON IS A PUBLIC FIGURE...................... 115
3.
IT IS UPHELD IF THE LIMITING LAW IS NOT NARROWLY DRAWN. ......................... 116
4.
DOES NOT EXIST IN MATTERS INVOLVING COMPELLING STATE INTEREST............. 118
5.
WILL NOT PRECLUDE A REASONABLE COLLECTION AND STORAGE OF PERSONAL

DATA ...................................................................................................................... 119
6.
IT IS PROTECTED BY THE DUE PROCESS CLAUSE BUT IT CAN ALSO BE WAIVED....... 120
7.
EXPECTATION OF PRIVACY OF ALL INTERNET USERS MUST BE TAKEN INTO ACCOUNT

TO DETERMINE VIOLATION. ..................................................................................... 121
8.
EXPECTATION OF PRIVACY MUST BE MANIFESTED BY THE USER .......................... 123
CRITIQUE. ............................................................................................................... 124

SUMMARY AND CONCLUSION. .......................................................................... 125
General Doctrine: ................................................................................................... 126
Cyberspace Application: ......................................................................................... 126
CONCLUSION .......................................................................................................... 126
GRAY AREAS IN THE PRINCIPLES OF DISTINCTION AND PROTECTION OF
CIVILIANS INVOLVED IN HOSTILITIES ................................................................. 127
INTRODUCTION .................................................................................................... 127
OBJECTIVES OF THE STUDY................................................................................ 128
SCOPE AND LIMITATIONS................................................................................... 128
CHAPTER I: THE CONCEPT OF CIVILIANS AND CIVILIAN STATUS IN IHL ... 129
CHAPTER II: THE PRINCIPLE OF DISTINCTION ................................................ 130
Changing nature of armed conflict ........................................................................... 132
Gray areas in the concept ........................................................................................ 133
Privatization of Former Military Function ............................................................... 133
The misuse of the military uniform or civilian clothes .............................................. 134
The questions of who to target, how to target, and when to target............................. 135
CHAPTER III: THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES 136
xvi
The Meaning of Hostilities and Direct Participation in Hostilities............................. 136

Threshold of Harm ................................................................................................. 136
Direct Causation ..................................................................................................... 136
Belligerent Nexus.................................................................................................... 137
The Temporal Scope of Direct Participation in Hostilities ........................................ 137
Types of Activities Covered ................................................................................. 137
Types of Activities Not Covered........................................................................... 138
Gray areas in the concept ........................................................................................ 139
1.
Intelligence using civilians ............................................................................. 139
2.
Rescue operations using civilians ................................................................... 140
3.
Civilians as hired combatants ........................................................................ 140
4.
Terrorism...................................................................................................... 142
CHAPTER IV: CONCLUSIONS AND RECOMMENDATIONS ............................. 144

BIBLIOGRAPHY ..................................................................................................... 147
Books: .................................................................................................................... 147
Treaties and Conventions: ....................................................................................... 147
International Cases: ................................................................................................ 148
Others, Miscellaneous Documents .......................................................................... 149
RESOLVING DEADLOCK IN A VALID ENVIRONMENTAL ORDINANCE:
ANALYSES AND FINDINGS ON THE DUMAGUETE CITY PLASTICS
ORDINANCE .............................................................................................................. 151
INTRODUCTION .................................................................................................... 151
ADDRESSING ENVIRONMENTAL CONCERNS AT THE ROOT ........................ 152
A BRIEF HISTORY OF THE DUMAGUETE CITY PLASTICS ORDINANCE ....... 153
VALIDITY OF THE ORDINANCE .......................................................................... 155
Application of the substantive tests to the provisions of the Plastics Ordinance to
determine its validity: .............................................................................................. 156
1. The law is reasonable. It is not unfair or oppressive, neither is it partial or
discriminatory. .................................................................................................... 156
2.
It is general and consistent with public policy ................................................. 160
3. Passes muster under the test of constitutionality and is consistent with prevailing
statutes ................................................................................................................ 161
THE ALLEGED SNAG: SECTION 12 (B) ................................................................ 161
The meaning of Section 12 (b) according to statutory construction: .......................... 162
xvii

1.
The word Biodegrade ................................................................................ 162
2. Understanding the phrase as certified by the proper Government agency (i.e.,

DENR and/or DOST), as well as verified as such by a reputable international
verification authority in Section 12 (b) ................................................................ 163
Dynamic Development Corporations position as Movant in The Matter of Using
Biodegradable Plastic Bags Pursuant to City Ordinance 231, Series of 2011 .............. 163
1. DDC makes the assumption that the future technology referred to in Section
12 (b) of the Ordinance is already in existence ...................................................... 164
2.
DDC believes that manufacturers of plastic can certify the same as biodegradable
164
3. DDC concludes that the absence of procedure regarding verification and

certification makes Section 12 (b) vague, even if the section clearly requires that,
should future technology arrive and create plastic that actually biodegrades, this must
be verified and certified as such by the appropriate government agencies ............... 165
4. DDC must disabuse itself of conclusions drawn by the misinterpretation of
Section 12 (b) ...................................................................................................... 165
USE OF CITIZENS INITIATIVES TO FORWARD THE CAUSE ........................... 165
Amend the Plastics Ordinance................................................................................. 166
Pass a resolution to move for proper enforcement. ................................................... 166
OTHER AVAILABLE LEGAL REMEDIES ............................................................. 166
2010 Rules of Procedure for Environmental Cases. .................................................. 166
1.
Citizen Suits ................................................................................................. 167
2.
Writ of Continuing Mandamus ..................................................................... 167
3.
Environmental Protection Order (EPO) ......................................................... 168
4.
Preliminary Injunction .................................................................................. 168
5.
Precautionary Principle ................................................................................. 168
Accountability of chief executive officer for non-enforcement of valid ordinances. .... 169
1.
Administrative complaint under the LGC ...................................................... 169
2. Recourse through the Ombudsman invoking the Code of Conduct and Ethical
Standards for Public Officials and Employees ....................................................... 170
Court may still resolve substantive issues despite supervening events ........................ 170
CONCLUSION AND RECOMMENDATION ......................................................... 171
BIBLIOGRAPHY ..................................................................................................... 173
PHILIPPINE LAWS & ISSUANCES..................................................................... 173
JURISPRUDENCE ............................................................................................... 174
xviii
BOOKS .................................................................................................................. 176

JOURNAL ARTICLES.......................................................................................... 177
NEWS ARTICLES ................................................................................................ 177
MISCELLANEOUS DOCUMENTS ..................................................................... 178
NEW AND NEWLY REFRESHED DOCTRINES BASED ON RECENT
JURISPRUDENCE ...................................................................................................... 180
1.
ONLINE PRIVATE COMMUNICATIONS OF SEXUAL CHARACTER BETWEEN MARRIED

COUPLES OR CONSENTING ADULTS EVEN WHEN DONE FOR FAVOR BUT THE ELEMENT OF
ENGAGING IN BUSINESS" IS ABSENT DO NOT CONSTITUTE A VIOLATION OF SECTION 4 (C)
(1) ON CYBERSEX, REPUBLIC ACT (R.A.) 10175, THE CYBERCRIME PREVENTION ACT OF
2012........................................................................................................................... 180
2.
WILLFUL BLINDNESS DOCTRINE ........................................................................... 180

Under this doctrine, where there is a presumption that the taxpayer knows his/her tax
obligations, the fault of his/her representative or accountant is not a valid ground to
justify noncompliance in tax obligations. ................................................................. 180
3.
NO MORE VIOLATIONS FOR PREMATURE CAMPAIGNING......................................... 181
4.
UNDER CUSTOMARY INTERNATIONAL LAW, AS IT PRESENTLY STANDS, A STATE IS NOT
DEPRIVED OF IMMUNITY BY REASON OF CIVIL CLAIMS FOR SERIOUS VIOLATIONS OF

INTERNATIONAL HUMAN RIGHTS LAW OR JUS COGENS NORMS. .................................... 181
5.
THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF A MINOR

CAN BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN
INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS
SURNAME. .................................................................................................................. 182
CHALKBOARD .......................................................................................................... 183
2014 TEAM .................................................................................................................. 184
SPECIAL CREDITS ..................................................................................................... 185
xix
RIGHT TO LIFE, LIBERTY, PROPERTY: A SEAMLESS TRILOGY

TO PROSPERITY
Dean Mikhail Lee L. Maxino
November 2014
Chief Justice Panganiban Foundation for Liberty and Prosperity (FLP) in cooperation with
Metrobank Foundation. Published with permission.
Note: This paper was originally delivered on November 26, 2014 as Atty. Mikhail Maxinos
first lecture as Professorial Chair on Liberty and Prosperity sponsored by the Chief Justice
Panganiban Foundation for Liberty and Prosperity (FLP) in cooperation with Metrobank
Foundation. All rights belong to and are reserved by the Chief Justice Panganiban
Foundation for Liberty and Prosperity. Published with permission.
VOL. 7
21
Then God said, "Let us make man in our image, after our likeness; and let them have dominion over
the fish of the sea, and over the birds of the air, and over the cattle, and over all the earth, and over every
creeping thing that creeps upon the earth." So God created man in his own image, in the image of God
he created him; male and female he created them. And God blessed them, and God said to them, "Be
fruitful and multiply, and fill the earth and subdue it; and have dominion over the fish of the sea and
over the birds of the air and over every living thing that moves upon the earth." And God said, "Behold,
I have given you every plant yielding seed which is upon the face of all the earth, and every tree with
seed in its fruit; you shall have them for food. And to every beast of the earth, and to every bird of the
air, and to everything that creeps on the earth, everything that has the breath of life, I have given every
green plant for food." And it was so. And God saw everything that he had made, and behold, it was
very good.
-- Genesis 1:26-31
President Ronald Reagan said: Only when the human spirit is allowed to invent and create,
only when individuals are given a personal stake in deciding economic policies and benefiting
from their success -- only then can societies remain economically alive, dynamic, prosperous,
progressive and free. Today, there is general agreement by the most prosperous nations that
the democratic government which provides utmost liberty to its people achieve the greatest
general peace and prosperity.1 The risk is that a select few most likely the rich, the powerful,
or the privileged can forcefully invoke their liberty and fundamental rights to trump those
of the poor and less privileged, especially their socio-economic rights.2 Thus, in 1896, the U.S.
Supreme Court upheld the lower courts' decision in the case of Plessy v. Ferguson3 which upheld
the constitutionality of State law requiring the furnishing of ''equal but separate'' facilities for
rail transportation and requiring the separation of ''white and colored'' passengers, noting that
since the separate cars provided equal services, the equal protection clause of the 14th
Amendment was not violated. In another case, the U.S. Supreme Court ruled that a Chinese
student was not denied equal protection by being classified with African Americans and sent
to school with them rather than with whites.4
Ones liberty is bound to collide with anothers right. In the case of Philippine Blooming Mills
Employment Organization, et al v. Philippine Blooming Mills Co., Inc. and CIR, G.R. No. L-31195,
June 5, 1973, the Philippine Blooming Mills Employees Organization (PBMEO), a legitimate
labor union composed of workers at Philippine Blooming Mills Co. Inc. (Company), staged
a mass demonstration at Malacaang, in protest against alleged abuses of the police, to be
1
THOMAS WICKERT, THE PROSPERITY OF LIBERTY: A THEORY OF FREEDOM (2012) (derived from the
works of Frederic Bastiat).
FRIEDRICH HAYEK, THE CONSTITUTION OF LIBERTY, (1978) (The importance of our being free to do a
particular thing has nothing to do with the question of whether we or the majority are ever likely to make
use of that particular possibility. To grant no more freedom than all can exercise would be to misconceive
its function completely. The freedom that will be used by only one man in a million may be more important
to society and more beneficial to the majority than any freedom that we all use.).
2
Plessy v. Ferguson, 163 U.S. 537 (1896).
Gong Lum v. Rice, 275 U.S. 78 (1927).
22
RIGHT TO LIFE, LIBERTY AND PROPERTY
2014
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).
The Company acknowledged that the demonstration is an inalienable right of the union and
the workers but emphasized, however, that any demonstration for that matter should not
unduly prejudice the normal operation of the business. The Company informed the union
that while all workers may join the demonstration, the first and regular shifts should be
excused and should they fail to report for work, they shall be dismissed.
Despite the Companys pleas, all the workers of PBMEO, including those in the first and
regular shifts joined the demonstration. The officers and workers of the first and regular shifts
were charged with a violation of the Labor Code of the Philippines and of their CBA
providing for No Strike and No Lockout. After following proper procedure, the Company
dismissed the first and regular shift workers who joined the demonstration.
The Philippine Supreme Court ruled in favor of the workers of the union, declaring the
Company as the one guilty of unfair labor practice. Its refusal to permit all its workers to join
the mass demonstration against alleged police abuses and the subsequent separation of some
workers constituted an unconstitutional restraint on the freedom of expression, freedom of
assembly and freedom petition for redress of grievances. The crucial portion of the Courts
decision states:
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. 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.
In seeking sanctuary behind their freedom of expression as 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 untrammeled 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
VOL. 7
23
its owners or its management. x x x 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. (emphasis added)
The Philippine Blooming Mills case followed the US cases of Marsh v. Alabama (326 U.S. 501,
509) and Tucker v. Texas (326 U.S. 517, 519-520) where the US Supreme Court declared the
preferred position of human rights. In the more recent case of Aberasturi v. People and Escalante, Jr.,
February 14, 2011, G.R. No. 172203, the Philippine Supreme Court acknowledged the existence of
a hierarchy of rights, when it said that Freedom of expression enjoys an exalted place in the hierarchy
of constitutional rights.
Of interest in the Philippine Blooming Mills case is the portion in the Decision that states, Such
apprehended loss or damage would not spell the difference between the life and death of the
firm or its owners or its management. x x x Material loss can be repaired or adequately
compensated. Had the loss been of a nature or magnitude that would spell the difference
between the life and death of the person, would the decision have been different? If the case
were between three workers respectively assigned to three daily time shifts, and a lowly sarisari store owner, principally dependent on the stores daily earning for the owners
subsistence, would the decision be different?
This hierarchy of human rights also figured prominently in the case of Social Justice Society v.
Atienza, G.R. No. 156052, 13 February 2008, where the oil companies (i.e., Chevron, Petron,
and Shell) stood to lose billions of pesos when the City of Manila decided to implement
Ordinance No. 8027 requiring the relocation of oil terminals in Pandacan. The Supreme
Court said:
However, based on the hierarchy of constitutionally protected rights, the

right to life enjoys precedence over the right to property (emphasis
added). The reason is obvious: life is irreplaceable, property is not. When the
state or LGUs exercise of police power clashes with a few individuals right to
property, the former should prevail.
Ordinance No. 8027, approved by Manila City Council on November 28, 2001,
reclassifies portions of Pandacan and Sta. Ana from industrial to commercial and directs the
owners and operators of businesses to cease and desist from operating their businesses within
24
2014
6 months from the Ordinances effectivity. The Court described Ordinance No. 8027
as a measure enacted pursuant to the delegated police power of local
government units to promote the order, safety, and health, morals, and
general welfare of the society. Said Ordinance was enacted right after the
Philippines, along with the rest of the world, witnessed the horror of the
September 11, 2001 attack on the Twin Towers of the World Trade Center in
New York City. The objective of the Ordinance is to protect the residents of
Manila from the catastrophic devastation that will surely occur in case of a
terrorist attack on the Pandacan Terminals.5
Historically, human rights were categorized by generations. Rights involving fundamental
freedom that serve to protect the citizens from the excesses of the State are referred to as first
generation rights. These negative rights that encompass the classic civil-political rights
emerged from the American and the French Revolutions.6
Since the eighteenth and nineteenth century, positive law recognized only first generation
rights. The 1776 Virginia Declaration of Rights, for instance, contained rights to freedom of
the press, trial by jury, free elections, and respect for property, but omitted social rights related
to the welfare function of the State. The first twelve amendments of the US Constitution
guarantees only physical security and a functioning judicial system. The 1789 Declaration
des Droits de l Homme eet du Citoyen of France only created a functioning system of
governance. The classic rights contained in many constitutions during the 19th century were
purely confined to classical freedoms.7
In the early twentieth century, social and economic rights were acknowledged at a
constitutional level, particularly the 1917 Soviet Constitution, the 1937 Irish Constitution,
and the German Weimar Constitution. Socio-economic rights were classified as second
generation rights. These rights surfaced under the German authoritarian leader Bismarck,
who fought for the welfare of German workers in the late nineteenth century. These rights
arose from social welfare concern.8
Ireland, France, Germany, Portugal, Spain, and a growing number of countries have included
second generation rights in their constitutions. International human rights currently include
social and economic rights.
Social Justice Society v. Atienza, G.R. No. 156052 (2008).
Justice Albie Sachs, Social and Economic Rights: Can They Be Made Justiciable?, 53 SOUTHERN
METHODIST UNIVERSITY LAW REV 1381 (2000).
7
Heirarchy of Rights Protection, available at http://www.lawteacher.net/administrative-law/essays/ahierarchy-of-rights-protection-administrative-law-essay.php [hereinafter H. Rights Protection].

8
Id.
VOL. 7
25
Justice Albie Sachs believes that the historical classification of rights into generations led to
the different treatment of the second generation rights as less important than the first. 9 The
classification established a hierarchy of rights protection. The 1993 Vienna Conference on
Human Rights apparently was aware of this unequal treatment, and it accepted that social
and economic rights are indivisible from and interdependent with civil and political rights.
They are all of equal importance. Hector Gros Espiell notes that:
Only the full recognition of all of these rights can guarantee the real existence
of any one of them, since without the effective enjoyment of economic, social
and cultural rights, civil and political rights are reduced to merely formal
categories. Conversely, without the reality of civil and political rights, without
effective liberty understood in its broadest sense, economic, social and cultural
rights in turn lack any real significance. This idea of the necessary integrality,
interdependence and indivisibility regarding the concept and the reality of the
content of human rights that is, in a certain sense, implicit in the Charter of the
United Nations, was compiled, expanded and systematized in the 1948
Universal Declaration of Human Rights, definitively reaffirmed in the
Universal Covenants on Human Rights approved by the General Assembly in
1966, and in force since 1976, as well as in the Proclamation of Teheran of
1968, and the Resolution of the General Assembly, adopted on December 16,
1977, on the criteria and means for improving the effective enjoyment of
fundamental rights and liberties (Resolution n. 32/130). 10
Perhaps, the center of legal development in the area of socio-economic rights is South
Africa. Its Constitution provides for greater transparency, participatory democracy,
protection of cultural values and socio-economic equality. The Preamble of the African
Charter on Human and Peoples Rights declares that the satisfaction of socio-economic
rights is a guarantee for the enjoyment of civil-political rights. Under the Charter, the States
obligation to implement is not qualified by considerations of available resources. As
pointed out by the Constitutional Court of South Africa in The Government of the Republic of
South Africa, et. al. v. Irene Grootboom, October 4, 200011,
Our Constitution entrenches both civil and political rights and social and
economic rights. All the rights in our Bill of Rights are inter-related and
9
Sachs, supra note 6.
10
HECTOR GROS ESPIELL, LOS DERECHOS ECONMICOS, SOCIALES Y CULTURALES EN EL S ISTEMA

INTERAMERICANO 16-17 (1986).
11
South Africa v. Grootboom, Case CCT 11/00 (Oct. 4, 2000), available at http://www.escrnet.org/sites/default/files/Grootboom_Judgment_Full_Text_(CC)_0.pdf.
26
2014
mutually supporting. There can be no doubt that human dignity, freedom and
equality, the foundational values of our society, are denied those who have no
food, clothing or shelter. Affording socio-economic rights to all people
therefore enables them to enjoy the other rights enshrined in Chapter 2. The
realization of these rights is also key to the advancement of race and gender
equality and the evolution of a society in which men and women are equally
able to achieve their full potential.
The advocates for socio-economic rights declare that the generations of rights era is over.
A hierarchy of rights would only lead to prioritize protections. Senator Jose Diokno
observed that many legal aid lawyers for the poorer people have been detained; a few have
been shot and wounded during peaceful assembly [it is] a painful lesson to learn that we
cannot enjoy civil-political rights unless we enjoy socio-economic rights, any more than we
can insure the latter, unless we can exercise the former [it is] true that a hungry man does
not have much freedom of choice but when a well fed man does not have freedom of choice,
he cannot protect himself against hunger.12
Kofi Annan emphasized that in time of global tensions and division, some wish to focus
on civil-political rights, others would like to see equal attention on socio-economic rights,
complaining bitterly that if you are struggling to live, voting is no longer important He
believes the cause of human rights has the potential to bridge those division and restore a
sense of common purpose among States and nations.13
Not everyone is convinced about the equality and indivisibility of all human rights. There are
those who think that social and economic rights are vague, indeterminate, and too costly to
be capable of being judicially enforced. Civil and political rights, on the other hand, have been
ascertained evolutionary by judicial jurisprudence, and are no longer considered vague. Scott
and Macklem point out that the historical, ideological, and philosophical exclusions of social
rights from adjudicative experience have resulted in a failure to accumulate experience that
would render the imprecision of social rights less and less true as time goes on.14
12
H. Rights Protection, supra note 7.
13
Id.
14
Craig Scott and Patrick Macklem, Constitutional Ropes of Sand or Justiciable Guarantees? Social Rights
in a New South African Constitution, 141 U. PA. L. REV. 1, 69-73 (1992) (This view is shared by David
Bilchitz, Towards a Reasonableness Approach to the Minimum Core: Laying the Foundations for Future
Socio-Economic Rights to its Jurisprudence, 19 SAJHR 1 (2003) and Illan Wall, The Aspirational Nature
of Economic, Social and Cultural Rights; an Examination of an Unsound Case, the Logical and Factual
Misconception of Rights, COLR 1 (2004)).
VOL. 7
27
Although economic, social and cultural rights might be seen as requiring high levels of
investment compared to civil and political rights which are perceived to simply require the
State to refrain from interfering with individual freedoms, civil and political rights, also
require substantial investment for their full realization. For example, the full enforcement of
civil and political rights would require infrastructures such as an efficient court system, prisons
observing the minimum living conditions for prisoners, legal aid, free and fair elections, and
so on. Also, there are social, economic and cultural rights that simply require the State to
refrain from interfering with individual freedoms, such as trade union freedoms or the right
to seek work of ones choosing.15
In reality, the enjoyment of all human rights is intertwined. Thus, it is difficult for individuals
who cannot read and write to find work, to take part in political activities, or to exercise their
freedom of expression.16 Consequently, it is problematic to dichotomize civil and political
rights on one side, and economic, social, and cultural on the other, and to rank them in a
hierarchy of importance.
This growing realization of the importance of all human rights led to the negotiation and
adoption of two separate international covenants in December of 1966 the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social,
and Cultural Rights which, taken together with the Universal Declaration of Human Rights,
constitute the international human rights doctrine. 17 In recent decades, the separation has
since been abandoned, and human rights treaties such as the Convention on the Rights of the
Child or the Convention on the Rights of Persons with Disabilities have incorporated all
rights.18
The principle of indivisibility of human rights affirms that the right to property is not inferior
to the other rights, such as freedom of expression or freedom of worship. They are inseparably
interrelated. For instance, freedom of speech involves communication of one's opinions and
ideas using one's body and property. Lichtenberg argues that freedom of the press is simply a
form of property right summed up by the principle "no money, no voice".19
15
UN Human Rights, Key concepts on ESCRs - Are economic, social and cultural rights fundamentally
different
from
civil
and
political
rights?,
available
at
http://www.ohchr.org/EN/Issues/ESCR/Pages/AreESCRfundamentally
differentfromcivilandpoliticalrights.aspx [hereinafter UNHR].
16
Id.
17
PHILIP ALSTON, THE UNITED NATIONS AND HUMAN RIGHTS 24-37 (Clarendon Press 1992).
18
UNHR, supra note 15.
19
KAREN SANDERS, ETHICS & JOURNALISM 68 (Sage Pub., 2003).
28
2014
Some believe that the right to property equals right to life. A denial of a persons basic physical
needs, such as food, clothing, shelter, fruits of his labor is a denial of ones right to life. In "An
Arrow against all Tyrants" (1646) Richard Overton argued that:
"To every individual in nature is given an individual property by nature not to

be invaded or usurped by any. For everyone, as he is himself , so he has a selfpropriety, else he could not be himself; and of this no second may presume to
deprive of without manifest violation and affront to the very principles of nature
of the rules of equity and justice between man and man. Mine and thine cannot
be, except this. No man has power over my rights and liberties, and I over no
man."20
The English Levellers identified property earned as the fruits of ones labor as sacred under
the biblical injunction thou shall not steal. John Locke (1632 1704), in his Second Treatise
on Civil Government (1689), proclaimed that "everyman has a property in his person; this
nobody has a right to but himself. The labor of his body and the work of his hand, we may
say, are properly his". According to Locke the right to property and the right to life were
inalienable rights, and that it was the duty of the State to secure these rights for individuals. 21
Frederick Bastiat in The Law (1850) writes that Gods gift to humankind is life physical
and moral life. But life cannot maintain itself alone. Humankind has the responsibility of
preserving, developing, and perfecting it. By the application of human faculties to the natural
resources placed around us by the Creator of life, these resources become products. Life,
faculties, production in other words, individuality, liberty, and property this is man. And
these three gifts from God precede all human legislation, and are superior to it. Life, Liberty
and property do not exist because men have made laws. On the contrary, it was the fact that
life, liberty, and property existed beforehand that caused men to make laws in the first place.
The right to property is recognized in Article 17 of the Universal Declaration of Human
Rights. It is also found in the European Convention on Human Rights and in regional human
rights instruments of Africa and the Americas.22 It is not subordinate to any right. There is no
20
MICHELINE ISHAY, THE HISTORY OF HUMAN RIGHTS: FROM ANCIENT TIMES TO THE GLOBALIZED ERA
92 (U. Cal. Press. 2008).
21
DABIEL W. ROSSIDES, SOCIAL THEORY: ITS ORIGINS, HISTORY, AND CONTEMPORARY RELEVANCE 52
54 (Rowman & Littlefield Pub. 1998).
22
GUDMUNDUR ALFREDSSON & ASBJORN EIDE, THE UNIVERSAL DECLARATION OF

COMMON STANDARD OF ACHIEVEMENT 364 (Martinus Nijhoff Pub. 1999).
HUMAN RIGHTS: A
VOL. 7
29
hierarchy of rights all rights are equally deserving, and an approach that would place some
rights over others must be avoided. No right is inherently superior to another right.23
Perhaps, cases that present a clash of rights24 involving the right to property ought not to be
resolved based on a perceived hierarchy of rights, but on the following principles (1) Respect
the importance of the rights involved; (2) Rights may not extend as far as claimed; (3) Look
at the extent of interference (only actual burdens on rights trigger conflicts); (4) The core of
the right is more protected than its periphery; (5) The full context, facts and constitutional
values at stake, especially the constitutional provisions on social justice, must be considered.
(1) Respect for the importance of rights--Where there appears to be a conflict of rights, the
best approach is to respect the rights involved and then find a solution by which those rights
may be enjoyed. This may involve changing the conditions so that each party could enjoy its
right, such as change of schedules, working conditions, activity locations, and so on. For
example, a woman with a disability needs to use a service dog to perform her function as a
teacher, but a student in her classroom is allergic to dogs. These competing rights claims might
be resolved by assessing the needs of both parties and recognizing the equal importance of
both rights. The employer/service provider needs to look at how both needs can be
accommodated. Can the teacher be provided other means of support without using a service
23
Dagenais v. Canadian Broadcasting Corp., 3 S.C.R. 877 (1994).
Examples of competing or colliding rights are: (1) An employer, who claims to be a born again
Christian, shares his religious beliefs with his employees. He invites them to his bible studies, prayer
meetings, and he gives them Christian bibles. His employees do not welcome his conduct in their
workplace. They assert their right to be free from discrimination based on creed, which they claim includes
the right not to be subjected to proselytizing at work. The employer argues that he is exercising his freedom
of expression rights; (2) A Filipino Catholic is asked to remove a wooden cross, Christmas lights, and
Christmas tree from his balcony because these allegedly violate the condominiums regulations and
interfere with the neighbours enjoyment of the view. The Filipino might claim discrimination on the
ground of creed while the condominium co-owners might claim a right to peaceful enjoyment of property
(see Syndicat Northcrest v. Amselem, 2004 SCC 47); (3) In R. v. OConnor, [1995] 4 S.C.R. 411, a case
involving sexual offenses, the Supreme Court of Canada established a balance between the right of privacy
of the victims medical and therapeutic records in the possession of third parties such as physicians, and the
accuseds demand to release said records for his defense; (4) Some parents might favor sex education
curriculum based on the right to public education and non-discrimination based on sexual orientation; other
parents might oppose claiming discrimination on the ground of religious creed; (5) A religious organization
imposes a religious code of behavior to its employees. An employee was dismissed because he is in a samesex relationship. The dismissed employee might claim discrimination on the ground of sexual orientation
while the religious organization might claim valid restrictions on terms of employment based on religious
freedom and freedom of expression [Ontario Human Rights Commission v. Horizons, 2010 ONSC 2105
(CanLII)] .
24
30
2014
dog? Can the student be made to attend another class session? A combination of solutions
might allow both parties to enjoy their rights.25
(2) Rights may not extend as far as claimed -- For competing rights to arise, a legal right must
first be found to exist. 26 Not every rights claim is legally valid. A claim may be presented as a
human right, when it is actually a mere customer preference. For example, those who object
to breastfeeding in public may say they are using their right to free expression when they ask
the woman to cover herself or move to a private area. This may appear to be a conflict between
freedom of expression and freedom from discrimination due to sex. But court decisions in
other jurisdictions have already established a womans right to breastfeed in public.27 These
decisions ruled that preventing a woman to breastfeed in public is discriminatory. Without
any compelling and equally valid legal right (such as those related to health or safety), a
woman has an unqualified right to breastfeed in public, even when there is a strong individual
preference against public breastfeeding.28 An employee claiming discrimination after her
employer denies her request for flexible work hours to meet childcare responsibilities is not a
competing rights issues but is simply a request for accommodation on humanitarian
grounds. Financial hardship could limit the employers ability to accommodate the request. 29
Another example is ones right to non-discrimination in employment which does not extend
to personal care attendants contracted directly by those in need who may have their own
personal preferences such as sex, age, or the ability to speak a certain language.30
(3) Look at the extent of interference (only actual burdens on rights trigger conflicts) A
collision of rights should not be presumed. There must be an actual, not speculative, impact
of the rights of another, so that the enjoyment of ones rights will seriously harm another. 31
What might be an apparent conflict of rights can be resolved by examining whether the claims
made are within the boundaries of the rights. Scoping the boundaries of the rights might reveal
that what was perceived as a right interference may just be that: a perception not a reality. As
Justice Iacobucci has noted:
B. (R.) is a classic example of definitional reconciliation. Where a parents right
to religion is defined as not extending to the right to allow for religious medical
25
ONTARIO HUMAN RIGHTS COMMISSION, POLICY ON COMPETING HUMAN RIGHTS (2012
26
ONTARIO HUMAN RIGHTS COMMISSION, POLICY ON COMPETING HUMAN RIGHTS (2012), citing R. v.
N.S., 102 O.R. (3d) 161 (ONCA 2010) [hereinafter Ontario HRC].
27
See, e.g. Quebec et Giguere v. Montreal (Ville) 47 C.H.R.R. D/67. (2003).
28
Ontario HRC, supra note 25.
29
Id.
30
Ontario Human Rights Code, 24(1)(c) (1962).
31
VOL. 7
31
choices which can harm a child, there really is no conflict between freedom of
religion and life, liberty, and security of the person. This sentiment was echoed
in Trinity Western where the Supreme Court noted that this is a case where any
potential conflict should be resolved through a proper delineation of the rights
and values involved. In essence, properly defining the scope of the rights avoids a
conflict in this case (emphasis in original).32
(4) The core of the right is more protected than its periphery -- An action violating the core
of a right would be more restricted than one found to violate the periphery of a right. For
example, the courts have ruled that while it is constitutionally infirm to require religious
officials to perform same-sex marriages contrary to their religious beliefs, it would not be
constitutionally objectionable to require a person operating a business to offer his printing
services to a same-sex organization even if he thinks the organization violates his religious
beliefs. In the latter case, the court noted that commercial enterprise is at the periphery of
freedom of religion, and therefore, it had to give way to the right to be free from discrimination
in services based on sexual orientation.33
(5) The full context, facts and constitutional values at stake, specially the constitutional
provisions on social justice, must be considered Human rights do not exist in a vacuum, and
these should be examined in the light of the factual context and the constitutional values in
which they arise. As noted by Justice Rosalie Abella in her dissenting opinion in Bou Malhab
v. Diffusion Mtromdia CMR Inc., [T]here is a big difference between yelling fire in a
crowded theatre and yelling theatre in a crowded fire station.34 The precise content, tone,
Id, citing The Honourable Justice Frank Iacobucci, Reconciling Rights The Supreme Court of Canadas
Approach to Competing Charter Rights, 20 SUP CT L REV. 137, 163 (2003). In Trinity Western
University v. College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, the Supreme Court of Canada held
that x x x Absent concrete evidence that training teachers at TWU fosters discrimination in the public
schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be
respected. x x x Clearly, the restriction on freedom of religion must be justified by evidence that the exercise
of this freedom of religion will, in the circumstances of this case, have a detrimental impact on the public
school system. There is nothing in the TWU Community Standards, which are limited to prescribing
conduct of members while at TWU, that indicates that graduates of TWU will not treat homosexuals fairly
and respectfully.
32
33
In Brockie v. Brillinger (No. 2), 43 C.H.R.R. D/90 (Ont. Sup.Ct. 2002), the Court decided against Mr.
Brockie, who as a born-again Christian, refused to print Gay and Lesbian letterhead and business oriented
materials, ruling that because printing was not supportive of a cause that violates the core principles of his
religion, his right to freedom of religion may be legally restricted if found to cause harm to another such as
violating ones right to be free from discrimination based on sexual orientation. The Court noted that Mr.
Brockies exercise of his right to freedom of religion in the business world is, at best, at the rights periphery.
The court left open the question of whether a different conclusion could be reached if the material being
printed contained material that might reasonably be held to be in direct conflict with the core elements of
Mr. Brockies religious beliefs.).
34
Bou Malhab v. Diffusion Mtromdia CMR Inc., 1 S.C.R. 214, 96 (2011).
32
2014
and manner of delivery of the expression have a significant impact on gauging the degree of
its constitutional protection.
In resolving conflicting rights, the courts must be guided by the values and principles essential
to a free and democratic society, namely respect for the inherent dignity of the human person,
commitment to social justice, equality, rule of law, love, and peace, promotion of the common
good, establishment of a just and humane society that embodies the peoples ideals and
aspirations, conservation of the countrys patrimony, and all those inscribed in the Philippine
Constitutions Preamble. The values extolled in the Preamble are not seen as hierarchical;
one establishes and gives meaning to the other. Mutual respect fosters equality, and
appreciating a persons inherent dignity and worth creates a just and humane society.35
Certain claims have been lost because they were not consistent with societys underlying
values, and vice versa. In Canada, Chamberlain v. Surrey School District No. 3636 was a case
involving a challenge to a school boards decision not to approve three books showing samesex parented families as learning resources for a family life curriculum. The Supreme Court
of Canada noted that while religious concerns of some parents could be considered, they
could not be used to deny equal recognition and respect of other members of the community.
The Supreme Court ruled that the right to hold religious views cannot be used as the basis for
school policy if the school is to function in an atmosphere of tolerance and respect.
At this point, it is appropriate to discuss more lengthily the concept of social justice because
in the Philippine legal setting, the constitutional provisions on social justice appear to be allembracing, reflecting numerous constitutional values. Moreover, as Philippine jurisprudence
shows, social justice is often alluded to in cases involving marginalized and disadvantaged
parties. Social Justice has become a counter-balance to the rights of the rich, powerful, and
influential, the claims of the State, and the severity of the law.
The United Nations considered the term "social justice" as a substitute for the protection of
human rights. It first appeared in United Nations texts during the second half of the 1960s.
At the initiative of the Soviet Union, and with the support of developing countries, the term
was used in the Declaration on Social Progress and Development, adopted in 1969. 37
35
36
Chamberlain v. Surrey School District No. 36, 4 S.C.R. 710 (2002).
37
UN Department of Economic and Social Affairs, Division for Social Policy and Development, The
International Forum for Social Development, Social Justice in an Open World: The Role of the United
Nations, UN ST/ESA/305 52 (2006).
VOL. 7
33
Traces of the concept of social justice can be detected in Ancient and Renaissance philosophy
in the works of Socrates38, Plato39, Aristotle40, Thomas Aquinas41, Spinoza42 and Thomas
Paine.43 But the term "social justice" was explicitly used only from the 1840s. A Jesuit priest
named Luigi Taparelli is typically credited with coining the term,44 and it spread during
the revolutions of 1848. In the late industrial revolution, progressive American legal scholars,
particularly Louis Brandeis and Roscoe Pound started to use the term more. International law
and institutions began to use the word from the early 20th century, it was also embedded
in international law and institutions began to use the word, starting with the Treaty of
Versailles of 1919. The Constitution of the International Labour Organization states in its
Preamble that "universal and lasting peace can be established only if it is based upon social
justice. In the later 20th century, John Rawls in A Theory of Justice (1971) extensively
wrote about social justice. In 1993, the Vienna Declaration and Programme of Action dealt
with social justice as a purpose of the human rights education.45
In the Philippine legal setting, social justice is not limited to who gets what in terms of material
resources, time or opportunities,46 but is much more comprehensive. The Philippine
Constitution on social justice encompasses socio-economic rights spread out in Article II
(Declaration of Principles and State Policies), Article XIII (Social Justice and Human Rights),
Article XIV (Education, Science and Technology, Arts, Culture, and Sports) and Article XV
(The Family).
Article XIII alone provides for the enhancement of human dignity, reduction of social,
economic, and political inequalities, removal of cultural inequities, creation of economic
opportunities based on freedom of initiative and self-reliance, full protection to labor, full
employment and equality of employment opportunities, rights to self-organization, collective
bargaining and negotiations, peaceful concerted activities, security of tenure, humane
conditions of work and a living wage, participation in policy and decision-making processes,
shared responsibility between labor and management, right of labor to its share in the fruits
of production, right of enterprises to reasonable returns to investments, expansion and
38
PLATO, CRITO (360 B.C.E).
39
PLATO, THE REPUBLIC (380 B.C.E.).
40
ARISTOTLE, NICOMACHEAN ETHICS, Book V(3) (350 B.C.E).
41
NICHOLAS M. HEALY, THOMAS AQUINAS: THEOLOGIAN OF THE CHRISTIAN LIFE (Ashgate Pub. 2003).
42
RAY MONK & FREDERIC RAPHAEL, THE GREAT PHILOSOPHERS 135-174 (2000), citing TRACTATUS DE
INTELLECTUS EMENDATIONE (1677) OR ON THE IMPROVEMENT OF THE UNDERSTANDING.
43
THOMAS PAINE, RIGHTS OF MAN (1791).
44
J. ZAJDA, S. MAJHANOVICH, & V. RUST, EDUCATION AND SOCIAL JUSTICE (2006).
45
Vienna
Declaration
and
Programme
of
Action,
http://www.ohchr.org/Documents/ProfessionalInterest/vienna.pdf.
46
See JOHN RAWLS, A THEORY OF JUSTICE (1971).
Part
II.D,
available
at
34
2014
growth. Social justice also promotes industrialization, privatization of public sector

enterprises, the right of landless farmers to own the lands they till or to receive a just share of
the fruits, the just distribution of all agricultural lands, agrarian reform, stewardship in the
disposition or utilization of other natural resources, homestead rights of small settlers, rights
of indigenous communities to their ancestral lands, rights of fish workers to a just share in the
utilization of marine and fishing resources, urban land reform, affordable and decent housing
and basic services, respect for the rights of small property owners, integrated and
comprehensive health development, affordable health care, priority for the needs of the underprivileged, sick, elderly, disabled, women, and children, free medical care to paupers, effective
food and drug regulatory system, the rehabilitation, self-development, and self-reliance of
disabled persons and their integration into the mainstream of society, the protection of
working women, respect for the role of independent people's organizations, the rights of
subsistence fishermen, especially of local communities, to the preferential use of the
communal marine and fishing resources, the protection, development, and conservation of
marine and fishing resources, effective participation at all levels of social, political, and
economic decision-making, and the protection of human rights of all persons within the
Philippines, as well as Filipinos residing abroad.
Thus, the comprehensiveness of social justice in the Philippine Constitution allowed the
Supreme Court, through Mr. Chief Justice Panganiban, in Philippine Commercial International
Bank v. Abad, G.R. No. 158045, February 28, 2005, to grant separation pay to an employee
whose employment was lawfully terminated by the employer.
x x x an employee dismissed for any of the just causes enumerated under Article
282 of the Labor Code is not, as a rule, entitled to separation pay.47
As an exception, allowing the grant of separation pay or some other financial
assistance to an employee dismissed for just causes is based on equity. 48 The
Court has granted separation pay as a measure of social justice even when an
employee has been validly dismissed, as long as the dismissal was not due to
serious misconduct or reflective of personal integrity or morality.
This equitable principle was explained in San Miguel Corporation v. Lao49 as
follows:
In Soco v. Mercantile Corporation of Davao [148 SCRA 526, March 16, 1987],
separation pay was granted to an employee who had been dismissed for using
47
San Miguel Corp. v. Lao, 433 Phil. 890, 897 (2002).
48
Aparente Sr. v. NLRC, 387 Phil. 96, 107 (2000).
49
San Miguel Corp. v. Lao, 433 Phil. 890, 897 (2002).
VOL. 7
35
the company vehicle for a private purpose. In Tanala v. National Labor Relations
Commission [322 Phil. 342, January 24, 1996] the payment of separation pay to
an employee who had been dismissed for quarreling with a fellow worker
outside the company premises was sustained. Likewise, in Filipro, Inc. v. NLRC
[229 Phil. 150, October 16, 1999], an award of separation pay was decreed in
favor of an employee who had been validly dismissed for preferring certain
dealers in violation of company policy. The Court, however, disallowed the
grant of separation pay to employees dismissed for serious misconduct or for
some other causes reflecting on his moral character. In the case of Philippine
Long Distance Telephone Co. (PLDT) v. NLRC and Abucay [164 SCRA 671, 682,
August 23, 1988], the Court clarified a perceived incongruence in its several
pronouncements by stating thusly:
We hold that henceforth separation pay shall be allowed as a measure of social
justice only in those instances where the employee is validly dismissed for
causes other than serious misconduct or those reflecting on his moral character.
Where the reason for the valid dismissal is, for example, habitual intoxication
or an offense involving moral turpitude, like theft or illicit sexual relations with
a fellow worker, the employer may not be required to give the dismissed
employee separation pay, or financial assistance, or whatever other name it is
called, on the ground of social justice.
x x x
xxx
xxx
The policy of social justice is not intended to countenance wrongdoing simply

