woman's health and the potentiality of human life, each of which interests grows and
United States Supreme Court
ROE v. WADE, (1973)
No. 70-18
Argued: December 13, 1971 Decided: January 22, 1973
A pregnant single woman (Roe) brought a class action challenging the
constitutionality of the Texas criminal abortion laws, which proscribe procuring or
attempting an abortion except on medical advice for the purpose of saving the
mother's life. A licensed physician (Hallford), who had two state abortion
prosecutions pending against him, was permitted to intervene. A childless married
couple (the Does), the wife not being pregnant, separately attacked the laws, basing
alleged injury on the future possibilities of contraceptive failure, pregnancy,
unpreparedness for parenthood, and impairment of the wife's health. A three-judge
District Court, which consolidated the actions, held that Roe and Hallford, and
members of their classes, had standing to sue and presented justiciable controversies.
Ruling that declaratory, though not injunctive, relief was warranted, the court
declared the abortion statutes void as vague and overbroadly infringing those
plaintiffs' Ninth and Fourteenth Amendment rights. The court ruled the Does'
complaint not justiciable. Appellants directly appealed to this Court on the injunctive
rulings, and appellee cross-appealed from the District Court's grant of declaratory
relief to Roe and Hallford. Held:
1. While 28 U.S.C. 1253 authorizes no direct appeal to this Court from the grant or
denial of declaratory relief alone, review is not foreclosed when the case is properly
before the Court on appeal from specific denial of injunctive relief and the arguments
as to both injunctive and declaratory relief are necessarily identical. P. 123.
2. Roe has standing to sue; the Does and Hallford do not. Pp. 123-129.
(a) Contrary to appellee's contention, the natural termination of Roe's pregnancy did
not moot her suit. Litigation involving pregnancy, which is "capable of repetition,
yet evading review," is an exception to the usual federal rule that an actual
controversy [410 U.S. 113, 114] must exist at review stages and not simply when
the action is initiated. Pp. 124-125.
(b) The District Court correctly refused injunctive, but erred in granting declaratory,
relief to Hallford, who alleged no federally protected right not assertable as a defense
against the good-faith state prosecutions pending against him. Samuels v.
Mackell, 401 U.S. 66 . Pp. 125-127.
(c) The Does' complaint, based as it is on contingencies, any one or more of which
may not occur, is too speculative to present an actual case or controversy. Pp. 127-
129.
3. State criminal abortion laws, like those involved here, that except from criminality
only a life-saving procedure on the mother's behalf without regard to the stage of her
pregnancy and other interests involved violate the Due Process Clause of the
Fourteenth Amendment, which protects against state action the right to privacy,
including a woman's qualified right to terminate her pregnancy. Though the State
cannot override that right, it has legitimate interests in protecting both the pregnant
reaches a "compelling" point at various stages of the woman's approach to term. Pp.
147-164.
(a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician. Pp. 163, 164.
(b) For the stage subsequent to approximately the end of the first trimester, the State,
in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health. Pp. 163,
164.
(c) For the stage subsequent to viability the State, in promoting its interest in the
potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion
except where necessary, in appropriate medical judgment, for the preservation of the
life or health of the mother. Pp. 163-164; 164-165.
4. The State may define the term "physician" to mean only a physician currently
licensed by the State, and may proscribe any abortion by a person who is not a
physician as so defined. P. 165.
5. It is unnecessary to decide the injunctive relief issue since the Texas authorities
will doubtless fully recognize the Court's ruling [410 U.S. 113, 115] that the Texas
criminal abortion statutes are unconstitutional. P. 166.
314 F. Supp. 1217, affirmed in part and reversed in part.
BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and
DOUGLAS, BRENNAN, STEWART, MARSHALL, and POWELL, JJ., joined.
BURGER, C. J., post, p. 207, DOUGLAS, J., post, p. 209, and STEWART, J., post,
p. 167, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which
REHNQUIST, J., joined, post, p. 221. REHNQUIST, J., filed a dissenting opinion,
post, p. 171.
Sarah Weddington reargued the cause for appellants. With her on the briefs were
Roy Lucas, Fred Bruner, Roy L. Merrill, Jr., and Norman Dorsen.
Robert C. Flowers, Assistant Attorney General of Texas, argued the cause for
appellee on the reargument. Jay Floyd, Assistant Attorney General, argued the cause
for appellee on the original argument. With them on the brief were Crawford C.
Martin, Attorney General, Nola White, First Assistant Attorney General, Alfred
Walker, Executive Assistant Attorney General, Henry Wade, and John B.
Tolle. * [410 U.S. 113, 116]
[ Footnote * ] Briefs of amici curiae were filed by Gary K. Nelson, Attorney General
of Arizona, Robert K. Killian, Attorney General of Connecticut, Ed W. Hancock,
Attorney General of Kentucky, Clarence A. H. Meyer, Attorney General of
Nebraska, and Vernon B. Romney, Attorney General of Utah; by Joseph P.
Witherspoon, Jr., for the Association of Texas Diocesan Attorneys; by Charles E.
Rice for Americans United for Life; by Eugene J. McMahon for Women for the
Unborn et al.; by Carol Ryan for the American College of Obstetricians and
Gynecologists et al.; by Dennis J. Horan, Jerome A. Frazel, Jr., Thomas M. Crisham,
and Dolores V. Horan for Certain Physicians, Professors and Fellows of the
American College of Obstetrics and Gynecology; by Harriet F. Pilpel, Nancy F. The Texas statutes that concern us here are Arts. 1191-1194 and 1196 of the State's
Wechsler, and Frederic S. Nathan for Planned Parenthood Federation of America, Penal Code. 1 These make it a crime to "procure an abortion," as therein [410 U.S.
Inc., et al.; by Alan F. Charles for the National Legal Program on Health Problems of 113, 118] defined, or to attempt one, except with respect to "an abortion procured
the Poor et al.; by Marttie L. Thompson for State Communities Aid Assn.; by [410 or attempted by medical advice for the purpose of saving the life of the mother."
U.S. 113, 116] Alfred L. Scanlan, Martin J. Flynn, and Robert M. Byrn for the Similar statutes are in existence in a majority of the States. 2 [410 U.S. 113, 119]
National Right to Life Committee; by Helen L. Buttenwieser for the American
Ethical Union et al.; by Norma G. Zarky for the American Association of University Texas first enacted a criminal abortion statute in 1854. Texas Laws 1854, c. 49, 1, set
Women et al.; by Nancy Stearns for New Women Lawyers et al.; by the California forth in 3 H. Gammel, Laws of Texas 1502 (1898). This was soon modified into
Committee to Legalize Abortion et al.; and by Robert E. Dunne for Robert L. language that has remained substantially unchanged to the present time. See Texas
Sassone. Penal Code of 1857, c. 7, Arts. 531-536; G. Paschal, Laws of Texas, Arts. 2192-2197
(1866); Texas Rev. Stat., c. 8, Arts. 536-541 (1879); Texas Rev. Crim. Stat., Arts.
MR. JUSTICE BLACKMUN delivered the opinion of the Court. 1071-1076 (1911). The final article in each of these compilations provided the same
exception, as does the present Article 1196, for an abortion by "medical advice for
This Texas federal appeal and its Georgia companion, Doe v. Bolton, post, p. 179, the purpose of saving the life of the mother." 3 [410 U.S. 113, 120]
present constitutional challenges to state criminal abortion legislation. The Texas
statutes under attack here are typical of those that have been in effect in many States II
for approximately a century. The Georgia statutes, in contrast, have a modern cast
Jane Roe, 4 a single woman who was residing in Dallas County, Texas, instituted
and are a legislative product that, to an extent at least, obviously reflects the
this federal action in March 1970 against the District Attorney of the county. She
influences of recent attitudinal change, of advancing medical knowledge and
sought a declaratory judgment that the Texas criminal abortion statutes were
techniques, and of new thinking about an old issue.
unconstitutional on their face, and an injunction restraining the defendant from
enforcing the statutes.
We forthwith acknowledge our awareness of the sensitive and emotional nature of
the abortion controversy, of the vigorous opposing views, even among physicians,
Roe alleged that she was unmarried and pregnant; that she wished to terminate her
and of the deep and seemingly absolute convictions that the subject inspires. One's
pregnancy by an abortion "performed by a competent, licensed physician, under safe,
philosophy, one's experiences, one's exposure to the raw edges of human existence,
clinical conditions"; that she was unable to get a "legal" abortion in Texas because
one's religious training, one's attitudes toward life and family and their values, and
her life did not appear to be threatened by the continuation of her pregnancy; and that
the moral standards one establishes and seeks to observe, are all likely to influence
she could not afford to travel to another jurisdiction in order to secure a legal
and to color one's thinking and conclusions about abortion.
abortion under safe conditions. She claimed that the Texas statutes were
unconstitutionally vague and that they abridged her right of personal privacy,
In addition, population growth, pollution, poverty, and racial overtones tend to
protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an
complicate and not to simplify the problem.
amendment to her complaint Roe purported to sue "on behalf of herself and all other
women" similarly situated.
