Title Two Crimes Against The Fundamental Law of The State

Ateneo de Davao University- College of Law
1-Sanchez Roman
TITLE TWO CRIMES

AGAINST THE
FUNDAMENTAL LAW OF
THE STATE
ARBITRATY DETENTION
Republic of the Philippines
SUPREME COURT
Manila
Criminal Law 2 Cases

Atty. Mamburam
DOMINGO T. ANONUEVO and RAMON
CASIPLE: DOMINGO T. ANONUEVO and
RAMON CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S.
DE VILLA, COL. EVARISTO CARIO,
LT. COL. REX D. PIAD, T/SGT.
CONRADO DE TORRES, S/SGT. ARNOLD
DURIAN, and Commanding Officer, PC-INP
Detention Center, Camp Crame, Quezon
City, respondents.
G.R. No. 83162
EN BANC
G.R. No. 81567
October 3, 1991
IN THE MATTER OF THE PETITIO N

FOR HABEAS CORPUS OF ROBERTO
UMIL, ROLANDO DURAL and RENATO
VILLANUEVA, MANOLITA O. UMIL and
NICANOR P. DURAL, FELICITAS V.
SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO
DE VILLA,
BRIG.
GEN.
RAMON
MONTANO, BRIG. GEN. ALEXAN D ER
AGUIRRE, respondents.
G.R. Nos. 84581-82
October 3, 1991
AMELIA
ROQUE
and
WILFR EDO
BUENAOBRA, petitioners,
vs.
GEN. RENATO DE VILLA and GEN,
RAMON MONTANO, respondents.
G.R. Nos. 84583-84
October 3, 1991

FOR HABEAS
CORPUS OF ATTY.
Efren H. Mercado for petitioners in G.R. No.

81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R.
Nos. 84581-82
October 3, 1991
IN THE MATTER OF THE APPLICATIO N

FOR HABEAS CORPUS OF VICKY A.
OCAYA
AND
DANNY
RIVER A:
VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIR R E,
COL. HERCULES CATALUNA, COL.
NESTOR MARIANO, respondents.
G.R. No. 85727
THE STATION COMMANDER OF THE

MUNTINGLUPA
POLICE
STATION,
Muntinglupa,
Metro
Manila,
P/SGT.
JACINTO MEDINA, P/SGT. ELAD IO
TAGLE, P/SGT. LEVI SOLEDAD, and
P/SGT. MALTRO AROJADO, respondents.
Josefina G. Campbell-Castillo for petitioners in

G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R.
No. 85727.
The Solicitor General for the respondents.
RE SO L U TI O N
October 3, 1991
PER CURIAM:p
IN THE MATTER OF APPLICATION FOR

HABEAS CORPUS OF DEOGRAC IAS
ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL.
RICARDO REYES, respondents.
G.R. No. 86332
Before the Court are separate motions filed by

the petitioners in the above-entitled petitions,
seeking reconsideration of the Court's decision
promulgated on 9 July 1990 (the decision, for
brevity) which dismissed the petitions, with the
following dispositive part:
October 3, 1991

FOR HABEAS CORPUS OF NARCISO B.
NAZARENO:
ALFREDO
NAZARENO,peti tioner,
vs.
WHEREFORE, the petitions are hereby

DISMISSED, except that in G.R. No. 85727
(Espiritu vs. Lim), the bail bond for petitioner's
provisional liberty is hereby ordered reduced
from P60,000.00 to P10,000.00. No costs.
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The Court avails of this opportunity to clarify its
ruling a begins with the statement that the
decision did not rule as many misunderstood
it to do that mere suspicion that one is
Communist Party or New People's Army
member is a valid ground for his arrest without
warrant. Moreover, the decision merely applied
long existing laws to the factual situations
obtaining in the several petitions. Among these
laws are th outlawing the Communist Party of
the Philippines (CPP) similar organizations and
penalizing membership therein be dealt with
shortly). It is elementary, in this connection, if
these laws no longer reflect the thinking or
sentiment of the people, it is Congress as the
elected representative of the people not the
Court that should repeal, change or modify
them.
In their separate motions for reconsideration,
petitioners, in sum, maintain:
1.
That the assailed decision, in upholding
the validity of the questioned arrests made
without warrant, and in relying on the provisions
of the Rules of Court, particularly Section 5 of
Rule 113 (Arrest), disregards the fact that such
arrests violated the constitutional rights of the
persons arrested;
2.
That the doctrine laid down in Garcia
vs. Enrile 1 and Ilagan vs. Enrile 2 should be
abandoned;
3.
That the decision erred in considering
the admissions made by the persons arrested as
to their membership in the Communist Party of
the Philippines/New People's Army, and their
ownership of the unlicensed firearms ,
ammunitions and subversive documents found

Atty. Mamburam
in their possession at the time of arrest,
inasmuch as those confessions do not comply
with the requirements on admissibility of
extrajudicial admissions;
witho warrant is found in Section 5, Rule 113 of

the Rules of Court which states the grounds
upon which a valid arrest, without warrant, can
be conducted.
4.
That the assailed decision is based on a
misappreciation of facts;
In the present cases, the focus is understandably

on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:
5.
That G.R. No. 81567 (the Umil case)
should not be deemed moot and academic.
We find no merit
reconsideration.
in
the motions
for
It can not be overlooked that these are petitions

for the issuance of the writ of habeas corpus,
filed by petitioners under the Rules of Court. 3
The writ of habeas corpus exists as a speedy and
effective remedy to relieve persons fro m
unlawful restraint. 4 Therefore, the function of
the special proceedings of habeas corpus is to
inquire into the legality of one's detention, 5 so
that if detention is illegal, the detainee may be
ordered forthwit released.
In the petitions at bar, to ascertain whether the
detention petitioners was illegal or not, the Court
before rendering decision dated 9 July 1990,
looked into whether their questioned arrests
without warrant were made in accordance with
law. For, if the arrests were made in accordance
with law, would follow that the detention
resulting from such arrests also in accordance
with law.
There can be no dispute that, as a general rule,
no peace officer or person has the power or
authority to arrest anyo without a warrant of
arrest, except in those cases express authorized
by law. 6 The law expressly allowing arrests
Sec. 5. Arrest without warrant; when lawful.

A peace officer or a private person may,
without a warrant, arrest a person:
(a)
When, in his presence, the person to he
arrested has committed, is actually committin g ,
or is attempting to commit an offense;
(b)
When an offense has in fact just been
committed, and he has personal knowledge of
facts indicating that the person to be arrest has
committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the
arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the
contemplation of Section 5 Rule 113, he (Dural)
was committing an offense, when arrested
because Dural was arrested for being a memb er
of the New People's Army, an outlawed
organization, where membership penalized, 7
and for subversion which, like rebellion is, under
the doctrine of Garcia vs. Enrile, 8 a continuing
offense, thus:
The crimes of insurrection or rebellion ,
subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses
committed in the furtherance (sic) on the
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occasion thereof, or incident thereto, or in
connection therewith under Presidential
Proclamation No. 2045, are all in the nature of
continuing offenses which set them apart fro m
the common offenses, aside from their
essentially involving a massive conspiracy of
nationwide magnitude. . . .
Given the ideological content of membership in
the CPP/NPA which includes armed struggle for
the overthrow of organized government, Dural
did not cease to be, or became less of a
subversive, FOR PURPOSES OF ARREST,
simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. Dural was
identified as one of several persons who the day
before his arrest, without warrant, at the St.
Agnes Hospital, had shot two (2) CAPCOM
policemen in their patrol car. That Dural had
shot the two (2) policemen in Caloocan City as
part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural,
given another opportunity, would have shot or
would shoot other policemen anywhere as
agents or representatives of organized
government. It is in this sense that subversion
like rebellion (or insurrection) is perceived here
as a continuing offense. Unlike other so-called
"common" offenses, i.e. adultery, murder, arson,
etc., which generally end upon their
commission, subversion and rebellion are
anchored on an ideological base which compels
the repetition of the same acts of lawlessness and
violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was
grounded on mere suspicion by the arresting
officers of his membership in the CPP/NPA. His
arrest was based on "probable cause," as

Atty. Mamburam
supported by actual facts that will be shown
hereafter.
Viewed from another but related perspective, it
may also be said, under the facts of the Umil
case, that the arrest of Dural falls under Section
5, paragraph (b), Rule 113 of the Rules of Court,
which requires two (2) conditions for a valid
arrestt without warrant: first, that the person to
be arrested has just committed an offense, and
second, that the arresting peace officer or private
person has personal knowledge of facts
indicating that the person to be arrested is the
one who committed the offense. Section 5(b),
Rule 113, it will be noted, refers to arrests
without warrant, based on "pers onal knowledge
of facts" acquired by the arresting officer or
private person.
It has been ruled that "personal knowledge of
facts," in arrests without warrant must be based
upon probable cause, which means an actual
belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when,
in the absence of actual belief of the arresting
officers, the suspicion that the person to be
arrested is probably guilty of committing the
offense, is based on actual facts, i.e., supported
by circumstances sufficiently strong in
themselves to create the probable cause of guilt
of the person to be arrested. 10 A reasonable
suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the
peace officers making the arrest. 11
These requisites were complied with in the Umil
case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents,

on 1 February 1988, were dispatched to the St.
Agnes Hospital, Roosevelt Avenue, Quezon
City, to verify a confidential information which
was received by their office, about a "sparrow
man" (NPA member) who had been admitted to
the said hospital with a gunshot wound; that the
information further disclosed that the wounded
man in the said hospital was among the five (5)
male "sparrows" who murdered two (2) Capcom
mobile patrols the day before, or on 31 January
1988 at about 12:00 o'clock noon, before a road
hump along Macanining St., Bagong Barrio ,
Caloocan City; that based on the same
information, the wounded man's name was listed
by the hospital management as "Ronnie
Javellon," twenty-two (22) years old of Block
10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the
arresting officers, to the effect that an NPA
member ("sparrow unit") was being treated for a
gunshot wound in the named hospital, is deemed
reasonable and with cause as it was based on
actual facts and supported by circumstances
sufficient to engender a belief that an NPA
member was truly in the said hospital. The actual
facts supported by circumstances are: first the
day before, or on 31 January 1988, two (2)
CAPCOM soldiers were actually killed in
Bagong Bario, Caloocan City by five (5)
"sparrows" including Dural; second a
wounded person listed in the hospital records as
"Ronnie Javellon" was actually then being
treated in St. Agnes Hospital for a gunshot
wound; third as the records of this case
disclosed later, "Ronnie Javellon" and his
address entered in the hospital records were
fictitious and the wounded man was in reality
Rolando Dural.
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In fine, the confidential information received by

the arresting officers merited their immediat e
attention and action and, in fact, it was found to
be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential
information of the arresting officers to the effect
that Dural was then being treated in St. Agnes
Hospital was actually received from the
attending doctor and hospital management in
compliance with the directives of the law, 14
and, therefore, came from reliable sources.
As to the condition that "probable cause" must
also be coupled with acts done in good faith by
the officers who make the arrest, the Court notes
that the peace officers wno arrested Dural are
deemed to have conducted the same in good
faith, considering that law enforcers are
presumed to regularly perform their official
duties. The records show that the arresting
officers did not appear to have been illmotivated in arresting Dural. 15 It is therefore
clear that the arrest, without warrant, of Dural
was made in compliance with the requirements
of paragraphs (a) and (b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that
a few day after Dural's arrest, without warrant,
an information charging double murder with
assault against agents of persons in authority
was filed against Dural in the Regional Trial
Court of Caloocan City (Criminal Case No. C30112). He was thus promptly placed under
judicial custody (as distinguished fro custody of
the arresting officers). On 31 August 1988, he
wa convicted of the crime charged and
sentenced to reclusion perpetua. The judgment
of conviction is now on appeal before this Court
in G.R. No. 84921.

Atty. Mamburam
As to Amelia Roque and Wilfredo Buenaobra

(G.R. Nos. 84581-82), Domingo Anonuevo and
Ramon Casiple (G.R. Nos. 84583-84) and Vicky
Ocaya (G.R. No. 83162), their arrests, without
warrant, are also justified. They were searched
pursuant to search warrants issued by a court of
law and were found wit unlicensed firearms ,
explosives and/or ammunition in their persons.
They were, therefore, caught in flagrante delicto
which justified their outright arrests without
warrant, under Sec 5(a), Rule 113, Rules of
Court. Parenthetically, it should be mentioned
here that a few davs after their arrests without
warrant, informations were filed in court against
said petitioners, thereby placing them within
judicial custody and disposition. Furthermore,
Buenaobra mooted his own petition fo habeas
corpus by announcing to this Court during the
hearing of these petitions that he had chosen to
remain in detention in the custody of the
authorities.
More specifically, the antecedent facts in the "in
flagrante" cases are:
1.
On 27 June 1988, the military agents
received information imparted by a former NPA
about the operations of the CPP and NPA in
Metro Manila and that a certain house occupied
by one Renato Constantine, located in the
Villaluz Compound, Molave St., Marikin a
Heights, Marikina, Metro Manila was being
used as their safehouse; that in view of this
information, the said house was placed under
military surveillance and on 12 August 1988,
pursuant to a search warrant duly issued by
court, a search of the house was conducted; that
when Renato Constantine was then confronted
he could not produce any permit to possess the
firearms, ammunitions, radio and other

communications equipment, and he admitted
that he was a ranking member of the CPP. 16
2.
In the case of Wilfredo Buenaobra, he
arrived at the house of Renato Constantino in the
evening of 12 August 1988, and admitted that he
was an NPA courier and he had with him letters
to Renato Constantine and other members of the
rebel group.
3.
On the other hand, the arrest of Amelia
Roque was a consequence of the arrest of
Buenaobra who had in his possession papers
leading to the whereabouts of Roque; 17 that, at
the time of her arrest, the military agents found
subversive documents and live ammunitions ,
and she admitted then that the documents
belonged to her. 18
4.
As regards Domingo Anonuevo and
Ramon Casiple they were arrested without
warrant on 13 August 1988, when they arrived
at the said house of Renato Constantine in the
evening of said date; that when the agents
frisked them, subversive documents, and loaded
guns were found in the latter's possession but
failing to show a permit to possess them. 19
5.
With regard to Vicky Ocaya, she was
arrested, without warrant when she arrived (on
12 May 1988) at the premises ofthe house of one
Benito Tiamzon who was believed to be the
head of the CPP/NPA, and whose house was
subject of a search warrant duly issued by the
court. At the time of her arrest without warrant
the agents of the PC-Intelligence and
Investigation
found
ammunitions
and
subversive documents in the car of Ocaya. 20
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It is to be noted in the above cases (Roque,
Buenaobra, Anonuevo, Casiple and Ocaya) that
the reason which compelled the military agents
to make the arrests without warrant was the
information given to the military authorities that
two (2) safehouses (one occupied by Renato
Constantine and the other by Benito Tiamzo n )
were being used by the CPP/NPA for their
operations, with information as to their exact
location and the names of Renato Constantine
and Benito Tiamzon as residents or occupants
thereof.
And at the time of the actual arrests, the
following circumstances surrounded said arrests
(of Roque, Buenaobra, Anonuevo and Casiple),
which confirmed the belief of the military agents
that the information they had received was true
and the persons to be arrested were probably
guilty of the commission of certain crimes: first:
search warrant was duly issued to effect the
search of the Constantine safehouse; second:
found in the safehouse was a person named
Renato Constantine, who admitted that he was a
ranking member of the CPP, and found in his
possession were unlicensed firearms and
communications equipment; third: at the time of
their arrests, in their possession were unlicensed
firearms, ammunitions and/or subversive
documents, and they admitted ownership thereof
as well as their membership in the CPP/NPA .
And then, shortly after their arrests, they were
positively identified by their former comrades in
the organization as CPP/NPA members. In view
of these circumstances, the corresponding
informations were filed in court against said
arrested persons. The records also show that, as
in the case of Dural, the arrests without warrant
made by the military agents in the Constantino
safehouse and later in the Amelia Roque house,

Atty. Mamburam
do not appear to have been ill-motivated or
irregularly performed.
With all these facts and circumstances existing
before, during and after the arrest of the aforenamed persons (Dural, Buenaobra, Roque,
Anonuevo, Casiple and Ocaya), no prudent an
can say that it would have been better for the
military agents not to have acted at all and made
any arrest. That would have been an
unpardonable neglect of official duty and a
cause for disciplinary action against the peace
officers involved.
For, one of the duties of law enforcers is to arrest
lawbreakers in order to place them in the hands
of executive and judicial authorities upon whom
devolves the duty to investigate the acts
constituting the alleged violation of law and to
prosecute and secure the punishment therefor.
21 An arrest is therefore in the nature of an
administrative measure. The power to arrest
without warrant is without limitation as long as
the requirements of Section 5, Rule 113 are met.
This rule is founded on an overwhelming public
interest in peace and order in our communities.
In ascertaining whether the arrest without
warrant is conducted in accordance with the
conditions set forth in Section 5, Rule 113, this
Court determines not whether the persons
arrested are indeed guilty of committing the
crime for which they were arrested. 22 Not
evidence of guilt, but "probable cause" is the
reason that can validly compel the peace
officers, in the performance of their duties and
in the interest of public order, to conduct an
arrest without warrant. 23
The courts should not expect of law-enforcers

more than what the law requires of them. Under
the conditions set forth in Section 5, Rule 113,
particularly paragraph (b) thereof, even if the
arrested persons are later found to be innocent
and acquitted, the arresting officers are not
liable. 24 But if they do not strictly comply with
the said conditions, the arresting officers can be
held liable for the crime of arbitrary detention,
25 for damages under Article 32 of the Civ il
Code 26 and/or for other administrative
sanctions.
In G.R. No. 85727, Espiritu, on 23 November
1988, was arrested without warrant, on the basis
of the attestation of certain witnesses: that about
5:00 o'clock in the afternoon of 22 November
1988, at the corner of Magsaysay Boulevard and
Velencia St., Sta. Mesa, Manila, Espiritu spoke
at a gathering of drivers and sympathizers,
where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa
magkagulona. 27 (Emphasis supplied)
and that the police authorities were present
during the press conference held at the National
Press Club (NPC) on 22 November 1988 where
Espiritu called for a nationwide strike (of
jeepney and bus drivers) on 23 November 1988.
28 Espiritu was arrested without warrant, not for
subversion or any "continuing offense," but for
uttering the above-quoted language which, in
the perception of the arresting officers, was
inciting to sedition.
Many persons may differ as to the validity of
such perception and regard the language as
falling within free speech guaranteed by the
Constitution. But, then, Espiritu had not lost the
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right to insist, during the pre-trial or trial on the
merits, that he was just exercising his right to
free speech regardless of the charged
atmosphere in which it was uttered. But, the
authority of the peace officers to make the arrest,
without warrant, at the time the words were
uttered, or soon thereafter, is still another thing.
In the balancing of authority and freedom, which
obviously becomes difficult at times, the Court
has, in this case, tilted the scale in favor of
authority but only for purposes of the arrest (not
conviction). Let it be noted that the Court has
ordered the bail for Espiritu's release to be
reduced from P60,000.00 to P10,000.00.
Let it also be noted that supervening events have
made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court
a quo for re-investigation, the peace officers did
not appear. Because of this development, the
defense asked the court a quo at the resumption
of the hearings to dismiss the case. Case against
Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond
cancelled.
In G.R. No. 86332 (Nazareno), the records show
that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men
in Alabang, Muntinlupa, Metro Manila; that at
about 5:00 o'clock in the morning of 28
December 1988, Ramil Regala, one of the
suspects in the said killing, was arrested and he
pointed to Narciso Nazareno as one of his
companions during the killing of Bunye II; that
at 7:20 of the same morning (28 December
1988), the police agents arrested Nazareno,
without warrant, for investigation. 29

Atty. Mamburam
Although the killing of Bunye II occurred on 14
December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988,
or 14 days later, the arrest fans under Section
5(b) of Rule 113, since it was only on 28
December 1988 that the police authorities came
to know that Nazareno was probably one of
those guilty in the killing of Bunye II and the
arrest had to be made promptly, even without
warrant, (after the police were alerted) and
despite the lapse of fourteen (14) days to prevent
possible flight.
As shown in the decision under consideration,
this Court, in upholding the arrest without
warrant of Nazareno noted several facts and
events surrounding his arrest and detention, as
follows:
. . . on 3 January 1989 (or six (6) days after his
arrest without warrant), an information charging
Narciso Nazareno, Ramil Regala and two (2)
others, with the killing of Romulo Bunye II was
filed wit the Regional Trial Court of Makati,
Metro Manila. The case is dock eted therein as
Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a
motion to post bail but the motion was denied by
the trial court in an order dated 10 January 1989,
even as the motion to post bail, earlier filed by
his co-accused, Manuel Laureaga, was granted
by the same trial court.
On 13 January 1989, a petition for habeas corpus
was filed with this Court on behalf of Narciso
Nazareno and on 13 January 1989, the Court
issued the writ of habeas corpus, retumable to
the Presiding Judge of the Regional Trial Court
of Bifian, Laguna, Branch 24, ordering said
court to hear the case on 30 January 1989 and

thereafter resolve the petition.
At the conclusion of the hearing, or on 1
February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a
resolution denying the petition for habeas
corpus, it appearing that the said Narciso
Nazareno is in the custody of the respondents by
reason of an information filed against him with
the Regional Trial Court of Makati, Metro
Manila which liad taken cognizance of said case
and had, in fact, denied the motion for bail filed
by said Narciso Nazareno (presumably because
of the strength of the evidence against him).
This Court reiterates that shortly after the arrests
of Espiritu and Nazareno, the corresponding
informations against them were filed in court.
The arrests of Espiritu and Nazareno were based
on probable cause and supported by factual
circumstances. They complied with conditions
set forth in Section 5(b) of Rule 113. They were
not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that
Nazareno has since been convicted by the court
a quo for murder and sentenced to reclusion
perpetua. He has appealed the judgment of
conviction to the Court of Appeals where it is
pending as of this date ( CA-G.R. No. still
undocketed).
Petitioners contend that the decision of 9 July
1990 ignored the contitution requisiteds for
admissibility of an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82 ),
he admitted 30 that he was an NPA courier. On
the other hand, in the case of Amelia Roque, she
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admitted 31 that the unlicensed firearms ,
ammunition and subversive documents found in
her possession during her arrest, belonged to her.
The Court, it is true, took into account the
admissions of the arrested persons of their
membership in the CPP/NPA, as well as their
ammunitions and documents in their possession.
But again, these admissions, as revealed by the
records, strengthen the Court's perception that
truly the grounds upon which the arresting
officers based their arrests without warrant, are
supported by probable cause, i.e. that the
persons arrested were probably guilty of the
commission of certain offenses, in compliance
with Section 5, Rule 113 of the Rules of Court.
To note these admissions, on the other hand, is
not to rule that the persons arrested are already
guilty of the offenses upon which their
warrantless arrests were predicated. The task of
determining the guilt or innocence of persons
arrested without warrant is not proper in a
petition for habeas corpus. It pertains to the trial
of the case on the merits.
As to the argument that the doctrines in Garcia
vs. Enrile, and Ilagan vs. Enrile should be
abandoned, this Court finds no compelling
reason at this time to disturb the same,
particularly ln the light of prevailing conditions
where national security and liability are still
directly challenged perhaps with greater vigor
from the communist rebels. What is important is
that everv arrest without warrant be tested as to
its legality via habeas corpus proceeding. This
Court. will promptly look into and all other
appropriate courts are enjoined to do the same
the legality of the arrest without warrant so
that if the conditions under Sec. 5 of Rule 113,

Atty. Mamburam
Rules of Court, as elucidated in this Resolution,
are not met, then the detainee shall forthwith be
ordered released; but if such conditions are met,
then the detainee shall not be made to languish
in his detention but must be promptly tried to the
end that he may be either acquitted or convicted,
with the least delay, as warranted by the
evidence.
Separate Opinions
FERNAN, C.J., concurring and dissenting:

A Final Word
This Resolution ends as it began, reiterating that
mere suspicion of being a Communist Party
member or a subversive is absolutely not a
ground for the arrest without warrant of the
suspect. The Court predicated the validity of the
questioned arrests without warrant in these
petitions, not on mere unsubstantiated suspicion,
but on compliance with the conditions set forth
in Section 5, Rule 113, Rules of Court, a long
existing law, and which, for stress, are probable
cause and good faith of the arresting peace
officers, and, further, on the basis of, as the
records show, the actual facts and circumstances
supporting the arrests. More than the allure of
popularity or palatability to some groups, what
is important is that the Court be right.
ACCORDINGLY,
the
motions
for
reconsideration of the decision dated 9 July
1990, are DENIED. This denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla,
Bidin, Grio-Aquino, Medialdea and Davide,
Jr., JJ., concur.
After a deep and thorough reexamination of the

decision of Julv 9, 1990 and an exhaustive
evaluation of the motions for reconsideration of
the said decision, I am inclined to agree with the,
majority's resolution on said motions for
reconsideration except for the legality of the
warrantless arrests of petitioner Deogracias
Espiritu for the crime of inciting to sedition and
petitioner Alfredo Nazareno for the crime of
murder.
In the words of the resolution, Espiritu "was
arrested without warrant, not for subversion or
any 'continuing offense,' but for uttering" the
following: "Bukas tuloy ang welga natin . . .
hanggang sa magkagulo na." Apparently, such
statement was, in the perception of the arresting
officers, inciting to sedition. While not
conceding the validity of such perception,
realizing that it is indeed possible that Espiritu
was merely exercising his right to free speech,
the resolution nonetheless supports the authority
of peace officers "only for purposes of the
arrest."
I find this position to be adverse to the very
essence of the resolution which sanctions
warrantless arrests provided they are made in
accordance with law. In the first place, Espiritu
mav not be considered as having "just
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committed" the crime charged. He allegedly first
uttered seditious remarks at the National Press
Club in the afternoon of November 12, 1988.
The second allegedly seditious remark
aforequoted was made at around 5:00 o'clock in
the same afternoon (Decision, pp. 23-24). Under
these circumstances, the law enforcement agents
had time, short though it might seem, to secure
a warrant for his arrest. Espiritu's apprehension
may not therefore be considered as covered by
Section 5(b) of Rule 113 which allows
warrantless arrests "when an offense has in fact
just been committed."
The same observation applies with greater force
in the case of Nazareno who was arrested 14
days after the commission of the crime imputed
to him.
Secondly, warrantless arrests may not be
allowed if the arresting officer are not sure what
particular provision of law had beeri violated by
the person arrested. True it is that law
en.orcement agents and even prosecutors are not
all adept at the However, errneous perception,
not to mention ineptitude among their ranks,
especially if it would result in the violation of
any right of a person, may not be tolerated. That
the arrested person has the "right to insist during
the pre-trial or trial on the merits" (Resolution.,
p. 18) that he was exercising a right which the
arresting officer considered as contrary to law,
is beside the point. No person should be
subjected to the ordeal of a trial just because the
law enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous
crime for which the offender may be arrested
without a warrant duly issued by the proper
authority. By its nature, a single act of urging

Atty. Mamburam
others to commit any of the acts enumerated in
Article 142 of the Revised Penal Code may
suffice to hold anyone liable for inciting to
sedition. While the crime is aimed at anarchy
and radicalism and presents largely a question of
policy (Espuelas vs. People, 90 Phil, 524
[1951]), it should be remembered that any of the
prohibited acts in Article 142 may infringe upon
the fundamental freedoms of speech and
expression. There arises, therefore, the necessity
of balancing interests; those of the State as
against those of its individual citizen. Here lies
the urgency of judicial intervention before an
arrest is made. Added to this is the subjectivity
of the determination of what may incite other
people to sedition. Hence, while the police
should act swiftly when a seditious statement
has been uttered in view of the jeopardy it may
cause the government, speedy action should
consist not in warrantless arrests but in securing
warrants for such arrests.
On the legality of warrantless arrests of violators
of the Anti-Subversion Law, it should be
underscored that anyone who undertakes such
arrest must see to it that the alleged violator is
knowing member of a subversive organization
as distinguished from a nominal one (People vs.
Ferrer, L-32613-14, December 27, 1972, 48
SCRA 382). Thus, a subversive may be arrested
even if has not committed overt act of
overthrowing the government such as bombing
of government offices trie assassination of
government officials provided there is probable
cause to believe that he is in the roll of members
of a subversive organization. It devolves upon
the accused to prove membership by force or
ciorcion. Certainly, one may not be in such a roll
without undergoing the concious act of
enlistment.
It bears repeating theat warrantless arrests are

governed by law and subject to stringent
application. Section 5, Rule 113 of the Rules on
Criminal Procedure now requires that an offense
"has in fact just been committed. "connotes
immediacy in point of time and excludes cases
under the old rule where an offense 'has in fact
been committed' no how long ago. Similarly, the
arrestor must have 'personal knowledge of the
facts indicating that the [arrestee] has committed
it' (instead of just 'reasonable ground believe that
the [arrestee] has committed it' under the old
rule)." (Dissenting opinion in Ilagan vs. Enrile,
G.R. No. 70748, October 21, 1985, 139 SCRA
349, 408).
I deem it aptherein to recall other Court rulings
provide guidelines in effecting arrests without
warrants. In People vs. Burgos (G.R. No. 68955,
September 4, 1986,144 SCRA 1), the Court
considered as illegal the warrantless arrest of a
subversive not based on the arresting officer's
personal knowledge such subversion and held
that any rule on arrests witho warrants must be
strictly construed. We categorically state therein
that warrantless arrests should "clearly fall
within the situations when securing a warrant be
absurd or is manifestly unnecessary was
provided by the Rules" (144 SCRA at 14).
Moreover. "it is not enough that there is
reasonable ground to believe that the person to
be arrested has committed a crime. A crime must
in fact or actually (has just) been committed
first. That crime has actually been committed is
an essential precondition. It is not enough to
suspect that a crime may have been committed.
The fact of the commission of the offense must
be undisputed. The test of reasonable ground
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Atty. Mamburam
applies only to the identity of the perpetrator.

(Supra, at p. 15).
civic duty demands his intervention to preserve

peace in the community.
Earlier, in Morales, Jr. vs. Enrile (G.R. No.

61016, April 26, 1983, 121 SCRA 538), the
Court laid out the procedure to be observed the
moment a person is arrested:
I am not unmindful of the fact that abuses occur

in arrests especially of offenders of crimes with
a political or ideological element. Such abuses
are more often than not, triggered by the
difficulty in finding evidence that could stand
judicial scrutiny to pinpoint a subversive,
police officers usually have to make long
persistent surveillance. However, for the orderly
administration of government and the
maintenance of peace and order in the country,
good faith should be reposed on the officials
implementing the law. After all, we are not
wanting in laws to hold any offending peace
officer liable both administratively and
criminally for abuses in the performance of their
duties. Victims of abuses should resort to legal
remedies to redress their grievances.
At the time a person is arrested, it shall be the

duty of the arresting officer to imform him of the
reason for the arrest and he must be shown the
warrant of arrest, if any. He shall be informed of
his constitutional rights to remain silent and to
counsel, and that any statement he might make
could be used against him. The person shall have
the right to communicate with his lawyer, a
relative, or anyone he chooses by the most
expedient means by telephone if possible
or by letter or messenger. It shall be the
responsibility of the arresting officer to see to it
that this is accomplished. No custodial
investigation shall be conducted unless it be in
the presence of counsel engaged by the person
arressted, by any person on his behalf, or
appointed by the court upon petition on his
behalf, or appointed the court upon the petition
either of the detainee himself or by anyone on
his behalf. The right to counsel may be waived
but the waiver shall not be valid unless made
with the assistance of counsel. Any statement
obtained in violation of the procedure herein laid
down, whether exculpatory or inculpatory, in
whole or in part shall be inadmissible evidence.
(121 SCRA at 554).
These judicial pronouncements must be
observed by everyone concerned: the military
and civilian components of the government
tasked with law enforcement as well as the
ordinary citizen who faces a situation wherein
If existing laws are inadequate, the policydetermining branches of the government may be
exhorted peacefully by the citizenry to effect
positive changes. This Court, mandated b the
Constitution to uphold the law, can only go as
far as inter pruting existing laws and the spirit
behind them. Otherwise, we hail be entering the
dangerous ground of judicial legislation.
GUTIERREZ,
dissenting:
JR.,
J.,
concurring
and
The philosophy adopted in our Constitution is

that liberty is an essential condition for order, It
is disturbing whenever the Court leans in the
direction of order instead of liberty in har cases
coming before us.
People all over the world are fast accepting the

theory that only as a society encourages freedom
and permits dissent can it have lasting security
and real progress, the theory that enhancing
order through constraints on freedom is
deceptive because restrictions on liberty corrode
the very values Govenment pretends to promote.
I believe we should move with the people of the
world who are fast liberating themselves.
I, therefore, vote for the strict application of
Section 5 (a) and (b) of Rule 113 on arrests
without warrant, to wit:
Sec. 5. Arrest without warrant; when lawful.
A peace officer or a private person may,
without a warrant, arrest a person:
(a)
When, in his presence, the person to be
(b)
facts indicating that the person to be arrested has
committed it.
xxx
xxx
xxx
Only in the cases found in the Rule should we

allow arrests without warrants. In case of doubt,
the tendency should be to declare the warrantless
arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos.
84583-84 and G.R. No. 83162 involving Amelia
Roque,
Wilfredo
Buenaobra,
Domingo
Anonuevo, Ramon Casiple, and Vicky Ocaya
are concerned, the petitioners were arrested after
having been apprehended while in possession of
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Atty. Mamburam
illegal firearms and ammunitions. They were

actually committing a crime when arrested. I
concur in the denial of their motions for
reconsideration.
of all freedoms, which is freedom of expression.