because it is committed by the underprivileged. At best it may mitigate the
penalty but it certainly will not condone the offense.
In CIR v Central Luzon Drug Corp., G.R. No. 159647, April 15, 2005, the Supreme Court, again
through Mr. Chief Justice Panganiban, allowed tax credits to private establishments who
extend discounts to senior citizens as required by law even if the establishments report a net
loss. The tax credit may still be deducted from a future, not a present, tax liability. Said the
Supreme Court:
While it is a declared commitment under Section 1 of RA 7432, social justice
cannot be invoked to trample on the rights of property owners who under our
Constitution and laws are also entitled to protection. The social justice
consecrated in our [C]onstitution [is] not intended to take away rights from a
person and give them to another who is not entitled thereto. For this reason,
a just compensation for income that is taken away x x x becomes necessary. It
36
2014
is in the tax credit that our legislators find support to realize social justice, and
no administrative body can alter that fact.
In Employees' Compensation Commission v. CA and Alvaran, G.R. No. 115858, June 28, 1996,
the GSIS denied the claim of a police officers widow because at the time of the police officers
death, he was at the Mandaluyong Police Station accompanying his son for an investigation
when he was supposed to be at the Pasig Provincial Jail as 2nd Shift Jailer and with a specific
duty to perform at said provincial jail. From the perspective of the GSIS, the deceased police
officer was plainly acting as a father to his son, an act which is purely personal, foreign and
unrelated to his employment. His having been killed at the place where he was not required
to be and while he was not in the performance of his duty, cannot be considered to have arisen
out of and in the course of employment.
Mr. Chief Justice Panganiban, speaking for the Supreme Court, reversed the GSIS ruling,
holding that for purposes of determining compensation to be given their widows and
orphans, policemen -- by the nature of their functions -- are deemed to be on 24-hour duty. x
x x since the public demands, as it ought to, strict performance of duty by our lawmen in
maintaining peace and security, the government, in the same measure, must be ready to
compensate their heirs who are left without any means of support. Applying social justice,
the Court said:
Finally, in Vicente vs. Employees' Compensation Commission, we held that in case
of doubt, "the sympathy of the law on social security is toward its beneficiaries,
and the law, by its own terms, requires a construction of utmost liberality in
their favor." For this reason, this Court lends a very sympathetic ear to the cries
of the poor widows and orphans of police officers. If we must demand - as we
ought to - strict accountability from our policemen in safeguarding peace and
order day and night, we must also to the same extent be ready to compensate
their loved ones who, by their untimely death, are left without any means of
supporting themselves.
Revisiting the case of Philippine Blooming Mills Employment Organization, et al v. Philippine
Blooming Mills Co., Inc. and CIR50, the Court could have arrived at the same decision favoring
the employees without declaring a hierarchy of human rights. There was no showing that the
extent of the intrusion or harm to the employer or the Company was serious or substantial.
The Supreme Court said that the employers claim of loss is a plea for the preservation of their
property rights which would not spell the difference between the life and death of the firm or
its owners. Material loss can be repaired or adequately compensated. On the other hand, the
employees anguish is much more serious. As the Court observed, the debasement of the
50
Phil. Blooming Mills Employment Org., et al v. Phil. Blooming Mills Co., Inc., G.R. No. L-31195 (1973).
VOL. 7
37
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.
Moreover, the employer failed to point out what core of its right was violated. It is doubtful
that its right to property was seriously threatened. There was no showing that the strike could
directly violate the employers right to property; at the utmost, the strike could impose
management adjustments or affect the size of its profits.
Social justice was also on the side of the employees. They had more to lose in life than the
company. If the situation had been different where the employer is a mere sari-sari store owner
and where the strike could seriously affect his means of livelihood, perhaps the decision would
have been different. Either the court would accommodate both rights by reinstating the
workers without pay, holding that the workers should have staged their strike outside their
shift, or upheld the dismissal with separation pay.
A U.S. Supreme Court case51 involving the right to property was decided without any mention
of a hierarchy of rights. Zacchini, an entertainer, performs a "human cannonball" act in which
he is shot from a cannon into a net some 200 feet away. He was engaged to perform at the
fair grounds. Members of the public attending the fair were not charged a separate admission
fee to observe his act. A freelance reporter for Scripps-Howard Broadcasting Co., the operator
of a television broadcasting station, attended the fair. Zacchini noticed that the reporter
carried a small movie camera. Upon Zacchinis request, the reporter did not videotape
Zacchinis performance that day, but he did so the next day. The film clip recording the entire
act, approximately 15 seconds in length, was shown on the TV news program that night,
together with a favorable commentary.
Zacchini brought action for damages, alleging that showing the film of his act without his
consent constitutes an unlawful appropriation of his professional property and a violation of
his "right to publicity value of his performance." 52 He is not contending that his appearance
at the fair and his performance could not be reported by the press as newsworthy items. His
complaint is that respondent filmed his entire act and displayed that film on television for the
public to see and enjoy. This, he claimed, was an appropriation of his professional property.
The TV Company contended that the principle enunciated in the case of New York Times
Co. v. Sullivan, 376 U. S. 254 (1964) and other cases is that "the press has a privilege to report
matters of legitimate public interest even though such reports might intrude on matters
51
Zacchini v. Scripps-Howard Broadcasting Co, 433 U.S. 562 (1977).
52
Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St. 2d 224, 351 N. E. 2d 454, 455 (1976).
38
2014
otherwise private," and concluded, therefore, that the press is also "privileged when an
individual seeks to publicly exploit his talents while keeping the benefits private."53
The Court ruled that the First and Fourteenth Amendments do not protect the media from
liability for broadcasting a performers entire act without his consent. The broadcast of a film
of the performers entire act robs the performer of a substantial economic value of his
performance. Zacchinis act is the product of the petitioners talent and energy, demanding
from him much time, effort and expense. Its economic value lies in the right of exclusive
control over the publicity given to his performance. If the public can see the act free on
television, the public would be less willing to pay to see it at the fair. The effect of the public
broadcast of the performance is similar to preventing the petitioner from charging an
admission fee.
There is no doubt that entertainment, as well as news, enjoys First Amendment protection. It
is also true that entertainment itself can be important news. But it is important to note that
neither the public nor respondent will be deprived of the benefit of petitioner's performance
as long as his commercial stake in his act is appropriately recognized. Petitioner does not seek
to enjoin the broadcast of his performance; he simply wants to be paid for it.
The joint dissention opinion of Mr. Justice Powell, Mr. Justice Brennan, and Mr. Justice
Marshall pointed out that there is no indication that the TV Company made any commercial
use of the film. Instead, it simply reported on a newsworthy event by means of film coverage.
The report was part of an ordinary daily news program, consuming a total of 15 seconds. It
is a routine example of the press' fulfilling its vital informing function.
According to the dissenters, the Court's holding that the station's ordinary news report may
give rise to substantial liability has disturbing implications, for the decision could lead to a
degree of media self-censorship.54 A television news editor, unsure whether certain film
footage might be held to portray an "entire act", may decline coverageeven of clearly
newsworthy eventsor confine the broadcast to toned-down verbal reporting, perhaps with
an occasional still picture. The public is then the loser. This is hardly the kind of news
reportage that the First Amendment is meant to foster.55
53
Zacchini v. Scripps-Howard Broadcasting Co., 47 Ohio St. 2d, at 234, 351 N. E. 2d, at 461 (1976).
54
Smith v. California, 361 U. S. 147, 150-154 (1959).
55
See generally Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, 257-258 (1974); Time,
Inc. v. Hill, 385 U. S. 374, 389 (1967); New York Times Co. v. Sullivan, 376 U. S. 254, 270-272, 279
(1964).
VOL. 7
39
The Zacchini case is a classic example of a clash between a private economic right and a
public right. The court chose to adopt the approach that respects the importance of both rights.
It recognized the right of the media to report Zacchinis performance as newsworthy items,
or even to broadcast Zacchinis entire act, but it also accommodated Zacchinis right of
exclusive control over the publicity given to his performance" and his right to be compensated
for the appropriation of his property without his consent. The TV Companys defense that
there was no commercial use of the film fails to consider that even news programs compete
for ratings. The more people tune in to a news program, the higher the rating. High ratings
translate to more advertisers, more clients, and more commercial value.
The TV Companys right to report news the core of the right was not challenged by
Zacchini. What the TV company wants the court to uphold is its broadcast of Zacchinis entire
act, which appears to be mere periphery of the right periphery because the TV company
was not able to establish that broadcasting the entire performance which was merely for
entertainment purposes -- was necessary for its vital informing function.
Finally, the Zacchini case applied social justice principles as found in the Philippine
constitution in deciding the case, such as the creation of economic opportunities, full
protection to labor, right of labor to its share in the fruits of production, right of enterprises to
reasonable returns to investments, respect for the rights of small property owners, and the
protection of human rights.
In a California case,56 the California Supreme Court upheld property rights, which includes
the right not to surrender ones property to an unlawful demand, over anothers claim to right
to life. In this case, a customer sued a KFC restaurant for damages for her emotional distress,
medical expenses, loss of wages and earning capacity. The plaintiff customer alleged that she
was seized and held at gunpoint by an armed robber who demanded money from the
restaurant and her, and threatened her with serious injury if KFC employees did not give him
the money in the cash register. The store cashier did not comply, instead falsely told the robber
that she would have to get the key for cash register from the back of the restaurant. The robber
became agitated and angry, shoved the gun on plaintiffs back, and told the cashier he would
shoot the plaintiff. The plaintiff screamed at the cashier who then opened the register and
gave the money to the robber. The robber then fled.
The majority opinion of the Supreme Court of California was that there is no duty to comply
with the demands of the robber even when the robber held a hostage and threatened to shoot
her. Yielding to the robbers demands would not guarantee the hostages safety. A finding of
a duty to comply would encourage hostage taking and therefore would be contrary to public
56
KFC of California, Inc. v. Sup Ct LA County, 14 Cal.4th 814, 59 Cal.Rptr.2d 756; 927 P.2d 1260, No.
S051085 (1997).
40
2014
safety. Since the KFC employee did not show active resistance to the robbery, it was not an
issue whether it was his duty to avoid injury to third persons. The rule says, there is no duty
to comply with a robbers unlawful demand for the surrender of property. Simple refusal to
obey does not breach any duty to third persons present on the premises.
The Supreme Court of California refused to extend a persons claim to right to life to imposing
a duty of an innocent third person to surrender his property. The KFC customers right to life
was being seriously threatened by the robber, but her right did not translate to a recognition
of a duty on the part of the KFC employee to surrender property rights, especially to the
unlawful demand of the robber, even when it meant putting the customers life in grave
danger. The Court was careful not to engage in a discussion of a hierarchy of rights, but
resolved the case based on the principle that not all rights extend as far as claimed.
In a series of cases beginning with Lloyd Corp. Ltd. v. Tanner, 407 U.S. 551 (1972), the United
States Supreme Court has made it clear that private property owners may restrict freedom of
speech on private premises. Lloyd involved the Lloyd Center in Portland with extensive
parking facilities, malls, auditorium, skating rink, and multi-level buildings with stores. The
Center is privately-owned. The Court ruled that the Center, being privately-owned, could
ban leafleting against the Vietnam War. In Hudgens v. National Labor Relations Bd., 424 U.S.
507 (1976), the Court ruled that a shopping mall owner could exclude striking union members
from picketing in front of their employers store leased from the mall owner. Then, the Court,
in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980), ruled that a private shopping center
may restrict the freedom of speech inside mall premises. The Court upheld a shopping mall
owners exclusion of certain students protesting a U.N. resolution against Zionism. Pruneyard
qualified, however, that state law may authorize speech even inside mall premises.
The Washington Supreme Court addressed the speech issue in malls for the first time in
Alderwood Assoc. v. Wash. Environmental Council, 96 Wn.2d 230, 635 P.2d 108 (1981). By one
vote, the Court said that the Washington Constitution is more protective of individual speech,
and declared that signature-gathering at some place at a certain time in a certain manner is a
constitutionally guaranteed practice.
In Southcenter Joint Venture v. National Democratic Policy Committee, 113 Wn.2d 413, 780 P.2d
1282 (1989), the Court ruled that the followers of Lyndon LaRouche had no right to solicit
contributions or sell literature at Southcenter because it was a privately owned shopping mall.
It ruled that the Constitutional injunction against any action restricting freedom of speech
refers to state action, not action by private owners. Thus, mall and store owners may restrain
persons from engaging in political, charitable, or religious activities on their premises.
VOL. 7
41
In Waremart, Inc. v. Progressive Campaigns, Inc., 139 Wn.2d 623, 989 P.2d 524 (1999), signature
gatherers for an initiative wanted to take signatures inside traditional grocery stores which
were not shopping malls. Waremart banned all signature gathering and charitable
solicitations on its stores premises. The Court acknowledged a limited right to gather
signatures for initiative/referendum measures, but the Court held that such a limited right
was not applicable to Waremarts stores which does not qualify as a public forum. The
exception to the property owners sovereignty over his property in favor of activities for an
initiative or referendum is where the private property is a shopping center that bears the
earmarks of a town square or public forum.
In summation, Washington law, like federal law, allows a private property owner to exclude
all speech-related activities from the private premises. Both constitutional provisions protect
speech from government action limiting such speech, but not restrictions by private property
owners. Washington seems to recognize a narrow exception that may allow signature
gathering for initiatives and referenda on private premises, but only to shopping malls or other
places having the characteristics of a public forum, and subject to the restrictions of place,
time, and manner.
The shopping mall cases were clearly resolved not on the basis of a hierarchy of rights, but on
the principles previously discussed in this paper. The shopping malls may provide the place,
time, and manner for the political, charitable, or religious activities, solicitations, or signaturegathering with the objective of respecting and allowing the rights involved. Moreover, the
courts noted that freedom of speech did not extend to private premises where the rights of the
owner should be respected as well. The injunction against any action that curtails speech
refers to government action not restrictions imposed by private owners on ones own property.
Finally, restrictions imposed by the shopping malls do not seriously impact on the persons
freedom of speech as the person may still proceed with his speech activities, solicitations, or
signature-gathering outside the private premises.
While the courts have not established a clear rule or formula to resolve cases involving
competing rights, there are certain legal principles that provide some guidance. First, where
rights appear to be in conflict, decision-makers are urged to try to reconcile both sets of
rights. Second, in resolving the case, the decision-maker should determine which one is the
established right, not a mere individual preference. Another principle is that there must be an
actual impact on the rights of another. Mere speculation of a rights violation is not enough.
Third, the core of a right is more protected than its periphery. And finally, the full context,
facts and constitutional values at stake, specially the constitutional provisions on social
justice, should be considered.
It should be noted that the discussion in this paper is limited to competing or colliding private
human rights, involving right to property. Cases that involve ones right to property against
the States police power or eminent domain or those that involve intellectual property rights
42
2014
against the right to health are outside the scope of this paper. Perhaps, that would be a good
topic for future studies.
Respect for private property promotes human creativity and flourishing. Private property,
which includes the talents, skills, and abilities of people, allows them to choose and specialize
on different occupations, enterprises, products, lifestyles, etc. without interfering with the
freedom of others to do the same. They apply their abilities and knowledge to the creation of
goods and services.
It can be said that human rights are extensions of property rights. For example, if the
government owns all the printing presses, paper, and distribution systems, there is no freedom
of the press. If the government owns all buildings and prints all reading materials, there is no
freedom of religion. It can also be said that property right is an extension of the right to life,
which is the most fundamental of all rights. The right to life necessarily includes the right to
defend that life from harm. It must also include the right to sustain that life through ones
labor and property. Property rights are, thus, an extension to the right to life. To a poor
individual, his bread for the day, his wages for his toil, his humble abode are his lifes
essentials. When even these are taken away, he is stripped of his humanity. How can he think
of let alone exercise his freedom of expression or the meaning of liberty when he has nothing
to eat. The right to life is not the right to bare existence. The Philippine Constitution, with all
its provisions on social justice, human rights, family, education, arts, science and technology,
envisions a life of dignity and meaning, a life not of poverty, but of prosperity.
It is curious that God created property first before humans. He designed property to be
humanitys source of food, even source of life. It is also curious to note that of the values that
both the constitutions of the United States and the Philippines so sacredly protect, it is only
property the other two being life and liberty that people cannot be deprived of without due
process of law and just compensation. With due process of law, life and liberty can be taken
away even without compensation.
In the beginning, God created property, then humans, then bestowed upon them the freedom
to use and dominate property, then He exhorted them to multiply, be fruitful, be prosperous.
Property, Life, Liberty one seamless Right on the road to Prosperity.
INDEPENDENT AND DEPENDENT CIVIL ACTIONS THROUGH THE EYES

OF RES JUDICATA
Atty. Alex Andrew P. Icao
Law Lecturer, Silliman University
December 2014
I.
INTRODUCTION
[1]
The recent decision of the Supreme Court in Lim vs Kou Co Ping (GR 175256, 23 Aug
2012) 1st div Del Castillo J made the very interesting observation that [b]ecause of the
distinct and independent nature of [independent and dependent civil liabilities], jurisprudence
holds that the offended party may pursue the two types of civil liabilities simultaneously or
cumulatively, without offending the rules on forum shopping, litis pendentia, or res judicata.
This observation has placed to fore the relationship of the principle of res judicata, litis
pendentia and forum shopping with the principles that govern independent and
dependent civil actions.
[2]
The much exhorted principle that laws in pari materia should be related to each other
in order to form a uniform, complete, coherent, and intelligible system of
jurisprudence1 equally applies to relating and synchronizing the principle of res judicata
and the rules on independent and dependent civil actions, given that both are similarly
concerned with how a court decision in one case will affect the outcome in another
case. Several questions arise in an attempt to form a coherent picture of the
relationship. For one, should the rules on independent and dependent civil actions be
an exception to both res judicata (bar by prior judgment) and res judicata (conclusiveness
of judgment)?2 Another question that arises upon an acquittal of the accused by the
trial court handling the criminal case is, whether or not a finding in the same case that
the fact from which the civil liability does not arise is a judgment on the merits (one
of the elements of res judicata) for purposes of the civil aspect, as opposed to merely an
acquittal based on reasonable doubt? Still another question is, what role did the
amendment of Rule 111 of the 1985 Rules on Criminal Procedure (1985 RCP for
brevity), by the 2000 Rules on Criminal Procedure (2000 RCP for brevity), have an
impact on implied institution of civil actions with the criminal action and thus, upon
the requirement of identity of causes of action that would operate to bar a separate
action upon the principle of res judicata (bar by prior judgment)?
[3]
In an attempt to answer these questions, this article will outline the different facets of
the rules on dependent and independent civil actions. Given that the topic on
1
2
See eg, Civil Service Commission vs Court of Appeals (GR 176162, 9 October 2012) Mendoza J.
Another way to rephrase the question is - can independent and dependent civil actions be violative of res
judicata (bar by prior judgment) and res judicata (conclusiveness of judgment) and still be valid?
44
INDEPENDENT AND DEPENDENT CIVIL ACTIONS
2014
dependent and independent civil actions has been discussed in numerous decisions of
the Supreme Court and in various secondary sources of law, where certain
nomenclatures have been attached variant meanings, the outline will include a
discussion on nomenclature, as well as basic points such as standard of proof, elements
of civil liability (base concept of civil liability), so as to form a common springboard to
succeeding discussion. Also discussed are the doctrine of election of remedies and the
principle of consolidation.
[4]
The conclusion of this article will deal with questions on the future development of the
rules on dependent and independent civil actions, as they might be affected by
changing perceptions in the principle of res judicata, especially in our understanding of
what constitutes a cause of action.
II.
NOMENCLATURE
[5]
Civil liability is actually damages. If one is civilly liable, one is said to be liable for
damages in favor of another. Civil liability may be strict (imposed regardless of fault
of the person liable), or fault based (imposed when there is a finding of fault on the
person liable).3 Since we all live in a constitutional setup, our notion of civil liability
should always be sourced from a provision of law one can only be civilly liable if a
provision of law authorizes it.
[6]
There are different and various sources of law authorizing the recovery of damages (or
civil liability).
A.
[7]
Civil liability ex delicto
Civil liability ex delicto is civil liability by reason of the crime. It is submitted that this
covers all civil liability that is defined under the Revised Penal Code or special penal
laws. Civil liability ex delicto is recoverable under Article 100 of the Revised Penal Code
which states that Every person criminally liable for a felony is also civilly liable. However,
recovery of civil liability ex delicto should not only be confined to circumstances where
criminal liability is imposable (e.g., under Article 100 of the Revised Penal Code).
Rather, civil liability ex delicto extends to circumstances where all the elements of the
crime are present, but due to an exempting circumstance, there is no criminal liability,
but only civil liability. Examples are civil liability ex delicto under Articles 1014 (civil
See for instance Article 22 of the New Civil Code or the principle of unjust enrichment, which establishes
civil liability even without fault. See also, strict liability in contracts of carriage.
4
Article 101. Rules regarding civil liability in certain cases. - The exemption from criminal liability
established in subdivisions 1, 2, 3, 5 and 6 of article 12 and in subdivision 4 of article 11 of this Code does
not include exemption from civil liability, which shall be enforced subject to the following rules:
First. In cases of subdivisions 1, 2, and 3 of article 12, the civil liability for acts committed by an
imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen
VOL. 7
45
liability even when there is exemption from criminal liability established in

subdivisions 1, 2, 3, 5 and 6 of article 12 and in subdivision 4 5 of article 11 RPC), and
3326 (civil liability for malicious mischief, theft, swindling where there is an exempting
relationship) of the Revised Penal Code. Also, since proof of the crime for purposes of
recovery of civil liability ex delicto is merely preponderance of evidence, civil liability
ex delicto is recoverable notwithstanding acquittal of the accused if the crime has been
proven upon a preponderance of evidence.7
[8]
If by preponderance of evidence as the standard of proof, there is no crime under the

law, then there can be no civil liability ex delicto. This observation applies to civil
liability imposed where the accused is acquitted simply because the criminal action
years of age, who has acted without discernment, shall devolve upon those having such person under their
legal authority or control, unless it appears that there was no fault or negligence on their part.
Should there be no person having such insane, imbecile or minor under his authority, legal
guardianship, or control or if such person be insolvent, said insane, imbecile, or minor shall respond with
their own property, excepting property exempt from execution, in accordance with the civil law.
Second. In cases falling within subdivision 4 of article 11, the persons for whose benefit the harm
has been prevented shall be civilly liable in proportion to the benefit which they may have received.
The courts shall determine, in sound discretion, the proportionate amount for which each one shall
be liable.
When the respective shares cannot be equitably determined, even approximately, or when the
liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events,
whenever the damage has been caused with the consent of the authorities or their agents, indemnification
shall be made in the manner prescribed by special laws or regulations.
Third. In cases falling within subdivisions 5 and 6 of article 12, the persons using violence or
causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the
act shall be liable, saving always to the latter that part of their property exempt from execution.
See Alfredo F. Tadiar, Civil Liablity for Criminal Conduct: Concept and Enforcement (1983) 58 (2nd
Qtr) Phil. L. Journal 63, 69 where there is civil liability notwithstanding acquittal where damage is inflicted
in order to prevent a greater evil citing the case of Tan vs Standard Vacuum Oil Co (G.R. No. L-4160.
July 29, 1952) Bautista Angelo J. This is presumably justified under Article 11 subdivision 4 in relation to
Article 101 of the Revised Penal Code.
5
Art. 332. Persons exempt from criminal liability. No criminal, but only civil liability, shall result from
the commission of the crime of theft, swindling or malicious mischief committed or caused mutually by the
following persons:
6
1. Spouses, ascendants and descendants, or relatives by affinity in the same line.

2. The widowed spouse with respect to the property which belonged to the deceased spouse before
the same shall have passed into the possession of another; and
3. Brothers and sisters and brothers-in-law and sisters-in-law, if living together.
The exemption established by this article shall not be applicable to strangers participating in the
commission of the crime.
See Romero vs People (GR 167546, 17 July 2009) Corona J, discussed above in Standard of Proof
(paragraphs [25-6]) and below in Article 29: Civil Liability In Cases of Acquittal (paragraph [109]).
7
46
2014
has prescribed8. If there is no more crime due to prescription even from a

preponderance of evidence standpoint, the source of obligation for payment of
damages is other than ex delicto.9 There is no crime when one of the elements of the
crime is absent due to a mistake of fact; in this case, the source of civil liability cannot
be ex delicto.10
B.
Breach of contract or Culpa contractual
[9]
The codal foundation for breach of contract are Articles 1170 11, 117112 and 117213 of
the New Civil Code.14
[10]
An act or omission may be committed with deliberate intent, fraud or malice (dolo) as
distinguished from mere negligence (culpa).15 Culpa contractual is merely descriptive of
Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines: Volume One
with the Family Code of the Philippines (1990), 124.
9
See Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines: Volume
One with the Family Code of the Philippines (1990), 124.
10
See Arturo M. Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines: Volume
One with the Family Code of the Philippines (1990), 124 where [i]n a criminal case for estafa the Court
may find that the accused has used for personal purposes money entrusted to him by the complaining party,
but he may be acquitted for lack of criminal intent, as when he proves that he believed in good faith that he
was authorized to use the money as a loan; in this case Tolentino says that the source of liability could be
an independent source of obligation (like the Civil Code provisions on unjust enrichment). However, where
all the essential elements of the crime are present, but the accused is nevertheless exculpated due to a
mistake of fact, then it is submitted that once all the essential elements of the crime are proven, the source
of liability can be civil liability ex delicto this is akin to the scenario contemplated by Art 101 of the
Revised Penal Code. An example would be a person who commits a crime but is exempt from criminal
liability under Article 12 paragraph 6 (acting under the impulse of an uncontrollable fear of an equal or
greater injury) and that person committed an honest mistake of fact as to the circumstances which
constituted the uncontrollable fear of an equal or greater injury.
Article 1170 states Those who in the performance of their obligations are guilty of fraud, negligence,
or delay, and those who in any manner contravene the tenor thereof, are liable for damages.
11
12
Article 1171. Responsibility arising from fraud is demandable in all obligations. Any waiver of an action
for future fraud is void.
13
Article 1172. Responsibility arising from negligence in the performance of every kind of obligation is
also demandable, but such liability may be regulated by the courts, according to the circumstances. (1103)
14
See also Article 2201 of the New Civil Code which states that:
Article 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith
is liable shall be those that are the natural and probable consequences of the breach of the obligation, and
which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which
may be reasonably attributed to the non-performance of the obligation. (1107a)
15
A distinction between dolo and culpa is found in Article 3 of the Revised Penal Code. The relevant portion
of Article 3 states Felonies are committed not only by means of deceit (dolo) but also by means of fault
VOL. 7
47
the non-intentional (and negligent) manner by which a contract is breached. In line

with this, it has been said that in culpa contractual (for breach of contract of carriage):
[T]he foundation of the legal liability of the defendant is the contract of carriage, and
that the obligation to respond for the damage which plaintiff has suffered arises,
if at all, from the breach of that contract by reason of the failure of defendant to
exercise due care in its performance16
C.
[11]
Article 217617 of the New Civil Code is the codal foundation for quasi-delict.18 Quasidelict includes both intentional (dolo) and unintentional (culpa) acts or omissions. In
Safeguard Security Agency Inc vs Tangco19 the Supreme Court quoting from Dulay vs Court
of Appeals20 affirmed the ruling laid down in Elcano vs Hill21 that Article 2176, where it
refers to "fault or negligence," covers not only acts "not punishable by law" but also acts criminal
in character, whether intentional and voluntary or negligent. Culpa aquliana is merely
descriptive of the non-intentional (and negligent) manner by which a quasi-delict is
committed.
D.
[12]
Quasi-Delict or Culpa Aquiliana
Dependent vs independent civil action / civil liability
The provisions of Articles 29, 30, 31, 32, 33, 34, 35 of the Civil Code use the term civil
action. Some cases22 and articles23 use the term civil action. However, there are also
(culpa). .. There is deceit when the act is performed with deliberate intent; and there is fault when the
wrongful act results from imprudence, negligence, lack of foresight, or lack of skill. See also, Luzon
Brokerage Co Inc vs Maritime Building Co Inc (G.R. No. L-25885 August 18, 1972) Reyes JBL J.
16
Cangco vs Manila Railroad Co (G.R. No. 12191, October 14, 1918) Fisher J. For a similar quote see
Timoteo B. Aquino, Torts and Damages (2001), 33-4 citing Rakes vs Atlantic Gulf and Pacific Co (G.R.
No. L-1719. January 23, 1907) Tracey J.
17
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation
between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
See also Article 2202 of the New Civil Code which states that: In crimes and quasi-delicts, the defendant
shall be liable for all damages which are the natural and probable consequences of the act or omission
complained of. It is not necessary that such damages have been foreseen or could have reasonably been
foreseen by the defendant.
18
19
GR No 165732, 14 Dec 2006
20
GR No 108017, 3 April 1995
21
GR No L-24803, May 26, 1977
22
See eg, Heirs of Eduardo Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J; Heirs of Jose Marcial
Ochoa vs G&S Transport (G.R. No. 170071, 9 March 2011) Del Castillo J.
23
See eg, Jose C. Vitug, Developments in Civil Law (2000) 26 (No 1) IBP L. Journal 1, 28-31.
48
2014
other cases24 which use the term dependent and independent civil liability. For
instance, in Cancio Jr vs Isip25, it was stated that:
An act or omission causing damage to another may give rise to two
separate civil liabilities on the part of the offender, i.e., (1) civil liability ex
delicto, under Article 100 of the Revised Penal Code; and (2) independent
civil liabilities, such as those (a) not arising from an act or omission
complained of as felony [e.g. culpa contractual or obligations arising from
law under Article 31 of the Civil Code,[26] intentional torts under Articles
32 and 34, and culpa aquiliana under Article 2176 of the Civil Code]; or
(b) where the injured party is granted a right to file an action independent
and distinct from the criminal action [Article 33, Civil Code]. [27] Either
of these two possible liabilities may be enforced against the offender
subject, however, to the caveat under Article 2177 of the Civil Code that
the offended party cannot recover damages twice for the same act or
omission or under both causes.[28]
[13]
The terms civil action and civil liability as used in the rules on dependent and
independent civil actions, are used to describe a cause of action for recovery of civil
liability or damages. The same classifications and distinctions are used. First, there is
the distinction between a cause of action for recovery of civil liability that arises from
crime (delict) and causes of action for recovery of civil liability that arise from other
sources of obligation. Second, there is also a distinction between codal provisions that
allow the independent recovery (separate from the criminal case) of civil liability based
on a particular cause of action, and those provisions that do not allow independent
recovery for a particular cause of action. The third distinction super-imposes on the
first two distinctions a distinction between provisions of law that give rise to a new
source of obligation (or cause of action) for the recovery of civil liability (substantive
aspect for brevity), as opposed to provisions of law that do not give rise to a new cause
of action but merely provide for a procedural remedy for the independent recovery of
an already existing source of obligation (procedural aspect for brevity).
[14]
Examples of provisions of law that give rise to sources of obligation (or causes of
action) for the recovery of civil liability are Article 100 of the Revised Penal Code (civil
liability ex delicto, or a cause of action for recovery of civil liability arising from crime),
Article 2176 of the Civil Code (quasi-delict), Article 1170 of the Civil Code (breach of
24
See eg, Cancio Jr vs Isip (G.R. No. 133978. November 12, 2002) Ynares-Santiago J; Lim vs Kou Co
Ping (GR 175256, 23 Aug 2012) Del Castillo J.
25
(G.R. No. 133978. November 12, 2002) Ynares-Santiago J. The same quote also appears in Lim vs Kou
Co Ping (GR 175256, 23 Aug 2012) Del Castillo J.
26
Bernaldes, Sr. v. Bohol Land Transportation, Inc., 7 SCRA 276, 279 [1963]
27
Vitug, Civil Law and Jurisprudence, pp. 25-26 [1993 ed.].
28
Jarantilla v. Court of Appeals, et al., 171 SCRA 429, 436 [1989], citing Barredo v. Garcia, et al., 73 Phil.
607 [1942]; Mendoza v. Arrieta, 91 SCRA 113 [1979]; Padilla v. Court of Appeals, et al., 129 SCRA 558
[1984].
VOL. 7
49
contract), Article 22 of the Civil Code (unjust enrichment). The latter three (quasidelict, breach of contract, unjust enrichment) are causes of action for recovery of civil
liability that arise (not from delict but) from other sources of obligation; Article 31 of
the New Civil Code refers to these causes of action as based on an obligation not arising
from the act or omission complained of as a felony. In Bernaldes vs Bohol Land Transportation
Inc29 the Supreme Court said that Article 31 evidently refers to a civil action based, not on
the act or omission charged as a felony in a criminal case, but to one based on an obligation
arising from other sources, such as law or contract. Thus, Article 31 of the Civil Code does
not give rise to a new source of obligation (or cause of action) for the payment of civil
liability, but provides for a procedural remedy for the independent recovery of
damages based on sources of obligation (other than delict). This explains the first type
of independent civil liability (classification 2(a)) in Cancio Jr vs Isip30.
[15]
Like Article 31 of the Civil Code, the prevailing view is that Article 33 of the Civil
Code does not give rise to a new source of obligation for the payment of civil liability,
rather it merely provides for a procedural remedy for the independent recovery of
damages based on a cause of action ex delicto31 in cases of defamation, fraud, and
physical injuries.32 Referring to Article 33 of the Civil Code, the Supreme Court said
in Madeja vs Caro33 said The civil action for damages which it allows to be instituted is exdelicto. This is manifest from the provision which uses the expressions "criminal action" and
"criminal prosecution". Thus, under the prevailing view Article 33 of the New Civil
Code is the only recognized instance authorizing an independent recovery of civil
liability arising from a cause of action ex delicto. Article 33 explains the second type of
independent civil liability (classification 2(b)) in Cancio Jr vs Isip34. The rest of the
causes of action ex delicto (other than those covered by Article 33) are called dependent
civil actions (first classification in Cancio Jr vs Isip35).36 There is however the opposite
view of Justice Caguioa where the liability under Article 33 does not arise ex delicto but
rather is more of the nature of culpa aquiliana and, therefore, separate and distinct from
29
(G.R. No. L-18193 February 27, 1963) Dizon J
30
(G.R. No. 133978. November 12, 2002) Ynares-Santiago J.
31
That Article 33 refers to civil liability ex delicto, see eg, Madeja vs Caro (L-51183, December 21, 1983)
Abad Santos J; see also Jose C. Vitug, Developments in Civil Law (2000) 26 (No 1) IBP L. Journal 1, 20
where There are specific instances, however, when the conviction of the offender for a felony would not
be required in order to enable an aggrieved party to sue on the basis of delict. Examples of such cases are
those so declared by the Civil Code as defamation, fraud, and physical injuries (Article 33, Civil Code)
[underscoring supplied]. See further Joaquin vs Aniceto (G.R. No. L-18719 October 31, 1964) Regala J
where the discussion on the independent character of the Article 33 civil action was premised on it being
sourced from delict.
32
Article 33 New Civil Code.
33
(L-51183, December 21, 1983) Abad Santos J.
34
35
36
Dependent civil actions are covered by Rule 111 of the Rules on Criminal Procedure.
50
2014
the civil liability arising from the crime.37 Under this view, Article 33 gives rise to a
new source of obligation for the payment of civil liability and logically becomes
classified as an independent civil action under Article 31 of the Civil Code
(classification 2(a)) in Cancio Jr vs Isip38 (deleting classification 2(b)). For purposes of
this article, the classification of Article 33 under the prevailing view as based on delict
and its classification under 2(b) of Cancio Jr vs Isip39 is maintained.
[16]
As to Articles 32 and 3440 of the Civil Code, Corpuz vs Paje41 has espoused the view that
the cause of action referred to in these articles is recovery of civil liability ex delicto.42
However, the better view, sustained by succeeding cases, is to consider Articles 32 and
34 as giving rise to new causes of action of intentional torts. 43 Thus, the intentional
torts created by Articles 32 and 34 are classified as independent civil actions under
Article 31 of the Civil Code (classification 2(a)) in Cancio Jr vs Isip44). That said, Articles
32 and 34 also reflect certain procedural aspects insofar as they mandate that the
aggrieved party has a right to commence an entirely separate and distinct civil action
for damages45 and the civil action shall be independent of any criminal
proceedings.46
37
Timoteo B. Aquino, Torts and Damages (2001), pp 509-10 citing 1 Caguioa 53 and Barredo vs Garcia
and Almario (G.R. No. 48006. July 8, 1942) Bocobo J.
38
39
40
Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection
to any person in case of danger to life or property, such peace officer shall be primarily liable for damages,
and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized
shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support
such action.
41
(G.R. No. L-26737. July 31, 1969) Capistrano J
Corpuz vs Paje (G.R. No. L-26737. July 31, 1969) Capistrano J, where Article 31 of the Civil Code
does not provide for an independent civil action. An independent civil action is an action that is based upon
the same criminal act as in the case of Articles 32, 33 and 34. When the civil action is based on an obligation
not arising from the act or omission complained of as a felony, such civil action being based upon an
obligation not arising from the criminal act but from a different source is not an independent civil action
within the meaning of Articles 32 33 end 34.
42
43
See eg Vinzons-Chato vs Fortune Tobacco (G.R. No. 141309, 19 June 2007) Ynares-Santiago J, where
the Supreme Court said in re Art 32 NCC that The clear intention therefore of the legislature was to create
a distinct cause of action in the nature of tort for violation of constitutional rights, irrespective of the motive
or intent of the defendant. See also the following cases where Articles 32 and 34 are classified as intentional
torts: Cancio Jr vs Isip (G.R. No. 133978. November 12, 2002) Ynares-Santiago J; Safeguard Security
Agency Inc vs Tangco (GR 165732, 14 Dec 2006) Austria-Martinez J; Santos vs Pizardo (G.R. No.
151452. July 29, 2005) Tinga J.
44
45
Article 32 Civil Code.
46
Article 34 Civil Code.
VOL. 7
[17]
51
Article 20 of the Civil Code states that Every person who, contrary to law, willfully
or negligently causes damage to another, shall indemnify the latter for the same.
Article 20 has been used to justify the award of civil liability ex delicto. For instance, it
has been said that [t]he legal basis for the award of damages in such a situation is then
not really Article 100 of the penal code but the general provision of Article 20 of the
Civil Code.47 One may not look beyond the Revised Penal Code for provisions
justifying civil liability in case of felonies48, since Article 110 of the Revised Penal Code
in defining [w]hat is included in civil liability49 includes [r]eparation of the damage
caused50, which necessarily presumes the damage caused by the felonious act.
However, in cases of special crimes (not punishable by the Revised Penal Code), the
award of civil liability ex delicto as sourced from Article 20 of the Civil Code makes
sense thus, in Banal vs Tadeo51, the Supreme Court used Article 20 as a justification
for an award of damages in a BP 22 case, when it said that:
Regardless, therefore, of whether or not a special law so provides,
indemnification of the offended party may be had on account of the
damage, loss or injury directly suffered as a consequence of the wrongful
act of another. The indemnity which a person is sentenced to pay forms
an integral part of the penalty imposed by law for the commission of a
crime (Quemel v. Court of Appeals, 22 SCRA 44, citing Bagtas v. Director of
Prisons, 84 Phil. 692). Every crime gives rise to a penal or criminal action
for the punishment of the guilty party, and also to civil action for the
restitution of the thing, repair of the damage, and indemnification for the
losses. (United States v. Bernardo, 19 Phil. 265)
[18]
However, it does not mean that if the justification for an award of damages ex delicto is
Article 20 of the New Civil Code that the cause of action should be classified under
Article 31 of the New Civil Code. Recovery of civil liability is still dependent upon the
crime. Furthermore, the long recognition of Article 20 as a justification for an award
of damages ex delicto coupled with the long held distinction between civil liability ex
delicto and civil liability arising from other sources of law militates against classifying
civil liability ex delicto under Article 31.
Alfredo F. Tadiar, Civil Liablity for Criminal Conduct: Concept and Enforcement (1983) 58 (2nd Qtr)
Phil. L. Journal 63, 66.
47
Alfredo F. Tadiar, Civil Liablity for Criminal Conduct: Concept and Enforcement (1983) 58 (2nd Qtr)
Phil. L. Journal 63, 65 where Under Philippine jurisprudence, however, felony is used to denote all crimes
punishable by the Revised Penal Code irrespective of gravity. It thus includes misdemeanors or light
felonies.
48
49
Article 110 Revised Penal Code.
50
Article 110 Revised Penal Code.
51
(GR L-78911-25, 11 Dec 1987) Gutierrez Jr J
52
[19]
For purposes of this paper, there are three categories of civil actions: a) dependent civil
action which corresponds to category 1 in Cancio Jr vs Isip52, b) Article 3153 covered
actions which corresponds to category 2(a) in Cancio Jr vs Isip54, and c) Article 3355
covered actions which corresponds to category 2(b) in Cancio Jr vs Isip.56 As to how
truly dependent or independent these causes of action are from the criminal action
is discussed in other parts of this Article in light of the doctrine of res judicata.
III.
[20]
2014
COMMON ELEMENTS AND STANDARD OF PROOF
There are two levels at which one can look at common elements that duplicate
themselves in dependent and independent civil actions. The first is common elements
between causes of action for the recovery of civil liability. 57 The second commonality
occurs between elements of the crime for purposes of imposing criminal liability, on
one hand, and elements of causes of action for the recovery of civil liability, on the
other. These two levels will be relevant later on, for purposes of res judicata
(conclusiveness of judgment), the standard of proof in proving civil liability, and the
effects of an acquittal merely based on a reasonable doubt, as opposed to an acquittal
where there is a declaration that the fact from which the civil liability may arise does
not exist.
A.
Elements of civil liability / base concept of civil liability:
[21]
The elements of each substantive cause of action for the recovery of civil liability would
depend upon the provision of law that allows the recovery of civil liability. Compliance
with the elements of the cause of action as required by the provision of law is essential
for recovery of damages.
[22]
This said, there is however a commonality of elements between certain causes of

action. For instance, the cause of action for civil liability ex delicto,58 based on quasi-
52
53
New Civil Code.
54
55
New Civil Code.
56
57
Discussed below in Elements of civil liability / base concept of civil liability (paragraphs [21-4]).
See discussions above in Civil liability ex delicto (paragraphs [7-8]); discussions above on Article 20
of the Civil Code, (paragraph [17]).
58
VOL. 7
53
delict,59 and based on breach of contract,60 have the common elements / base concept
of an act or omission of the accused / defendant causing damage to the victim /
plaintiff. In other words, the common elements are an act, causation, damage. Where
negligence is at issue, the added common element is the breach of a standard of care.61
[23]
In Banal vs Tadeo62, it was stated that:

While an act or omission is felonious because it is punishable by law, it
gives rise to civil liability not so much because it is a crime but because it
caused damage to another. Viewing things pragmatically, we can readily
see that what gives rise to the civil liability is really the obligation and the
moral duty of everyone to repair or make whole the damage caused to
another by reason of his own act or omission, done intentionally or
negligently, whether or not the same be punishable by law. In other
words, criminal liability will give rise to civil liability only if the same
felonious act or omission results in damage or injury to another and is
the direct and proximate cause thereof. Damage or injury to another is
evidently the foundation of the civil action.
[24]
The foregoing statement can be explained not so much in terms of a moral duty to
repair damage, but in terms of common elements of each cause of action mandated by
law, which is a manifestation of fidelity to our constitutional system where there can
be no cause of action unless sanctioned by law.
B.
[25]
Standard of Proof
Proof of the crime for purposes of imposing criminal liability is proof beyond a
reasonable doubt. In People vs Climaco63 the Supreme Court said that [p]roof beyond
reasonable doubt does not mean such a degree of proof, excluding possibility of error, which
produces absolute certainty. Only moral certainly is required, or that degree of proof which
See Article 2176 of the Civil Code where Whoever by act or omission causes damage to another,
there being fault or negligence, is obliged to pay for the damage done.
59
See discussions above on Breach of contract or Culpa contractual; see also Articles 1170-3 of the Civil
Code. The breach of the contract may incidentally be the negligent act or omission that causes damage to
another.
60
61
See eg, Flores vs Pineda (GR 158996, 14 November 2008) Brion J referring to the elements of a medical
negligence case. The standard of care will depend on the particular cause of action involved; for breach of
contract of carriage, Article 1733 of the Civil Code requires extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according to all the circumstances of
each case; see Article 1173 for the default standard of care required in the contracts (diligence which is
required by the nature of the obligation and corresponds with the circumstances of the persons, of the time
and of the place); for criminal negligence, see the penultimate two paragraphs of Article 365 of the Revised
Penal Code where the distinction is made between reckless imprudence and simple negligence.
62
(GR L-78911-25, 11 Dec 1987) Gutierrez Jr J.
63
(GR 199403, 13 June 2012) Carpio J.
54
2014
produces conviction in an unprejudiced mind. Preponderance of evidence is the standard

of proof in civil cases. It has been described in Soriamont Steamship Agencies Inc vs Sprint
Transport Services Inc64 as follows:
The term 'preponderance of evidence' means the weight, credit and value
of the aggregate evidence on either side and is usually considered to be
synonymous with the terms `greater weight of evidence' or 'greater
weight, of the credible evidence.' Preponderance of the evidence is a
phrase which, in the last analysis, means probability of the truth.
Preponderance of the evidence means evidence which is more
convincing to the court as worthy of belief than that which is offered in
opposition thereto. x x x." (20 Am. Jur., 1100-1101)
[26]
The standard of proof in proving civil liability regardless of source of law (be it ex delicto
or an Article 31 covered cause of action), and regardless of its being litigated in an
independent civil case or as an incident to a criminal prosecution, is always
preponderance of evidence, and not proof beyond reasonable doubt. That even civil
liability ex delicto that is litigated in a criminal case requires merely preponderance of
evidence is obvious from Supreme Court interpretations of Article 29 of the Civil Code
which authorize a court to impose civil liability ex delicto even in the event of an
acquittal by the accused. For instance, in Romero vs People65, the Supreme Court, after
acquitting the accused for failure to prove with moral certainty the wanton and
reckless manner by which petitioner drove the bus in view of the condition of the
highway where the accident occurred and the short distance between the bus and the
taxi before the collision, nevertheless imposed civil liability ex delicto reasoning that
[w]hile petitioner was absolved from criminal liability because his negligence was not proven
beyond reasonable doubt, he can still be held civilly liable if his negligence was established by
preponderance of evidence.[In that case, his civil liability remains to be ex delito. (See Manantan
v. CA, 403 Phil. 298 [2001].)] In other words, the failure of the evidence to prove negligence with
moral certainty does not negate (and is in fact compatible with) a ruling that there was
preponderant evidence of such negligence. And that is sufficient to hold him civilly liable. That
the standard of proof for proving the crime for purposes of civil liability ex delicto is
merely preponderance of evidence as opposed to proving the crime for purposes of
criminal liability, is explained by the Supreme Court in Sapiera vs CA66 in light of the
rationale of Article 29 of the Civil Code, as follows:
The old rule that the acquittal of the accused in a criminal case
also releases him from civil liability is one of the most serious flaws in the
Philippine legal system.xxx
64
(GR 174610, July 14, 2009) Chico-Nazario J quoting Republic vs Court of Appeals G.R. No. 84966, 21
November 1991, 204 SCRA 160, 168-169.
65
66
(GR 167546, 17 July 2009) Corona J.
(G.R. No. 128927. September 14, 1999) Bellosillo J quoting the report of the Code Commission which
was in turn quoted in Padilla v. Court of Appeals, No. L-39999, 31 May 1984, 129 SCRA 558.
VOL. 7
55
Such reasoning fails to draw a clear line of demarcation between

criminal liability and civil responsibility, and to determine the logical
result of the distinction. The two liabilities are separate and distinct from
each other. One affects the social order and the other private rights. One
is for punishment or correction of the offender while the other is for
reparation of damages suffered by the aggrieved party x x x It is just and
proper that for the purposes of imprisonment of or fine upon the accused,
the offense should be proved beyond reasonable doubt. But for the
purpose of indemnifying the complaining party, why should the offense
also be proved beyond reasonable doubt? Is not the invasion or violation
of every private right to be proved only by preponderance of evidence?
[Italics in Decision, underscoring supplied]
IV.
PRINCIPLE OF RES JUDICATA & LITIS PENDENTIA
[27]
Res judicata has two aspects: bar by prior judgment and conclusiveness of judgment as
provided under Section 47(b) [67] and (c), [68] Rule 39, respectively, of the Rules of
Court.69
[28]
Social Security Commission vs Rizal Poultry and Livestock Association Inc.70

describes the two concepts of res judicata, as follows:
There is bar by prior judgment when, as between the first case where
the judgment was rendered and the second case that is sought to be barred, there
is identity of parties, subject matter, and causes of action. In this instance, the
judgment in the first case constitutes an absolute bar to the second action. [71]
But where there is identity of parties in the first and second cases, but no
identity of causes of action, the first judgment is conclusive only as to those
matters actually and directly controverted and determined and not as to matters
Section 47(b) In other cases, the judgment or final order is, with respect to the matter directly adjudged
or as to any other matter that could have been raised in relation thereto, conclusive between the parties and
their successors in interest by title subsequent to the commencement of the action or special proceeding,
litigating for the same thing and under the same title and in the same capacity.
67
Section 47(c) In any other litigation between the same parties of their successors in interest, that only is
deemed to have been adjudged in a former judgment or final order which appears upon its face to have been
so adjudged, or which was actually and necessarily included therein or necessary thereto.
68
69
Norkis Trading Corporation vs Buenavista (GR 182018, 10 October 2012) Reyes J quoting Section 47
Rule 39 of the Rules of Court.
70
(GR 167050, 1 June 2011) Perez J.
Antonio v. Sayman Vda. de Monje, G.R. No. 149624, 29 September 2010, 631 SCRA 471, 480 citing
Agustin v. Delos Santos, G.R. No. 168139, 20 January 2009, 576 SCRA 576, 585; Hacienda Bigaa, Inc. v.
Chavez, G.R. No. 174160, 20 April 2010, 618 SCRA 559, 576-577; Chris Garments Corporation v. Sto.
Tomas, G.R. No. 167426, 12 January 2009, 576 SCRA 13, 21-22; Heirs of Rolando N. Abadilla v.
Galarosa, G.R. No. 149041, 12 July 2006, 494 SCRA 675, 688-689.
71
56
2014
merely involved therein. This is the concept of res judicata known as

conclusiveness of judgment. Stated differently, any right, fact or matter in
issue directly adjudicated or necessarily involved in the determination of an
action before a competent court in which judgment is rendered on the merits is
conclusively settled by the judgment therein and cannot again be litigated
between the parties and their privies, whether or not the claim, demand,
purpose, or subject matter of the two actions is the same. [72]
Thus, if a particular point or question is in issue in the second action, and
the judgment will depend on the determination of that particular point or
question, a former judgment between the same parties or their privies will be
final and conclusive in the second if that same point or question was in issue and
adjudicated in the first suit. Identity of cause of action is not required but merely
identity of issue. [73]
The elements of res judicata are: (1) the judgment sought to bar the new
action must be final; (2) the decision must have been rendered by a court having
jurisdiction over the subject matter and the parties; (3) the disposition of the case
must be a judgment on the merits; and (4) there must be as between the first and
second action, identity of parties, subject matter, and causes of action. Should
identity of parties, subject matter, and causes of action be shown in the two
cases, then res judicata in its aspect as a bar by prior judgment would apply. If
as between the two cases, only identity of parties can be shown, but not identical
causes of action, then res judicata as conclusiveness of judgment applies.[74]
[29]
Res judicata (bar by prior judgment) is also known as estoppel by verdict 75 and is
similar to the concepts of merger and bar in the United States.76 Res judicata
(conclusiveness of judgment) is also known as the rule of auter action pendant77 or issue
preclusion78 in the United States.
[30]
Preliminarily, we note that there is identity of parties between a civil case for recovery
of civil liability based on a cause of action covered by Article 31 of the Civil Code (eg,
quasi-delict), and the criminal case where the recovery of civil liability ex delicto is
litigated. This is because, in a criminal case, the true parties involved insofar as the
Antonio v. Sayman Vda. de Monje, G.R. No. 149624, 29 September 2010, 631 SCRA 471, 480 citing
Agustin v. Delos Santos, G.R. No. 168139, 20 January 2009, 576 SCRA 576, 585-586.
72
Noceda v. Arbizo-Directo, G.R. No. 178495, 26 July 2010, 625 SCRA 472, 479 citing Nabus v. Court
of Appeals, G.R. No. 91670, 7 February 1991, 193 SCRA 732, 744-745.
73
74
Oropeza Marketing Corporation v. Allied Banking Corporation, 441 Phil. 551, 564-565 (2002).
75
Tumbokon vs Legaspi (GR 153736, 12 August 2010) Bersamin J.
76
See American Law Institute, Restatement (Second) of Judgments (1982), Ch 3 17.
77
See Tumbokon vs Legaspi (GR 153736, 12 August 2010) Bersamin J.
78
See Tumbokon vs Legaspi (GR 153736, 12 August 2010) Bersamin J. See also, American Law Institute,
Restatement (Second) of Judgments (1982), Ch 3 17.
VOL. 7
57
damage aspect is concerned are the private complainant and the accused (the State is
only interested in criminal liability of the accused).79
[31]
A judgment is on the merits when it amounts to a legal declaration of the respective

rights and duties of the parties.80 This matter is relevant later on in discussing res
judicata where there is an acquittal of the accused in the criminal case.
A.
[32]
LITIS PENDENTIA AND FORUM SHOPPING AS RELATED TO RES JUDICATA
Metrobank vs International Exchange Bank81 explains the concept of litis pendentia and
forum shopping as follows:
Forum shopping has been defined as an act of a party, against
whom an adverse judgment has been rendered in one forum, of seeking
and possibly getting a favorable opinion in another forum, other than by
appeal or a special civil action for certiorari, or the institution of two or
more actions or proceedings grounded on the same cause on the
supposition that one or the other court would make a favorable
disposition. [82]
Forum shopping exists when two or more actions involve the
same transactions, essential facts and circumstances, and raise identical
causes of action, subject matter, and issues.[83] Still another test of forum
shopping is when the elements of litis pendentia are present or where a
final judgment in one case will amount to res judicata in another whether
in the two or more pending cases, there is an identity of (a) parties (or at
79
For identity of parties between a criminal case where recovery of civil liability was litigated and a civil
case, see Heirs of Eduardo Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J, where the Supreme
Court held that the element of identity of parties (for purposes of litis pendentia) was satisfied in a criminal
case for violation of BP22, & a civil case for collection.
80
Orendain vs BF Homes Inc (GR 146313, 31 Oct 2006) Velasco Jr J, citing Luzon Development Bank vs
Conquilla (GR 163338, 21 Sep 2005) Panganiban J, which in turn cites Manalo v. CA, 357 SCRA 112,
121, April 20, 2001; Mendiola v. CA, 258 SCRA 492, 500-501, July 5, 1996; Escarte Jr. v. Office of the
President, 192 SCRA 1 December 4, 1990. The Escarte case cites Vicente J. Francisco, Revised Rules of
Court, Volume II, pp. 841-842. See also Sta Lucia Realty vs Cabrigas (G.R. No. 134895. June 19, 2001)
Gonzaga-Reyes J citing Allied Banking Corporation v. Court of Appeals 229 SCRA 252 (1994) and the
Escarte case.
81
(GR 176008, 10 Aug 2011) Peralta J.
PHILPHARMAWEALTH, Inc. v. Pfizer, Inc. and Pfizer (Phil.), Inc., G.R. No. 167715, November 17,
2010; Philippine Islands Corporation for Tourism Development, Inc. v. Victorias Milling Co., Inc., G.R.
No. 167674, June 17, 2008, 554 SCRA 561, 569; Duvaz Corporation v. Export and Industry Bank, G.R.
No. 163011, June 7, 2007, 523 SCRA 405, 416-417.
82
83
Polanco v. Cruz, G.R. No. 182426, February 13, 2009, 579 SCRA 489, 495.
58
2014
least such parties as represent the same interests in both actions); (b)
rights or causes of action, and (c) reliefs sought.[84]
[33]
From the foregoing disquisition, it is evident that where the elements of res judicata (bar
by prior judgment) exist between the two pending cases (including identity of causes
of action), the presence of one case operates as a bar and will cause the dismissal of
the other on the basis of forum shopping and litis pendentia.85 However, there is no
forum shopping or litis pendentia from the mere existence of the elements of res judicata
(conclusiveness of judgment) between two pending cases if there is no identity of
causes of action between the two cases.
B.
[34]
OBJECTIVE OF RES JUDICATA, LITIS PENDENTIA & FORUM SHOPPING
In Pangilinan vs Balatbat86 the Supreme Court said that litis pendentia is based on the
policy against multiplicity of suits. In Land Bank of the Philippines vs AMS Farming
Corporation87 the Supreme Court in describing forum shopping said that it is
[c]onsidered a pernicious evil, it adversely affects the efficient administration of justice
since it clogs the court dockets, unduly burdens the financial and human resources of
the judiciary, and trifles with and mocks judicial processes. 88 In Quilo vs Jundarino,89
the Supreme Court said that res judicata frees the parties from undergoing all over
again the rigors of unnecessary suits and repetitious trials. At the same time, it
prevents the clogging of court dockets. Equally important, res judicata stabilizes rights
and promotes the rule of law.90 In Chu vs Cunanan91 the Supreme Court stated that:
The doctrine of res judicata is an old axiom of law, dictated by wisdom
and sanctified by age, and is put upon two grounds embodied in
various maxims of the common law: the one, public policy and necessity,
which makes it to the interest of the State that there should be an end to
litigation interest reipublicae ut sit finis litium; the other, the hardship on
84
Polanco v. Cruz, G.R. No. 182426, February 13, 2009, 579 SCRA 489, at 495-6.
See also, Section 3 Rule 2 of the Rules of Civil Procedure which state SEC. 3. One suit for a single
cause of action.A party may not institute more than one suit for a single cause of action.
85
86
(GR 170787, 12 September 2012) Peralta J.
87
(GR 174971, 15 October 2008) Chico-Nazario J.
88
Land Bank of the Philippines vs AMS Farming Corporation (GR 174971, 15 October 2008) ChicoNazario J citing Canuto, Jr. v. National Labor Relations Commission, 412 Phil. 467, 474 (2001).
89
(AM No P-09-2644, 30 July 2009) Chico-Nazario J.
90
Ibid, citing Basilla v. Becamon, A.M. No. MTJ-02-1404, 14 December 2004, 446 SCRA 264, 269.
91
(GR 156185, 12 September 2011) Bersamin J.
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59
the individual that he should be vexed twice for one and the same cause
nemo debet bis vexari pro una et eadem causa.92
[35]
From the foregoing, it can be seen that the remedial rules of consolidation of cases, res
judicata & litis pendentia were developed in order to avoid conflicting findings between
courts, and with the end in view of seeing an end to litigation and declogging court
dockets (avoiding multiplicity of suits), such that when a matter has been finally settled
in a case, all courts and parties are bound by that finally settled matter.
V.
A.
[36]
[37]
DEPENDENT & INDEPENDENT CIVIL ACTIONS

Adjective (procedural or remedial) nature of the rules
Having in mind the previously discussed distinction between provisions of law that
substantively create new sources of obligation or causes of action for the recovery of
civil liability (substantive aspect for brevity) and provisions of law that merely provide
the procedure for the manner of recovery of civil liability (procedural aspect for
brevity), the latter provisions are found in the Civil Code and Rule 111 of the Rules on
Criminal Procedure and primarily include a determination of the following:
Whether or not the civil action is impliedly instituted together with the criminal
case;
Whether or not a reservation (to separately litigate the civil action) must be made;
Whether or not the court handling the criminal case can award damages based on
a cause of action covered by Art 31 of the Civil Code93;
Whether or not the civil action (if filed earlier) must be suspended upon the
initiation of the criminal case, or could be consolidated with the criminal case; and
Whether or not a finding of fact in the criminal case will affect the outcome or bar
the filing of a separate civil case.
The rules are conveniently divided according to the categorization in Cancio Jr vs Isip94:
Rules for independent civil actions under Article 31 of the Civil Code Article 31
covered actions.
Rules for dependent civil actions (refers to recovery of civil liability ex delicto,
excluding the independent civil action under Article 33 of the Civil Code); and
Ibid, citing Allied Banking Corporation v. Court of Appeals, G.R. No. 108089, January 10, 1994, 229
SCRA 252.
92
93
Article 31 covered causes of action are those based other than ex delicto. See discussions above in
Dependent vs independent civil action / civil liability (paragraphs [12-19]).
94
60
[38]
Rules for independent civil actions under Article 33 of the Civil Code Article 33
covered actions.
In Mendoza vs Arrieta95 the Supreme Court quoting from Garcia vs Florido96 said that
the then provision of Section 2 Rule 111 of the 1964 RCP requiring the need to make
a reservation in the criminal case in order to separately prosecute a civil action for
quasi-delict with reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to
the letter and spirit of the said articles, for these articles were drafted ... and are
intended to constitute as exceptions to the general rule stated in what is now Section
1 of Rule 111. The proviso, which is procedural, may also be regarded as an
unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code,
which do not provide for the reservation required in the proviso. 97 However, the
Supreme Court in Maniago vs Court of Appeals98 in justifying the validity of the
reservation requirement (under Section 3 Rule 111 of the 1985 RCP) in order to
separately prosecute an Article 31 independent civil action (quasi-delict) observed that:
There are statements in some cases implying that Rule 111, 1 and 3 are
beyond the rulemaking power of the Supreme Court under the
Constitution
In Garcia v . Florido [99] The statement that Rule 111, 1 of the 1964 Rules
is "an unauthorized amendment of substantive law, Articles 32, 33, and
34 of the Civil Code, which do not provide for the reservation" is not the
ruling of the Court but only an aside, quoted from an observation made
in the footnote of a decision in another case.[100]
xxx
Indeed the question on whether the criminal action and the action for
recovery of the civil liability must be tried in a single proceeding has
always been regarded a matter of procedure and, since the rulemaking
power has been conferred by the Constitution on this Court, it is in the
keeping of this Court. Thus the subject was provided for by G.O. No. 58,
the first Rules on Criminal Procedure under the American rule. Sec. 107
of these Orders provided:
The privileges now secured by law to the person claiming to be
injured by the commission of an offense to take part in the
prosecution of the offense and to recover damages for the injury
sustained by reason of the same shall not be held to be abridged
95
(G.R. No. L-32599 June 29, 1979) Melencio-Herrera J.
96
(G.R. No. L-35095 August 31, 1973) Antonio J.
97
Ibid. Underscoring supplied.
98
(G.R. No. 104392 February 20, 1996) Mendoza J.
99
52 SCRA 420 (1973).
100
2014
Corpus v. Paje, 28 SCRA 1062, at 1069 (1969).
VOL. 7
61
by the provisions of this order; but such person may appear and
shall be heard either individually or by attorney at all stages of the
case, and the court upon conviction of the accused may enter
judgment against him for the damages occasioned his wrongful
act. It shall, however, be the duty of the promotor fiscal to direct
the prosecution, subject to the right of the person injured to appeal
from any decision of the court denying him a legal right.
This was superseded by the 1940 Rules of Court, Rule 106 of which
provided:
Sec. 15. Intervention of the offended party in criminal action. Unless
the offended party has waived the civil action or expressly
reserved the right to institute it after the termination of the
criminal case, and subject to the provisions of section 4 hereof, he
may intervene, personally or by attorney, in the prosecution of the
offense.
This Rule was amended thrice, in 1964, in 1985 and lastly in 1988.
Through all the shifts or changes in policy as to the civil action arising
from the same act or omission for which a criminal action is brought, one
thing is clear: The change has been effected by this Court. Whatever
contrary impression may have been created by Garcia v. Florido[101] and its
progeny[102] must therefore be deemed to have been clarified and settled
by the new rules which require reservation of the right to recover the civil
liability, otherwise the action will be deemed to have been instituted with
the criminal action.
Contrary to private respondent's contention, the requirement that before
a separate civil action may be brought it must be reserved does not
impair, diminish or defeat substantive rights, but only regulates their
exercise in the general interest of orderly procedure. The requirement is
merely procedural in nature.
Indeed, the requirement that the right to institute actions under the Civil
Code separately must be reserved is not incompatible with the
independent character of such actions. There is a difference between
allowing the trial of civil actions to proceed independently of the criminal
prosecution and requiring that, before they may be instituted at all, a
reservation to bring them separately must be made. Put in another way,
it is the conduct of the trial of the civil action not its institution through
101
102
52 SCRA 420 (1973).
Abellana v. Marave, 57 SCRA 106 (1974); Tayag v. Alcantara, 98 SCRA 723 (1980); Madeja v. Caro,
126 SCRA 293 (1983); Jarantilla v. Court of Appeals, 171 SCRA 429 (1989); Bonite v. Zosa, 162 SCRA
173 (1988); Diong Bi Chu v. Court of Appeals, 192 SCRA 554 (1990).
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the filing of a complaint which is allowed to proceed independently of

the outcome of the criminal case.
[39]
Mendoza vs Arrieta103seemed to recognize the need to maintain the independence of civil

actions mentioned as independent by the Civil Code by distinguishing between
allowing the trial of civil actions to proceed independently of the criminal prosecution
and requiring that, before they may be instituted at all, a reservation to bring them
separately must be made. However, under the 1987 Constitution, it is submitted that
the Supreme Court has the sole constitutional discretion to entirely repeal or amend
procedural aspects of independent civil actions found in the Civil Code even up to the
extent of making these independent civil actions totally dependent upon the
criminal action. This is so because as held in GSIS vs Heirs of Fernando F. Caballero104
unlike the 1935 and 1973 Constitutions, which empowered Congress to repeal, alter or
supplement the rules of the Supreme Court concerning pleading, practice and procedure, the 1987
Constitution removed this power from Congress. Hence, the Supreme Court now has the sole
authority to promulgate rules concerning pleading, practice and procedure in all courts.105
Whether causes of action covered by Articles 31 or 33 of the Civil Code are truly
independent of the criminal action will depend on whether they are subject or
constitute an exception to the rules of res judicata.
B.
[40]
[41]
Integral approach
It may be recalled that the following questions are among those primarily considered
in the procedural aspect:106
Whether or not a reservation (to separately litigate the civil action) must be made;
Whether or not the civil action is impliedly instituted together with the criminal
case;
Whether or not the court handling the criminal case can award damages based on
a cause of action covered by Article 31 of the Civil Code.107
It is submitted that there must necessarily be an integral approach in answering these

questions. This is because the only way for a court to validly issue a judgment on the
merits on a cause of action (or award damages based on an Article 31 covered cause
of action) is for that cause of action to be instituted together with the criminal case.
Reservation is necessary to separately litigate causes of action that are supposed to be
103
(G.R. No. L-32599 June 29, 1979) Melencio-Herrera J.
104
(GR 158090, 4 October 2010) Peralta J.
105
Ibid; citing In Re: Petition for Recognition of the Exemption of the Government Service Insurance System
from Payment of Legal Fees (A.M. No. 08-2-01-0, 11 February 2010) Corona J.
106
107
See discussions above in paragraph [36].
Article 31 covered causes of action are those based other than ex delicto. See discussions above in
paragraphs [12-19].
VOL. 7
63
impliedly instituted with the criminal case without the reservation. Reservation is only
relevant with respect to causes of action that are impliedly instituted. Reservation is
irrelevant with respect to causes of action that are not impliedly instituted, 108 or which
the law mandates to be always instituted with the criminal action.109
[42]
The requirement of due process is one justification why a court handling a criminal
case cannot award damages based on a cause of action that was not impliedly
instituted with the criminal case. The due process requirement is similarly found in
cases justifying why a court in a civil case cannot decide issues not put in issue by the
parties pleadings or evidence110. In Development Bank of the Philippines vs Teston,111 the
Supreme Court justified its earlier statement in Jose Clavano Inc vs HLURB (G.R. No.
143781. February 27, 2002) 2nd div Bellosillo J that [i]t is elementary that a judgment
must conform to, and be supported by, both the pleadings and the evidence, and must be in
accordance with the theory of the action on which the pleadings are framed and the case was
tried by reasoning that:
Due process considerations justify this requirement. It is improper to
enter an order which exceeds the scope of relief sought by the pleadings,
absent notice which affords the opposing party an opportunity to be
heard with respect to the proposed relief.[112] The fundamental purpose of
the requirement that allegations of a complaint must provide the measure
of recovery is to prevent surprise to the defendant.[113]
[43]
However, beyond the due process justification, is the need to ensure that one cause of
action is not simultaneously litigated in more than one forum at any given time. The
need to make a reservation to separately litigate those causes of action, which are
impliedly instituted with the criminal case without the reservation, is an efficient rulesignal system that ensures that litis pendentia114 is not violated. Furthermore, the
108
Presently (under section 3 Rule 111 of the 2000 Rules on Criminal Procedure), there is generally no
implied institution of causes of action covered by Articles 31 and 33 of the Civil Code.
109
Institution of the civil action is mandated by section 1(b) Rule 111 (2000 Rules on Criminal Procedure)
involving BP 22 cases, where The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed
to include the corresponding civil action. No reservation to file such civil action separately shall be
allowed. See further discussions below in BP 22 cases (paragraphs [69-71]).
110
See eg, the case of Balais vs Balais (G.R. No. L-33924 March 18, 1988) Sarmiento J which recognizes
Section 5 Rule 10 of the Rules of Court ([w]hen issues not raised by the pleadings are tried with the express
or implied consent of the parties, they shall be treated in all respects as if they had been raised in the
pleadings) as related to the concept of jurisdiction over the issues framed in the pleadings.
111
(GR 174966, 14 February 2008) Carpio Morales J.
112
61B Am Jur 2d 201-202.
113
61B Am Jur 2d 202.
114
Litis pendentia being concerned with the splitting of a single cause of action in more than one forum,
exists when a final judgment in one pending case would constitute res judicata (bar by prior judgment) in
the other pending case. See discussions above in Principle of res judicata & litis pendentia (paragraphs
[27-35]).
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reservation requirement ensures the attainment of the objective of res judicata principle
(discouraging multiplicity of suits) by preventing the private complainant whose cause
of action is impliedly instituted in the criminal case to abandon his case after evidence
has been presented therein, once the private complainant feels that the outcome in that
forum would be adverse to him, and thereafter file a separate civil action on the same
cause of action. Thus, the reservation requirement is an efficient rule system that
prevents multiplicity of suits and forum shopping.
[44]
In other words, the integral resolution of the questions aforementioned is essential not
only to satisfy due process, but is also reflective of and explains the necessity of
ensuring the uncompromisability of the principle of res judicata (bar by prior judgment)
and its objectives. A central argument which this article seeks to advance is that the
rules on dependent and independent civil actions are (and must of necessity be)
structured in such a way as not to be violative of litis pendentia or res judicata (bar by
prior judgment), by avoiding conflict of decisions on the same cause of action.
C.
Independent civil action under Article 31115
1.
Under the 1985 Rules on Criminal Procedure
[45]
The integral approach earlier discussed116 is consistent with the approach under the
1985 RCP117, where there was generally an implied institution of Article 31 covered
causes of action, and so a reservation was required in order to separately litigate them.
This is evident from a joint reading of section 3 and the first and second paragraphs of
section 1 of Rule 111. Section 3 states that
In the cases provided for in Articles 32,33, 34 and 2176 of the Civil Code
of the Philippines, the independent civil action which has been reserved
may be brought by the offended party, shall proceed independently of the
criminal action, and shall require only a preponderance of evidence.
[underscoring supplied].
[46]
On the other hand, the first and second paragraphs of section 1 of Rule 111 state that:
When a criminal action is instituted, the civil action for the recovery of
civil liability is impliedly instituted with the criminal action, unless the
offended party waives the civil action, reserves his right to institute it
separately, or institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised
Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil
115
Civil Code.
116
See discussions above in paragraphs [40-44].
117
Effective January 1, 1985, as amended in 1988 and 1994.
VOL. 7
65
Code of the Philippines arising from the same act or omission of the
accused.
[47]
This is supported by pronouncements in Casupanan vs Laroya,118 and Cancio Jr vs Isip.119

For instance, in Casupanan vs Laroya the Supreme Court held that:
Section 1, Rule 111 of the 1985 RCP, as amended in 1988, allowed the
filing of a separate civil action independently of the criminal action
provided the offended party reserved the right to file such civil
action. Unless the offended party reserved the civil action before the
presentation of the evidence for the prosecution, all civil actions arising
from the same act or omission were deemed impliedly instituted in the
criminal case. These civil actions referred to the recovery of civil liability
ex-delicto, the recovery of damages for quasi-delict, and the recovery of
damages for violation of Articles 32, 33 and 34 of the Civil Code on
Human Relations.
Thus, to file a separate and independent civil action for quasi-delict under the
1985 RCP, the offended party had to reserve in the criminal action the right to
bring such action. Otherwise, such civil action was deemed impliedly
instituted in the criminal action.
[48]
San Ildefonso Lines Inc vs CA120 is illustrative of the need to reserve the Article 31 covered
cause of action. In answer to the issue [i]f a criminal case was filed, can an
independent civil action based on quasi-delict under Article 2176 of the Civil Code be
filed if no reservation was made in the said criminal case, the Supreme Court held
that the "independent" character of these civil actions does not do away with the reservation
requirement. In other words, prior reservation is a condition sine qua non before any of these
independent civil actions can be instituted and thereafter have a continuous determination apart
from or simultaneous with the criminal action.
[49]
The rule under the 1985 RCP that an acquittal where there is a finding that the fact
from which the civil may arise does not exist extinguishes all civil actions (including
Article 31 covered actions), made sense considering that all unreserved civil actions
are impliedly instituted with the criminal case.121 A finding that the fact from which
the civil may arise does not exist will constitute res judicata (bar by prior judgment) as
to those causes of action that were impliedly instituted in the criminal case, and
consequently bar all cases filed on the same cause of action. In Sanchez vs Far East Bank
118
(G.R. No. 145391. August 26, 2002) Carpio J.
119
(GR 119771, 24 April 1998) Martinez J. Cited by Jose C. Vitug, Developments in Civil Law (2000) 26
(No 1) IBP L. Journal 1, 27-8.
120
See section 2(b) Rule 111 of the 1985 RCP where Extinction of the penal action does not carry with it
extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact
from which the civil might arise did not exist (underscoring supplied).
121
66
2014
and Trust Company122, where there was a finding that the fact from which the civil
liability may arise did not exist,123 the Supreme Court citing the general rule of implied
institution of all civil actions under the 1985 RCP said that Records do not show the
presence of any of the three instances precluding the automatic institution of the civil action
together with the criminal complaint. Ineluctably, respondents right to damages, if any, was
deemed prosecuted in the criminal proceeding. Thus, a separate civil action may no longer be
instituted. Assuming however, that the Article 31 covered action was reserved and not
tried together with the criminal case, there is the separate issue on whether or not a
finding by the court handling the criminal case that the fact from which the civil
liability may arise does not exist, may nevertheless constitute res judicata
(conclusiveness of judgment) with respect to the reserved Article 31 covered action.124
[50]
122
Since the 1985 RCP (and the 1964 RCP125) mandated the implied institution of all
unreserved civil actions (including Article 31 covered causes of action) together with
the criminal case, it made sense that the Court handling the criminal case could award
damages (notwithstanding an acquittal) on the basis of an Article 31 covered cause of
action. Examples of cases (resolved either under the 1964 or 1985 RCP) where there
was an award of damages based on an Article 31 covered cause of action are: Llorente
vs Sandiganbayan,126 Sapiera v. Court of Appeals,127 Padilla vs CA,128 People vs Ligon129 and
Belen vs Batoy.130 In Llorente vs Sandiganbayan,131 the accused was acquitted for the crime
of violation of s 3(c) of the Anti-Graft and Corrupt Practices Act, due to failure to
(GR 155309, 15 Nov 2005) Panganiban J.
123
In Sanchez vs Far East Bank and Trust Company (GR 155309, 15 Nov 2005) Panganiban J, the accused
was charged with estafa for forging checks in the name of Kai Chin (owner of the forged checks) and
misappropriating them. The fact from which the civil liability may arise did not exist, because there is
absolutely no evidence on record that the money was never turned over to to Kai Chin.
124
Assuming there is no identity of causes of action in the criminal case and a separately filed civil case,
the issue on whether or not a finding by the court handling the criminal case can constitute res judicata
(conclusiveness of judgment) is discussed below under Res judicata (conclusiveness of judgment) and
Article 31 covered causes of action (paragraphs [72-76] for Article 31 covered causes of action, An
exception to res judicata (conclusiveness of judgment) principle? (paragraphs [90-94]) for Article 33
covered causes of action for recovery of civil liability ex delicto (in cases of defamation, fraud, and physical
injuries), and under Rules to ensure that there are no conflicting factual findings as to the fact from which
the civil liability may arise (paragraphs [79-81]) for dependent civil actions.
125
Took effect January 1, 1964 per Rizal vs Naredo (GR 151898, 14 Mar 2012) 2nd div Reyes J. Under the
1964 RCP, implied institution of Article 31 covered causes of action was sanctioned by sections 1 and 2 of
Rule 111.
126
(G.R. No. 85464, 3 Oct 1991) Sarmiento J.
127
(G.R. No. 128927. September 14, 1999) Bellosillo J.
128
(GR L-39999, 31 May 1984) Gutierrez Jr J.
129
(GR 74041, 29 July 1987) Yap J.
130
(GR 76042, 23 Feb 1990) Paras J.
131
VOL. 7
67
prove that he acted with evident bad faith. The accused however was found liable to
pay damages under Art 19 NCC (abuse of right). In Sapiera v. Court of Appeals, 132 the
accused (indorser of a check) was prosecuted for estafa in an alleged conspiracy with
the maker of the check. The Supreme Court in acquitting the accused said that while
the prosecution failed to prove beyond a reasonable doubt conspiracy to commit
estafa; the accused could be civilly liable, because the accused admitted that she signed
the back of the check as indorser; on the basis of s 66 of the NIL, an indorser warrants
that on due presentment, it shall be accepted or paid or both, as the case may be, according to
its tenor, and that if it be dishonored and the necessary proceedings on dishonor be duly taken,
he will pay the amount thereof to the holder or to any subsequent indorser who may be compelled
to pay it. Thus, the liability of the accused was not based on civil liability ex delicto but
on a cause of action covered by Article 31 of the Civil Code. In Padilla vs CA,133 a
prosecution for grave coercion against the accused for forcibly opening and
demolishing the private complainants market stall and carting away its merchandize.
Notwithstanding an acquittal ([f]or a complaint [of grave coercion] to prosper under
the foregoing provision, the violence must be employed against the person, not against
property as what happened in the case at bar), civil liability was imposed because the
fact from which the civil might arise, namely, the demolition of the stall and loss of the properties
contained therein; exists, and this is not denied by the accused. And since there is no showing
that the complainants have reserved or waived their right to institute a separate civil action, the
civil aspect therein is deemed instituted with the criminal action. In People vs Ligon,134 despite
the accused being acquitted in the criminal case for robbery with homicide, the accused
was found civilly liable on the basis of quasi-delict. The Supreme Court said
Through fault and negligence, Gabat (1) failed to prevent the driver from moving forward while
the purchase was completed; (2) failed to help Rosales while the latter clung precariously to the
moving vehicle, and (3) did not enforce his order to the driver to stop. Finally, Gabat acquiesced
in the driver's act of speeding away, instead of stopping and picking up the injured victim. These
proven facts taken together are firm bases for finding Gabat civilly liable under the Civil Code
[Article 2176] for the damage done to Rosales. In Belen vs Batoy,135 despite the accused being
acquitted in the criminal case for estafa based on reasonable doubt, the Supreme Court
upheld imposition of civil liability on the accused based on contract.
[51]
One notes that under the 1985 RCP, there was no special provision applicable to
recovery of civil liability for BP 22 cases, like section 1(b) of the 2000 RCP.
132
133
134
(GR 74041, 29 July 1987) Yap J.
135
(GR 76042, 23 Feb 1990) Paras J.
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2014
2.
Under the 2000 Rules on Criminal Procedure
[52]
Under the 2000 Rules on Criminal Procedure,136 the general rule is that there is no
implied institution of Article 31 covered causes of action, and so a reservation is not
required in order to separately litigate these causes of action. This is evident from a
joint reading of paragraph 1 of section 1(a) and section 3 of Rule 111. Section 1(a) 1 st
paragraph says:
When a criminal action is instituted, the civil action for the recovery of
civil liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action
prior to the criminal action [underscoring and emphasis supplied]
[53]
Section 1(a) 2000 RCP deleted the paragraph under the 1985 RCP 137 which allowed
the implied institution of Article 31 covered causes of action. Section 3 Rule 111 2000
RCP says:
SEC. 3. When civil action may proceed independently.in the cases provided
in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the
independent civil action may be brought by the offended party. It shall
proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party
recover damages twice for the same act or omission charged in the
criminal action.
[54]
This is supported by pronouncements in Casupanan vs Laroya,138 and Cancio Jr vs Isip.139

For instance, in Casupanan vs Laroya the Supreme Court held that:
Under Section 1 of the present Rule 111, what is deemed instituted
with the criminal action is only the action to recover civil liability arising
from the crime or ex-delicto. All the other civil actions under Articles 32,
33, 34 and 2176 of the Civil Code are no longer deemed instituted, and
may be filed separately and prosecuted independently even without any
reservation in the criminal action. The failure to make a reservation in
the criminal action is not a waiver of the right to file a separate and
independent civil action based on these articles of the Civil Code. The
prescriptive period on the civil actions based on these articles of the Civil
Code continues to run even with the filing of the criminal action. Verily,
the civil actions based on these articles of the Civil Code are separate,
136
The 2000 RCP took effect on December 1, 2000.
Paragraph 2 section 1 Rule 111 1985 RCP which says [s]uch civil action includes recovery of indemnity
under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the
Philippines arising from the same act or omission of the accused, was deleted by the 2000 RCP.
137
138
(G.R. No. 145391. August 26, 2002) Carpio J.
139
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distinct and independent of the civil action deemed instituted in the

criminal action.140
[55]
The rule under the last paragraph of section 2141 2000 RCP that an acquittal where
there is a finding that the fact from which the civil liability may arise does not exist,
extinguishes only the cause of action based on delict, makes sense in terms of the
general rule under the 2000 RCP where there is no implied institution of Article 31
covered causes of action. If Article 31 covered causes of action are generally not
impliedly instituted together with the criminal case, then a finding by the court
handling the criminal case that the fact from which the civil liability may arise does
not exist, cannot constitute res judicata (bar by prior judgment) with respect to the
Article 31 covered cause of action. Assuming however, that the Article 31 covered
action was reserved and not tried together with the criminal case, there is the separate
issue on whether or not a finding by the court handling the criminal case that the fact
from which the civil liability may arise does not exist, may nevertheless constitute res
judicata (conclusiveness of judgment) as to the Article 31 covered cause of action (that
was not impliedly instituted with the criminal case).142
[56]
Since there is generally no implied institution of Article 31 covered causes of action

under the 2000 RCP, the court handling the criminal case cannot award damages in
the criminal case based on the Article 31 covered cause of action.
[57]
Examples of cases consistent with the general rule that there is no implied institution
of Article 31 covered causes of action under the 2000 RCP, and consequently there is
no need to make a reservation in the criminal case, the court handling the criminal
case cannot award damages based on an Article 31 covered cause of action, and a
finding by the court handling the criminal case that the fact from which civil liability
may arise does not exist only extinguishes civil liability ex delicto and not Article 31
covered causes of action, are: Heirs of Jose Marcial Ochoa vs G&S Transport,143 Lim vs
Note however, that the statement that All the other civil actions under Articles 32, 33, 34 and 2176 of
the Civil Code are no longer deemed instituted, is merely a statement of the general rule. There are
exceptions (express exception for BP 22 cases, and possibly an exception for estafa cases), discussed below
in paragraph [68] for estafa cases, and paragraphs [69-71] for BP 22 cases.
140
Section 2 last paragraph of Rule 111 says The extinction of the penal action does not carry with it
extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there
is a finding in a final judgment in the criminal action that the act or omission from which the civil liability
may arise did not exist.
141
142
Assuming there is no identity of causes of action in the criminal case and a separately filed civil case,
the issue on whether or not a finding by the court handling the criminal case can constitute res judicata
(conclusiveness of judgment) is discussed below under Res judicata (conclusiveness of judgment) and
Article 31 covered causes of action (paragraphs [72-76] for Article 31 covered causes of action, An
exception to res judicata (conclusiveness of judgment) principle? (paragraphs [90-94]) for Article 33
covered causes of action for recovery of civil liability ex delicto (in cases of defamation, fraud, and physical
injuries), and under Rules to ensure that there are no conflicting factual findings as to the fact from which
the civil liability may arise (paragraphs [79-81]) for dependent civil actions.
143
(G.R. No. 170071, 9 March 2011) Del Castillo J.
70
2014
Kou Co Ping,144 and Cancio Jr vs Isip.145 In Heirs of Jose Marcial Ochoa vs G&S Transport,
there was an accident involving a taxicab driven by Padilla owned by G&S Transport,
with Jose M. Ochoa as passenger that resulted in the latters death. Two separate cases
were filed: one criminal case filed against Padilla, and another civil case against G&S
for breach of contract of carriage. The Supreme Court in concluding that the acquittal
of Padilla in the criminal case is immaterial to the civil case, reasoned that:
This thus now leaves us with the remaining issue raised by G & S, that
is, whether the CA gravely erred in not taking note of the fact that Padilla
has already been acquitted of the crime of reckless imprudence resulting
in homicide, a charge which arose from the same incident subject of this
case.
Article 31 of the Civil Code provides, viz:
xxx
Thus, in Cancio, Jr. v. Isip, [146] we declared:
In the instant case, it must be stressed that the action filed by
petitioner is an independent civil action, which remains separate
and distinct from any criminal prosecution based on the same act.
Not being deemed instituted in the criminal action based on culpa
criminal, a ruling on the culpability of the offender will have no
bearing on said independent civil action based on an entirely
different cause of action, i.e., culpa contractual. (Emphasis
supplied; Citations omitted.)
In this case, the action filed by the heirs is primarily for the recovery of
damages arising from breach of contract of carriage allegedly committed
by G & S. Clearly, it is an independent civil action arising from contract
which is separate and distinct from the criminal action for reckless
imprudence resulting in homicide filed by the heirs against Padilla by
reason of the same incident. Hence, regardless of Padillas acquittal or
conviction in said criminal case, same has no bearing in the resolution of
the present case. There was therefore no error on the part of the CA
when it resolved this case without regard to the fact that Padilla has
already been acquitted by the RTC in the criminal case. Moreover, while
the CA quoted some portions of the MTC Decision in said criminal case,
we however find that those quoted portions were only meant to belie G
& S claim that the proximate cause of the accident was the negligence of
the driver of the delivery van which allegedly hit the Avis taxicab. Even
without those quoted portions, the appellate courts ultimate finding that
it was Padillas negligence which was the proximate cause of the mishap
144
(GR 175256, 23 Aug 2012) Del Castillo J.
145
146
440 Phil. 29, 40 (2002).
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would still be the same. This is because the CA has, in fact, already made
this declaration in the earlier part of its assailed Decision. The fact that
the MTC Decision from which the subject quoted portions were lifted
has already been reversed by the RTC is therefore immaterial.
a.
Estafa cases:
[58]
There is a prima facie conflict in cases decided by the Supreme Court after the effectivity
of the 2000 RCP (took effect December 1, 2000), in terms of consistency with an
integral approach to the 2000 RCP and its general rule that there is no implied
institution of Article 31 covered causes of action together with the criminal case.
[59]
Cases decided after effectivity of the 2000 RCP and which are apparently premised on
the implied institution of Article 31 covered causes of action together with the criminal
case include Sanchez vs Far East Bank and Trust Company,147 Salazar vs People,148 EusebioCalderon vs People,149 and Gausch vs dela Cruz.150
[60]
Cases decided after effectivity of the 2000 RCP and which are apparently premised on
the non-institution of Article 31 covered causes of action together with the criminal
case include DMPI Employees Credit Cooperative Inc vs Velez,151 Cancio Jr vs Isip,152 and Lim
vs Kou Co Ping.153
[61]
However, the conflict may be more illusory than real in most cases, and may be more
of an issue on the correct retroactive application of the 2000 RCP to criminal actions
that were commenced during the effectivity of the 1985 RCP. Stated otherwise, the
issue may be stated as follows whether or not the 2000 RCP had the effect of
severing Article 31 covered causes of action that were impliedly instituted with the
criminal case (the criminal case having been commenced during the effectivity of the
1985 RCP which mandated the implied institution of Article 31 covered causes of
action). Competing principles interact when considering this issue. There is in this
context, the principle that where a court has already obtained and is exercising
jurisdiction over a controversy, its jurisdiction to proceed to the final determination of
the case is not affected by new legislation placing jurisdiction over such proceedings
in another tribunal unless the statute either expressly provides or is construed to the
effect that it is intended to operate on actions pending before its enactment.154
147
148
(GR 151931, September 23, 2003) Callejo Sr J.
149
(G.R. No. 158495. October 21, 2004) Ynares-Santiago J.
150
(GR 176015, 16 June 2009) Puno CJ.
151
(G.R. No. 129282. November 29, 2001) Pardo J.
152
153
154

Municipality of Sta Fe vs Municipality of Aritao (GR 140474, 21 September 2007) Azcuna J.
72
2014
However, notwithstanding the invocation of the opposing principle that [p]rocedural

laws may be given retroactive effect to actions pending and undetermined at the time of their
passage. There are no vested rights in the rules of procedure,155 it is respectfully submitted
that allowing a severance of Article 31 covered causes of action impliedly instituted
with the criminal case, upon the enactment of the 2000 RCP, no matter what stage the
criminal case is at, is doctrinally unsound as this might run inconsistent with due
process and the objective of avoiding multiplicity of suits. While there may be debate
as to what point or stage in the criminal case would a severance (of the Article 31
covered cause of action) upon the enactment of the 2000 RCP become unfeasible, it is
submitted that severance can only be allowed when the 2000 RCP took effect before
the prosecution starts presenting its evidence.156 Once evidence has already been
presented in the criminal case, severing the Article 31 covered cause of action would
not only run contrary to the objective of avoiding multiplicity of suits (since evidence
already presented in the criminal case on the Article 31 covered cause of action would
have to be presented again in the event that a separate civil case founded on the Article
31 covered cause of action is filed), but would also be objectionable on due process
grounds (for example, when a severance is allowed after the prosecution unjustifiably
fails to present evidence on the Article 31 covered cause of action in the criminal case,
the accused would be deprived of his/her right to insist on a judgment on the merits
that the Article 31 cause of action was not proven; a right which, sans severance, the
accused could have insisted upon as a necessary consequence of the implied institution
of the Article 31 covered cause of action together with the criminal action commenced
under the 1985 RCP).
[62]
In the context of the submissions stated in the immediately preceding paragraph, the
cases of Sanchez vs Far East Bank and Trust Company,157 Salazar vs People,158 EusebioCalderon vs People,159 DMPI Employees Credit Cooperative Inc vs Velez, 160and Cancio Jr vs
Isip161 are analyzed further because these cases, while not questioning the soundness of
DMPI Employees Credit Cooperative Inc vs Velez (G.R. No. 129282, 29 Nov 2001) Pardo J citing Pfizer
Inc. v. Galan, G. R. No. 143389, May 25, 2001. The same pronouncement was made in Cancio Jr vs Isip
(G.R. No. 133978. November 12, 2002) Ynares-Santiago J where the Supreme Court citing Casupanan vs
Laroya (G.R. No. 145391. August 26, 2002) Carpio J, citing People v. Arrojado, 350 SCRA 679 [2001];
Ocampo v. Court of Appeals, 180 SCRA 27 [1989]; Alday v. Camilon, 120 SCRA 521 [1983]; People v.
Sumilang, 77 Phil. 764 [1946] stated that statutes regulating the procedure of the court are construed as
applicable to actions pending and undetermined at the time of their passage.
155
156
Section 1 Rule 111, which states the rule when a reservation must be made for the separate filing of civil
liability based on a cause of action ex delicto.
157
158
159
160
161
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the 2000 RCP, try to determine the correct retroactive application of the 2000 RCP to
criminal actions commenced during the effectivity of the 1985 RCP.
[63]
In Sanchez vs Far East Bank and Trust Company, 162 the accused (Sanchez), prosecuted for
estafa, was acquitted and there was a finding that the accused was not civilly liable.
The Court held that the private complainants right to damages, if any, was deemed
prosecuted in the criminal proceeding. Thus, a separate civil action may no longer be instituted.
Although the criminal case in Sanchez was commenced during the effectivity of the
1985 RCP, the 2000 RCP was not retroactively applied presumably because the latter
took effect after the trial court handling the criminal case had already rendered a
decision.163
[64]
Salazar vs People,164 like the Sanchez case is also premised on the implied institution of
the Article 31 covered cause of action together with the criminal case. The information
for estafa filed on June 11, 1997 alleged conspiracy between the issuer and indorser in
using an unfunded check to fraudulently acquire merchandise. When the indorser
(petitioner Salazar) was acquitted upon a demurrer to evidence, the trial court ordered
Salazar to pay the amount of the check on the basis of petitioners breach of warranty
as indorser under the Negotiable Instruments Law. Salazar filed a motion for
reconsideration contending that she should be given a chance to present evidence on
the civil aspect, which was denied. The Supreme Court said that Salazar should be
given the chance to present evidence on the civil aspect. The effectivity of the 2000
RCP did not cause the severance of the Article 31 covered cause of action that was
impliedly instituted with the criminal case, presumably because the 2000 RCP took
effect after the prosecution had already started presenting its evidence.165
[65]
In Eusebio-Calderon vs People,166 the trial court handling the criminal case convicted the
accused of estafa. The Court of Appeals acquitted her of estafa, but ordered her to pay
civil liability. On an appeal involving the civil aspect, the Supreme Court ordered the
accused to pay damages, not based on civil liability ex delicto (because the accused did
not employ trickery or deceit in obtaining money from the private complainants), but
based instead on a contractual obligation (covered by Article 31) since the money
obtained was undoubtedly loans for which petitioner paid interest. The checks issued by
petitioner as payment for the principal loan constitute evidence of her civil liability which was
162
163
See Sanchez vs Far East Bank and Trust Company (GR 155309, 15 Nov 2005) Panganiban J where
respondent filed a Motion for Reconsideration of the civil aspect of the RTC Decision. In an Order dated
March 20, 1996, the trial court denied reconsideration.
164
165
Salazar vs People (GR 151931, September 23, 2003) Callejo Sr J. The fact that the prosecution had, at
the very least, started presenting its evidence when the 2000 RCP took effect is implied from the time of
filing of the information (June 1, 1997) to the time when the trial court rendered the assailed decision
(November 19, 2001) acquitting the accused upon a demurrer to evidence but holding the latter civilly
liable.
166
74
2014
deemed instituted with the criminal action. Like the Sanchez case,167 the effectivity of the
2000 RCP did not cause the severance of the Article 31 covered cause of action
impliedly instituted with the criminal case, because the 2000 RCP took effect when the
trial court had already rendered a decision in the criminal case.168
[66]
In DMPI Employees Credit Cooperative Inc vs Velez,169 after an information was filed on
February 18, 1994 against the accused for estafa, the private complainant filed against
the accused on March 29, 1994 a civil case for sum of money and damages. The
accused challenged the trial courts order (February 21, 1997) in the civil case
reinstating the civil case, which reconsidered its earlier order (December 12, 1996)
dismissing the civil case. The Supreme Court on November 29, 2001, citing the
changes under the 2000 RCP, sustained the trial court by ruling that the civil case may
proceed independently even if there was no reservation as to its filing. The DMPI case
is not actually about whether or not the enactment of the 2000 RCP involuntarily
caused the severance of the Article 31 covered cause of action from the criminal case.
Rather, the severance in the DMPI case occurred due to the voluntary filing by the
private complainant of the civil case barely one month after the filing of information.
[67]
In Cancio Jr vs Isip,170 the criminal cases for estafa were dismissed on October 21, 1997
by the trial court handling the criminal case with the express statement that the cases
be dismissed without prejudice to the re-filing of the civil aspect of the cases. After the
dismissal, the private complainant filed on December 15, 1997, a civil case for
collection of a sum of money against the accused. The Supreme Court said the cause
of action in the civil case is based on culpa contractual, an independent civil action. On
March 20, 1997, the trial court handling the civil case dismissed the latter on the
ground of lack of interest or failure to prosecute is an adjudication on the merits which
amounted to res judicata on the civil case for collection. The Supreme Court, citing
and retroactively applying the 2000 RCP, said that there was no res judicata because
[n]ot being deemed instituted in the criminal action based on culpa criminal, a ruling
on the culpability of the offender will have no bearing on said independent civil action
based on an entirely different cause of action, i.e., culpa contractual. It is submitted that
the Supreme Courts approach of deeming the Article 31 covered cause of action as
never having been impliedly instituted together with the criminal case (commenced
during the effectivity of the 1985 RCP) due to the retroactive application of the 2000
RCP is procedurally unrealistic of the fact that before the effectivity of the 2000 RCP,
the the presentation of evidence on the Article 31 covered cause of action was a
necessary consequence of its implied institution under the 1985 RCP. It is submitted
167
Sanchez vs Far East Bank and Trust Company (GR 155309, 15 Nov 2005) Panganiban J.
168
Eusebio-Calderon vs People (G.R. No. 158495. October 21, 2004) Ynares-Santiago J where it was
stated that [t]his is a petition for review assailing the Decision dated April 30, 2001 of the Court of
Appeals which reversed and set aside the Decision dated June 17, 1999 of the Regional Trial Court .
acquitting the accused of the crime of Estafa but ordering her to pay civil liability. [underscoring
supplied].
169
170
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that the real issue on the retroactive application of the 2000 RCP in this context must
be whether or not its effectivity caused the severance of the Article 31 covered cause of
action impliedly instituted with the criminal case commenced under the 1985 RCP.
Nonetheless, the absence of res judicata in the Cancio case could have been sustained,
assuming the implied institution of the Article 31 covered cause of action and its nonseverance (the prosecution had already started presenting its evidence), because res
judicata requires that the judgment (of the trial court handling the criminal case) is a
judgment on the merits. In the Cancio case, there was no judgment on the merits since
there was no legal declaration of the respective rights and duties of the parties 171
insofar as the Article 31 covered cause of action was concerned; in fact, the October
21, 1997 Order expressly reserved the re-filing of the civil aspect.
[68]
The case of Gausch vs dela Cruz172 goes directly against the premise of Lim vs Kou Co
Ping173 that there is no implied institution of Article 31 covered causes of action under
the 2000 RCP. In Gausch, the Supreme Court sustained the Court of Appeals finding
that the trial court committed grave abuse of discretion in refusing to amend its order
granting a demurrer to evidence by making a finding on the civil liability of the
accused. The accused was charged with estafa for fraudulently exchanging his check
with money of the private complainant but was acquitted due to failure to prove
beyond a reasonable doubt the element of fraud. The Supreme Court said that there
was ample basis to award civil liability based on loan (an Article 31 covered cause of
action) since this was even admitted by the accused. It is submitted that the award of
damages based on loan in the criminal case, being premised on the implied institution
of the Article 31 covered cause of action together with the criminal case, cannot be
justified upon a retroactive application of the 2000 RCP because the information in
the criminal case was filed on February 7, 2002 or after the 2000 RCP took effect.
There are two alternative approaches to make sense of Gausch under the 2000 RCP.
First, one can treat the Gausch ruling as incorrect. Second, Gausch can be viewed as the
second exception,174 insofar as estafa cases are concerned, to the general rule that there
is no implied institution of Article 31 covered causes of action under the 2000 RCP.
Since estafa cases are, like BP 22 cases, arguably used by creditors as means to collect
the civil liability, the rationale of Heirs of Eduardo Simon vs Chan175 that the BP 22
exception was enacted to help declog court dockets which are filled with B.P. 22 cases
as creditors actually use the courts as collectors is equally applicable to the second
alternative insofar as declogging court dockets is concerned. Should the second
approach be favored, and in the absence of express rules governing estafa cases, it is
171
Orendain vs BF Homes Inc (GR 146313, 31 Oct 2006) Velasco Jr J, defining what constitutes a judgment
on the merits. See further discussions above in paragraphs [27-28, 31].
172
173
(GR 176015, 16 June 2009) Puno CJ.