Our task, of course, is to resolve the issue by constitutional measurement, free of
emotion and of predilection. We seek earnestly to do this, and, because we do,
James Hubert Hallford, a licensed physician, sought and was granted leave to
we [410 U.S. 113, 117] have inquired into, and in this opinion place some emphasis
intervene in Roe's action. In his complaint he alleged that he had been arrested
upon, medical and medical-legal history and what that history reveals about man's
previously for violations of the Texas abortion statutes and [410 U.S. 113, 121] that
attitudes toward the abortion procedure over the centuries. We bear in mind, too, Mr.
two such prosecutions were pending against him. He described conditions of patients
Justice Holmes' admonition in his now-vindicated dissent in Lochner v. New
who came to him seeking abortions, and he claimed that for many cases he, as a
York, 198 U.S. 45, 76 (1905):
physician, was unable to determine whether they fell within or outside the exception
recognized by Article 1196. He alleged that, as a consequence, the statutes were
"[The Constitution] is made for people of fundamentally differing views, and the
vague and uncertain, in violation of the Fourteenth Amendment, and that they
accident of our finding certain opinions natural and familiar or novel and even
violated his own and his patients' rights to privacy in the doctor-patient relationship
shocking ought not to conclude our judgment upon the question whether statutes
and his own right to practice medicine, rights he claimed were guaranteed by the
embodying them conflict with the Constitution of the United States."
First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
I
John and Mary Doe, 5 a married couple, filed a companion complaint to that of Roe. U.S. 383 (1970), are to the effect that 1253 does not authorize an appeal to this Court
They also named the District Attorney as defendant, claimed like constitutional from the grant or denial of declaratory relief alone. We conclude, nevertheless, that
deprivations, and sought declaratory and injunctive relief. The Does alleged that they those decisions do not foreclose our review of both the injunctive and the declaratory
were a childless couple; that Mrs. Doe was suffering from a "neural-chemical" aspects of a case of this kind when it is properly here, as this one is, on appeal under
disorder; that her physician had "advised her to avoid pregnancy until such time as 1253 from specific denial of injunctive relief, and the arguments as to both aspects
her condition has materially improved" (although a pregnancy at the present time are necessarily identical. See Carter v. Jury Comm'n, 396 U.S. 320 (1970); Florida
would not present "a serious risk" to her life); that, pursuant to medical advice, she Lime Growers v. Jacobsen, 362 U.S. 73, 80 -81 (1960). It would be destructive of
had discontinued use of birth control pills; and that if she should become pregnant, time and energy for all concerned were we to rule otherwise. Cf. Doe v. Bolton, post,
she would want to terminate the pregnancy by an abortion performed by a p. 179.
competent, licensed physician under safe, clinical conditions. By an amendment to
their complaint, the Does purported to sue "on behalf of themselves and all couples IV
similarly situated."
We are next confronted with issues of justiciability, standing, and abstention. Have
Roe and the Does established that "personal stake in the outcome of the
The two actions were consolidated and heard together by a duly convened three-
controversy," Baker v. Carr, 369 U.S. 186, 204 (1962), that insures that "the dispute
judge district court. The suits thus presented the situations of the pregnant single
sought to be adjudicated will be presented in an adversary context and in a form
woman, the childless couple, with the wife not pregnant,[410 U.S. 113, 122] and
historically viewed as capable of judicial resolution," Flast v. Cohen, 392 U.S. 83,
the licensed practicing physician, all joining in the attack on the Texas criminal
101 (1968), and Sierra Club v. Morton, 405 U.S. 727, 732 (1972)? And what effect
abortion statutes. Upon the filing of affidavits, motions were made for dismissal and
did the pendency of criminal abortion charges against Dr. Hallford in state court
for summary judgment. The court held that Roe and members of her class, and Dr.
have upon the propriety of the federal court's granting relief to him as a plaintiff-
Hallford, had standing to sue and presented justiciable controversies, but that the
intervenor? [410 U.S. 113, 124]
Does had failed to allege facts sufficient to state a present controversy and did not
have standing. It concluded that, with respect to the requests for a declaratory
A. Jane Roe. Despite the use of the pseudonym, no suggestion is made that Roe is a
judgment, abstention was not warranted. On the merits, the District Court held that
fictitious person. For purposes of her case, we accept as true, and as established, her
the "fundamental right of single women and married persons to choose whether to
existence; her pregnant state, as of the inception of her suit in March 1970 and as late
have children is protected by the Ninth Amendment, through the Fourteenth
as May 21 of that year when she filed an alias affidavit with the District Court; and
Amendment," and that the Texas criminal abortion statutes were void on their face
her inability to obtain a legal abortion in Texas.
because they were both unconstitutionally vague and constituted an overbroad
infringement of the plaintiffs' Ninth Amendment rights. The court then held that Viewing Roe's case as of the time of its filing and thereafter until as late as May,
abstention was warranted with respect to the requests for an injunction. It therefore there can be little dispute that it then presented a case or controversy and that, wholly
dismissed the Does' complaint, declared the abortion statutes void, and dismissed the
apart from the class aspects, she, as a pregnant single woman thwarted by the Texas
application for injunctive relief. 314 F. Supp. 1217, 1225 (ND Tex. 1970).
criminal abortion laws, had standing to challenge those statutes. Abele v. Markle,
452 F.2d 1121, 1125 (CA2 1971); Crossen v. Breckenridge, 446 F.2d 833, 838-839
The plaintiffs Roe and Doe and the intervenor Hallford, pursuant to 28 U.S.C. 1253,
(CA6 1971); Poe v. Menghini, 339 F. Supp. 986, 990-991 (Kan. 1972). See Truax v.
have appealed to this Court from that part of the District Court's judgment denying
Raich, 239 U.S. 33 (1915). Indeed, we do not read the appellee's brief as really
the injunction. The defendant District Attorney has purported to cross-appeal,
asserting anything to the contrary. The "logical nexus between the status asserted and
pursuant to the same statute, from the court's grant of declaratory relief to Roe and
the claim sought to be adjudicated," Flast v. Cohen, 392 U.S., at 102 , and the
Hallford. Both sides also have taken protective appeals to the United States Court of
necessary degree of contentiousness, Golden v. Zwickler, 394 U.S. 103 (1969), are
Appeals for the Fifth Circuit. That court ordered the appeals held in abeyance
both present.
pending decision here. We postponed decision on jurisdiction to the hearing on the
merits. 402 U.S. 941 (1971). [410 U.S. 113, 123] The appellee notes, however, that the record does not disclose that Roe was pregnant
at the time of the District Court hearing on May 22, 1970, 6 or on the following June
III 17 when the court's opinion and judgment were filed. And he suggests that Roe's
It might have been preferable if the defendant, pursuant to our Rule 20, had case must now be moot because she and all other members of her class are no longer
presented to us a petition for certiorari before judgment in the Court of Appeals with subject to any 1970 pregnancy. [410 U.S. 113, 125]
respect to the granting of the plaintiffs' prayer for declaratory relief. Our decisions in
Mitchell v. Donovan, 398 U.S. 427 (1970), and Gunn v. University Committee, 399
The usual rule in federal cases is that an actual controversy must exist at stages of
appellate or certiorari review, and not simply at the date the action is initiated.
United States v. Munsingwear, Inc., 340 U.S. 36(1950); Golden v. Zwickler, supra;
SEC v. Medical Committee for Human Rights, 404 U.S. 403 (1972).
But when, as here, pregnancy is a significant fact in the litigation, the normal 266-
day human gestation period is so short that the pregnancy will come to term before
the usual appellate process is complete. If that termination makes a case moot,
pregnancy litigation seldom will survive much beyond the trial stage, and appellate
review will be effectively denied. Our law should not be that rigid. Pregnancy often
comes more than once to the same woman, and in the general population, if man is to
survive, it will always be with us. Pregnancy provides a classic justification for a
conclusion of nonmootness. It truly could be "capable of repetition, yet evading
review." Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). See
Moore v. Ogilvie, 394 U.S. 814, 816 (1969); Carroll v. Princess Anne, 393 U.S. 175,
178 -179 (1968); United States v. W. T. Grant Co., 345 U.S. 629, 632 -633 (1953).
We, therefore, agree with the District Court that Jane Roe had standing to undertake
this litigation, that she presented a justiciable controversy, and that the termination of
her 1970 pregnancy has not rendered her case moot.
B. Dr. Hallford. The doctor's position is different. He entered Roe's litigation as a
plaintiff-intervenor, alleging in his complaint that he:
"[I]n the past has been arrested for violating the Texas Abortion Laws and at the
present time stands charged by indictment with violating said laws in the Criminal
District Court of Dallas County, Texas to-wit: (1) The State of Texas vs. [410 U.S.
113, 126] James H. Hallford, No. C-69-5307-IH, and (2) The State of Texas vs.
James H. Hallford, No. C-69-2524-H. In both cases the defendant is charged with
abortion . . . ."
In his application for leave to intervene, the doctor made like representations as to
the abortion charges pending in the state court. These representations were also
repeated in the affidavit he executed and filed in support of his motion for summary
judgment.