At the very least, a warrant of arrest after a
preliminary examination by a Judge is essential
in this type of offense.
I vote to grant the motion for reconsideration in

G.R. No. 85727 where Deogracias Espiritu was
arrested while urging jeepnev and bus drivers to
join a strike of transport workers on the ground
that that was inciting to sedition.
Insofar as G.R. No. 81567 is concemed, I join

the other dissenting Justices in their
observations regarding "continuing oftenses."
To base warrantless arrests on the doctrine of
continuing offense is to give a license for the
illegal detention of persons on pure suspicion.
Rebellion, insurrection, or sedition are political
offenses where the line between overt acts and
simple advocacy or adherence to a belief is
extremely thin. If a court has convicted an
accused of rebellion and he is found roaming
around, he may be arrested. But until a person is
proved guilty, I fail to see how anybody can
jump to a personal conclusion that the suspect is
indeed a rebel and must be picked up on sight
whenever seen. The grant of authority in the
majority opinion is too broad. If warrantless
searches are to be validated, it should be
Congress and not this Court which should draw
strict and narrow standards. Otherwise, the nonrebels who are critical, noisy, or obnoxious will
be indiscriminately lumped up with those
actually taking up arms against the Government .
This impresses me as Court validation of a clear

infringement of an individual's freedom of
speech. "Inciting to sedition" is a term over
which the most learned writers and jurists will
differ when applied to actual cases. I doubt if
there are more than a handful of policemen in
the whole country who would know the full
dimensions of the fine distinctions which
separate the nation's interest in the liberty to
fully anfd freely discuss matters of national
importance on one hand and the application of
the clear and present danger rule as the test when
claims of national security and public safety are
asserted, on the other. In fact, the percentage of
knowledgeability would go down further if we
consider that "inciting to sedition" requires the
ability to define, among other (1) what kinds of
speeches or writings fall lander the term
"inciting" (2) the meaning of rising publicly and
tumultously; (3,) when does a certain effort
amount to force, intimidation. or illegal method;
(4) what constitute the five objects or ends of
sedition; and (5) what is a scurrilous libel against
the Philippines. If we allow public speakers to
be picked up simply because what they say is
irritating or obnoxious to the ears of a peace
officer or critical of government policy and
action, we will undermine all pronouncements
of this Court on the need to protect that mat rix
The belief of law enforcement authorities, no

matter how well grounded on past events, that
the petitioner would probably shoot other
policemen whom he may meet does not validate
warrantless arrests. I cannot understand why the
authorities preferred to bide their time, await the
petitioner's surfacing from underground, and
pounce on him with no legal authority instead of
securing warrants of arrest for his apprehension.
The subsequent conviction of a person arrested
illegally does not the warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on

December 14, 1988. The information that
Narciso Nazareno was one of the killers came to
the attention of peace officers only on December
28, 1988 or fourteen (14) days later. To say that
the offense "has in fact just been committed"
even if 14 days have lapsed is to stretch Rule 11
3 on warrantless arrests into ridiculous limits. A
warrant of arrest is essential in this case. I vote
to grant the motion for reconsideration.
The subsequent conviction of a pers on arrested
illegally does not reach back into the past and
render legal what was illegal. The violation of
the constitutional right against illegal seizures is
not cured by the fact that the arrested person is
indeed guilty of the offense for which he was
seized. A government of laws must abide by its
own Constitution.
CONSIDERING THE FOREGOING, I VOTE
TO:
(1)
DENY the motions for reconsideration
in G.R. Nos. 84581-82; G.R. No. 84583-84; and
G.R. No. 83162;
(2)
GRANT the motion for reconsideration
in G.R. No. 85727;
(3)
in G.R. No. 86332;and
(4)
in G.R. No. 81567.
CRUZ, J., Separate Opinion:
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I reiterate my concurrence with the ponencia
insofar as it dismissed the petitions of those who
were arrested in flagrante, or subsequently
posted bail or chose to remain in the custody of
the military, or voluntarily permitted the search
of the house without warrant. I do not think that
under the applicable circumstances the
petitioners can validly complain that they are
being unlawfully detained.
But I must again express may dissent to the
continued observance of Garcia-Padilla vs.
Enrile, 121 SCRA 472, to justify the warrantless
arrest and detention of the other petitioners on
the ground that they were apprehended for the
continuing offenses of rebellion and other allied
crimes.
We find in the said decision this partltularly
disturbing observation, which was quoted with
approval in the original ponencia:
The arrest of persons involved in the rebellion ,
whether as its fighting armed elements, or for
committing non-violent acts but in furtherance
of the rebellion, is more an act of capturing them
in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediat ely
prosecuting them in court for a statutory offense.
The arrest, therefore, need not follow the usual
procedure in the prosecution of offenses which
requires the determination by a judge of the
existence of probable cause before the issuance
of arrest and the granting of bail of the offense
is bailable. Obviously, the absence of a judicial
warrant is no legal impediment to arresting or
capturing persons committing overt acts of
violence against govenment forces, or any other
milder acts but equally in pursuance of the
rebellious movement. (Emphasis supplied.)

Atty. Mamburam
The treatment suggested envisions an actual

state of war and is justified only when a
recognition of beuigerency is accorded by the
legitimate government to the rebels, resulting in
the application of the laws of war in the
regulation of their relations. The rebels are then
considered alien enemies -to be treated as
prisoners of war when captured-and cannot
invoke the municipal law of the legitimat e
government they have disowned. It is in such a
situation that the processes of the local courts are
not observed and the rebels cannot demand the
protection of the Bill of Rights that they are
deemed to have renounced by their defiance of
the government.
But as long as that recognition has not yet been
extended, the legitimate govenment must treat
the rebels as its citizens, subject to its municipal
law and entitled to all the rights provided
thereunder, including and especially those
guaranteed by the Constitution. Principal among
these in our country are whose embodied
in the Bill of Rights, particularly those
guaranteeing
due
process,
prohibiting
unreasonable searches and seizures, allowing
bail, and presuming the innocence of the
accused. The legitimate government cannot
excuse the suppression of these rights by the
"exigencies" of an armed conflict that at this
time remains an intemal matter governed
exclusively by the laws of the Republic of the
Philippines.
Treatment of the rebels as if they were foreign
invaders or combatants is not justified in
the present situation as our government
continues to prosecute them as violators of our
own laws. Under the doctrine announced in
Garcia-Padilla, however, all persons suspected

as rebels are by such suspicion alone made
subject to summary arrest no different from the
unceremonious capture of an enemy soldier in
the course of a battle. The decision itself says
that the arrest "need not follow the usual
procedure in the prosecution of offenses" and
"the absence of a judicial warrant is no
impediment" as long as the person arrested is
suspected by the authorities of the "continuing
offense" of subversion or rebellion or other
related crimes. International law is thus
substituted for municipal law in regulating the
relations of the Republic with its own citizens in
a purely domestic matter.
As for the duration of the offenses, the decision
contained the following pronouncement which
this Court has also adopted as its own:
. . . The crimes of insurrection or rebellion ,
subversion, conspiracy or proposal to commit
such crimes, and other crimes and offenses
committed in the furtherance on the occasion
thereof, or incident thereto, or in connection
therewith under Presidential Proclamation No.
2045, are all in the nature of continuing offenses
which set them apart from the common offenses,
aside front their essentially involving a massive
conspiracy of nationwide manitude. (Emphasis
supplied.)
The beginning of the "continuing offense" may
be arbitrarily fixed by the authorities, usually by
simply placing the suspect "under surveillance,"
to lay the basis for his eventual apprehension.
Once so placed, he may at any time be arrested
without warrant on the specious pretext that he
is in the process of committing the "continuing
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offense," no matter that what he may be actuallly
doing at the time is a perfectly innocent act.
In the case of Dural. the arrest was made while
he was engaged in the passive and innocuous act
of undergoing medical treatment. The fiction
was indulged that he was even then, as he lay
supine in his sickbed, engaged in the continuing
offense of rebellion against the State. In further
justification, the Court says that the arresting
officers acted on "confidential information" that
he was in the hospital, which information "was
found to be true." This is supposed to have
validated the determination of the officers that
there was "probable cause" that excused the
absence of a warrant.
My own impression is that probable cause must
be established precisely to justify the issuance of
a warrant, not to dispense with it; moreover,
probable cause must be determined by the judge
issuing the warrant, not the arresting officer who
says it is not necessary.
In the case of Espiritu, the arrest was made while
he was actually sleeping, and for allegedly
seditious remarks made by him the day before.
The Court says his case is not covered by the
Garcia-Padilla doctrine but approves the arrest
just the same because the remarks were
supposed to continue their effects even to the
following day. The offense was considered as
having been just committed (to make it come
under Rule 113, Section 5, of the Rules of Court)
despite the considerable time lapse.
It was worse in the case of Nazareno, who was
also arrested without warrant, and no less than
fourteen days after the killing. In sustaining this
act, the Court says that it was only on the day of

Atty. Mamburam
his arrest that he was identified as one of the
probable killers, thus suggesting that the validity
of a warrantless arrest is reckoned not from the
time of the commission of an offense but fro m
the time of the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer
may arrest a person without a warrant if the latter
"has committed, is actually committing, or is
attempting to commit an offense" or when an
offense "has in fact just been committed." The
requirement of immediacy is obvious from the
word "just," which, according to Webster,
means "a very short time ago." The arrest must
be made almost immediately or soon after these
acts, not at any time after the suspicion of the
arresting officer begins, no matter how long ago
the offense was committed.
I am also uneasy over the following observations
in the present resolution which I hope will not
be the start of another dangerous doctrine:
The Court, it is true, took into account the
admissions of the arrested persons of their
membership in the CPP/NPA, as well as their
ammunitions and documents in their possession.
But again, these admissions, as revealed by the
records, strengthen the Court's perception that
truly the grounds upon wmch the arresting
officers based their arrests without warrant, are
supported by probable cause, i.e., that the
persons arrested were probably guilty of the
commission of certain offenses, in compliance
with Section 5, Rule 113 of the Rules of Court.
I can only repeat my own misgivings when I
dissented in the recent case of People vs.
Malmstedt, G.R. No. 91107, June 19, 1991,
where I noted: "The conclusion that there was

probable cause may have been influenced by the
subsequent discovery that the accused was
carrying a prohibited drug. This is supposed to
justify the soldier's suspicion. In other words, it
was the fact of illegal possession that
retroactively established the probable cause that
validated the illegal search and seizure. It was
the fruit of the poisonous tree that washed clean
the tree itself."
I submit that the affirmation by this Court of the
Garcia-Padilla decision to justify the illegal
arrests made in the cases before us is a step back
to that shameful past when individual rights
were wantonly and systematically violated by
the Marcos dictatorship. It seems some of us
have short memories of that repressive regime,
but I for one am not one to forget so soon. As the
ultimate defender of the Constitution, this Court
should not gloss over the abuses of those who,
out of mistaken zeal, would violate individual
liberty in the dubious name of national security.
Whatever their ideology and even if it be hostile
to ours, the petitioners are entitled to the
protection of the Bill of Rights, no more and no
less than any other person in this country. That
is what democracy is all about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in
the Resolution disposing of the Motion for
Reconsideration.
At the same time, however, I feel compelled to
dissent from certain statements made by the
majority principally concerning the applicabilit y
of the "continuing crimes" doctrine to the
problem of arrests without warrants. It seems
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clear that these statements are really obiter dicta,
since they are quite unnecessary for sustaining
the actual results reached in the majority
Resolution. This was summarily pointed out in
my very brief statement concurring in the result
reached in the original Decision of the Court
dated 9 July 1990.
The subsequent
developments in several of the cases here
consolidated, which are carefully detailed in the
majority Resolution, make this even clearer.
Nonetheless, the majority Resolution has taken
the time and trouble expressly to reiterate the
"continuing crimes" doctrine as applicable in
respect of warrantless arrests. Although the
above statements are obiter, they have been
made and, I believe, need to be addressed to
some extent and the inter-relation of the
"continuing crimes" doctrine with constitutional
rights explored.
1.
We start at the beginning, that is, the
constitutional guarantee against unreasonable
seizures of persons. Article III Section 2 of the
Constitution reads:
Sec. 2. The right of the people to be secure in
their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
(Emphais supplied)
Under the above provision, arrests, i.e., the
constraint and seizure of the persons of

Atty. Mamburam
individual members of society, must, as a
general rule, be preceded by the securing of a
warrant of arrest, the rendition of which
complies with the constitutional procedure
specified in Article III Section 2. Arrests made
without a warrant issued by a judge after
complying with the constitutional procedure, are
prima facie unreasonable seizures of persons
within the meaning of Article III Section 2.
2.
There are, however, certain wellrecognized exceptions to the norm that
warrantless arrests are unreasonable seizures of
persons. Those exceptions are, in our day,
essentially found in Section 5(a) and (b) of Rule
113 of the Rules of Court. Section 5(a) and (b)
mark out the situations where an officer of the
law, or a private person for that matter, may
lawfully arrest a person without previously
securing a warrant of arrest. The full text of
Section 5, Rule 113 follows:
Sec. 5. Arrest without warrant, when lawful.
A peace officer or a private person may, without
a warrant, arrest a person:
(a)
(b)
committed it; and
(c)
When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving final
judgment or temporarily confined while his case
is pending, or has escaped while being

transferred from one confinement to another.
In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police
station or jail, and he shall be proceeded against
in accordance with Rule 112, Section 7.
3.
Before examining the scope and
implications of Section 5(a) and (b), it is
important to recall that judicial interpretation
and application of Section 5(a) and (b) must take
those provision for what they are: they are
exceptions to a vital constitutional norm
enshrined in the Bill of Rights. Exceptions to
such a norm must be strictly construed so as not
to render futile and meaningless the
constitutional rule requiring warrants of arrests
before the persons of individuals may be
lawfully constrained and seized. The ordinary
rule generally applicable to statutory provisions
is that exceptions to such provisions must not be
stretched beyond what the language in which
they are cast fairly warrants, and all doubts
should be resolved in favor of the general
provision, rather than the exception. 1 This rule
must apply with special exigency and cogency
where we deal, not with an ordinary statutory
provision, but with a constitutional guarantee. 2
Exceptions to such a guarantee must be read
with especial care and sensitivity and kept
within the limits of their language so to keep
vital and significant the general constitutional
norms warrantless arrests. In Alvarez vs. Court
of First Instance, 3 this Court, stressing that:
II.
As the protection of the citizen and the
maintenance of his constitutional rights is one of
the highest duties and privileges of the court.
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these constitutional guaranties should be given a
liberal construction or a strict construction in
favor of the individual, to prevent stealthy
encroachment upon, or gradual depreciation of,
the rights secured by them (State vs. Custer
County, 198 Pac., 362; State vs. McDaniel, 231
Pac., 965; 237 Pac., 373). Since the proceeding
is a drastic one, it is the general rule that statutes
authorizing searches and seizures or search
warrants must be strictly construed (Rose vs. St.
Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed.
[2d], 353; Perry vs. U.S., 14 Fed. [2d], 88; Cofer
vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are
unreasonable whith lawful ones are reasonable.
4
In People vs. Burgos, 5 this Court reiterated the
above rule in the following terms:
There is no such personal knowledge in this
case. Whatever knowledge was possessed by the
arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The
location of the firearm was given by the
appellant's wife.
At the time of the appellant's arrest, he was not
in actual possession of any firearm or subversive
document. Neither was he commit ting any act
which could be described as subversive. He was,
in fact plowing his field at the time of the arrest.
The right of a person to be secure against any
unreasonable seizure of his body and any
deprivation of his liberty is a most basic and
fundamental one. The statute or rule which

Atty. Mamburam
allows exceptions the requirement of warrants of
arrest is strictly construed. Any exception must
clearly fall within the situations when securing a
warrant would be absurd or is manifestly
unnecessary as provided by the Rule. We cannot
liberally construe the rule on arrests without
warrant or extend its application beyond the
cases specifically provided by law. To do so
would infringe upon personal liberty and set
back a basic right so often vilated and so
deserving of full protection. 6 (emphasis
supplied)
4.
Section 5(a) relates to situations where
a crime is committed or attempted to be
committed in the presence of the arresting
officer. The fact of the occurrence of the offense,
or of the attempt to commit an offense, in the
presence of the arresting officer, may be seen to
be the substitute, under the circumstances, for
the securing of a warrant of arrest. In such
situation, there is an obvious need for
immediate, even instantaneous, action on the
part of the arresting officer to suppress the
breach of public order and to prevent further
breaches then and there. Section 5(a) may,
moreover, be seen to refer to overt acts
constitutive of a crime taking place in the
presence of the arresting officer. The term
"presence" in this connection is properly and
restrictively construed to relate to acts taking
place within the optical or perhaps auditory
perception of the arresting officer. 7 If no overt,
recognizably criminal, acts occur which are
perceptible through the senses of the arresting
officer, such officer could not, of course,
become aware at all that a crime is being
committed or attempted to be committed in his
presence. 8 It is elementary that purely mental or
psychological phenomena, not externalized in
overt physical acts of a human person, cannot

constitute a crime in our legal system. For a
crime to exist in our legal law, it is not enough
that mens rea be shown; there must also be an
actus reus. If no such overt acts are actually
taking place in the presence or within the sensor
perception of the arresting officer, there would,
in principle, be ample time to go to a magistrate
and ask for a warrant of arrest. There would, in
other words, not be that imperious necessity for
instant action to prevent an attempted crime, to
repress the crime being committed, or to capture
the doer of the perceive criminal act, the
necessity which serves as the justification in law
of warrantless arrests under Section 5(a).
5.
Turning to Section 5 (b), two (2)
elements must be coincide before a warrantless
arrest may be sustained under this subsection: 1)
the offense must have "just been committed"
when the arresting officer arrived in the scene;
and 2) the officer must have "personal
knowledge" of facts indicating tha the person to
be arrested has committed the offense. In
somewhat different terms, the first requirement
imports that th effects or corpus of the offense
which has just been committed are still visible:
e.g. a person sprawled on the ground, dead of
gunshot wound; or a person staggering around
bleeding profusely from stab wounds. The
arresting officer may not ha seen the actual
shooting or stabbing of the victim, and thereto
the offense can not be said to have been
committed "in [his] presence." The requirement
of "personal knowledge" on the part of the
arresting officer is a requirement that such
knowledge must have been obtained directly
from sense perception the arresting officer. That
requirement
would
exclude
informtio n
conveyed by another person, no matter what his
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reputation for, truth and reliability might be. 9
Thus, where the arresting officer comes upon a
person dead on the street and sees a person
running away with a knife from where the victim
is sprawled the ground, he has personal
knowledge of facts which render it highly
probable that the person fleeing was the doer of
the criminal deed. The arresting officer must, in
other words, perceive through his own senses
some act which directly connects the person to
be arrested with the visible effects or corpus of
a crime which has "just been committed."
6.
The use of the words "has in fact just
been committed" underscores the requirement
that the time interval between the actual
commission of the crime and the arrival of the
arresting officer must be brief indeed. In the first
place, the word "just" was fairly recently
inserted in Section 5(b) by the 1985 Rules on
Criminal Procedures, no doubt in order to
underscore the point here being made. In the
second place, a latitudinarian view of the phrase
"has in fact just been committed" would
obviously render pointless the requirement in
Section 5(a) that the crime must have been
committed "[in] the presence" of the arresting
officer. In G.R. No. 86332, the warrantless arrest
of Alfredo Nazareno 14-days after the
occurrence of the killing with which he was
charged along with other persons, cannot by any
standard be justified under Section 5(b). In G.R.
No. 81567, Dural was arrested without warrant
while being treated in a hospital the day after the
shooting of the policemen in which he was
suspected to have been a participant. While 1day may be substantially different from 14-days,
still it must be pointed out that at the time Dural
was arrested in the hospital, the killing of the
two (2) policemen in Caloocan City far away

Atty. Mamburam
from the St. Agnes Hospital in Quezon City
could not reasonably be said to have been just
committed. There was no showing, nor did the
Court require it, that the arresting officers had
been in "hot pursuit" of Dural beginning at the
scene of the killing and ending the next day in
the hospital.
7.
It is worth noting that the requisite of
"personal knowledge" on the part of the
arresting officer who is determining "probable
cause" right at the scene of the crime, is in a
sense more exacting than the standard imposed
by the Constitution upon the judge who, in the
seclusion of his chambers, ascertains "probable
cause" by examining the evidence submitted
before him. The arresting officer must himself
have "personal knowledge"; the magistrate may
rely upon the personal knowledge of the
witnesses examined by or for him in issuing a
warrant of arrest. In the present Resolution, the
majority begins with noting the requirement of
"personal knowledge" in Section 5(b), but winds
up in the next page with a very diluted standard
of "reasonable belief and "good faith" on the part
of the arresting officers. The stricter standard is
properly applicable to the officers seizing a
person without a warrant of arrest, for they are
acting in derogation of a constitutional right.
That the person unlawfully arrested without a
warrant may later turn out to be guilty of the
offense he was suspected of in the first place is,
course, quite beside the point. Even a person
secretly guilty some earlier crime is
constitutionally entitled to be secure from
warrantless arrest, unless he has in fact
committed physically observable criminal acts
in the presence of the arresting officer or hadjust
committed such acts when the arresting officer
burst upon the scene.
8.
Examination of the utilization in the
majotity Resolution of the doctrine of
"continuing crimes," shows that doctrine is here
being used as a substitute for the requirement
under Section 5(a) that the offense "has in fact
just been presence of the arresting officer
arrived, but rather because the person to be
arrested is suspected of having committed a
crime in the future. The pertinent portion of the
majority Resolution reads:
. . . Dural did not cease to be, or because less of
a subversive, FOR PURPOSE OF ARREST,
simply because he was, at the time of arrest,
confined in the St. Agnes Hospital. . . . That
Dural had shot the two (2) policemen in
Caloocan City as part of his mission as a
"sparrow" (NPA member) did not end there and
then. Dural, given another opportunity, would
have shot or would shoot other policemen
anywhere as agents or representatives of
organized government. It is in this sens e that
subversion like rebelion (or insurrection) is
perceived here as a continuing offense. Unlike
other so-called "common" offenses, i.e.,
adultery, murder, arson, etc., which generally
end upon their commission, subversion and
rebellion are anchored on an ideological base
which compels the repetition of the same acts of
lawlessness and violence until the overriding
objectives
of
overthrowing
organized
government is attained. (Emphasis supplied)
9.
I respectfully submit that an
examination of the "continuing crimes" doctrine
as actually found in our case law offers no
reasonable basis for such use of the dotrine.
More specifically, that doctrine, in my
submission, does not dispence with the
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requirement that overt acts recognizably
criminal in character must take place in the
presence of the arresting officer, or must have
just been committed when the arresting officer
arrived, if the warrantless arrest it to be lawful.
The "continuing crimes" doctrine in our case law
(before rendition of Garcia-Padilla vs. Enrile 10
does not sustain warrantless arrests of person to
be arrested is, as it were, merely resting in
between specific lawless and commit the
moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes"
doctrine has been used basically in relation to
two (2) problems: the first problem is that of
determination of whether or not a particular
offense was committed within the territorial
jurisdiction of the trial court; the second problem
is that of determining whether a single crime or
multiple crimes were committed where the
defense of double jeopardy is raised.
10.
In respect of the first problem, the gist
of our case law is that where some of the
ingredients or elements of an offense taken place
within the territorial jurisdiction of one court and
some other ingredients or elements of the same
offense occur in the territory of another court,
(e.g., estafa or malversation) either one of the
two courts has jurisdiction to try the offense.
Where all of the essential elements of a crime
take place within the territory of one court but
"by reason of he very nature of the offense
committed" the violation of the law is deemed to
be "continuing," then the court within whose
territorial jurisdiction the offense continues to be
committed, has jurisdiction to try a person
charged with such offense. In the latter case, the
offense is deemed to be continuing because
some or all of the elements constituting the

Atty. Mamburam
offense occurred within jurisdiction of the
second court (e.g., kidnapping and illegal
detention; libel; evasion of service of sentence).
The criminal acts are regarded as repeated or as
continuing within the province or city where the
defendant was found and arrested. 11 Clearly ,
overt acts of the accussed constituting elements
of the crime charged must be shown to have
been committed
within the territorial
jurisdiction of the court where he is charged.
11.
Turning to the second type of problem,
the question is normally presented in terms of
whether one crime or multiple crimes were
committed by the accused. Where the series of
acts actually alleged and proven to have been
committed by the accused constituted only one
and the same crime, the defense of double
jeopardy becomes available where a second
information is filed covering acts later in the
series. Upon the other hand, where the acts of
the accused constituted discrete, multiple
offenses, each act comprising a distinct and
separate offense, the double jeopardy defense is
non-available. 12 The point worth stressing is
that in passing upon the issue relating to the
unity or multiplicity of offense committed, the
overt acts of the accused constitutive either of
the single offense or of the plural offenses, must
be shown.
12.
My final submission, is that, the
doctrine of "continuing crimes," which has its
own legitimate function to serve in our crimin al
law jurisprudence, cannot be invoked for
weakening and dissolving the constitutional
guarantee against warrantless arrest. Where no
overt acts comprising all or some of the elements
of the offense charged are shown to have been
committed by the person arrested without
warrant, the "continuing crime" doctrine should

not be used to dress up the pretense that a crime,
begun or committed elsewhere, continued to be
committed by the person arrested in the presence
of the arresting officer. The capacity for
mischief of such a utilization of the "continuing
crimes" doctrine, is infinitely increased where
the crime charged does not consist of
unambiguous criminal acts with a definite
beginning and end in time and space (such as the
killing or wounding of a person or kidnapping
and illegal dentention or arson) but rather of
such problematic offenses as membership in or
affiliation with or becoming a member of, a
subversive association or organization. For in
such cases, the overt constitutive acts may be
morally neutral in themselves, and the
unlawfulness of the acts a function of the aims
or objectives of the organization involved. Note,
for instance, the following acts which constitute
prima facie evidence of "membership in any
subversive association:" 13
a)
Allowing himself to be listed as a
member in any book or any of the lists, records,
correspondence, or any other document of the
organization;
b)
Subjecting himself to the discipline of
such association or organization in any form
whatsoever;
c)
Giving financial contribution to such
association or organization in dues, assessments,
loans or in any other forms;
xxx
xxx
xxx
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f)
Conferring with officers or other
members of such association or organization in
furtherance of any plan or enterprise thereof;
xxx
xxx
xxx
h)
Preparing documents, pamphlets,
leaflets, books, or any other type of publication
to promote the objectives and purposes of such
association or organization;
xxx
xxx
xxx
k)
Participating in any was in the
activities, planning action, objectives, or
purposes of such association or organization;
xxx
xxx
xxx
It may well be, as the majority implies, that the

constitutional rule against warrantless arrests
and seizures makes the law enforcement work of
police agencies more difficult to carry out. It is
not our Court's function, however, and the Bill
of Rights was not designed, to make life easy for
police forces but rather to protect the liberties of
private individuals. Our police forces must
simply learn to live with the requirements of the
Bill of Rights, to enforce the law by modalities
which themselves comply with the fundamental
law. Otherwise they are very likely to destroy,
whether through sheer ineptness or excess of
zeal, the very freedoms which make our polity
worth protecting and saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the
ponencia in the above-entitled cases and I
reiterate such concurrence, I wish to unburden

Atty. Mamburam
myself of some reservations on the rationale
adopted in G.R. No. 86332.
It is posited in this resolution that "(a)lthough the
killing of Bunye II occurred on 14 December
1988, while Nazareno's arrest without warrant
was made only on 28 December 1988, or 14
days later, the arrest falls under Section 5(b) of
Rule 113, since it was only on 28 December
1988 that the police authorities came to know
that Nazareno was probably one of those guilty
in the killing of Bunye II."
I am afraid that there has been a misapplication
of Section 5(b) of Rule 113 which, while
authorizing a peace officer or a private person to
effect a warrantless arrest, specifically
conditions that grant of authority upon the
situation "(w)hen an offense has in fact just been
committed it."
It is significant that when the corresponding
provisions of the 1964 Rules of Court were
amended in the 1985 Rules of Crimin al
Procedure, the particular revision of paragraph
(b) of the aforesaid section consisted in
imposing the requirements that the person
making the arrest has personal knowledge of the
facts indicating that the arrestee is responsible
for an offense which has just been committed.
Now, according to the resolution, "the records
show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men
in Alabang, Muntinlupa, Metro Manila; that at
about 5 o'clock in the morning of 28 December
1988, Ramil Regala, one of the suspects in the
said killing, was arrested and he pointed to
Narciso Nazareno as one of his companions

during the killing of Bunye II; that at 7:20 of the
same morning (28 December 1988), the police
agents arrested Nazareno, without warrant, for
investigation."
Since, clearly, the arresting police agents merely
acted upon the information imparted by one of
the suspects, Ramil Regala, the resolution has
emasculated the requirement in Section 5(b) that
the person making the arrest must have had
personal knowledge of factual indications
regarding the complicity or liability of the
arrestee for the crime. Yet, that amendment
requiring such personal knowledge must have
been designed to obviate the practice in the past
of warrantless arrests being effected on the basis
of or supposed reliance upon informatio n
obtained from third persons who merely
professed such knowledge or, worse, concocted
such reports for variant reasons not necessarily
founded on truth.
Further, and obviously as an added deterrent to
the possibility that such arrest without a warrant
may result from imputations based on dubious
motives, it is now required that the crime must
have just been committed. The recency
contemplated here, in relation to the making of
the warrantless arrest, is the time when the crime
was in fact committed, and not the time when the
crime was in fact committed, and not the time
when the person making the arrest learned or
was informed of such commission. Otherwise, at
the risk of resorting to reductio ad absurdum,
such warrantless arrests could be validly made
even for a crime committed, say, more than a
year ago but of which the arresting officer
received information only today.
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The brevity in the interval of time between the
commission of the crime and the arrest, as now
required by Section 5(b), must have been
dictated by the consideration, among others, that
by reason of such recency of the crimin al
occurrence, the probability of the arresting
officer acquiring personal and/or reliable
knowledge of such fact and the identity of the
offender is necessarily enhanced, if not assured.
The longer the interval, the more attenuated are
the chances of his obtaining such verifiable
knowledge. In the case under consideration, the
obtention of information of a crime committed
fourteen (14)
days earlier
necessarily
undermines the capacity of the arresting officer
to ascertain the reliability of the information he
is acting upon and to acquire personal
knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that
the arrest of Nazareno was based on probable
cause and it was not whimsical, at least, in this
instance. It is correct to say that prevailing
conditions affecting national security and
stability must also be taken into account.
However, for the reasons above elucidated, I
take exception to the conclusion that the
conditions in Section 5(b) of Rule 113 had been
complied with in this case. It is true that the
corresponding information was filed against
Nazareno shortly after his arrest but that,
precisely, is another cause for controversy.
Definitely, if the rules on arrest are scrupulously
observed, there would be no need for the usual
invocation of Ilagan as a curative balm for
unwarranted incursions into civil liberties.
SARMIENTO, J.: dissenting:

Atty. Mamburam
I reiterate my dissent. I submit that in spite of its
"clarificatory" resolution, 1 the majority has not
shown why the arrests in question should after
all be sustained.
According to the majority, Rolando Dural (G.R.
No. 815667) was validly arrested without a
warrant and that his arrest was sufficient
compliance with the provisions of Section 5,
paragraph (b), Rule 113, of the Rules of Court.
According to the majority, he, Dural, was after
all committing an offense (subversion being
supposedly a continuing offense) and that the
military did have personal knowledge that he
had committed it. "Personal knowledge,"
according to the majority, is supposedly no more
than "actual belief or reasonable grounds . . . of
suspicion," and suspicion is supposedly
reasonable:
. . . when, in the absence of actual belief of the
arresting officers, the suspicion that the person
to be arrested is probably guilty of committin g
the offense, is based on actual facts, i.e.,
supported by circumstances sufficiently strong
in themselves to create the probable cause of
guilty of the person to be arrested. A reasonable
suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the
peace officers making the arrest. 2
. . . Indeed, were the Anti-Subversion Act a bill

of attainder, it would be totally unnecessary to
charge Communists in court, as the law alone,
without more would suffice to secure their
punishment. But the undeniable fact is that their
guilt still has to be judicially established. The
Government has yet to prove at the trial that the
accused joined the Party knowingly, willfu lly
and by overt acts, and that they joined the Party,
knowing its subversive character and with
specific intent to further its basic objective, i.e.,
to overthrow the existing government by force,
deceit, and other illegal means and place the
country under the control and domination of a
foreign power.
As Ferrer held, that above "overt acts" constitute
the essence of "subversion," and as Ferrer has
taken pains to explain, the law requires more
than mere membership in a subversive
organization to make the accused liable. I
respectfully submit that for purposes of arrest
without a warrant, that above "overt acts" should
be visible to the eyes of the police officers (if
that is possible), otherwise the accused can not
be said to be committing any offense within the
contemplation of the Rules of Court, to jus tify
police action, and otherwise, we would have
made "subversion" to mean mere "membership"
when, as Ferrer tells us, subversion means more
that mere membership.
As I said, I dissent.
First, and as I held, subversion, as an offense
punished by Executive Order No. 167, as
amended by Executive Order No. 276, in
relation to Republic Act No. 1700, 3 is made up
of "overt acts." 4 In People vs. Ferrer 5 this
Court defined "overt acts" as follows:
I find strained that majority's interpretation of

"personal knowledge," as the majority would
interpret it, as no more than "actual belief or
reasonable suspicion," that is, "suspicion . . .
based on actual facts . . . [and] founded on
probable cause, coupled with good faith . . . " 6
I submit that personal knowledge means exactly
what it says that the peace officer is aware
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that the accused has committed an offense, in
this case, membership in a subversive
organization with intent to further the objectives
thereof. It is to be noted that prior to their
amendment, the Rules (then Section 6) spoke of
simple "reasonable ground" which would
have arguably encompassed "actual belief or
suspicion . . . coupled with good faith" referred
to by the majority. Section 5(b) as amended,
however, speaks of "personal knowledge"; I
respectfully submit that to give to "personal
knowledge" the same meaning as "reasonable
ground" is to make the amendment as useless
exercise.
What, furthermore, we have here was a mere
"confidential information" that a "sparrow man"
had been wounded and was recuperating in the
hospital, and that that person was Rolando
Dural. Clearly, what we have is second-hand,
indeed, hearsay, information, and needless to
say, not personal knowledge.
I would like to point out that in the case of
People vs. Burgos 7 this Court rejected a similar
arrest because of lack of personal knowledge,
and, as the Court held, "[w]hatever knowledge
was possessed by the arresting officers came in
its entirety from the information furnished by
[another] . . ." 8 I do not see how We can act
differently here.
I do not find the majority's reliance on the case
of United States vs. Santos 9 to be well-taken .
Santos involved a prosecution for coercion
(against a peace officer for affecting an arrest
without a warrant). Santos, however, did in fact
affirm the illegality of the arrest but absolved the
peace officer on grounds of good faith. Santos
did not say that so long as he, the peace officer,

Atty. Mamburam
was acting in good faith, as the majority here
says that the military was acting in good faith,
the arrest is valid. Quite to the contrary, Santos
suggested that notwithstanding good faith on the
part of the police, the arrest is nevertheless
subject to question.
As far as the information leading to the arrest of
Dural is concerned, the majority would quite
evidently swallow the version of the military as
if in the first place, there truly was an
information, and that it was reliable, and that "it
was found to be true;" 10 and as if, in the second
place, the hospital authorities (the alleged
informants) could have legally tipped the
military under existing laws. We have, it should
be noted, previously rejected such a species of
information because of the lack of "compulsion
for [the informant] to state truthfully his charges
under pain of criminal prosecution." 11 Here, it
is worse, because we do not even know who that
informant was.
The majority is apparently unaware that under
Executive Order No. 212, amending Presidential
Decree No. 169, hospital establishments are
required to report cases of acts of violence to
"government health authorities" not to the
military.
I am concerned that if the military were truly
armed with reliable information and if it did
have personal knowledge to believe that Dural
had committed an offense, there was no reason
for the military to ignore the courts, to which the
Constitution after all, gives the authority to issue
warrants. As People vs. Burgos held:
More important, we find no compelling reason
for the haste with which the arresting officers
sought to arrest the accused. We fail to see why

they failed to first go through the process of
obtaining a warrant of arrest, if indeed they had
reasonable ground to believe that the accused
had truly committed a crime. There is no
showing that there was a real apprehension that
the accused was on the verge of flight or escape.
Likewise, there is no showing that the
whereabouts of the accused were unknown. 12
I do not likewise see how the petitioners Amelia
Roque,
Wilfredo
Buenaobra,
Domingo
Anonuevo, Ramon Caspile, and Vicky Ocaya
(G.R. Nos. 84581-82; 83162) could have been
lawfully picked up under similar circumstances.
As the majority points out, the military had
(again) acted on a mere tip-the military had no
personal knowledge (as I elaborated what
personal knowledge means). Second, I do not
think that the majority can say that since Amelia
Roque, et al. "were NPA's anyway" (As Roque,
et al. allegedly admitted), immediate arrests
were "prudent" and necessary. As I said, that
Roque, et al. were admitted "NPA's" is (was) the
question before the trial court and precisely, the
subject of controversy. I think it is imprudent for
this Court to pass judgment on the guilt of the
petitioners-since after all, and as the majorit y
points out, we are talking simply of the legality
of the petitioner's arrests.
More important, that Roque, et al. "were NPA's
anyway" is evidently, a mere say-so of the
military, and evidently, the Court is not bound
by bare say-so's. Evidently, we can not approve
an arrest simply because the military says it is a
valid arrest (the accused being "NPA's
anyway") that would be abdication of judicial
duty and when, moreover, the very basis of the
Page 19 of 71

1-Sanchez Roman
claim
rests
information."
on
dubious
"confidential
According to the majority, we are speaking of

simple arrests; we are not talking of the guilt or
innocence of the accused. I certainly hope not,
after the majority referred to Rolando Dural as a
"sparrow man" and having Amelia Roque, et al.
admit to being NPA's."
It is to gloss over at any rate, the nature of arrest
as a restraining on liberty. It is to me immaterial
that the guilt of the accused still has to be
established, since meanwhile, the accused are in
fact being deprived of liberty. Arrest to me, is
something to crow about, even if in the opinion
of the majority, it is nothing to crow about (a
mere "administrative measure").
I can not, again, accept the validity of the arrests
of Deogracia Espiritu or Narciso Nazareno
(G.R. Nos. 85727; 86332). Espiritu was
supposedly picked up for inciting to sedition, in
uttering supposedly, on November 22, 1988, the
following:
Bukas tuloy and welga natin . . . hanggang sa
magkagulo na. 13
Espiritu however was arrested on November 23,
1988, a day later-and in no way is "inciting to
sedition" a continuing offense. Obviously, the
majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of
such perception and regard the language as
falling within free speech guaranteed by the
Constitution. But, then, Espiritu has not lost the
right to insist, during the trial on the merits, that
he was just exercising his right to free speech

Atty. Mamburam
regardless of the charged atmosphere in which it
was uttered. But, the authority of the peace
officers to make the arrest, without warrant, at
the time the words were uttered, or soon
thereafter, is still another thing. In the balancing
of authority and freedom, which obviously
becomes difficult at times, the Court has, in this
case, titled the scale in favor of authority but
only for purposes of the arrest (not conviction).
Let it be noted that the Court has ordered the bail
for Espiritu's release to be reduced fro m
P60,000.00 to P10,000.00. 14
is not apparently convicted that it is, either. Of

course, the majority would anyway force the
issue: "But the authority of the peace officers to
make the arrest, without warrant, at the time the
words were uttered, or soon thereafter, is still
another thing." 17 First, Espiritu was picked up
the following day, and in no way is "the
following day" "soon thereafter". Second, we
would have stretched the authority of peace
officers to make warrantless arrests for acts done
days before. I do not think this is the
contemplation of the Rules of Court.
And obviously, the majority is concerned about

whether or not Espiritu's speech was after all,
protected speech, but apparently, that is also of
no moment, since: (1) that is a matter of defense;
(2) we are talking of mere arrests, and as far as
arrests are concerned, "the Court has, in this
case, titled in favor of authority," 15 and (3) we
have, anyway, given a reduced bail to the
accused.
As in the case of Burgos in People vs. Burgos,

18 Espiritu was neither "on the verge of flight or
escape" 19 and there was no impediment for the
military to go through the judicial processes, as
there was none in the case of Burgos.
First, that the accused's statement is in the

category of free speech is not only plain to my
mind, it is a question I do not think the majorit y
can rightly evade in these petitions without
shirking the Court's constitutional duty. It is to
my mind plain, because it does not contain
enough "fighting words" recognized to be
seditious. 16 Secondly, it is the very question
before the Courtwhether or not the statement
in question constitutes an offense for purposes
of a warrantless arrest. It is a perfectly legal
question to my mind and I am wondering why
we can not answer it.
What the majority has not answered, as I
indicated, is that inciting to sedition is in no way
a continuing offense, and as I said, the majorit y
In the case of People vs. Aminnudin, 20 this

Court held that unless there "was a crime about
to be committed or had just been committed,"
and unless there existed an urgency as where a
moving vehicle is involved, instant police action
can not be justified.
"In the balancing of authority and freedom,"
states the majority, "the Court has, in this case,
titled in favor of authority but only for purposes
of the arrest (not conviction)." 21 It is a strange
declaration, first, because it is supported by no
authority (why the Court should "tilt" on the side
of Government), and second, because this Court
has leaned, by tradition, on the side of liberty
as the custodian of the Bill of Rights even if
we were talking of "simple" arrests.
I do not understand why this Court should "tilt"
. . . the scale in favor of authority . . . in this
case," 22 as if to say that normally, this Court
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1-Sanchez Roman
would have tilted the scales the other way. I do
not understand why these cases are apparently,
special cases, and apparently, the majority is not
telling us neither. I am wondering why, apart
from the fact that these cases involved,
incidentally, people who think differently fro m
the rest of us.

Atty. Mamburam
been
committed;"
whatever
"personal
knowledge" they have is necessarily "personal
knowledge" of a crime committed two weeks
before.
In no way can Nazareno's arrest be said to be an
arrest sanctioned by the exceptional provisions
of the Rules.
The majority goes on:

Although the killing of Bunye II occurred on 14
December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988,
or 14 days later, the arrest falls under Section
5(b) of Rule 113, since it was only on 28
December 1988 that the police authorities came
to know that Nazareno was probably one of
those guilty in the killing of Bunye II. 23
With all due respect, I do not think that the
majority is aware of the serious implications of
its pronouncement on individual rights (and
statutory construction in general), and I feel I am
appropriately concerned because as a member of
the Court, I am co-responsible for the acts of my
colleagues and I am afraid that I may, rightly or
wrongly, be in time made to defend such an
indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical:
the offense must have been "just committed" and
the authorities must have "personal knowledge."
In no way can an offense be said to have been
"just committed" fourteen days after it was in
fact (allegedly) committed. In no way can the
authorities be said to have "personal knowledge"
two weeks thereafter; whatever "personal
knowledge" they have can not possibly be
"personal knowledge" of a crime that had "just
I am not saying that the military can not act in

all cases, and it is sheer ignorance to suppose
that I am saying it, (or worse, that I am "coddling
criminals"). I am not saying that a suspected
criminal, if he can not be arrested without a
warrant, can not be arrested at all but that the
military should first procure a warrant from a
judge before effecting an arrest. It is not too
much to ask of so-called law enforcers.
As it is, the majority has enlarged the authority
of peace officers to act, when the Rules have
purposely limited it by way of an exception,
precisely, to the general rule, mandated by the
Constitution no less, that arrests may be done
only through a judicial warrant. As it is, the
majority has in fact given the military the
broadest discretion to act, a discretion the law
denies even judges 24 today it is fourteen
days, tomorrow, one year, and sooner, a decade.
I submit that a year, a decade, would not be in
fact unreasonable, following the theory of the
majority, since the military can claim anytime
that it "found out only later," as the majority did
not find it unreasonable for the Capital
Command to claim that it "came to know that
Nazareno was probably one of those guilty in the
killing of Bunye II" 25and none of us can
possibly dispute it.
I would like to stress strongly that we are not

talking of a simple "administrative measure"
alonewe are talking of arrests, of depriving
people of libertyeven if we are not yet talking
of whether or not people are guilty. That we are
not concerned with guilt or innocence is hardly
the point, I respectfully submit, and it will not
minimize the significance of the petitioners'
predicament.
With respect to Wilfredo Buenaobra, I submit
that the majority has, as in the cases of Amelia
Roque, et al., ignored the fact that Buenaobra's
alleged "admission" (actually, an uncounselled
confession) was precisely, the basis for
Buenaobra's arrest. It is to beg the question, I
respectfully submit, to approve the military 's
action for the reason that Buenaobra confessed,
because Buenaobra confessed for the reason that
the military, precisely, pounced on him. I am not
to be mistaken for prejudging Buenaobra's
innocence (although it is supposed to be
presumed) but I can not imagine that Buenaobra
would have voluntarily proclaimed to the
military that he was an NPA courier so that the
military could pounce on him.
I respectfully submit that the cases Garcia vs.
Padilla 26 and Ilagan vs. Enrile 27 have been
better days. I do not see how this court can
continuously sustain them "where national
security and stability are still directly challenged
perhaps with greater vigor from the communist
rebels." 28 First and foremost, and as the
majority has conceded, we do not know if we are
in fact dealing with "Communists." The case of
Deogracias Espiritu, for one, hardly involves
subversion. Second, "Communism"
and
"national security" are old hat the dictator's
own excuses to perpetuate tyranny, and I am
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1-Sanchez Roman
genuinely disappointed that we would still fall
for old excuses. Third, Garcia and Ilagan rested
on supposed grounds that can not be possibly
justified in a regime that respects the rule of law
that the Presidential Commitment Order
(PCO) is a valid presidential document (Garcia)
and that the filing of an information cures a
defective arrest (Ilagan). Fourth and finally, it is
evident that neither "Communist threat" nor
"national security" are valid grounds for
warrantless arrests under Section 5(b) of Rule
113.
I most respectfully submit that Garcia and Ilagan
have not only been diluted by subsequent
jurisprudence (e.g., People vs. Burgos, supra),
they are relics of authoritarian rule that can no
longer be defended, if they could have been
defended, in Plaza Miranda or before our own
peers in the bar.
"What is important," says the majority, "is that
every arrest without warrant be tested as to its
legality, via habeas corpus proceedings." 29 I
supposed that goes without saying. But it is also
to patronize the petitioners and simply, to offer
a small consolation, when after all, this Court is
validating their continued detention. 30 With all
due respect, I submit that it is nothing for which
the public should be elated.
A Final Word
As I began my dissent, in this Resolution and the
Decision sought to be reconsidered, I reiterate
one principle: The State has no right to bother
citizens without infringing their right against
arbitrary State action. "The right of the people,"
states the Constitution, "to be secure in their
persons, houses, papers, and effects against

Atty. Mamburam
unreasonable searchers and seizures of whatever
nature and for any purpose shall be inviolable . .
. ." 31 "The State," the Charter likewise states,
"values the dignity of every human person and
guarantees full respect for human rights." 32 The
Constitution states the general rule the
majority would make the exception the rule, and
the rule the exception. With all due respect, this
is not what constitutionalis m is all about.
I submit that the "actual facts and
circumstances" the majority refers to are, in the
first place, doubtful, the "actual facts and
circumstances" being no more than "confidential
information" (manufactured or genuine, we have
no way of telling) and in the second place, any
information with which the military (or police)
were armed could no more than be hearsay, not
personal, information. I submit that the "actual
facts and circumstances" the majority insists on
can not justify the arrests in question under
Section 5(b) of Rule 113, the rule the majorit y
insists is the applicable rule.
Apparently, Section 5(b) is not the applicable
rule, as far as Deogracias Espiritu and Narciso
Nazareno are concerned; certainly, it is not the
Section 5(b) I know. As I indicated, Espiritu was
arrested one day after the act, allegedly, inciting
to sedition; Nazareno was picked up fourteen
days after it (allegedly, murder). Yet, the
majority would approve the police's actions
nonetheless because the police supposedly
"found out only later." I submit that the majority
has read into Section 5(b) a provision that has
not been written there.
"More than the allure of popularity of
palatability to some groups," concludes the
majority, "what is important is that the Court be

right." 33
Nobody has suggested in the first place, that
Umil was and is a question of popularity or
palatability. Umil is a question, on the contrary,
of whether or not the military (or police), in
effecting the arrests assailed, had complied with
the requirements of law on warrantless arrests.
Umil is a question of whether or not this Court,
in approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in
the country, as incidences of disappearances,
torture, hamletting, bombings, saturation drives,
and various human rights violations increase in
alarming rates. In its update for October, 1990,
the Task Force Detainees of the Philippines
found:
An average of 209 arrested for political reasons
monthly since 1988, 94% of them illegally;
Four thousand four hundred eight (4,408)
political detentions from January, 1989 to
September, 1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture;
280 were eventually salvaged, 40, of frustrated
salvage, and 109 remained missing after their
arrest;
Forty (40) cases of massacres, with 218 killed ;
54 cases of frustrated massacre, in which 157
were wounded;
The victims belonged to neighborhood and
union organizations;
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1-Sanchez Roman

Atty. Mamburam
Since February, 1986, 532 of those illegally

arrested were women;
5
Ilagan vs. Enrile, G.R. No. 70748,
October 21, 1985, 139 SCRA 349.
From January to June 1990, 361 children were

detained for no apparent reason;
6
Sayo vs. Chief of Police, 80 Phil. 859
(1948).
One million ten thousand four hundred nine

(1,010,409) have been injured as a consequence
of bombing, shellings, and food blockades
undertaken by the military since 1988. 34
7
Republic Act No. 1700 known as the
"Anti-Subversion Act" titled "An Act to outlaw
the CPP and similar associations, penalize
membership therein and for other purposes."
(1957); and the subsequent related decrees such
as Presidential Decree No. 885, entitled
"Outlawing
subversive
organizations,
penalizing membership therein, and for other
purposes." (1976); and Presidential Decree No.
1835 entitled "Codifying the various laws on
anti-subversion and increasing the penalties for
membership in subversive organizations."
It is a bleak picture, and I am disturbed that this

Court should express very little concern. I am
also disappointed that it is the portrait of the
Court I am soon leaving. Nonetheless, I am
hopeful that despite my departure, it will not be
too late.
Motions denied.
# Footnotes
1
G.R. No. 61388, April 20,1983, 12 1
SCRA 472.
2
G.R. No. 70748, October 21,1985, 13 9
SCRA 349.
3
Section 1, Rule 102: "To what habeas
corpus extends. Except otherwise expressly
provided by law, the writ of habeas corpus shall
extend to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto.
4
Villavicencio vs. Lukban, 39 Phil. 778.
8
G.R. No. 61388. April 20,1983, 12 1
SCRA 472.
9
US vs. Santos, 36 Phil. 851 (1917).
10
Ibid.
11
Ibid.
16
Decision, pp. 10-11.
17
Ibid., p. 12.
18
Ibid., pp. 12-13.
19
Ibid., pp. 14-15.
20
Decision, p. 18.
21
United States vs. Sanchez, No. 9294,
March 30,1914, 27 Phil, 442.
22
Ibid: "The legality of the detention does
not depend upon the fact of the crime, but . . .
upon the nature of the deed, wherefrom such
characterization may reasonably be inferred by
the officer or functionary to whom the law at that
moment leaves the decision for the urgent
purpose of suspending the liberty of the citizen.
12
Records of G.R. No. 81567, affidavit
dated 4 February 1988.
"In People vs. Ancheta, it was held that "the

legality of detention made by a person in
authority or an agent thereof ... does not depend
upon the juridical and much less the judicial fact
of crime which, at the time of its commission, is
not and cannot definitively be determined for the
lack of necessary data and for jurisdiction but
upon the nature of the deed. . . . ."
13
23
United States vs. Santos, supra.
24
Ibid.
Rollo, pp. 311-312 (G.R. No. 81567).
14
Presidential Decree No. 169 requires
attending physicians and/or persons treating
injuries from any form of violence, to report
such fact to the Philippine Constabulary and
prescribing penalties for any violation thereof.
15
25
Article 124 of the Revised Penal Code
provides:
Decision dated 9 July 1990, pp. 19-20.
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1-Sanchez Roman

Atty. Mamburam
"ART. 124.
Arbitrary detention. Any
public officer or employee who, without legal
grounds. detains a person, shall suffer:
64 Phil. at 44.
144 SCRA 1 (1986).
1.
The penalty of arresto mayor in its
maximu m period to prision correccional in its
maximu m period, if the detention has not
exceeded three
days. . . .
144 SCRA at 14.
26
Damages for the impairment of rights
and liberties of another person.
27
Affidavit of Avelino Faustino dated 23
November 1988; Return of the Writ dated 25
November 1988; Decision dated 9 July 1990, pp.
23-24.
28
Joint Affidavit of 5 police agents, dated
23 November 1988; Decision, supra.
29
Affidavit of police agents, dated 28
December 1988, marked Exhibit "A" at the
RTC, Bian, Branch 24.
30
Decision of 9 July 1990, pp. 9 and 12.
31
Decision of 9 July 1990. p. 13.
FELICIANO, J., concurring and dissenting:

1
Salaysay vs. Castro, 98 Phil. 364
(1956).
2
Realty Investments Inc. vs. Pastrana.
84 Phil. 842 (1949)-l Sayo vs. Chief of Police of
Manila, 80 Phil. 859 (1948)
3
64 Phil. 33 (1937).
7
See e.g., U.S. vs. Samonte, 16 Phil. 516
(1910).
8
In People vs. Aminnudin, 163 SCRA
402 (1988), the Court, in nullifying a warrantless
arrest, said, through Mr. Justice Cruz:
"In the many cases where tills Court has
sustained the warrantless arrest of violators on
the Dangerous Drugs Act, it has always been
shown that they were caught red-handed, as a
result of what are popularly called "buy-bust"
operations of the narcotics agents. Rule 113 was
clearly applicable because at the precise time of
arrest the accused was in the act of selling the
prohibited drug.
immediately arrest him." (163 SCRA at 409410) (emphasis supplied)

9
People vs. Burgos, 114 SCRA 1
(1986).
10
11
Parulan vs. Director of Prisons, 22
SCRA 638 (1968); U.S. vs. Cunanan, 26 Phil.
376 (1913); U.S. vs. Santiago, 27 Phil. 408
(1914); U.S. vs. Laureaga, 2 Phil. 71 (1903).
12
E.g. People vs. Zapanta and Bondoc,
88 Phil. 688 (1951) where the Court held that
each instance of sexual intercourse constitute a
separate crime of adultery, though the same
persons and the same offended spouse are
involved, and that a second information may be
filed against the same accused for later acts of
sexual intercourse.
13
In the case at bar, the accused-appellant was not,

at the moment of his arrest, committing a crime
nor was it shown that he was about to do so or
that he had just done so. What he was doing was
descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called
for his arrest. To all appearances, he was like any
of the other passengers innocently disembarking
from the vessel. It was only when the informer
pointed to him as the carrier of the marijuan a
that he suddenly became suspect and so subject
to apprehension. It was the furtive finger that
triggered his arrest. The Identification by the
informer was the probable cause as determined
by the officers (and not a judge) that authorized
them to pounce upon Aminnudin and
121 SCRA 472 (1983).
Section 6, P.D. 1835, 16 January 1981.
Sarmiento, J.: dissenting:

1
Resolution, 1.
Supra; emphasis in the original.
3
The majority cites Presidential Decrees
Nos. 885 and 1835 and "related decrees;" both
Presidential Decrees Nos. 885 and 1835 have
been repealed by Executive Order No. 167, as
amended by Executive Order No. 267.
4
Please note that under Section 6 of
Presidential Decree No. 1835, "[t]the followin g
acts shall constitute prima facie evidence of
membership in any subvers ive organization: (a)
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1-Sanchez Roman
Allowing himself to be listed as a member in any
book or any of the lists, records,
correspondence, or any other document of the
organization; (b) Subjecting himself to the
discipline of such association or organization in
any form whatsoever; (c) Giving financial
contribution to such association or organization
in dues, assessments, loans or in any other
forms; (d) Executing orders, plans, or directives
of any kind of such association or organization;
(e) Acting as an agent, courier, messenger,
correspondent, organizer, or in any other
capacity, on behalf of such association or
organization; (f) Conferring with officers or
other members of such association or
organization in furtherance of any plan or
enterprise thereof; (g) Transmitting orders,
directives, or plans of such association or
organization orally or in writing or any other
means of communication such as by signal,
semaphore, sign or code; (h) Preparing
documents, pamphlets, leaflets, books, or any
other type of publication to promote the
objectives and purposes of such association or
organization; (i) Mailing, shipping, circulating,
distributing, or delivering to other persons any
material or propaganda of any kind on behalf of
such association or organization; (j) Advising,
counselling, or in other way giving instruction,
information, suggestions, or recommendations
to officers, or members or to any other person to
further the objectives of such association or
organization; and (k) Participating in any way in
the activities, planning action, objectives, or
purposes of such association or organization."
Please note that none of these are alleged by the
military in this case, assuming that the Decree
still exists.

Atty. Mamburam
5
Nos. L-32613-14, December 27, 1972,
48 SCRA 382; emphasis supplied. In Taruc vs.
Ericta (No. L-34856, Nov. 29, 1989, 168 SCRA
63, 66-67), I held that People vs. Ferrer is no
longer a good basis for sustaining the AntiSubversion Act. I am not here invoking Ferrer to
sustain it, but to discuss its elaboration of the
provisions of Republic Act No. 1700.
20
G.R. No. 74869, July 6, 1988, 163
SCRA 402.
24
See RULES OF COURT, supra, Rule
112, sec. 5, on the number of days a judge may
act.
Resolution, supra.
7
G.R. No. 68955, September 4, 1986,
144 SCRA 1.
21
Resolution, supra.
22
Supra, 17.
23
Supra.
25
8
Supra, 14.
36 Phil. 853 (1917).
10
Resolution, supra, 10.
11
People vs. Burgos, supra, 15.
12
Supra.
13
14
Supra, 16.
15
Supra.
Resolution, supra.
26
G.R. No. 61388, April 20, 1983, 121
SCRA 472.
27
G.R. No. 70748, October 21, 1985, 139
SCRA 349.
28
Resolution, supra, 18-19.
29
30
Except for Rolando Dural, the rest of
the petitioners have been acquitted by the lower
courts trying their cases.
31
CONST., art. III, sec. 2.
16
See United States vs. Apurado, 7 Phil.
422 (1907).
32
Supra, art. II, sec. 11.
17
Resolution, supra; emphasis supplied.
33
18
Supra.
34
Manila Chronicle, October, 1990.
19
At 15.
The Lawphil Project - Arellano Law Foundation
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Atty. Mamburam
to General Order No. 6, dated September 22,
1972, and General Order No. 7, dated September
23, 1972, in relation further to Presidential
Decree No. 885, and considering that the firearm
subject of this case was not used in the
circumstances as embraced in paragraph I
thereof, applying the provision of indeterminate
sentence law, accused Ruben Burgos is hereby
sentenced to suffer an imprisonment of twenty
(20) years of reclusion temporal maximu m, as
minimum penalty, to reclusion perpetua, as
maximu m penalty, pursuant to sub-paragraph B,
of Presidential Decree No. 9, as aforementioned,
with accessory penalties, as provided for by law.

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68955
September 4, 1986
PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
RUBEN BURGOS y TITO, defendantappellant.
GUTIERREZ, JR., J.:

This is an appeal from the decision of the
Regional Trial Court of Davao del Sur, 11 th
Judicial Region, Digos, Davao del Sur
convicting defendantappellant Ruben Burgos y
Tito of The crime of Illegal Possession of
Firearms in Furtherance of Subversion. The
dispositive portion of the decision reads:
WHEREFORE, finding the guilt of accused
Ruben Burgos sufficiently established beyond
reasonable doubt, of the offense charges ,
pursuant to Presidential Decree No. 9, in relation
As a result of this judgment, the subject firearm

involved in this case (Homemade revolver,
caliber .38, Smith and Wesson, with Serial No.
8.69221) is hereby ordered confiscated in favor
of the government, to be disposed of in
accordance with law. Likewise, the subversive
documents, leaflets and/or propaganda seized
are ordered disposed of in accordance with law.
The information charged the defendantappellant with the crime of illegal possession of
firearm in furtherance of subversion in an
information which reads as follows:
That in the afternoon of May 13, 1982 and
thereabout at Tiguman, Digos, Davao del Sur,
Philippines, within the jurisdiction of this Court,
the above- named accused with intent to possess
and without the necessary license, permit or
authority issued by the proper government
agencies, did then and there wilfully, unlawfully
and feloniously keep, possess, carry and have in
his possession, control and custody one (1)
homemade revolver, caliber .38, make Smit h
and Wesson, with Serial No. 8.69221, which
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1-Sanchez Roman
firearm was issued to and used by the accused at
Tiguman, Digos, Davao del Sur, his area of
operations by one Alias Commander Pol for the
New People's Army (NPA), a subversive
organization organized for the purpose of
overthrowing the Government of the Republic
of the Philippines through lawless and violent
means, of which the accused had knowledge,
and which firearm was used by the accused in
the performance of his subversive tasks such as
the recruitment of New Members to the NPA
and collection of contributions from the
members.
CONTRARY TO LAW.
The evidence for the prosecution is summarized
in the decision of the lower court as follows:
xxx
xxx
xxx
. . . Through the testimony of Pat. Pepito Bioco,

and Sgt. Romeo Taroy, it appears that by virtue
of an intelligent information obtained by the
Constabulary and INP units, stationed at Digos,
Davao del Sur, on May 12, 1982, one Cesar
Masamlok
personally
and
voluntarily
surre0ndered to the authorities at about 9:00
o'clock A.M. at Digos, Davao del Sur
Constabulary Headquarters, stating that he was
forcibly recruited by accused Ruben Burgos as
member of the NPA, threatening him with the
use of firearm against his life, if he refused.
Along with his recruitment, accused was asked
to contribute one (1) chopa of rice and one peso
(P1.00) per month, as his contribution to the
NPA TSN, page 5, Hearing-October 14, 1982).