174
The first exception refers to BP 22 cases, which is expressly recognized and mandated by Section 1(b)
of the 2000 RCP to always institute all causes of action for civil liability, including Article 31 covered
causes of action.
175
(GR 157547, 23 February 2011) Bersamin J.
76
2014
submitted that an argument that a reservation (or some other efficient rule-signal
system to effectively communicate to the court handling the criminal case the intention
of separately litigating the Article 31 covered cause of action) is not required to
separately litigate the Article 31 covered cause of action cannot be sustained because
it detracts from the integral approach176 which ensures the uncompromisability of res
judicata (bar by prior judgment) and litis pendentia, and avoiding conflict of decisions
on the same cause of action.
b.
BP 22 cases:
[69]
Under the 2000 RCP, there is an express rule found in Section 1(b) of Rule 111
mandating the implied institution of all causes of action for civil liability, including
those that arise other than ex delicto (ie, Article 31 covered causes of action), together
with the BP 22 case. The first paragraph of Section 1(b) of Rule 111 states that The
criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the
corresponding civil action. No reservation to file such civil action separately shall be allowed.
Due to its mandatory nature, the private complainant cannot even choose to severe
the cause of action for civil liability from the criminal case, making the option to make
a reservation irrelevant.177 Heirs of Eduardo Simon vs Chan178 stated that Section 1(b) of
Rule 111 was adopted from Supreme Court Circular 57-97 that took effect on
November 1, 1997.179 The rationale for the enactment of Section 1(b) of Rule 111 was
explained in Heirs of Eduardo Simon vs Chan180 quoting the earlier case of Hyatt Industrial
Manufacturing Corp. vs Asia Dynamic Electrix Corp.181 as follows:
This rule was enacted to help declog court dockets which are filled
with B.P. 22 cases as creditors actually use the courts as collectors.
Because ordinarily no filing fee is charged in criminal cases for actual
damages, the payee uses the intimidating effect of a criminal charge to
collect his credit gratis and sometimes, upon being paid, the trial court is
not even informed thereof. The inclusion of the civil action in the
criminal case is expected to significantly lower the number of cases filed
before the courts for collection based on dishonored checks. It is also
expected to expedite the disposition of these cases. Instead of instituting
176
See discussion above in Integral approach (paragraphs [40-44]).
177
See Heirs of Eduardo Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J where the Supreme Court
stated that [t]here is no independent civil action to recover the civil liability arising from the issuance of
an unfunded check prohibited and punished under Batas Pambansa Bilang 22 (BP 22).
178
(GR 157547, 23 Feb 2011) Bersamin J.
Supreme Court Circular 57-97 (among others) identically said that [t]he criminal action for violation of
Batas Pambansa Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no
reservation to file such civil action separately shall be allowed or recognized.
179
180
(GR 157547, 23 Feb 2011) Bersamin J.
181
(G.R. No. 163597, July 29, 2005) Puno J.
VOL. 7
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two separate cases, one for criminal and another for civil, only a single
suit shall be filed and tried. It should be stressed that the policy laid down
by the Rules is to discourage the separate filing of the civil action. The
Rules even prohibit the reservation of a separate civil action, which
means that one can no longer file a separate civil case after the criminal
complaint is filed in court. The only instance when separate proceedings
are allowed is when the civil action is filed ahead of the criminal case.
Even then, the Rules encourage the consolidation of the civil and
criminal cases. We have previously observed that a separate civil action
for the purpose of recovering the amount of the dishonored checks would
only prove to be costly, burdensome and time-consuming for both parties
and would further delay the final disposition of the case. This
multiplicity of suits must be avoided. Where petitioners rights may be
fully adjudicated in the proceedings before the trial court, resort to a
separate action to recover civil liability is clearly unwarranted. In view of
this special rule governing actions for violation of B.P. 22, Article 31 of
the Civil Code cited by the trial court will not apply to the case at bar.
[70]
Under the 1985 RCP, there was no special rule dealing with BP 22 cases, so the
treatment of BP 22 cases was covered by the then prevailing general rule which
allowed the implied institution of Article 31 covered causes of action together with the
criminal case, unless they were reserved.182 Consistent with the integral approach,183 it
made sense to allow the recovery of civil liability in the criminal case for violaton of
BP 22 under the 1985 RCP. 184
[71]
Under the 2000 RCP, the treatment of BP 22 cases which authorizes the court handling
the criminal case to award civil liability based on an Article 31 covered cause of action
is warranted, not under the general rule that there is no implied institution of Article
31 covered causes of action together with the criminal case, but by the express
exception found in Section 1(b) of Rule 111. This is consistent with the treatment in
Heirs of Eduardo Simon vs Chan185 and Ching vs Nicdao186 which are arguably premised on
the implied institution of Article 31 covered causes of action together with the BP 22
criminal case. In Heirs of Eduardo Simon vs Chan187 the subsequently filed civil case for
specific performance (alleging breach of contract & fraud) was dismissed due to litis
182
See section 3 Rule 111 1985 RCP.
183
Discussed above in Integral approach (paragraphs [40-44]).
184
See eg the discussions in Banal vs Tadeo (GR L-78911-25, 11 Dec 1987) Gutierrez Jr J. See also
Sabandal vs Tongco (G. R. No. 124498. October 5, 2001) Pardo J where the Supreme Court, citing the
1985 RCP stated that [p]etitioners claim of overpayment to respondent may be raised as a defense during
the trial of the cases for violation of Batas Pambansa Bilang 22 charged against him. The civil action for
recovery of civil liability is impliedly instituted with the filing of the criminal action.
185
(GR 157547, 23 Feb 2011) Bersamin J.
186
(27 April 2007, GR 141181) Callejo Sr J.
187
(GR 157547, 23 Feb 2011) Bersamin J.
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2014
pendentia because same cause of action was already litigated in the BP criminal case.
In Ching vs Nicdao188, although there was no separate civil case involved, the finding in
the BP 22 criminal case that the fact from which the civil liability arises did not exist
(due to payment of the loan obligation) was made to extinguish Article 31 covered
causes of action as well.
D.
Res judicata (conclusiveness of judgment) and Article 31 covered causes of action
[72]
The foregoing discussions on res judicata (bar by prior judgment) should be

distinguished with res judicata (conclusiveness of judgment). Whether or not res judicata
(conclusiveness of judgment) may exist between a finding by the court handling the
criminal case and a separate cause of action for the recovery of civil liability is of course
premised on the non-institution of the said cause of action for recovery of civil liability
together with the criminal trial; otherwise a judgment on the merits by the court
handling the criminal case on a cause of action for recovery of civil liability impliedly
instituted together with the criminal case would constitute res judicata (bar by prior
judgment) on an identical cause of action for recovery of civil liability.
[73]
The issue on whether or not that a finding by the court handling the criminal case will
constitute res judicata (conclusiveness of judgment) as to causes of action for recovery
of civil liability that are not instituted and tried together with the criminal case, is
addressed with respect to Article 31 covered actions, dependent civil actions, and
Article 33 covered actions.
[74]
With respect to Article 31 covered actions, we recall the earlier discussed two levels189
at which common elements duplicate themselves in dependent and independent civil
actions. On one level, if the court handling the criminal case also litigates civil liability
ex delicto but not the Article 31 covered action, a finding by the court handling the
criminal case on common elements that exist between civil liability ex delicto and the
Article 31 covered action, gives rise to the issue on whether such findings by the
criminal court will constitute res judicata (conclusiveness of judgment) on the Article
31 covered action. On another level, even if the court handling the criminal case purely
litigates the criminal aspect (ie, no cause of action for recovery of civil liability is
litigated together with the criminal case), there is the issue on whether or not a finding
by the court as to common elements that exist between the crime and the Article 31
covered action will constitute res judicata (conclusiveness of judgment) on the Article
31 covered action. Whether a finding of the criminal court will constitute res judicata
(conclusiveness of judgment) on the Article 31 covered action will depend on ones
view on how truly independent an Article 31 Civil Code covered cause of action really
is. It is submitted however, that under the 2000 RCP, any finding by the court handling
the criminal case cannot constitute res judicata (conclusiveness of judgment) on the
188
(27 April 2007, GR 141181) Callejo Sr J.
189
See discussion above in Common Elements and Standard of Proof (paragraph [20]).
VOL. 7
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Article 31 covered action. The last paragraph of Section 2190 of the 2000 RCP has
eliminated whatever doubts that existed under Section 2(b) 191 of the 1985 RCP, by
expressly stating that only the civil action based on delict is extinguished by a finding
by the criminal court that the fact from which the civil may arise does not exist. That
the last paragraph of Section 2 of the 2000 RCP, precludes a finding by the criminal
court to constitute res judicata (conclusiveness of judgment) on the Article 31 covered
action is strengthened by the fact that under the 2000 RCP (unlike the 1985 RCP) there
is no implied institution of Article 31 covered actions together with the criminal case.
Furthermore, the fact that any finding by the criminal court cannot affect the outcome
or constitute res judicata (conclusiveness of judgment) upon the separately litigated
Article 31 covered action, is consistent with the fact that under the 2000 RCP the filing
of the criminal case does not cause the suspension of an earlier filed Article 31 based
civil case, or prevent the filing of an Article 31 based civil case (if such has not been
earlier filed).192
[75]
In Lim vs Kou Co Ping193, the private complainant filed a civil complaint for specific
performance and damages, while appealing a judgment on the civil aspect ex delicto of
a criminal case for estafa. The civil complaint for specific performance was based on
breach of contract, abuse of rights and unjust enrichment (an Article 31 covered
action). The Supreme Court held that there was no forum shopping, since they present
different causes of action, which, under the law, are considered separate, distinct, and
independent [194] from each other. Both cases can proceed to their final adjudication, subject to
the prohibition on double recovery under Article 2177 of the Civil Code. In Lim vs Kou Co Ping,
it is submitted that when the Supreme Court further reasoned that the offended party
may pursue the two types of civil liabilities simultaneously or cumulatively, without
offending the rules on forum shopping, litis pendentia, or res judicata, it took the side
that independent civil actions can validly offend (or constitute an exception to) res
judicata (conclusiveness of judgment). But respectfully, that statement cannot by any
means be construed to allow the rules on dependent and independent civil actions to
be violative of (or constitute an exception to) the rules of litis pendentia and res judicata
(bar by prior judgment), which is by necessity uncompromisable in order to avoid
conflicting decisions on the same cause of action. That any finding by the criminal
court cannot constitute res judicata (conclusiveness of judgment) on the Article 31
The extinction of the penal action does not carry with it extinction of the civil action. However, the civil
action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal
action that the act or omission from which the civil liability may arise did not exist.
190
Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds
from a declaration in a final judgment that the fact from which the civil might arise did not exist.
191
See Sections 3 and 2 Rule 111 2000 RCP. Given that Article 31 covered actions under Section 3 shall
proceed independently of the criminal action, a joint reading of Sections 2 and 3, can only lead to the
reasonable conclusion that the rules on suspension or prevention of filing under Section 2 only refer to civil
cases based on recovery of civil liability ex delicto.
192
193
194
Casupanan v. Laroya, 436 Phil. 582 (2002).
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covered action (not instituted together with the criminal case), is supported by
Supreme Court pronouncements in Heirs of Jose Marcial Ochoa vs G&S Transport,195
Casupanan vs Laroya,196 and Safeguard Security Agency Inc vs Tangco.197
[76]
A possible exception to the view that an Article 31 covered action (that has not been
instituted together with the criminal case) is immune from any finding or declaration
by the court handling the criminal case has been advanced, in the form of the doctrine
of election of remedies.198 In line with this doctrine, it has for instance been stated that
if the complainant has actively participated and intervened in the criminal case,
[s]uch active participation and intervention can only be deemed to be an unequivocal
election by the complainant to sue under ex delicto rather than on another cause of
action (arising from the same act or omission complained of as ex delicto).199
E.
[77]
Dependent civil actions
The same two questions raised relative to Article 31 covered actions are relevant for
dependent civil actions, to wit: First, do rules on dependent civil actions constitute an
exception to res judicata (bar by prior judgment), litis pendentia and forum shopping?
Second, do rules on dependent civil actions constitute an exception res judicata
(conclusiveness of judgment)?
195
(G.R. No. 170071, 9 March 2011) Del Castillo J, where the Supreme Court said that a cause of action
for breach of contract of carriage is an independent civil action arising from contract which is separate
and distinct from the criminal action for reckless imprudence resulting in homicide filed by the heirs against
Padilla by reason of the same incident. Hence, regardless of Padillas acquittal or conviction in said
criminal case, same has no bearing in the resolution of the present case.
(G.R. No. 145391. August 26, 2002) Carpio J, where the Supreme Court said that We make this ruling
aware of the possibility that the decision of the trial court in the criminal case may vary with the decision
of the trial court in the independent civil action. This possibility has always been recognized ever since the
Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and
2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil
action may proceed independently of the criminal proceedings and regardless of the result of the latter.
196
197
(GR 165732, 14 Dec 2006) Austria-Martinez J, where the Supreme Court in deciding a separate civil
action (founded on quasi-delict) noted that there was already a final judgment of conviction finding that the
employee guard was negligent in shooting the victim. However, the Supreme Court stated that Although
the judgment in the criminal case finding Pajarillo guilty of Homicide is already final and executory, such
judgment has no relevance or importance to this case.[McKee v. Intermediate Appellate Court, G.R. No.
68102, July 16, 1992, 211 SCRA 517, 536] It would have been entirely different if respondents cause of
action was for damages arising from a delict.
The doctrine of election of remedies is disussed below in Doctrine of election of remedies (paragraphs
[110-114]).
198
Jose C. Vitug, Developments in Civil Law (2000) 26 (No 1) IBP L. Journal 1, p 50-1 citing Mendoza
vs Arrieta 91 S 113, Ruiz vs Ucol 153 S 14; Diong Bi Chu vs CA 192 S 554.
199
VOL. 7
1.
[78]
81
Rules to make sure that civil liability ex delicto is not litigated in more than one
proceeding at any moment in time
The first question is similarly answered as that for an Article 31 covered action, since
res judicata (bar by prior judgment) is by necessity uncompromisable in order to avoid
conflicting decisions on the same cause of action. Thus, both Rule 111 of the 1985
RCP and the 2000 RCP contain rules to ensure that the cause of action for recovery of
civil liability ex delicto is not litigated in more than one proceeding at any moment in
time. Consistent with the integral approach earlier discussed, the only way for a court
handling the criminal case to award damages based on a dependent civil action is for
that civil action to be impliedly instituted and litigated together with the criminal case.
Under the 2000 RCP, 200 the dependent civil action is always impliedly instituted and
litigated together with the criminal case, except if the civil action is waived, previously
instituted, or reservation to separately litigate is allowed. Reservation (to separately
litigate the dependent civil action) is generally allowed under the 2000 RCP, 201 except
for BP 22 cases where [n]o reservation to file such civil action separately shall be
allowed.202
2. Rules to ensure that there are no conflicting factual findings as to the fact from
which the civil liability may arise.
[79]
The second question (do rules on dependent civil actions constitute an exception to res
judicata (conclusiveness of judgment?)203 presumes that the dependent civil action is
not instituted and litigated in the criminal case. Unlike the case of Article 31 covered
actions, the answer to the second question is that a finding as to common elements
(between the crime and the dependent civil action) by the criminal court constitutes res
judicata (conclusiveness of judgment) on the dependent civil action. This is evident
under both the 1985 RCP 204 and the 2000 RCP 205; the last paragraph of Section 2 Rule
111 of the 2000 RCP pertinently states that the extinction of the penal action does not carry
with it extinction of the civil action. However, the civil action based on delict shall be deemed
See the first paragraph of Section 1(a) of Rule 111 2000 RCP which says that When a criminal action
is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be
deemed instituted with the criminal action unless the offended party waives the civil action, reserves the
right to institute it separately or institutes the civil action prior to the criminal action..
200
201
See the first paragraph of Section 1(a) of Rule 111 2000 RCP.
See Section 1(b) Rule 111 2000 RCP. Note that civil action in the statement [n]o reservation to file
such civil action separately shall be allowed, includes both Article 31 covered actions and dependent civil
actions: see eg Heirs of Eduardo Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J.
202
203
See above (paragraph [77]).
See Section 2(b) Rule 111 1985 RCP which states that Extinction of the penal action does not carry
with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the
fact from which the civil might arise did not exist.
204
205
See the last paragraph of Section 2 Rule 111 2000 RCP.
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extinguished if there is a finding in a final judgment in the criminal action that the act or omission
from which the civil liability may arise did not exist. Bearing in mind that the standard of
proof in civil cases is always preponderance of evidence (and not proof beyond a
reasonable doubt), it is submitted that a finding by the trial court that the act or
omission from which the civil liability may arise did not exist, is actually a finding that
even based on preponderance of evidence as the standard of proof, there is a failure to
prove an element or elements which is common between the crime and the dependent
civil action. It is submitted that this explains the complementary concept under Article
29 of the Civil Code, where an acquittal merely based on failure to prove the crime
beyond a reasonable doubt is insufficient to negate civil liability for a dependent civil
action, since proof of civil liability is preponderance of evidence (not proof beyond a
reasonable doubt).
[80]
Since dependent civil actions (not litigated together with the criminal case) are subject
to res judicata (conclusiveness of judgment) with respect to findings of the court in the
criminal case, the dependent civil action (if reserved) cannot be filed, or if earlier filed
must be suspended,206 pending trial of the criminal case to ensure a conflict in findings
between the criminal case and the dependent civil action, thus ensuring that res judicata
(conclusiveness of judgment) is not violated.
[81]
Although a finding by the criminal court can constitute res judicata (conclusiveness of
judgment) to the dependent civil action, the reverse is not true. Section 5 Rule 111 of
the 2000 RCP expressly states that A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to a criminal action against the defendant for the same
act or omission subject of the civil action.
F.
[82]
Article 33 covered civil actions
Article 33 of the Civil Code states:

Article 33. In cases of defamation, fraud, and physical injuries a civil action for
damages, entirely separate and distinct from the criminal action, may be brought by
the injured party. Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.
[83]
The term physical injuries includes any crime where there is bodily injury including
homicide or murder,207 and it includes criminal negligence resulting to bodily injury.208
As earlier discussed,209 the better view is that like Article 31 of the Civil Code, Article
33 does not give rise to a new source of obligation for the payment of civil liability,
rather it merely provides for a procedural remedy for the independent recovery of
206
See eg, Section 2 Rule 111 2000 RCP.
207
See Carandang vs Santiago (GR L-8238, 25 May 1955) Labrador J
208
See Madeja vs Caro (L-51183, December 21, 1983) Abad Santos J, which reversed the earlier ruling
Corpuz vs Paje (G.R. No. L-26737. July 31, 1969) Capistrano J.
209
See discussion above in Dependent vs independent civil action / civil liability (paragraph [14]).
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83
damages based on a cause of action ex delicto. Because recovery for Article 33 covered
actions is accomplished by proving through preponderance of evidence the elements
of the crime allegedly committed (Article 33 referring to recovery of civil liability ex
delicto), then indeed an independent recovery under Article 33 is more proximate to
the criminal prosecution than Article 31 covered actions. This proximity presents
questions as to the extent of its independence from the criminal case in terms of the
two concepts of res judicata.
[84]
The same two questions raised relative to Article 31 covered actions are relevant for
Article 33 covered civil actions, to wit: First, do rules involving Article 33 covered
actions constitute an exception to res judicata (bar by prior judgment), litis pendentia and
forum shopping? Second, do rules involving Article 33 covered actions constitute an
exception res judicata (conclusiveness of judgment)?
1.
Rules to make sure that civil liability ex delicto is not litigated in more than
one proceeding at any moment in time
[85]
The first question is similarly answered as that for Article 31 covered actions and
dependent civil actions rules involving Article 33 covered actions must be consistent
with res judicata (bar by prior judgment) principles since res judicata (bar by prior
judgment) is by necessity uncompromisable in order to avoid conflicting decisions on
the same cause of action. Thus, an efficient signal system under the Rules of Criminal
Procedure is required in order to ensure that recovery of civil liability ex delicto is not
litigated in more than one proceeding at any moment in time.
[86]
There is no problem if the Article 33 covered civil case is first initiated before the
criminal case, since one can easily plead the existence of the earlier filed civil case
before the criminal court as a bar to the implied institution of a cause of action for
recovery of civil liability ex delicto in the criminal case.
[87]
However, should there be no previously instituted civil case, the present practice is for
the recovery of civil liability ex delicto to be impliedly instituted with the criminal case,
even for criminal cases covered by Article 33 of the Civil Code. Despite, Section 3
Rule 111 of the 2000 RCP mandating that cases provided under [Article 33] shall
proceed independently of the criminal action, Section 1 Rule 111 of the 2000 RCP
does not seem to distinguish between dependent civil liability ex delicto vis--vis civil
liability ex delicto under Article 33 when it mandates that When a criminal action is
instituted, the civil action for the recovery of civil liability arising from the offense charged shall
be deemed instituted with the criminal action unless the offended party waives the civil action,
reserves the right to institute it separately or institutes the civil action prior to the criminal action.
Since the cause of action for recovery of civil liability ex delicto under Article 33 is
impliedly instituted with the criminal case, should a reservation be made by the private
complainant in the criminal case in order to separately litigate the Article 33 covered
action? While the 1985 RCP expressly required a reservation in order to separately
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litigate the Article 33 covered action,210 there is no equivalent provision under the 2000
RCP, thus arguably supporting the view that a reservation to separately litigate the
Article 33 covered action is not required under the 2000 RCP. The late Senator
Tolentino favored this view in his description of an Article 33 covered action:
The general rule is that when a criminal action is instituted, the civil
action for recovery of civil liability arising from the offense charged is
impliedly instituted with the criminal action, unless the offended party
reserves his right to institute it separately; and after a criminal action has
been commenced, no civil action arising from the same offense can be
prosecuted. The present articles creates an exception to this rule when
the offense is defamation, fraud, or physical injuries. In these cases, a
civil action may be filed independently of the criminal action, even if
there has been no reservation made by the injured party; the law itself in
this article makes such reservation.211
[88]
However, in cases where there is no previously instituted Article 33 covered civil case,
not requiring a reservation to separately litigate the Article 33 covered action, may
cause the same identical cause of action for the recovery of civil liability ex delicto to be
litigated in both the criminal case and the separate civil case at the same time, a
situation which cannot be permitted by the principles of res judicata (bar by prior
judgment) and litis pendentia this is so, since the criminal court where the Article 33
covered action is impliedly instituted may continue to litigate the same, if it is not
apprised of the filing of the separate civil case. Even assuming for the sake of argument
that the filing of the Article 33 covered civil case later on, will automatically cause the
severance of the cause of action for recovery of civil liability ex delicto from the criminal
case, the timing of such severance is highly relevant considering the objective of res
judicata which is to avoid multiplicity of suits and forum shopping. Allowing the
private complainant, whose Article 33 covered action is impliedly instituted with the
criminal case, to sever that cause of action after evidence has been presented in the
criminal case, once the private complainant feels that the outcome in that forum would
be adverse to him by filing an independent civil case under Article 33 would only
encourage multiplicity of suits and forum shopping. It is submitted that, in cases where
the criminal case is filed first, and until another efficient rule-signal system is expressly
framed, requiring the private complainant to make a reservation before presentation
of evidence in the criminal case in order to separately file the Article 33 covered action
is an effective rule-signal system that ensures the uncompromisability of res judicata
(bar by prior judgment) and its objective of preventing multiplicity of suits and forum
shopping.
See Section 3 Rule 111 1985 RCP which says that In the cases provided for in [Article 33] of the
Civil Code of the Philippines, the independent civil action which has been reserved may be brought by the
offended party [underscoring supplied].
210
211
See Madeja vs Caro (L-51183, December 21, 1983) Abad Santos J, quoting Tolentino I Civil Code, p.
144 [1974].
VOL. 7
[89]
85
Having in mind that both a dependent civil action and an Article 33 covered action
both involve the recovery of civil liability ex delicto, the obiter212 declaration in Lim vs
Kou Co Ping213 citing Cancio Jr vs Isip214 when referring to Article 31 covered actions and
Article 33 covered actions on one hand, and dependent civil actions on the other hand,
that [b]ecause of the distinct and independent nature of the two kinds of civil liabilities,
jurisprudence holds that the offended party may pursue the two types of civil liabilities
simultaneously or cumulatively, without offending the rules on forum shopping, litis pendentia,
or res judicata is not entirely accurate. This is so, because for crimes covered by Article
33 of the Civil Code, one cannot pursue the recovery of civil liability ex delicto in both
the criminal case and a separately filed civil case at the same time, without violating
the uncompromisable principle of res judicata (bar by prior judgment) and consequently
litis pendentia, since both cases will litigate the identical cause of action of recovery of
civil liability ex delicto.
2.
An exception to res judicata (conclusiveness of judgement) principle?
[90]
The second question215 may be rephrased as follows assuming that the Article 33
covered action (ie, cause of action for recovery of civil liability for crimes covered by
Article 33 of the Civil Code) is not impliedly instituted or litigated in the criminal case,
will a finding by the criminal court that the fact from which the civil liability may arise
does not exist, operate as res judicata (conclusiveness of judgment) as to the Article 33
covered action?
[91]
The last paragraph of Section 2 Rule 111 2000 RCP in stating that the civil action
based on delict shall be deemed extinguished if there is a finding in a final judgment
in the criminal action that the act or omission from which the civil liability may arise
did not exist does not seem to distinguish between dependent civil actions and Article
33 covered actions which are both civil actions based on delict. Standing alone, the
last paragraph of Section 2 Rule 111 2000 RCP supports the view that an Article 31
covered action is not an exception to (and must therefore be consistent with) the res
judicata (conclusiveness of judgment) principle. This view is indeed more compelling
considering that the subject matter of an Article 33 covered action (involving a
recovery of civil liability ex delicto) is more proximate to the crime, than an Article 31
covered action (which is based upon an independent source of obligation other than
ex delicto).
[92]
On the contrary, Section 3 Rule 111 2000 RCP, in stating that [i]n the cases provided
in [Article 33] of the Civil Code of the Philippines, the independent civil action
212
Obiter because the independent civil action in the Lim vs Kou Co Ping case involved an Article 31
covered action (for specific performance and breach of contract).
213
214
(G.R. No. 133978, November 12, 2002) Ynares-Santiago J
The second question is do rules involving Article 33 covered actions constitute an exception res
judicata (conclusiveness of judgment)?
215
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shall proceed independently of the criminal action, necessarily implies that since
an Article 33 covered action proceeds independently of the criminal action, any
finding in the criminal action cannot constitute res judicata (conclusiveness of
judgment) on the Article 33 covered action.
[93]
Possible indicators of whether or not the civil action may indeed proceed
independently of the criminal case, is determined by susceptibility of the civil case to
suspension upon filing of the criminal case (if the civil case is earlier filed), or
prevention of the civil case from being filed (if the criminal case filed first) however,
while it is undoubted that Section 2 Rule 111 in dealing with suspension or prevention
from filing refer to civil liability ex delicto, it is not certain whether this includes only
dependent civil actions and excludes Article 33 covered actions.
[94]
Given the present predicament, and considering that under the 1987 Constitution it is
the Supreme Courts sole constitutional predicament to entirely repeal or amend
procedural aspects of dependent civil actions, Article 31 covered actions, and Article
33 covered actions even to the extent of amending or repealing Article 31 and 33 of
the Civil Code,216 it is submitted that there is a need for the Supreme Court to issue
rules clarifying this ambiguity.
3.
[95]
Estafa and BP 22 cases involving unfunded checks
Section 1(b) Rule 111 of the 2000 RCP217 mandatorily requires the institution of all
civil actions (including Article 31 covered actions) together with the BP 22 criminal
case without any right of reservation.218 On the other hand, since estafa cases are
covered by Article 33 of the Civil Code, there is the rule under Article 33 (and mirrored
by Section 3 Rule 111 of the 2000 RCP) that in cases provided in [Article 33] the
independent civil action may be brought by the offended party. It shall proceed independently of
the criminal action and shall require only a preponderance of evidence. In a situation where
the issuance of an unfunded check gave rise to both estafa and BP 22 criminal cases,
the Supreme Court in Rodriguez vs Ponferrada219 held that a private prosecutor can enter
his appearance in a criminal case for estafa, even when a criminal case for BP 22 had
already been filed against the accused. The Supreme Court explained:
See the discussion above in Adjective (procedural or remedial) nature of the rules (paragraphs [3839]), which invoked the case of GSIS vs Heirs of Fernando F. Caballero (GR 158090, 4 October 2010)
Peralta J where it was stated that unlike the 1935 and 1973 Constitutions, which empowered Congress to
repeal, alter or supplement the rules of the Supreme Court concerning pleading, practice and procedure,
the 1987 Constitution removed this power from Congress. Hence, the Supreme Court now has the sole
authority to promulgate rules concerning pleading, practice and procedure in all courts.
216
Section 1(b) states The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to
include the corresponding civil action. No reservation to file such civil action separately shall be allowed.
217
218
See discussion above in BP 22 cases (paragraphs [69-71]).
219
(GR 155531-34, 29 Jul 2005) Panganiban J.
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87
In the present cases before us, the institution of the civil actions with the
estafa cases and the inclusion of another set of civil actions with the BP
22 cases are not exactly repugnant or inconsistent with each other.
Nothing in the Rules signifies that the necessary inclusion of a civil action
in a criminal case for violation of the Bouncing Checks Law precludes
the institution in an estafa case of the corresponding civil action, even if
both offenses relate to the issuance of the same check.
xxx
Furthermore, the fact that the Rules do not allow the reservation of civil
actions in BP 22 cases cannot deprive private complainant of the right to
protect her interests in the criminal action for estafa. Nothing in the
current law or rules on BP 22 vests the jurisdiction of the corresponding
civil case exclusively in the court trying the BP 22 criminal case.[220]
[96]
It is respectfully submitted however, that the simultaneous pendency of identical

causes of action in both the BP 22 and estafa cases cannot be allowed as this will be
violative of the uncompromisable principle of res judicata (bar by prior judgment) or
litis pendentia. It is submitted that what must be impliedly instituted in the estafa case
is only the civil action for recovery of civil liability ex delicto (for the crime of estafa),
which is an Article 33 covered action. All other causes of action for recovery of civil
liability are instituted together with the BP 22 case including Article 31 covered
actions, regardless of which criminal case is filed first, for the following reasons: First,
since the crimes of estafa and BP 22 are separate and distinct from each other, 221 and
civil liability ex delicto is civil liability attached to a specific crime,222 the cause of action
for the recovery of civil liability ex delicto (for the crime of estafa) must necessarily be,
under present rules, separate and distinct from the cause of action for recovery of civil
liability ex delicto (for the crime of violation of BP 22); what is prohibited is double
recovery for the same act of omission. 223 Lastly, Article 31 covered actions cannot be
impliedly instituted together with the estafa case, due to the general rule under the
2000 RCP that there is no implied institution of Article 31 covered actions;224 the
220
Rodriguez vs Ponferrada (GR 155531-34, 29 Jul 2005) Panganiban J, citations omitted; underscoring
supplied.
221
See Heirs of Eduardo Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J citing Rodriguez vs
Ponferrada (GR 155531-34, 29 Jul 2005) Panganiban J, where the issuance of a bouncing check may result
in two separate and distinct crimes of estafa and violation of BP 22.
See eg, Article 100 of the Revised Penal Code which says [e]very person criminally liable for a felony
is also civilly liable.
222
223
See Section 3 Rule 111 2000 RCP; see also Article 2177 of the Civil Code.
224
See discussion above in Under the 2000 Rules on Criminal Procedure (paragraphs [52-57]).
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exception and (in this case225) complementary rule involving BP 22 cases226 mandates
the institution of Article 31 covered actions together with the BP 22 case.
VI.
ARTICLE 29: CIVIL LIABILITY IN CASES OF ACQUITTAL
[97]
The discussion on Article 29227 of the Civil Code builds upon and paints an
interconnecting picture on the concepts earlier discussed including the issue of whether
or not dependent civil actions, Article 31 covered actions, and Article 33 covered
actions must be consistent with or may constitute exceptions to the principles of res
judicata (bar by prior judgment) and res judicata (conclusiveness of judgment).
[98]
Article 29 if read in conjunction with the last paragraph of Section 2 Rule 111 2000
RCP228 expressly sets rules on whether or not the acquittal of an accused in a criminal
action authorizes or bars the subsequent litigation of a civil action. Additionally,
jurisprudence has used Article 29 in justifying the criminal court in awarding damages
in the same criminal case even in the event of acquittal.229
[99]
There are two possible outcomes in a criminal case when there is an acquittal: either
the court awards damages or does not award damages to the private complainant.
1.
Acquittal and there is no award of damages
[100] To aid in ones understanding of Article 29s application when there is an acquittal
and there is no award of damages, it is important to recall the two complementary
(and mutually exclusive) possible findings by the criminal court in case of acquittal of
the accused a finding by the criminal court that the fact from which civil liability
may arise does not exist, as opposed merely to a finding by the criminal court that the
225
Involving an unfunded check resulting in a BP 22 case and an estafa case.
226
Section 1(b) Rule 111 2000 RCP.
227
Article 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not
been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be
instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court
may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be
malicious.
If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so
declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision
whether or not the acquittal is due to that ground.
The last paragraph of Section 2 Rule 111 2000 RCP states The extinction of the penal action does
not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed
extinguished if there is a finding in a final judgment in the criminal action that the act or omission from
which the civil liability may arise did not exist.
228
229
See eg Romero vs People (GR 167546, 17 July 2009) Corona J; Padilla vs CA (GR L-39999, 31 May
1984) Gutierrez Jr J.
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elements of the crime has not been proven beyond a reasonable doubt. The two are
mutually exclusive because a finding by the trial court that the act or omission from
which the civil liability may arise does not exist, is actually a finding that even based
on preponderance of evidence as the standard of proof, there is a failure to prove an
element or elements which are common between the crime and the civil action.230 On
the other hand, an acquittal merely based on failure to prove the crime beyond a
reasonable doubt is insufficient to negate civil liability for any kind of civil action,
because proof of civil liability is preponderance of evidence (not proof beyond a
reasonable doubt) and therefore negation of the element of the crime for lack of proof
beyond a reasonable doubt (resulting in the acquittal of the accused) does not negate
the similar element for purposes of civil liability since mere preponderance of evidence
is required for purposes of civil liability.
[101] Whether or not the criminal courts finding is a finding that the fact from which civil
liability arises does not exist, or is merely an acquittal upon a reasonable doubt is
inferred from the body of the decision. In case of conflict between the body of the
decision and the dispositive portion, the conclusion inferred from the body of the
decision prevails.231 For instance, in Caia vs People232, the body of the decision from
where it was inferred that there was a finding that the fact from which the civil liability
arises did not exist since there was no negligence, was made to prevail over the
dispositive portion which expressly declared that the acquittal was due to a reasonable
doubt; it must be emphasized though, that it is only when the element of negligence is
negated from the standard of preponderance of evidence can it be truly said that the
fact from which the civil liability may arise does not exist. In Sanchez vs Far East Bank
and Trust Company,233 the accused (Sanchez) was charged with estafa for forging checks
in the name of Kai Chin and receiving the proceeds of the checks; the Supreme Court
(on a resolution of an appeal on the civil aspect after Sanchez acquittal) found that
the fact from which civil liability arose did not exist because there is absolutely no
evidence on record that the money was never turned over to Kai Chin. Kai Chin did not testify,
on direct evidence or on rebuttal, concerning this aspect of the case.
a. Acquittal merely based on reasonable doubt