Dr. Hallford is, therefore, in the position of seeking, in a federal court, declaratory
and injunctive relief with respect to the same statutes under which he stands charged
in criminal prosecutions simultaneously pending in state court. Although he stated
that he has been arrested in the past for violating the State's abortion laws, he makes
no allegation of any substantial and immediate threat to any federally protected right
that cannot be asserted in his defense against the state prosecutions. Neither is there
any allegation of harassment or bad-faith prosecution. In order to escape the rule
articulated in the cases cited in the next paragraph of this opinion that, absent
harassment and bad faith, a defendant in a pending state criminal case cannot
affirmatively challenge in federal court the statutes under which the State is
prosecuting him, Dr. Hallford seeks to distinguish his status as a present state
defendant from his status as a "potential future defendant" and to assert only the
latter for standing purposes here.
We see no merit in that distinction. Our decision in Samuels v. Mackell, 401 U.S.
66 (1971), compels the conclusion that the District Court erred when it granted
declaratory relief to Dr. Hallford instead of refraining from so doing. The court, of
course, was correct in refusing to grant injunctive relief to the doctor. The reasons
supportive of that action, however, are those expressed in Samuels v. Mackell, supra,
and in Younger v. [410 U.S. 113, 127] Harris, 401 U.S. 37 (1971); Boyle v.
Landry, 401 U.S. 77 (1971); Perez v. Ledesma, 401 U.S. 82(1971); and Byrne v.
Karalexis, 401 U.S. 216 (1971). See also Dombrowski v. Pfister, 380 U.S.
479 (1965). We note, in passing, that Younger and its companion cases were decided
after the three-judge District Court decision in this case.
Dr. Hallford's complaint in intervention, therefore, is to be dismissed. 7 He is
remitted to his defenses in the state criminal proceedings against him. We reverse the
judgment of the District Court insofar as it granted Dr. Hallford relief and failed to
dismiss his complaint in intervention.
C. The Does. In view of our ruling as to Roe's standing in her case, the issue of the
Does' standing in their case has little significance. The claims they assert are
essentially the same as those of Roe, and they attack the same statutes. Nevertheless,
we briefly note the Does' posture.
Their pleadings present them as a childless married couple, the woman not being
pregnant, who have no desire to have children at this time because of their having
received medical advice that Mrs. Doe should avoid pregnancy, and for "other highly
personal reasons." But they "fear . . . they may face the prospect of becoming[410
U.S. 113, 128] parents." And if pregnancy ensues, they "would want to terminate" it
by an abortion. They assert an inability to obtain an abortion legally in Texas and,
consequently, the prospect of obtaining an illegal abortion there or of going outside
Texas to some place where the procedure could be obtained legally and competently.
We thus have as plaintiffs a married couple who have, as their asserted immediate
and present injury, only an alleged "detrimental effect upon [their] marital
happiness" because they are forced to "the choice of refraining from normal sexual
relations or of endangering Mary Doe's health through a possible pregnancy." Their
claim is that sometime in the future Mrs. Doe might become pregnant because of
possible failure of contraceptive measures, and at that time in the future she might
want an abortion that might then be illegal under the Texas statutes.
This very phrasing of the Does' position reveals its speculative character. Their
alleged injury rests on possible future contraceptive failure, possible future
pregnancy, possible future unpreparedness for parenthood, and possible future
impairment of health. Any one or more of these several possibilities may not take
place and all may not combine. In the Does' estimation, these possibilities might
have some real or imagined impact upon their marital happiness. But we are not
prepared to say that the bare allegation of so indirect an injury is sufficient to present
an actual case or controversy. Younger v. Harris, 401 U.S., at 41 -42; Golden v.
Zwickler,394 U.S., at 109 -110; Abele v. Markle, 452 F.2d, at 1124-1125; Crossen v.
Breckenridge, 446 F.2d, at 839. The Does' claim falls far short of those resolved
otherwise in the cases that the Does urge upon us, namely, Investment Co. Institute
v. Camp, 401 U.S. 617 (1971); Data Processing Service v. Camp, 397 U.S.
150 (1970);[410 U.S. 113, 129] and Epperson v. Arkansas, 393 U.S. 97 (1968). See
also Truax v. Raich, 239 U.S. 33 (1915).
The Does therefore are not appropriate plaintiffs in this litigation. Their complaint
was properly dismissed by the District Court, and we affirm that dismissal.
V woman an abortive remedy." 15
The principal thrust of appellant's attack on the Texas statutes is that they improperly
invade a right, said to be possessed by the pregnant woman, to choose to terminate
her pregnancy. Appellant would discover this right in the concept of personal
"liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in
personal, marital, familial, and sexual privacy said to be protected by the Bill of
Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965);
Eisenstadt v. Baird, 405 U.S. 438 (1972); id., at 460 (WHITE, J., concurring in
result); or among those rights reserved to the people by the Ninth Amendment,
Griswold v. Connecticut, 381 U.S., at 486 (Goldberg, J., concurring). Before
addressing this claim, we feel it desirable briefly to survey, in several aspects, the
history of abortion, for such insight as that history may afford us, and then to
examine the state purposes and interests behind the criminal abortion laws.
VI
It perhaps is not generally appreciated that the restrictive criminal abortion laws in
effect in a majority of States today are of relatively recent vintage. Those laws,
generally proscribing abortion or its attempt at any time during pregnancy except
when necessary to preserve the pregnant woman's life, are not of ancient or even of
common-law origin. Instead, they derive from statutory changes effected, for the
most part, in the latter half of the 19th century. [410 U.S. 113, 130]
1. Ancient attitudes. These are not capable of precise determination. We are told that
at the time of the Persian Empire abortifacients were known and that criminal
abortions were severely punished. 8 We are also told, however, that abortion was
practiced in Greek times as well as in the Roman Era, 9 and that "it was resorted to
without scruple." 10 The Ephesian, Soranos, often described as the greatest of the
ancient gynecologists, appears to have been generally opposed to Rome's prevailing
free-abortion practices. He found it necessary to think first of the life of the mother,
and he resorted to abortion when, upon this standard, he felt the procedure
advisable. 11 Greek and Roman law afforded little protection to the unborn. If
abortion was prosecuted in some places, it seems to have been based on a concept of
a violation of the father's right to his offspring. Ancient religion did not bar
abortion. 12
2. The Hippocratic Oath. What then of the famous Oath that has stood so long as the
ethical guide of the medical profession and that bears the name of the great Greek
(460(?)-377(?) B. C.), who has been described[410 U.S. 113, 131] as the Father of
Medicine, the "wisest and the greatest practitioner of his art," and the "most
important and most complete medical personality of antiquity," who dominated the
medical schools of his time, and who typified the sum of the medical knowledge of
the past? 13 The Oath varies somewhat according to the particular translation, but in
any translation the content is clear: "I will give no deadly medicine to anyone if
asked, nor suggest any such counsel; and in like manner I will not give to a woman a
pessary to produce abortion," 14 or "I will neither give a deadly drug to anybody if
asked for it, nor will I make a suggestion to this effect. Similarly, I will not give to a
Although the Oath is not mentioned in any of the principal briefs in this case or in
Doe v. Bolton, post, p. 179, it represents the apex of the development of strict ethical
concepts in medicine, and its influence endures to this day. Why did not the authority
of Hippocrates dissuade abortion practice in his time and that of Rome? The late Dr.
Edelstein provides us with a theory: 16 The Oath was not uncontested even in
Hippocrates' day; only the Pythagorean school of philosophers frowned upon the
related act of suicide. Most Greek thinkers, on the other hand, commended abortion,
at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b
25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo
was animate from the moment of conception, and abortion meant destruction of a
living being. The abortion clause of the Oath, therefore, "echoes Pythagorean
doctrines," [410 U.S. 113, 132] and "[i]n no other stratum of Greek opinion were
such views held or proposed in the same spirit of uncompromising austerity." 17
Dr. Edelstein then concludes that the Oath originated in a group representing only a
small segment of Greek opinion and that it certainly was not accepted by all ancient
physicians. He points out that medical writings down to Galen (A. D. 130-200) "give
evidence of the violation of almost every one of its injunctions." 18 But with the end
of antiquity a decided change took place. Resistance against suicide and against
abortion became common. The Oath came to be popular. The emerging teachings of
Christianity were in agreement with the Pythagorean ethic. The Oath "became the
nucleus of all medical ethics" and "was applauded as the embodiment of truth."
Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression
of an absolute standard of medical conduct." 19
This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic
Oath's apparent rigidity. It enables us to understand, in historical context, a long-
accepted and revered statement of medical ethics.
3. The common law. It is undisputed that at common law, abortion performed before
"quickening" - the first recognizable movement of the fetus in utero, appearing
usually from the 16th to the 18th week of pregnancy 20- was not an indictable
offense. 21 The absence [410 U.S. 113, 133] of a common-law crime for pre-
quickening abortion appears to have developed from a confluence of earlier
philosophical, theological, and civil and canon law concepts of when life begins.