Atty. Mamburam
Immediately, upon receipt of said information, a
joint team of PC-INP units, composed of fifteen
(15) members, headed by Captain Melchesideck
Bargio, (PC), on the following day, May 13,
1982, was dispatched at Tiguman; Davao del
Sur, to arrest accused Ruben Burgos. The team
left the headquarter at 1:30 P.M., and arrived at
Tiguman, at more or less 2:00 o'clock PM where
through the help of Pedro Burgos, brother of
accused, the team was able to locate accused,
who was plowing his field. (TSN, pages 6-7,
Hearing-October 14, 1982).
Right in the house of accused, the latter was
caned by the team and Pat. Bioco asked accused
about his firearm, as reported by Cesar
Masamlok. At first accused denied possession of
said firearm but later, upon question profounded
by Sgt. Alejandro Buncalan with the wife of the
accused, the latter pointed to a place below their
house where a gun was buried in the ground.
(TSN, page 8, Hearing-October 14, 1982).
Pat. Bioco then verified the place pointed by
accused's wife and dug the grounds, after which
he recovered the firearm, Caliber .38 revolver,
marked as Exhibit "A" for the prosecution.
After the recovery of the firearm, accused
likewise pointed to the team, subversive
documents which he allegedly kept in a stock
pile of qqqcogon at a distance of three (3) meters
apart from his house. Then Sgt. Taroy
accordingly verified beneath said cogon grass
and likewise recovered documents consisting of
notebook colored maroon with spiral bound,
Exhibit "B" for the prosecution; a pamphlet
consisting of eight (8) leaves, including the front
and back covers entitled Ang Bayan, Pahayagan
ng
Partido
Komunista
ng
Pilipinas ,
Pinapatnubayan ng Marxismo, Leninismo

Kaisipang Mao qqqZedong dated December 31,
1980, marked as Exhibit "C", and another
pamphlet Asdang Pamantalaang Masa sa
Habagatang Mindanao, March and April 1981
issue, consisting of ten (10) pages, marked as
Exhibit "D" for the prosecution.
Accused, when confronted with the firearm
Exhibit "A", after its recovery, readily admitted
the same as issued to him by Nestor Jimenez,
otherwise known as a certain Alias Pedipol,
allegedly team leader of the sparrow unit of New
People's Army, responsible in the liquidation of
target personalities, opposed to NPA Ideological
movement, an example was the killing of the late
Mayor Llanos and Barangay Captain of Tienda
Aplaya Digos, Davao del Sur. (TSN, pages 1-16,
Hearing-October 14,1982).
To prove accused's subversive activities, Cesar
Masamlok, a former NPA convert was
presented, who declared that on March 7, 1972,
in his former residence at Tiguman Digos,
Davao del Sur, accused Ruben Burgos,
accompanied by his companions Landrino
Burgos, Oscar Gomez and Antonio Burgos,
went to his house at about 5:00 o'clock P.M. and
called him downstair. Thereupon, accused told
Masamlok, their purpose was to ask rice and one
(1) peso from him, as his contribution to their
companions, the NPA of which he is now a
member. (TSN, pages 70, 71, 72, HearingJanuary 4, 1983).
Accused and his companions told Masamlok, he
has to join their group otherwise, he and his
family will be killed. He was also warned not to
reveal anything with the government authorities.
Because of the threat to his life and family ,
Page 27 of 71

1-Sanchez Roman
Cesar Masamlok joined the group. Accused then
told him, he should attend a seminar scheduled
on April 19, 1982. Along with this invitation,
accused pulled gut from his waistline a .38
caliber revolver which Masamlok really saw,
being only about two (2) meters away fro m
accused, which make him easily Identified said
firearm, as that marked as Exhibit "A" for the
prosecution. (TSN, pages 72, 73, and 74,
Hearing-January 4, 1983).
On April 19, 1982, as previously invited,
Masamlok, accompanied by his father, Matuguil
Masamlok, Isabel Ilan and Ayok Ides went to the
house of accused and attended the seminar,
Those present in the seminar were: accused
Ruben Burgos, Antonio Burgos, Oscar Gomez,
Landrino Burgos, alias Pedipol and one alias
Jamper.
The first speaker was accused Ruben Burgos,
who said very distinctly that he is an NPA
together with his companions, to assure the unity
of the civilian. That he encouraged the group to
overthrow the government, emphasizing that
those who attended the seminar were already
members of the NPA, and if they reveal to the
authorities, they will be killed.
Accused, while talking, showed to the audience
pamphlets and documents, then finally shouted,
the NPA will be victorious. Masamlok likewis e
Identified the pamphlets as those marked as Exh .
exhibits "B", "C", and "D" for the prosecution.
(TSN, pages 75, 76 and 77, Hearing-January 4,
1983)
Other speakers in said meeting were Pedipol,
Jamper and Oscar Gomez, who likewis e
expounded their own opinions about the NPA. It

Atty. Mamburam
was also announced in said seminar that a
certain Tonio Burgos, will be responsible for the
collection of the contribution from the members .
(TSN, pages 78-79, Hearing- January 4, 1983)
On May 12, 1982, however, Cesar Masamlok
surrendered to Captain Bargio of the Provincial
Headquarters of the Philippine Constabulary,
Digos, Davao del Sur.
Assistant Provincial Fiscal Panfilo Lovitos was
presented t prove that on May 19, 1982, he
administered the subscription of th extra-judicial
confession of accused Ruben Burgos, marked as
Exhibit "E " for the prosecution, consisting of
five (5) pages.
Appearing voluntarily in said office, for the
subscription of his confession, Fiscal Lovitos,
realizing that accused was not represented by
counsel, requested the services of Atty. Anyog,
whose office is adjacent to the Fiscal's Office, to
assist accused in the subscription of his extrajudicial statement.
Atty. Anyog assisted accused in the reading of
his confession from English to Visayan
language, resulting to the deletion of question
No. 19 of the document, by an inserted
certification of Atty. Anyog and signature of
accused, indicating his having understood, the
allegations of his extra-judicial statement.
Fiscal Lovitos, before accused signed his
statement, explained to him his constitutional
rights to remain silent, right to counsel and right
to answer any question propounded or not.
With the aid of Atty. Anyog, accused signed his
confession in the presence of Atty. Anyog and
Fiscal Lovitos, without the presence of military

authorities, who escorted the accused, but were
sent outside the cubicle of Fiscal Lovitos while
waiting for the accused. (TSN, pages 36-40,
nearing November 15, 1982)
Finally, in order to prove illegal possession by
accused of the subject firearm, Sgt. Epifanio
Comabig in-charge of firearms and explosives,
NCO Headquarter, Philippine Constabulary,
Digos, Davao del Sur, was presented and
testified, that among the lists of firearm holders
in Davao del Sur, nothing was listed in the name
of accused Ruben Burgos, neither was his name
included among the lists of persons who applied
for the licensing of the firearm under
Presidential Decree No. 1745.
After the above-testimony the prosecution
formally closed its case and offered its exhibits,
which were all admitted in evidence, despite
objection interposed by counsel for accused,
which was accordingly overruled.
On the other hand, the defendant-appellant's
version of the case against him is stated in the
decision as follows:
From his farm, the military personnel, whom he
said he cannot recognize, brought him to the PC
Barracks at Digos, Davao del Sur, and arrived
there at about 3:00 o'clock, on the same date. At
about 8:00 o'clock P.M., in the evening, he was
investigated by soldiers, whom he cannot
Identify because they were wearing a civilian
attire. (TSN, page 14 1, Hearing-June 15, 1983)
The investigation was conducted in the PC
barracks, where he was detained with respect to
the subject firearm, which the investigator,
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1-Sanchez Roman
wished him to admit but accused denied its
ownership. Because of his refusal accused was
mauled, hitting him on the left and right side of
his body which rendered him unconscious.
Accused in an atmosphere of tersed solemnity,
crying and with emotional attachment, described
in detail how he was tortured and the ordeals he
was subjected.
He said, after recovery of his consciousness, he
was again confronted with subject firearm,
Exhibit "A", for him to admit and when he
repeatedly refused to accept as his own firearm,
he was subjected to further prolong (sic) torture
and physical agony. Accused said, his eyes were
covered with wet black cloth with pungent effect
on his eyes. He was undressed, with only
blindfold, pungent water poured in his body and
over his private parts, making his entire body,
particularly his penis and testicle, terribly
irritating with pungent pain.
All along, he was investigated to obtain his
admission, The process of beating, mauling ,
pain and/or ordeal was repeatedly done in
similar cycle, from May 13 and 14, 1982.
intercepted only whenever he fell unconscious
and again repeated after recovery of his senses,
Finally on May 15, 1982, after undergoing the
same torture and physical ordeal he was
seriously warned, if he will still adamantly
refuse to accept ownership of the subject
firearm, he will be salvaged, and no longer able
to bear any further the pain and agony, accused
admitted ownership of subject firearm.
After his admission, the mauling and torture
stopped, but accused was made to sign his
affidavit marked as Exhibit "E" for the

Atty. Mamburam
prosecution, consisting of five (5) pages,
including the certification of the administering
officer, (TSN, pages 141-148, Hearing-June 15,
1983)
In addition to how he described the torture
inflicted on him, accused, by way of explanation
and commentary in details, and going one by
one, the allegations and/or contents of his
alleged extrajudicial statement, attributed his
answers to those questions involuntarily made
only because of fear, threat and intimidation of
his person and family, as a result of unbearable
excruciating pain he was subjected by an
investigator, who, unfortunately he cannot
Identify and was able to obtain his admission of
the subject firearm, by force and violence
exerted over his person.
To support denial of accused of being involved
in any subversive activities, and also to support
his denial to the truth of his alleged extra judicial confession, particularly questions Nos.
35, 38, 41, 42, 43, 44, 45, 46 and 47, along with
qqqs answers to those questions, involving
Honorata Arellano ahas Inday Arellano, said
Honorata Arellano appeared and declared
categorically,
that the above-questions
embraced in the numbers allegedly stated in the
extrajudicial confession of accused, involving
her to such NPA personalities, as Jamper, Pol,
Anthony, etc., were not true because on the date
referred on April 28, 1982, none of the persons
mentioned came to her house for treatment,
neither did she meet the accused nor able to talk
with him. (TSN, pages 118- 121, Hearing-May
18, 1983)
She, however, admitted being familiar with one
Oscar Gomez, and that she was personally
charged with subversion in the Office of the

Provincial
Commander,
Philippin e
Constabulary, Digos, Davao del Sur, but said
charge was dismissed without reaching the
Court. She likewise stated that her son, Rogelio
Arellano, was likewise charged for subversion
filed in the Municipal Trial Court of Digos,
Davao del Sur, but was likewise dismissed for
lack of sufficient evidence to sustain his
conviction. (TSN, pages 121-122, in relation to
her cross-examination, Hearing-May 18, 1983)
To support accused's denial of the charge against
him, Barangay Captain of Tiguman, Digos,
Davao del Sur, Salvador qqqGalaraga was
presented, who declared, he was not personally
aware of any subversive activities of accused,
being his neighbor and member of his barrio. On
the contrary, he can personally attest to his good
character and reputation, as a law abiding citizen
of his barrio, being a carpenter and farmer
thereat. (TSl pages 128-129, Hearing-May 18,
1983)
He however, admitted in cross -examination, that
there were a lot of arrests made by the authorities
in his barrio involving subversive activities but
they were released and were not formally
charged in Court because they publicly took
their oath of allegiance with the government.
(TSN, pages 133-134, in relation to page 136,
Hearing-May 18, 1983)
Finally, to support accused's denial of the
subject firearm, his wife, Urbana Burgos, was
presented and who testified that the subject
firearm was left in their house by Cesar
Masamlok and one Pedipol on May 10, 1982. It
was night time, when the two left the gun,
alleging that it was not in order, and that they
Page 29 of 71

1-Sanchez Roman
will leave it behind, temporarily for them to
claim it later. They were the ones who buried it.
She said, her husband, the accused, was not in
their house at that time and that she did not
inform him about said firearm neither did she
report the matter to the authorities, for fear of the
life of her husband. (TSN, page 24, November
22, 1983)
On cross-examination, she said, even if
Masamlok during the recovery of the firearm,
was wearing a mask, she can still Identify him.
(TSN, page 6, Hearing-November 22, 1983)

Atty. Mamburam
III
THE TRIAL COURT ERRED IN
HOLDING
ACCUSED-APPEL LA NT
GUILTY BEYOND REASONABLE DOUBT
FOR VIOLATION OF P.D. No. 9 IN
RELATION TO GENERA L ORDERS NOS. 6
AND 7
Was the arrest of Ruben Burgos lawful? Were
the search of his house and the subsequent
confiscation of a firearm and documents
allegedly found therein conducted in a lawfu l
and valid manner? Does the evidence sustaining
the crime charged meet the test of proving guilt
beyond reasonable doubt?
After the above-testimony, accused through

counsel formally rested his case in support of
accused's through counsel manifestation for the
demurrer to evidence of the prosecution, or in
the alternative for violation merely of simple
illegal possession of firearm, 'under the Revised
Administrative Code, as amended by Republic
Act No. 4, reflected in the manifestation of
counsel for accused. (TSN, pages 113-114,
Hearing-May 18, 1983)
The records of the case disclose that when the

police authorities went to the house of Ruben
Burgos for the purpose of arresting him upon
information given by Cesar Masamlok that the
accused allegedly recruited him to join the New
People's Army (NPA), they did not have any
warrant of arrest or search warrant with them
(TSN, p. 25, October 14, 1982; and TSN, p. 61,
November 15, 1982).
Accused-appellant Ruben Burgos now raises the

following assignments of error, to wit:
Article IV, Section 3 of the Constitution

provides:
I
HOLDING THAT (SIC) THE ARREST OF
ACCUSED-APPELLANT WITHOUT VALID
WARRANT TO BE LAWFUL.
The right of the people to be secure in their

unreasonable searches and seizures of whatever
nature and for any purpose shall not be violated,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined by the judge, or such other
responsible officer as may be authorized by law,
after examination under oath or affirmation of
the complainant and the witnesses he may
produce, and particularly describing the place to
II
HOLDING THE SEARCH IN THE HOUSE OF
ACCUSED-APPELLANT FOR FIREA RM
WITHOUT VALID WARRANT TO BE
LAWFUL.
be searched, and the persons or things to be

seized.
The constitutional provision is a safeguard
against wanton and unreasonable invasion of the
privacy and liberty of a citizen as to his person,
papers and effects. This Court explained in
Villanueva vs. Querubin (48 SCRA 345) why
this right is so important:
It is deference to one's personality that lies at the
core of this right, but it could be also looked
upon as a recognition of a constitutionally
protected area, primarily one's home, but not
necessarily thereto confined. (Cf. Hoffa v.
United States, 385 US 293 [19661) What is
sought to be guarded is a man's prerogative to
choose who is allowed entry to his residence. In
that haven of refuge, his individuality can assert
itself not only in the choice of who shall be
welcome but likewise in the kind of objects he
wants around him. There the state, however
powerful, does not as such have access except
under the circumstances above noted, for in the
traditional formulation, his house, however
humble, is his castle. Thus is outlawed any
unwarranted intrusion by government, which is
called upon to refrain from any invasion of his
dwelling and to respect the privacies of his life,
(Cf. Schmerber v. California, 384 US 757
[1966], Brennan, J. and Boyd v. United States,
116 US 616, 630 [1886]). In the same vein,
Landynski in his authoritative work (Search and
Seizure and the Supreme Court [1966], could
fitly characterize this constitutional right as the
embodiment of a 'spiritual concept: the belief
that to value the privacy of home and person and
to afford its constitutional protection against the
long reach of government is no legs than to value
human dignity, and that his privacy must not be
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1-Sanchez Roman
disturbed except in case of overriding social
need, and then only under stringent procedural
safeguards.' (Ibid, p. 47).
The trial court justified the arrest of the accusedappelant without any warrant as falling under
one of the instances when arrests may be validly
made without a warrant. Rule 113, Section 6 *
of the Rules of Court, provides the exceptions as
follows:
a)
When the person to be arrested has
committed, is actually committing, or is about to
commit an offense in his presence;
b)
When an offense has in fact been
committed, and he has reasonable ground to
believe that the person to be arrested has
committed it;
c)
is pending or has escaped while being
The Court stated that even if there was no
warrant for the arrest of Burgos , the fact that "the
authorities received an urgent report of accused's
involvement in subversive activities from a
reliable source (report of Cesar Masamlok) the
circumstances of his arrest, even without
judicial warrant, is lawfully within the ambit of
Section 6-A of Rule 113 of the Rules of Court
and applicable jurisprudence on the matter."
If the arrest is valid, the consequent search and
seizure of the firearm and the alleged subversive
documents would become an incident to a lawfu l

Atty. Mamburam
arrest as provided by Rule 126, Section 12,
which states:
A person charged with an offense may be
searched for dangerous weapons or anything
which may be used as proof of the commission
of the offense.
The conclusions reached by the trial court are
erroneous.
Under Section 6(a) of Rule 113, the officer
arresting a person who has just committed, is
committing, or is about to commit an offense
must have personal knowledge of that fact. The
offense must also be committed in his presence
or within his view. (Sayo v. Chief of Police, 80
Phil. 859).
There is no such personal knowledge in this
case. Whatever knowledge was possessed by the
arresting officers, it came in its entirety from the
information furnished by Cesar Masamlok. The
location of the firearm was given by the
appellant's wife.
At the time of the appellant's arrest, he was not
in actual possession of any firearm or subversive
document. Neither was he committing any act
which could be described as subversive. He was,
in fact, plowing his field at the time of the arrest.
The right of a person to be secure against any
unreasonable seizure of his body and any
deprivation of his liberty is a most basic and
fundamental one. The statute or rule which
allows exceptions to the requirement of warrants
of arrest is strictly construed. Any exception
must clearly fall within the situations when
securing a warrant would be absurd or is
manifestly unnecessary as provided by the Rule.

We cannot liberally construe the rule on arrests
without warrant or extend its application beyond
the cases specifically provided by law. To do so
would infringe upon personal liberty and set
back a basic right so often violated and so
deserving of full protection.
The Solicitor General is of the persuasion that
the arrest may still be considered lawful under
Section 6(b) using the test of reasonableness. He
submits that. the information given by Cesar
Masamlok was sufficient to induce a reasonable
ground that a crime has been committed and that
the accused is probably guilty thereof.
In arrests without a warrant under Section 6(b),
however, it is not enough that there is reasonable
ground to believe that the person to be arrested
has committed a crime. A crime must in fact or
actually have been committed first. That a crime
has actually been committed is an essential
precondition. It is not enough to suspect that a
crime may have been committed. The fact of the
commission of the offense must be undisputed.
The test of reasonable ground applies only to the
identity of the perpetrator.
In this case, the accused was arrested on the sole
basis of Masamlok's verbal report. Masamlok
led the authorities to suspect that the accused
had committed a crime. They were still fishing
for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on
the basis of information from the lips of a
frightened wife cannot make the arrest lawful, If
an arrest without warrant is unlawful at the
moment it is made, generally nothing that
happened or is discovered afterwards can make
Page 31 of 71

1-Sanchez Roman
it lawful. The fruit of a poisoned tree is
necessarily also tainted.
More important, we find no compelling reason
for the haste with which the arresting officers
sought to arrest the accused. We fail to see why
they failed to first go through the process of
obtaining a warrant of arrest, if indeed they had
reasonable ground to believe that the accused
had truly committed a crime. There is no
showing that there was a real apprehension that
the accused was on the verge of flight or escape.
Likewise, there is no showing that the
whereabouts of the accused were unknown,
The basis for the action taken by the arresting
officer was the verbal report made by Masamlok
who was not required to subscribe his
allegations under oath. There was no
compulsion for him to state truthfully his
charges under pain of criminal prosecution.
(TSN, p. 24, October 14, 1982). Consequently,
the need to go through the process of securing a
search warrant and a warrant of arrest becomes
even more clear. The arrest of the accused while
he was plowing his field is illegal. The arrest
being unlawful, the search and seizure which
transpired afterwards could not likewise be
deemed legal as being mere incidents to a valid
arrest.
Neither can it be presumed that there was a
waiver, or that consent was given by the accused
to be searched simply because he failed to
object. To constitute a waiver, it must appear
first that the right exists; secondly, that the
person involved had knowledge, actual or
constructive, of the existence of such a right; and
lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v.

Atty. Mamburam
Locsin, 65 Phil. 689). The fact that the accused
failed to object to the entry into his house does
not amount to a permission to make a search
therein (Magoncia v. Palacio, 80 Phil. 770). As
pointed out by Justice Laurel in the case of
Pasion Vda. de Garcia V. Locsin (supra)
xxx
xxx
Q Neither were you armed with a search

warrant?
A No Sir.
Q As a matter of fact, Burgos was not present in
his house when you went there?
xxx
. . . As the constitutional guaranty is not

dependent upon any affirmative act of the
citizen, the courts do not place the citizen in the
position of either contesting an officer's
authority by force, or waiving his constitutional
rights; but instead they hold that a peaceful
submission to a search or seizure is not a consent
or an invitation thereto, but is merely a
demonstration of regard for the supremacy of the
law. (56 C.J., pp. 1180, 1181).
A
But he was twenty meters away fro m
his house.
Q Ruben Burgos was then plowing his field?
A Yes Sir.
Q
When you called for Ruben Burgos you
interviewed him?
A
Yes Sir.
We apply the rule that: "courts indulge every

reasonable presumption against waiver of
fundamental constitutional rights and that we do
not presume acquiescence in the loss of
fundamental rights." (Johnson v. Zerbst 304
U.S. 458).
Q And that you told him that Masamlok

implicated him?
That the accused-appellant was not apprised of

any of his constitutional rights at the time of his
arrest is evident from the records:
A CALAMBA:
A That we received information that you have a

firearm, you surrender that firearm, first he
denied but when Sgt. Buncalan interviewed his
wife, his wife told him that it is buried, I dug the
firearm which was wrapped with a cellophane.
Q When you went to the area to arrest Ruben

Burgos, you were not armed with an arrest
warrant?
Q
In your interview of Burgos you did not
remind him of his rights under the constitution
considering that he was purposely under arrest?
A I did not.
None Sir.
No Sir.
Q What did you tell him?
Page 32 of 71

1-Sanchez Roman
Q
As a matter of fact, he denied that he
has ever a gun?
A
Yes Sir.
Q As a matter of fact, the gun was not in his

possession?
A
It was buried down in his horse.
Q As a matter of fact, Burgos did not point to

where it was buried?
A
Yes Sir.
(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the
alleged subversive documents were obtained in
violation of the accused's constitutional rights
against unreasonable searches and seizures, it
follows that they are inadmissible as evidence.
There is another aspect of this case.
In proving ownership of the questioned firearm
and alleged subversive documents, the
prosecution presented the two arresting officers
who testified that the accused readily admitted
ownership of the gun after qqqs wife pointed to
the place where it was buried. The officers stated
that it was the accused himself who voluntarily
pointed to the place where the alleged
subversive documents were hidden.
Assuming this to be true, it should be recalled
that the accused was never informed of his
constitutional rights at the time of his arrest. So
that when the accused allegedly admitted
ownership of the gun and pointed to the location

Atty. Mamburam
of the subversive documents after questioning,
the admissions were obtained in violation of the
constitutional right against self-incriminatio n
under Sec. 20 of Art. IV of the Bill of Rights
winch provides:
No person shall be compelled to be a witness
against himself. Any person under investigation
for the commission of an offense shall have the
right to remain silent and to counsel, and to be
informed of such right.. . .
The Constitution itself mandates that any
evidence obtained in violation of this right is
inadmissible in evidence. Consequently, the
testimonies of the arresting officers as to the
admissions made by the appellant cannot be
used against him.
The trial court validly rejected the extra-judicial
confession of the accused as inadmissible in
evidence. The court stated that the appellant's
having been exhaustively subjected to physical
terror, violence, and third degree measures may
not have been supported by reliable evidence but
the failure to present the investigator who
conducted the investigation gives rise to the
"provocative presumption" that indeed torture
and physical violence may have been committed
as stated.
The accused-appellant was not accorded his
constitutional right to be assisted by counsel
during the custodial interrogation. The lower
court correctly pointed out that the securing of
counsel, Atty. Anyog, to help the accused when
he subscribed under oath to his statement at the
Fiscal's Office was too late. It could have no
palliative effect. It cannot cure the absence of
counsel at the time of the custodial investigation
when the extrajudicial statement was being

taken.
With the extra-judicial confession, the firearm,
and the alleged subversive documents
inadmissible in evidence against the accusedappellant, the only remaining proof to sustain
the charge of Illegal Possession of Firearm in
Furtherance of Subversion is the testimony of
Cesar Masamlok.
We find the testimony of Masamlok inadequate
to convict Burgos beyond reasonable doubt. It is
true that the trial court found Masamlok's
testimony credible and convincing. However,
we are not necessarily bound by the credibilit y
which the trial court attaches to a particular
witness. As stated in People vs.. Cabrera (100
SCRA 424):
xxx
xxx
xxx
. . .Time and again we have stated that when it

comes to question of credibility the findings of
the trial court are entitled to great respect upon
appeal for the obvious reason th+at it was able
to observe the demeanor, actuations and
deportment of the witnesses during the trial. But
we have also said that this rule is not absolute
for otherwise there would be no reversals of
convictions upon appeal. We must reject the
findings of the trial court where the record
discloses circumstances of weight and substance
which were not properly appreciated by the trial
court.
The situation under which Cesar Masamlok
testified is analogous to that found in People vs.
Capadocia (17 SCRA 98 1):
Page 33 of 71

1-Sanchez Roman
. . . The case against appellant is built on
Ternura's testimony, and the issue hinges on
how much credence can be accorded to him. The
first consideration is that said testimony stands
uncorroborated. Ternura was the only witness
who testified on the mimeographing incident. . .
.
xxx
xxx

Atty. Mamburam
subversive activities or actually engaged in
subversive acts, the prosecution never presented
any other witness.
This Court is, therefore, constrained to rule that
the evidence presented by the prosecution is
insufficient to prove the guilt of the accused
beyond reasonable doubt.
xxx
. . .He was a confessed Huk under detention at

the time. He knew his fate depended upon how
much he cooperated with the authorities, who
were then engaged in a vigorous anti-dissident
campaign. As in the case of Rodrigo de Jesus,
whose testimony We discounted for the same
reason, that of Ternura cannot be considered as
proceeding from a totally unbiased source. . . .
In the instant case, Masamlok's testimony was
totally uncorroborated. Considering that
Masamlok surrendered to the military certainly
his fate depended on how eagerly he cooperated
with the authorities. Otherwise, he would also be
charged with subversion. The trade-off appears
to be his membership in the Civil Home Defense
Force. (TSN, p. 83, January 4, 1983). Masamlok
may be considered as an interested witness. It
can not be said that his testimony is free from the
opportunity and temptation to be exaggerated
and even fabricated for it was intended to secure
his freedom.
Despite the fact that there were other persons
present during the alleged NPA seminar of April
19, 1982 i.e., Masamlok's father ,Matuguil
Masamlok, Isabel Ilan and Ayok Ides (TSN, p.
74, January 4, 1983) who could have
corroborated Cesar Masamlok's testimony that
the accused used the gun in furtherance of
As held in the case of People vs. Baia (34 SCRA

347):
It is evident that once again, reliance can be
placed on People v. Dramayo (42 SCRA 59),
where after stressing that accusation is not,
according to the fundamental law, synonymous
with guilt, it was made clear: 'Only if the judge
below and the appellate tribunal could arrive at
a conclusion that the crime had been committed
precisely by the person on trial under such an
exacting test should the sentence be one of
conviction. It is thus required that every
circumstance favoring his innocence be duly
taken into account. The proof against him must
survive the test of reason; the strongest suspicion
must not be permitted to sway judgment. The
conscience must be satisfied that on the
defendant could be laid the responsibility for the
offense charged; that not only did he perpetrate
the act but that it amounted to a crime. What is
required then is moral certainty.' (Ibid, 64. Cf.
People v. Alvarez, 55 SCRA 81; People v.
Joven, 64 SCRA 126; People vs. Ramirez, 69
SCRA 144; People vs. Godov 72 SCRA 69;
People v. Lopez, 74 SCRA 205; People v.
Poblador, 76 SCRA 634; People v. Quiazon, 78
SCRA 513; People v. Nazareno, 80 SCRA 484;
People vs. Gabilan 115 SCRA 1; People v.
Gabiana, 117 SCRA 260; and People vs. Ibanga
124 SCRA 697).
We are aware of the serious problems faced by

the military in Davao del Sur where there
appears to be a well-organized plan to overthrow
the Government through armed struggle and
replace it with an alien system based on a foreign
ideology. The open defiance against duly
constituted authorities has resulted in
unfortunate levels of violence and human
suffering publicized all over the country and
abroad. Even as we reiterate the need for all
freedom loving citizens to assist the military
authorities in their legitimate efforts to maintain
peace and national security, we must also
remember the dictum in Morales vs. Enrile (1 21
SCRA 538, 569) when this Court stated:
While the government should continue to repel
the communists, the subversives, the rebels, and
the lawless with an the means at its command, it
should always be remembered that whatever
action is taken must always be within the
framework of our Constitution and our laws.
Violations of human rights do not help in
overcoming a rebellion. A cavalier attitude
towards constitutional liberties and protections
will only fan the increase of subversive activities
instead of containing and suppressing them.
WHEREFORE, the judgment of conviction
rendered by the trial court is REVERSED and
SET ASIDE. The accused-appellant is hereby
ACQUITTED, on grounds of reasonable doubt,
of the crime with which he has been charged.
The subject firearm involved in this case
(homemade revolver, caliber .38, Smith and
Wesson, with Serial No. 8.69221) and the
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alleged subversive documents are ordered
disposed of in accordance with law.
Cost de oficio.