[102] When there is merely an acquittal due to failure to prove the crime beyond a reasonable
doubt, the said judgment cannot constitute res judicata as to any kind of civil action. It
Cf Alfredo F. Tadiar, Civil Liablity for Criminal Conduct: Concept and Enforcement (1983) 58 (2nd
Qtr) Phil. L. Journal 63, p 67 where Atty. Tadiar used the term factual innocence or a determination that
the accused did not commit the crime charged as the more appropriate description of the phrase a
declaration in a final judgment that the fact from which the civil might arise does not exist.
230
231
See eg Mendoza vs Alcala (G.R. No. L-14305 August 29, 1961) Natividad J, where the Supreme Court
said that [w]hether or not, however, the acquittal is due to that ground may, under the above quoted
provision of Article 29 of the Civil Code, be inferred from the text of the decision.
232
(GR 78777, 2 Sep 1992) Gutierrez J.
233
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may be recalled that one requisite for res judicata is that the judgment must be a
judgment on the merits. Since a judgment is on the merits when it amounts to a legal
declaration of the respective rights and duties of the parties,234 an acquittal merely
upon a reasonable doubt cannot be a judgment on the merits (and consequently cannot
constitute res judicata (bar by prior judgment) or res judicata (conclusiveness of
judgment)) as to any kind of civil action, since it is preponderance of evidence that is
required to negate the similar element for purposes of civil liability.
[103] In Gausch vs dela Cruz 235, the Supreme Court said that when the accused was acquitted,
due to failure to prove beyond reasonable doubt fraud in an estafa case, but failed to
mention anything about civil liability, the private complainant has actually the choice
to appeal the civil aspect in the criminal case or to institute a separate civil action to recover
petitioners civil liability. However, to require him to pursue this remedy at this stage will only
prolong the litigation between the parties which negates the avowed purpose of the strict
enforcement of reglementary periods to appeal, that is, to put an end to judicial controversies.
This ruling can only make sense if the silence of the criminal court on civil liability is
in substance an acquittal merely on reasonable doubt, as opposed to a finding that the
fact from which civil liability may arise does not exist. In case of an acquittal merely
on reasonable doubt, the criminal courts decision cannot constitute res judicata on the
issue of civil liability, and thus a separate civil case may be filed, even if the separate
civil case is anchored upon a cause of action for recovery of civil liability that was
impliedly instituted with the criminal case.
[104] In Cheng vs Spouses Sy,236 a BP 22 case was dismissed on a demurrer to evidence on
account of failure of the private complainant to identify the accused in open court.
Since [t]he criminal action for violation of Batas Pambansa Blg. 22 shall be deemed
to include the corresponding civil action237 including Article 31 covered actions, the
Supreme Court in answering whether the private complainant who failed to appeal the
civil aspect of the BP 22 case dismissal, may subsequently file a separate case based on
an Article 31 covered action (complaint for specific performance against the accused
based on contract, alleging there was a loan transaction), stated that as a general rule
this may not be allowed. Thus the Supreme Court said that where petitioners rights may
be fully adjudicated in the proceedings before the court trying the BP Blg. 22 cases, resort to a
separate action to recover civil liability is clearly unwarranted on account of res judicata, for
See Orendain vs BF Homes Inc (GR 146313, 31 Oct 2006) Velasco Jr J discussed above in Principle
of res judicata & litis pendentia (paragraph [31]).
234
235
(GR 176015, 16 June 2009) Puno CJ.
236
(GR 174238, 7 Jul 2009) Nachura J.
237
Cheng vs Spouses Sy (GR 174238, 7 Jul 2009) Nachura J quoting Section 1(b) Rule 111 2000 RCP. It
may be added that although the informations for BP 22 was filed in January 1999 Section 1(b) of Rule 111
was adopted from Supreme Court Circular 57-97 that took effect on November 1, 1997: Heirs of Eduardo
Simon vs Chan (GR 157547, 23 Feb 2011) Bersamin J. Supreme Court Circular 57-97 (among others)
identically said that [t]he criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to
necessarily include the corresponding civil action, and no reservation to file such civil action separately
shall be allowed or recognized.
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failure of petitioner to appeal the civil aspect of the cases. In view of this special rule governing
actions for violation of BP Blg. 22, Article 31 of the Civil Code is not applicable.238 However,
in Cheng, it was stated that the exception applied; in other words, the private
complainant was allowed to pursue the separate civil case due to the the gross mistake
of the prosecutor in the BP Blg. 22 cases when the latter failed to protect and
prosecute her cause when he failed to have her establish the identities of the accused
during the trial and when he failed to appeal the civil action deemed impliedly
instituted with the BP Blg. 22 cases. It is respectfully submitted that the statement by
the Supreme Court of the general rule in Cheng, can only make sense if the ruling of
the criminal court in dismissing the cases amounted to a judgment on the merits (for
purposes of the civil action) that is, it must have amounted to a finding by the
criminal court that the fact from which the civil liability arises did not exist. Without
a finding that the fact from which the civil liability arises does not exist, such a ruling
cannot be a judgment on the merits for purposes of res judicata insofar as any civil
action. The general rule in Cheng, operates like the doctrine of election of remedies;239
however, in the case of Mellon Bank vs Magsino 240, the doctrine of election of remedies
requires at the very least that the judicial proceedings has gone to judgment on the
merits, and it is submitted that there can be no positive election of remedy if the
decision in the criminal case does not amount to a judgment on the merits with respect
to the civil aspect.
b. Acquittal with a finding that the fact from which civil liability may arise does
not exist
[105] When there is a finding that the fact from which civil liability may arise does not exist,
such a finding will either constitute res judicata (bar by prior judgment) or res judicata
(conclusiveness of judgment) upon the civil action depending upon whether or not the
civil action is impliedly instituted and litigated together with the criminal case. Under
both the 1985 and 2000 RCP, dependent civil actions that are not waived, filed earlier,
or reserved are always impliedly instituted with the criminal case.241 As to Article 31
covered actions, under the 1985 RCP those that are not waived, filed earlier, or
reserved are always impliedly instituted with the criminal case, while under the 2000
RCP there is no implied institution of Article 31 covered actions together with the
criminal case (with the express exception of BP 22 cases where all civil actions,
including Article 31 covered actions, are mandatorily instituted together with the BP
Cheng vs Spouses Sy (GR 174238, 7 Jul 2009) Nachura J, citing Hyatt Industrial Manufacturing Corp.
v. Asia Dynamic Electrix Corp., G.R. No. 163597, July 29, 2005, 465 SCRA 454, 461-462.
238
The doctrine of election of remedies is further discussed below in Doctrine of election of remedies
(paragraphs [110-114]).
239
240
(G.R. No. 71479, October 18, 1990) Fernan CJ.
For dependent civil actions, see discussion above in Rules to make sure that civil liability ex delicto is
not litigated in more than one proceeding at any moment in time (paragraph [78]).
241
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22 case).242 As to Article 33 covered actions that are not filed earlier than the criminal
case, the present practice is for the recovery of civil liability ex delicto for crimes covered
under Article 33 to be impliedly instituted with the criminal case.243
[106] If there is a finding that the fact from which civil liability may arise does not exist and
the civil action is impliedly instituted and litigated together with the criminal case,
such a finding constitutes res judicata (bar by prior judgment) on the civil action.
Considering that it is a finding that the fact from which civil liability may arise does
not exist, such finding will bar the separate filing of all impliedly instituted civil
actions.
[107] If there is a finding that the fact from which civil liability may arise does not exist and
the civil action is not impliedly instituted and litigated together with the criminal case,
such a finding may constitute res judicata (conclusiveness of judgment) depending upon
the kind of civil action involved. As to dependent civil actions, it is certain that under
both the 1985 and 2000 RCP such a finding constitutes res judicata (conclusiveness of
judgment).244 As to Article 31 covered actions, it is certain that under the 2000 RCP
such a finding does not constitute res judicata (conclusiveness of judgment) on the
Article 31 covered action.245 However, as to Article 33 covered actions, there is doubt
on whether or not under the 2000 RCP such a finding constitutes res judicata
(conclusiveness of judgment) on the Article 33 covered action.246
2.
Acquittal and there is an award of damages in the same criminal case
[108] As earlier stated,247 jurisprudence has used Article 29 in justifying the criminal court
in awarding damages in the same criminal case even in the event of acquittal.248
Consistent with the integral approach,249 the court can only validly award damages in
the criminal case on a civil action, if the latter has been impliedly instituted and
For Article 31 covered actions, see discussion above in Independent civil action under Article 31
(paragraphs [45-50] for the 1985 RCP, and paragraphs [52-57] for the 2000 RCP).
242
For Article 33 covered actions, see discussion above in Rules to make sure that civil liability ex delicto
is not litigated in more than one proceeding at any moment in time (paragraphs [85-89]).
243
See discussion above in Rules to ensure that there are no conflicting factual findings as to the fact from
which the civil liability may arise. ' (paragraphs [79-81]).
244
245
See discussion above in Res judicata (conclusiveness of judgment) and Article 31 covered causes of
action (paragraphs [72-76]).
See discussion above in An exception to res judicata (conclusiveness of judgment) principle?
(paragraphs [90-94]).
246
247
See the discussion in the introductory portion of this section in paragraph [98].
248
See eg Romero vs People (GR 167546, 17 July 2009) Corona J; Padilla vs CA (GR L-39999, 31 May
1984) Gutierrez Jr J.
249
Discussed above in Integral approach (paragraphs [40-44]).
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litigated together with the criminal case. The rationale for the award of damages was
explained in Padilla vs CA:250
There appear to be no sound reasons to require a separate civil action to
still be filed considering that the facts to be proved in the civil case have
already been established in the criminal proceedings where the accused
was acquitted. Due process has been accorded the accused. He was, in
fact, exonerated of the criminal charged. The constitutional presumption
of innocence called for more vigilant efforts on the part of prosecuting
attorneys and defense counsel, a keener awareness by all witnesses of the
serious implications of perjury, and a more studied consideration by the
judge of the entire records and of applicable statutes and precedents. To
require a separate civil action simply because the accused was acquitted
would mean needless clogging of court dockets and unnecessary
duplication of litigation with all its attendant loss of time, effort, and
money on the part of all concerned.
[109] In Romero vs People,251 the Supreme Court awarded damages based on civil liability ex
delicto notwithstanding the acquittal of the accused for criminal negligence resulting in
multiple homicide and multiple physical injuries. In Llorente vs Sandiganbayan,252
Sapiera v. Court of Appeals,253 Padilla vs CA,254 People vs Ligon255 and Belen vs Batoy,256 an
award for damages based on an Article 31 covered action was made in the same
criminal case under the 1964 or 1985 RCP where (unlike the 2000 RCP) there was an
implied institution of the Article 31 covered action together with the criminal case.257
VII.
DOCTRINE OF ELECTION OF REMEDIES
[110] In Rodriguez vs Ponferrada,258 the Supreme Court quoting its earlier case of Mellon Bank
vs Magsino259, stated that [i]n its more restricted and technical sense, the election of
remedies is the adoption of one of two or more coexisting ones, with the effect of
250
(GR L-39999, 31 May 1984) Gutierrez Jr J, as reiterated in People vs Jalandoni (GR L-57555, 28 Aug
1984) Abad Santos J; Maximo vs Gerochi (GR L-47994-97, 24 Sep 1986) Gutierrez Jr J; Interpacific Transit
vs Aviles (GR No. 86062, 6 June 1990) Cruz J.
251
(GR 167546, 17 July 2009) Corona J.
252
253
254
255
(GR 74041, 29 July 1987) Yap J.
256
(GR 76042, 23 Feb 1990) Paras J.
257
Discussed above in Under the 1985 Rules on Criminal Procedure (paragraphs [45-51]).
258
259
(GR 71479, 18 Oct 1990) Fernan CJ.
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precluding a resort to the others. In the context of dependent civil actions, it has been
stated that if the complainant has actively participated and intervened in the criminal
case [s]uch active participation and intervention can only be deemed to be an
unequivocal election by the complainant to sue under ex delicto rather than on another
cause of action (arising from the same act or omission complained of as ex delicto). 260
[111] Under the 1985 RCP, the doctrine was expressed in the first three paragraphs of
Section 1 Rule 111 of the 1985 RCP, which stated as follows:
SECTION 1. Institution of criminal and civil actions. When a criminal
action is instituted, the civil action for the recovery of civil liability is
impliedly instituted with the criminal action, unless the offended party
waives the civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.
Such civil action includes recovery of indemnity under the Revised Penal
Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code
of the Philippines arising from the same act or omission of the accused.
A waiver of any of the civil actions extinguishes the others. The
institution of, or the reservation of the right to file, any of said civil
actions separately waives the others. [underscoring supplied].
[112] It is important to distinguish the doctrine of election of remedies from the principles
of res judicata. Sometimes, a cause of action for recovery of civil liability that was not
impliedly instituted in the criminal case will be barred, not simply because another
cause of action was instituted (thereby waiving the non-instituted and non-elected
causes of action) by the private complainant, but because a finding in the criminal case
may constitute res judicata (conclusiveness of judgment) on the non-instituted cause of
action. However, the soundness of the doctrine of election of remedies is explored, as
it applies to situations beyond res judicata (conclusiveness of judgment), where a noninstituted cause of action is deemed barred, because it has been waived by nonelection, even if no finding in the criminal case can legally constitute res judicata
(conclusiveness of judgment) on the cause of action. Stated otherwise, the question
Jose C. Vitug, Developments in Civil Law (2000) 26 (No 1) IBP L. Journal 1, p 50-1 citing Mendoza
vs Arrieta 91 S 113, Ruiz vs Ucol 153 S 14; Diong Bi Chu vs CA 192 S 554. See also Alfredo F. Tadiar,
Civil Liablity for Criminal Conduct: Concept and Enforcement (1983) 58 (2nd Qtr) Phil. L. Journal 63, p
80 where the latter cites cites Judge Sangcos (Sangco, Criminal Law (1979), p 333) criticism of the
Supreme Court decision in Virata vs Ochoa (81 S 472, 1978). Judge Sangco believed that the SC was
incorrect in upholding the right of the private complainant to file a separate civil case for quasi-delict when
the private complainant had already actively participated (through a private prosecutor) in the trial in the
criminal case for purposes of recovery of civil liability. Alfredo F. Tadiar citing Judg Sangco said that Judge
Sangco correctly points out that the real issue in this case is whether the offended party has made a choice
of remedies to which he must be bound. Such party having actively participated in the criminal prosecution,
including the presentation of evidence of damages which the private prosecutor would not have been
allowed to do without the requisite joinder of actions Sangco argues persuasively that such election bars
the subsequent filing of the civil action for quasidelict. In other words, having made his bed, the offended
party must now lie on it.
260
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may be stated as follows assuming that no finding in the criminal case constitutes
res judicata to non-instituted causes of action for recovery of civil liability, will those
non-instituted causes of action nevertheless be barred by the doctrine of election of
remedies?
[113] In Rodriguez vs Ponferrada,261 the Supreme Court diverged from the earlier
understanding of the doctrine (where the mere institution or reservation of a cause of
action waives or bars all other causes of action for the recovery of civil liability), by
stating that:
As a technical rule of procedure, the purpose of the doctrine of election
of remedies is not to prevent recourse to any remedy, but to prevent
double redress for a single wrong. [262] It is regarded as an application of
the law of estoppel, upon the theory that a party cannot, in the assertion
of his right occupy inconsistent positions which form the basis of his
respective remedies.
[T]he better rule is that no binding election occurs before a decision
on the merits is had or a detriment to the other party supervenes. [263] This
is because the principle of election of remedies is discordant with the
modern procedural concepts embodied in the Code of Civil Procedure
which permits a party to seek inconsistent remedies in his claim for relief
without being required to elect between them at the pleading stage of the
litigation.[264] [emphasis supplied]
[114] The divergence in Rodriguez vs Ponferrada265 (warranted under the 2000 RCP due to the
deletion of the pertinent provision under Section 1266 Rule 111 1985 RCP) is consistent
with Bermudez vs Melencio-Herrera267 (decided during the effectivity of the 1985 RCP),
where it was ruled that a mere reservation to file a civil action ex delicto does not
preclude the private complainant from filing a civil action for quasi-delict (an Article
31 covered action). While both Rodriguez vs Ponferrada268 and Mellon Bank vs Magsino269
require at the very least that the judicial proceedings has gone to judgment on the
merits, it is not clear at what exact point after issuance of the judgment on the merits
261
262
Royal Resources, Inc. v. Gibraltar Financial Corp., 603 P. 2d 793.
263
Radiowealth, Inc. v Lavin, L-18563, April 27, 1963, 7 SCRA 804.
264
Giron v. Housing Authority of Opelousas, 393 So. 2d 1267.
265
See particularly the 3rd paragraph Section 1 Rule 111 1985 RCP which says that the mere [t]he
institution of, or the reservation of the right to file, any of said civil actions separately waives the others.
266
267
(GR L-32055, 26 Feb 1988) Yap J; the treatment in Bermudez is also consistent with the treatment in
the previous case of Lanuzo vs Ping (GR L-53064, 25 Sep 1980) Melencio-Herrera J.
268
269
(GR 71479, 18 Oct 1990) Fernan CJ.
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that a binding election of that cause of action occurs.270 However, the view that a
binding election of remedy occurs when recovery of damages is had upon a cause of
action (consequent upon execution of a final judgment on the merits) has the effect of
equating the doctrine of election of remedies to the proscription against double
recovery under Article 2177 of the Civil Code. Should this be the case, the doctrine of
election of remedies and bar against double recovery, will bar other causes of action
for the recovery of civil liability, once recovery is had on a cause of action regardless
of whether or not a finding by the criminal court on that cause of action constitutes res
judicata to the other causes of action.
VIII. CONSOLIDATION WITH THE CRIMINAL CASE

[115] This section deals with the consolidation of a separately filed civil case and the
criminal case. Even if Rule 111 of the Rules on Criminal Procedure allows the separate
filing of the civil action, the separate action may nevertheless be consolidated with the
criminal action. The issue on consolidation will only arise if the existence of the two
cases is not violative of litis pendentia that is, both cases cannot simultaneously
litigate identical causes of action for the recovery of civil liability, otherwise one will
have to be dropped.
[116] Republic vs Sandiganbayan (GR 152375, 16 Dec 2011) En Banc Brion J states that In
the context of legal procedure, the term consolidation is used in three different
senses:[271]:
(1) Where all except one of several actions are stayed until one is tried,
in which case the judgment in the one trial is conclusive as to the others.
This is not actually consolidation but is referred to as such. (quasiconsolidation)[272]
(2) Where several actions are combined into one, lose their separate
identity, and become a single action in which a single judgment is
rendered. This is illustrated by a situation where several actions are
pending between the same parties stating claims which might have been
set out originally in one complaint. (actual consolidation)[273]
(3) Where several actions are ordered to be tried together but each retains
its separate character and requires the entry of a separate judgment. This
There are various references when a binding election may occur the stage of final adjudication, or
up to a point where the plaintiff shall have gained an advantage thereby or caused detriment or change of
situation to the other, or before a decision on the merits is had or a detriment to the other party supervenes.
270
271
Wright and Miller, Federal Practice and Procedure: Civil 2d at p 429.
272
1 C.J.S. 107, p. 1341; Wright and Miller, Federal Practice and Procedure: Civil 2d 2382.
273
1 C.J.S. 107; Wright and Miller, Federal Practice and Procedure: Civil 2d at 429. See Yu, Sr. v.
Basilio G. Magno Construction and Development Enterprises, Inc., G.R. Nos. 138701-02, October 17,
2006, 504 SCRA 618.
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type of consolidation does not merge the suits into a single action, or
cause the parties to one action to be parties to the other. (consolidation for
trial)[274]
[117] In Cojuangco Jr vs CA,275 the Court held that [t]he purpose or object of consolidation
is to avoid multiplicity of suits, guard against oppression or abuse, prevent delay, clear
congested dockets, simplify the work of the trial court, and save unnecessary costs or
expense; in short, the attainment of justice with the least expense and vexation to the
parties litigants. [276] Thus, the objective of consolidation is the same as that of res
judicata and litis pendentia. Cojuangco Jr vs CA277 validly upheld the consolidation of a
separately filed civil action for damages for libel under Article 33 of the Civil Code and
a criminal action for libel.
[118] From Cojuangco Jr vs CA278, there are two provisions that generally justify
consolidation of a separately filed civil case and the criminal case: Section 2 279 Rule
111 of the 2000 RCP and Section 1 Rule 31280 of the Rules of Civil Procedure. Due to
the change in approach from the 1985 RCP to the 2000 RCP, it is not clear now
whether the rules on consolidation under Section 2 Rule 111 include the consolidation
of separately filed Article 31 and Article 33 covered civil actions together with the
criminal case. This is because under the 1985 RCP, the consolidated civil action
274
1 C.J.S. 107.; 1 Am. Jur. 2d 131, p. 804; Wright and Miller, Federal Practice and Procedure: Civil
2d at 429.
275
(GR L-37474, 18 Nov 1991) Davide Jr J.
276
1 C.J.S. 1343.
277
278
279
Section 2 Rule 111 pertinently states:
SEC. 2. When separate civil action is suspended.After the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in the
criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until
final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered
in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal
action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the
civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right
of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and
of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and
decided jointly.
280
Section 1 Rule 31 pertinently states:
SECTION 1. Consolidation.When actions involving a common question of law or fact are pending before
the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order
all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to
avoid unnecessary costs or delay. (1)
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referred to in Section 2 had express reference to Article 31 and Article 33 covered

actions which were impliedly instituted together with the criminal case. However,
under the 2000 RCP, the express reference to Article 31 and Article 33 covered actions
was deleted. Nevertheless a reading of Cojuangco Jr vs CA281 reveals that consolidation
is not only generally warranted by Section 2 Rule 111, but also by Section 1 Rule 31,
which requires consolidation of actions involving a common question of law or fact
are pending before the court.282 The ostensible difference between Section 2 Rule 111
and Section 1 Rule 31, is that in the latter consolidation requires that the two cases are
pending before the same court (whether of the same sala or the same court with
multiple salas283), while in the former, pendency before the same court is not a
requirement; this has great significance in personal actions for damages where venue
is generally based on place of residence, and criminal actions, where jurisdiction and
venue are determined by the place of occurrence of element(s) of the crime. 284
IX.
CONCLUSION
[119] It has been argued in previous sections of this article, that even with respect to
dependent and independent civil actions (Article 31 and Article 33 covered actions),
the principle of res judicata (bar by prior judgment) and litis pendentia (which is premised
on res judicata bar by prior judgment) uncompromisably require that a single cause of
action cannot under any circumstance simultaneously pend in more than one forum.
It is only with respect to res judicata (conclusiveness of judgment) that the rules on
independent civil actions may constitute exceptions (certainly with respect to Article
31 covered actions, but unsettled with respect to Article 33 covered actions).
[120] Since our rules on independent and dependent civil actions, and our concepts on res
judicata, litis pendentia and forum shopping are anchored on the concept of a cause of
281
(GR L-37474, 18 Nov 1991) 3rd div Davide Jr J.
282
See Section 1 Rule 31.
See Cojuangco Jr vs CA (GR L-37474, 18 Nov 1991) Davide Jr J, where consolidation of several cases
involving the same parties and subject matter becomes a matter of duty if two or more cases are tried
before the same judge, or even if filed with the different branches of the same court of first instance.
283
284
Cojuangco Jr vs CA (GR L-37474, 18 Nov 1991) Davide Jr J highlighted the exception in libel cases
due to the special provision of the third paragraph of Article 360 of the Revised Penal Code which says that
- The criminal and civil action for damages in cases of written defamations as provided for in this chapter,
shall be filed simultaneously or separately with the court of first instance of the province or city where the
libelous article is printed and first published or where any of the offended parties actually resides at the
time of the commission of the offense. . . . Provided, further, That the civil action shall be filed in the same
court where the criminal action is filed and vice-versa provided, furthermore, That he court where the
criminal action or civil action for damages is first filed, shall acquire jurisdiction to the exclusion of other
courts. Article 360 of the Revised Penal Code practically forces the criminal and separate civil action for
libel to be litigated in the same court, making the provisions of Section 1 Rule 31 applicable.
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action,285 a change in approach on how we view a cause of action or claim may have
profound consequences on these reliant rules and concepts. There are several Supreme
Court decisions involving civil cases stating that if the same evidence sustains both
civil cases, then the causes of action are identical no matter how the complaint is
framed.286 This is contrasted to the rules on dependent and independent civil actions
that strictly align with the approach that a cause of action is equivalent to a single
theory of recovery based upon a provision of substantive law thus, an independent
civil action for quasi-delict, being anchored on the substantive provision of law under
Article 2176 of the Civil Code that creates it, is a separate and distinct cause of action
from a dependent civil action for the recovery of civil liability ex delicto anchored on
criminal negligence under Article 100 of the Revised Penal Code, even if arguably the
same evidence may be used to sustain both cases.
[121] The view that a cause of action or claim is defined by the sameness of evidence used
to sustain it, is found somewhere across the spectrum of two approaches in defining
what constitutes a claim at one end of the spectrum is the definition of a claim based
on a single theory of recovery, while at the opposite end is the theory that a claim is
defined by the transaction that gives rise to it. The American Law Institute, in its
Restatement (Second) of Judgments (1982) describes these two approaches:
"Claim," in the context of res judicata, has never been broader than the
transaction to which it related. But in the days when civil procedure still
bore the imprint of the forms of action and the division between law and
equity, the courts were prone to associate claim with a single theory of
recovery, so that, with respect to one transaction, a plaintiff might have
as many claims as there were theories of the substantive law upon which
he could seek relief against the defendant. Thus, defeated in an action
based on one theory, the plaintiff might be able to maintain another
action based on a different theory, even though both actions were
grounded upon the defendant's identical act or connected acts forming a
single life-situation. In those earlier days there was also some adherence
to a view that associated claim with the assertion of a single primary right
as accorded by the substantive law, so that, if it appeared that the
defendant had invaded a number of primary rights conceived to be held
by the plaintiff, the plaintiff had the same number of claims, even though
they all sprang from a unitary occurrence. There was difficulty in
knowing which rights were primary and what was their extent, but a
primary right and the corresponding claim might turn out to be narrow.
Still another view of claim looked to sameness of evidence; a second
action was precluded where the evidence to support it was the same as
that needed to support the first. Sometimes this was made the sole test
Section 3 Rule 2 of the Rules of Civil Procedure itself defines a cause of action as the act or omission
by which a party violates a right of another
285
286
See eg, Sangalang vs Caparas (G.R. No. L-49749 June 18, 1987) Gancayco J; Garcia vs CA (G.R. No.
L-19783 July 30, 1965) Reyes JBL J; and Pealosa vs. Tuason (G.R. No. 6809. March 22, 1912) Carson
J.
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of identity of claim; sometimes it figured as a positive but not as a

negative test; that is, in certain situations a second action might be
precluded although the evidence material to it varied from that in the first
action. Even so, claim was not coterminous with the transaction itself.
The present trend is to see claim in factual terms and to make it
coterminous with the transaction regardless of the number of substantive
theories, or variant forms of relief flowing from those theories, that may
be available to the plaintiff; regardless of the number of primary rights
that may have been invaded; and regardless of the variations in the
evidence needed to support the theories or rights. The transaction is the
basis of the litigative unit or entity which may not be split.287
[122] A change in the remedial definition of a claim as constituting a transaction, regardless
of the number of substantive theories288 would, in the context of dependent and
independent civil actions, dictate that actions based on provisions of law other than ex
delicto (eg, quasi-delict) and actions for the recovery of civil liability ex delicto, that arise
out of the same transaction and forming one claim, must be litigated in one forum,
otherwise splitting them would be violative of litis pendentia. Likewise, the failure to
allege recovery based on quasi-delict in the court litigating the action for recovery of
civil liability ex delicto, would bar the former in the event the court issues a judgment,
on the basis of res judicata (bar by prior judgment).289 Thus, a change in approach does
not affect the uncompromisability of res judicata (bar by prior judgment); rather the
change of approach has repercussions because of a change of the unit of litigation from
a single theory of recovery as constituting the unit, to the transaction itself where all
theories of recovery are lumped into.
[123] The concepts of res judicata (conclusiveness of judgment), doctrine of election of
remedies, prohibition against double recovery, and rule on consolidation of cases, are
Philippine laws means of compensating for the shortcomings caused by our present
definition of a cause of action (equivalent to a single theory of recovery) in achieving
the objectives of placing an end to litigation, avoiding multiplicity of suits and
declogging court dockets.290 A change to a transactional approach will arguably cause
287
American Law Institute, Restatement (Second) of Judgments (1982), 24 cmt a.
288
American Law Institute, Restatement (Second) of Judgments (1982), 24 cmt a.
See American Law Institute, Restatement (Second) of Judgments (1982), 18, where [w]hen a valid
and final personal judgment is rendered in favor of the plaintiff (1) The plaintiff cannot thereafter
maintain an action on the original claim or any part thereof, although he may be able to maintain an action
upon the judgment. In the context of different facets of a cause of action, see Mallion vs Alcantara (GR
141528, Oct 31, 2006) 2nd Div, where the subsequent institution of a declaration of nullity case due to
psychological incapacity is barred by res judicata (bar by prior judgment) when that ground was not pleaded
in an earlier decided but dismissed case for declaration of nullity on the ground of lack of a marriage license.
289
290
For instance, in relation to res judicata (conclusiveness of judgment), also called the rule on issue
preclusion, it has been stated in American Law Institute, Restatement (Second) of Judgments (1982),
Introductory Note to Title E (Issue Preclusion), Topic 2, Chapter 3, that There is a close relationship
between the definition of a "claim" and the sweep of the rule of issue preclusion. Courts laboring under a
VOL. 7
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less reliance on these concepts, since the expansion of the litigable unit will cause all
theories of recovery arising out of the same transaction to be litigated in one forum.
[124] It will be up to the Supreme Court which has, under the 1987 Constitution the sole
constitutional discretion to entirely repeal or amend rules of procedure, to consider
changes in rules of procedure, including rules concerning dependent and independent
civil actions. It is respectfully submitted that any changes to the rules on dependent
and independent civil actions must consider its relationship with res judicata and litis
pendentia, and the ultimate objectives of placing an end to litigation, avoiding
multiplicity of suits and declogging court dockets.
narrow view of the dimensions of a claim may on occasion have expanded concepts of issue preclusion in
order to avoid relitigation of what is essentially the same dispute. Under a transaction approach to the
concept of a claim, on the other hand, there is less need to rely on issue preclusion to put an end to the
litigation of a particular controversy.
THE CONSTITUTIONALITY OF THE CONGRESSIONAL PORK BARREL

FUNDS
Atty. Karissa Faye Tolentino
December 2014
Under the separation of powers, the executive branch of government is understood to

have more information about the necessities of projects and programs compared to the
legislative branch. The executive branch usually devises and implements such projects and
programs. The legislative branch is expected to check the executives plans as an agent of the
voters.
With this demarcation, do congressmen have any business in identifying what projects
the people need? The constitutionality of pork barrel funds had been challenged before the
Supreme Court on four occasions and on the first three occasions it favored for the
continuance of the pork barrel. A year later, the Supreme Court reversed these three separate
rulings.1
Pork Barrel, Defined.

The term "pork barrel" is derived from a practice during pre-Civil War days in the
United States when masters would give their black slaves salted pork in barrels. 2
Traditionally, its usage may be traced to the demeaning ritual of rolling out a barrel
stuffed with pork to a multitude of black slaves who would cast their famished bodies into the
porcine feast to assuage their hunger with morsels coming from the generosity of their wellfed master.3
The advent of refrigeration has made the actual pork barrel archaic but it persists in
reference to political bills that "bring home the bacon" to a legislators district and
Belgica, et. Al. vs. Hon. Executive Secretary Ochoa, et. Al., G.R. No. 208566, G.R. No. 208493, G.R.
No. 209251, November 19, 2013.
2
3
EARL PARREO, The Perils of Pork, http://pcij.org/stories/1998/pork.html, visited October 31 2014.
Bernas, Joaquin G., S.J., The 1987 Constitution of the Republic of the Philippines: A Commentary,
2003 Edition, p. 786.
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constituents.4 In the Philippines, the use of the term is common in politics, legally known as
"Priority Development Assistance Fund" or PDAF.
Pork Barrel was initially called Countrywide Development Fund (CDF) in the early
1990s before it was renamed Congressional Initiative Allocations (CIA), and finally, PDAF
in the early 2000s.
The Supreme Court defines the Pork Barrel System as the collective body of rules and
practices that govern the manner by which lump-sum, discretionary funds, primarily intended
for local projects, are utilized through the respective participations of the Legislative and
Executive branches of government, including its members.5
Congressional Pork Barrel is defined as a kind of lump-sum, discretionary fund
wherein legislators, either individually or collectively organized into committees, are able to
effectively control certain aspects of the funds utilization through various post-enactment
measures and/or practices. In particular, petitioners consider the PDAF, as it appears under
the 2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure
that allows individual legislators to wield a collective power.6
The Supreme Court's Decisions for the Constitutionality of Pork Barrel.

On four occasions, the constitutionality of pork barrel funds earmarked for local
projects of legislators had been challenged before the Supreme Court. On the first three
occasions, the Supreme Court had affirmed the role and power of Congress on the use of
pork-barrel funds.
In Philconsa vs. Enriques, et. al.,7 the Philippine Constitution Association (Philconsa)
filed a petition asking the Supreme Court to declare the power given to lawmakers to propose
and identify projects to be funded by the P2.98-billion Countrywide Development Fund
(CDF) in the 1994 budget as unconstitutional. The Court ruled for the constitutionality of the
CDF and said:
Under the Constitution, the spending power called by James Madison as "the
power of the purse," belongs to Congress, subject only to the veto power of the
President. The President may propose the budget, but still the final say on the
matter of appropriations is lodged in the Congress.
Nograles, Prospero C. and Lagman, Edcel C., House of Representatives of the Philippines,
"Understanding the Pork Barrel," p. 2. <http://www.congress.gov.ph/download/14th/pork_barrel.pdf>
(visited October 31, 2014)
5
Supra, note 1.
Id.
G.R. No. 113105 August 19, 1994
104
CONSTITUTIONALITY OF PORK BARREL FUNDS
2014
The power of appropriation carries with it the power to specify the project
or activity to be funded under the appropriation law. It can be as detailed
and as broad as Congress wants it to be. (Emphasis supplied)
The Countrywide Development Fund is explicit that it shall be used "for
infrastructure, purchase of ambulances and computers and other priority
projects and activities and credit facilities to qualified beneficiaries . . ." It was
Congress itself that determined the purposes for the appropriation.
In the same vein, the court held that:
The Constitution is a framework of a workable government and its
interpretation must take into account the complexities, realities and politics
attendant to the operation of the political branches of government. Prior to the
GAA of 1991, there was an uneven allocation of appropriations for the
constituents of the members of Congress, with the members close to the
Congressional leadership or who hold cards for "horse-trading," getting more
than their less favored colleagues. The members of Congress also had to reckon
with an unsympathetic President, who could exercise his veto power to cancel
from the appropriation bill a pet project of a Representative or Senator.
The Countrywide Development Fund attempts to make equal the unequal. It
is also a recognition that individual members of Congress, far more than the
President and their congressional colleagues are likely to be knowledgeable
about the needs of their respective constituents and the priority to be given
each project. (Emphasis supplied)
In Andres Sarmiento et al. vs. the Treasurer of the Philippines et al.,8 seven years after
Philconsa v. Enriquez, petitioners once again assailed the constitutionality of the CDF in the
1996 GAA. The high court reaffirmed its ruling in Philconsa and declared that it found no
compelling reason to reverse its previous ruling on the constitutionality of the fund, to wit:
We observe that petitioners merely reiterate their arguments in Philconsa. We
thus find no compelling justification to review, much less reverse, this Court's
ruling on the constitutionality of the CDF.
Eleven years after, the use of pork was challenged for the third time, by a petition made
by the Lawyers Against Monopoly and Poverty (LAMP) in LAMP et. al. vs. The Secretary of
Budget and Management, et.al. 9 This time, LAMP assailed the legality of the implementation of
the PDAF in the 2004 budget. The Supreme Court affirmed the constitutionality of PDAF
and dismissed LAMPs petition due to the lack of convincing proof showing that, indeed,
there were direct releases of funds to the Members of Congress, who actually spend them
according to their sole discretion. The court further held that:
G.R. No. 125680 & 126313.September 4, 2001.
G.R. No. 164987, April 24, 2012
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105
xxx [T]he petition is seriously wanting in establishing that individual Members

of Congress receive and thereafter spend funds out of PDAF. Although the
possibility of this unscrupulous practice cannot be entirely discounted, surmises and
conjectures are not sufficient bases for the Court to strike down the practice for being
offensive to the Constitution. Moreover, the authority granted the Members of
Congress to propose and select projects was already upheld in Philconsa. This
remains as valid case law. The Court sees no need to review or reverse the standing
pronouncements in the said case. So long as there is no showing of a direct
participation of legislators in the actual spending of the budget, the constitutional
boundaries between the Executive and the Legislative in the budgetary process
remain intact.
The Supreme Court's Decision against the Constitutionality of Pork Barrel.

Finally on November 19, 2013, in Belgica, et. al. vs. Hon. Executive Secretary Ochoa, et.
Al., the Supreme Court en banc reversed the three separate rulings that it had itself issued in
1994, 2001, and 2012, and declared as unconstitutional the use of pork barrel. The court
declared all past and present legal provisions on pork as unconstitutional.
10
The Court resolved, among others, the issue on whether or not the 2013 PDAF Article
and all other Congressional Pork Barrel Laws similar thereto are unconstitutional considering
that they violate the principles of constitutional provisions on:
(a) separation of powers;
(b) non-delegability of legislative power;
(c) checks and balances;
(d) accountability;
(e) political dynasties; and
(f) local autonomy.
A. Separation of Powers.
This principle refers to the constitutional demarcation of the three fundamental powers
of government. To the legislative branch of government, through Congress, 11 belongs the
power to make laws; to the executive branch of government, through the President,12 belongs
10
G.R. No. 208566, G.R. No. 208493, G.R. No. 209251, November 19, 2013.
11
Section 1, Article VI, 1987 Constitution.
12
Section 1, Article VII, 1987 Constitution.
106
2014
the power to enforce laws; and to the judicial branch of government, through the Court,13
belongs the power to interpret laws.
In Belgica, the Court elucidated that the enforcement of the national budget, as
primarily contained in the GAA, is unquestionably a function of the Executive branch of
government. The Court cited Guingona, Jr. v. Hon. Carague,14 where he court explained that
the phase of budget execution "covers the various operational aspects of budgeting" and
accordingly includes "the evaluation of work and financial plans for individual activities," the
"regulation and release of funds" as well as all "other related activities" that comprise the
budget execution cycle.15 Congress must not concern itself with details for implementation
by the Executive.16
The Court also held, citing Abakada Guro Party List v. Purisima,17 that "from the
moment the law becomes effective, any provision of law that empowers Congress or any of
its members to play any role in the implementation or enforcement of the law violates the
principle of separation of powers and is thus unconstitutional."
The Court abandoned its ruling in Philconsa which sanctioned the conduct of legislator
identification on the guise that the same is merely recommendatory and declared the 2013
PDAF Article as well as all other provisions of law which similarly allow legislators to wield
any form of post-enactment authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the separation of powers principle and
thus unconstitutional.
B. Non-delegability of Legislative Power.

The Constitution requires that the legislative power must be exclusively exercised by
the body to which the Constitution has conferred the same.18
In Belgica, the Court observes that the 2013 PDAF Article, insofar as it confers postenactment identification authority to individual legislators, violates the principle of nondelegability since said legislators are effectively allowed to individually exercise the power of
appropriation, which as settled in Philconsa is lodged in Congress.19
13
Section 1, Article VIII, 1987 Constitution.
14
273 Phil. 443 (1991).
15
Id.
16
Id.
17
Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251.
18
Section 1, Article VI, 1987 Constitution.
19
Supra note 7.
VOL. 7
107
C. Checks and Balances.

The Constitution provides for an elaborate system of checks and balances to secure
coordination in the workings of the various departments of the government.20 The
presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise
his power of item-veto, forms part of the "single, finely wrought and exhaustively considered,
procedures" for law-passage as specified under the Constitution.21
The court held in Belgica that in the current system where the PDAF is a lump-sum
appropriation, the legislators identification of the projects after the passage of the GAA
denies the President the chance to veto that item later on. Hence, item veto power of the
President mandates that appropriations bills adopt line-item budgeting and that Congress
cannot choose a mode of budgeting which effectively renders the constitutionally-given power
of the President useless.
D. Accountability
The Court held that the post-enactment features of the Congressional Pork Barrel
impairs public accountability because these features dilute congressional oversight and violate
Section 14, Article VI of the 1987 Constitution on the prohibition to intervene in any matter
before any office of the Government for pecuniary benefit.
E. Political Dynasties
The Court stated that the provision in the constitution regarding political dynasties is
not self-executing and does not provide a judicially enforceable right but merely specifies a
guideline for legislative or executive action, hence it must defer its ruling on this issue.
The Court further held that this argument is largely speculative because it has not been
properly demonstrated how the Pork Barrel System would be able to propagate political
dynasties political dynasties for enforcement.
F. Local Autonomy
The Congressional Pork Barrel violates the principles on local autonomy since it
allows district representatives, who are national officers, to substitute their judgments in
utilizing public funds for local development.
The court finds an inherent defect in the system which actually belies the avowed
intention of "making equal the unequal." In particular, the Court observes that the gauge of
PDAF and CDF allocation/division is based solely on the fact of office, without taking into
account the specific interests and peculiarities of the district the legislator represents. In this
20
Angara v. Electoral Commission, 63 Phil. 139, 158 (1936).
21
Abakada Guro Party List v. Purisima, supra note 17.
108
2014
regard, the allocation/division limits are clearly not based on genuine parameters of equality,
wherein economic or geographic indicators have been taken into consideration.22
Finally, the court held that insofar as individual legislators are authorized to intervene
in purely local matters, the 2013 PDAF Article as well as all other similar forms of
Congressional Pork Barrel is deemed unconstitutional. 23
22
Supra, note 1.
23
Id.
NETIQUETTE: TO WHAT EXTENT IS THE RIGHT TO PRIVACY

PROTECTED IN ONLINE SOCIAL NETWORKS?
Abel C. Montejo, JD-III
December 2014
Facebook is not your friend, it is a surveillance engine.

Richard Stallman
THE CONTROVERSY.
Is the constitutional right to privacy absolute, anywhere and anytime? Or is it a fluid
concept that needs to be adjusted overtime as society and technology changes? The Supreme
Court recently clarified how the constitutional right to privacy is protected in cyberspace 1,
particularly, in Online Social Networks (OSN). The right to privacy in cyberspace has been
the center of many heated discussions in the international community, especially after former
NSA contractor Edward Snowden leaked classified information to several major media
outlets about US spying activities.2 Vivares v. St. Theresas College3 might not have been as
sensational as the Snowden controversy, but it is nonetheless important because it is where
the Supreme Court, possibly for the first time, recognized and delineated the boundaries of
the right to privacy in Online Social Networks, such as Facebook.com.
ONLINE PRIVACY VS. RIGHT TO INFORMATIONAL PRIVACY IN THE INTERNET

The decision of the United States Supreme Court in Whalen v. Roe4 laid the foundation
in recognizing the different classifications of privacy.5 In this decision, the US Supreme Court
held that the word privacy involved at least two different kinds of interests. One is the
individual interest in avoiding disclosure of personal matters and another is the interest in
There are fine distinctions between the word cyberspace and Internet, but the intent of this article is
the protection of the right to privacy when persons are engaged in cyberspace or in the Internet and not to
define and delineate the two. Hence, the two terms are used interchangeably in this article.
1
Edward Snowden: Leaks that exposed US spy programme, 17 January 2014 BBC News,
http://www.bbc.com/news/world-us-canada-23123964, retrieved 11/26/2014.
3
G.R. No. 202666, September 29, 2014.
429 U.S. 589 (1977)
The Supreme Court cited the speech of former Chief Justice Reynato Puno entitled The Common Right
to Privacy where the right to informational privacy was mentioned in Vivares v. St. Theresas College.
However, the link that the provided in their decision cannot be found. For having no means to verify the
contextual relation of that speech to this article, I did not include that speech as a source in this article.
5
110
NETIQUETTE
2014
independence in making certain kinds of important decisions. This decision has since been
quoted by our own Supreme Court in a string of different cases involving the right to privacy.
In Vivares, our Court tackled the issue of informational privacy in cyberspace where they
defined the right as the right to control information about themselves. However, before
Vivares, as the Court noted, it was generally held that a reasonable expectation of privacy in
cyberspace is grounded on a theoretical protocol known as wishful thinking.6 In other words,
it was almost impossible to expect privacy much more legal protection when in cyberspace.
Although the Court noted in Vivares that the right to informational privacy exist in
cyberspace, they stopped short of recognizing that within the Internet, this constitutional right
has different classifications as well. As a heavy Internet user, and with adequate
understanding of how the Internet works, I find that it is important to recognize the existence
of different kinds of privacy in cyberspace and to classify them accordingly just as the US
Supreme Court did in Whalen. It is essential to understand what Online Privacy is, what it is
not, and how different it is when a stranger accesses a persons information without consent
and permission. For the purposes of this article, a working definition of online privacy and
right to informational privacy in the Internet is offered. Online Privacy, for this articles
purposes, is defined as a persons right to be left alone when he is engaged in the Internet. On
the other hand, right to informational privacy in the Internet, for this articles purposes, is
defined as a persons right for his online personal information not to be looked into by private
persons or public authorities. The former means that a person must be free from intrusion,
surveillance, and/or tracking activities that collects and stores data about a persons online
actions (e.g., what sites he/she frequently visits, what he/she buys, a persons reading/viewing behavior,
how long a person stays in a website, among others). The latter means that the personal information
(e.g., private pictures, personal circumstances such as date of birth and address, private works, the data
gathered from surveillance, among others) of a person available in the Internet must not be
accessed, used, downloaded, and/or displayed by any person without the owners consent
and permission. These two are not interchangeable and the distinction between them is
important because of the different legal implications of the concepts, especially when there is
an allegation that the right to privacy in cyberspace was infringed. If a person alleges that he
was unlawfully monitored, he should invoke violation of online privacy. The concept in this right
is similar to the constitutional right against unlawful search. However, if he alleges that his
works or private files were illegally accessed or viewed, invoking violation of informational
privacy in the Internet should be proper. This in turn is similar to constitutional right against
unlawful seizure and the inviolable privacy of private communication and correspondence. This should
be the interpretation and the application of Sections 2 & 3, Article III of our 1987
Constitution.
RIGHT TO INFORMATIONAL PRIVACY IN THE INTERNET

Following the definition offered above, the right to privacy was invoked by the
petitioners before the Supreme Court in Vivares alleging that it was violated by the private
respondents and that the lower court was wrong when it dismissed their petition for failing to
6
Supra, note 3.
VOL. 7
111
prove the existence of an actual or threatened violation of the minors right involved in this
controversy.
The controversy in Vivares arose when the children of the petitioners, who were minors
at that time, took pictures of themselves in their brassieres while changing into their
swimming suits for a beach party. These pictures were then uploaded by one of their friends
to her Facebook account. The pictures were allegedly seen by some of their friends in
Facebook who in turn reported the matter to their teacher. Since the minors were enrolled in
a private and conservative Catholic School, the teacher took notice of the reports and
allegedly asked one of the students to access her (students) Facebook account and open the
pictures of the girls so she can personally see it for herself. The teacher then reported the
matter to the school officials. After investigation, the school officials punished the children
for violation of the terms contained in their Student Handbook, and barred the children to
attend their commencement exercises scheduled that month. The erring students were then
senior graduating students. The petitioners in this case then filed a petition for injunction and
damages before the Regional Trial Court (RTC) of Cebu praying that the School be enjoined
from implementing the sanction which precluded their children to join the commencement
exercise. Despite the Temporary Restraining Order issued by the RTC, the School still barred
the sanctioned students from participating in the graduation rites. Thereafter, the petitioners
filed a petition for the Issuance of a Writ of Habeas Data and prayed that respondent School
be ordered to a) surrender all copies of the pictures of the students; b) destroy all of their
copies; and c) declare that these pictures were obtained illegally in violation of their childrens
right to privacy. The School, countered by saying that the Writ of Habeas Data is not proper
in the instant case and that there is no reasonable expectation of privacy on Facebook. The
Trial Court, after due course and hearing, dismissed the petition for failing to prove the
existence of an actual or threatened violation of the minors right to privacy. Further, the Trial
Court held that by uploading the pictures on Facebook, the pictures lost their privacy in some
way with respect to those who can view them. The petitioners then filed an appeal pursuant
to Section 19 of the Rule of Habeas Data.
The Trial Courts decision begs the question, how much of our privacy is protected by our
laws when in cyberspace? Not much it appears. The Supreme Court treated the controversy in
Vivares from traditional point of view, urging Internet users to exercise caution and
responsibility when engaging the cyberspace as it is riddled with countless risks. Before
analyzing the Supreme Courts decision in Vivares, let us take a brief look at the evolution of
the right to privacy in the Philippines, and how jurisprudence has molded the concept of this
right into what it is today.
THE RIGHT TO PRIVACY.