These disciplines variously approached the question in terms of the point at which
the embryo or fetus became "formed" or recognizably human, or in terms of when a
"person" came into being, that is, infused with a "soul" or "animated." A loose
consensus evolved in early English law that these events occurred at some point
between conception and live birth. 22 This was "mediate animation." Although[410
U.S. 113, 134] Christian theology and the canon law came to fix the point of
animation at 40 days for a male and 80 days for a female, a view that persisted until
the 19th century, there was otherwise little agreement about the precise time of
formation or animation. There was agreement, however, that prior to this point the
fetus was to be regarded as part of the mother, and its destruction, therefore, was not
homicide. Due to continued uncertainty about the precise time when animation
occurred, to the lack of any empirical basis for the 40-80-day view, and perhaps to
Aquinas' definition of movement as one of the two first principles of life, Bracton
focused upon quickening as the critical point. The significance of quickening was
echoed by later common-law scholars and found its way into the received common
law in this country.
Whether abortion of a quick fetus was a felony at common law, or even a lesser
crime, is still disputed. Bracton, writing early in the 13th century, thought it
homicide. 23 But the later and predominant view, following the great common-law
scholars, has been that it was, at most, a lesser offense. In a frequently cited [410
U.S. 113, 135] passage, Coke took the position that abortion of a woman "quick
with childe" is "a great misprision, and no murder." 24 Blackstone followed, saying
that while abortion after quickening had once been considered manslaughter (though
not murder), "modern law" took a less severe view. 25 A recent review of the
common-law precedents argues, however, that those precedents contradict Coke and
that even post-quickening abortion was never established as a common-law
crime. 26 This is of some importance because while most American courts ruled, in
holding or dictum, that abortion of an unquickened fetus was not criminal under their
received common law, 27 others followed Coke in stating that abortion [410 U.S.
113, 136] of a quick fetus was a "misprision," a term they translated to mean
"misdemeanor." 28 That their reliance on Coke on this aspect of the law was
uncritical and, apparently in all the reported cases, dictum (due probably to the
paucity of common-law prosecutions for post-quickening abortion), makes it now
appear doubtful that abortion was ever firmly established as a common-law crime
even with respect to the destruction of a quick fetus.
4. The English statutory law. England's first criminal abortion statute, Lord
Ellenborough's Act, 43 Geo. 3, c. 58, came in 1803. It made abortion of a quick
fetus, 1, a capital crime, but in 2 it provided lesser penalties for the felony of abortion
before quickening, and thus preserved the "quickening" distinction. This contrast was
continued in the general revision of 1828, 9 Geo. 4, c. 31, 13. It disappeared,
however, together with the death penalty, in 1837, 7 Will. 4 & 1 Vict., c. 85. 6, and
did not reappear in the Offenses Against the Person Act of 1861, 24 & 25 Vict., c.
100, 59, that formed the core of English anti-abortion law until the liberalizing
reforms of 1967. In 1929, the Infant Life (Preservation) Act, 19 & 20 Geo. 5, c. 34,
came into being. Its emphasis was upon the destruction of "the life of a child capable
of being born alive." It made a willful act performed with the necessary intent a
felony. It contained a proviso that one was not to be [410 U.S. 113, 137] found
guilty of the offense "unless it is proved that the act which caused the death of the
child was not done in good faith for the purpose only of preserving the life of the
mother."
A seemingly notable development in the English law was the case of Rex v. Bourne,
1939. 1 K. B. 687. This case apparently answered in the affirmative the question
whether an abortion necessary to preserve the life of the pregnant woman was
excepted from the criminal penalties of the 1861 Act. In his instructions to the jury,
Judge Macnaghten referred to the 1929 Act, and observed that that Act related to
"the case where a child is killed by a wilful act at the time when it is being delivered
in the ordinary course of nature." Id., at 691. He concluded that the 1861 Act's use of
the word "unlawfully," imported the same meaning expressed by the specific proviso
in the 1929 Act, even though there was no mention of preserving the mother's life in
the 1861 Act. He then construed the phrase "preserving the life of the mother"
broadly, that is, "in a reasonable sense," to include a serious and permanent threat to
the mother's health, and instructed the jury to acquit Dr. Bourne if it found he had
acted in a good-faith belief that the abortion was necessary for this purpose. Id., at
693-694. The jury did acquit.
Recently, Parliament enacted a new abortion law. This is the Abortion Act of 1967,
15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion
where two other licensed physicians agree (a) "that the continuance of the pregnancy
would involve risk to the life of the pregnant woman, or of injury to the physical or
mental health of the pregnant woman or any existing children of her family, greater
than if the pregnancy were terminated," or (b) "that there is a substantial risk that if
the child were born it would suffer from such physical or mental abnormalities
as [410 U.S. 113, 138] to be seriously handicapped." The Act also provides that, in
making this determination, "account may be taken of the pregnant woman's actual or
reasonably foreseeable environment." It also permits a physician, without the
concurrence of others, to terminate a pregnancy where he is of the good-faith opinion
that the abortion "is immediately necessary to save the life or to prevent grave
permanent injury to the physical or mental health of the pregnant woman."
5. The American law. In this country, the law in effect in all but a few States until
mid-19th century was the pre-existing English common law. Connecticut, the first
State to enact abortion legislation, adopted in 1821 that part of Lord Ellenborough's
Act that related to a woman "quick with child." 29 The death penalty was not
imposed. Abortion before quickening was made a crime in that State only in
1860. 30 In 1828, New York enacted legislation 31 that, in two respects, was to serve
as a model for early anti-abortion statutes. First, while barring destruction of an
unquickened fetus as well as a quick fetus, it made the former only a misdemeanor,
but the latter second-degree manslaughter. Second, it incorporated a concept of
therapeutic abortion by providing that an abortion was excused if it "shall have been
necessary to preserve the life of such mother, or shall have been advised by two
physicians to be necessary for such purpose." By 1840, when Texas had received the
common law, 32 only eight American States [410 U.S. 113, 139] had statutes
dealing with abortion. 33 It was not until after the War Between the States that
legislation began generally to replace the common law. Most of these initial statutes
dealt severely with abortion after quickening but were lenient with it before
quickening. Most punished attempts equally with completed abortions. While many
statutes included the exception for an abortion thought by one or more physicians to
be necessary to save the mother's life, that provision soon disappeared and the typical
law required that the procedure actually be necessary for that purpose.
Gradually, in the middle and late 19th century the quickening distinction disappeared
from the statutory law of most States and the degree of the offense and the penalties
were increased. By the end of the 1950's, a large majority of the jurisdictions banned
abortion, however and whenever performed, unless done to save or preserve the life
of the mother. 34 The exceptions, Alabama and the District of Columbia, permitted
abortion to preserve the mother's health. 35 Three States permitted abortions that
were not "unlawfully" performed or that were not "without lawful justification,"
leaving interpretation of those standards to the courts. 36 In [410 U.S. 113, 140] the
past several years, however, a trend toward liberalization of abortion statutes has
resulted in adoption, by about one-third of the States, of less stringent laws, most of
them patterned after the ALI Model Penal Code, 230.3, 37 set forth as Appendix B to
the opinion in Doe v. Bolton, post, p. 205.
It is thus apparent that at common law, at the time of the adoption of our
Constitution, and throughout the major portion of the 19th century, abortion was
viewed with less disfavor than under most American statutes currently in effect.
Phrasing it another way, a woman enjoyed a substantially broader right to terminate
a pregnancy than she does in most States today. At least with respect to the early
stage of pregnancy, and very possibly without such a limitation, the opportunity [410
U.S. 113, 141] to make this choice was present in this country well into the 19th
century. Even later, the law continued for some time to treat less punitively an
abortion procured in early pregnancy.
6. The position of the American Medical Association. The anti-abortion mood
prevalent in this country in the late 19th century was shared by the medical
profession. Indeed, the attitude of the profession may have played a significant role
in the enactment of stringent criminal abortion legislation during that period.
An AMA Committee on Criminal Abortion was appointed in May 1857. It presented
its report, 12 Trans. of the Am. Med. Assn. 73-78 (1859), to the Twelfth Annual
Meeting. That report observed that the Committee had been appointed to investigate
criminal abortion "with a view to its general suppression." It deplored abortion and
its frequency and it listed three causes of "this general demoralization":
"The first of these causes is a wide-spread popular ignorance of the true character of
the crime - a belief, even among mothers themselves, that the foetus is not alive till
after the period of quickening.
"The second of the agents alluded to is the fact that the profession themselves are
frequently supposed careless of foetal life . . . .
"The third reason of the frightful extent of this crime is found in the grave defects of
our laws, both common and statute, as regards the independent and actual existence
of the child before birth, as a living being. These errors, which are sufficient in most
instances to prevent conviction, are based, and only based, upon mistaken and
exploded medical dogmas. With strange inconsistency, the law fully acknowledges
the foetus in utero and its inherent rights, for civil purposes; while personally and as
criminally affected, it fails to recognize it, [410 U.S. 113, 142] and to its life as yet
denies all protection." Id., at 75-76.