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In cases falling under paragraphs (a) and (b)
hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest Police
station or i jail and he shall be proceeded against
in accordance with Rule 11 2, Section 7. 6a 17a).
SO ORDERED.
Feria (Chairman), Fernan, Alampay and Paras,
JJ., concur.
Footnotes
*
The 1985 Rules on Criminal Procedure
have made clearer the exceptions when an arrest
may be made without warrant. Rule 113, Section
5 provides:
Arrest without warrant when lawful. A peace
officer or a private person may, without a
warrant, arrest a person:
(a)
or is attempting to commit an offense,
(b)
committed it; and
(c)
is pending, or has escaped while being
EXPULSION
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639
March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL.,

petitioners,
vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.
City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a
case quite as remarkable as the one which this
application for habeas corpus submits for
decision. While hardly to be expected to be met
with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no

great difficulty if there is kept in the forefront of
our minds the basic principles of popular
government, and if we give expression to the
paramount purpose for which the courts, as an
independent power of such a government, were
constituted. The primary question is Shall the
judiciary permit a government of the men
instead of a government of laws to be set up in
the Philippine Islands?
Omitting much extraneous matter, of no
moment to these proceedings, but which might
prove profitable reading for other departments
of the government, the facts are these: The
Mayor of the city of Manila, Justo Lukban, for
the best of all reasons, to exterminate vice,
ordered the segregated district for women of ill
repute, which had been permitted for a number
of years in the city of Manila, closed. Between
October 16 and October 25, 1918, the women
were kept confined to their houses in the district
by the police. Presumably, during this period,
the city
authorities quietly
perfected
arrangements with the Bureau of Labor for
sending the women to Davao, Mindanao, as
laborers; with some government office for the
use of the coastguard cutters Corregidor and
Negros, and with the Constabulary for a guard
of soldiers. At any rate, about midnight of
October 25, the police, acting pursuant to orders
from the chief of police, Anton Hohmann and
the Mayor of the city of Manila, Justo Lukban,
descended upon the houses, hustled some 170
inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival.
The women were given no opportunity to collect
their belongings, and apparently were under the
impression that they were being taken to a police
station for an investigation. They had no
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knowledge that they were destined for a life in
Mindanao. They had not been asked if they
wished to depart from that region and had
neither directly nor indirectly given their
consent to the deportation. The involuntary
guests were received on board the steamers by a
representative of the Bureau of Labor and a
detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed
for Davao during the night of October 25.
The vessels reached their destination at Davao
on October 29. The women were landed and
receipted for as laborers by Francisco Sales,
provincial governor of Davao, and by Felician o
Yigo and Rafael Castillo. The governor and the
hacendero Yigo, who appear as parties in the
case, had no previous notification that the
women were prostitutes who had been expelled
from the city of Manila. The further happenings
to these women and the serious charges growing
out of alleged ill-treatment are of public interest,
but are not essential to the disposition of this
case. Suffice it to say, generally, that some of the
women married, others assumed more or less
clandestine relations with men, others went to
work in different capacities, others assumed a
life unknown and disappeared, and a goodly
portion found means to return to Manila.
To turn back in our narrative, just about the time
the Corregidor and the Negros were putting in to
Davao, the attorney for the relatives and friends
of a considerable number of the deportees
presented an application for habeas corpus to a
member of the Supreme Court. Subsequently,
the application, through stipulation of the
parties, was made to include all of the women
who were sent away from Manila to Davao and,
as the same questions concerned them all, the

Atty. Mamburam
application will be considered as including
them. The application set forth the salient facts,
which need not be repeated, and alleged that the
women were illegally restrained of their liberty
by Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of
Manila, and by certain unknown parties. The
writ was made returnable before the full court.
The city fiscal appeared for the respondents,
Lukban and Hohmann, admitted certain facts
relative to sequestration and deportation, and
prayed that the writ should not be granted
because the petitioners were not proper parties,
because the action should have been begun in
the Court of First Instance for Davao,
Department of Mindanao and Sulu, because the
respondents did not have any of the women
under their custody or control, and because their
jurisdiction did not extend beyond the
boundaries of the city of Manila. According to
an exhibit attached to the answer of the fiscal,
the 170 women were destined to be laborers, at
good salaries, on the haciendas of Yigo and
Governor Sales. In open court, the fiscal
admitted, in answer to question of a member of
the court, that these women had been sent out of
Manila without their consent. The court awarded
the writ, in an order of November 4, that directed
Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of
Manila, Francisco Sales, governor of the
province of Davao, and Feliciano Yigo, an
hacendero of Davao, to bring before the court
the persons therein named, alleged to be
deprived of their liberty, on December 2, 1918.
Before the date mentioned, seven of the women
had returned to Manila at their own expense. On
motion of counsel for petitioners, their
testimony was taken before the clerk of the
Supreme Court sitting as commissioners. On the

day named in the order, December 2nd, 1918,
none of the persons in whose behalf the writ was
issued were produced in court by the
respondents. It has been shown that three of
those who had been able to come back to Manila
through their own efforts, were notified by the
police and the secret service to appear before the
court. The fiscal appeared, repeated the facts
more comprehensively, reiterated the stand
taken by him when pleading to the original
petition copied a telegram from the Mayor of the
city of Manila to the provincial governor of
Davao and the answer thereto, and telegrams
that had passed between the Director of Labor
and the attorney for that Bureau then in Davao,
and offered certain affidavits showing that the
women were contained with their life in
Mindanao and did not wish to return to Manila.
Respondents Sales answered alleging that it was
not possible to fulfill the order of the Supreme
Court because the women had never been under
his control, because they were at liberty in the
Province of Davao, and because they had
married or signed contracts as laborers.
Respondent Yigo answered alleging that he did
not have any of the women under his control and
that therefore it was impossible for him to obey
the mandate. The court, after due deliberation,
on December 10, 1918, promulgated a second
order, which related that the respondents had not
complied with the original order to the
satisfaction of the court nor explained their
failure to do so, and therefore directed that those
of the women not in Manila be brought before
the court by respondents Lukban, Hohmann,
Sales, and Yigo on January 13, 1919, unless the
women should, in written statements voluntarily
made before the judge of first instance of Davao
or the clerk of that court, renounce the right, or
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unless the respondents should demonstrate some
other legal motives that made compliance
impossible. It was further stated that the
question of whether the respondents were in
contempt of court would later be decided and the
reasons for the order announced in the final
decision.
Before January 13, 1919, further testimony
including that of a number of the women, of
certain detectives and policemen, and of the
provincial governor of Davao, was taken before
the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First
Instance of Davao acting in the same capacity.
On January 13, 1919, the respondents
technically presented before the Court the
women who had returned to the city through
their own efforts and eight others who had been
brought to Manila by the respondents. Attorneys
for the respondents, by their returns, once again
recounted the facts and further endeavored to
account for all of the persons involved in the
habeas corpus. In substance, it was stated that
the respondents, through their representatives
and agents, had succeeded in bringing from
Davao with their consent eight women; that
eighty-one women were found in Davao who, on
notice that if they desired they could return to
Manila, transportation fee, renounced the right
through sworn statements; that fifty-nine had
already returned to Manila by other means, and
that despite all efforts to find them twenty-six
could not be located. Both counsel for
petitioners and the city fiscal were permitted to
submit memoranda. The first formally asked the
court to find Justo Lukban, Mayor of the city of
Manila, Anton Hohmann, chief of police of the
city of Manila, Jose Rodriguez and Fernando
Ordax, members of the police force of the city

Atty. Mamburam
of Manila, Feliciano Yigo, an hacendero of
Davao, Modesto Joaquin, the attorney for the
Bureau of Labor, and Anacleto Diaz, fiscal of
the city of Manila, in contempt of court. The city
fiscal requested that the replica al memorand u m
de los recurridos, (reply to respondents'
memorandum) dated January 25, 1919, be struck
from the record.
In the second order, the court promised to give
the reasons for granting the writ of habeas
corpus in the final decision. We will now
proceed to do so.
One fact, and one fact only, need be recalled
these one hundred and seventy women were
isolated from society, and then at night, without
their consent and without any opportunity to
consult with friends or to defend their rights,
were forcibly hustled on board steamers for
transportation to regions unknown. Despite the
feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case
is shown by the mere fact that the presence of
the police and the constabulary was deemed
necessary and that these officers of the law
chose the shades of night to cloak their secret
and stealthy acts. Indeed, this is a fact
impossible to refute and practically admitted by
the respondents.
With this situation, a court would next expect to
resolve the question By authority of what law
did the Mayor and the Chief of Police presume
to act in deporting by duress these persons from
Manila to another distant locality within the
Philippine Islands? We turn to the statutes and
we find
Alien prostitutes can be expelled from the

Philippine Islands in conformity with an Act of
congress. The Governor-General can order the
eviction of undesirable aliens after a hearing
from the Islands. Act No. 519 of the Philippin e
Commission and section 733 of the Revised
Ordinances of the city of Manila provide for the
conviction and punishment by a court of justice
of any person who is a common prostitute. Act
No. 899 authorizes the return of any citizen of
the United States, who may have been convicted
of vagrancy, to the homeland. New York and
other States have statutes providing for the
commitment to the House of Refuge of women
convicted of being common prostitutes. Always
a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a
leprous person in the Culion leper colony, it is
done pursuant to some law or order. But one can
search in vain for any law, order, or regulation,
which even hints at the right of the Mayor of the
city of Manila or the chief of police of that city
to force citizens of the Philippine Islands and
these women despite their being in a sense lepers
of society are nevertheless not chattels but
Philippine citizens protected by the same
constitutional guaranties as are other citizens
to change their domicile from Manila to another
locality. On the contrary, Philippine penal law
specifically punishes any public officer who, not
being expressly authorized by law or regulation,
compels any person to change his residence.
In other countries, as in Spain and Japan, the
privilege of domicile is deemed so important as
to be found in the Bill of Rights of the
Constitution. Under the American constitutional
system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so
elementary in nature as not even to require a
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constitutional sanction. Even the GovernorGeneral of the Philippine Islands, even the
President of the United States, who has often
been said to exercise more power than any king
or potentate, has no such arbitrary prerogative,
either inherent or express. Much less, therefore,
has the executive of a municipality, who acts
within a sphere of delegated powers. If the
mayor and the chief of police could, at their
mere behest or even for the most praiseworthy
of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police
of one thousand other municipalities of the
Philippines have the same privilege. If these
officials can take to themselves such power, then
any other official can do the same. And if any
official can exercise the power, then all persons
would have just as much right to do so. And if a
prostitute could be sent against her wishes and
under no law from one locality to another within
the country, then officialdom can hold the same
club over the head of any citizen.
Law defines power. Centuries ago Magna
Charta decreed that "No freeman shall be
taken, or imprisoned, or be disseized of his
freehold, or liberties, or free customs, or be
outlawed, or exiled, or any other wise destroyed;
nor will we pass upon him nor condemn him, but
by lawful judgment of his peers or by the law of
the land. We will sell to no man, we will not
deny or defer to any man either justice or right."
(Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1
eng. stat. at Large, 7.) No official, no matter how
high, is above the law. The courts are the forum
which functionate to safeguard individual
liberty and to punish official transgressors. "The
law," said Justice Miller, delivering the opinion
of the Supreme Court of the United States, "is
the only supreme power in our system of

Atty. Mamburam
government, and every man who by accepting
office participates in its functions is only the
more strongly bound to submit to that
supremacy, and to observe the limitations which
it imposes upon the exercise of the authority
which it gives." (U.S. vs. Lee [1882], 106 U.S.,
196, 220.) "The very idea," said Justice
Matthews of the same high tribunal in another
case, "that one man may be compelled to hold
his life, or the means of living, or any material
right essential to the enjoyment of life, at the
mere will of another, seems to be intolerable in
any country where freedom prevails, as being
the essence of slavery itself." (Yick Wo vs.
Hopkins [1886], 118 U.S., 356, 370.) All this
explains the motive in issuing the writ of habeas
corpus, and makes clear why we said in the very
beginning that the primary question was whether
the courts should permit a government of men or
a government of laws to be established in the
Philippine Islands.
What are the remedies of the unhappy victims of
official oppression? The remedies of the citizen
are three: (1) Civil action; (2) criminal action,
and (3) habeas corpus.
The first is an optional but rather slow process
by which the aggrieved party may recoup money
damages. It may still rest with the parties in
interest to pursue such an action, but it was never
intended effectively and promptly to meet any
such situation as that now before us.
As to criminal responsibility, it is true that the
Penal Code in force in these Islands provides:
Any public officer not thereunto authorized by
law or by regulations of a general character in
force in the Philippines who shall banish any
person to a place more than two hundred

kilometers distant from his domicile, except it be
by virtue of the judgment of a court, shall be
punished by a fine of not less than three hundred
and twenty-five and not more than three
thousand two hundred and fifty pesetas.
Any public officer not thereunto expressly
authorized by law or by regulation of a general
character in force in the Philippines who shall
compel any person to change his domicile or
residence shall suffer the penalty of destierro
and a fine of not less than six hundred and
twenty-five and not more than six thousand two
hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due
investigation, the proper prosecuting officers
find that any public officer has violated this
provision of law, these prosecutors will institute
and press a criminal prosecution just as
vigorously as they have defended the same
official in this action. Nevertheles s, that the act
may be a crime and that the persons guilty
thereof can be proceeded against, is no bar to the
instant proceedings. To quote the words of
Judge Cooley in a case which will later be
referred to "It would be a monstrous anomaly
in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be
a sufficient answer that the confinement was a
crime, and therefore might be continued
indefinitely until the guilty party was tried and
punished therefor by the slow process of
criminal procedure." (In the matter of Jackson
[1867], 15 Mich., 416, 434.) The writ of habeas
corpus was devised and exists as a speedy and
effectual remedy to relieve persons fro m
unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any
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further rights of the parties are left untouched by
decision on the writ, whose principal purpose is
to set the individual at liberty.
Granted that habeas corpus is the proper remedy,
respondents have raised three specific
objections to its issuance in this instance. The
fiscal has argued (l) that there is a defect in
parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the
person in question are not restrained of their
liberty by respondents. It was finally suggested
that the jurisdiction of the Mayor and the chief
of police of the city of Manila only extends to
the city limits and that perforce they could not
bring the women from Davao.
The first defense was not presented with any
vigor by counsel. The petitioners were relatives
and friends of the deportees. The way the
expulsion was conducted by the city officials
made it impossible for the women to sign a
petition for habeas corpus. It was consequently
proper for the writ to be submitted by persons in
their behalf. (Code of Criminal Procedure, sec.
78; Code of Civil Procedure, sec. 527.) The law,
in its zealous regard for personal liberty, even
makes it the duty of a court or judge to grant a
writ of habeas corpus if there is evidence that
within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty,
though no application be made therefor. (Code
of Criminal Procedure, sec. 93.) Petitioners had
standing in court.
The fiscal next contended that the writ should
have been asked for in the Court of First Instance
of Davao or should have been made returnable
before that court. It is a general rule of good
practice that, to avoid unnecessary expense and

Atty. Mamburam
inconvenience, petitions for habeas corpus
should be presented to the nearest judge of the
court of first instance. But this is not a hard and
fast rule. The writ of habeas corpus may be
granted by the Supreme Court or any judge
thereof enforcible anywhere in the Philippin e
Islands. (Code of Criminal Procedure, sec. 79;
Code of Civil Procedure, sec. 526.) Whether the
writ shall be made returnable before the
Supreme Court or before an inferior court rests
in the discretion of the Supreme Court and is
dependent on the particular circumstances. In
this instance it was not shown that the Court of
First Instance of Davao was in session, or that
the women had any means by which to advance
their plea before that court. On the other hand, it
was shown that the petitioners with their
attorneys, and the two original respondents with
their attorney, were in Manila; it was shown that
the case involved parties situated in different
parts of the Islands; it was shown that the women
might still be imprisoned or restrained of their
liberty; and it was shown that if the writ was to
accomplish its purpose, it must be taken
cognizance of and decided immediately by the
appellate court. The failure of the superior court
to consider the application and then to grant the
writ would have amounted to a denial of the
benefits of the writ.
The last argument of the fiscal is more plausible
and more difficult to meet. When the writ was
prayed for, says counsel, the parties in whose
behalf it was asked were under no restraint; the
women, it is claimed, were free in Davao, and
the jurisdiction of the mayor and the chief of
police did not extend beyond the city limits. At
first blush, this is a tenable position. On closer
examination, acceptance of such dictum is found
to be perversive of the first principles of the writ

of habeas corpus.
A prime specification of an application for a writ
of habeas corpus is restraint of liberty. The
essential object and purpose of the writ of
habeas corpus is to inquire into all manner of
involuntary restraint as distinguished fro m
voluntary, and to relieve a person therefrom if
such restraint is illegal. Any restraint which will
preclude freedom of action is sufficient. The
forcible taking of these women from Manila by
officials of that city, who handed them over to
other parties, who deposited them in a distant
region, deprived these women of freedom of
locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either
money or personal belongings, they were
prevented from exercising the liberty of going
when and where they pleas ed. The restraint of
liberty which began in Manila continued until
the aggrieved parties were returned to Manila
and released or until they freely and truly waived
his right.
Consider for a moment what an agreement with
such a defense would mean. The chief executive
of any municipality in the Philippines could
forcibly and illegally take a private citizen and
place him beyond the boundaries of the
municipality, and then, when called upon to
defend his official action, could calmly fold his
hands and claim that the person was under no
restraint and that he, the official, had no
jurisdiction over this other municipality. We
believe the true principle should be that, if the
respondent is within the jurisdiction of the court
and has it in his power to obey the order of the
court and thus to undo the wrong that he has
inflicted, he should be compelled to do so. Even
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if the party to whom the writ is addressed has
illegally parted with the custody of a person
before the application for the writ is no reason
why the writ should not issue. If the mayor and
the chief of police, acting under no authority of
law, could deport these women from the city of
Manila to Davao, the same officials must
necessarily have the same means to return them
from Davao to Manila. The respondents, within
the reach of process, may not be permitted to
restrain a fellow citizen of her liberty by forcing
her to change her domicile and to avow the act
with impunity in the courts, while the person
who has lost her birthright of liberty has no
effective recourse. The great writ of liberty may
not thus be easily evaded.
It must be that some such question has
heretofore been presented to the courts for
decision. Nevertheless, strange as it may seem,
a close examination of the authorities fails to
reveal any analogous case. Certain decisions of
respectable courts are however very persuasive
in nature.
A question came before the Supreme Court of
the State of Michigan at an early date as to
whether or not a writ of habeas corpus would
issue from the Supreme Court to a person within
the jurisdiction of the State to bring into the State
a minor child under guardianship in the State,
who has been and continues to be detained in
another State. The membership of the Michigan
Supreme Court at this time was notable. It was
composed of Martin, chief justice, and Cooley,
Campbell, and Christiancy, justices. On the
question presented the court was equally
divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be
quashed. Cooley, J., one of the most

Atty. Mamburam
distinguished American judges and law-writers ,
with whom concurred Christiancy, J., held that
the writ should issue. Since the opinion of
Justice Campbell was predicated to a large
extent on his conception of the English
decisions, and since, as will hereafter appear, the
English courts have taken a contrary view, only
the following eloquent passages from the
opinion of Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the
power of this court to issue the present writ on
the petition which was laid before us. . . .
It would be strange indeed if, at this late day,
after the eulogiums of six centuries and a half
have been expended upon the Magna Charta,
and rivers of blood shed for its establishment;
after its many confirmations, until Coke could
declare in his speech on the petition of right that
"Magna Charta was such a fellow that he will
have no sovereign," and after the extension of its
benefits and securities by the petition of right,
bill of rights and habeas corpus acts, it should
now be discovered that evasion of that great
clause for the protection of personal liberty,
which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is
so, it is important that it be determined without
delay, that the legislature may apply the proper
remedy, as I can not doubt they would, on the
subject being brought to their notice. . . .
The second proposition that the statutory
provisions are confined to the case of
imprisonment within the state seems to me to
be based upon a misconception as to the source
of our jurisdiction. It was never the case in
England that the court of king's bench derived its
jurisdiction to issue and enforce this writ fro m
the statute. Statutes were not passed to give the

right, but to compel the observance of rights
which existed. . . .
The important fact to be observed in regard to
the mode of procedure upon this writ is, that it is
directed to and served upon, not the person
confined, but his jailor. It does not reach the
former except through the latter. The officer or
person who serves it does not unbar the prison
doors, and set the prisoner free, but the court
relieves him by compelling the oppressor to
release his constraint. The whole force of the
writ is spent upon the respondent, and if he fails
to obey it, the means to be resorted to for the
purposes of compulsion are fine and
imprisonment. This is the ordinary mode of
affording relief, and if any other means are
resorted to, they are only auxiliary to those
which are usual. The place of confinement is,
therefore, not important to the relief, if the guilty
party is within reach of process, so that by the
power of the court he can be compelled to
release his grasp. The difficulty of affording
redress is not increased by the confinement
being beyond the limits of the state, except as
greater distance may affect it. The important
question is, where the power of control
exercised? And I am aware of no other remedy.
(In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been
accepted as authoritative by other courts.
(Rivers vs. Mitchell [1881], 57 Iowa, 193;
Breene vs. People [1911], Colo., 117 Pac. Rep.,
1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful
consideration to the subject. Thus, a child had
been taken out of English by the respondent. A
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writ of habeas corpus was issued by the Queen's
Bench Division upon the application of the
mother and her husband directing the defendant
to produce the child. The judge at chambers gave
defendant until a certain date to produce the
child, but he did not do so. His return stated that
the child before the issuance of the writ had been
handed over by him to another; that it was no
longer in his custody or control, and that it was
impossible for him to obey the writ. He was
found in contempt of court. On appeal, the court,
through Lord Esher, M. R., said:
A writ of habeas corpus was ordered to issue,
and was issued on January 22. That writ
commanded the defendant to have the body of
the child before a judge in chambers at the Royal
Courts of Justice immediately after the receipt of
the writ, together with the cause of her being
taken and detained. That is a command to bring
the child before the judge and must be obeyed,
unless some lawful reason can be shown to
excuse the nonproduction of the child. If it could
be shown that by reason of his having lawfully
parted with the possession of the child before the
issuing of the writ, the defendant had no longer
power to produce the child, that might be an
answer; but in the absence of any lawful reason
he is bound to produce the child, and, if he does
not, he is in contempt of the Court for not
obeying the writ without lawful excuse. Many
efforts have been made in argument to s hift the
question of contempt to some anterior period for
the purpose of showing that what was done at
some time prior to the writ cannot be a contempt.
But the question is not as to what was done
before the issue of the writ. The question is
whether there has been a contempt in disobeying
the writ it was issued by not producing the child
in obedience to its commands. (The Queen vs.

Atty. Mamburam
Bernardo [1889], 23 Q. B. D., 305. See also to
the same effect the Irish case of In re Matthews,
12 Ir. Com. Law Rep. [N. S.], 233; The Queen
vs. Barnardo, Gossage's Case [1890], 24 Q. B.
D., 283.)
A decision coming from the Federal Courts is
also of interest. A habeas corpus was directed to
the defendant to have before the circuit court of
the District of Columbia three colored persons,
with the cause of their detention. Davis, in his
return to the writ, stated on oath that he had
purchased the negroes as slaves in the city of
Washington; that, as he believed, they were
removed beyond the District of Columbia before
the service of the writ of habeas corpus, and that
they were then beyond his control and out of his
custody. The evidence tended to show that Davis
had removed the negroes because he suspected
they would apply for a writ of habeas corpus.
The court held the return to be evasive and
insufficient, and that Davis was bound to
produce the negroes, and Davis being present in
court, and refusing to produce them, ordered that
he be committed to the custody of the marshall
until he should produce the negroes, or be
otherwise discharged in due course of law. The
court afterwards ordered that Davis be released
upon the production of two of the negroes, for
one of the negroes had run away and been
lodged in jail in Maryland. Davis produced the
two negroes on the last day of the term. (United
States vs. Davis [1839], 5 Cranch C.C., 622,
Fed. Cas. No. 14926. See also Robb vs.
Connolly [1883], 111 U.S., 624; Church on
Habeas, 2nd ed., p. 170.)
We find, therefore, both on reason and authority,
that no one of the defense offered by the
respondents constituted a legitimate bar to the

granting of the writ of habeas corpus.
There remains to be considered whether the
respondent complied with the two orders of the
Supreme Court awarding the writ of habeas
corpus, and if it be found that they did not,
whether the contempt should be punished or be
taken as purged.
The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in
the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The
respondents were thus given ample time,
practically one month, to comply with the writ .
As far as the record discloses, the Mayor of the
city of Manila waited until the 21st of November
before sending a telegram to the provincial
governor of Davao. According to the response
of the attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao
women who desired to return to Manila, but who
should not be permitted to do so because of
having contracted debts. The half-hearted effort
naturally resulted in none of the parties in
question being brought before the court on the
day named.
For the respondents to have fulfilled the court's
order, three optional courses were open: (1)
They could have produced the bodies of the
persons according to the command of the writ;
or (2) they could have shown by affidavit that on
account of sickness or infirmity those persons
could not safely be brought before the court; or
(3) they could have presented affidavits to show
that the parties in question or their attorney
waived the right to be present. (Code of Crimin al
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Procedure, sec. 87.) They did not produce the
bodies of the persons in whose behalf the writ
was granted; they did not show impossibility of
performance; and they did not present writings
that waived the right to be present by those
interested. Instead a few stereotyped affidavits
purporting to show that the women were
contended with their life in Davao, some of
which have since been repudiated by the signers,
were appended to the return. That through
ordinary diligence a considerable number of the
women, at least sixty, could have been brought
back to Manila is demonstrated to be found in
the municipality of Davao, and that about this
number either returned at their own expense or
were produced at the second hearing by the
respondents.
The court, at the time the return to its first order
was made, would have been warranted
summarily in finding the respondents guilty of
contempt of court, and in sending them to jail
until they obeyed the order. Their excuses for the
non-production of the persons were far fro m
sufficient. The, authorities cited herein
pertaining to somewhat similar facts all tend to
indicate with what exactitude a habeas corpus
writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an
earlier decision of the Court, said: "We thought
that, having brought about that state of things by
his own illegal act, he must take the
consequences; and we said that he was bound to
use every effort to get the child back; that he
must do much more than write letters for the
purpose; that he must advertise in America, and
even if necessary himself go after the child, and
do everything that mortal man could do in the
matter; and that the court would only accept
clear proof of an absolute impossibility by way

Atty. Mamburam
of excuse." In other words, the return did not
show that every possible effort to produce the
women was made by the respondents. That the
court forebore at this time to take drastic action
was because it did not wish to see presented to
the public gaze the spectacle of a clash between
executive officials and the judiciary, and
because it desired to give the respondents
another chance to demonstrate their good faith
and to mitigate their wrong.
In response to the second order of the court, the
respondents appear to have become more
zealous and to have shown a better spirit. Agents
were dispatched to Mindanao, placards were
posted, the constabulary and the municipal
police joined in rounding up the women, and a
steamer with free transportation to Manila was
provided. While charges and counter-charges in
such a bitterly contested case are to be expected,
and while a critical reading of the record might
reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a
substantial compliance with it. Our finding to
this effect may be influenced somewhat by our
sincere desire to see this unhappy incident
finally closed. If any wrong is now being
perpetrated in Davao, it should receive an
executive investigation. If any particular
individual is still restrained of her liberty, it can
be made the object of separate habeas corpus
proceedings.
Since the writ has already been granted, and
since we find a substantial compliance with it,
nothing further in this connection remains to be
done.
The attorney for the petitioners asks that we find
in contempt of court Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police

of the city of Manila, Jose Rodriguez, and
Fernando Ordax, members of the police force of
the city of Manila, Modesto Joaquin, the
attorney for the Bureau of Labor, Felician o
Yigo, an hacendero of Davao, and Anacleto
Diaz, Fiscal of the city of Manila.
The power to punish for contempt of court
should be exercised on the preservative and not
on the vindictive principle. Only occasionally
should the court invoke its inherent power in
order to retain that respect without which the
administration of justice must falter or fail.
Nevertheless when one is commanded to
produce a certain person and does not do so, and
does not offer a valid excuse, a court must, to
vindicate its authority, adjudge the respondent to
be guilty of contempt, and must order him either
imprisoned or fined. An officer's failure to
produce the body of a person in obedience to a
writ of habeas corpus when he has power to do
so, is a contempt committed in the face of the
court. (Ex parte Sterns [1888], 77 Cal., 156; In
re Patterson [1888], 99 N. C., 407.)
With all the facts and circumstances in mind ,
and with judicial regard for human
imperfections, we cannot say that any of the
respondents, with the possible exception of the
first named, has flatly disobeyed the court by
acting in opposition to its authority.
Respondents Hohmann, Rodriguez, Ordax, and
Joaquin only followed the orders of their chiefs,
and while, under the law of public officers, this
does not exonerate them entirely, it is
nevertheless
a
powerful
mitigatin g
circumstance. The hacendero Yigo appears to
have been drawn into the case through a
misconstruction by counsel of telegraphic
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communications. The city fiscal, Anacleto Diaz,
would seem to have done no more than to fulfill
his duty as the legal representative of the city
government. Finding him innocent of any
disrespect to the court, his counter-motion to
strike from the record the memorandum of
attorney for the petitioners, which brings him
into this undesirable position, must be granted.
When all is said and done, as far as this record
discloses, the official who was primarily
responsible for the unlawful deportation, who
ordered the police to accomplish the same, who
made arrangements for the steamers and the
constabulary, who conducted the negotiations
with the Bureau of Labor, and who later, as the
head of the city government, had it within his
power to facilitate the return of the unfortunate
women to Manila, was Justo Lukban, the Mayor
of the city of Manila. His intention to suppress
the social evil was commendable. His methods
were unlawful. His regard for the writ of habeas
corpus issued by the court was only tardily and
reluctantly acknowledged.
It would be possible to turn to the provisions of
section 546 of the Code of Civil Procedure,
which relates to the penalty for disobeying the
writ, and in pursuance thereof to require
respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would
reach to many thousands of pesos, and in
addition to deal with him as for a contempt.
Some members of the court are inclined to this
stern view. It would also be possible to find that
since respondent Lukban did comply
substantially with the second order of the court,
he has purged his contempt of the first order.
Some members of the court are inclined to this
merciful view. Between the two extremes
appears to lie the correct finding. The failure of

Atty. Mamburam
respondent Lukban to obey the first mandate of
the court tended to belittle and embarrass the
administration of justice to such an extent that
his later activity may be considered only as
extenuating his conduct. A nominal fine will at
once command such respect without being
unduly oppressive such an amount is P100.
In resume as before stated, no further action
on the writ of habeas corpus is necessary. The
respondents Hohmann, Rodriguez, Ordax,
Joaquin, Yigo, and Diaz are found not to be in
contempt of court. Respondent Lukban is found
in contempt of court and shall pay into the office
of the clerk of the Supreme Court within five
days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike
from the record the Replica al Memorandum de
los Recurridos of January 25, 1919, is granted.
Costs shall be taxed against respondents. So
ordered.
In concluding this tedious and disagreeable task,
may we not be permitted to express the hope that
this decision may serve to bulwark the
fortifications of an orderly government of laws
and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.
Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the
opinion of the majority in the decision of the
habeas corpus proceeding against Justo Lukban,

the mayor of this city.
There is nothing in the record that shows the
motive which impelled Mayor Lukban to oblige
a great number of women of various ages,
inmates of the houses of prostitution situated in
Gardenia Street, district of Sampaloc, to change
their residence.
We know no express law, regulation, or
ordinance which clearly prohibits the opening of
public houses of prostitution, as those in the said
Gardenia Street, Sampaloc. For this reason,
when more than one hundred and fifty women
were assembled and placed aboard a steamer and
transported to Davao, considering that the
existence of the said houses of prostitution has
been tolerated for so long a time, it is undeniable
that the mayor of the city, in proceeding in the
manner shown, acted without authority of any
legal provision which constitutes an exception to
the laws guaranteeing the liberty and the
individual rights of the residents of the city of
Manila.
We do not believe in the pomp and obstentation
of force displayed by the police in complying
with the order of the mayor of the city; neither
do we believe in the necessity of taking them to
the distant district of Davao. The said
governmental authority, in carrying out his
intention to suppress the segregated district or
the community formed by those women in
Gardenia Street, could have obliged the said
women to return to their former residences in
this city or in the provinces, without the
necessity of transporting them to Mindanao;
hence the said official is obliged to bring back
the women who are still in Davao so that they
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may return to the places in which they lived prior
to their becoming inmates of certain houses in
Gardenia Street.
As regards the manner whereby the mayor
complied with the orders of this court, we do not
find any apparent disobedience and marked
absence of respect in the steps taken by the
mayor of the city and his subordinates, if we take
into account the difficulties encountered in
bringing the said women who were free at
Davao and presenting them before this court
within the time fixed, inasmuch as it does not
appear that the said women were living together
in a given place. It was not because they were
really detained, but because on the first days
there were no houses in which they could live
with a relative independent from one another,
and as a proof that they were free a number of
them returned to Manila and the others
succeeded in living separate from their
companions who continued living together.
To determine whether or not the mayor acted
with a good purpose and legal object and
whether he has acted in good or bad faith in
proceeding to dissolve the said community of
prostitutes and to oblige them to change their
domicile, it is necessary to consider not only the
rights and interests of the said women and
especially of the patrons who have been
directing and conducting such a reproachable
enterprise and shameful business in one of the
suburbs of this city, but also the rights and
interests of the very numerous people of Manila
where relatively a few transients accidentally
and for some days reside, the inhabitants thereof
being more than three hundred thousand
(300,000) who can not, with indifference and
without repugnance, live in the same place with

Atty. Mamburam
so many unfortunate women dedicated to
prostitution.
If the material and moral interests of the
community as well as the demands of social
morality are to be taken into account, it is not
possible to sustain that it is legal and permissible
to establish a house of pandering or prostitution
in the midst of an enlightened population, for,
although there were no positive laws prohibiting
the existence of such houses within a district of
Manila, the dictates of common sense and
dictates of conscience of its inhabitants are
sufficient to warrant the public administration,
acting correctly, in exercising the inevitable
duty of ordering the closing and abandonment of
a house of prostitution ostensibly open to the
public, and of obliging the inmates thereof to
leave it, although such a house is inhabited by its
true owner who invokes in his behalf the
protection of the constitutional law guaranteeing
his liberty, his individual rights, and his right to
property.
A cholera patient, a leper, or any other person
affected by a known contagious disease cannot
invoke in his favor the constitutional law which
guarantees his liberty and individual rights,
should the administrative authority order his
hospitalization, reclusion, or concentration in a
certain island or distant point in order to free
from contagious the great majority of the
inhabitants of the country who fortunately do not
have such diseases. The same reasons exist or
stand good with respect to the unfortunate
women dedicated to prostitution, and such
reasons become stronger because the first
persons named have contracted their diseases
without their knowledge and even against their
will, whereas the unfortunate prostitutes
voluntarily adopted such manner of living and

spontaneously accepted all its consequences,
knowing positively that their constant
intercourse with men of all classes,
notwithstanding the cleanliness and precaution
which they are wont to adopt, gives way to the
spread or multiplication of the disease known as
syphilis, a venereal disease, which, although it
constitutes a secret disease among men and
women, is still prejudicial to the human species
in the same degree, scope, and seriousness as
cholera, tuberculosis, leprosy, pest, typhoid, and
other contagious diseases which produce great
mortality and very serious prejudice to poor
humanity.
If a young woman, instead of engaging in an
occupation or works suitable to her sex, which
can give her sufficient remuneration for her
subsistence, prefers to put herself under the will
of another woman who is usually older than she
is and who is the manager or owner of a house
of prostitution, or spontaneously dedicates
herself to this shameful profession, it is
undeniable that she voluntarily and with her own
knowledge renounces her liberty and individual
rights guaranteed by the Constitution, because it
is evident that she can not join the society of
decent women nor can she expect to get the same
respect that is due to the latter, nor is it possible
for her to live within the community or society
with the same liberty and rights enjoyed by
every citizen. Considering her dishonorable
conduct and life, she should therefore be
comprised within that class which is always
subject to the police and sanitary regulations
conducive to the maintenance of public decency
and morality and to the conservation of public
health, and for this reason it should not permitted
that the unfortunate women dedicated to
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prostitution evade the just orders and resolutions
adopted by the administrative authorities.
It is regrettable that unnecessary rigor was
employed against the said poor women, but
those who have been worrying so much about
the prejudice resulting from a governmental
measure, which being a very drastic remedy may
be considered arbitrary, have failed to consider
with due reflection the interests of the
inhabitants of this city in general and
particularly the duties and responsibilities
weighing upon the authorities which administer
and govern it; they have forgotten that many of
those who criticize and censure the mayor are
fathers of families and are in duty bound to take
care of their children.
For the foregoing reasons, we reach the
conclusion that when the petitioners, because of
the abnormal life they assumed, were obliged to
change their residence not by a private citizen
but by the mayor of the city who is directly
responsible for the conservation of public health
and social morality, the latter could take the step
he had taken, availing himself of the services of
the police in good faith and only with the
purpose of protecting the immense majority of
the population from the social evils and diseases
which the houses of prostitution situated in
Gardenia Street have been producing, which
houses have been constituting for years a true
center for the propagation of general diseases
and other evils derived therefrom. Hence, in
ordering the dissolution and abandonment of the
said houses of prostitution and the change of the
domicile of the inmates thereof, the mayor did
not in bad faith violate the constitutional laws
which guarantees the liberty and the individual
rights of every Filipino, inasmuch as the women