The right to privacy is both an axiom and a paradox. It is recognized as an independent
and protected right by the international community7, but can also be considered, as one
philosopher posits, a derivative right at the same time in a sense that it can only be violated if
7
Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the
International Covenant on Civil and Political Rights.
112
NETIQUETTE
2014
there is a violation of other rights.8 An offender needs to transgress other protected rights
before a cause of action for violation of privacy may arise.
The evolution of a persons right to privacy is aptly summarized by J. Bersamin in his
concurring and dissenting opinion in the case of Pollo v. Constantino-David9, to wit:
The 1890 publication in the Harvard Law Review of The Right to Privacy, an article
of 28 pages co-written by former law classmates Samuel Warren and Louis Brandeis, is often
cited to have given birth to the recognition of the constitutional right to privacy. The article
was spawned by the emerging growth of media and technology, with the co-authors
particularly being concerned by the production in 1884 by the Eastman Kodak Company of a
snap camera that enabled people to take candid pictures. Prior to 1884, cameras had been
expensive and heavy; they had to be set up and people would have to pose to have their
pictures taken. The snap camera expectedly ignited the enthusiasm for amateur photography
in thousands of people who had previously not been able to afford a camera. This
technological development moved Warren and Brandeis to search for a legal right to protect
individual privacy. One of the significant assertions they made in their article was the
declaration that the common law secures to each individual the right of determining,
ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to
others, said right being merely part of an individuals right to be let alone.
While some quarters do not easily concede that Warren and Brandeis invented the
right to privacy, mainly because a robust body of confidentiality law protecting private
information from disclosure existed throughout Anglo-American common law by 1890, critics
have acknowledged that The Right to Privacy charted a new path for American privacy law.
In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to be let
alone in his dissent in Olmstead v. United States, viz:
The protection guaranteed by the Amendments is much broader in scope. The makers
of our Constitution undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of mans spiritual nature, of his feelings,
and of his intellect. They knew that only a part of the pain, pleasure and satisfactions
of life are to be found in material things. They sought to protect Americans in their
beliefs, their thoughts, their emotions and their sensations. They conferred, as against
the Government, the right to be let alone the most comprehensive of rights, and the
right most valued by civilized men. To protect that right, every unjustifiable intrusion
by the Government upon the privacy of the individual, whatever the means employed,
must be deemed a violation of the Fourth Amendment. And the use, as evidence in a
criminal proceeding, of facts ascertained by such intrusion must be deemed a violation
of the Fifth.
In 1960, torts scholar William Prosser published in the California Law Review his
article [on] Privacy based on his thorough review of the various decisions of the United States
courts and of the privacy laws. He observed then that the law of privacy comprises four
distinct kinds of invasion of four different interests of the plaintiff, which are tied together by
8
9
Thomson, J., 1975, The Right to Privacy, Philosophy and Public Affairs, 4: 295314
G.R.
No.
181881,
October
18,
http://sc.judiciary.gov.ph/jurisprudence/2011/october2011/181881_bersamin.htm#_ftn1,
November 25, 2014.
2011,
retrieved
VOL. 7
113
the common name, but otherwise have almost nothing in common except that each represents
an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, to be let
alone. He identified the four torts as: (a) the intrusion upon the plaintiffs seclusion or
solitude, or into his private affairs; (b) the public disclosure of embarrassing private facts about
the plaintiff; (c) the publicity that places the plaintiff in a false light in the public eye; and (d)
the appropriation, for the defendants advantage, of the plaintiffs name or likeness.
-xxxIn the 1977 landmark ruling of Whalen v. Roe, the US Supreme Court expanded the
right to privacy by categorizing privacy claims into two, namely: informational privacy, to
refer to the interest in avoiding disclosure of personal matters; and decisional privacy, to refer
to the interest in independence in making certain kinds of important decisions.
All US Circuit Courts recognizing informational privacy have held that this right is
not absolute and, therefore, they have balanced individuals informational privacy interests
against the States interest in acquiring or disclosing the information.
-xxxDecisional privacy, on the other hand, evolved from decisions touching on matters
concerning speech, religion, personal relations, education and sexual preferences.
-xxxIt is elementary that before this constitutional right may be invoked a reasonable or
objective expectation of privacy should exist, a concept that was introduced in the concurring
opinion of Justice Harlan in the 1967 case Katz v. United States, no doubt inspired by the
oral argument of Judge Harvey Schneider, then co-counsel for petitioner Charles Katz. Since
the idea was never discussed in the briefs, Judge Schneider boldly articulated during his oral
argument that expectations of privacy should be based on an objective standard, one that
could be formulated using the reasonable man standard from tort law. Realizing the
significance of this new standard in its Fourth Amendment jurisprudence, Justice Harlan, in
his own way, characterized the reasonable expectation of privacy test as the rule that has
emerged from prior decisions.
Justice Harlan expanded the test into its subjective and objective component, however,
by stressing that the protection of the Fourth Amendment has a two-fold requirement: first,
that a person have exhibited an actual (subjective) expectation of privacy and, second, that the
expectation be one that society is prepared to recognize as reasonable. Although the
majority opinion in Katz v. United States made no reference to this reasonable expectation of
privacy test, it instituted the doctrine that the Fourth Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home or office, is not a subject
of Fourth Amendment protection. But what he seeks to preserve as private, even in an area
accessible to the public, may be constitutionally protected.
-xxx-
What started out as a legal article10 has now become a fundamental principle of the
free world and has even gained legal acceptance and protection. However, it is not the first
time that the concept of privacy was documented. While majority of the scientific world
10
4 Harvard Law Review 193
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largely exclude the Bible as a research tool, nevertheless, we can find one of the earliest
concept of bodily privacy recorded in the book of Genesis. Adam and Eve sewed fig leaves
together to cover their bodies when they realized they were naked.11 Another reference to
privacy was espoused by Aristotle in Politics12 when he distinguished household management
(private; concerns only the household of a person) vis--vis communal management (public;
concerns everyone in the community) of affairs such as property. In the Philippines, the right
to privacy has gained sufficient traction that it has been recognized in our Constitution13, Civil
Code14, Revised Penal Code15, special penal laws16, and jurisprudence.
11
Genesis chapter 3, verse 7, New International Version.
12
Politics, by Aristotle, written 350 B.C.E, translated

http://classics.mit.edu/Aristotle/politics.1.one.html, retrieved, 11/22/14
13
by
Benjamin
Jowett
in
Article III, Sections 2, 3, 1987 Constitution, provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.
Section 3. The privacy of communication and correspondence shall be inviolable except upon
lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.
14
Article 26, New Civil Code of the Philippines, provides:

Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his
neighbors and other persons. The following and similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life,
place of birth, physical defect, or other personal condition.
Article 723, New Civil Code of the Philippines, provides:

Article 723. Letters and other private communications in writing are owned by the person to whom
they are addressed and delivered, but they cannot be published or disseminated without the consent
of the writer or his heirs. However, the court may authorize their publication or dissemination if
the public good or the interest of justice so requires. (n)
15
16
Article 290-292, RPC.
RA 4200 otherwise known as Anti-Wiretapping Law, RA 10173 otherwise known as Data Privacy Act
of 2012, RA 9995, otherwise known as Anti-Photo and Video Voyeurism Act of 2009, RA 1405, otherwise
known as Secrecy of Bank Deposits Act, among others.
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SURVEY OF SOME CASES INVOLVING THE RIGHT TO PRIVACY IN THE

PHILIPPINES.
1. MAY BE LIMITED BY LAW.
The application of the constitutional right to privacy has been interpreted in many
ways. The constitutional basis of this right was formally acknowledged in the landmark case
of Morfe v. Motuc17 where the judge questioned the constitutionality of the required sworn
statement of financial condition, assets, income and liabilities (SFAIL) and alleged that it
intrudes into the public employees right to privacy.
The Supreme Court recognized the right to privacy as the beginning of all freedom and
the most comprehensive of rights and the right most valued by civilized men but upheld the
constitutionality of the SFAIL. In defending its decision, the Supreme Court held that, using
the rational relationship test18, the individuals right to privacy is not infringed when the
intrusion is for a valid purpose by a valid statute. Nevertheless, the Court took the opportunity
to affirm the importance of the right to privacy when it further held that the distinguishing
factor of a democratic society against a totalitarian one is its capacity to maintain and support
the enclaves of a private life.19 Notably, in Morfe, the constitutional right to privacy was limited
by a special law.
2. IT IS NECESSARILY NARROWER IF THE PERSON IS A PUBLIC FIGURE.

The Supreme Court had another opportunity to measure the reach of the constitutional
right to privacy in Ayer v. Capulong and Enrile20 when it was pitted against the right to free
speech and expression, another constitutional right. This time, the parties were no longer
government against government but a private person against another. Petitioner Ayer
Productions PTY. Ltd. (Ayer) wanted to document for commercial viewing the historic
peaceful struggle of the Filipinos during the 1986 People Power Revolution (EDSA 1). Enrile,
one of the central figures during EDSA 1, did not approve of the use of his name, or picture,
or that of any member of his family [sic] for advertising or commercial purposes and that no
reference should be made to him or his family in making the documentary. 21 Ayer complied
and deleted the name of Enrile from the movie script. However, Enrile thereafter filed a
complaint with application for Temporary Restraining Order and Wilt of Pretion 22 [sic]
17
G.R. No. L-20387, January 31, 1968
18
Rational Relationship Test provides that objection is precluded if a requirement has a rational relationship
with the objective of a valid statute, Id.
19
Supra, note 17.
20
G.R. No. 82380, April 29, 1988
21
Id.
22
Id.; for educational purposes, this may mean wilt of protection. The published text of this decision
contains several typographical errors.
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claiming that the continued production of the documentary without his consent and over his
objection constitutes a clear violation of his right to privacy. Ayer countered by saying that
the documentary did not involve Enrile or his family and that the preliminary injunction
constitutes a prior restraint over the right of free speech and expression.
In deciding the controversy, the Court held that there was no clear and present danger
of any violation to the right to privacy because the documentary was not yet finished at the
time the Temporary Restraining Order was issued. The issuance of the TRO meant that it
was a case of prior and direct restraint upon the petitioners right to free speech and
expression. Even more substantially, the Court ruled that the right to privacy of public figures23
like Enrile are necessarily narrower than that of an ordinary citizen.24
3. IT IS UPHELD IF THE LIMITING LAW IS NOT NARROWLY DRAWN.

In 1998, 10 years after Ayer, the right to privacy was again the subject of a showdown
between a Senator and then Executive Secretary. Unlike the earlier cases analyzed above, the
right to privacy was upheld this time. The Court was asked to decide in Blas Ople v. Ruben
Torres, et. al.25 if the adoption of a National Computerized Identification Reference System,
which was the subject in A.O. 308, would constitute a violation of the right to privacy. The
Philippine government wanted to create a national ID system by giving a Population
Reference Number (PRN) to every person who had any transaction with any of the
government agencies using Biometrics Technology.26 Blas Ople, then a Senator, filed a
23
Prosper and Keeton on Torts, 5th ed. at 859-861 (1984), cited in Ayer v. Capulong and Enrile states:
A public figure has been defined as a person who, by his accomplishments, fame, or mode
of living, or by adopting a profession or calling which gives the public a legitimate interest in his
doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a
celebrity. Obviously to be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a professional baseball player,
a pugilist, or any other entertainment. The list is, however, broader than this. It includes public
officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy,
and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who
has arrived at a position where public attention is focused upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight to privacy.
Three reasons were given, more or less indiscrimately, in the decisions" that they had sought
publicity and consented to it, and so could not complaint when they received it; that their
personalities and their affairs has already public, and could no longer be regarded as their own
private business; and that the press had a privilege, under the Constitution, to inform the public
about those who have become legitimate matters of public interest. On one or another of these
grounds, and sometimes all, it was held that there was no liability when they were given additional
publicity, as to matters legitimately within the scope of the public interest they had aroused.
-xxx-
24
Supra, note 20.
25
G.R. No. 127685. July 23, 1998
26
The Supreme Court noted its understanding of Biometrics Technology in this case, to wit:
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petitioner when A.O. 308 was published in newspapers of general circulation, alleging that
A.O. No. 308 establishes a system of identification that is all-encompassing in scope, affects
the life and liberty of every Filipino citizen and foreign resident, and more particularly,
violates their right to privacy.27 The Solicitor General, commenting for the government,
argued that there is a reasonable expectation of privacy with regard to the National ID and
the use of Biometrics, and also by employing the rational relationship test, the infringement
to privacy was justified.
The Court agreed with petitioner Ople and ruled that A.O. 308 is unconstitutional
because is so widely drawn that a minimum standard for a reasonable expectation of privacy,
regardless of technology used, cannot be inferred from its provisions.28 It was not the National
ID system itself that was violative of the right to privacy but the inherent vagueness of the
order. It was not clear how the data will be gathered, how it will be handled, for what purpose,
and who are the persons permitted access to such data. It further held that A.O. 308 did not
pass the rational relationship test because it was not a statute, but a mere administrative order,
and more importantly, the order was not sufficiently detailed. In defending its conclusion, the
Court declared that when the integrity of a fundamental right is at stake, this court will give the
challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the
authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough
for the authorities to prove that their act is not irrational for a basic right can be diminished, if not
defeated, even when the government does not act irrationally. They must satisfactorily show the presence
of compelling state interests and that the law, rule, or regulation is narrowly drawn to preclude abuses.
xxx Biometry or biometrics is "the science of the application of statistical methods to
biological facts; a mathematical analysis of biological data." The term "biometrics" has now
evolved into a broad category of technologies which provide precise confirmation of an individual's
identity through the use of the individual's own physiological and behavioral characteristics. A
physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's
personality and includes voice print, signature and keystroke. Most biometric identification systems
use a card or personal identification number (PIN) for initial identification. The biometric
measurement is used to verify that the individual holding the card or entering the PIN is the
legitimate owner of the card or PIN.
A most common form of biological encoding is finger-scanning where technology scans a
fingertip and turns the unique pattern therein into an individual number which is called a biocrypt.
The biocrypt is stored in computer data banks and becomes a means of identifying an individual
using a service. This technology requires one's fingertip to be scanned every time service or access
is provided. Another method is the retinal scan. Retinal scan technology employs optical
technology to map the capillary pattern of the retina of the eye. This technology produces a unique
print similar to a finger print. Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted from the skin of people.
The latest on the list of biometric achievements is the thermogram. Scientists have found that by
taking pictures of a face using infra-red cameras, a unique heat distribution pattern is seen. The
different densities of bone, skin, fat and blood vessels all contribute to the individual's personal
heat signature. xxx
27
Supra, note 25.
28
Id.
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This approach is demanded by the 1987 Constitution whose entire matrix is designed to protect human
rights and to prevent authoritarianism. In case of doubt, the least we can do is to lean towards the
stance that will not put in danger the rights protected by the Constitution.29 (emphasis supplied)
As if he did not make himself clear enough, the ponente J. Puno took a swipe at the
dissenter and had this to say at the end:
xxx The right to privacy is one of the most threatened rights of man living in
a mass society. xxx It is timely to take note of the well-worded warning of Kalvin, Jr.,
the disturbing result could be that everyone will live burdened by an unerasable [sic]
record of his past and his limitations. In a way, the threat is that because of its recordkeeping, the society will have lost its benign capacity to forget. Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the right to privacy
as a fundamental right. We close with the statement that the right to privacy was
not engraved in our Constitution for flattery. (emphasis supplied)
4. DOES NOT EXIST IN MATTERS INVOLVING COMPELLING STATE INTEREST.

The next interpretation of the right to privacy was again the centerfold in Sabio v.
Gordon30 where it was confronted with the problem of harmonizing the right to privacy of a
government official and the power of Congress to conduct an investigation in aid of legislation
pursuant to Section 21, Article VI of the 1987 Constitution. 31 In this case, the parties are
directors of government-owned-and-controlled corporations, an arm of the Executive branch
of the Republic of the Philippines, against the Senate of the Philippines. The controversy in
this case arose when then PHILCOMSAT directors and officers refused to attend a senate
inquiry in aid of legislation involving alleged irregularities, among others, that the inquiry is
a violation of their right to privacy.
The Supreme Court held that indeed, there are zones of privacy recognized and protected
by international law32 and our local laws33 and that our Bill of Rights34 itself guarantees at least
two zones of privacy where the right to be let alone and the right to determine what, how much, to
whom and when information about himself shall be disclosed35 is protected. However, in order to
determine if the right to privacy was violated, there has to be a determination if whether or
29
Id.
30
G.R. No. 174340, October 17, 2006
Section 21, Article VI of the 1987 Constitution reads: The Senate or the House of Representatives or
any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly
published rules of procedure. The rights of persons appearing in or affected by such inquiries shall be
respected.
31
32
Article 12 of the Universal Declaration of Human Rights. See also Article 17 (1) and (2) of the
International Covenant on Civil and Political Rights.
33
Supra, note 30.
34
Article III, Sections 2 and 3 of the 1987 Constitution.
35
Id.
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not the person claiming the violation has exhibited a reasonable expectation of privacy and if
there is, whether that expectation was breached by an unreasonable government intrusion. 36
It was held that Government officials have no reasonable expectation of privacy over matters
involving their offices in a corporation where the government has interest. Certainly, such
matters are of public concern and over which the people have the right to information. When
there exist a compelling state interest37, the right to privacy is not absolute.38
5. WILL NOT PRECLUDE A REASONABLE COLLECTION AND STORAGE OF PERSONAL

DATA
Decided on the same year as Sabio but eight years after the Ople decision, the
consolidated cases of Kilosang Mayo Uno v. National Economic Development Authority and Bayan
Muna v. Executive Secretary and National Economic Development Authority 39 (KMU v. NEDA) is
another controversy involving efforts of the government of adopting an efficient national ID
system in the country. Under EO 420, then President Arroyo directed all government agencies
and government-owned and controlled corporations to adopt a uniform data collection and
format for their existing identification (ID) systems. In order to do this, a unified multipurpose identification (ID) was ordered created. Petitioners challenged the order invoking,
among others, violations of the constitutional right to privacy.
The Supreme Court dismissed the petitions holding that EO 420 narrowly limits the
data that can be collected, recorded and shown compared to the existing ID systems of
government entities. The order further provides strict safeguards to protect the confidentiality
of the data collected, in contrast to the prior ID systems which are bereft of strict
administrative safeguards.40 The Courts reasoning in holding that EO 420 is not violative of
the right to privacy can be summarized in one sentence, the right to privacy does not bar the
adoption of reasonable ID systems by government entities.41 In effect, the reasons for limiting the
right to privacy stated in Morfe was reaffirmed here in KMU. Comparing the cases of Ople and
KMU, it is clear that the burden of proof rests upon the one claiming violation of privacy if
the challenged law or rule is clear and narrowly drawn but the opposite is true if the challenged
law or rule is vague on its face.
36
Id.
37
Id; Compelling State Interest states that the right to privacy can be infringed if there exist compelling
reasons.
38
Supra, note 30.
39
G.R. No. 167798 & 167930, April 19, 2006
40
Id.
41
Id.
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6. IT IS PROTECTED BY THE DUE PROCESS CLAUSE BUT IT CAN ALSO BE WAIVED.

One of the basis of the constitutional right to privacy is the right against unlawful
search and seizure.42 On this premise, Anonymous Letter-Complaint against Atty. Miguel Morales,
et. al.43 is important to discuss. The issue in this case arose when the Office of the Court
Administrator (OCA) received an anonymous letter-complaint alleging that Atty. Morales
was using company hours and supplies to attend to his personal matters. Acting on the letter,
the Deputy Court Administrator (DCA) conducted discreet investigation which failed to turn
any substantial findings. Eight days thereafter, the DCA conducted an on-spot investigation
with NBI agents and other team members. They were able to access the personal computer 44
of Atty. Morales in his presence and printed two documents from the hard drive. These
documents were pleadings of the private cases that Atty. Morales were allegedly writing
during company hours and using company supplies. Atty. Morales's computer was seized and
taken to the custody of the OCA. In his manifestation, Atty. Morales alleged, among others,
that the raid conducted by the DCA without a warrant violated his right to privacy and the
articles seized therewith should be considered inadmissible. The Supreme Court did not
condone the alleged unethical actions of Morales mentioned in the complaint, but they
nevertheless exonerated him of any liability because the warrantless search and seizure
conducted was unlawful. Finding that the evidences obtained were inadmissible for having
been obtained in violation of Morales right to privacy, the Court dismissed the complaint
against him. The interesting portion of this case however was how the Court clarified the
application of consent in relation to the constitutional rights of a person. The DCA alleged that
Atty. Morales gave his consent to the search, thus making the case to fall under the category
of a valid warrantless search. In dismissing this allegation, the Supreme Court held that consent
to search must be proven by clear and convincing evidence. Consent must be voluntary and
free from any forms of duress or coercion, hence the burden of proving by clear and
convincing testimony, that the necessary consent was freely and voluntarily given lies with the
State.45 Waiver of fundamental rights is not to be presumed. To constitute a valid consent or
waiver of the constitutional guarantee against obtrusive searches, it must be shown that (1)
the right exists; (2) that the person involved had knowledge, either actual or constructive, of
the existence of such right; and (3) the said person had an actual intention to relinquish the
right.46
Analyzing the facts further, it is clear that the constitutional right to privacy is
protected by the due process clause.47 In effect, the Courts ruling in this case states that the
42
Supra, note 34.
43
A.M. No. P-08-2519-A.M. No. P-08-2520, November 19, 2008
By analyzing the facts of the case and by way of inference, the phrase personal computer in this case
meant an actual desktop computer privately owned by Atty. Morales, which he brought inside the premises
of his office.
44
45
Supra, note 43.
46
Id.
47
Id.
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right to privacy may be infringed upon if the intrusion was valid and lawful, or if consent to
the intrusion was freely and voluntarily given.
7. EXPECTATION OF PRIVACY OF ALL INTERNET USERS MUST BE TAKEN INTO ACCOUNT

TO DETERMINE VIOLATION.
The last case that we are going to analyze before going back to the analysis of the
Courts decision in Vivares is Disini et. al., v. Secretary of Justice, et. al.48 The facts of this case
relates closely to the facts in Vivares as it involves the right to privacy in relation to regulation
of cyberspace. The central issue involved in this case is the recently passed Republic Act
(R.A.) 10175, otherwise known as the Cybercrime Prevention Act of 2012. Petitioners in this
case asked the Supreme Court to declare the following provisions of the law for being void
and unconstitutional49, to wit:
- xxx Petitioners challenge the constitutionality of the following provisions of the cybercrime
law that regard certain acts as crimes and impose penalties for their commission as
well as provisions that would enable the government to track down and penalize
violators. These provisions are:
- xxx d. Section 4(b)(3) on Identity Theft;
- xxx m. Section 12 on Real-Time Collection of Traffic Data;
- xxx o. Section 14 on Disclosure of Computer Data;
- xxx Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and
362 of the RPC on the crime of libel. xxx" (Omissions supplied)
The common denominator for the declaration of the unconstitutionality of these
provisions is the violation of the right to privacy. In deciding the case, the Supreme held that
Sections 4 (b) (3) and 14 are constitutional while they struck Section 12 down for being
unconstitutional. The reasoning of the Court behind this decision provides an insight into one
of the earliest judicial recognitions of the existence and protection of the zones of privacy in
cyberspace. Notably, the Supreme Court gave a brief description, if not a definition, of the
cyberspace, that is, a system that accommodates millions and billions of simultaneous and ongoing
48
G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391, 203407, 203440, 203453, 203454,
203469, 203501, 203509, 203515, 203518, February 11, 2014
49
Id.
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individual accesses to and uses of the internet. 50 Once again, the constitutional basis of the right to
privacy declared in Morfe was affirmed in this case, along with the zones of privacy pronounced
in Sabio.
Along with the reaffirmation of the Morfe and Sabio ruling is the qualification of the
right to privacy. The Court explained that privacy has two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence in making
certain important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. Informational privacy has two aspects: the right not to have
private information disclosed, and the right to live freely without surveillance and intrusion. In
determining whether or not a matter is entitled to the right to privacy, this Court has laid
down a two-fold test. The first is a subjective test, where one claiming the right must have an
actual or legitimate expectation of privacy over a certain matter. The second is an objective test,
where his or her expectation of privacy must be one society is prepared to accept as objectively
reasonable. Since challenged provision (referring to Section 12) applies to all information and
communications (ICT) users, which is the segment of the population who use all sorts of
electronic devices to communicate with one another (this include Internet users), the
expectation of privacy is to be measured from the general publics point of view. Without
reasonable expectation of privacy, the right to it would have no basis in fact.
In other words, the standard for determining if a violation of the right to privacy
occurred in cyberspace is the collective expectation of privacy of all Internet users. Given the
billions of Internet users who have different standards of what privacy is and what it is not,
this pronouncement in Disini effectively reduced the expectation of privacy in cyberspace to
almost zero. An Internet user almost cannot claim any privacy in cyberspace because the very
nature of the Internet is a public and open network that allows computers from different
locations in the world to communicate with each other. To illustrate, it is like entering into a
highway composed of billions of interconnected roads that connects all the countries in the
world. This global highway is not owned by a single country but was co-developed by all the
countries in the world (just like the Internet). In this global highway, it is almost impossible
for a person to claim a right of way51 to proceed first because this right would then be subject
to numerous interpretations by the different laws of different countries. As a result of this
conflict, the definition of right of way would then be reduced to a very subjective level making
it almost non-existent. If you would have to enter that global highway, you would have to
exercise outmost caution since practically, you are on your own and your right of way to
proceed and the legal protection of your right of way to proceed first is nil. The illustration
given is the practical effect of the Courts decision that the expectation of privacy for ICT
users, including Internet users, must be measured from the general publics point of view.
Markedly, the Supreme Court also said that accessing information that was made public by
the user himself is not considered a violation of the right to privacy.52
50
Id.
51
Section 42, Article III, Republic Act 4136, otherwise known as Land Transportation and Traffic Code.
52
Supra, note 48.
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8. EXPECTATION OF PRIVACY MUST BE MANIFESTED BY THE USER

Having discussed some of the major and policy shaping decisions made by the
Supreme Court on the right to privacy, let us now analyze the ruling in Vivares.53 Petitioners
appealed before the Supreme Court to reverse the Trial Courts ruling adverse their prayer.
The petitioners premised their argument that there was actual or threatened violation of the
childrens right to privacy when the School obtained the pictures of the minors because the
method of obtaining them was illegal. The allegation of illegality hinged on the claim that the
pictures were set to be seen only by the friends of the children, and that their teacher was not
one of them. Hence, the teacher had no right to view them, nor to download them thereafter
and show it to the School officials. By doing so, petitioners posit, the right to privacy of the
minors were violated in cyberspace.
The appeal was dismissed and the Trial Courts reasoning that petitioners failed to
prove that there existed an actual or threatened violation of the right to privacy of the minors
was upheld. The Supreme Court ruled that the actions of the School do not constitute a
violation of the childrens right to privacy because the petitioners failed to prove by
corroborating evidence that the pictures were set to be seen only by their intimate circle of
friends (they mentioned that it was viewable only to the five of them but it was not clear from
the records who these five people are). Considering that the default setting of Facebook is
Public, that is viewable by all Facebook users, it was reasonable to assume that the photos
where in reality viewable by all the Facebook friends of the children or by the public at large.
The Court further held that the School did not actively access the pictures, but rather were
mere recipients of the information when the friends of the minors informed their teacher about
its existence. In sum, the Court faulted the children for failing to exercise cyber responsibility
by utilizing the privacy tools of Facebook that was readily available to them.
What is interesting in this ruling is how the Supreme Court viewed the right to
informational privacy in Online Social Networks. First, they recognized that contrary to the
generally held view that there is no reasonable expectation of privacy in cyberspace because
a person intends to renounce all privacy rights when he posts something in the Internet 54,
having an expectation of informational privacy is not necessarily incompatible with engaging
in cyberspace activities, including those in OSNs. This expectation can be inferred from the
subjective expectation of OSN users that the content of their accounts can only be viewed by
the people whom they grant access to. However, the OSN user has to manifest his intention
to keep his online posts private, or his expectation to have some privacy.
How can a person manifest intention in cyberspace?
The answer of the Supreme Court was clear and categorical: the OSN user can
manifest his expectation of privacy if he utilized the privacy tools and features of Social
Network Websites such as Facebook. Only when this is done can the right to informational
privacy be invoked. If the OSN user failed to use these security and privacy tools, then he is
deemed to have waived his right to privacy and is barred to seek relief from the Courts. It is
incumbent upon internet users to exercise due diligence in their online dealings and activities
53
Supra, Note 3.
54
US v. Gines-Perez, cited in Vivares v. St. Theresas College, id.
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and must not be negligent in protecting their rights, because equity serves the vigilant. 55 The
failure of the children to utilize the available tools readily available to them took them out of
the ambit of the protection afforded by law. In the words of the Court, the students placed
themselves in that position. OSN users must be mindful enough to learn the use of privacy
tools, to use them if they desire to keep the information private, and to keep track of changes
in the available privacy settings, such as those of Facebook, especially because Facebook is
notorious for changing these settings and the sites layout often. In effect, Vivares is
pronouncing that the burden of proof lies upon the petitioner to prove that he has exercised
the cautious diligence required from him as an OSN user by preponderance of evidence,
before he can invoke relief from the Courts.
CRITIQUE.
I offer a little critique. It is obvious that Facebook, being a Fortune 500 company 56 is
one of the top, if not the number one, social media platform in the world. Being such, it has
the capacity, the manpower, and available technology to offer the privacy tools they have
now. Their tools are impressive and reflective of a real persons privacy preference in the real
physical world. However, not all OSNs have this technology or capability. With the Vivares
ruling, it seems that a legal vacuum was created when the Court pronounced that OSN users
should be mindful enough to learn the use of privacy tools57 to manifest their expectation of privacy in
cyberspace.58 Failing to do so is tantamount to a waiver and excludes them from the protection
of the law.
But what about the Online Social Media Networks who do not have the sophisticated privacy
tools that Facebook offers? Does this mean that the right to privacy is still waived where user information
was taken from Online Social Networks without security and privacy tools offered?
Vivares seems to consider Facebook as representative of all other Online Social
Networks which is clearly not the case. Facebook is an excellent social media company, but
not all social media companies are as advanced as Facebook. There is no way for a user to
manifest his intention of privacy in an OSN that do not offer any privacy tools. The Supreme
Court seem to fail to take this into account. But nevertheless, Vivares offered an actual
opportunity, perhaps the first of its kind, for the Court to finally address the issue of privacy
in cyberspace.
55
Supra, note 53.
56
http://fortune.com/company/fb, retrieved 11/2/2014
57
Supra, note 53.
58
Supra, note 53.
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SUMMARY AND CONCLUSION.

In summary, the Supreme Court has interpreted the right to privacy in the following
manner:
The Right to Privacy

Jurisprudence
Ruling
Morfe v. Motuc
May be limited by law.
Ayer v. Capulong and Enrile
It is necessarily narrower if the person is a public figure.
Blas Ople v. Ruben Torres et. al
It is upheld if the challenged law is not narrowly drawn.
Sabio v. Gordon
Does not exist in matters involving state interest.
KMU v. NEDA
Will not preclude a reasonable collection and storage of

personal data.
Anonymous letter complaint

against Atty. Miguel Morales
et. al.,
It is protected by the due process clause but it can also

be waived.
Disini et.al v. Secretary of

Justice et. al.
To determine violation in cyberspace, expectation of

privacy of all Internet users must be taken into account.
Vivares v. St. Theresa's College
Expectation of privacy must be manifested by the user.
126
NETIQUETTE
2014
Inferring from the above analysis, two doctrines are observed:
General Doctrine:
The Right to Privacy is guaranteed by the Constitution and protected by the due
process clause but can be limited by law or defeated by state interest and is necessarily
narrower for public figures.
Cyberspace Application:
The right to privacy in cyberspace is protected only if the person alleging violation has
proven that he has manifested his reasonable expectation of privacy with his dealings and
activities in the Internet. The utilization of the privacy tools of a website is the users
manifestation of reasonable expectation of privacy in cyberspace.
CONCLUSION
To answer the question posed in the title of this article, the online information protected by
law are only those that have been manifestly intended to be private.
GRAY AREAS IN THE PRINCIPLES OF DISTINCTION AND PROTECTION

OF CIVILIANS INVOLVED IN HOSTILITIES
Jan Mark P. Baguio
February 2014
INTRODUCTION
The law of armed conflict (LOAC), also known as the laws of war or international
humanitarian law (IHL) establishes a comprehensive legal framework to protect civilians
from the effects of military operations. Under International Humanitarian Law (IHL),
civilians are entitled to protected status and may not be attacked. This is based on the
presumption that civilians are not engaged in the hostilities around them. The principle of
distinction articulates this foundational rule.1 This principle is inseparable2 from the principle
of the protection of the civilian population.3
The 1949 Geneva Conventions and the 1977 Additional Protocols form the core of the
legal framework regulating behavior during war in relation to protecting civilians and other
persons that do not take part in hostilities (e.g. wounded, sick and captured combatants).
Common Article 3 to the Geneva Conventions and Additional Protocol II establish rules
imposing obligations on state and non-state armed groups alike in non-international armed
conflict, i.e. internal-armed conflicts. This rule, according to ICRC, has become customary
international law.4
However, the advent of new and more complicated warfare poses great challenges to
the application of these two humanitarian law principles: the principle of distinction and the
principle of protection. In the absence of legal distinction between combatants and civilians
1
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I), adopted by Conference June 8, 1977, 1125 U.N.T.S
3 [hereinafter AP I], at art. 48.
2
Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional
Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987) [1863].
3
AP I, supra note 3, at art. 51 2:

The civilian population as such, as well as individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which is to spread terror among the civilian
population are prohibited.
The ICTY held Article 51 to be customary in nature. See, eg, Prosecutor v. Blaki (Judgment) (ICTY,
Appeals Chamber, Case No IT-95-14-A, 29 July 2004) [110] (Blaki Appeals Chamber Judgment);
Prosecutor v. Gali (Judgment) (ICTY, Trial Chamber, Case No IT-98-029-T, 5 December 2003) [45]
(Gali Trial Chamber Judgment).
4
ICRC, Customary International Humanitarian Law, Volume I: Rules, 2005, rule 7, at 26-27.
128
PRINCIPLE OF DISTINCTION AND PROTECTION OF CIVILIANS
2014
in a non-international armed conflict, the protection of genuine civilians rest on the warring
factions discretion to expose them to legitimate attack. This is aggravated by the new type
of warfare that involves combat between state and non-state forces, characterized by urban
fighting where it becomes difficult to distinguish between combatants and genuine civilians.
In fact, combatants regard civilians as indispensable collateral damage as human shields or in
perfidy to weaken the enemy.
This paper attempts to bring to the fore a discussion on the original intention of
International Humanitarian Law: the protection of civilians. No matter how modern warfare
evolves, this principle must at all times be a priority among those involved in armed conflict.
Civilians must at all times be spared.
OBJECTIVES OF THE STUDY

In general, this study focuses on the principles of distinction and protection of civilians
during armed conflict and examines the challenges as gray areas confronting these principles
in the context of the current features of armed conflict.
Specifically, the study examines the following concepts:
1. Some legal problems arising out of the phenomenon of increased civilian participation
in hostilities in the light of: (a) concept of civilians and (b) civilian status in
International Humanitarian Law.
2. The relevance and fundamental importance of the principle of distinction in relation
to: (a) contemporary trends in armed conflict; (b) privatization of former military
function; (c) implications of the principle of distinction in modern armed conflicts
3. The concept of direct participation in hostilities in terms of: (a) types of activities as
its scope; (b) terrorism and its implications on the two principles of IHL; and (c) the
gray areas in the concept
4. Relevant conclusions and recommendations drawn from the study
SCOPE AND LIMITATIONS

This paper does not seek to address the full range of concerns that arise in relation to
the distinction and protection of civilians in contemporary warfare, nor does it attempt to
undertake a legal analysis of the current state of IHL. Rather, it aims to examine and briefly
comment on some of the legal problems arising out of the phenomenon of increased civilian
participation in hostilities.
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CHAPTER I: THE CONCEPT OF CIVILIANS AND CIVILIAN STATUS IN IHL

On the concept of civilians, there are a number of documents that provide this description
such as:
1. Article 4 of the Geneva Convention states that persons protected by the convention
are those who, at a given moment and in any manner whatsoever, find themselves in
case of a conflict, in the hands of a Party to the conflict or Occupying Power of which
they are not nationals,5 providing for an indirect definition of the term civilian.
2. Article 3 of the Geneva Convention IV defined the status of civilian as, persons taking
no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention or
any other cause, without any adverse distinction founded on race, color, religion or
faith, sex, birth or wealth, or any other similar criteria.6 (in the case of a noninternational armed conflict)
3. Article 50 of Additional Protocol I states that: Civilian is any person who does not
belong to one of the categories of the persons referred to in article 4 A (1), (2),(3) and
6 of the third convention and in Article 43 of this protocol. In case of doubt whether a
person is a civilian, that person shall be considered as a civilian. 7 (the first attempt in
IHL to identify who are civilians came in 1977)
4. Article 4(I) of Additional Protocol II: states that All persons who do not take a direct
part or who have ceased to take part in hostilities, whether or not their liberty has been
restricted, are entitled to respect for their person, honor and convictions and religious
practices. They shall in all circumstances be treated humanely, without any adverse
distinction. It is prohibited to order that there are no survivors.8 Article 13(3)
provides: Civilians shall enjoy the protection afforded by this Part, unless and for
such time as they take a direct part in hostilities.9
5. Fourth Geneva Convention of 1949, although exclusively devoted to the protection of
the civilian population contains no definition of civilians
In the light of these documented descriptions, it has been established that whoever is
not a combatant shall be deemed to be a civilian, and in case of doubt, that person shall be
deemed as civilian. However, in applying IHL to non-international armed conflict, there is
5
Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T.
3516, 75 U.N.T.S. 287 [hereinafter GC IV], at art. 4.
6
Id. at art. 3.
AP I, supra note 3, at art. 50 1.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of Non-International Armed Conflicts (Protocol II), adopted by Conference June 8, 1977, 1125
U.N.T.S. 609 [hereinafter AP II], at art. 4 1.
9
Id. at art. 13 3.
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2014
no explicit distinction of the hostile parties as either combatants or civilians (as it does not
recognize combatant status) but it does recognize the protected status of those persons who
do not take part in hostilities as civilians, which they shall lose if they unlawfully participate
in hostilities.
CHAPTER II: THE PRINCIPLE OF DISTINCTION

The principle of distinction, as the heart of humanitarian law, requires that any party
to a conflict distinguish between those who are fighting and those who are not, and direct
attacks only at the former.10 The purpose of distinction is emphasized in Article 51 of
Additional Protocol I and the four Geneva Conventions. The Statute of the International
Criminal Court criminalizes attacks on civilians and other persons hors de combat in both
international and non-international armed conflicts. 11
The concept of distinction can be historically gleaned from a number of documents
like:
1.
Article 22 of the Lieber Code, which was the first codification of the law of war drafted
during the U.S. Civil War, where it was first set forth; 12
2.
St. Petersburg Declaration in 1868 where it states: That the only legitimate object which
States should endeavor to accomplish during war is to weaken the military forces of the
enemy.,13 a provision that confirms the immunity of the civilian population from attack;
and
AP I, supra note 3, at art. 48, sets forth what is known as the basic rule: In order to ensure respect for
and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times
distinguish between the civilian population and combatants and between civilian objects and military
objectives and accordingly shall direct their operations only against military objectives.
10
Rome Statute of the International Criminal Court, at art. 8 2, July 17, 1998, 27 I.L.M. 1999 (For the
purpose of this Statute, war crimes means: . . . (b) Other serious violations of the laws and customs
applicable in international armed conflict, within the established framework of international law, namely,
any of the following acts: (i) Intentionally directing attacks against the civilian population as such or against
individual civilians not taking direct part in hostilities; (ii) Intentionally directing attacks against civilian
objects, that is, objects which are not military objectives; . . . (iv) Intentionally launching an attack in the
knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian
objects . . . which would be clearly excessive in relation to the concrete and direct overall military advantage
anticipated; . . . (e) Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law, namely, any of the following
acts: (i) Intentionally directing attacks against the civilian population as such or against individual civilians
not taking direct part in hostilities.).
11
12
FRANCIS LIEBER, WAR DEPARTMENT, INSTRUCTIONS FOR THE GOVERNMENT OF

ARMIES OF THE UNITED STATES IN THE FIELD art. 22 (1863), available at
http://www.icrc.org/ihl.nsf/FULL/110?OpenDocument [hereinafter Lieber Code].
13
Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight.
Saint Petersburg, 29 November / 11 December 1868 [hereinafter St. Petersburg Declaration], at preamble.
VOL. 7
3.
131
The Hague regulations annexed to the 1907 Fourth Hague Convention contain several
key provisions that enshrine the principle of distinction between civilians and civilian
objects and military objectives. Though it did not specify distinction, Article 25, states
that The attack or bombardment, by whatever means, of towns, villages, dwellings, or
buildings which are undefended is prohibited.14 The Hague Conventions of 1899 and
1907 and the Geneva Conventions of 1949 may not express specific statements of the
principle of distinction, but its force as customary law remained in effect.
Thus in 1977, Protocol I and II were adopted in addition to the 1949 Geneva
Conventions and set forth some basic rules on distinction and protection like:
Article 48 of Additional Protocol I sets forth the basic rule:

[i]n order to ensure respect for and protection of the civilian population and civilian
objects, the Parties to the conflict shall at all times distinguish between the civilian
population and combatants and between civilian objects and military objectives
and accordingly shall direct their operations only against military objectives. 15
Article 51 of Additional Protocol I emphasized the protective purpose of distinction:

It states that [t]he civilian population as such, as well as individual civilians, shall
not be the object of attack.16 Article 51 states that: [i]indiscriminate attacks are
prohibited, which include: (a) those which are not directed at a specific military
objective; (b) those which employ a method or means of combat which cannot be
directed at a specific military objective; or (c) those which employ a method or
means of combat the effects of which cannot be limited as required by this Protocol;
and consequently, in each such case, are of a nature to strike military objectives
and civilians or civilian objects without distinction.17
Article 85 of Protocol I further declares that nearly all violations of distinction

constitute grave breaches of the Protocol, including:
a) making the civilian population or individual civilians the object of attack; (b)
launching an indiscriminate attack affecting the civilian population or civilian
objects in the knowledge that such attack will cause excessive loss of life, injury to
14
Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907, at art. 25.
15
AP I, supra note 3, at art. 48. Article 48 is considered customary international law. See JEAN-MARIE
HENCKAERTS
AND
LOUISE
DOSWALD-BECK,
CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW Rule 1 (2005).
16
17
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2014
civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii);

. . . (d) making non-defended localities and demilitarized zones the object of attack;
[and] (e) making a person the object of attack in the knowledge that he is hors de
combat . . .18
Article 52(1) of Additional Protocol I declares that [c]ivilian objects shall not be the
object of attack or of reprisals and defines civilian objects as all objects which are
not military objectives.19
The principle of distinction mandates differentiation between civilians and combatants

and between civilian objects and military objects and as such is a critical component of civilian
protection in armed conflict. Thus, it is important that parties to the conflict distinguish the
legitimate target and must spare civilians at all times. Admittedly, this assessment is difficult
in hostilities where those involved blend with non-participating civilians.20 Situations of this
nature behooves upon combatants to take effort in their distinction so that genuine civilians
will not become part of their targets.
Changing nature of armed conflict

The contemporary trends in armed conflict reflect its changing nature that hardly
resemble the type of conflict with which the international humanitarian law was framed, thus
the need to reexamine this reality of regulating war to protect innocent civilians. These trends
in armed conflicts include internal armed conflicts, asymmetrical conflicts, and transnational
armed conflicts.
Armed conflicts in the post-cold war era has been the low-intensity internal conflicts
involving non-state armed groups characterized by temporary peace through cease-fire or a
peace agreement affecting certain parts of a state or region, while other areas are relatively
unaffected.21
Some of todays conflicts are asymmetrical conflicts, where a weaker party to an
armed conflict seeks to defeat a military superior opponent by using methods that are not in
conformity with International Humanitarian Law, and when the parties to an armed conflict
18
AP I, supra note 3, at art. 85.
19
20
ICRC, INTERPRETIVE GUIDANCE ON THE NOTION OF DIRECT PARTICIPATION IN
HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW (Nils Melzer ed., 2009),

available at http://www.icrc.org/eng/assets/files/other/icrc-002-0990.pdf
Guidance], at 6.
[hereinafter
ICRC
DPH
Dan Smith, Trends and causes of armed conflict, Berghof Research Centre for Constructive Conflict
Management, August 2004.
21
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133
significantly differs in terms of qualitative and quantitative strength (e.g. by having a military,
technologic or economic advantage). This is a broad definition that will lead to the
classification of most armed conflicts as asymmetric, as one party often is seen as stronger
from an objective point of view.22 Although, Thornton noted that, [a]symmetric is as old as
warfare itself and as recent as the last terrorist outrage,23 it has evolved with greater civilian
involvement and often with devastating consequence, as the weaker party resorts to tactics
prohibited by IHL, usually by striking against the civilian society in order to win the war. This
puts the non-state actor in a powerful position since the state will normally do everything
possible to avoid casualties of innocent people.
Transnational armed conflicts are situations of internationalized internal armed
conflicts (i.e. internal conflicts with foreign intervention) that involve a non-state armed
group and take place in several states 24 as in the war on terror after the 9/11 terrorist attack.
Gray areas in the concept

These contemporary trends in modern warfare or armed conflict contributed to the
blurring of the core principles of distinction between civilians and combatants, especially with
the new practice of privatization of military function, the misuse of military uniform or
civilian clothes, and the questions of who to target, how to target and when to target.
Privatization of Former Military Function

The United States and other governments are engaged in the practice of hiring private
military and private security companies (jointly PMSCs) in situations of armed conflict.25
The extent of this practice has implications for the protection of civilians, in terms of the
compliance of the companies with IHL and the potential difficulties of determining their
status as either combatants or civilians under IHL. A number of these military subcontractors
22
Stepanova, Terrorism in Asymmetrical Conflicts, 2008, at 14-15, and Heintschel von Heinegg,
Asymmetric Warfare: How to Respond?, 2011, at 464.
23
Thornton, Asymmetric Warfare: Threat and Response in the Twenty-First Century, 2007, at 2.
24
Sylvain Vit, Typology of armed conflicts in international humanitarian law: legal concepts and actual
situations, International Review of the Red Cross, vol. 91, no. 873, March 2009, at 83.
25
See Mohamad-Mahmoud Ould Mohamedou, The Nature and Characteristics of Contemporary Armed
Conflict, in NETHERLANDS RED CROSS,PROTECTING HUMAN DIGNITY IN ARMED CONFLICT
20, 21 (Sanne Boswijk ed., 2008) (describing the privatisation and autonomisation of the use of force as
a prominent phenomenon in a new paradigm of conflict); see generally P.W. SINGER,CORPORATE
WARRIORS:THE RISE OF THE PRIVATIZED MILITARY INDUSTRY 9 (2003) (A new global
industry has emerged. It is outsourcing and privatization of a twenty-first-century variety, and it changes
many of the old rules of international politics and warfare.).
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2014
are former military personnel who are hired because of their military training and skills, which
raise the question of their direct participation in hostilities.
According to Ricks:
This privatization, which promises to reduce the number of soldiers in civilian
occupations, is occurring not only on U.S. soil, where maintenance work is being
farmed out to corporations, but also in other countries where U.S. soldiers operate. 26
According to Markusen:
In the past two years, the Pentagon has accelerated its efforts to outsource under the
rubric of the Revolution in Military Business Affairs and has begun experimenting
with military training contracts in selected international spheres of operation.27
Indeed, the civilian subcontractors presence and active role in a wide range of military
services in todays armed conflict in the U.S. and elsewhere have increased like the dramatic
increase in the prevalence of PMSCs28 and now as many as two hundred PMSCs operate
worldwide.29
The misuse of the military uniform or civilian clothes