The Committee then offered, and the Association adopted, resolutions protesting
"against such unwarrantable destruction of human life," calling upon state
legislatures to revise their abortion laws, and requesting the cooperation of state
medical societies "in pressing the subject." Id., at 28, 78.
In 1871 a long and vivid report was submitted by the Committee on Criminal
Abortion. It ended with the observation, "We had to deal with human life. In a matter
of less importance we could entertain no compromise. An honest judge on the bench
would call things by their proper names. We could do no less." 22 Trans. of the Am.
Med. Assn. 258 (1871). It proffered resolutions, adopted by the Association, id., at
38-39, recommending, among other things, that it "be unlawful and unprofessional
for any physician to induce abortion or premature labor, without the concurrent
opinion of at least one respectable consulting physician, and then always with a view
to the safety of the child - if that be possible," and calling "the attention of the clergy
of all denominations to the perverted views of morality entertained by a large class
of females - aye, and men also, on this important question."
Except for periodic condemnation of the criminal abortionist, no further formal
AMA action took place until 1967. In that year, the Committee on Human
Reproduction urged the adoption of a stated policy of opposition to induced abortion,
except when there is "documented medical evidence" of a threat to the health or life
of the mother, or that the child "may be born with incapacitating physical deformity
or mental deficiency," or that a pregnancy "resulting from legally established
statutory or forcible rape or incest may constitute a threat to the mental or physical
health of the [410 U.S. 113, 143] patient," two other physicians "chosen because of
their recognized professional competence have examined the patient and have
concurred in writing," and the procedure "is performed in a hospital accredited by the
Joint Commission on Accreditation of Hospitals." The providing of medical
information by physicians to state legislatures in their consideration of legislation
regarding therapeutic abortion was "to be considered consistent with the principles of
ethics of the American Medical Association." This recommendation was adopted by
the House of Delegates. Proceedings of the AMA House of Delegates 40-51 (June
1967).
In 1970, after the introduction of a variety of proposed resolutions, and of a report
from its Board of Trustees, a reference committee noted "polarization of the medical
profession on this controversial issue"; division among those who had testified; a
difference of opinion among AMA councils and committees; "the remarkable shift in
testimony" in six months, felt to be influenced "by the rapid changes in state laws
and by the judicial decisions which tend to make abortion more freely available;"
and a feeling "that this trend will continue." On June 25, 1970, the House of 8. The position of the American Bar Association. At its meeting in February 1972
Delegates adopted preambles and most of the resolutions proposed by the reference the ABA House of Delegates approved, with 17 opposing votes, the Uniform
committee. The preambles emphasized "the best interests of the patient," "sound Abortion Act that had been drafted and approved the preceding August by the
clinical judgment," and "informed patient consent," in contrast to "mere Conference of Commissioners on Uniform State Laws. 58 A. B. A. J. 380 (1972).
acquiescence to the patient's demand." The resolutions asserted that abortion is a We set forth the Act in full in the margin. 40 The [410 U.S. 113, 147] Conference
medical procedure that should be performed by a licensed physician in an accredited has appended an enlightening Prefatory Note.41
hospital only after consultation with two other physicians and in conformity with
state law, and that no party to the procedure should be required to violate personally VII
held moral principles. 38 Proceedings [410 U.S. 113, 144] of the AMA House of
Three reasons have been advanced to explain historically the enactment of criminal
Delegates 220 (June 1970). The AMA Judicial Council rendered a complementary
abortion laws in the 19th century and to justify their continued existence. [410 U.S.
opinion. 39
113, 148]
7. The position of the American Public Health Association. In October 1970, the
It has been argued occasionally that these laws were the product of a Victorian social
Executive Board of the APHA adopted Standards for Abortion Services. These were
concern to discourage illicit sexual conduct. Texas, however, does not advance this
five in number:
justification in the present case, and it appears that no court or commentator has
taken the argument seriously. 42 The appellants and amici contend, moreover, that
"a. Rapid and simple abortion referral must be readily available through state and
this is not a proper state purpose at all and suggest that, if it were, the Texas statutes
local public [410 U.S. 113, 145] health departments, medical societies, or other
are overbroad in protecting it since the law fails to distinguish between married and
nonprofit organizations.
unwed mothers.
"b. An important function of counselling should be to simplify and expedite the
provision of abortion services; it should not delay the obtaining of these services.
A second reason is concerned with abortion as a medical procedure. When most
"c. Psychiatric consultation should not be mandatory. As in the case of other
criminal abortion laws were first enacted, the procedure was a hazardous one for the
specialized medical services, psychiatric consultation should be sought for definite
woman. 43 This was particularly true prior to the [410 U.S. 113, 149] development
indications and not on a routine basis.
of antisepsis. Antiseptic techniques, of course, were based on discoveries by Lister,
"d. A wide range of individuals from appropriately trained, sympathetic volunteers to
Pasteur, and others first announced in 1867, but were not generally accepted and
highly skilled physicians may qualify as abortion counselors.
employed until about the turn of the century. Abortion mortality was high. Even after
"e. Contraception and/or sterilization should be discussed with each abortion
1900, and perhaps until as late as the development of antibiotics in the 1940's,
patient." Recommended Standards for Abortion Services, 61 Am. J. Pub. Health 396
standard modern techniques such as dilation and curettage were not nearly so safe as
(1971).
they are today. Thus, it has been argued that a State's real concern in enacting a
Among factors pertinent to life and health risks associated with abortion were three
criminal abortion law was to protect the pregnant woman, that is, to restrain her from
that "are recognized as important":
submitting to a procedure that placed her life in serious jeopardy.
"a. the skill of the physician,
"b. the environment in which the abortion is performed, and above all
Modern medical techniques have altered this situation. Appellants and various amici
"c. the duration of pregnancy, as determined by uterine size and confirmed by
refer to medical data indicating that abortion in early pregnancy, that is, prior to the
menstrual history." Id., at 397.
end of the first trimester, although not without its risk, is now relatively safe.
It was said that "a well-equipped hospital" offers more protection "to cope with
Mortality rates for women undergoing early abortions, where the procedure is legal,
unforeseen difficulties than an office or clinic without such resources. . . . The factor
appear to be as low as or lower than the rates for normal childbirth. 44 Consequently,
of gestational age is of overriding importance." Thus, it was recommended that any interest of the State in protecting the woman from an inherently hazardous
abortions in the second trimester and early abortions in the presence of existing procedure, except when it would be equally dangerous for her to forgo it, has largely
medical complications be performed in hospitals as inpatient procedures. For disappeared. Of course, important state interests in the areas of health and medical
pregnancies in the first trimester, [410 U.S. 113, 146] abortion in the hospital with
standards do remain. [410 U.S. 113, 150] The State has a legitimate interest in
or without overnight stay "is probably the safest practice." An abortion in an
seeing to it that abortion, like any other medical procedure, is performed under
extramural facility, however, is an acceptable alternative "provided arrangements
circumstances that insure maximum safety for the patient. This interest obviously
exist in advance to admit patients promptly if unforeseen complications develop."
extends at least to the performing physician and his staff, to the facilities involved, to
Standards for an abortion facility were listed. It was said that at present abortions
the availability of after-care, and to adequate provision for any complication or
should be performed by physicians or osteopaths who are licensed to practice and
emergency that might arise. The prevalence of high mortality rates at illegal
who have "adequate training." Id., at 398.
"abortion mills" strengthens, rather than weakens, the State's interest in regulating
the conditions under which abortions are performed. Moreover, the risk to the
woman increases as her pregnancy continues. Thus, the State retains a definite
interest in protecting the woman's own health and safety when an abortion is
proposed at a late stage of pregnancy.
The third reason is the State's interest - some phrase it in terms of duty - in protecting
prenatal life. Some of the argument for this justification rests on the theory that a
new human life is present from the moment of conception. 45 The State's interest and
general obligation to protect life then extends, it is argued, to prenatal life. Only
when the life of the pregnant mother herself is at stake, balanced against the life she
carries within her, should the interest of the embryo or fetus not prevail. Logically, of
course, a legitimate state interest in this area need not stand or fall on acceptance of
the belief that life begins at conception or at some other point prior to live birth. In
assessing the State's interest, recognition may be given to the less rigid claim that as
long as at least potential life is involved, the State may assert interests beyond the
protection of the pregnant woman alone. [410 U.S. 113, 151]
Parties challenging state abortion laws have sharply disputed in some courts the
contention that a purpose of these laws, when enacted, was to protect prenatal
life. 46 Pointing to the absence of legislative history to support the contention, they
claim that most state laws were designed solely to protect the woman. Because
medical advances have lessened this concern, at least with respect to abortion in
early pregnancy, they argue that with respect to such abortions the laws can no
longer be justified by any state interest. There is some scholarly support for this view
of original purpose. 47 The few state courts called upon to interpret their laws in the
late 19th and early 20th centuries did focus on the State's interest in protecting the
woman's health rather than in preserving the embryo and fetus. 48 Proponents of this
view point out that in many States, including Texas, 49 by statute or judicial
interpretation, the pregnant woman herself could not be prosecuted for self-abortion
or for cooperating in an abortion performed upon her by another. 50 They claim that
adoption of the "quickening" distinction through received common [410 U.S. 113,
152] law and state statutes tacitly recognizes the greater health hazards inherent in
late abortion and impliedly repudiates the theory that life begins at conception.