Atty. Mamburam
petitioners do not absolutely enjoy the said
liberty and rights, the exercise of which they
have voluntarily renounced in exchange for the
free practice of their shameful profession.
In very highly advanced and civilized countries,
there have been adopted by the administrative
authorities similar measures, more or less
rigorous, respecting prostitutes, considering
them prejudicial to the people, although it is true
that in the execution of such measures more
humane and less drastic procedures, fortiter in re
et suaviter in forma, have been adopted, but such
procedures have always had in view the ultimat e
object of the Government for the sake of the
community, that is, putting an end to the living
together in a certain place of women dedicated
to prostitution and changing their domicile, with
the problematical hope that they adopt another
manner of living which is better and more useful
to themselves and to society.
In view of the foregoing remarks, we should
hold, as we hereby hold, that Mayor Justo
Lukban is obliged to take back and restore the
said women who are at present found in Davao,
and who desire to return to their former
respective residences, not in Gardenia Street,
Sampaloc District, with the exception of the
prostitutes who should expressly make known to
the clerk of court their preference to reside in
Davao, which manifestation must be made
under oath. This resolution must be transmitted
to the mayor within the shortest time possible for
its due compliance. The costs shall be charged
de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion

of the majority in the decision rendered in these
proceedings, with respect to the finding as to the
importance of the contempt committed ,
according to the same decision, by Justo
Lukban, Mayor of the city of Manila, and the
consequent imposition upon him of a nominal
fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo
Lukban, Anton Hohmann, Francisco Sales, and
Feliciano Yigo to present the persons named in
the writ before the court on December 2, 1918.
The order was dated November 4, 1918. The
respondents were thus given ample time,
practically one month, to comply with the writ .
As far as the record disclosed, the mayor of the
city of Manila waited until the 21st of November
before sending a telegram to the provincial
governor of Davao. According to the response
of the Attorney for the Bureau of Labor to the
telegram of his chief, there were then in Davao
women who desired to return to Manila, but who
should not be permitted to do so because of
having contracted debts. The half-hearted effort
naturally resulted in none of the parties in
question being brought before the court on the
day named.
In accordance with section 87 of General Orders
No. 58, as said in the same decision, the
respondents, for the purpose of complying with
the order of the court, could have, (1) produced
the bodies of the persons according to the
command of the writ; (2) shown by affidavits
that on account of sickness or infirmity the said
women could not safely be brought before this
court; and (3) presented affidavits to show that
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the parties in question or their lawyers waived
their right to be present. According to the same
decision, the said respondents ". . . did not
produce the bodies of the persons in whose
behalf the writ was granted; did not show
impossibility of performance; and did not
present writings, that waived the right to be
present by those interested. Instead, a few
stereotyped affidavits purporting to show that
the women were contented with their life in
Davao, some of which have since been
repudiated by the signers, were appended to the
return. That through ordinary diligence a
considerable number of the women, at least
sixty, could have been brought back to Manila is
demonstrated by the fact that during this time
they were easily to be found in the municipalit y
of Davao, and that about this number either
returned at their own expense or were produced
at the second hearing by the respondents."
The majority opinion also recognized that, "That
court, at the time the return to its first order was
made, would have been warranted summarily in
finding the respondent guilty of contempt of
court, and in sending them to jail until they
obeyed the order. Their excuses for the non
production of the persons were far fro m
sufficient." To corroborate this, the majorit y
decision cites the case of the Queen vs.
Barnardo, Gossage's Case ([1890], 24 Q. B. D.,
283) and added "that the return did not show that
every possible effort to produce the women was
made by the respondents."
When the said return by the respondents was
made to this court in banc and the case
discussed, my opinion was that Mayor Lukban
should have been immediately punished for
contempt. Nevertheless, a second order referred

Atty. Mamburam
to in the decision was issued on December 10,
1918, requiring the respondents to produce
before the court, on January 13, 1919, the
women who were not in Manila, unless they
could show that it was impossible to comply
with the said order on the two grounds
previously mentioned. With respect to this
second order, the same decision has the
following to say:
In response to the second order of the court, the
respondents appear to have become more
zealous and to have shown a better spirit. Agents
were dispatched to Mindanao, placards were
posted, the constabulary and the municipal
police joined in rounding up the women, and a
steamer with free transportation to Manila was
provided. While charges and countercharges in
such a bitterly contested case are to be expected,
and while a critical reading of the record might
reveal a failure of literal fulfillment with our
mandate, we come to conclude that there is a
substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila,
Justo Lukban, let 17 days elapse from the date
of the issuance of the first order on November
4th till the 21st of the same month before taking
the first step for compliance with the mandate of
the said order; he waited till the 21st of
November, as the decision says, before he sent a
telegram to the provincial governor o f Davao
and naturally this half-hearted effort, as is so
qualified in the decision, resulted in that none of
the women appeared before this court on
December 2nd. Thus, the said order was not
complied with, and in addition to this
noncompliance there was the circumstances that
seven of the said women having returned to

Manila at their own expense before the said
second day of December and being in the
antechamber of the court room, which fact was
known to Chief of Police Hohmann, who was
then present at the trial and to the attorney for
the respondents, were not produced before the
court by the respondents nor did the latter show
any effort to present them, in spite of the fact that
their attention was called to this particular by the
undersigned.
The result of the said second order was, as is said
in the same decision, that the respondents, on
January 13th, the day fixed for the protection of
the women before this court, presented
technically the seven (7) women abovementioned who had returned to the city at their
own expense and the other eight (8) women
whom the respondents themselves brought to
Manila, alleging moreover that their agents and
subordinates succeeded in bringing them from
Davao with their consent; that in Davao they
found eighty-one (81) women who, when asked
if they desired to return to Manila with free
transportation, renounced such a right, as is
shown in the affidavits presented by the
respondents to this effect; that, through other
means, fifty-nine (59) women have already
returned to Manila, but notwithstanding the
efforts made to find them it was not possible to
locate the whereabouts of twenty-six (26) of
them. Thus, in short, out of the one hundred and
eighty-one (181) women who, as has been
previously said, have been illegally detained by
Mayor Lukban and Chief of Police Hohmann
and transported to Davao against their will, only
eight (8) have been brought to Manila and
presented before this court by the respondents in
compliance with the said two orders. Fifty-nine
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1-Sanchez Roman
(59) of them have returned to Manila through
other means not furnished by the respondents,
twenty-six of whom were brought by the
attorney for the petitioners, Mendoza, on his
return from Davao. The said attorney paid out of
his own pocket the transportation of the said
twenty-six women. Adding to these numbers the
other seven (7) women who returned to this city
at their own expense before January 13 we have
a total of sixty-six (66), which evidently proves,
on the one hand, the falsity of the allegation by
the respondents in their first answer at the trial
of December 2, 1918, giving as one of the
reasons for their inability to present any of the
said women that the latter were content with
their life in Mindanao and did not desire to
return to Manila; and, on the other hand, that the
respondents, especially the first named, that is
Mayor Justo Lukban, who acted as chief and
principal in all that refers to the compliance with
the orders issued by this court, could bring
before December 2nd, the date of the first
hearing of the case, as well as before January
13th, the date fixed for the compliance with the
second order, if not the seventy-four (74)
women already indicated, at least a great number
of them, or at least sixty (60) of them, as is said
in the majority decision, inasmuch as the said
respondent could count upon the aid of the
Constabulary forces and the municipal police,
and had transportation facilities for the purpose.
But the said respondent mayor brought only
eight (8) of the women before this court on
January 13th. This fact can not, in my judgment,
with due respect to the majority opinion, justify
the conclusion that the said respondent has
substantially complied with the second order of
this court, but on the other hand demonstrates
that he had not complied with the mandate of
this court in its first and second orders; that

Atty. Mamburam
neither of the said orders has been complied with
by the respondent Justo Lukban, Mayor of the
city of Manila, who is, according to the majorit y
decision, principally responsible for the
contempt, to which conclusion I agree. The
conduct of the said respondent with respect to
the second order confirms the contempt
committed by non-compliance with the first
order and constitutes a new contempt because of
non-compliance with the second, because of the
production of only eight (8) of the one hundred
and eighty-one (181) women who have been
illegally detained by virtue of his order and
transported to Davao against their will,
committing the twenty-six (26) women who
could not be found in Davao, demonstrates in
my opinion that, notwithstanding the nature of
the case which deals with the remedy of habeas
corpus, presented by the petitioners and
involving the question whether they should or
not be granted their liberty, the respondent has
not given due attention to the same nor has he
made any effort to comply with the second
order. In other words, he has disobeyed the said
two orders; has despised the authority of this
court; has failed to give the respect due to
justice; and lastly, he has created and placed
obstacles to the administration of justice in the
said habeas corpus proceeding, thus preventing,
because of his notorious disobedience, the
resolution of the said proceeding with the
promptness which the nature of the same
required.
Contempt of court has been defined as a
despising of the authority, justice, or dignity of
the court; and he is guilty of contempt whose
conduct is such as tends to bring the authority
and administration of the law into disrespect or
disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of

any valid order of the court constitutes
contempt, unless the defendant is unable to
comply therewith. (Ruling Case Law, vol. 6, p.
502.)
It is contempt to employ a subterfuge to evade
the judgment of the court, or to obstruct or
attempt to obstruct the service of legal process.
If a person hinders or prevents the service of
process by deceiving the officer or
circumventing him by any means, the result is
the same as though he had obstructed by some
direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to
speak, as the courts often do, of enforcing
respect for the law and for the means it has
provided in civilized
communities
for
establishing justice, since true respect never
comes in that way, it is apparent nevertheless
that the power to enforce decorum in the courts
and obedience to their orders and just measures
is so essentially a part of the life of the courts
that it would be difficult to conceive of their
usefulness or efficiency as existing without it.
Therefore it may be said generally that where
due respect for the courts as ministers of the law
is wanting, a necessity arises for the use of
compulsion, not, however, so much to excit e
individual respect as to compel obedience or to
remove an unlawful or unwarranted interference
with the administration of justice. (Ruling Case
Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the
law itself, and has been exercised from the
earliest times. In England it has been exerted
when the contempt consisted of scandalizing the
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1-Sanchez Roman
sovereign or his ministers, the law-makin g
power, or the courts. In the American states the
power to punish for contempt, so far as the
executive department and the ministers of state
are concerned, and in some degree so far as the
legislative department is concerned, is obsolete,
but it has been almost universally preserved so
far as regards the judicial department. The
power which the courts have of vindicating their
own authority is a necessary incident to every
court of justice, whether of record or not; and the
authority for issuing attachments in a proper
case for contempts out of court, it has been
declared, stands upon the same immemo ria l
usage as supports the whole fabric of the
common law. . . . (Ruling Case Law, vol. 6, p.
489.)
The undisputed importance of the orders of this
court which have been disobeyed; the loss of the
prestige of the authority of the court which
issued the said orders, which loss might have
been caused by noncompliance with the same
orders on the part of the respondent Justo
Lukban; the damages which might have been
suffered by some of the women illegally
detained, in view of the fact that they were not
brought to Manila by the respondents to be
presented before the court and of the further fact
that some of them were obliged to come to this
city at their own expense while still others were
brought to Manila by the attorney for the
petitioners, who paid out of his own pocket the
transportation of the said women; and the delay
which was necessarily incurred in the resolution
of the petition interposed by the said petitioners
and which was due to the fact that the said orders
were not opportunately and duly obeyed and
complied with, are circumstances which should
be taken into account in imposing upon the

Atty. Mamburam
respondent Justo Lukban the penalty
corresponding to the contempt committed by
him, a penalty which, according to section 236
of the Code of Civil Procedure, should consist of
a fine not exceeding P1,000 or imprisonment not
exceeding months, or both such fine and
imprisonment. In the imposition of the penalty,
there should also be taken into consideration the
special circumstance that the contempt was
committed by a public authority, the mayor of
the city of Manila, the first executive authority
of the city, and consequently, the person obliged
to be the first in giving an example of obedience
and respect for the laws and the valid and just
orders of the duly constituted authorities as well
as for the orders emanating from the courts of
justice, and in giving help and aid to the said
courts in order that justice may be administered
with promptness and rectitude.
detention and while the women were in Davao.

This will be one of the means whereby the just
hope expressed in the majority decision will be
realized, that is, that in the Philippine Islands
there should exist a government of laws and not
a government of men and that this decision may
serve to bulwark the fortifications of an orderly
Government of laws and to protect individual
liberty from illegal encroachments.
I believe, therefore, that instead of the fine of

one hundred pesos (P100), there should be
imposed upon the respondent Justo Lukban a
fine of five hundred pesos (P500), and all the
costs should be charged against him. Lastly, I
believe it to be my duty to state here that the
records of this proceeding should be transmitted
to the Attorney-General in order that, after a
study of the same and deduction from the
testimony which he may deem necessary, and
the proper transmittal of the same to the fiscal of
the city of Manila and to the provincial fiscal of
Davao, both the latter shall present the
corresponding informations for the prosecution
and punishment of the crimes which have been
committed on the occasion when the illegal
detention of the women was carried into effect
by Mayor Justo Lukban of the city of Manila and
Chief of Police Anton Hohmann, and also of
those crimes committed by reason of the same
Page 48 of 71

1-Sanchez Roman

Atty. Mamburam
Manila;
JUDGE
HERMOGEN ES
CALUAG, Court of First Instance of RizalQuezon City Branch, and JUDGE DAMIAN
JIMENEZ, Municipal Court of Quezon City,
respondents.
Paredes, Poblador, Cruz and Nazareno and
Meer, Meer and Meer and Juan T. David for
petitioners.
Office of the Solicitor General Arturo A.
Alafriz, Assistant Solicitor General Pacifico P.
de Castro, Assistant Solicitor General Frine C.
Zaballero, Solicitor Camilo D. Quiason and
Solicitor C. Padua for respondents .
SEARCH WARRANTS
MALICIOUSLY OBTAINED
SUPREME COURT
Manila
EN BANC
G.R. No. L-19550
June 19, 1967
HARRY S. STONEHILL, ROBERT P.

BROOKS, JOHN J. BROOKS and KARL
BECK, petitioners,
vs.
HON. JOSE W. DIOKNO, in his capacity as
SECRETARY
OF
JUSTICE;
JOSE
LUKBAN, in his capacity as Acting Director,
National Bureau of Investigation; SPECIAL
PROSECUTORS PEDRO D. CENZON,
EFREN
I.
PLANA
and
MANUEL
VILLAREAL, JR. and ASST. FIS CAL
MANASES G. REYES; JUDGE AMADO
ROAN, Municipal Court of Manila; J UDGE
ROMAN CANSINO, Municipal Court of
CONCEPCION, C.J.:
Upon application of the officers of the
government named on the margin1
hereinafter referred to as RespondentsProsecutors several judges2 hereinafter
referred to as Respondents -Judges issued, on
different dates,3 a total of 42 search warrants
against petitioners herein4 and/or the
corporations of which they were officers,5
directed to the any peace officer, to search the
persons above-named and/or the premises of
their offices, warehouses and/or residences, and
to seize and take possession of the following
personal property to wit:
Books of accounts, financial records, vouchers,
correspondence, receipts, ledgers, journals,
portfolios, credit journals, typewriters, and other
documents and/or papers showing all business
transactions including disbursements receipts,
balance sheets and profit and loss statements and
Bobbins (cigarette wrappers).
as "the subject of the offense; stolen or

embezzled and proceeds or fruits of the offense,"
or "used or intended to be used as the means of
committing the offense," which is described in
the applications adverted to above as "violation
of Central Bank Laws, Tariff and Customs
Laws, Internal Revenue (Code) and the Revised
Penal Code."
Alleging that the aforementioned search
warrants are null and void, as contravening the
Constitution and the Rules of Court because,
inter alia: (1) they do not describe with
particularity the documents, books and things to
be seized; (2) cash money, not mentioned in the
warrants, were actually seized; (3) the warrants
were issued to fish evidence against the
aforementioned petitioners in deportation cases
filed against them; (4) the searches and seizures
were made in an illegal manner; and (5) the
documents, papers and cash money seized were
not delivered to the courts that issued the
warrants, to be disposed of in accordance with
law on March 20, 1962, said petitioners filed
with the Supreme Court this original action for
certiorari,
prohibition,
mandamus
and
injunction, and prayed that, pending final
disposition of the present case, a writ of
preliminary injunction be issued restraining
Respondents-Prosecutors, their agents and /or
representatives from using the effects seized as
aforementioned or any copies thereof, in the
deportation cases already adverted to, and that,
in due course, thereafter, decision be rendered
quashing the contested search warrants and
declaring the same null and void, and
commanding the respondents, their agents or
representatives to return to petitioners herein, in
accordance with Section 3, Rule 67, of the Rules
of Court, the documents, papers, things and cash
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1-Sanchez Roman
moneys seized or confiscated under the search
warrants in question.
In their answer, respondents -prosecutors
alleged, 6 (1) that the contested search warrants
are valid and have been issued in accordance
with law; (2) that the defects of said warrants, if
any, were cured by petitioners' consent; and (3)
that, in any event, the effects seized are
admissible in evidence against herein
petitioners, regardless of the alleged illegality of
the aforementioned searches and seizures.
On March 22, 1962, this Court issued the writ of
preliminary injunction prayed for in the petition.
However, by resolution dated June 29, 1962, the
writ was partially lifted or dissolved, insofar as
the papers, documents and things seized fro m
the offices of the corporations above mentioned
are concerned; but, the injunction was
maintained as regards the papers, documents
and things found and seized in the residences of
petitioners herein.7
Thus, the documents, papers, and things seized
under the alleged authority of the warrants in
question may be split into two (2) major groups,
namely: (a) those found and seized in the offices
of the aforementioned corporations, and (b)
those found and seized in the residences of
petitioners herein.
As regards the first group, we hold that
petitioners herein have no cause of action to
assail the legality of the contested warrants and
of the seizures made in pursuance thereof, for
the simple reason that said corporations have
their respective personalities, separate and
distinct from the personality of herein
petitioners, regardless of the amount of shares of

Atty. Mamburam
stock or of the interest of each of them in said
corporations, and whatever the offices they hold
therein may be.8 Indeed, it is well settled that the
legality of a seizure can be contested only by the
party whose rights have been impaired thereby,9
and that the objection to an unlawful search and
seizure is purely personal and cannot be availed
of by third parties. 10 Consequently, petitioners
herein may not validly object to the use in
evidence against them of the documents, papers
and things seized from the offices and premises
of the corporations adverted to above, since the
right to object to the admission of said papers in
evidence belongs
exclusively
to the
corporations, to whom the seized effects belong,
and may not be invoked by the corporate officers
in proceedings against them in their individual
capacity. 11 Indeed, it has been held:
. . . that the Government's action in gaining
possession of papers belonging to the
corporation did not relate to nor did it affect the
personal defendants. If these papers were
unlawfully seized and thereby the constitutional
rights of or any one were invaded, they were the
rights of the corporation and not the rights of the
other defendants. Next, it is clear that a question
of the lawfulness of a seizure can be raised only
by one whose rights have been invaded.
Certainly, such a seizure, if unlawful, could not
affect the constitutional rights of defendants
whose property had not been seized or the
privacy of whose homes had not been disturbed;
nor could they claim for themselves the benefits
of the Fourth Amendment, when its violation, if
any, was with reference to the rights of another.
Remus vs. United States (C.C.A.)291 F. 501,
511. It follows, therefore, that the question of the
admissibility of the evidence based on an alleged
unlawful search and seizure does not extend to
the personal defendants but embraces only the

corporation whose property was taken. . . . (A
Guckenheimer & Bros. Co. vs. United States,
[1925] 3 F. 2d. 786, 789, Emphasis supplied.)
With respect to the documents, papers and
things seized in the residences of petitioners
herein, the aforementioned res olution of June
29, 1962, lifted the writ of preliminary
injunction previously issued by this Court, 12
thereby, in
effect,
restraining
herein
Respondents-Prosecutors from using them in
evidence against petitioners herein.
In connection with said documents, papers and
things, two (2) important questions need be
settled, namely: (1) whether the search warrants
in question, and the searches and seizures made
under the authority thereof, are valid or not, and
(2) if the answer to the preceding question is in
the negative, whether said documents, papers
and things may be used in evidence against
petitioners herein.1wph1.t
Petitioners maintain that the aforementioned
search warrants are in the nature of general
warrants and that accordingly, the seizures
effected upon the authority there of are null and
void. In this connection, the Constitution 13
provides:
The right of the people to be secure in their
unreasonable searches and seizures shall not be
violated, and no warrants shall issue but upon
probable cause, to be determined by the judge
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1-Sanchez Roman
be searched, and the persons or things to be
seized.
Two points must be stressed in connection with
this constitutional mandate, namely: (1) that no
warrant shall issue but upon probable cause, to
be determined by the judge in the manner set
forth in said provision; and (2) that the warrant
shall particularly describe the things to be
seized.
None of these requirements has been complied
with in the contested warrants. Indeed, the same
were issued upon applications stating that the
natural and juridical person therein named had
committed a "violation of Central Ban Laws,
Tariff and Customs Laws, Internal Revenue
(Code) and Revised Penal Code." In other
words, no specific offense had been alleged in
said applications. The averments thereof with
respect to the offense committed were abstract.
As a consequence, it was impossible for the
judges who issued the warrants to have found
the existence of probable cause, for the same
presupposes the introduction of competent proof
that the party against whom it is sought has
performed particular acts, or committed specific
omissions, violating a given provision of our
criminal laws. As a matter of fact, the
applications involved in this case do not allege
any specific acts performed by herein
petitioners. It would be the legal heresy, of the
highest order, to convict anybody of a "violation
of Central Bank Laws, Tariff and Customs
Laws, Internal Revenue (Code) and Revised
Penal Code," as alleged in the
aforementioned applications without
reference to any determinate provision of said
laws or

Atty. Mamburam
To uphold the validity of the warrants in
question would be to wipe out completely one of
the most fundamental rights guaranteed in our
Constitution, for it would place the sanctity of
the domicile and the privacy of communicatio n
and correspondence at the mercy of the whims
caprice or passion of peace officers. This is
precisely the evil sought to be remedied by the
constitutional provision above quoted to
outlaw the so-called general warrants. It is not
difficult to imagine what would happen, in times
of keen political strife, when the party in power
feels that the minority is likely to wrest it, even
though by legal means.
Such is the seriousness of the irregularities
committed in connection with the disputed
search warrants, that this Court deemed it fit to
amend Section 3 of Rule 122 of the former Rules
of Court 14 by providing in its counterpart,
under the Revised Rules of Court 15 that "a
search warrant shall not issue but upon probable
cause in connection with one specific offense."
Not satisfied with this qualification, the Court
added thereto a paragraph, directing that "no
search warrant shall issue for more than one
specific offense."
The grave violation of the Constitution made in
the application for the contested search warrants
was compounded by the description therein
made of the effects to be searched for and seized,
to wit:
Books of accounts, financial records, vouchers,
journals, correspondence, receipts, ledgers,
portfolios, credit journals, typewriters, and other
documents and/or papers showing all business
transactions including disbursement receipts,
balance sheets and related profit and loss

statements.
Thus, the warrants authorized the search for and
seizure of records pertaining to all business
transactions of petitioners herein, regardless of
whether the transactions were legal or illegal.
The warrants sanctioned the seizure of all
records
of the petitioners
and the
aforementioned corporations, whatever their
nature, thus openly contravening the explicit
command of our Bill of Rights that the things
to be seized be particularly described as well
as tending to defeat its major objective: the
elimination of general warrants.
Relying upon Moncado vs. People's Court (80
Phil. 1), Respondents-Prosecutors maintain that,
even if the searches and seizures under
consideration were unconstitutional, the
documents, papers and things thus seized are
admissible in evidence against petitioners
herein. Upon mature deliberation, however, we
are unanimously of the opinion that the position
taken in the Moncado case must be abandoned.
Said position was in line with the American
common law rule, that the criminal should not
be allowed to go free merely "because the
constable has blundered," 16 upon the theory
that the constitutional prohibition against
unreasonable searches and seizures is protected
by means other than the exclusion of evidence
unlawfully obtained, 17 such as the common law action for damages against the searching
officer, against the party who procured the
issuance of the search warrant and against those
assisting in the execution of an illegal search,
their criminal punishment, resistance, without
liability to an unlawful seizure, and such other
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1-Sanchez Roman
legal remedies as may be provided by other
laws.
However, most common law jurisdictions have
already given up this approach and eventually
adopted the exclusionary rule, realizing that this
is the only practical means of enforcing the
constitutional injunction against unreasonable
searches and seizures. In the language of Judge
Learned Hand:
As we understand it, the reason for the exclusion
of evidence competent as such, which has been
unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional
privilege. In earlier times the action of trespass
against the offending official may have been
protection enough; but that is true no longer.
Only in case the prosecution which itself
controls the seizing officials, knows that it
cannot profit by their wrong will that wrong be
repressed.18
In fact, over thirty (30) years before, the Federal
Supreme Court had already declared:
If letters and private documents can thus be
seized and held and used in evidence against a
citizen accused of an offense, the protection of
the 4th Amendment, declaring his rights to be
secure against such searches and seizures, is of
no value, and, so far as those thus placed are
concerned, might as well be stricken from the
Constitution. The efforts of the courts and their
officials to bring the guilty to punishment,
praiseworthy as they are, are not to be aided by
the sacrifice of those great principles established
by years of endeavor and suffering which have
resulted in their embodiment in the fundamental
law of the land.19

Atty. Mamburam
This view was, not only reiterated, but, also,

broadened in subsequent decisions on the same
Federal Court. 20 After reviewing previous
decisions thereon, said Court held, in Mapp vs.
Ohio (supra.):
. . . Today we once again examine the Wolf's
constitutional documentation of the right of
privacy free from unreasonable state intrusion,
and after its dozen years on our books, are led by
it to close the only courtroom door remainin g
open to evidence secured by official lawlessness
in flagrant abuse of that basic right, reserved to
all persons as a specific guarantee against that
very same unlawful conduct. We hold that all
evidence obtained by searches and seizures in
violation of the Constitution is, by that same
authority, inadmissible in a State.
Since the Fourth Amendment's right of privacy
has been declared enforceable against the States
through the Due Process Clause of the
Fourteenth, it is enforceable against them by the
same sanction of exclusion as it used against the
Federal Government. Were it otherwise, then
just as without the Weeks rule the assurance
against unreasonable federal searches and
seizures would be "a form of words," valueless
and underserving of mention in a perpetual
charter of inestimable human liberties, so too,
without that rule the freedom from state
invasions of privacy would be so ephemeral and
so neatly severed from its conceptual nexus with
the freedom from all brutish means of coercing
evidence as not to permit this Court's high regard
as a freedom "implicit in the concept of ordered
liberty." At the time that the Court held in Wolf
that the amendment was applicable to the States
through the Due Process Clause, the cases of this
Court as we have seen, had steadfastly held that

as to federal officers the Fourth Amendment
included the exclusion of the evidence seized in
violation of its provisions. Even Wolf "stoutly
adhered" to that proposition. The right to when
conceded operatively enforceable against the
States, was not susceptible of destruction by
avulsion of the sanction upon which its
protection and enjoyment had always been
deemed dependent under the Boyd, Weeks and
Silverthorne Cases. Therefore, in extending the
substantive protections of due process to all
constitutionally unreasonable searches state
or federal it was logically and constitutionally
necessarily that the exclusion doctrine an
essential part of the right to privacy be also
insisted upon as an essential ingredient of the
right newly recognized by the Wolf Case. In
short, the admission of the new constitutional
Right by Wolf could not tolerate denial of its
most important constitutional privilege, namely,
the exclusion of the evidence which an accused
had been forced to give by reason of the
unlawful seizure. To hold otherwise is to grant
the right but in reality to withhold its privilege
and enjoyment. Only last year the Court itself
recognized that the purpose of the exclusionary
rule to "is to deter to compel respect for the
constitutional guaranty in the only effectively
available way by removing the incentive to
disregard it" . . . .
The ignoble shortcut to conviction left open to
the State tends to destroy the entire system of
constitutional restraints on which the liberties of
the people rest. Having once recognized that the
right to privacy embodied in the Fourth
Amendment is enforceable against the States,
and that the right to be secure against rude
invasions of privacy by state officers is,
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Atty. Mamburam
therefore constitutional in origin, we can no

longer permit that right to remain an empty
promise. Because it is enforceable in the same
manner and to like effect as other basic rights
secured by its Due Process Clause, we can no
longer permit it to be revocable at the whim of
any police officer who, in the name of law
enforcement itself, chooses to suspend its
enjoyment. Our decision, founded on reason and
truth, gives to the individual no more than that
which the Constitution guarantees him to the
police officer no less than that to which honest
law enforcement is entitled, and, to the courts,
that judicial integrity so necessary in the true
administration of justice. (emphasis ours.)
seizures would suffice to protect the

constitutional guarantee under consideration,
overlooks the fact that violations thereof are, in
general, committed By agents of the party in
power, for, certainly, those belonging to the
minority could not possibly abuse a power they
do not have. Regardless of the handicap under
which the minority usually but,
understandably finds itself in prosecuting
agents of the majority, one must not lose sight of
the fact that the psychological and moral effect
of the possibility 21 of securing their conviction,
is watered down by the pardoning power of the
party for whose benefit the illegality had been
committed.
Indeed, the non-exclusionary rule is contrary,

not only to the letter, but also, to the spirit of the
constitutional injunction against unreasonable
searches and seizures. To be sure, if the
applicant for a search warrant has competent
evidence to establish probable cause of the
commission of a given crime by the party
against whom the warrant is intended, then there
is no reason why the applicant should not
comply with the requirements of the
fundamental law. Upon the other hand, if he has
no such competent evidence, then it is not
possible for the Judge to find that there is
probable cause, and, hence, no justification for
the issuance of the warrant. The only possible
explanation (not justification) for its issuance is
the necessity of fishing evidence of the
commission of a crime. But, then, this fishing
expedition is indicative of the absence of
evidence to establish a probable cause.
In their Motion for Reconsideration and