In international armed conflicts, all members of the states regular armed forces are
combatants and identifiable by their uniform, and other characteristics. In state versus nonstate actor conflicts, including counterterrorism operations within the context of an armed
conflict, determining who is a legitimate target is significantly more complex. It is when
hostile persons or members of armed groups do not wear uniforms or carry their arms openly
that makes distinction of innocent civilians extraordinarily difficult and dangerous.
Article 37(1) of Additional Protocol I offers a more comprehensive formulation,

forbidding killing, capturing or injuring the enemy "by resort to perfidy." 30 The Protocol
T.E. Ricks, The widening gap between the military and society,The Atlantic Monthly, July 1997,
http://www.theatlantic.com/issues/97jul/milisoc.htm.
26
A. Markusen, The Case Against Privatizing National Security, Paper dated 24 September 1999 prepared
for discussion at the Study Group on the Arms Trade and the Transnationalization of the Defense Industry,
Council on Foreign Relations, New York, 1 October.
27
28
P.W. SINGER, CORPORATE WARRIORS: THE RISE OF THE PRIVATIZED MILITARY

INDUSTRY 9 (2003) at 40.
29
See Adam Ebrahim, Note, Going to War with the Army You Can Afford: The United States,
International Law, and the Private Military Industry, 28 B.U. INTL L.J. 181, 184 (2010).
30
AP I, supra note 3, art. 37(1)
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135
specifically states that "[a]cts inviting the confidence of an adversary to lead him to believe
that he is entitled to, or is obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy." 31
The legal obligation remains. The parties are required to distinguish between an
innocent civilian and an individual who, although dressed in civilian attire, may pose an
immediate threat and is therefore a legitimate target. Notably, innocent civilians are the true
victims of perfidious tactics as fighters use them as cover and that they become the
unintentional targets of soldiers when unable to distinguish between fighters and civilians.
The questions of who to target, how to target, and when to target

This conscious blending of hostile persons into the civilian population makes the task
of identifying legitimate targets nearly impossible.32 Insurgents take advantage of this
dilemma and deliberately create such situations. Like in Afghanistan, the Taliban regularly
use a tactic of engaging coalition forces from positions that expose Afghan civilians to
danger,33 designed to force U.S. troops to either hold their fire in the face of an attack or
endanger innocent civilians thus violating the principle of distinction. U.S. and NATO
forces in Iraq and Afghanistan continue to face complicated questions about who to target,
how to target, and when to target.
Geneva Convention I Article 44(3)34 provides, Recognizing, however, that there are
situations in armed conflicts where, owing to the nature of the hostilities an armed combatant
cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such
situations, he carries his arms openly. Likewise, it is prohibited to make use of the flags or
military emblems, insignia or uniforms of adverse Parties while engaging in attacks or in order
to shield, favor, protect or impede military operations.35
Indeed, the purposeful mixing with civilians and use of the civilian population as a
shield only exacerbates these dangers, thus making it essential to focus not only on the need
to implement distinction but also to enforce accountability for its violations. Also, the
challenge of not wearing uniforms or not bearing arms openly makes it important to look into
the technical definition of participation in hostilities.
31
Id.
32
Laurie R. Blank & Amos N. Guiora, Teaching an Old Dog New Tricks: Operationalizing the Law of
Armed Conflict in New Warfare, 1 HARV. NATL SEC. J. 45, 6566 (2010).
33
Jim Garamone, Directive Re-emphasizes Protecting Afghan Civilians, AM. FORCES PRESS SERVICE
(July 6, 2009), http://www.af.mil/news/story.asp?id=123157435.
34
GI, supra note 8, at art. 44 3.
35
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2014
CHAPTER III: THE CONCEPT OF DIRECT PARTICIPATION IN HOSTILITIES
The Meaning of Hostilities and Direct Participation in Hostilities

The Law Dictionary of the International of Armed Conflict defines hostilities as an act of
violence by a belligerent against an enemy in order to put an end to his resistance and impose
obedience.36 The concept of hostilities means the sum total of all hostile acts carried out by
individuals directly participating in the hostilities.37
The ICRC (Guidance) creates three cumulative criteria for determining whether a
specific act qualifies as direct participation in hostilities (DPH). 38 The three criteria are: 1)
Threshold of harm; 2) Direct causation; and 3) Belligerent nexus 39
Threshold of Harm
The threshold of harm criterion states that: [i]n order to reach the required threshold
of harm, a specific act must be likely to adversely affect the military operations and capacity
of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on
persons or objects protected against direct attack.40 The Targeted Killing case adopts a similar
understanding of hostile acts, which include hostile acts against civilians.41 There is a
continuing controversy on the limited notion of harm, for example, in the case of the
IsraeliPalestinian conflict, the actions by civilians designed to enhance a partys military
operations or capacity, are not covered by the Guidance document of ICRC. The Guidance
document would not cover actions undertaken by the Palestinian militants that do not
negatively affect the Israelis but enhance the military wing of Hamas in Gaza.
Direct Causation
The direct causation criterion of DPH provides that: there must be a direct causal link
between a specific act and the harm likely to result either from the act or from a coordinated
36
P. Verri, Dictionary of the International Law of Armed Conflict(Geneva, ICRC 1992) at 57.
37
ICRC DPH Guidance, supra note 38, at 44.
Melzer adopts the Guidances three cumulative criteria, which he refers to as the three elements of
hostilities (or more precisely, the Guidance adopts Melzers test). Nils Melzer, Targeted Killing in
International Law (2008) 276, 3416.
38
39

1. Threshold of harm
40
Public Committee against Torture in Israel v. Government of Israel [2006] HCJ 769/02 (Targeted
Killings case (2006) HCJ 769/02)
<http://elyon1.court.gov.il/files_eng/02/690/007/a34/02007690.a34.pdf> [33].
41
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137
military operation of which that act constitutes and integral part.42 It means that only the
acts that are just one step causally distant from the harm they are likely to cause, or acts that
are an integral part of them, deprive civilians of their protection. The approach taken by the
ICRC Guidance on direct participation in hostilities is often considered narrow than the
approach taken in the Targeted Killing case which does not adopt a one-step causation
approach in determining what counts as direct. Both the Targeted Killing case and the
Guidance listed certain actions constituting direct and indirect part. Thus, analyzing the
meaning of DPH by defining direct and indirect participation has been a popular approach
in determining the meaning of Article 51(3). 43
Belligerent Nexus
The belligerent nexus criterion states that [i]n order to meet the requirement of
belligerent nexus, an act must be specifically designed to directly cause the required threshold
of harm in support of a party to the conflict and to the detriment of another.44 It means that
in DPH, the action of one party must be clearly detrimental to the other party thus it is not
enough that the actions, for example, strengthen the organized armed group. The act must
be specifically designed to directly cause the required threshold of harm in support of a party
to the conflict and to the detriment of another.45 A critique to this criterion states that it should
not require the act to be both in support of a party to the conflict and to the detriment of the
other. The criticism continues that the criterion should be framed in the alternative: an act
in support or to the detriment of a party.46
The Temporal Scope of Direct Participation in Hostilities

Indeed, there exists a serious problem in determining the temporal scope of when a
person is directly participating in hostilities and subsequently the consequences of such
participation, which in effect, weakens the protection afforded to civilians.
Types of Activities Covered

It is useful to first identify what are generally considered as clear-cut cases of direct
participation by civilians in hostilities. According to Kalshoven: [T]o take a direct part in
42
43
See, eg, IACiHR, Third Report on the Human Rights Situation in Columbia (Doc No OEA/Ser.L/V/II.102
Doc.
9
rev.
1,
26
February
1999)
[53]
http://www.cidh.org/countryrep/Colom99en/table%20of%20contents.htm.
44
45
Id.
46
Schmitt, supra note 9, at 34.
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2014
hostilities must be interpreted to mean that the person in question performs hostile acts,
which, by their nature or purpose, are designed to strike enemy combatants or materiel; such
as firing at enemy soldiers, throwing a Molotov-cocktail at an enemy tank, blowing up a
bridge carrying enemy war materiel, and so on.47
The US Navy manual states: Civilians who take a direct part in hostilities by taking
up arms or otherwise trying to kill, injure, or capture enemy personnel or destroy enemy
property lose their immunity and may be attacked. Other forms of direct participation include
civilians serving as guards, intelligence agents, or lookouts on behalf of military forces. Direct
participation in hostilities must be judged on a case-by-case basis. Combatants in the field
must make an honest determination as to whether particular civilian is or is not subject to
deliberate attack based on the persons behavior, location and attire, and other information
available at the time.48
A person who delivers ammunition within combat zones is generally considered to be
directly participating in hostilities.49 Yet, in this case, these persons are not themselves directly
participating in an actual attack, but engaging in an activity which makes possible the direct
participation in an attack by another person. Still, they are considered by most authorities to
be legitimate military targets for the duration of their participation.
In DPH, civilians do not have to be in the zone of hostilities operating weapons, to be
considered as directly participating. For example, civilians manning computers which
remotely control drones flying over foreign territory, gathering intelligence, selecting targets,
or engaging in attacks, could certainly be considered to be directly participating in hostilities.
Civilians involved in computer network attacks against an enemy could also be said to be
directly participating in attacks.
Schmitt has proposed a criticality test, specifically the criticality of the act to the
direct application of violence against the enemy.50 He states that an individual performing
an indispensable function in making possible the application of force against the enemy is
directly participating. In other words, the appropriate test is whether that individual is an
integral facet of the uninterrupted process of defeating the enemy. 51
Types of Activities Not Covered
47
See F. Kalshoven and L. Zegveld, Constraints on the Waging of War (Geneva, ICRC March 2001), at
99.
U.S. Navy/Marine Corps/Coast Guard, The Commanders Handbook on the Law of Naval Operations
(NWP 1-14M, MCWP
P5800.7, 11.3 (1995).http://www.cpf.navy.mil/pages/legal/NWP%20114/NWPCH11.htm.
48
49
A.P.V. Roger, Law on the Battlefield (Manchester, Manchester University Press 1996), at 8.
50
51
Id. at 525.
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While, as noted above, making an essential contribution to the war effort could make
a civilian a direct participant, a non-essential contribution to the general war efforts (e.g., by
supplying foodstuffs to combatants) is not tantamount to active participation in hostilities. 52
Thus, working in a munitions factory, supplying food to combatants, transport of food or
humanitarian supplies, etc. are not considered to constitute direct participation. According to
A.P.V. Rogers:
Taking a direct part in hostilities must be more narrowly construed than making a
contribution to the war effort and it would not include taking part in arms production
or military engineering works of military transport.53
In these activities, the civilian does not intend to harm the enemy by his actions or to
gain any military advantage. Most civilian scientists working for the military could not be
considered as directly participating in hostilities where they are merely participating in the
war effort. However, if through their own work they put their own lives in danger, they
[civilians] cannot claim the protection against attack. As Kalshoven points out: civilians
cannot enjoy protection from attack when they enter military objectives (e.g., by working in
a military base or in a munitions factory) or accompanying military units. This protection is
diminished even if civilians merely live near, or pass by, a military objective, by dint of the
very tangible danger of a legitimate collateral damage in case of attack. 54
Gray areas in the concept

There are a number of gray areas insofar as the question of civilian participation in
hostilities are concerned. These activities include intelligence gathering, rescue operations,
the defensive use of force, and terrorism.
1. Intelligence using civilians

Intelligence gathering is an area of ambiguity that requires reflection. Dinstein
distinguishes between a person who gathers military intelligence in enemy-controlled territory
and a civilian who retrieves intelligence date from satellites or listening posts, working in
terminals located in his home country.55 He asserts that the former would be a direct
participant, while the latter would not. However, what is really the essential difference
between them?
With the advancement of technology, intelligence gathering could be done by civilians
miles away from the frontlines. While it can be said that such a civilian may not be directly
participating as he may not be actually engaged in carrying out a direct attack, yet the
52
Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2nd ed,
2010), at 27-28.
53
A.P.V. Roger, Law on the Battlefield (Manchester, Manchester University Press 1996), at 7.
54
F. Kalshoven and L. Zegveld, Constraints on the Waging of War (Geneva, ICRC March 2001), at 129.
55
Dinstein, supra note 116, at 27-28.
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2014
information he gathers makes that attack possible, and without it, it would not be possible to
attack that target. It is evident that there is a clear link and causality shown. He can be
considered a direct participant and his contribution to the war effort is as vital as the person
who drives the truck that delivers ammunition in a war zone. With the advancement of
technology, it becomes more difficult to determine ones direct participation based on ones
proximity to the battlefield. Thus, the ICRC emphasizes that the question of direct
participation must be considered on a case-by-case, although it does not clarify as to who
should be making the case-by-case determination.56
2. Rescue operations using civilians

The US Air Force Commanders Handbook states that rescue of military airmen
downed on land is a combatant activity that is not protected under international law. Civilians
engaged in the rescue and return of enemy aircrew members are therefore subject to attack.57
The Handbook, however, points out that the care of the wounded on land and the rescue of
persons downed at sea or shipwrecked are protected activities under international law.
With privatization of the military, civilian crews are used to rescue military personnel
downed on land. Legally, these civilian subcontractors are unlawfully directly participating
in hostilities, and particularly so if they have to conduct the rescue operation under fire, yet,
the safety of army personnel (and the accomplishment of the mission) may depend on such
direct participation. Clearly, the putting of civilian subcontractors in harms way for the sake
of force protection without clarifying their legal status and the extent to which they can use
force for the rescue and protection of their military comrades is unacceptable.
3. Civilians as hired combatants

The defensive use of force is another related gray area that needs examination. The
US Army Field Manual states that contractor employees cannot take an active part in
hostilities because of their civilian background, that they may possess neither the training nor
experience to actively participate in force protection measures, and the rules governing
warfare preclude them from doing so except in self-defense.58
The military subcontractors are allowed to carry arms and use force in personal selfdefense, and it is clear that the latter should be interpreted narrowly. However, as Schmitt
puts it: [g]ray areas should be interpreted liberally, i.e., in favor of finding direct
participation,59 given that an underlying purpose of the law is to enable distinction to be made
between combatants and civilians.
56
INTERNATIONAL COMMITTEE OF THE RED CROSS, DIRECT PARTICIPATION IN

HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW 28 (2009) at 42.
57
U.S. Air Force Commanders Handbook (1980) at 2-8.
58
Field Manual No. 3-100.21, Headquarters Department of the Army, Washington, DC, 3 January 2003.
59
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It is important to note that many acts carried out by PMSC personnel are covered by
the notion of direct participation in hostilities as outlined in the ICRC Interpretive Guidance.
Obviously, taking an active part in offensive combat operations qualifies as DPH. While it is
true that security contractors may not participate in offensive operations, it is worth
mentioning the report of New York Times revealing that security contractors from Blackwater
took part in the CIA clandestine raids against individuals suspected of being insurgents in Iraq
and Afghanistan. 60
International humanitarian law, however, does not draw a distinction between
offensive or defensive operations.61 In fact, ICRC Interpretive Guidance regards the defense
of military personnel and other military objectives against enemy attacks as direct
participation in hostilities.62 Worth recalling is the episode occurred in Najaf on 4 April 2004.
Blackwater employees tasked with the protection of the Coalition Provisional Authority
headquarters in Najaf repulsed an attack by hundreds of Shiite militia members. The combat
lasted about three and a half hours. Blackwaters helicopters had to resupply the employees
with ammunition. In order to repel the attack, thousands of rounds and hundreds of grenades
were expended.63
PMSCs frequently operate in conflict zones where there are attacks by non-state actors
who are unconcerned with the laws of war, thus [T]heir proximity to the armed forces and
other military objectives may expose them more that other civilians to the dangers arising
from military operations, including the risk of incidental death or injury.64 By reason of their
proximity to sites of attack, they are obligated contractually to face potential attack but by
returning fire would be directly participating in hostilities unlawfully.
Notably, PMSCs and their employees are not covered effectively by the existing rules
under international anti-mercenary laws. Article 47(1) of AP I states that [a] mercenary shall
not have the right to be a combatant or a prisoner of war. Article 47(2) defines mercenary
as follows:
A mercenary is any person who:
a. is specially recruited locally or abroad in order to fight in an armed
conflict;
b. does, in fact, take a direct part in the hostilities;
60
Gillard E.-C., Business Goes to War: Private Military / Security Companies and International
Humanitarian Law, 88 International Review of the Red Cross 525, at 540 (2006).
61
62
Priest D., Private Guards Repel Attack on U.S. Headquaters, in The Washington Post, April 6, 2004, at
A1.
63
64
INTERNATIONAL COMMITTEE OF THE RED CROSS, DIRECT PARTICIPATION IN

HOSTILITIES UNDER INTERNATIONAL HUMANITARIAN LAW 28 (2009) at 38.
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2014
c. is motivated to take part in the hostilities essentially by the desire for private
gain, and, in fact, is promised, by or on behalf of a Party to the conflict, material
compensation substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces of that Party;
d. is neither a national of a Party to the conflict nor a resident of territory
controlled by a Party to the conflict;
e.
is not a member of the armed forces of a Party to the conflict; and
f. has not been sent by a State which is not a Party to the conflict on official duty
as a member of its armed forces.
Article 47(2) of AP I cites six conditions for a person to be considered a mercenary
and which are cumulative.65 Firstly, it specifically targets individuals; thus it cannot be
interpreted to encompass, in addition, private entities like PMSCs without violating the rules
of the interpretation of treaties.66 Secondly, it applies merely in international armed conflicts.67
Similarly, article 1 of the UN Mercenary Convention aims at private individuals and therefore
does not encompass corporations such as PMSCs. The industry, in fact, is booming and the
trend now to outsource core military tasks likely shows that this will continue.
A glaring problem thus exists. While it is true that the majority of PMSC personnel
have civilian status and such assessment is undoubtedly correct under international
humanitarian law, such status is plagued by practical problems, that is, many PMSC
personnel directly participate in hostilities.
4. Terrorism
Defining the word terrorism is a challenge since every state defines it according to
its own needs and policy. In UN Security Council resolution 1566, terrorism is defined as
[] criminal acts, including against civilians, committed with the intent to cause death or
serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in
the general public or in a group of persons or particular persons, intimidate a population or
compel a government or an international organization to do or to abstain from doing any act
[]68 The U.S. government defines terrorism as, [t]he term terrorism means premeditated,
65
Y Sandoz, C Swinarski, B Zimmermann (eds) ICRC Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1977, 1987.
66
The Vienna Convention on the Law of Treaties (1969), Art 31(1) states that treaties are to be construed
according to the ordinary meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
67
As defined in art 1(3) and (4) of Protocol I in connection with art 2 common to the Geneva Conventions
of 12 August 1949.
68
United Nations, S/RES/1566 (2004).
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politically motivated violence perpetrated against noncombatant targets by subnational

groups or clandestine agents, usually intended to influence an audience.69
4.1 The war on terrorism: Is it an International Armed Conflict, Non-International Armed
Conflict, or something in between?
In the so-called war on terrorism proclaimed between the U.S. and al Qaeda after
the 9/11 terrorist attacks, it is important to pose a question whether IHL applies, noting that
the adversary is not a state, but loose entities carrying out sporadic acts of violence. A
determination whether an armed conflict exists is important to discuss the status of civilians
in war on terror.
According to the International Criminal Tribunal for the former Yugoslavia (ICTY)
in the Tadic case, an armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State. [IHL] applies from the initiation of such armed
conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is
reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that
moment, [IHL] continues to apply in the whole territory of the warring States or, in the case
of internal conflicts, the whole territory under the control of a party, whether or not actual
combat takes place there.70
Under the Geneva Conventions of 1949, international armed conflicts are those which
are fought between states. Common article 2 of the Geneva Conventions provides the
definition of international armed conflict as all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting Parties, even if the
state of war is not recognized by one of them.71 The high contracting parties mentioned in
this article refer to the two sovereign states having control over the affairs of the states
including the declaration and withdrawal of war. When the case arises where a state supports
any rebellion or liberation movement inside another state or supports the governments against
armed groups or rebels then the conflict will be of internationalized non-international nature.
International armed conflict does not exist in a situation where a state targets an appeal for a
third state to operate on their soil.
The mere fact that non-state actors cannot be parties to the relevant IAC treaties has
been stressed by the Bush administration in the aftermath of 9/11, but the Bush
administration has not been keen on qualifying the conflict as a NIAC either.72 Considering
that the terrorist adversary is not a state, the fight against it is not entirely compatible with the
ordinary NIAC definition. Taken together, these arguments would mean that the war on
69
Henderson, Global Terrorism: The Complete Reference Guide, 2001, at 4.
70
Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction
(Interlocutory Appeal), Case No. IT-94-1-AR72, 2 October 1995, para 70.
71
Common article 2 of Geneva Conventions of 1949.
72
Wippman & Evangelista, New Wars, New Laws?, 2005, p. 16.
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2014
terror is neither an IAC nor a NIAC, which thus creates some sort of a legal vacuum where
hostilities actually take place.
The ICRC states that Terrorism is a phenomenon. Both practically and legally, war
cannot be waged against a phenomenon, but only against an identifiable party to an armed
conflict. For these reasons, it would be more appropriate to speak of a multifaceted fight
against terrorism rather than a "war on terrorism." 73
4.2 Implications on the Principles of Distinction and Protection
Terrorism poses a challenge on the principles of distinction and protection. This is so
because terrorists do not only demonstrate a lack of precision and precaution on their tactics
to civilian safety but more often, their very purpose is to attack civilians and inflict as much
damage, suffering and fear as possible. Terrorists who attack civilians within the context of
an actual armed conflict are civilians unlawfully participating in hostilities, if they have a
nexus to the armed conflict, and terrorism constitutes a war crime.74
While nothing justifies callous terrorist attacks on civilians, unfortunately, states often
overreact and demonstrate a less than exemplary regard for the principles of distinction and
protection of the innocent civilian population. Increasingly, however, states are asserting
that, when faced with an unconventional and ruthless enemy, such as terrorists, new methods
of policing and combat and an unconventional military response may be required. In the new
security environment, the lines between war and peace are blurred, and civilians are becoming
targeted in operations which are military in all but name. By the same logic, the persons
involved in fighting the war on terror, who are mainly civilians, could be considered to be
directly participating in these hostilities.
CHAPTER IV: CONCLUSIONS AND RECOMMENDATIONS

The Distinction between Civilians and Combatants is one of the most significant
principles of International Humanitarian Law that focuses on how to protect civilians from
the consequences of war. It has gone a long way since its codification in 1949. The
advancement in technology caused the inevitable change of warfare and its ramifications have
indeed made complicated the protection of civilians. Civilian death and damage today has
seemingly become integral to collateral damage in warfare, in violation of IHL. Despite the
principles of distinction and protection rule, civilians are just as likely, or often more likely,
to suffer from the effects of the modern conflict. Unfortunately, they become collateral
damage alone but have been the main targets to further an alleged military advantage.
The principle of distinction calls on combatants to distinguish themselves from the
civilian population and on commanders to distinguish between civilian and military
73
Id.
Article 51 2 Additional Protocol I provides: Acts or threats of violence the primary purpose of which
is to spread terror among the civilian population are prohibited. Article 4 2 (d) of Additional Protocol II
prohibits [a]cts of terrorism.
74
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objectives. The guarantees and protections, as well as the obligations contemplated by the
Geneva Conventions, have often been violated since these non-state actors do not fall neatly
within those categories. The consequence therefore is that the situation hurts the civilian
whose protection cannot be properly ensured.75
In order to overcome issues of distinction in conflicts involving non-state actors, it is
suggested that the formal and technical requirements of the contemporary laws of war should
be interpreted to allow certain non-state actors to accede to combatant status, depending, inter
alia, on whether they 1) act on behalf of a state, 2) respect the laws of war, and 3) conduct
military-like activities on a regular basis. This can be done by interpreting the definition of
combatant status contained in Article 4 of the Third Geneva Convention within its proper
historical and legal contexts. Hence, instead of resting solely on Article 4, the understanding
of combatant status should be viewed following the formulations of the principle of distinction
which preceded and followed the adoption of the Geneva Conventions. This broader
understanding of combatant status does not only take into account a long line of religious,
historical, and legal tradition; it also upholds the laws objective to extend protection to as
many actors as possible in time of war.76
In contemporary armed conflicts which are neither entirely international nor entirely
internal, there lies a great difficulty in assigning the status of "combatant" to irregular fighters
and terrorists. This calls for the reassessment of the most basic concepts of IHL. From the
legal standpoint of IHL, armed conflicts are classified as IACs or NIACs but there is the trend
of armed conflicts which are neither in consonance with the traditional conflict nor purely
internal armed conflict, a conflict which has international elements. To deal with this, there
is a need to have a uniform definition of the term terrorism and to clarify whether the fight
against terrorism comes under the definition of armed conflict or not.
Although the ICRCs Guidance on Direct Participation in Hostilities is not a legally
binding document since it is only the recommendation of ICRC, it has provided the world a
guideline in drawing a line between directly and indirectly participating civilians in an armed
conflict. It plays an important role in the protection of civilians from attacks of enemy. In
order to make the principle binding, a treaty may have to be drafted, signed and entered into
force that crafts a list of contractor combatant activities which identifies contractor activities
that constitute direct participation in hostilities and gives a more precise definition of direct
participation in hostilities.
Although the Interpretive Guidance, in nature, is not legally binding, it is hoped that
it takes the form of customary law. In order to effect its implementation, it is therefore
suggested that a legally binding document be made. It is only then that the guideline can be
75
In support of the view that the purpose of the Conventions is mainly humanitarian, see, e.g., Rene Provost,
International Human Rights Law 121 (1st ed. 2002) at 137; Derek Jinks, The Applicability of the Geneva
Conventions to the Global War on Terrorism, 46 Va. J. Intl L. 165, 185 (2005); Chris af Jochnick &
Roger Normand, The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. Intl L.J.
49, 55-57 (1994)
76
Nineteenth Meeting of the Diplomatic Conference, Diplomatic Conference of Geneva, Vol. II, A, May
19, 1949, at 675 (point[ing] out that the Hague Convention was intended to regulate relations between
States, whereas the present Convention [civilians] was concerned with the rights of individuals.).
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said to be very helpful and applicable in the modern armed conflict. It would be of help if
ICRC also outlines a criteria of membership of anyone taking part in hostilities and consider
him not a civilian contemplated in IHL. While it may not be legally binding, it would
definitely enhance the protection afforded to civilians.
With the prevalence of insurgencies and terrorists attacks today leading to devastating
effects for those affected, it is more important than ever that IHL serves as protection for
civilian in armed conflicts. New instruments governing these types of conflicts in more detail
would definitely be helpful. But since it is a very long way to go before such instruments would
see daylight, it would be a helpful step if states could start agreeing upon fundamental
definitions and unite against the increased violence directed towards innocent civilians. States
must imbibe IHLs basic principles: (1) In case of doubt, persons not in military uniform must
be presumed as civilians and (2) All efforts to ascertain the civilian status of an adversary who
is not in military uniform must be undertaken by combatants before launching an attack. No
matter how modern warfare may become, these principles remain steadfast and must be
observed to their utmost by those involved in a conflict.
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RESOLVING DEADLOCK IN A VALID ENVIRONMENTAL ORDINANCE:

ANALYSES AND FINDINGS ON THE DUMAGUETE CITY PLASTICS
ORDINANCE
Zara Marie Dy
February 2014
INTRODUCTION
Local Government Units (LGUs) are essential to the machinery of the national
government because central government cannot supervise and oversee all the administrative
nooks and crannies in the country.1 These LGUs have been accorded a wide latitude of
autonomy since they are expected to know the peculiar needs and problems of their respective
territories.2
This is why the Local Government Code of 1991 (LGC) 3 was enacted: to add flesh
to the mandate of the 1987 Philippine Constitution (Constitution) on local government
autonomy.4 The State policy on local autonomy is amplified in Section 2 (a) of the Code, viz:
Section 2. Declaration of Policy. (a) It is hereby declared the policy of the
State that the territorial and political subdivisions of the State shall enjoy genuine
and meaningful local autonomy to enable them to attain their fullest development as
self-reliant communities and make them more effective partners in the attainment of
national goals. Toward this end, the State shall provide for a more responsive
and accountable local government structure instituted through a system of
decentralization whereby local government units shall be given more powers,
authority, responsibilities, and resources. The process of decentralization shall
Subong, Rogelio E., Overbreadth: Unreasonable Ordinances, 452 SCRA 193 (2005).
Id.
R.A. No. 7160 was signed into law by then President Corazon C. Aquino on 10 October 1991. It took
effect on 1 January 1992.
4
Section 3, Article X reads:

Sec. 3. The Congress shall enact a local government code which shall provide for a more
responsive and accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and referendum, allocate
among the different local government units their powers, responsibilities, and resources,
and provide for the qualifications, election, appointment and removal, terms, salaries,
powers and functions and duties of local officials, and all other matters relating to the
organization and operation of local government units. (Emphasis supplied.)
152
DUMAGUETE CITY PLASTICS ORDINANCE
2014
proceed from the National Government to the local government units.

(Emphasis supplied.)
A necessary prerequisite of autonomy is decentralization.5 It is a decision by the central
government authorizing its subordinates, whether geographically or functionally defined, to
exercise authority in certain areas.6 It is typically a delegated power, wherein the national
government chooses to delegate certain authority to more local governments.7
The purpose of delegation is to make governance more directly responsive and
effective at the local levels. In turn, developments at the smaller political units are expected
to propel political, social, and economic growth.8 To enable the country to develop as a whole,
however, the programs and policies effected locally must be integrated and coordinated
towards a common national goal.9
ADDRESSING ENVIRONMENTAL CONCERNS AT THE ROOT

The Constitution spells out the countrys national policy on the protection of the
environment and cemented its commitment to strike a delicate balance between the demands
of economics and the needs of the environment.10 In Ysmael Jr., Co. v. Deputy Executive
Secretary,11 the Court said, [w]hile there is a desire to harness natural resources to amass
profit and to meet the countrys immediate financial requirements, the more essential need to
ensure future generations of Filipinos of their survival in a viable environment demands
effective and circumspect action from the government xxx12
LGUs have become an important arena for environmental advocacy and policy
formulation,13 precisely because decentralization promises more direct and effective
governance,14 and this has inspired advocates to push for more measures to protect the
environment at a local level.
P. Tapales, The Nature and State of Local Government, in LOCAL GOVERNMENT IN THE
PHILIPPINES: A BOOK OF READINGS, VOL. I, LOCAL GOVERNMENT ADMINISTRATION 5, 1213 (1998).
6
Disomangcop v. Datumanong, 444 SCRA 203 (2004).
Id.
Pimentel, Jr. v. Aguirre, 336 SCRA 201 (2000).
Id.
10
1987 PHILIPPINE CONSTITUTION, Article II, 16; Oposa v. Factoran, G.R. No. 101083 (1993).
11
G.R. No. 79538 (1990).
12
Id.
13
Social Justice Society v. Atienza, G.R. No. 156052 (2007), reconsidered 13 February 2008.
14
Pimentel, Jr. v. Aguirre, 336 SCRA 201(2000).
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153
Take for example the case of Tano v. Socrates15 where the LGU of Puerto Princessa
enacted Ordinance No. 15-92 which banned the shipment of live fish and lobster outside
Puerto Princessa City for a period of five (5) years.16 The Supreme Court (Court)
commended them for exercising the requisite political will to enact urgently needed legislation
to protect and enhance the marine environment, thereby sharing in the herculean task of
arresting the tide of ecological destruction.17 Violators were charged under the ordinance and
subsequently, directly invoked the Courts original jurisdiction contending that the ordinance
deprived them of due process of law, their livelihood, and unduly restricted them from the
practice of their trade, thereby making the assailed ordinance unconstitutional and a nullity. 18
In the case, the Court settled that laws, including ordinances enacted by local
government units, enjoy the presumption of constitutionality.19 To overthrow this
presumption, there must be a clear and unequivocal breach of the Constitution, not merely a
doubtful or argumentative contradiction; the conflict with the Constitution must be shown
beyond reasonable doubt.20 Where doubt exists, even if well-founded, there can be no finding
of unconstitutionality, because to doubt is to sustain,21 for what must be borne in mind is the
state policy enshrined in the Constitution regarding the duty of the State to protect and
advance the right of the people to a balanced and healthful ecology in accord with the rhythm
and harmony of nature.22
A BRIEF HISTORY OF THE DUMAGUETE CITY PLASTICS ORDINANCE

In 2011, Dumaguete City passed: AN ORDINANCE REGULATING THE USE OF
PLASTIC SHOPPING BAGS ON BOTH DRY GOODS AND WET GOODS IN THE
CITY OF DUMAGUETE AND PRESCRIBING PENALTIES THEREOF (Plastics
Ordinance).23
The whereas clauses state that plastic bags clog the citys canals, creeks, rivers and other
waterways, and despite serious efforts of the City, these remain in the waste stream and
eventually become residuals.24 It further stated that plastic has properties that have negative
15
G.R. No. 110249 (1997).
16
Tano v. Socrates, G.R. No. 110249 (1997).
17
Id.
18
Id.
19
La Union Electric Cooperative, Inc. v. Yaranon, G.R. No. 87001 (1989); Francisco v. Permskul, G.R.
No. 81006 (1989).
20
See Peralta v. Commission on Elections, No. L-47771 (1978).
21
Paredes v. Executive Secretary, No. L-55628 (1984), citing Yu Cong Eng v. Trinidad, No. 20479 (1925);
See also Aris (Phil.) Inc. v. NLRC, G.R. No. 90501 (1991).
22
1987 PHILIPPINE CONSTITUTION, Article II, 16.
23
Resolution No. 446, S. 2011, Ordinance No. 231, S. 2011 (attached herewith as Appendix A).
24
Resolution No. 446, S. 2011.
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2014
environmental and human health effects such as direct toxicity, carcinogens, endocrine
disruption, which lead to cancers, birth defects, immune system suppression and
developmental problems in children.25
The general public was consulted and a well-attended symposium was held within the
slated month of implementation.26 The community was well-represented with
environmentalists, lawmakers, student volunteers, and stakeholders from market vendors to
representatives of bigger shopping establishments.27 Full implementation was set for 28
August 2012, six (6) months after the Implementing Rules and Regulations were issued.28
After much consultation and with over a year to prepare to phase out plastics, a big
business firm that operates shopping centers in the city was defiant and remained adamant in
its use of plastic shopping bags. They questioned the rules enforcing the Plastics Ordinance,
particularly Section 12 (b), and anchored their arguments on the question of who determines
biodegradable plastic.29 Implementation efforts turned lukewarm thereafter.
The city mayor responded with a statement that he had strong preference for the use
of biodegradable plastics,30 despite the fact there had not been any official determination of
actual biodegradable plastic and no presence of the requisite government agency at the
national level authorized to certify the same as biodegradable fit for commercial use.
Concerned members of the community reported studies finding that biodegradable
plastic, if it does indeed exist, are not environment-friendly anyway.31 They called it
25
Id.
26
Juancho Gallarde, Anti-plastic bags ordinance to take effect August 28, THE VISAYAN DAILY STAR (4
August 2012), available at http://visayandailystar.com/2012/August/04/negor2.htm (last visited August
2013).
27
Id.
28
Resolution No. 446, S. 2011, Section 16.
29
Juancho Gallarde, Business firms ask: clarify the Plastic ban ordinance, THE NEGROS CHRONICLE (16
September
2012),
available
at
http://www.negroschronicle.com/web-archives/topoftheweek/Business%20firms%20ask%20%20clarify%20Plastic%20ban%20ordinance.htm (last visited
August 2013); Dynamic Development Corporation, Position Paper titled: In The Matter of Using
Biodegradable Plastic Bags Pursuant to City Ordinance 231, Series of 2011, submitted 1 September 2012
by Atty. Raymund J.A. Mercado (attached herewith as Appendix B).
30
Dems Demecillo, City mayor prefers biodegradable plastic, THE NEGROS CHRONICLE (16 September
2012),
available
at
http://www.negroschronicle.com/webarchives/frontpage/City%20Mayor%20prefers%20biodegradable%20plastic.html (last visited August
2013).
31
Esther C. Windler & Leo G. Mamicpic, Biodegradable plastics not environment-friendly, DUMAGUETE
METRO POST (23 September 2012), available at http://dumaguetemetropost.com/biodegradable-plasticsnot-environmentfriendly-p3083-196.htm; Esther C. Windler & Leo G. Mamicpic, Are biodegradables
environment-friendly?, THE NEGROS CHRONICLE (23 September 2012), available at
http://www.negroschronicle.com/web-archives/news/Are%20biodegradables%20environmentfriendly.htm (last visited August 2013).
VOL. 7
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greenwash, or a public relations spin, which misleads customers on the environmental

benefits of a certain product.32 Environmentalists in the city wanted the law enforced.33
There was some movement on the side of the city to confirm whether the term
biodegradable exists in reference to plastic, however, it found that the Philippines has yet to
verify its existence and certify its use in the country as studies are still being conducted as to
the types of biodegradable plastics available.34
It was then that the issue had reached a stalemate. Full implementation of the
ordinance has not been achieved as of this publication.
VALIDITY OF THE ORDINANCE

An ordinance is the lawmaking power of the LGU.35 It is intended to permanently
direct and control matters applying to persons or things in general.36
It must conform to the following substantive requirements under Philippine law: 1) It
must not contravene the constitution or any statute; 2) It must not be unfair or oppressive; 3)
It must not be partial or discriminatory; 4) It must not prohibit but may regulate trade; 5) It
must be general and consistent with public policy; and 6) It must not be unreasonable. 37
32
Greenpeace, Greenwash, available at http://www.stopgreenwash.org/ (last visited October 2013).
33
Judy Flores Partlow, Environmentalists want anti-plastics law enforced, THE PHILIPPINE STAR (21
September 2012), available at http://www.philstar.com/region/2012/09/21/851329/environmentalistswant-anti-plastics-law-enforced (last visited August 2013).
34
Alex Rey V. Pal, Biodegradable plastics tested, DUMAGUETE METRO POST (23 September 2012),
available at http://dumaguetemetropost.com/biodegradable-plastics-tested-p3102-459.htm (last visited
August 2013).
35
36
Garcia v. Commission on Elections, 237 SCRA 279 (1994).
37
US v. Abendan, 24 Phil. 165 (1913); reiterated in Municipality of Virac v. Tatel, 207 SCRA 157 citing
Magtajas v. Pryce Properties Corp., Inc., 234 SCRA 255, Solicitor General v. Metropolitan Manila
Authority, 204 SCRA 837, De la Cruz v. Paras, 123 SCRA 569; Social Justice Society v. Atienza, G.R. No.
156052 (2007), reconsidered 13 February 2008.
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2014
Application of the substantive tests to the provisions of the Plastics Ordinance to determine
its validity:
1. The law is reasonable. It is not unfair or oppressive, neither is it partial or
discriminatory.
It does not violate the equal protection clause.38
Legislative bodies are allowed to classify the subjects of legislation.39 If the
classification is reasonable, the law may operate only on some and not all of the people
without violating the equal protection clause.40 An indispensable requisite is that the
classification is not arbitrary and it conforms to the following requirements: 1) It must be
based on substantial distinctions; 2) It must be germane to the purposes of the law; 3) It must
not be limited to existing conditions only; and 4) It must apply equally to all members of the
class.41
The Plastics Ordinance prohibits the use of plastics in certain instances. It is allowed
as primary packaging for wet goods, prohibited as packaging for dry goods, and Polystyrene
(a kind of plastic) is prohibited for use as either primary or secondary packaging.42 This applies
to all suppliers who sell and all consumers whose purchases are placed inside it. It is a
necessary prohibition because the Ordinance aims to regulate the use of plastic through the
ban of its use as certain packaging material (i.e. primary or secondary). These actors and
instances are constant, for as long as you are a supplier or a consumer, using or receiving
plastic as packaging material, the ordinance will apply.
With no other distinction made, the only conclusion is that it applies equally to anyone
who is either a seller or a buyer using plastic for packaging.
It observes due process.
Due process furnishes a standard to which governmental action should conform, the
standard being responsiveness to the supremacy of reason and obedience to the dictates of justice.43
38
1987 PHILIPPINE CONSTITUTION, Article III, 1.
39
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005).
40
City of Manila v. Laguio, Jr., 455 SCRA 308 (2005) citing CRUZ, ISAGANI A., CONSTITUTIONAL
LAW 125 (1998).
41
People v. Cayat, 68 Phil. 12 (1939).
42
Sec 3, 4, 5, 6, 12 (a) Ordinance No. 231, S. 2011.
43
Ermita-Malate Hotel and Motel Operators Association, Inc. v. City Mayor of Manila, 20 SCRA 849, 860
(1967).
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157
This clause has been interpreted as imposing two separate limits on government,
namely: 1) procedural due process, which refers to the procedures that the government must
follow before it deprives a person of life, liberty, or property,44 such as what kind of notice and
what form of hearing is required from the government in a particular action;45 and 2)
substantive due process, which asks whether the government has an adequate reason for
taking away a persons life, liberty, or property;46 whether there is a sufficient justification for
the governments action.47
The legislative history of the Ordinance shows compliance with procedural due
process. It went through the requisite readings; a public hearing conducted at the Dumaguete
City public market complex on 1 February 2011; 48 approved by the Sangguniang Panlungsod
on 10 August 2011 and subsequently signed by the city mayor; endorsed for review to the
Sangguniang Panlalawigan for review on 1 September 2011; 49 endorsed by the Environment
and Natural Resources Division (Office of the Governor) as compliant with the provisions of
the Ecological Solid Waste Management Act of 2000; 50 endorsed by Office of the Provincial
Treasurer as having fair and reasonable penalties, enacted within the scope of the prescribed
powers of the Sanggunian and mayor;51 endorsed by the Provincial Legal Officer as having
conformed to the provisions of the LGC of 1991 and other related laws;52 and finally approved
44
City of Manila vs. Laguio, Jr., 455 SCRA 308 (2005); White Light Corporation v City of Manila, 576
SCRA 416 (2009).
45
CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523
(2002).
46
City of Manila vs. Laguio, Jr., 455 SCRA 308(2005); White Light Corporation v City of Manila, 576
SCRA 416 (2009).
47
CHEMERINSKY, ERWIN, CONSTITUTIONAL LAW PRINCIPLES AND POLICIES, 2nd Ed. 523524 (2002).
48
Ramon A. Villarosa, Secretary to the Sanggunian Panlungsod, Certification dated 1 September 2011.
49
Ramon A. Villarosa, Secretary to the Sanggunian Panlungsod thru the Provincial Secretary, dated 1
September 2011.
50
R.A. 9003; Mercy S. Teves, ENRD Chief, Indorsement dated 12 October 2011, and a subsequent one
dated 18 April 2012.
51
Section 468 (1) (i), R.A. 7610; Danilo C. Mendez, Provincial Treasurer, Indorsement dated 4 May 2012.
52
Atty. Richard R. Enojo, Provincial Legal Officer, Indorsement dated 6 June 2012.
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2014
by the Sangguniang Panlalawigan.53 Posting and publication requirements for ordinances with
penal sanctions were complied with as well.54
On the matter of substantial due process, the question is whether the LGU of
Dumaguete has the right to regulate the use of plastic under Section 12 (a) of the Ordinance.
The answer is that there is sufficient justification, in both fact and law, for the LGUs action.
The courts and legislature understand that essential to environmental rights is the
recognition that human beings are an integral part of a complex ecological community. 55 The
preservation of this ecological community involves a balancing of interdependencies, despite
its ever-changing nature, for nothing less than the survival of the human species hangs on this
delicate balance.56 This is the reason that the Plastics Ordinance regulates the use of plastic
through the human users (i.e. buyers and sellers). After all, there would be no waste without
commercial usage, and commercial usage of plastic, as envisioned by the Plastics Ordinance,
happens most in the marketplace.
Given the exigencies of the environmental problems that need to be addressed, the
regulation of plastic57 is a justified act of government and evidence of conscientious
governance.
The ordinance satisfies the tests of reasonability having respected equal protection and complied
with due process.
The threshold of reasonability of an ordinance is the use of means necessary to solve
a problem.58 The presence of equal protection and due process underscore the reasonability
of the Plastics Ordinance. The City recognizes the perennial problem of plastic waste and
acknowledged that previous efforts to solve the problem did not solve it.59 The Plastics
Ordinance was passed as a measure to minimize the quantity of plastic circulating in the city
by regulating transactions wherein plastic is used as primary and secondary packaging.
53
Sangguniang Panlalawigan Resolution No. 481, 26 June 2012.
54
Section 59 (a), (b), (c), Section 511 (a), R.A. 7610; Ramon A. Villarosa, Secretary to the Sanggunian
Panlungsod, Certification dated 1 September 2011; Giovanni C. Nessia, Publisher of Dumaguete Star
Informer, affidavit dated 2 November 2011.
55
Justice Reynato S. Puno, Philippine Environmental Law Practice and the Role of the Courts, at Judges
Forum on Environmental Protection: Philippine Environmental Law, Practice, and Role of the Courts
(2003).
56
Id.
57
Sec 3, 4, 5, 6, 12 (a) Ordinance No. 231, S. 2011.
58
59
Resolution No. 446, S. 2011.
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159
For wet goods,60 and some non-frozen items like small hardware items or
agri/horticultural products,61 the Ordinance allows primary packaging. The lawmakers
recognized that these items might not be conveniently transported without the use of primary
plastic packaging at the moment of purchase.
On the other hand, primary packaging for dry goods, which are easier handled and
transported as compared to wet goods, and secondary packaging for wet goods, are
prohibited. The provisions of the Plastics Ordinance balanced the necessity of regulation with
the practicability of its rules as applied to sellers and consumers.
There is valid exercise of police power.
The lawful exercise of police power is tested through the presence of: 1) lawful subject;
and 2) lawful method.62
The first test is satisfied, as there is a lawful subject. The goal or rationale of the Plastics
Ordinance is to promote health and safety, and enhance the right of the people to a balanced
ecology,63 pursuant to the Constitution and the general welfare clause of the LGC.64 It does
this by regulating harmful plastic in the environment.
As for lawful method, the Ordinance complies with the procedural and substantive
due process required by the Constitution. There exists reasonable regulation of primary and
secondary packaging of wet and dry goods. There was no undue oppression to the seller and
consumer as the Ordinance had the foresight to provide for carrying convenience in the
market when it comes to the purchase of wet goods or agri/horticultural products that allows
primary packaging.65 What is regulated is the superfluous use of plastic, which is what largely
contributes to unmanageable waste.
In the hierarchy of constitutionally protected rights, the right to life enjoys precedence
over the right to property because life is irreplaceable, property is not.66 Individual rights
may be adversely affected to the extent that may fairly be required by the legitimate demands
of public interest or public welfare,67 and when the state or local government units valid
60
Section 2 (i), Ordinance No. 231, S. 2011.
61
Section 2 (g), Ordinance No. 231, S. 2011.
62
Lucena Grand Central Terminal Inc. vs. JAC Liner, Inc., G.R. No. 148339 dated February 23, 2005.
63
R.A. 7610, Local Government Code of 1991, 16.
64
See U.S. v. Toribio, 15 Phil. 85 (1910); Fabie v. City of Manila, 21 Phil. 486 (1912); Case v. Board of
Health, 24 Phil. 256 (1913).
65
Id.
66
Id.
67
Homeowners Asso. of the Phils., Inc. v. Municipal Board of the City of Manila, 133 Phil. 903, 907; 24
SCRA 856, 861 (1968).
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2014
exercise of police power clashes with a few individuals right to property, the former should
prevail.68
2. It is general and consistent with public policy