It is with these interests, and the weight to be attached to them, that this case is
concerned.
VIII
The Constitution does not explicitly mention any right of privacy. In a line of
decisions, however, going back perhaps as far as Union Pacific R. Co. v.
Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal
privacy, or a guarantee of certain areas or zones of privacy, does exist under the
Constitution. In varying contexts, the Court or individual Justices have, indeed,
found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394
U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S.
1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United
States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438,
478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights,
Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486
(Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section
of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923).
These decisions make it clear that only personal rights that can be deemed
"fundamental" or "implicit in the concept of ordered liberty," Palko v.
Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal
privacy. They also make it clear that the right has some extension to activities
relating to marriage, Loving v. Virginia, 388 U.S. 1, 12(1967); procreation, Skinner
v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird,405
U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring
in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944);
and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510,
535 (1925), Meyer v. Nebraska, supra.
This right of privacy, whether it be founded in the Fourteenth Amendment's concept
of personal liberty and restrictions upon state action, as we feel it is, or, as the
District Court determined, in the Ninth Amendment's reservation of rights to the
people, is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy. The detriment that the State would impose upon the
pregnant woman by denying this choice altogether is apparent. Specific and direct
harm medically diagnosable even in early pregnancy may be involved. Maternity, or
additional offspring, may force upon the woman a distressful life and future.
Psychological harm may be imminent. Mental and physical health may be taxed by
child care. There is also the distress, for all concerned, associated with the unwanted
child, and there is the problem of bringing a child into a family already unable,
psychologically and otherwise, to care for it. In other cases, as in this one, the
additional difficulties and continuing stigma of unwed motherhood may be involved.
All these are factors the woman and her responsible physician necessarily will
consider in consultation.
On the basis of elements such as these, appellant and some amici argue that the
woman's right is absolute and that she is entitled to terminate her pregnancy at
whatever time, in whatever way, and for whatever reason she alone chooses. With
this we do not agree. Appellant's arguments that Texas either has no valid interest at
all in regulating the abortion decision, or no interest strong enough to support any
limitation upon the woman's sole determination, are unpersuasive. The [410 U.S.
113, 154] Court's decisions recognizing a right of privacy also acknowledge that
some state regulation in areas protected by that right is appropriate. As noted above,
a State may properly assert important interests in safeguarding health, in maintaining
medical standards, and in protecting potential life. At some point in pregnancy, these
respective interests become sufficiently compelling to sustain regulation of the
factors that govern the abortion decision. The privacy right involved, therefore,
cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by
some amici that one has an unlimited right to do with one's body as one pleases bears
a close relationship to the right of privacy previously articulated in the Court's In the recent abortion cases, cited above, courts have recognized these principles.
decisions. The Court has refused to recognize an unlimited right of this kind in the Those striking down state laws have generally scrutinized the State's interests in
past. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (vaccination); Buck v. Bell, 274 protecting health and potential life, and have concluded that neither interest justified
U.S. 200 (1927) (sterilization). broad limitations on the reasons for which a physician and his pregnant patient might
decide that she should have an abortion in the early stages of pregnancy. Courts
We, therefore, conclude that the right of personal privacy includes the abortion sustaining state laws have held that the State's determinations to protect health or
decision, but that this right is not unqualified and must be considered against prenatal life are dominant and constitutionally justifiable.
important state interests in regulation.
IX
We note that those federal and state courts that have recently considered abortion law
The District Court held that the appellee failed to meet his burden of demonstrating
challenges have reached the same conclusion. A majority, in addition to the District
that the Texas statute's infringement upon Roe's rights was necessary to support a
Court in the present case, have held state laws unconstitutional, at least in part,
compelling state interest, and that, although the appellee presented "several
because of vagueness or because of overbreadth and abridgment of rights. Abele v.
compelling justifications for state presence in the area of abortions," the statutes
Markle, 342 F. Supp. 800 (Conn. 1972), appeal docketed, No. 72-56; Abele v.
outstripped these justifications and swept "far beyond any areas of compelling state
Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730; Doe v.
interest." 314 F. Supp., at 1222-1223. Appellant and appellee both contest that
Bolton, 319 F. Supp. 1048 (ND Ga. 1970), appeal decided today, post, p. 179; Doe v.
holding. Appellant, as has been indicated, claims an absolute right that bars any state
Scott, 321 F. Supp. 1385 (ND Ill. 1971), appeal docketed, No. 70-105; Poe v.
imposition of criminal penalties in the area. Appellee argues that the State's
Menghini, 339 F. Supp. 986 (Kan. 1972); YWCA v. Kugler, 342 F. Supp. 1048 (NJ
determination to recognize and protect prenatal life from and after conception
1972); Babbitz v. McCann,[410 U.S. 113, 155] 310 F. Supp. 293 (ED Wis. 1970),
constitutes a compelling state interest. As noted above, we do not agree fully with
appeal dismissed, 400 U.S. 1 (1970); People v. Belous, 71 Cal. 2d 954, 458 P.2d 194
either formulation.
(1969), cert. denied, 397 U.S. 915 (1970); State v. Barquet, 262 So.2d 431 (Fla.
1972).
A. The appellee and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment. In support of this, they outline
Others have sustained state statutes. Crossen v. Attorney General, 344 F. Supp. 587
at length and in detail the well-known facts of fetal development. If this suggestion
(ED Ky. 1972), appeal docketed, No. 72-256; Rosen v. Louisiana State Board of
of personhood is established, the appellant's case, of course, collapses, [410 U.S.
Medical Examiners, 318 F. Supp. 1217 (ED La. 1970), appeal docketed, No. 70-42;
113, 157] for the fetus' right to life would then be guaranteed specifically by the
Corkey v. Edwards, 322 F. Supp. 1248 (WDNC 1971), appeal docketed, No. 71-92;
Amendment. The appellant conceded as much on reargument. 51 On the other hand,
Steinberg v. Brown, 321 F. Supp. 741 (ND Ohio 1970); Doe v. Rampton (Utah
the appellee conceded on reargument 52that no case could be cited that holds that a
1971), appeal docketed, No. 71-5666; Cheaney v. State, ___ Ind. ___, 285 N. E. 2d
fetus is a person within the meaning of the Fourteenth Amendment.
265 (1972); Spears v. State, 257 So.2d 876 (Miss. 1972); State v. Munson, 86 S. D.
663, 201 N. W. 2d 123 (1972), appeal docketed, No. 72-631.
The Constitution does not define "person" in so many words. Section 1 of the
Fourteenth Amendment contains three references to "person." The first, in defining
Although the results are divided, most of these courts have agreed that the right of
"citizens," speaks of "persons born or naturalized in the United States." The word
privacy, however based, is broad enough to cover the abortion decision; that the
also appears both in the Due Process Clause and in the Equal Protection Clause.
right, nonetheless, is not absolute and is subject to some limitations; and that at some
"Person" is used in other places in the Constitution: in the listing of qualifications for
point the state interests as to protection of health, medical standards, and prenatal
Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment
life, become dominant. We agree with this approach.
Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1;
in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2,
Where certain "fundamental rights" are involved, the Court has held that regulation
and the superseded cl. 3; in the provision outlining qualifications for the office of
limiting these rights may be justified only by a "compelling state interest," Kramer v.
President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the
Union Free School District, 395 U.S. 621, 627(1969); Shapiro v. Thompson, 394
superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second
U.S. 618, 634 (1969), Sherbert v. Verner, 374 U.S. 398, 406 (1963), and that
Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all
legislative enactments must be narrowly drawn to express only the legitimate state
these instances, the use of the word is such that it has application only postnatally.
interests at stake. Griswold v. Connecticut, 381 U.S., at 485 ; Aptheker v. Secretary
None indicates, with any assurance, that it has any possible pre-natal
of State, 378 U.S. 500, 508 (1964); Cantwell v. Connecticut, 310 U.S. 296, 307 -308
application. 54 [410 U.S. 113, 158]
(1940); see [410 U.S. 113, 156] Eisenstadt v. Baird, 405 U.S., at 460 , 463-464
(WHITE, J., concurring in result).
All this, together with our observation, supra, that throughout the major portion of
the 19th century prevailing legal abortion practices were far freer than they are
today, persuades us that the word "person," as used in the Fourteenth Amendment,
does not include the unborn. 55 This is in accord with the results reached in those
few cases where the issue has been squarely presented. McGarvey v. Magee-
Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health
& Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No.
72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-
730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers,
278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S.
308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v.
Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed,
our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the
same effect, for we there would not have indulged in statutory interpretation
favorable to abortion in specified circumstances if the necessary consequence was
the termination of life entitled to Fourteenth Amendment protection.
This conclusion, however, does not of itself fully answer the contentions raised by
Texas, and we pass on to other considerations.