Amendment of the Resolution of this Court
dated June 29, 1962, petitioners allege that
Rooms Nos. 81 and 91 of Carmen Apartments,
House No. 2008, Dewey Boulevard, House No.
1436, Colorado Street, and Room No. 304 of the
Army-Navy Club, should be included among the
premises considered in said Resolution as
residences of herein petitioners, Harry S.
Stonehill, Robert P. Brook, John J. Brooks and
Karl Beck, respectively, and that, furthermore,
the records, papers and other effects seized in the
offices of the corporations above referred to
include personal belongings of said petitioners
and other effects under their exclusive
possession and control, for the exclusion of
which they have a standing under the latest
rulings of the federal courts of federal courts of
the United States. 22
Moreover, the theory that the crimin al

prosecution of those who secure an illegal search
warrant and/or make unreasonable searches or
We note, however, that petitioners' theory,

regarding their alleged possession of and control
over the aforementioned records, papers and
effects, and the alleged "personal" nature
thereof, has Been Advanced, not in their petition

or amended petition herein, but in the Motion for
Reconsideration and Amendment of the
Resolution of June 29, 1962. In other words, said
theory would appear to be readjustment of that
followed in said petitions, to suit the approach
intimated in the Resolution sought to be
reconsidered and amended. Then, too, some of
the affidavits or copies of alleged affidavits
attached to said motion for reconsideration, or
submitted in support thereof, contain either
inconsistent allegations,
or
allegations
inconsistent with the theory now advanced by
petitioners herein.
Upon the other hand, we are not satisfied that the
allegations of said petitions said motion for
reconsideration, and the contents of the
aforementioned affidavits and other papers
submitted in support of said motion, have
sufficiently established the facts or conditions
contemplated in the cases relied upon by the
petitioners; to warrant application of the views
therein expressed, should we agree thereto. At
any rate, we do not deem it necessary to express
our opinion thereon, it being best to leave the
matter open for determination in appropriate
cases in the future.
We hold, therefore, that the doctrine adopted in
the Moncado case must be, as it is hereby,
abandoned; that the warrants for the search of
three (3) residences of herein petitioners, as
specified in the Resolution of June 29, 1962, are
null and void; that the searches and seizures
therein made are illegal; that the writ of
preliminary injunction heretofore issued, in
connection with the documents, papers and
other effects thus seized in said residences of
herein petitioners is hereby made permanent;
Page 53 of 71

1-Sanchez Roman
that the writs prayed for are granted, insofar as
the documents, papers and other effects so
seized in the aforementioned residences are
concerned; that the aforementioned motion for
Reconsideration and Amendment should be, as
it is hereby, denied; and that the petition herein
is dismissed and the writs prayed for denied, as
regards the documents, papers and other effects
seized in the twenty-nine (29) places, offices and
other premises enumerated in the same
Resolution, without special pronouncement as to
costs.
It is so ordered.
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P.,
Zaldivar and Sanchez, JJ., concur.
CASTRO, J., concurring and dissenting:
From my analysis of the opinion written by
Chief Justice Roberto Concepcion and from the
import of the deliberations of the Court on this
case, I gather the following distinct conclusions:
1. All the search warrants served by the National
Bureau of Investigation in this case are general
warrants and are therefore proscribed by, and in
violation of, paragraph 3 of section 1 of Article
III (Bill of Rights) of the Constitution;
2. All the searches and seizures conducted under
the authority of the said search warrants were
consequently illegal;
3. The non-exclusionary rule enunciated in
Moncado vs. People, 80 Phil. 1, should be, and
is declared, abandoned;

Atty. Mamburam
4. The search warrants served at the three
residences of the petitioners are expressly
declared null and void the searches and seizures
therein made are expressly declared illegal; and
the writ of preliminary injunction heretofore
issued against the use of the documents, papers
and effect seized in the said residences is made
permanent; and
5. Reasoning that the petitioners have not in their
pleadings satisfactorily demonstrated that they
have legal standing to move for the suppression
of the documents, papers and effects seized in
the places other than the three residences
adverted to above, the opinion written by the
Chief Justice refrains from expressly declaring
as null and void the such warrants served at such
other places and as illegal the searches and
seizures made therein, and leaves "the matter
open for determination in appropriate cases in
the future."
It is precisely the position taken by the Chief
Justice summarized in the immediat ely
preceding paragraph (numbered 5) with which I
am not in accord.
I do not share his reluctance or unwillingness to
expressly declare, at this time, the nullity of the
search warrants served at places other than the
three residences, and the illegibility of the
searches and seizures conducted under the
authority thereof. In my view even the
exacerbating
passions
and
prejudices
inordinately generated by the environmental
political and moral developments of this case
should not deter this Court from forthrightly
laying down the law not only for this case but as
well for future cases and future generations. All
the search warrants, without exception, in this
case are admittedly general, blanket and roving

warrants and are therefore admittedly and
indisputably outlawed by the Constitution; and
the searches and seizures made were therefore
unlawful. That the petitioners, let us assume in
gratia argumente, have no legal standing to ask
for the suppression of the papers, things and
effects seized from places other than their
residences, to my mind, cannot in any manner
affect, alter or otherwise modify the intrinsic
nullity of the search warrants and the intrinsic
illegality of the searches and seizures made
thereunder. Whether or not the petitioners
possess legal standing the said warrants are void
and remain void, and the searches and seizures
were illegal and remain illegal. No inference can
be drawn from the words of the Constitution that
"legal standing" or the lack of it is a determinant
of the nullity or validity of a search warrant or
of the lawfulness or illegality of a search or
seizure.
On the question of legal standing, I am of the
conviction that, upon the pleadings submitted to
this Court the petitioners have the requisite legal
standing to move for the suppression and return
of the documents, papers and effects that were
seized from places other than their family
residences.
Our constitutional provision on searches and
seizures was derived almost verbatim from the
Fourth Amendment to the United States
Constitution. In the many years of judicial
construction and interpretation of the said
constitutional provision, our courts have
invariably
regarded
as
doctrinal
the
pronouncement made on the Fourth Amendment
by federal courts, especially the Federal
Page 54 of 71

1-Sanchez Roman
Supreme Court and the Federal Circuit Courts of
Appeals.
The U.S. doctrines and pertinent cases on
standing to move for the suppression or return of
documents, papers and effects which are the
fruits of an unlawful search and seizure, may be
summarized as follows; (a) ownership of
documents, papers and effects gives "standing;"
(b) ownership and/or control or possession
actual or constructive of premises searched
gives "standing"; and (c) the "aggrieved person"
doctrine where the search warrant and the sworn
application for search warrant are "primarily "
directed solely and exclusively against the
"aggrieved person," gives "standing."
An examination of the search warrants in this
case will readily show that, excepting three, all
were directed against the petitioners personally.
In some of them, the petitioners were named
personally, followed by the designation, "the
President and/or General Manager" of the
particular corporation. The three warrants
excepted named three corporate defendants. But
the
"office/house/warehouse/premises"
mentioned in the said three warrants were also
the same "office/house/warehouse/premises"
declared to be owned by or under the control of
the petitioners in all the other search warrants
directed against the petitioners and/or "the
President and/or General Manager" of the
particular corporation. (see pages 5-24 of
Petitioners' Reply of April 2, 1962). The
searches and seizures were to be made, and were
actually
made,
in
the
"office/house/warehouse/premises" owned by
or under the control of the petitioners.
Ownership of matters seized gives "standing."

Atty. Mamburam
Ownership of the properties seized alone entitles

the petitioners to bring a motion to return and
suppress, and gives them standing as persons
aggrieved by an unlawful search and seizure
regardless of their location at the time of seizure.
Jones vs. United States, 362 U.S. 257, 261
(1960) (narcotics stored in the apartment of a
friend of the defendant); Henzel vs. United
States, 296 F. 2d. 650, 652-53 (5th Cir. 1961),
(personal and corporate papers of corporation of
which the defendant was president), United
States vs. Jeffers, 342 U.S. 48 (1951) (narcotics
seized in an apartment not belonging to the
defendant); Pielow vs. United States, 8 F. 2d
492, 493 (9th Cir. 1925) (books seized from the
defendant's sister but belonging to the
defendant); Cf. Villano vs. United States, 310 F.
2d 680, 683 (10th Cir. 1962) (papers seized in
desk neither owned by nor in exclusive
possession of the defendant).
In a very recent case (decided by the U.S.
Supreme Court on December 12, 1966), it was
held that under the constitutional provision
against unlawful searches and seizures, a person
places himself or his property within a
constitutionally protected area, be it his home or
his office, his hotel room or his automobile:
Where the argument falls is in its
misapprehension of the fundamental nature and
scope of Fourth Amendment protection. What
the Fourth Amendment protects is the security a
man relies upon when he places himself or his
property within a constitutionally protected area,
be it his home or his office, his hotel room or his
automobile. There he is protected fro m
unwarranted governmental intrusion. And when
he puts some thing in his filing cabinet, in his
desk drawer, or in his pocket, he has the right to

know it will be secure from an unreasonable
search or an unreasonable seizure. So it was that
the Fourth Amendment could not tolerate the
warrantless search of the hotel room in Jeffers,
the purloining of the petitioner's private papers
in Gouled, or the surreptitious electronic
surveilance in Silverman. Countless other cases
which have come to this Court over the years
have involved a myriad of differing factual
contexts in which the protections of the Fourth
Amendment have been appropriately invoked.
No doubt, the future will bring countless others.
By nothing we say here do we either foresee or
foreclose factual situations to which the Fourth
Amendment may be applicable. (Hoffa vs. U.S.,
87 S. Ct. 408 (December 12, 1966). See also
U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93
(November 13, 1951). (Emphasis supplied).
Control of premises searched gives "standing."
Independent of ownership or other personal
interest in the records and documents seized, the
petitioners have standing to move for return and
suppression by virtue of their proprietary or
leasehold interest in many of the premises
searched. These proprietary and leasehold
interests have been sufficiently set forth in their
motion for reconsideration and need not be
recounted here, except to emphasize that the
petitioners paid rent, directly or indirectly, for
practically all the premises searched (Room 91,
84 Carmen Apts; Room 304, Army & Navy
Club; Premises 2008, Dewey Boulevard; 1436
Colorado Street); maintained personal offices
within the corporate offices (IBMC, USTC); had
made improvements or furnished such offices;
or had paid for the filing cabinets in which the
papers were stored (Room 204, Army & Navy
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1-Sanchez Roman
Club); and individually, or through their
respective spouses, owned the controlling stock
of the corporations involved. The petitioners'
proprietary interest in most, if not all, of the
premises searched therefore independently gives
them standing to move for the return and
suppression of the books, papers and affects
seized therefrom.
In Jones vs. United States, supra, the U.S.
Supreme Court delineated the nature and extent
of the interest in the searched premises
necessary to maintain a motion to suppress.
After reviewing what it considered to be the
unduly technical standard of the then prevailing
circuit court decisions, the Supreme Court said
(362 U.S. 266):
We do not lightly depart from this course of
decisions by the lower courts. We are persuaded,
however, that it is unnecessarily and ill-advised
to import into the law surrounding the
constitutional right to be free from unreasonable
searches and seizures subtle distinctions,
developed and refined by the common law in
evolving the body of private property law which,
more than almost any other branch of law, has
been shaped by distinctions whose validity is
largely historical. Even in the area from which
they derive, due consideration has led to the
discarding of those distinctions in the homeland
of the common law. See Occupiers' Liabilit y
Act, 1957, 5 and 6 Eliz. 2, c. 31, carrying out
Law Reform Committee, Third Report, Cmd .
9305. Distinctions such as those between
"lessee", "licensee," "invitee," "guest," often
only of gossamer strength, ought not be
determinative
in fashioning procedures
ultimately referable to constitutional safeguards.

Atty. Mamburam
See also Chapman vs. United States, 354 U.S.
610, 616-17 (1961).
It has never been held that a person with
requisite interest in the premises searched must
own the property seized in order to have
standing in a motion to return and suppress. In
Alioto vs. United States, 216 F. Supp. 48 (1963),
a Bookkeeper for several corporations fro m
whose apartment the corporate records were
seized successfully moved for their return. In
United States vs. Antonelli, Fireworks Co., 53 F.
Supp. 870, 873 (W D. N. Y. 1943), the
corporation's president successfully moved for
the return and suppression is to him of both
personal and corporate documents seized from
his home during the course of an illegal search:
The lawful possession by Antonelli of
documents and property, "either his own or the
corporation's was entitled to protection against
unreasonable search and seizure. Under the
circumstances in the case at bar, the search and
seizure were unreasonable and unlawful. The
motion for the return of seized article and the
suppression of the evidence so obtained should
be granted. (Emphasis supplied).
Time was when only a person who had property
in interest in either the place searched or the
articles seize had the necessary standing to
invoke the protection of the exclusionary rule.
But in MacDonald vs. Unite States, 335 U.S.
461 (1948), Justice Robert Jackson joined by
Justice Felix Frankfurter, advanced the view that
"even a guest may expect the shelter of the
rooftree he is under against criminal intrusion."
This view finally became the official view of the
U.S. Supreme Court and was articulated in
United States vs. Jeffers, 432 U.S 48 (1951).
Nine years later, in 1960, in Jones vs. Unite

States, 362 U.S. 257, 267, the U.S. Supreme
Court went a step further. Jones was a mere
guest in the apartment unlawfully searched but
the Court nonetheless declared that the
exclusionary rule protected him as well. The
concept of "person aggrieved by an unlawful
search and seizure" was enlarged to include
"anyone legitimately on premise where the
search occurs."
Shortly after the U.S. Supreme Court's Jones
decision the U.S. Court of Appeals for the Fifth
Circuit held that the defendant organizer, sole
stockholder and president of a corporation had
standing in a mail fraud prosecution against him
to demand the return and suppression of
corporate property. Henzel vs. United States,
296 F 2d 650, 652 (5th Cir. 1961), supra. The
court conclude that the defendant had standing
on two independent grounds: First he had a
sufficient interest in the property seized, and
second he had an adequate interest in the
premises searched (just like in the case at bar).
A postal inspector had unlawfully searched the
corporation' premises and had seized most of the
corporation's book and records. Looking to
Jones, the court observed:
Jones clearly tells us, therefore, what is not
required qualify one as a "person aggrieved by
an unlawful search and seizure." It tells us that
appellant should not have been precluded from
objecting to the Postal Inspector's search and
seizure of the corporation's books and records
merely because the appellant did not show
ownership or possession of the books and
records or a substantial possessory interest in the
invade premises . . . (Henzel vs. United States,
296 F. 2d at 651). .
Page 56 of 71

1-Sanchez Roman
Henzel was soon followed by Villano vs. United

States, 310 F. 2d 680, 683, (10th Cir. 1962). In
Villano, police officers seized two notebooks
from a desk in the defendant's place of
employment; the defendant did not claim
ownership of either; he asserted that several
employees (including himself) used the
notebooks. The Court held that the employee
had a protected interest and that there also was
an invasion of privacy. Both Henzel and Villan o
considered also the fact that the search and
seizure were "directed at" the moving defendant.
Henzel vs. United States, 296 F. 2d at 682;
Villano vs. United States, 310 F. 2d at 683.

Atty. Mamburam
Aggrieved person doctrine where the search
warrant s primarily directed against said person
gives "standing."
In a case in which an attorney closed his law

office, placed his files in storage and went to
Puerto Rico, the Court of Appeals for the Eighth
Circuit recognized his standing to move to quash
as unreasonable search and seizure under the
Fourth Amendment of the U.S. Constitution a
grand jury subpoena duces tecum directed to the
custodian of his files. The Governmen t
contended that the petitioner had no standing
because the books and papers were physically in
the possession of the custodian, and because the
subpoena was directed against the custodian.
The court rejected the contention, holding that
The latest United States decision squarely in

point is United States vs. Birrell, 242 F. Supp.
191 (1965, U.S.D.C. S.D.N.Y.). The defendant
had stored with an attorney certain files and
papers, which attorney, by the name of Dunn,
was not, at the time of the seizing of the records,
Birrell's attorney. * Dunn, in turn, had stored
most of the records at his home in the country
and on a farm which, according to Dunn's
affidavit, was under his (Dunn's) "control and
management." The papers turned out to be
private, personal and business papers together
with corporate books and records of certain
unnamed corporations in which Birrell did not
even claim ownership. (All of these type records
were seized in the case at bar). Nevertheless, the
search in Birrell was held invalid by the court
which held that even though Birrell did not own
the premises where the records were stored, he
had "standing" to move for the return of all the
papers and properties seized. The court, relying
on Jones vs. U.S., supra; U.S. vs. Antonelli
Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d
631: Henzel vs. U.S., supra; and Schwimmer vs.
U.S., supra, pointed out that
Schwimmer legally had such possession, control

and unrelinquished personal rights in the books
and papers as not to enable the question of
unreasonable search and seizure to be escaped
through the mere procedural device of
compelling a third-party naked possessor to
produce and deliver them. Schwimmer vs.
United States, 232 F. 2d 855, 861 (8th Cir.
1956).
It is overwhelmingly established that the

searches here in question were directed solely
and exclusively against Birrell. The only person
suggested in the papers as having violated the
law was Birrell. The first search warrant
described the records as having been used "in
committing a violation of Title 18, United States
Code, Section 1341, by the use of the mails by
one Lowell M. Birrell, . . ." The second search
warrant was captioned: "United States of

America vs. Lowell M. Birrell. (p. 198)
Possession (actual or constructive), no less than
ownership, gives standing to move to suppress.
Such was the rule even before Jones. (p. 199)
If, as thus indicated Birrell had at least
constructive possession of the records stored
with Dunn, it matters not whether he had any
interest in the premises searched. See also
Jeffers v. United States, 88 U.S. Appl. D.C. 58,
187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72
S. Ct. 93, 96 L. Ed. 459 (1951).
The ruling in the Birrell case was reaffirmed on
motion for reargument; the United States did not
appeal from this decision. The factual situation
in Birrell is strikingly similar to the case of the
present petitioners; as in Birrell, many personal
and corporate papers were seized from premises
not petitioners' family residences; as in Birrell,
the searches were "PRIMARILY DIRECTED
SOLETY AND EXCLUSIVELY" against the
petitioners. Still both types of documents were
suppressed in Birrell because of the illegal
search. In the case at bar, the petitioners
connection with the premises raided is much
closer than in Birrell.
Thus, the petitioners have full standing to move
for the quashing of all the warrants regardless
whether these were directed against residences
in the narrow sense of the word, as long as the
documents were personal papers of the
petitioners or (to the extent that they were
corporate papers) were held by them in a
personal capacity or under their personal
control.
Page 57 of 71

1-Sanchez Roman

Atty. Mamburam
Prescinding a from the foregoing, this Court, at

all events, should order the return to the
petitioners all personal and private papers and
effects seized, no matter where these were
seized, whether from their residences or
corporate offices or any other place or places.
The uncontradicted sworn statements of the
petitioners in their, various pleadings submitted
to this Court indisputably show that amongst the
things seized from the corporate offices and
other places were personal and private papers
and effects belonging to the petitioners.
corporations involved as specifically mentioned

in the void search warrants.
If there should be any categorization of the

documents, papers and things which where the
objects of the unlawful searches and seizures, I
submit that the grouping should be: (a) personal
or private papers of the petitioners were they
were unlawfully seized, be it their family
residences offices, warehouses and/or premises
owned and/or possessed (actually
or
constructively) by them as shown in all the
search and in the sworn applications filed in
securing the void search warrants and (b) purely
corporate papers belonging to corporations.
Under such categorization or grouping, the
determination of which unlawfully seized
papers,
documents
and
things
are
personal/private of the petitioners or purely
corporate papers will have to be left to the lower
courts which issued the void search warrants in
ultimately effecting the suppression and/or
return of the said documents.
1Hon. Jose W. Diokno, in his capacity as

Secretary of Justice, Jose Lukban, in his capacity
as Acting Director, National Bureau of
Investigation, Special Prosecutors Pedro D.
Cenzon, Efren I. Plana and Manuel Villareal, Jr.
and Assistant Fiscal Maneses G. Reyes, City of
Manila.
Finally, I must articulate my persuasion that

although the cases cited in my disquisition were
criminal prosecutions, the great clauses of the
constitutional proscription on illegal searches
and seizures do not withhold the mantle of their
protection from cases not criminal in origin or
nature.
Far East Publishing Corporation (Evening

News), Investment Inc., Industrial Business
Management Corporation, General Agricultural
Corporation, American Asiatic Oil Corporation,
Investment Management Corporation, Holiday
Hills, Inc., Republic Glass Corporation,
Industrial
and
Business
Management
Corporation, United Housing Corporation, The
Philippine Tobacco-Flue-Curing and Redrying
Corporation, Republic Real Estate Corporation
and Merconsel Corporation.
Footnotes
6Inter alia.
And as unequivocally indicated by the

authorities above cited, the petitioners likewis e
have clear legal standing to move for the
suppression of purely corporate papers as
"President and/or General Manager" of the
2Hon. Amado Roan, Judge of the Municipal

(now City) Court of Manila, Hon. Roman
Cansino, Judge of the Municipal (now City)
Court of Manila, Hon. Hermogenes Caluag,
Judge of the Court of First Instance of Rizal,
Quezon City Branch, Hon. Eulogio Mencias,
Judge of the Court of First Instance of Rizal,
Pasig Branch, and Hon. Damian Jimenez, Judge
of the Municipal (now City) Court of Quezon
City.
3Covering the period from March 3 to March 9,
1962.
4Harry S. Stonehill, Robert P. Brooks, John J.
Brooks and Karl Beck.
5U.S. Tobacco Corporation, Atlas Cement
Corporation, Atlas Development Corporation,
7"Without prejudice to explaining the reasons

for this order in the decision to be rendered in
the case, the writ of preliminary injunction
issued by us in this case against the use of the
papers, documents and things from the
following premises: (1) The office of the U.S.
Tobacco Corp. at the Ledesma Bldg., Arzobispo
St., Manila; (2) 932 Gonzales, Ermita, Manila;
(3) office at Atlanta St. bounded by Chicago,
15th & 14th Sts., Port Area, Manila; (4) 527
Rosario St., Mla.; (5) Atlas Cement Corp. and/or
Atlas Development Corp., Magsaysay Bldg.,
San Luis, Ermita, Mla.; (6) 205 13th St., Port
Area, Mla.; (7) No. 224 San Vicente St., Mla.;
(8) Warehouse No. 2 at Chicago & 23rd Sts.,
Mla.; (9) Warehouse at 23rd St., between Muelle
de San Francisco & Boston, Port Area, Mla.;
(10) Investment Inc., 24th St. & Boston; (11)
IBMC, Magsaysay Bldg., San Luis, Mla.; (12)
General Agricultural Corp., Magsaysay Bldg.,
San Luis, Manila; (13) American Asiatic Oil
Corp., Magsaysay Bldg., San Luis, Manila; (14)
Room 91, Carmen Apts.; Dewey Blvd., Manila;
(15) Warehouse Railroad St. between 17 & 12
Sts., Port Area, Manila; (16) Rm. 304, Army &
Navy Club, Manila, South Blvd.; (17)
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1-Sanchez Roman
Warehouse Annex Bldg., 18th St., Port Area,
Manila; (18) Rm. 81 Carmen Apts.; Dewey
Blvd., Manila; (19) Holiday Hills, Inc., Trinity
Bldg., San Luis, Manila; (20) No. 2008 Dewey
Blvd.; (21) Premises of 24th St. & Boston, Port
Area, Manila; (22) Republic Glass Corp.,
Trinity Bldg., San Luis, Manila; (23) IBMC, 2nd
Floor, Trinity Bldg., San Luis, Manila; (24)
IBMC, 2nd Flr., Gochangco Blg., 610 San Luis,
Manila; (25) United Housing Corp., Trinity
Bldg., San Luis, Manila; (26) Republic Real
Estate Corp., Trinity Bldg., San Luis, Manila;
(27) 1437 Colorado St., Malate, Manila; (28)
Phil. Tobacco Flue-Curing, Magsaysay Bldg.,
San Luis, Manila and (29) 14 Baldwin St., Sta.
Cruz, Manila, in the hearing of Deportation
Cases Nos. R-953 and 955 against petitioners,
before the Deportation Board, is hereby lifted.
The preliminary injunction shall continue as to
the papers, documents and things found in the
other premises namely: in those of the
residences of petitioners, as follows: (1) 13
Narra Road, Forbes Park, Makati, Rizal; (2) 15
Narra Road, Forbes Park, Makati, Rizal; and (3)
8 Urdaneta Avenue, Urdaneta Village, Makati,
Rizal."

Atty. Mamburam
12On March 22, 1962.
(1960); Mapp vs. Ohio (1961), 367 US 643, 6 L.

ed. 2d. 1081, 81 S. Ct. 1684.
13Section 1, paragraph 3, of Article III thereof.

21Even if remote.
14Reading: . . . A search warrant shall not issue
but upon probable cause to be determined by the
judge or justice of the peace after examinatio n
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.
15. . . A search warrant shall not issue but upon
probable cause in connection with one specific
offense to be determined by the judge or justice
of the peace after examination under oath or
affirmation of the complainant and the witnesses
he may produce, and particularly describing the
place to be searched and persons or things to be
seized.
22Particularly, Jones vs. U.S. 362 U.S. 257;

Alioto vs. U.S., 216 Fed. Supp. 49: U.S. vs.
Jeffries, 72 S. Ct. 93: Villano vs, U.S., 300 Fed.
2d 680; and Henzel vs. U.S., 296 Fed. 2d 650.
CASTRO,
J.,
DISSENTING:
CONCURRING
AND
*Attorney-client relationship played no part in

the decision of the case.
No search warrant shall issue for more than one

specific offense. (Sec. 3, Rule 126.)
16 People vs. Defore, 140 NE 585.
17Wolf vs. Colorado, 93 L. ed. 1782.
8Newingham, et al. vs. United States, 4 F. 2d.

490.
9Lesis vs. U.S., 6 F. 2d. 22.
10In re Dooley (1931) 48 F 2d. 121; Rouda vs.
U.S., 10 F. 60 2d 916; Lusco vs. U.S. 287 F. 69;
Ganci vs. U.S., 287 F. Moris vs. U.S., 26 F. 2d
444.
11U.S. vs. Gass 17 F. 2d. 997; People vs. Rubio,
57 Phil. 384, 394.
18Pugliese (1945) 133 F. 2d. 497.

19Weeks vs. United States (1914) 232 U.S. 383,
58 L. ed. 652, 34 S. Ct. 341; emphasis supplied.
20Gouled vs. United States (1921) 255 US 298,
65 L. ed, 647, 41 S. Ct. 261; Olmstead vs. United
States (1928) 277 US 438, 72 L. ed. 944, 48 S.
Ct. 564, Wolf vs. Colorado, 338 US 25, 93 L. ed.
1782, 69 S. Ct. 1359; Elkins vs. United States,
364 US 206, 4 L. ed. 2d. 1669, 80 S. Ct. 1437
Page 59 of 71

1-Sanchez Roman

Atty. Mamburam
SUPREME COURT
Manila
EN BANC
G.R. No. L-64261
December 26, 1984
JOSE BURGOS, SR., JOSE BURGOS, JR.,

BAYANI SORIANO and J. BURGOS
MEDIA SERVICES, INC., petitioners,
vs.
THE CHIEF OF STAFF, ARMED FORCES
OF THE PHILIPPINES, THE CHIEF,
PHILIPPINE
CONSTABULARY,
THE
CHIEF
LEGAL
OFFIC ER,
PRESIDENTIAL SECURITY COMMAN D,
THE JUDGE ADVOCATE GENERAL, ET
AL., respondents.
Lorenzo M. Taada, Wigberto E. Taada,
Martiniano Vivo, Augusto Sanchez, Joker P.
Arroyo, Jejomar Binay and Rene Saguisag for
petitioners.
The Solicitor General for respondents.
ESCOLIN, J.:
Assailed in this petition for certiorari prohibition
and mandamus with preliminary mandatory and
prohibitory injunction is the validity of two [2]
search warrants issued on December 7, 1982 by
respondent Judge Ernani Cruz-Pano, Executiv e
Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known
as No. 19, Road 3, Project 6, Quezon City, and
784 Units C & D, RMS Building, Quezon
Page 60 of 71

1-Sanchez Roman
Avenue, Quezon City, business addresses of the
"Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and
office and printing machines, equipment,
paraphernalia, motor vehicles and other articles
used in the printing, publication and distribution
of the said newspapers, as well as numerous
papers, documents, books and other written
literature alleged to be in the possession and
control of petitioner Jose Burgos, Jr. publishereditor of the "We Forum" newspaper, were
seized.
Petitioners further pray that a writ of preliminary
mandatory and prohibitory injunction be issued
for the return of the seized articles, and that
respondents, "particularly the Chief Legal
Officer, Presidential Security Command, the
Judge Advocate General, AFP, the City Fiscal of
Quezon City, their representatives, assistants,
subalterns,
subordinates,
substitute or
successors" be enjoined from using the articles
thus seized as evidence against petitioner Jose
Burgos, Jr. and the other accused in Crimin al
Case No. Q- 022782 of the Regional Trial Court
of Quezon City, entitled People v. Jose Burgos,
Jr. et al. 1
In our Resolution dated June 21, 1983,
respondents were required to answer the
petition. The plea for preliminary mandatory
and prohibitory injunction was set for hearing on
June 28, 1983, later reset to July 7, 1983, on
motion of the Solicitor General in behalf of
respondents.
At the hearing on July 7, 1983, the Solicito r
General, while opposing petitioners' prayer for a
writ of preliminary mandatory injunction,
manifested that respondents "will not use the

Atty. Mamburam
aforementioned articles as evidence in the
aforementioned case until final resolution of the
legality of the seizure of the aforementioned
articles. ..." 2 With this manifestation, the prayer
for preliminary prohibitory injunction was
rendered moot and academic.
Respondents would have this Court dismiss the
petition on the ground that petitioners had come
to this Court without having previously sought
the quashal of the search warrants before
respondent judge. Indeed, petitioners, before
impugning the validity of the warrants before
this Court, should have filed a motion to quash
said warrants in the court that issued them. 3 But
this procedural flaw notwithstanding, we take
cognizance of this petition in view of the
seriousness and urgency of the constitutional
issues raised not to mention the public interest
generated by the search of the "We Forum"
offices, which was televised in Channel 7 and
widely publicized in all metropolitan dailies.
The existence of this special circumstance
justifies this Court to exercise its inherent power
to suspend its rules. In the words of the revered
Mr. Justice Abad Santos in the case of C. Vda.
de Ordoveza v. Raymundo, 4 "it is always in the
power of the court [Supreme Court] to suspend
its rules or to except a particular case from its
operation, whenever the purposes of justice
require it...".
Respondents likewise urge dismissal of the
petition on ground of laches. Considerable stress
is laid on the fact that while said search warrants
were issued on December 7, 1982, the instant
petition impugning the same was filed only on
June 16, 1983 or after the lapse of a period of
more than six [6] months.
Laches is failure or negligence for an

unreasonable and unexplained length of time to
do that which, by exercising due diligence, could
or should have been done earlier. It is negligence
or omission to assert a right within a reasonable
time, warranting a presumption that the party
entitled to assert it either has abandoned it or
declined to assert it. 5
Petitioners, in their Consolidated Reply,
explained the reason for the delay in the filing of
the petition thus:
Respondents should not find fault, as they now
do [p. 1, Answer, p. 3, Manifestation] with the
fact that the Petition was filed on June 16, 1983,
more than half a year after the petitioners'
premises had been raided.
The climate of the times has given petitioners no
other choice. If they had waited this long to
bring their case to court, it was because they
tried at first to exhaust other remedies. The
events of the past eleven fill years had taught
them that everything in this country, fro m
release of public funds to release of detained
persons from custody, has become a matter of
executive benevolence or largesse
Hence, as soon as they could, petitioners, upon
suggestion of persons close to the President, like
Fiscal Flaminiano, sent a letter to President
Marcos, through counsel Antonio Coronet
asking the return at least of the printing
equipment and vehicles. And after such a letter
had been sent, through Col. Balbino V. Diego,
Chief Intelligence and Legal Officer of the
Presidential Security Command, they were
further encouraged to hope that the latter would
yield the desired results.
Page 61 of 71

1-Sanchez Roman
After waiting in vain for five [5] months,

petitioners finally decided to come to Court. [pp.
123-124, Rollo]
Although the reason given by petitioners may
not be flattering to our judicial system, We find
no ground to punish or chastise them for an error
in judgment. On the contrary, the extrajudicial
efforts exerted by petitioners quite evidently
negate the presumption that they had abandoned
their right to the possession of the seized
property, thereby refuting the charge of laches
against them.
Respondents also submit the theory that since
petitioner Jose Burgos, Jr. had used and marked
as evidence some of the seized documents in
Criminal Case No. Q- 022872, he is now
estopped from challenging the validity of the
search warrants. We do not follow the logic of
respondents. These documents lawfully belong
to petitioner Jose Burgos, Jr. and he can do
whatever he pleases with them, within legal
bounds. The fact that he has used them as
evidence does not and cannot in any way affect
the validity or invalidity of the search warrants
assailed in this petition.
Several and diverse reasons have been advanced
by petitioners to nullify the search warrants in
question.
1. Petitioners fault respondent judge for his
alleged failure to conduct an examination under
oath or affirmation of the applicant and his
witnesses, as mandated by the above-quoted
constitutional provision as wen as Sec. 4, Rule
126 of the Rules of Court . 6 This objection,
however, may properly be considered moot and

Atty. Mamburam
academic, as petitioners themselves conceded
during the hearing on August 9, 1983, that an
examination had indeed been conducted by
respondent judge of Col. Abadilla and his
witnesses.
2. Search Warrants No. 20-82[a] and No. 2082[b] were used to search two distinct places:
No. 19, Road 3, Project 6, Quezon City and 784
Units C & D, RMS Building, Quezon Avenue,
Quezon City, respectively. Objection is
interposed to the execution of Search Warrant
No. 20-82[b] at the latter address on the ground
that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was
allegedly keeping and concealing the articles
listed therein, i.e., No. 19, Road 3, Project 6,
Quezon City. This assertion is based on that
portion of Search Warrant No. 20- 82[b] which
states:
Which have been used, and are being used as
instruments and means of committing the crime
of subversion penalized under P.D. 885 as
amended and he is keeping and concealing the
same at 19 Road 3, Project 6, Quezon City.
The defect pointed out is obviously a
typographical error. Precisely, two search
warrants were applied for and issued because the
purpose and intent were to search two distinct
premises. It would be quite absurd and illogical
for respondent judge to have issued two warrants
intended for one and the same place. Besides,
the addresses of the places sought to be searched
were specifically set forth in the application, and
since it was Col. Abadilla himself who headed
the team which executed the search warrants, the
ambiguity that might have arisen by reason of
the typographical error is more apparent than
real. The fact is that the place for which Search

Warrant No. 20- 82[b] was applied for was 728
Quezon City, which address appeared in the
opening paragraph of the said warrant. 7
Obviously this is the same place that respondent
judge had in mind when he issued Warrant No.
20-82 [b].
In the determination of whether a search warrant
describes the premises to be searched with
sufficient particularity, it has been held "that the
executing officer's prior knowledge as to the
place intended in the warrant is relevant. This
would seem to be especially true where the
executing officer is the affiant on whose
affidavit the warrant had issued, and when he
knows that the judge who issued the warrant
intended the building des cribed in the affidavit,
And it has also been said that the executing
officer may look to the affidavit in the official
court file to resolve an ambiguity in the warrant
as to the place to be searched." 8
3.
Another ground relied upon to annul
the search warrants is the fact that although the
warrants were directed against Jose Burgos, Jr.
alone, articles b belonging to his co-petitioners
Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court,
enumerates the personal properties that may be
seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. A
search warrant may be issued for the search and
seizure of the following personal property:
[a] Property subject of the offense;
Page 62 of 71

1-Sanchez Roman
[b] Property stolen or embezzled and other

proceeds or fruits of the offense; and
[c] Property used or intended to be used as the
means of committing an offense.
The above rule does not require that the property
to be seized should be owned by the person
against whom the search warrant is directed. It
may or may not be owned by him. In fact, under
subsection [b] of the above-quoted Section 2,
one of the properties that may be seized is stolen
property. Necessarily, stolen property must be
owned by one other than the person in whose
possession it may be at the time of the search and
seizure. Ownership, therefore, is of no
consequence, and it is sufficient that the person
against whom the warrant is directed has control
or possession of the property sought to be seized,
as petitioner Jose Burgos, Jr. was alleged to have
in relation to the articles and property seized
under the warrants.
4. Neither is there merit in petitioners' assertion
that real properties were seized under the
disputed warrants. Under Article 415[5] of the
Civil Code of the Philippines, "machinery,
receptables, instruments or implements intended
by the owner of the tenement for an industry or
works which may be carried on in a building or
on a piece of land and which tend directly to
meet the needs of the said industry or works" are
considered immovable property. In Davao
Sawmill Co. v. Castillo 9 where this legal
provision was invoked, this Court ruled that
machinery which is movable by nature becomes
immobilized when placed by the owner of the
tenement, property or plant, but not so when
placed by a tenant, usufructuary, or any other

Atty. Mamburam
person having only a temporary right, unless
such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be
the owners of the land and/or building on which
the machineries were placed. This being the
case, the machineries in question, while in fact
bolted to the ground remain movable property
susceptible to seizure under a search warrant.
5. The questioned search warrants were issued
by respondent judge upon application of Col.
Rolando N. Abadilla Intelligence Officer of the
P.C. Metrocom. 10 The application was
accompanied by the Joint Affidavit of Alejandro
M. Gutierrez and Pedro U. Tango, 11 members
of the Metrocom Intelligence and Security
Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of
the application for the search warrants on
December 7, 1982.
It is contended by petitioners, however, that the
abovementioned documents could not have
provided sufficient basis for the finding of a
probable cause upon which a warrant may
validly issue in accordance with Section 3,
Article IV of the 1973 Constitution which
provides:
SEC. 3. ... and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined by the judge, or such other
responsible officer as may be authorized by law,
be searched and the persons or things to be
seized.
We find petitioners' thesis impressed with merit .