The Constitution and legislative enactments have shaped public policy concerning the
environment. More recent intimations of current environmental policy is seen through: 1) the
passage of the National Environmental Awareness and Education Act of 2008; 69 2) approved
House Bill No. 4840 which will regulate the use of plastic bags and require its phasing out
within three (3) years after the effective date of the measure;70 3) pending House Bill No. 2676
which prohibits the use of polycarbon plastics, Styrofoam and other synthetic materials
harmful to the environment in all food service establishments and academic institutions; and
Senate Bills 2759 on a Total Plastic Bag Ban and 3233 banning single-use, throw-away plastic
bags.71
The Dumaguete Plastics Ordinance follows the initiatives of other LGUs like
Muntinlupa,72 Las Pinas,73 Pasig,74 Quezon City,75 Pasay,76 and Makati77 who have used local
autonomy to enforce strict regulations prohibiting the use of plastic packaging in their
localities.
68
69
An Act to Promote Environmental Awareness Through Environmental Education and for Other Purposes,
R.A. 9512, 12 December 2008.
70
Ted Duboise, Philippines House of Representatives Vote to Regulate Plastic Bags, 31 August 2011,
http://plasticbagbanreport.com/philippines-house-of-representatives-vote-to-regulate-plastic-bags/
last
accessed 28 October 2013.
71
8 March 2011, http://lorenlegarda.com.ph/senate-bill-no-2759-total-plastic-bag-ban/ ; Karl John Reyes,

Sen. Miriam files bill banning plastic bags in all retail stores, 6 August 2012,
http://www.interaksyon.com/article/39586/sen--miriam-files-bill-banning-plastic-bags-in-all-retail-stores
last accessed 28 October 2013.
72
Ordinance No. 10-109, fully implemented 1 January 2011.
73
Ordinance No. 1036-11, fully implemented 2 January 2012.
74
Ordinance No. 09-2010, approved 17 June 2010 and fully implemented 1 January 2012.
75
Ordinance Nos. SP-2140 and SP-2103, approved 1 April 2012 and effective 1 September 2012.
76
Ordinance No. 4647, effective 1 September 2012.
77
Ordinance No. 2003-095, fully implemented 20 June 2013 (after an adjustment period of more than nine
[9] years).
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161
3. Passes muster under the test of constitutionality and is consistent with prevailing statutes
It fulfills the mandate of the constitution within the limits set.
The Plastics Ordinance is constitutional for it is aimed to protect the right of the people
to a balanced and healthy ecology and adheres to the Constitutional clauses respecting equal
protection and due process. It is a valid exercise of local autonomy,78 using the mandate
coming from Section 16, Article II of the Constitution, which is recognized as a self-executing
provision,79 which redounds to the protection and promotion of quality of life,80
environment,81 and health.82
It conforms to the Local Government Code, city charter, and other pertinent statutes.
The Ordinance went through the Provincial Legal Officer, Provincial Treasurer,
Provincial Environment and Natural Resources Division Chief when it was sent for review
to the Sangguniang Panlalawigan. It was found to be in conformity with the LGC, city and
provincial laws, and other pertinent statues such as the Solid Waste Management Act, and
was finally approved by the Sangguniang Panlalawigan, recognizing it as a valid regulation
exercised by the city.
THE ALLEGED SNAG: SECTION 12 (B)

The review of the Ordinance has highlighted Section 12 (b) 83 which attempts to provide
a rule for when future technology exist that certain plastic packaging would be able to
actually biodegrade, and suggests government agencies to certify the same as
biodegradable, with verification from a reputable international authority. It brings up the
issues of: 1) biodegradability of plastic; and 2) proper verification and certification by
appropriate agencies.
78
1987 PHILIPPINE CONSTITUTION, Article II, 25, Article X, 2, 3.
79
Oposa v. Factoran, G.R. No. 101083 (1993).
80
1987 PHILIPPINE CONSTITUTION, Article II, 5, 9.
81
82
83
Section 12. Regulated Acts. xxx (b) Should future technology exist whereby certain plastic packaging
materials or shopping bags can actually biodegrade as certified by the proper Government agency (i.e.,
DENR and/or DOST), as well as verified as such by a reputable international verification authority, then,
the immediately preceding paragraph and sub-paragraphs shall be understood to contemplate only those
cases involving plastic bags that do not biodegrade.
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2014
The meaning of Section 12 (b) according to statutory construction:
1. The word Biodegrade

Some stakeholders claim that biodegradable plastics exist; however, this claim is
only supported by their own suppliers of plastic,84 and not by the appropriate government
agencies. In truth, official governmental endorsement wants because the technology is still in
its infancy and only more developed countries have begun developing biodegradable
plastic.85
The presumption is that the language used in a statute, which has a technical or wellknown legal meaning, is used in that sense by the legislature.86 At present, there has been no
conclusive word from the scientific community about the commercial availability of
biodegradable plastic in the Philippines and, because of this, no government agencies have
been tasked to verify and certify plastic packaging as biodegradable and fit for commercial use
just yet.
In effect, Section 12 (b) is not yet in force and cannot be successfully invoked. In the
absence of the requisite validation and certification from impartial authorities and experts, the
presumption is that all existing plastics are non-biodegradable. Otherwise, there would not
have been express mention of future technology which would create plastic packaging
materials that would actually biodegrade in the Ordinance.
The presumption is a valid one under the precautionary principle, which gives the
constitutional right of the people to a balanced and healthful ecology the benefit of the doubt, 87
allowing legislation to err on the side of environmental protection.
Statutory construction inclines one to favor the strict and/or scientific interpretation
of words and definitions highlighted in an ordinance. The context in which the word is used
oftentimes determines its meaning.88 The context of the Ordinance certainly uses the word
biodegrade as defined by the scientific community, as Section 12 (b) provides for stringent
approval processes, requiring a government agency to certify the material used and a reputable
international verifying authority to verify the same.
84
Mr. Paxton C. Yu, Director, Milky Way Manufacturing Corporation, Certification dated 1 September
2012, attached as Appendix C; Mr. Lester A. Lao, Managing Director, First in Colours, Incorporated,
Letter of Certification dated 8 February 2012, attached as Appendix D.
85
CNN Business 360, http://business.blogs.cnn.com/2013/09/13/worlds-first-100-biodegradable-plasticbag/, accessed 11 October 2013; BASF, The Chemical Company, Introduction to biodegradable plastics,
http://www.bioplastics.basf.com/, accessed 11 October 2013; Elizabeth Royte, Corn Plastic to the Rescue,
The Smithsonian Magazine, August 2006, http://www.smithsonianmag.com/science-nature/plastic.html,
accessed 11 October 2013.
86
Keepner v. U.S., 11 Phil. 669 (1904).
87
Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 20, 1 (2010).
88
U.S. v. Estapia, 37 Phil. 17 (1917); Aboitiz Shipping Corp. v. City of Cebu, 121 Phil. 425 (1965).
VOL. 7
163
The analysis of Section 12 (b) gives rise to the conclusion that all plastics at present are
non-biodegradable, as it provides for a future time when technology exists that would allow
plastics to biodegrade, and until that time comes, the presumption of non-biodegradability
continues.
2. Understanding the phrase as certified by the proper Government agency (i.e.,
DENR and/or DOST), as well as verified as such by a reputable international
verification authority in Section 12 (b)
Necessarily coupled with the existence of biodegradable plastic is the certification
and verification that it is, indeed, such kind of plastic.
The determination of biodegradability is highly scientific. The City merely cites the
more plausible agencies that could be involved in such an undertaking. The Department of
Environment and Natural Resources (DENR), would naturally have an interest in
environmental concerns, so with the Department of Science and Technology (DOST), whose
mission and vision is to be the coordinator of scientific and technological efforts to be used
for maximum economic and social benefits for the Filipino people.89 These examples,
however, do not preclude other agencies that may be formed for such a task.
What is precluded are private entities certifying plastics in lieu of specialized and
disinterested government agencies. The reason why government agencies and international
entities were cited was to underscore the necessity of ensuring that the biodegradable
plastics passed stringent scientific tests that would verify and certify it fit for commercial use.
These measures were undertaken to ensure that the environment was protected through the
use of plastics that would actually biodegrade, according to the technical definition of the
word. Otherwise, the Plastics Ordinance would not serve its intended purpose.
Dynamic Development Corporations position as Movant in The Matter of Using

Biodegradable Plastic Bags Pursuant to City Ordinance 231, Series of 201190
Section 12 (b) has hindered the full and effective implementation of a valid and muchneeded law, as it was used as the basis of the Dynamic Development Corporation (DDC) to
insist on its use of biodegradable plastics, which was certified by the corporations own set of
authorities.
DDC attached a certification from Milky Way Manufacturing which vouched for their
use of materials with biodegradable additive in [c]ompliance with environmental issues.91
89
Executive Order No. 128, Section 4 (1987).
90
Attached as Appendix B
91
2012, attached as Appendix C
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2014
In turn, Milky Way Manufacturing had their supplier of biodegradable additive issue a
letter of certification as well, certifying the same.92
The DCC position paper conveys that:

1. DDC makes the assumption that the future technology referred to in Section
12 (b) of the Ordinance is already in existence
DDC prepared for compliance with the Ordinance by obtaining biodegradable
plastic shopping bags. This act disregarded the wording of the Ordinance, as DDC has taken
Section 12 (b) to be effective when it is not yet so. It is not yet effective as biodegradability
has not yet been standardized in the Philippines, and because of this, a regulatory body has
not yet been organized.
2. DDC believes that manufacturers of plastic can certify the same as biodegradable
DDC unilaterally decides that their own plastic shopping bag manufacturers can
substitute government and international authorities to certify biodegradability of plastics.
Appended to DDCs position paper are certifications given by: 1) Milky Way Manufacturing,
manufacturer of the biodegradable plastic bags;93 2) First in Colours, Incorporated, supplier
of biodegradable additive (MB Biomate) to Milky Way Manufacturing;94 and 3) Industrial
Technology Development Institute, who issued an Environmental Technology Verification
(ETV) statement on biodegradation of MB Biomate.95
The first two are private parties not qualified to certify plastics under the Ordinance.
The third party, the Industrial Technology Development Institute of the Department of
Science and Technology, issued the ETV with a disclaimer stating that the statements made
and conclusions drawn do not, however, amount to an endorsement or approval of the product in
general or for any particular application nor a warranty to the performance of the technology that it will
always operate as verified.
92
Mr. Lester A. Lao, Managing Director, First in Colours, Incorporated, Letter of Certification dated 8
February 2012, attached as Appendix D
93
2012, attached as Appendix C
94
Mr. Lester A. Lao, Managing Director, First in Colours, Incorporated, Letter of Certification dated 8
February 2012, attached as Appendix D
95
Verification Statement (Part II: Biodegradation), Environmental Technology Verification (page 1 of 5),
Industrial Technology Development Institute, Department of Science and Technology, attached as
Appendix E
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3. DDC concludes that the absence of procedure regarding verification and

certification makes Section 12 (b) vague, even if the section clearly requires that,
should future technology arrive and create plastic that actually biodegrades, this
must be verified and certified as such by the appropriate government agencies
DDC claims that the Ordinance is vague because no concrete procedure can be
provided by the DENR and the DOST regarding the verification and certification of plastics.
There is no established procedure, however, because the technology has not yet arrived in the
country. The bodies tasked to perform the regulation of the subject have yet to formulate the
rules. This supports the conclusion that Section 12 (b) is still inoperative, contrary to what
DCC asserts.
4. DDC must disabuse itself of conclusions drawn by the misinterpretation of
Section 12 (b)
Section 12 (b) is not yet in effect. Even assuming that it is, the documents submitted
by DDC bear no weight in the argument of the existence of biodegradability.
They are not the valid certifications envisioned in the wording of Section 12 (b) as the
issuers of the certifications are not international independent plastics regulatory bodies, nor
are they government agencies, much less government agencies tasked to verify and certify the
same, as required by Section 12 (b) of the Ordinance.
DDC posits that the Ordinance is vague. By its own reasoning, Section 12 (b) is either
invalid or not yet in effect. If not yet in effect, Section 12 (b) finds no application, and if invalid
and applying the separability clause, Section 12 (b) may be removed. The presumption in the
Ordinance that all plastics are non-biodegradable must stand and DDC has the burden of
overcoming this presumption. DDC may also opt to file a petition for declaratory relief.96
USE OF CITIZENS INITIATIVES TO FORWARD THE CAUSE

Should deadlock continue, and implementation remains to stall, other means are
available to spur the LGU into action. Registered voters can directly prod the government to
move through a local initiative.97
96
The requisites for a petition for declaratory relief to prosper are: (1) there must be a justiciable
controversy; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking
declaratory relief must have a legal interest in the controversy; and (4) the issue involved must be ripe for
judicial determination [CJH Development Corporation vs. Bureau of Internal Revenue, et. al. 575 SCRA
467 (2008) citing Metropolitan Manila Development Authority v. Viron Transportation Co., Inc., G.R. No.
170656, 5 August 2007, 530 SCRA 341, 355, citing Republic v. Orbecido III, G.R. No. 154380, 5 October
2005, 472 SCRA 114; Board of Optometry v. Colet, 328 Phil. 1187; 260 SCRA 88 (1996); Macasiano v.
National Housing Authority, G.R. No. 107921, 1 July 1993, 224 SCRA 236.]
97
R.A. 7610, Local Government Code of 1991, Title IX, Chapter II.
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2014
An initiative is the power of the people to propose and enact legislations through an
election called for that purpose.98 The LGC is even more specific when it provides that the
registered voters of a local government unit may directly propose, enact, or amend any
ordinance.99
National law and jurisprudence broadens this to include both ordinances and
resolutions as proper subjects of initiatives.100 Both can be successfully used to advance the
interests of the Plastics Ordinance.
Amend the Plastics Ordinance.

Over two (2) years have passed since the ordinance was enacted and over a year since
it was supposed to be fully effective. The inactivity might be symptomatic of a need to amend
the controversial parts for clarity. The amendment may include taking away the distinction
of non-biodegradable plastic packaging vis--vis biodegradable plastic packaging or remove
Section 12 (b) altogether.
Despite the validity of the ordinance, amendment may be a solution to revive the
Ordinance and enforce the same.
Pass a resolution to move for proper enforcement.

If the local government continues to stall despite the amendment, citizens may then
initiate an action for the passage of a resolution that would move for the proper enforcement
of the Plastics Ordinance.101 Resort to more drastic measures such as judicial action and/or
administrative complaints may be had if they continue to be remiss in their duty to fully
implement the ordinance.
OTHER AVAILABLE LEGAL REMEDIES

2010 Rules of Procedure for Environmental Cases.
The Supreme Court promulgated the Rules of Procedure for Environmental Cases
(Environmental Rules) to protect and advance the constitutional right of the people to a
98
Section 3 (a) R.A. 6735, An Act Providing for a System of Initiative and Referendum and Appropriating
Funds Therefor, 4 August 1989.
99
R.A. 7610, Local Government Code of 1991, Title IX, Chapter II.
100
Section 3 (a) (3) R.A. 6735, An Act Providing for a System of Initiative and Referendum and
Appropriating Funds Therefor, 4 August 1989; Garcia v. Commission on Elections, 237 SCRA 279 (1994).
101
Local initiative may be exercised only once a year, pursuant to Section 124 (a) of the LGC. It is because
of this that the proposal to pass a resolution to move for proper enforcement of the ordinance comes after
the move to amend the same. It gives the local government at least one (1) year to implement the
ordinance, as amended.
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balanced and healthful ecology.102 It recognized the unique nature of environmental cases
and provided special remedies that are peculiar to it, making the Environmental Rules
efficient tools in resolving environmental disputes.
1. Citizen Suits
The Environmental Rules empower the community by relaxing the rules on legal
standing and allowing citizen suits. These suits are actions that any Filipino citizen, in
representation of others, including minors or generations yet unborn, may file in court to
enforce rights or obligations under environmental laws.103 It encourages ordinary citizens to
file a lawsuit against private entities and/or public officials to right an environmental
wrong.104
An example of a successful attempt to file a citizens suit was when the Clean Air Act
was passed in 1999 and an important component, the emissions testing center, was still not
implemented by 2002.105 A group of lawyers filed a Notice to Sue against the Philippine
government.106 By January of 2003, the Philippine government began implementing the
requirement of having emissions testing centers.107
The residents of Dumaguete City can emulate this example through the use of the
citizens suit in the case of the enforcement of the Plastics Ordinance.
2. Writ of Continuing Mandamus

A Writ of Continuing Mandamus is a writ issued by a court in an environmental case
directing any agency or instrumentality of the government, or officer thereof to perform an
act or series of acts decreed by final judgment which shall remain effective until judgment is
fully satisfied.108
The Court recognizes the fact that bureaucracy poses a major obstacle in the
implementation of environmental laws. It calls upon the concerned executive agencies to
fulfill their mandates and to give priority to the resolution of environmental problems in all
102
Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 1, 3(a) (2010).
103
104
Antonio A. Oposa, Jr., Setting the Sails of Citizens Suits in the Philippines, 6(20) PHILJA JUDICIAL
JOURNAL 207, 210 (2004).
105
Id.
106
Id.
107
Id.
108
Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 1, 4(c) (2010).
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instances.109
The current issue of non-implementation of a valid ordinance may be the valid subject
of a writ of continuing mandamus against the City of Dumaguete, represented by its chief
executive. It is the chief executives ministerial duty to enforce ordinances and, through this
action, the courts may issue the writ to compel the chief executive to perform his duty.
3. Environmental Protection Order (EPO)

An EPO is an order issued by the court directing or enjoining any person or
government agency to perform or desist from performing an act in order to protect, preserve
or rehabilitate the environment.110 The EPO performs a similar function as a prohibitory or
mandatory injunction, but the EPO specifically applies to environmental cases.
The concerned citizen can file for an EPO to either direct Dumaguete City, through
its chief executive, to implement the regulation of plastic or to enjoin DDC from acting on its
interpretation of the Ordinance and directing it to comply pending judicial determination of
the controversial issues.
4. Preliminary Injunction
A preliminary injunction is an order granted at any stage of an action or proceeding
prior to the judgment or final order, requiring a party or a court, agency or a person to refrain
from a particular act or acts. It may also require the performance of a particular act or acts, in
which case it shall be known as a preliminary mandatory injunction.111 It is an ancillary
remedy for the purpose of preserving the status quo or preventing future violations of a right,
and protecting and preserving the interests of the parties during the pendency of an action. 112
Such may be applied in the same vein as the previously-mentioned EPO.
5. Precautionary Principle
When there is a lack of full scientific certainty in establishing a causal link between
human activity and environmental effect, the court shall apply the precautionary principle in
resolving cases.113 The principle instructs the Court to be environmentally cautious and
inclined in interpreting environmental laws when issues and findings are not so clear-cut.
109
Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay, G.R. No. 17194748 (2008).
110
Rules of Procedure for Environmental Cases, A.M. No. 09-6-8-SC, Rule 1, 4(d) (2010).
111
Rules of Civil Procedure, Rule 58, 1 (1997).
112
Cortez-Estrada v. Heirs of Domingo/Antonia Samut, G.R. No. 154407 (2005).
113
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This benefits the cause of the concerned citizen who wishes to protect the environment
by moving for the judicial resolution of the issues in the Ordinance. The Court is expected to
consider environmental issues applying the precautionary principle, whereby doubt must be
resolved for the environment, for constitutional right of the people to a balanced and healthful
ecology must be given the benefit of the doubt.114
Accountability of chief executive officer for non-enforcement of valid ordinances.

The LGC specifically provides for the powers and duties of the mayor and a law or an
ordinance can provide the conditions upon which the power of the mayor can be exercised.115
This takes its cue from the general welfare clause found in Section 16 of the LGC, which is
the delegation of the police power of the state to LGUs.116 Through this, LGUs may prescribe
and enforce regulations to protect the lives, health, and property of their constituents and
maintain peace and order within their respective territorial jurisdictions.117
The city mayor, being the chief executive of Dumaguete City, is tasked to enforce the
Plastics Ordinance, including the penalties therein. Failure to do so shall be failure on his part
to tend to his duties as prescribed in the code, which exposes him to consequences.
1. Administrative complaint under the LGC

The LGC provides for disciplinary actions against elective officials. This is consistent
with the constitutional mandate providing for the accountability of public officers.118
An elective official may be disciplined, suspended, or removed from office on the
grounds of dishonesty, oppression, misconduct in office, gross negligence, or dereliction of
duty,119 or such other grounds that may be provided in the LGC and other laws.120
Dereliction of duty has been defined by the Court to be the failure to exercise the very
task officials are duty-bound to perform,121 such as when judges fail to resolve cases within
114
115
Roble Arrastre, Inc. v. Villaflor, 499 SCRA 434 (2006).
116
Id.
117
Id.
118
1987 PHILIPPINE CONSTITUTION, Article XI.
119
R.A. 7610, Local Government Code of 1991, 60 (c).
120
R.A. 7610, Local Government Code of 1991, 60 (h).
121
St. Michaels Institute v. Santos, G.R. No. 145280 (2001).
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2014
the prescribed period,122 when sheriffs fail to enforce a writ of execution without delay,123 or
in this case, when local chief executives fail to enforce valid ordinances.
An elective official may be removed from office on the grounds enumerated by order
of the proper court.124 This is initiated through a verified complaint filed before the Office of
the President.125
2. Recourse through the Ombudsman invoking the Code of Conduct and Ethical
Standards for Public Officials and Employees126
Section 4 (A) of the above law provides that every public official and employee shall
observe the following as standards of personal conduct in the discharge and execution of
official duties: 1) Commitment to public interest; 2) Professionalism; 3) Justness and sincerity;
and 4) Responsiveness to the public.
The neglect to implement the Ordinance violates the standards of personal conduct
expected, and it is within the scope of the ombudsmans duties to hold the erring public
officers accountable.127
Court may still resolve substantive issues despite supervening events

Supervening events pose no threat or rendering a case moot should an issue be
submitted for judicial determination. Supervening events, whether intended or accidental,
cannot prevent the Court from rendering a decision. The Court does not hesitate to resolve
the legal or constitutional issues raised to formulate controlling principles to guide the bench,
bar and public.128
Another reason justifying this action by the Court is the rule that courts will decide a
question otherwise moot and academic if it is capable of repetition, yet evading review.129
Should the issues in the Ordinance be presented to the Court, it may still take
cognizance of the same despite supervening events that might change certain circumstances
122
Sanchez v. Vestil, 298 SCRA 1 (1998).
123
Fajardo v. Quitalig, 400 SCRA 25 (2003).
124
R.A. 7610, Local Government Code of 1991, 60.
125
R.A. 7610, Local Government Code of 1991, 61 (a).
126
Code of Conduct and Ethical Standards for Public Officials and Employees, R.A. 6713, 1989.
127
1987 PHILIPPINE CONSTITUTION, Article XI, 13 (1), (2), (7).
128
Chavez v. Public Estates Authority, 384 SCRA 152 (2002) citing Salonga v. Pao, 134 SCRA 438
(1995); Province of Batangas v. Romulo, 429 SCRA 736 (2004); Roble Arrastre, Inc. v. Villaflor, 499
SCRA 434 (2006).
129
Province of Batangas v. Romulo, 429 SCRA 736 (2004); Roble Arrastre, Inc. v. Villaflor, 499 SCRA
434 (2006).
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in the case. Supervening events, or the possibility thereof, should not be a hindrance to
judicial action.
CONCLUSION AND RECOMMENDATION

LGUs are given autonomy in order to better act upon the specific needs and problems
of their respective territories.130 They govern at a more direct and effective level.131 Because of
this, LGUs have become the forum for environmental advocacy and policy formulation.132 It
is believed that LGUs can better advance the interests of its constituents as it works at the
core, addressing issues faster as they arise, compared to the overwhelming bureaucracy of
central government.
The Dumaguete City Sangguniang Panlungsod shared in the responsibility with the
central government to manage and maintain ecological balance through the Plastics
Ordinance.133 It was passed to protect the environment and mitigate ecological imbalance.134
The initiative should not be undermined by the claims of a few when the environment, health
and well-being of the greater population of the City are at stake.
The Plastics Ordinance is valid and enforceable.
Science and technology in the Philippines has not yet defined biodegradable plastic
packaging because the technology has yet to exist in the country. Existing plastic packaging
has yet to be officially certified as biodegradable by any government agency. There is no
scientific warranty given, local or international, that those that claim to be biodegradable
actually are.
This is evident in the disclaimer found on the Verification Statement issued by the
Industrial Technology Development Institute,135 which said that the statements made and
conclusions drawn in the Environmental Technology Verification (ETV) report used by
DDCs plastic packaging suppliers to back up their claims of biodegradability do not amount
to and endorsement or approval of the product in general or for any particular application nor warranty
to the performance of the technology that it will always operate as verified.
The very reason why the test of biodegradability is stringent is because a mistake in
the allowance of non-biodegradable plastic packaging as biodegradable would have a large
impact on an environment already suffering from excess waste. What Section 12 (b), the
130
131
Pimentel, Jr. v. Aguirre, 336 SCRA 201 (2000).
132
133
R.A. 7610, Local Government Code of 1991, 3 (i).
134
Resolution No. 446, S. 2011, citing Section 458 (vi) of the Local Government Code of the Philippines,
R.A. No. 7160 (1991).
135
Attached as Appendix E
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2014
alleged snag in the Ordinance, aims to do is to ensure that products advertised as

biodegradable be scientifically certified to actually biodegrade without leaving any toxic
residue behind.
Oppositors claim their plastic is not harmful because it has been certified by their
suppliers as biodegradable. The Plastics Ordinance did not envision this unregulated freefor-all, where establishments could present individual certificates that would attempt to
represent compliance with a provision still legally inoperative.136
Section 12 (b) of the Ordinance and the opposition of DDC is not a ground for nonimplementation. The fact that the Ordinance remains paused shows that there simply is no
political will to enforce it. By stalling execution, the City, headed by its chief executive, does
an injustice to the unanimous legislation passed and the public who would have benefited
from it. After all, laws have ends to be achieved and statutes should be construed so as not to
defeat, but to carry out its ends and purposes.137
Recommendation
The City must enforce the Plastics Ordinance as there is no legal impediment to do so.
The Ordinance is valid and enforceable for it has not violated the Constitution or any other
statutes in the country. In fact, the Court has said, through the Environmental Rules, that the
constitutional right of the people to a balanced and healthful ecology shall be given the benefit
of the doubt.138
The Dumaguete City LGU should not continue to shelve implementation of the
Plastics Ordinance as action may be taken by the citizens themselves to hold the City
accountable through the legal remedies previously discussed. In fact, the LGU must stand
that the Plastics Ordinance has already been violated and penalize non-compliance.
Oppositors may address their legal questions to the courts for judicial determination and
resolution, if it so desires.
136
(Section 12 [b]) of the Ordinance.
137
Ruben E. Agpalo, Statutory Construction, 6th Ed. Rex Book Store Inc., Manila, p.108-109 (2009); Litex
Employees Assn. v. Eduvala, G.R. No. 41106, 22 September 1977, 79 SCRA 88; Bocobo v. Estanislao,
G.R. No. 30458, 31 August 1976, 72 SCRA 520; Republic Flour Mills, Inc. v. Commissioner of Customs,
G.R. No. 28463, 31 May 1971, 39 SCRA 269; King v. Hernaez, 114 Phil. 730 (1962); Mejia v. Balalong,
81 Phil. 497 (1948); Yellow Taxi & Pasay Trans. Workers Union v. Manila Taxi Cab Co., 80 Phil. 833
(1948).
138
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173
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VOL. 7
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2014
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Development in the Asian Pacific Region. 1 LOCAL GOVERNMENT IN THE PHILIPPINES:
A BOOK OF READINGS, LOCAL GOVERNMENT ADMINISTRATION 21 (1998).
Oposa, Jr., A. A. Setting the Sails of Citizens Suits in the Philippines. 6(20) PHILJA
JUDICIAL JOURNAL 207 (2004).
Tapales, P. The Nature and State of Local Government. 1 LOCAL GOVERNMENT IN
THE PHILIPPINES: A BOOK OF READINGS, LOCAL GOVERNMENT ADMINISTRATION
5 (1998).
Ynares-Santiago, C. Framework for Strengthening Environmental Adjudication in the
Philippines. 9(28) PHILJA JUDICIAL JOURNAL 118 (2007).
NEWS ARTICLES
Alex Rey V. Pal, Biodegradable plastics tested, DUMAGUETE METRO POST (23
September 2012), available at http://dumaguetemetropost.com/biodegradableplastics-tested-p3102-459.htm
Dems Demecillo, City mayor prefers biodegradable plastic, THE NEGROS CHRONICLE (16
September
2012),
available
at
http://www.negroschronicle.com/webarchives/frontpage/City%20Mayor%20prefers%20biodegradable%20plastic.html
Esther C. Windler & Leo G. Mamicpic, Biodegradable plastics not environment-friendly,
DUMAGUETE METRO POST
(23
September
2012),
available
at
http://dumaguetemetropost.com/biodegradable-plastics-notenvironmentfriendly-p3083-196.htm
Esther C. Windler & Leo G. Mamicpic, Are biodegradables environment-friendly?, THE
NEGROS
CHRONICLE
(23
September
2012),
available
at
http://www.negroschronicle.com/webarchives/news/Are%20biodegradables%20environment-friendly.htm
Juancho Gallarde, Anti-plastic bags ordinance to take effect August 28, THE VISAYAN
DAILY
STAR
(4
August
2012),
available
at
http://visayandailystar.com/2012/August/04/negor2.htm
Juancho Gallarde, Business firms ask: clarify the Plastic ban ordinance, THE NEGROS
CHRONICLE
(16
September
2012),
available
at
http://www.negroschronicle.com/web-archives/top-
178
2014
oftheweek/Business%20firms%20ask%20%20clarify%20Plastic%20ban%20ordin
ance.htm
Judy Flores Patlow, Environmentalists want anti-plastics law enforced, THE PHILIPPINE
STAR
(21
September
2012),
available
at
http://www.philstar.com/region/2012/09/21/851329/environmentalists-wantanti-plastics-law-enforced
Karl John Reyes, Sen. Miriam files bill banning plastic bags in all retail stores,
INTERAKSYON
(6
August
2012),
available
at
http://www.interaksyon.com/article/39586/sen--miriam-files-bill-banningplastic-bags-in-all-retail-stores
Nina Calleja, Muntinlupa execs to tweak ordinance on plastic ban, PHILIPPINE DAILY
INQUIRER
(10
September
2012),
available
at
http://newsinfo.inquirer.net/267864/muntinlupa-execs-to-tweak-ordinance-onplastic-ban
MISCELLANEOUS DOCUMENTS
Atty. Richard R. Enojo, Provincial Legal Officer, Indorsement dated 6 June 2012
BASF,
The
Chemical
Company,
http://www.bioplastics.basf.com/faq.html
FAQs,
available
at
BASF, The Chemical Company, Introduction to biodegradable plastics, available at

http://www.bioplastics.basf.com/
Biodegradable Products Institute, Science of Biodegradation, available
http://www.bpiworld.org/BPI_Position_on_Degradable_Additives
at
CNN Business 360, available at http://business.blogs.cnn.com/2013/09/13/worldsfirst-100-biodegradable-plastic-bag/

Danilo C. Mendez, Provincial Treasurer, Indorsement dated 4 May 2012
Dynamic Development Corporation, Position Paper titled: In The Matter of Using
Biodegradable Plastic Bags Pursuant to City Ordinance 231, Series of 2011,
submitted 1 September 2012 by Atty. Raymund J.A. Mercado
Elizabeth Royte, Corn Plastic to the Rescue (August 2006), The Smithsonian Magazine,
available at http://www.smithsonianmag.com/science-nature/plastic.html
Environmental Technology Verification, Verification Statement (Part II: Biodegradation),
Industrial Technology Development Institute, Department of Science and
Technology
Giovanni C. Nessia, Publisher of Dumaguete Star Informer, affidavit dated 2
November 2011
VOL. 7
179
Greenpeace, Greenwash, available at http://www.stopgreenwash.org/

Justice Oswaldo Agcaoili, Role of the Philippine Judicial Academy in Environmental Law
Dissemination, Enforcement and Adjudication, delivered at The Forum on
Environmental Justice: Upholding the Right to a Balanced and Healthful Ecology
(2009).
Justice Reynato S. Puno, Philippine Environmental Law Practice and the Role of the Courts,
at Judges Forum on Environmental Protection: Philippine Environmental Law,
Practice, and Role of the Courts (2003).
Lester A. Lao, Managing Director, First in Colours, Incorporated, Letter of
Certification dated 8 February 2012
Loren Legarda, Senate Bills, available at http://lorenlegarda.com.ph/senate-bill-no2759-total-plastic-bag-ban/
Mercy S. Teves, ENRD Chief, Indorsement dated 12 October 2011, and a subsequent
one dated 18 April 2012
Paxton C. Yu, Director, Milky Way Manufacturing Corporation, Certification dated
1 September 2012
Ramon A. Villarosa, Secretary to the Sanggunian Panlungsod thru the Provincial
Secretary, dated 1 September 2011.
Ramon A. Villarosa, Secretary to the Sanggunian Panlungsod, Certification dated 1
September 2011.
Rogelio E. Subong, Overbreadth: Unreasonable Ordinances, 452 SCRA 193 (2005)
Sangguniang Panlalawigan Resolution No. 481, 26 June 2012
Ted Duboise, Philippines House of Representatives Vote to Regulate Plastic Bags (31 August
2011),
available
at
http://plasticbagbanreport.com/philippines-house-ofrepresentatives-vote-to-regulate-plastic-bag
NEW AND NEWLY REFRESHED DOCTRINES BASED ON

RECENT JURISPRUDENCE
Atty. Karissa Faye Tolentino
December 2014
1. ONLINE PRIVATE
COMMUNICATIONS OF SEXUAL CHARACTER BETWEEN MARRIED
COUPLES OR CONSENTING ADULTS EVEN WHEN DONE FOR FAVOR BUT THE ELEMENT OF
ENGAGING IN BUSINESS" IS ABSENT DO NOT CONSTITUTE A VIOLATION OF SECTION 4 (C)

(1) ON CYBERSEX, REPUBLIC ACT (R.A.) 10175, THE CYBERCRIME PREVENTION ACT OF
2012.
Under Section 4 (c) (1) of RA 10175, Cybersex is defined as The willful engagement,
maintenance, control, or operation, directly or indirectly, of any lascivious exhibition of
sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.
A reading of the above provision would show that online sexual activities of two
consenting adults is now a crime under RA 10175. Notable, the same acts were not
regarded as crimes under the Revised Penal Code. However, the Supreme Court declared
otherwise.
Just this year, the Supreme Court in the case of Disini v. Executive Secretary1, held that the
deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
show a lack of intent to penalize a "private showing xxx between and among two private
persons xxx although that may be a form of obscenity to some." The understanding of
those who drew up the cybercrime law is that the element of "engaging in a business"
is necessary to constitute the illegal cybersex. The Act actually punishes cyber
prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam.
2. WILLFUL BLINDNESS DOCTRINE
Under this doctrine, where there is a presumption that the taxpayer knows his/her tax
obligations, the fault of his/her representative or accountant is not a valid ground to justify
noncompliance in tax obligations.
G.R. No. 203335, February 11, 2014.
VOL. 7
181
The case of People v. Gloria Kintanar 2 is a landmark case on the Willful Blindness Doctrine.
In this case, Kintanar was charged with failure to make or file her income tax returns
(ITR). She averred that she did not actively participate in the filing of her joint ITR with
her husband since she entrusted such duty to the latter who, in turn, hired an accountant
to perform their tax responsibilities. The Court of Tax Appeals (CTA) En Banc found her
neglect or omission tantamount to deliberate ignorance or conscious avoidance. The
court held that as an experienced businesswoman, her reliance on her husband to file
the required ITR without ensuring its full compliance showed clear indication of
deliberate lack of concern on her part to perform her tax obligations.
3. NO MORE VIOLATIONS FOR PREMATURE CAMPAIGNING
Section 80 of the Omnibus Election Code, on premature campaigning, prohibits any
person, whether a candidate or not, from engaging in election campaign or partisan
political activity except during the campaign period fixed by law. However, no case can
be filed for premature campaigning against anyone at this time.
In, Penera v. COMELEC,3 Penera was disqualified as a mayoralty candidate for engaging
in election campaigning before the campaign period but the Supreme Court ruled in her
favor. The court ruled that a candidate is any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy. The court added that any person
who files a certificate of candidacy within the period for filing shall only be considered as
a candidate at the start of the campaign period for which he filed his certificate of
candidacy. Any unlawful act or omission applicable to a candidate shall take effect only
upon the start of the campaign period, when partisan political acts become unlawful as to
a candidate. Before the start of the campaign period, the same partisan political acts
are lawful. Consequently, a candidate is only liable for an election offense for acts done
during the campaign period, not before.
4. UNDER
CUSTOMARY INTERNATIONAL LAW, AS IT PRESENTLY STANDS, A
STATE IS
NOT
DEPRIVED OF IMMUNITY BY REASON OF CIVIL CLAIMS FOR SERIOUS VIOLATIONS OF

INTERNATIONAL HUMAN RIGHTS LAW OR JUS COGENS NORMS.
While the grant of immunity to a state from proceedings in another state arising from
human rights violations is viewed by several scholars as "artificial, unjust, and
archaic"4 with a number of decisions from national courts indicating the same,5 on
2
CTA EB Crim. No. 006, Dec. 3, 2010, which was affirmed by the Supreme Court in its Resolution dated
January 2012.
3
G.R. No. 181613, November 25 2009.
Adam C. Belsky et al., Implied Waiver Under The FSIA: A Proposed Exception To Immunity For
Violations Of Peremptory Norms Of International Law, 77 CAL. L. REV. 365 (1989) (quoting Hersch
Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 BRIT. Y.B. INT'L L. 220, 221
(1951)).
5
See, e.g. Pinochet (No. 3) R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte
(Amnesty International Intervening) (No. 3) [2000] AC 147. [hereinafter Pinochet]; Ferrini v. Germany,
Case No. 5044/4, Appeal Decision, 2004 I.L.D.C. 19 (March 11).
182
NEW AND NEWLY REFRESHED DOCTRINES
2014
February 2, 2012, the International Court of Justice (ICJ) rendered a significant decision
in the case of Germany v. Italy,6 upholding Germany's jurisdictional state immunity in a
case involving human rights violations enjoying jus cogens status. Its decision rejected the
attempt of Italy to make an exception to state immunity in civil cases of human rights
violations classified as breaches of jus cogens norms. This decision creates a significant
shadow, even perhaps a paradigm shift, on human rights litigation in national and
international courts.
ICJ is concerned that if it rules in favor of Italy, it would open the floodgates to
compensation claims by individuals around the world. The Court also conveyed
concern that if the mere allegation that the State had committed such wrongful acts
were to be sufficient to deprive the State of its entitlement to immunity, immunity
could, in effect be negated simply by skillful construction of the claim. 7
5. THE UNSIGNED HANDWRITTEN STATEMENT OF THE DECEASED FATHER OF A MINOR CAN
BE CONSIDERED AS A RECOGNITION OF PATERNITY IN A PRIVATE HANDWRITTEN
INSTRUMENT WITHIN THE CONTEMPLATION OF ARTICLE 176 OF THE FAMILY CODE, AS
AMENDED BY R.A. 9255, WHICH ENTITLES THE SAID MINOR TO USE HIS FATHERS
SURNAME.
Although the Implementing Rules and Regulations (IRR) of RA 9255 requires that the
private handwritten instrument containing the putative fathers admission of paternity
must be signed by him, in the case of Dela Cruz vs. Gracia8, the Supreme Court ruled that
contrary to the IRR of RA 9255, the private handwritten instrument need not be signed
by the father.
The Court adopted the following rules respecting the requirement of affixing the signature
of the acknowledging parent in any private handwritten instrument wherein an admission
of filiation of a legitimate or illegitimate child is made:
(1) Where the private handwritten instrument is the lone piece of evidence submitted to
prove filiation, there should be strict compliance with the requirement that the same must
be signed by the acknowledging parent; and
(2) Where the private handwritten instrument is accompanied by other relevant and
competent evidence, it is sufficient that the claim of filiation is shown to have been made
and handwritten by the acknowledging parent as it is merely corroborative of such other
evidence.
Jurisdictional Immunities Of The State (Germany v. Italy: Greece intervening), Judgment, 2012 I.C.J.
143 (Feb. 3) [hereinafter Germany v. Italy].
7
Id.
G.R. No. 177728, July 31, 2009
VOL. 7
CHALKBOARD
183
184
NEW AND NEWLY REFRESHED DOCTRINES
2014 TEAM
2014
VOL. 7
185
SPECIAL CREDITS
For the unwavering, consistent and expert support, the Silliman University Law Journal
would like to thank the following:
1. Mr. Mark Raygan E. Garcia, the Director, Office of Information and Publications as well as
his entire staff. Your accommodation and assistance has proved to be very valuable to
this publication. Your department is one of the most organized and able department
we have worked with.
2. Mrs. Belen Kinilitan, the Secretary of the College of Law.
3. Mrs. Virginia Lim, the Librarian of the College of Law.
For the invaluable contributions to this years publication, the Silliman University Law
Journal would like to thank the following:
1. Atty. Mikhail Lee Maxino, for contributing his work: RIGHT TO LIFE, LIBERTY,
PROPERTY: A SEAMLESS TRILOGY TO PROSPERITY.
2. Atty. Alex P. Icao, for contributing his work: INDEPENDENT AND DEPENDENT CIVIL
ACTIONS THROUGH THE EYES OF RES JUDICATA.
3. Atty. Karissa Faye R. Tolentino, for contributing her works: THE
CONSTITUTIONALITY OF THE CONGRESSIONAL PORK BARREL FUNDS and
NEW AND NEWLY REFRESHED DOCTRINES BASED ON RECENT
JURISPRUDENCE.
4. Jan Mark P. Bagiuo, for contributing his thesis: GRAY AREAS IN THE PRINCIPLES OF
DISTINCTION AND PROTECTION OF CIVILIANS INVOLVED IN HOSTILITIES.
5. Zara Marie Dy, for contributing her thesis: RESOLVING DEADLOCK IN A VALID
ENVIRONMENTAL ORDINANCE: ANALYSES AND FINDINGS ON THE
DUMAGUETE CITY PLASTICS ORDINANCE.
The pictures used in the cover photo of this Journal was grabbed from the following internet
addresses:
1. Silliman University Church, All Rights Reserved by Revey S. Nuico,
http://farm5.static.flickr.com/4036/4671299584_fe1428a08d.jpg,
retrieved
on
November 2014.
2. First picture from left:
http://www.rushtonstakely.com/images/photo_environmentallaw.jpg, retrieved on
November 2014.
3. Second picture from left:
http://www.thegiftofsurrogacy.com/images/Plate_Baby_br.jpg, retrieved on
November 2014.
4. Third picture from left:
http://www.newworldencyclopedia.org/entry/File:Flag_of_the_ICRC.svg,
retrieved on November 2014.
5. Fourth
picture
from
left:
http://richmanknoll.com/wpcontent/uploads/2012/07/Gavel-1.jpg, retrieved on November 2014.

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SILLIMAN

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

UNIVERSITY EXECUTIVE OFFICERS

Betsy Joy B. Tan, Ph.D.

Cleonico Y. Fontelo, CPA, MMPM

Jane Annette L. Belarmino, CPA, MBA

Elmer L. Saa, MDiv

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

SILLIMAN UNIVERSITY COLLEGE OF LAW

Myles Nicholas G. Bejar, LL.B., MA

Atty. Jose Riodil D. Montebon

Atty. Karissa Faye R. Tolentino

Atty. Elizabeth Karla P. Aguilan

Mrs. Belen B. Kinilitan

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

COLLEGE OF LAW FACULTY

Myrish C. Antonio, LL.B., LL.M.

Atty. Karissa Faye R. Tolentino

Atty. Golda Benjamin

Atty. Elizabeth Karla P. Aguilan

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

Atty. Manuel R. Arbon

Atty. Myles Nicholas G. Bejar

Atty. Sheila Lynn C. Besario

Pros. Angela Charina M. Cortes

Atty. Norberto L. Denura

Atty. Fe Marie D. Dicen-Tagle

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

Atty. Alex Andrew P. Icao

Atty. Janette L. Icao

Pros. Marites F. Macarubbo

Atty. Marcelino C. Maxino

Atty. M. Mikhail Lee L. Maxino

Atty. Vicente C. Maxino

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

Atty. Jose Riodil D. Montebon

Judge Gerardo A. Paguio, Jr.

Dr. David J. Padilla

Judge Marie Rose I. Paras

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

Atty. Ramon Antonio D. Ruperto

Atty. Eduardo T. Sedillo

Judge Rafael Crescencio C. Tan, Jr.

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

Ram Michael M. Santos

Elaine Gerald C. Cepeda

Maria Carmela R. Caupayan

April Anne C. Justalero

Atty. Marcelino C. Maxino

FROM THE DEAN

FROM THE EDITOR

SILLIMAN LAW JOURNAL

VOLUME 7 | NUMBER 1 | DECEMBER 2014

II. NOMENCLATURE .................................................................................................. 44

COMMON ELEMENTS AND STANDARD OF PROOF ................................................ 52