B. The pregnant woman cannot be isolated in her privacy. She carries an embryo
and, later, a fetus, if one accepts the medical definitions of the developing young in
the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th
ed. 1965). The situation therefore is inherently different from marital intimacy, or
bedroom possession of obscene material, or marriage, or procreation, or education,
with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and
Meyer were respectively concerned. As we have intimated above, it is reasonable
and appropriate for a State to decide that at some point in time another interest, that
of health of the mother or that of potential human life, becomes significantly
involved. The woman's privacy is no longer sole and any right of privacy she
possesses must be measured accordingly.
Texas urges that, apart from the Fourteenth Amendment, life begins at conception
and is present throughout pregnancy, and that, therefore, the State has a compelling
interest in protecting that life from and after conception. We need not resolve the
difficult question of when life begins. When those trained in the respective
disciplines of medicine, philosophy, and theology are unable to arrive at any
consensus, the judiciary, at this point in the development of man's knowledge, is not
in a position to speculate as to the answer. [410 U.S. 113, 160]
It should be sufficient to note briefly the wide divergence of thinking on this most
sensitive and difficult question. There has always been strong support for the view
that life does not begin until live birth. This was the belief of the Stoics. 56 It appears
to be the predominant, though not the unanimous, attitude of the Jewish faith. 57 It
may be taken to represent also the position of a large segment of the Protestant
community, insofar as that can be ascertained; organized groups that have taken a
formal position on the abortion issue have generally regarded abortion as a matter for
the conscience of the individual and her family. 58 As we have noted, the common
law found greater significance in quickening. Physicians and their scientific
colleagues have regarded that event with less interest and have tended to focus either
upon conception, upon live birth, or upon the interim point at which the fetus
becomes "viable," that is, potentially able to live outside the mother's womb, albeit
with artificial aid. 59 Viability is usually placed at about seven months (28 weeks)
but may occur earlier, even at 24 weeks. 60 The Aristotelian theory of "mediate
animation," that held sway throughout the Middle Ages and the Renaissance in
Europe, continued to be official Roman Catholic dogma until the 19th century,
despite opposition to this "ensoulment" theory from those in the Church who would
recognize the existence of life from [410 U.S. 113, 161] the moment of
conception. 61 The latter is now, of course, the official belief of the Catholic Church.
As one brief amicus discloses, this is a view strongly held by many non-Catholics as
well, and by many physicians. Substantial problems for precise definition of this
view are posed, however, by new embryological data that purport to indicate that
conception is a "process" over time, rather than an event, and by new medical
techniques such as menstrual extraction, the "morning-after" pill, implantation of
embryos, artificial insemination, and even artificial wombs. 62
In areas other than criminal abortion, the law has been reluctant to endorse any
theory that life, as we recognize it, begins before live birth or to accord legal rights to
the unborn except in narrowly defined situations and except when the rights are
contingent upon live birth. For example, the traditional rule of tort law denied
recovery for prenatal injuries even though the child was born alive. 63 That rule has
been changed in almost every jurisdiction. In most States, recovery is said to be
permitted only if the fetus was viable, or at least quick, when the injuries were
sustained, though few [410 U.S. 113, 162] courts have squarely so held. 64In a
recent development, generally opposed by the commentators, some States permit the
parents of a stillborn child to maintain an action for wrongful death because of
prenatal injuries. 65 Such an action, however, would appear to be one to vindicate
the parents' interest and is thus consistent with the view that the fetus, at most,
represents only the potentiality of life. Similarly, unborn children have been
recognized as acquiring rights or interests by way of inheritance or other devolution
of property, and have been represented by guardians ad litem. 66 Perfection of the
interests involved, again, has generally been contingent upon live birth. In short, the
unborn have never been recognized in the law as persons in the whole sense.
X
In view of all this, we do not agree that, by adopting one theory of life, Texas may
override the rights of the pregnant woman that are at stake. We repeat, however, that
the State does have an important and legitimate interest in preserving and protecting
the health of the pregnant woman, whether she be a resident of the State or a
nonresident who seeks medical consultation and treatment there, and that it has still
another important and legitimate interest in protecting the potentiality of human life.
These interests are separate and distinct. Each grows in substantiality as the woman
approaches [410 U.S. 113, 163] term and, at a point during pregnancy, each
becomes "compelling."
With respect to the State's important and legitimate interest in the health of the
mother, the "compelling" point, in the light of present medical knowledge, is at
approximately the end of the first trimester. This is so because of the now-
established medical fact, referred to above at 149, that until the end of the first
trimester mortality in abortion may be less than mortality in normal childbirth. It
follows that, from and after this point, a State may regulate the abortion procedure to
the extent that the regulation reasonably relates to the preservation and protection of
maternal health. Examples of permissible state regulation in this area are
requirements as to the qualifications of the person who is to perform the abortion; as
to the licensure of that person; as to the facility in which the procedure is to be
performed, that is, whether it must be a hospital or may be a clinic or some other
place of less-than-hospital status; as to the licensing of the facility; and the like.
This means, on the other hand, that, for the period of pregnancy prior to this
"compelling" point, the attending physician, in consultation with his patient, is free
to determine, without regulation by the State, that, in his medical judgment, the
patient's pregnancy should be terminated. If that decision is reached, the judgment
may be effectuated by an abortion free of interference by the State.
With respect to the State's important and legitimate interest in potential life, the
"compelling" point is at viability. This is so because the fetus then presumably has
the capability of meaningful life outside the mother's womb. State regulation
protective of fetal life after viability thus has both logical and biological
justifications. If the State is interested in protecting fetal life after viability, it may go
so far as to proscribe abortion [410 U.S. 113, 164] during that period, except when
it is necessary to preserve the life or health of the mother.
Measured against these standards, Art. 1196 of the Texas Penal Code, in restricting
legal abortions to those "procured or attempted by medical advice for the purpose of
saving the life of the mother," sweeps too broadly. The statute makes no distinction
between abortions performed early in pregnancy and those performed later, and it
limits to a single reason, "saving" the mother's life, the legal justification for the
procedure. The statute, therefore, cannot survive the constitutional attack made upon
it here.
This conclusion makes it unnecessary for us to consider the additional challenge to
the Texas statute asserted on grounds of vagueness. See United States v. Vuitch, 402
U.S., at 67 -72.
XI
To summarize and to repeat:
1. A state criminal abortion statute of the current Texas type, that excepts from
criminality only a life-saving procedure on behalf of the mother, without regard to
pregnancy stage and without recognition of the other interests involved, is violative
of the Due Process Clause of the Fourteenth Amendment.
(a) For the stage prior to approximately the end of the first trimester, the abortion
decision and its effectuation must be left to the medical judgment of the pregnant
woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State,
in promoting its interest in the health of the mother, may, if it chooses, regulate the
abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the
potentiality of human life[410 U.S. 113, 165] may, if it chooses, regulate, and even
proscribe, abortion except where it is necessary, in appropriate medical judgment, for
the preservation of the life or health of the mother.
2. The State may define the term "physician," as it has been employed in the
preceding paragraphs of this Part XI of this opinion, to mean only a physician
currently licensed by the State, and may proscribe any abortion by a person who is
not a physician as so defined.
In Doe v. Bolton, post, p. 179, procedural requirements contained in one of the
modern abortion statutes are considered. That opinion and this one, of course, are to
be read together. 67
This holding, we feel, is consistent with the relative weights of the respective
interests involved, with the lessons and examples of medical and legal history, with
the lenity of the common law, and with the demands of the profound problems of the
present day. The decision leaves the State free to place increasing restrictions on
abortion as the period of pregnancy lengthens, so long as those restrictions are
tailored to the recognized state interests. The decision vindicates the right of the
physician to administer medical treatment according to his professional judgment up
to the points where important [410 U.S. 113, 166] state interests provide compelling
justifications for intervention. Up to those points, the abortion decision in all its
aspects is inherently, and primarily, a medical decision, and basic responsibility for it
must rest with the physician. If an individual practitioner abuses the privilege of
exercising proper medical judgment, the usual remedies, judicial and intra-
professional, are available.
XII
Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas
abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be struck
down separately, for then the State would be left with a statute proscribing all
abortion procedures no matter how medically urgent the case.
Although the District Court granted appellant Roe declaratory relief, it stopped short
of issuing an injunction against enforcement of the Texas statutes. The Court has
recognized that different considerations enter into a federal court's decision as to
declaratory relief, on the one hand, and injunctive relief, on the other. Zwickler v.
Koota, 389 U.S. 241, 252 -255 (1967); Dombrowski v. Pfister, 380 U.S. 479 (1965).
We are not dealing with a statute that, on its face, appears to abridge free expression,
an area of particular concern under Dombrowski and refined in Younger v.
Harris, 401 U.S., at 50 .
We find it unnecessary to decide whether the District Court erred in withholding
injunctive relief, for we assume the Texas prosecutorial authorities will give full
credence to this decision that the present criminal abortion statutes of that State are
unconstitutional.
The judgment of the District Court as to intervenor Hallford is reversed, and Dr.
Hallford's complaint in intervention is dismissed. In all other respects, the
judgment [410 U.S. 113, 167] of the District Court is affirmed. Costs are allowed to
the appellee.