Probable cause for a search is defined as such
facts and circumstances which would lead a
reasonably discreet and prudent man to believe
that an offense has been committed and that the
objects sought in connection with the offense are
in the place sought to be searched. And when the
search warrant applied for is directed against a
newspaper publisher or editor in connection
with the publication of subversive materials, as
in the case at bar, the application and/or its
supporting affidavits
must
contain a
specification, stating with particularity the
alleged subversive material he has published or
is intending to publish. Mere generalization will
not suffice. Thus, the broad statement in Col.
Abadilla's application that petitioner "is in
possession or has in his control printing
equipment and other paraphernalia, news
publications and other documents which were
used and are all continuously being used as a
means of committing the offense of subversion
punishable under Presidential Decree 885, as
amended ..." 12 is a mere conclusion of law and
does not satisfy the requirements of probable
cause. Bereft of such particulars as would justify
a finding of the existence of probable cause, said
allegation cannot serve as basis for the issuance
of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the
determination of probable cause is the statement
contained in the joint affidavit of Alejandro M.
Gutierrez and Pedro U. Tango, "that the
evidence gathered and collated by our unit
clearly shows that the premises abovementioned and the articles and things abovedescribed were used and are continuously being
used for subversive activities in conspiracy with,
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1-Sanchez Roman
and to promote the objective of, illegal
organizations such as the Light-a-Fire
Movement, Movement for Free Philippines, and
April 6 Movement." 13
In mandating that "no warrant shall issue except
upon probable cause to be determined by the
judge, ... after examination under oath or
affirmation of the complainant and the witnesses
he may produce; 14 the Constitution requires no
less than personal knowledge by the
complainant or his witnesses of the facts upon
which the issuance of a search warrant may be
justified. In Alvarez v. Court of First Instance,
15 this Court ruled that "the oath required must
refer to the truth of the facts within the personal
knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the
committing magistrate, not the individual
making the affidavit and seeking the issuance of
the warrant, of the existence of probable cause."
As couched, the quoted averment in said joint
affidavit filed before respondent judge hardly
meets the test of sufficiency established by this
Court in Alvarez case.

Atty. Mamburam
of prints related to the "WE FORUM "
newspaper.
2]
Subversive documents, pamphlets,
leaflets, books, and other publication to promote
the objectives and piurposes of the subversive
organization known as Movement for Free
Philippines, Light-a-Fire Movement and April 6
Movement; and,
3]
Motor vehicles
used in
the
distribution/circulation of the "WE FORUM "
and other subversive materials and propaganda,
more particularly,
1]
Toyota-Corolla, colored yellow with
Plate No. NKA 892;
2]
DATSUN pick-up colored white with
Plate No. NKV 969
3]
524;
A delivery truck with Plate No. NBS
4]
TOYOTA-TAMARAW, colored white
with Plate No. PBP 665; and,
Another factor which makes the search warrants

under
consideration
constitutionally
objectionable is that they are in the nature of
general warrants. The search warrants describe
the articles sought to be seized in this wise:
5]
TOYOTA Hi-Lux, pick-up truck with
Plate No. NGV 427 with marking "Bagong
Silang."
1]
All printing equipment, paraphernalia,
paper, ink, photo (equipment, typewriters,
cabinets, tables, communications/recording
equipment, tape recorders, dictaphone and the
like used and/or connected in the printing of the
"WE FORUM" newspaper and any and all
documents communication, letters and facsimile
In Stanford v. State of Texas 16 the search

warrant which authorized the search for "books,
records, pamphlets, cards, receipts, lists,
memoranda, pictures, recordings and other
written instruments concerning the Communis t
Party in Texas," was declared void by the U.S.
Supreme Court for being too general. In like
manner, directions to "seize any evidence in
connectionwith the violation of SDC 13-3703 or
otherwise" have been held too general, and that

portion of a search warrant which authorized the
seizure of any "paraphernalia which could be
used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the
crime of conspiracy]" was held to be a general
warrant, and therefore invalid. 17 The
description of the articles sought to be seized
under the search warrants in question cannot be
characterized differently.
In the Stanford case, the U.S. Supreme Courts
calls to mind a notable chapter in English
history: the era of disaccord between the Tudor
Government and the English Press, when
"Officers of the Crown were given roving
commissions to search where they pleased in
order to suppress and destroy the literature of
dissent both Catholic and Puritan Reference
herein to such historical episode would not be
relevant for it is not the policy of our
government to suppress any newspaper or
publication that speaks with "the voice of nonconformity" but poses no clear and imminent
danger to state security.
As heretofore stated, the premises searched were
the business and printing offices of the
"Metropolitan Mail" and the "We Forum
newspapers. As a consequence of the search and
seizure, these premises were padlocked and
sealed, with the further result that the printing
and publication of said newspapers were
discontinued.
Such closure is in the nature of previous restraint
or censorship abhorrent to the freedom of the
press guaranteed under the fundamental law, 18
and constitutes a virtual denial of petitioners'
freedom to express themselves in print. This
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1-Sanchez Roman
state of being is patently anathematic to a
democratic framework where a free, alert and
even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing
of the printing machines on the ground that they
have been sequestered under Section 8 of
Presidential Decree No. 885, as amended, which
authorizes "the sequestration of the property of
any person, natural or artificial, engaged in
subversive activities against the government and
its duly constituted authorities ... in accordance
with implementing rules and regulations as may
be issued by the Secretary of National Defense."
It is doubtful however, if sequestration could
validly be effected in view of the absence of any
implementing rules and regulations promulgated
by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the
Daily Express, it was reported that no less than
President Marcos himself denied the request of
the military authorities to sequester the property
seized from petitioners on December 7, 1982.
Thus:
The President denied a request flied by
government prosecutors for sequestration of the
WE FORUM newspaper and its printing
presses, according to Information Minister
Gregorio S. Cendana.
On the basis of court orders, government agents
went to the We Forum offices in Quezon City
and took a detailed inventory of the equipment
and all materials in the premises.
Cendaa said that because of the denial the
newspaper and its equipment remain at the

Atty. Mamburam
disposal of the owners, subject to the discretion
of the court. 19
That the property seized on December 7, 1982
had not been sequestered is further confirmed by
the reply of then Foreign Minister Carlos P.
Romulo to the letter dated February 10, 1983 of
U.S. Congressman Tony P. Hall addressed to
President Marcos, expressing alarm over the
"WE FORUM " case. 20 In this reply dated
February 11, 1983, Minister Romulo stated:
Separate Opinions
ABAD SANTOS, J., concurring

I am glad to give my concurrence to the
ponencia of Mr. Justice Escolin At the same time
I wish to state my own reasons for holding that
the search warrants which are the subject of the
petition are utterly void.
2.
Contrary to reports, President Marcos
turned down the recommendation of our
authorities to close the paper's printing facilities
and confiscate the equipment and materials it
uses. 21
The action against "WE FORUM" was a naked

suppression of press freedom for the search
warrants were issued in gross violation of the
Constitution.
IN VIEW OF THE FOREGOING, Search

Warrants Nos. 20-82[a] and 20-82[b] issued by
respondent judge on December 7, 1982 are
hereby declared null and void and are
accordingly set aside. The prayer for a writ of
mandatory injunction for the return of the seized
articles is hereby granted and all articles seized
thereunder are hereby ordered released to
petitioners. No costs.
The Constitutional requirement which is

expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue
but upon probable cause, to be determined by the
judge in the manner set forth in said provision;
and (2) that the warrant shall particularly
describe the things to be seized." (Stonehill vs.
Diokno, 126 Phil. 738, 747: 20 SCRA 383
[1967].)
SO ORDERED.
Any search warrant is conducted in disregard of

the points mentioned above will result in wiping
"out completely one of the most fundamental
rights guaranteed in our Constitution, for it
would place the sanctity of the domicile and the
privacy of communication and correspondence
at the mercy of the whims caprice or passion of
peace officers." (Ibid, p. 748.)
Fernando,
C.J.,
Teehankee,
Makasiar,
Concepcion, Jr., Melencio-Herrera, Plana,
Relova, Gutierrez, Jr., De la Fuente and Cuevas,
JJ., concur.
Aquino, J., took no part.
The two search warrants were issued without

probable cause. To satisfy the requirement of
probable cause a specific offense must be
Page 65 of 71

1-Sanchez Roman
alleged in the application; abstract averments
will not suffice. In the case at bar nothing
specifically subversive has been alleged; stated
only is the claim that certain objects were being
used as instruments and means of committin g
the offense of subversion punishable under P.D.
No. 885, as amended. There is no mention of any
specific provision of the decree. I n the words of
Chief Justice C Concepcion, " It would be legal
heresy of the highest order, to convict anybody"
of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of
particularity. Both search warrants authorize
Col. Rolando Abadilla to seize and take
possession, among other things, of the
following:
Subversive documents, pamphlets, leaflets,
books and other publication to promote the
objectives and purposes of the subversive
organizations known as Movement for Free
Movement.
The obvious question is: Why were the
documents, pamphlets, leaflets, books, etc.
subversive? What did they contain to make them
subversive? There is nothing in the applications
nor in the warrants which answers the questions.
I must, therefore, conclude that the warrants are
general warrants which are obnoxious to the
Constitution.
In point of fact, there was nothing subversive
published in the WE FORUM just as there is
nothing subversive which has been published in
MALAYA which has replaced the former and

Atty. Mamburam
has the same content but against which no action
has been taken.
Conformably with existing jurisprudence
everything seized pursuant to the warrants
should be returned to the owners and all of the
items are subject to the exclusionary rule of
evidence.
Teehankee, J., concur.
Separate Opinions
ABAD SANTOS, J., concurring
I am glad to give my concurrence to the
ponencia of Mr. Justice Escolin At the same time
I wish to state my own reasons for holding that
the search warrants which are the subject of the
petition are utterly void.
The action against "WE FORUM" was a naked
suppression of press freedom for the search
warrants were issued in gross violation of the
Constitution.
The Constitutional requirement which is
expressed in Section 3, Article IV, stresses two
points, namely: "(1) that no warrant shall issue
but upon probable cause, to be determined by the
judge in the manner set forth in said provision;
and (2) that the warrant shall particularly
describe the things to be seized." (Stonehill vs.
Diokno, 126 Phil. 738, 747: 20 SCRA 383
[1967].)
Any search warrant is conducted in disregard of

the points mentioned above will result in wiping
"out completely one of the most fundamental
rights guaranteed in our Constitution, for it
would place the sanctity of the domicile and the
privacy of communication and correspondence
at the mercy of the whims caprice or passion of
peace officers." (Ibid, p. 748.)
The two search warrants were issued without
probable cause. To satisfy the requirement of
probable cause a specific offense must be
alleged in the application; abstract averments
will not suffice. In the case at bar nothing
specifically subversive has been alleged; stated
only is the claim that certain objects were being
used as instruments and means of committin g
the offense of subversion punishable under P.D.
No. 885, as amended. There is no mention of any
specific provision of the decree. I n the words of
Chief Justice C Concepcion, " It would be legal
heresy of the highest order, to convict anybody"
of violating the decree without reference to any
determinate provision thereof.
The search warrants are also void for lack of
particularity. Both search warrants authorize
Col. Rolando Abadilla to seize and take
possession, among other things, of the
following:
Subversive documents, pamphlets, leaflets,
books and other publication to promote the
objectives and purposes of the subversive
organizations known as Movement for Free
Movement.
The obvious question is: Why were the
documents, pamphlets, leaflets, books, etc.
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1-Sanchez Roman
subversive? What did they contain to make them
subversive? There is nothing in the applications
nor in the warrants which answers the questions.
I must, therefore, conclude that the warrants are
general warrants which are obnoxious to the
Constitution.
In point of fact, there was nothing subversive
published in the WE FORUM just as there is
nothing subversive which has been published in
MALAYA which has replaced the former and
has the same content but against which no action
has been taken.
Conformably with existing jurisprudence
everything seized pursuant to the warrants
should be returned to the owners and all of the
items are subject to the exclusionary rule of
evidence.

Atty. Mamburam
affirmation the complainant and any witnesses
he may produce and take their deposition in
writing and attach them to the record, in addition
to any affidavits presented to them.
20 Annex "L", Consolidated Reply, p. 178,

Rollo.
21 Annex "M", Consolidated Reply, p. 179,
Rollo.
7
The opening paragraph of Search
Warrant No. 20- 82 [b] reads:
"It appearing to the satisfaction of the
undersigned after examination under oath of
Maj. Alejandro M. Gutierrez and Lt. Pedro U.
Tango, that there are good and sufficient reason
to believe that Jose Burgos, Jr. Publisher-Edito r
of "WE FORUM" with office address at 784
Quezon City, has in his possession and control
at said address the following; ... :
8
68 Am. Jur. 2d., 729.
Teehankee, J., concur.
9 61 Phil. 709. Annex "C", Petition, pp. 51-52,
Footnotes
10
Rollo.
Petition, P. 44, Rollo.
11
Annex "B", Petition, pp. 53-54, Rollo.
2
Rollo.
Manifestation and Opposition, p. 75,
12
Annex "C", Petition, p. 51, Rollo.
13
Annex "D", Petition, p. 54, Rollo.
14
Sec. 3, Art. IV, 1973 Constitution.
15
64 Phil. 33.
18
Sec. 9. Art. IV of the Constitution
3 Templo v. Dela Cruz, 60 SCRA 295.

4
463 Phil. 275.
Tijam v. Sibonghanoy, 23 SCRA 29.
6 Sec. 4, Rule 126, Rules of Court provides:

Sec. 4. Examination of the Applicant. The
municipal or city judge must, before issuing the
warrant, personally examine on oath or
19
Annex "K", Consolidated Reply, p.
175, Rollo.
Page 67 of 71

1-Sanchez Roman

Atty. Mamburam
Guillermo
B. Guevarra for defendantsappellees.
No appearance for plaintiff-appellee.
in grave profanation of the place, in open

disregard of the religious feelings of the
Catholics of this municipality, and in violation
of article 133 of the Revised Penal Code.
CONCEPCION, J.:
This appeal was given due course by the Court
of First Instance of Laguna by virtue of a writ of
mandamus issued by this court in G.R. No.
45780. The facts are the following: In the justice
of the peace court of the municipality of
Lumban, Province of Laguna, a complaint was
filed of the following tenor:
The undersigned Parish Priest of the Roman
Catholic Church in the parish and municipalit y
of Lumban, Province of Laguna, upon being
duly sworn, charges Enrique Villaro ca,
Alejandro Lacbay and Bernardo del Rosario
with an offense against religion committed as
follows:
OFFENDING OF THE RELIGIOUS

FEELINGS
SUPREME COURT
Manila
EN BANC
G.R. No. L-46000
May 25, 1939
THE PEOPLE OF THE PHILIPPIN ES ,

appellee,
vs.
JOSE M. BAES, appellant.
Crispin Oben for appellant.
That on April 14, 1937, at about 9 o'clock a.m.,

in this municipality of Lumban, Province of
Laguna, Philippines, and within the jurisdiction
of this court, the aforesaid accused, while
holding the funeral of one who in life was called
Antonio Macabigtas, in accordance with the
rites of religious sect known as the "Church of
Christ", willfully, unlawfully, and criminally
caused the funeral to pass, as it in fact passed,
through the chruchyard fronting the Roman
Catholic Church, which churchyard belongs to
the said Church, which churchyard belongs to
the said Church and is devoted to the religious
worship thereof, against the opposition of the
undersigned complainant who, through force
and threats of physical violence by the accused,
was compelled to allow the funeral to pass
through the said churchyard. An act committed
(Sgd.) JOSE M.A. BAES

Parish Priest
Complainant
(Here follow the affidavit and the list of
witnesses.)
The accused pleaded not guilty and waived the
preliminary investigation. Before the case was
remanded to the Court of First Instance of
Laguna, the complainant filed a sworn statement
regarding other points so that the provincial
fiscal may have full knowledge of the facts and
of the witnesses who could testify thereon. Upon
the remand of the case to the court, the fiscal,
instead of filing the corresponding information,
put in the following motion for dismissal:
The complainant is the parish priest of the
Roman Catholic Church of Lumban, Laguna.
The said priest charges the accused with having
caused, through force, intimidation and threats,
the funeral of one belonging to the Church of
Christ to pass through the churchyard of the
Church. Apparently, the offense consists in that
the corpse was that of one who belonged to the
Church of Christ.
The undersigned is of the opinion that the fact
act imputed to the accused does not constitute
the offense complained of considering the spirit
of article 133 of the Revised Penal Code. At
most they might be chargeable with having
threatened the parish priest, or with having
passed through a private property without the
Page 68 of 71

1-Sanchez Roman
consent of the owner. Justice Albert,
commenting on the article, has this to say: "An
act is said to be notoriously offensive to the
religious feelings of the faithful when a person
ridicules or makes light of anything constituting
a religious dogma; works or scoffs at anything
devoted to religious ceremonies; plays with or
damages or destroys any object of veneration by
the faithful." The mere act of causing the
passage through the churchyard belonging to the
Church, of the funeral of one who in life
belonged to the Church of Christ, neither
offends nor ridicules the religious feelings of
those who belong to the Roman Catholic
Church.
Sustaining the foregoing motion, the court by an
order of August 31, 1937, dismissed the case,
reserving, however, to the fiscal the right to file
another information for the crime found to have
been committed by the accused.
From this order, the plaintiff appealed, which
appeal was denied but thereafter given due
course by the court by virtue of an order of this
court.
The appealed order is based upon the motion to
dismiss filed by the fiscal. This officer questions
the sufficiency of the facts alleged in the
complaint, but omits an es sential part thereof, to
wit, that the churchyard belongs to the church,
and is devoted to the religious services of said
church, and it is through this churchyard that the
accused, over the objection of the parish priest
and through force and intimidation, caused to
pass the funeral of one under the rites of the
religious sect known as the Church of Christ.
Had the fiscal not omitted this essential part, he
would not have come to the conclusion that the

Atty. Mamburam
acts complained of do not constitute the crime
defined and penalized by article 133 of the
Revised Penal Code.
Moreover, the fiscal, in his aforesaid motion,
denies that the unlawful act committed by the
accused had offended the religious feelings of
the Catholics of the municipality in which the
act complained of took place. We believe that
such ground of the motion is indefensible. As the
fiscal was discussing the sufficiency of the facts
alleged in the complaint, he cannot deny any of
them, but must admit them, although
hypothetically, as they are alleged. The motion
raises a question of law, not one of fact. In the
second place, whether or of the act complained
of is offensive to the religious feelings of the
Catholics, is a question of fact which must be
judged only according to the feelings of the
Catholics and not those of other faithful ones, for
it is possible that certain acts may offend the
feelings of those who profess a certain religion ,
while not otherwise offensive to the feelings of
those professing another faith. We, therefore,
take the view that the facts alleged in the
complaint constitute the offense defined and
penalized in article 133 of the Revised Penal
Code, and should the fiscal file an informatio n
alleging the said facts and a trial be thereafter
held at which the said facts should be
conclusively established, the court may find the
accused guilty of the offense complained of, or
that of coercion, or that of trespass under article
281 of the Revised Penal Code, as may be
proper, pursuant to section 29 of General Orders,
No. 58.
The appealed order is reversed and the fiscal is
ordered to comply with his duty under the law,
without pronouncement as to the costs. So

ordered.
Avancea, C.J., Villa-Real,
concur.
and Diaz, JJ.,
Separate Opinions
MORAN, J., concurring:
I concur in the dispositive part on the ground that
the lower court, without determining if the
churchyard of the Catholic Church is a place
devoted to religious worship or not, held that the
passage through the said churchyard of a funeral
conducted in accordance with the rites of
another religion is not offensive to the feelings
of the Catholic. If that funeral with ceremonies
of another religion had been made to pass inside
the church, it would without question be
offensive top the feelings of the Catholics. The
lower court, through the provincial fiscal, is thus
under a duty to determine: (1) If the churchyard
is a place devoted to the religious worship of the
Catholic Church, and (2) if the funeral held
under the rites of another religion was made to
pass through the said churchyard.
If the churchyard of the Catholic Church is like
some of those seen in Manila churches where
anyone can pass and where goods are even sold
to the public, then it is not a place devoted to
religious worship, and the fact that a funeral to
pass through it, does not constitute a violation of
article 133 of the Revised Penal Code, but, at
most, the offense of threats if it is true that the
parish priest was threatened when he prohibited
the passage of the funeral.
Page 69 of 71

1-Sanchez Roman
LAUREL, J., dissenting:
I dissent.
It is an accepted doctrine of construction that
criminal statutes must be strictly interpreted. In
fact, no person should be brought within the
terms of the penal law who is not clearly so
within, and no acts should be pronounced
criminal unless so defined and penalized by law.
The offense imputed to the defendants herein is
defined in article 133 which is as follows:
ART. 133. Offending religious feelings. The
penalty of arresto mayor in its maximu m period
to prision correccional in its minimum period
shall be imposed upon anyone who, in a place
devoted to religious worship or during the
celebration of any religious ceremony, shall
perform acts notoriously offensive to the
feelings of the faithful.
As defined, two essential elements must be
present under this article, to wit: (1) That the
facts complained of were performed in a place
devoted to religious worship or during the
celebration of any religious ceremony; and (2)
that the said act or acts must be notoriously
offensive to the feelings of the faithful. It is
admitted that the whole incident happened in the
"atrio" or "patio" of the Catholic Church of
Lumban, Laguna. There was no celebration of
any religious ceremony then. The "atrio" coming
from the Latin "atrium" means, an open space,
generally closed, fronting a building or a church.
In this case it is a churchyard. While occasional
religious ceremonies may be performed in the
"atrio", nevertheless this does not make the
"atrio" a place devoted to religious worship
under article 133 of the Revised Penal Code, any

Atty. Mamburam
more than a public plaza, a street or any other
place occasionally used for religious purposes.
But assuming that the churchyard in this case is
"a place devoted to religious worship"
contrary to what we see and know (Justice
Brown, in Hunter vs. New York O. & W. Ry.
Co., 23 N.E., 9, 10; 116 N.Y., 615) is the act
complained of "notoriously offensive to the
feelings of the faithful?" The imputed
dereliction consist in that "los acusados arriba
nombrados, estando dirigiendo el entierro segun
el rito de una secta religiosa llamada "Iglesia de
Cristo", del cadaver de uno que en vida se
llamada Antonio Macabigtas, voluntaria, ilegal
y criminalmente hicieron que dicho entierro
pasase, como en efecto paso, por el a trio de la
Iglesia Catholica Romana frente a dicha Iglesia,
el cual a trio es propiedad de dicha Iglesia y esta
dedicado a los cultos religiosos de esta Iglesia y
esta dedicado a los cultos religiosos deesta
Iglesia, contra la oposicion del infrascrito
denunciantea quien los acusados mediante
fuerza y amenazas de maltrato obligaron a
cederles el paso del entierro por dicho atrio."
(Emphasis is mine.) As I see it the only act
which is alleged to have offended the religious
"feelings of the faithful" here is that of passing
by the defendants through the "atrio" of the
church under the circumstances mentioned. I
make no reference to the alleged trespass
committed by the defendants or the threats
imputed to them because these acts constitute
different offenses (arts. 280, 281 and 282-285)
and do not fall within the purview of article 133
of the Revised Penal Code. I believe that an act,
in order to be considered as notoriously
offensive to the religious feelings, must be one
directed against religious practice or dogma or
ritual for the purpose of ridicule; the offender,
for instance, mocks, scoffs at or attempts to
damage an object of religious veneration; it must

be abusive, insulting and obnoxious (Viad a,
Comentarios al Codigo Penal, 707, 708; vide
also Pacheco, Codigo Penal, p. 359).
Why, may I ask, should the mere act of passing
of the corpse or funeral cortege in or through a
private property be characterized as notoriously
offensive to the feelings of any religion or of its
adherent or followers?
The Lord gave, and the Lord hath taken away;
blessed by the name of the Lord. (Job. I. 21.)
In this case, the Lord has recalled the life of one
of His creatures: and it must be His wish that the
remains shall have the right of way that they may
be buried "somewhere, in desolate, wind-swept
space, in twilight land, in no man's land but in
everybody's land.
Rather than too many religions that will make us
hate one another because of religious prejudices
and intolerance, may I express the hope that we
may grasp and imbibe the one fundamental of all
religions that should make us love one another!
I must decline to accept the statement made in
the majority opinion that "whether or not the act
complained of is offensive to the religious
feelings of the Catholics, is a question of fact
which must be judged only according to the
feelings of the Catholics and not those of other
faithful ones, for it is possible that certain acts
may offend the feelings of those who profess a
certain religion, while not otherwise offensive to
the feelings of those professing another faith."
(Emphasis is mine.) I express the opinion that
offense to religious feelings should not be made
to depend upon the more or less broad or narrow
Page 70 of 71

1-Sanchez Roman

Atty. Mamburam
conception of any given particular religion, but

should be gauged having in view the nature of
the acts committed and after scrutiny of all the
facts and circumstance which should be viewed
through the mirror of an unbiased judicial
criterion .Otherwise, the gravity or leniency of
the offense would hinge on the subjective
characterization of the act from the point of view
of a given religious denomination or sect, and in
such a case, the application of the law would be
partial and arbitrary, withal, dangerous,
especially in a country said to be "once the scene
of religious intolerance and persecution."
(Aglipay vs. Ruiz, 35 Off. Gaz., 2164.)
I think that the ruling of the lower court in
ordering the dismissal of the case and in
reserving to the provincial fiscal the presentation
of another complaint or complaints under other
provisions of the Revised Penal Code, is correct
and should be upheld.
IMPERIAL, J.:
I concur in the preceding dissenting opinion of
Justice Laurel.
Page 71 of 71

Title Two Crimes Against The Fundamental Law of The State

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Title Two Crimes Against The Fundamental Law of The State

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Ateneo de Davao University- College of Law

TITLE TWO CRIMES

Criminal Law 2 Cases

IN THE MATTER OF THE PETITIO N

IN THE MATTER OF THE PETITIO N

Efren H. Mercado for petitioners in G.R. No.

IN THE MATTER OF THE APPLICATIO N

THE STATION COMMANDER OF THE

Josefina G. Campbell-Castillo for petitioners in

IN THE MATTER OF APPLICATION FOR

Before the Court are separate motions filed by

IN THE MATTER OF THE PETITIO N

WHEREFORE, the petitions are hereby

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

witho warrant is found in Section 5, Rule 113 of

In the present cases, the focus is understandably

It can not be overlooked that these are petitions

Sec. 5. Arrest without warrant; when lawful.

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

In G.R. No. 81567 (Umil case), military agents,

Ateneo de Davao University- College of Law

In fine, the confidential information received by

Criminal Law 2 Cases

As to Amelia Roque and Wilfredo Buenaobra

firearms, ammunitions, radio and other

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

The courts should not expect of law-enforcers

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

court to hear the case on 30 January 1989 and

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

It bears repeating theat warrantless arrests are

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

applies only to the identity of the perpetrator.

civic duty demands his intervention to preserve

Earlier, in Morales, Jr. vs. Enrile (G.R. No.

I am not unmindful of the fact that abuses occur

At the time a person is arrested, it shall be the

The philosophy adopted in our Constitution is

People all over the world are fast accepting the

Only in the cases found in the Rule should we

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

illegal firearms and ammunitions. They were

of all freedoms, which is freedom of expression.

I vote to grant the motion for reconsideration in

Insofar as G.R. No. 81567 is concemed, I join

This impresses me as Court validation of a clear

The belief of law enforcement authorities, no

In G.R. No. 86332, Romulo Bunye was killed on

Ateneo de Davao University- College of Law

Criminal Law 2 Cases

The treatment suggested envisions an actual

Garcia-Padilla, however, all persons suspected