It is so ordered.
[For concurring opinion of MR. CHIEF JUSTICE BURGER, see post, p. 207.]
[For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 209.]
[For dissenting opinion of MR. JUSTICE WHITE, see post, p. 221.]
Footnotes
[ Footnote 1 ] "Article 1191. Abortion
"If any person shall designedly administer to a pregnant woman or knowingly
procure to be administered with her consent any drug or medicine, or shall use
towards her any violence or means whatever externally or internally applied, and
thereby procure an abortion, he shall be confined in the penitentiary not less than two
nor more than five years; if it be done without her consent, the punishment shall be
doubled. By `abortion' is meant that the life of the fetus or embryo shall be destroyed
in the woman's womb or that a premature birth thereof be caused.
"Art. 1192. Furnishing the means
"Whoever furnishes the means for procuring an abortion knowing the purpose
intended is guilty as an accomplice.
"Art. 1193. Attempt at abortion
"If the means used shall fail to produce an abortion, the offender is nevertheless
guilty of an attempt to produce abortion, provided [410 U.S. 113, 118] it be shown
that such means were calculated to produce that result, and shall be fined not less
than one hundred nor more than one thousand dollars.
"Art. 1194. Murder in producing abortion
"If the death of the mother is occasioned by an abortion so produced or by an attempt
to effect the same it is murder."
"Art. 1196. By medical advice
"Nothing in this chapter applies to an abortion procured or attempted by medical
advice for the purpose of saving the life of the mother."
The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of
the Penal Code. Article 1195, not attacked here, reads:
"Art. 1195. Destroying unborn child
"Whoever shall during parturition of the mother destroy the vitality or life in a child
in a state of being born and before actual birth, which child would otherwise have
been born alive, shall be confined in the penitentiary for life or for not less than five
years."
[ Footnote 2 ] Ariz. Rev. Stat. Ann. 13-211 (1956); Conn. Pub. Act No. 1 (May 1972
special session) (in 4 Conn. Leg. Serv. 677 (1972)), and Conn. Gen. Stat. Rev. 53-29,
53-30 (1968) (or unborn child); Idaho Code 18-601 (1948); Ill. Rev. Stat., c. 38, 23-1
(1971); Ind. Code 35-1-58-1 (1971); Iowa Code 701.1 (1971); Ky. Rev. Stat.
436.020 (1962); La. Rev. Stat. 37:1285 (6) (1964) (loss of medical license) (but see
14:87 (Supp. 1972) containing no exception for the life of the mother under the
criminal statute); Me. Rev. Stat. Ann., Tit. 17, 51 (1964); Mass. Gen. Laws Ann., c.
272, 19 (1970) (using the term "unlawfully," construed to exclude an abortion to
save the mother's life, Kudish v. Bd. of Registration, 356 Mass. 98, 248 N. E. 2d 264
(1969)); Mich. Comp. Laws 750.14 (1948); Minn. Stat. 617.18 (1971); Mo. Rev.
Stat. 559.100 (1969); Mont. Rev. Codes Ann. 94-401 (1969); Neb. Rev. Stat. 28-405
(1964); Nev. Rev. Stat. 200.220 (1967); N. H. Rev. Stat. Ann. 585:13 (1955); N. J.
Stat. Ann. 2A:87-1 (1969) ("without lawful justification"); N. D. Cent. Code 12-25-
01, 12-25-02 (1960); Ohio Rev. Code Ann. 2901.16 (1953); Okla. Stat. Ann., Tit. 21,
861 (1972-1973 Supp.); Pa. Stat. Ann., Tit. 18, [410 U.S. 113, 119] 4718, 4719
(1963) ("unlawful"); R. I. Gen. Laws Ann. 11-3-1 (1969); S. D. Comp. Laws Ann.
22-17-1 (1967); Tenn. Code Ann. 39-301, 39-302 (1956); Utah Code Ann. 76-2-1,
76-2-2 (1953); Vt. Stat. Ann., Tit. 13, 101 (1958); W. Va. Code Ann. 61-2-8 (1966);
Wis. Stat. 940.04 (1969); Wyo. Stat. Ann. 6-77, 6-78 (1957).
[ Footnote 3 ] Long ago, a suggestion was made that the Texas statutes were
unconstitutionally vague because of definitional deficiencies. The Texas Court of
Criminal Appeals disposed of that suggestion peremptorily, saying only,
"It is also insisted in the motion in arrest of judgment that the statute is
unconstitutional and void in that it does not sufficiently define or describe the
offense of abortion. We do not concur in respect to this question." Jackson v. State,
55 Tex. Cr. R. 79, 89, 115 S. W. 262, 268 (1908).
The same court recently has held again that the State's abortion statutes are not
unconstitutionally vague or overbroad. Thompson v. State (Ct. Crim. App. Tex.
1971), appeal docketed, No. 71-1200. The court held that "the State of Texas has a
compelling interest to protect fetal life"; that Art. 1191 "is designed to protect fetal
life"; that the Texas homicide statutes, particularly Art. 1205 of the Penal Code, are
intended to protect a person "in existence by actual birth" and thereby implicitly
recognize other human life that is not "in existence by actual birth"; that the
definition of human life is for the legislature and not the courts; that Art. 1196 "is
more definite than the District of Columbia statute upheld in [United States v.]
Vuitch" ( 402 U.S. 62 ); and that the Texas statute "is [410 U.S. 113, 120] not
vague and indefinite or overbroad." A physician's abortion conviction was affirmed.
In Thompson, n. 2, the court observed that any issue as to the burden of proof under
the exemption of Art. 1196 "is not before us." But see Veevers v. State, 172 Tex. Cr.
R. 162, 168-169, 354 S. W. 2d 161, 166-167 (1962). Cf. United States v. Vuitch, 402
U.S. 62, 69 -71 (1971).
[ Footnote 4 ] The name is a pseudonym.
[ Footnote 5 ] These names are pseudonyms.
[ Footnote 6 ] The appellee twice states in his brief that the hearing before the
District Court was held on July 22, 1970. Brief for Appellee 13. The docket entries,
App. 2, and the transcript, App. 76, reveal this to be an error. The July date appears
to be the time of the reporter's transcription. See App. 77.
[ Footnote 7 ] We need not consider what different result, if any, would follow if Dr.
Hallford's intervention were on behalf of a class. His complaint in intervention does
not purport to assert a class suit and makes no reference to any class apart from an
allegation that he "and others similarly situated" must necessarily guess at the
meaning of Art. 1196. His application for leave to intervene goes somewhat further,
for it asserts that plaintiff Roe does not adequately protect the interest of the doctor
"and the class of people who are physicians . . . [and] the class of people who are . . .
patients . . . ." The leave application, however, is not the complaint. Despite the
District Court's statement to the contrary, 314 F. Supp., at 1225, we fail to perceive
the essentials of a class suit in the Hallford complaint.
[ Footnote 8 ] A. Castiglioni, A History of Medicine 84 (2d ed. 1947), E. Krumbhaar,
translator and editor (hereinafter Castiglioni).
[ Footnote 9 ] J. Ricci, The Genealogy of Gynaecology 52, 84, 113, 149 (2d ed.
1950) (hereinafter Ricci); L. Lader, Abortion 75-77 (1966) (hereinafter Lader); K.
Niswander, Medical Abortion Practices in the United States, in Abortion and the
Law 37, 38-40 (D. Smith ed. 1967); G. Williams, The Sanctity of Life and the
Criminal Law 148 (1957) (hereinafter Williams); J. Noonan, An Almost Absolute
Value in History, in The Morality of Abortion 1, 3-7 (J. Noonan ed. 1970)
(hereinafter Noonan); Quay, Justifiable Abortion - Medical and Legal Foundations
(pt. 2), 49 Geo. L. J. 395, 406-422 (1961) (hereinafter Quay).
[ Footnote 10 ] L. Edelstein, The Hippocratic Oath 10 (1943) (hereinafter Edelstein).
But see Castiglioni 227.
[ Footnote 11 ] Edelstein 12; Ricci 113-114, 118-119; Noonan 5.
[ Footnote 12 ] Edelstein 13-14.
[ Footnote 13 ] Castiglioni 148.
[ Footnote 14 ] Id., at 154.
[ Footnote 15 ] Edelstein 3.
[ Footnote 16 ] Id., at 12, 15-18.
[ Footnote 17 ] Id., at 18; Lader 76.
[ Footnote 18 ] Edelstein 63.
[ Footnote 19 ] Id., at 64.
[ Footnote 20 ] Dorland's Illustrated Medical Dictionary 1261 (24th ed. 1965).
[ Footnote 21 ] E. Coke, Institutes III *50; 1 W. Hawkins, Pleas of the Crown, c. 31,
16 (4th ed. 1762); 1 W. Blackstone, Commentaries *129-130; M. Hale, Pleas of the
Crown 433 (1st Amer. ed. 1847). For discussions of the role of the quickening
concept in English common law, see Lader 78; Noonan 223-226; Means, The Law of
New [410 U.S. 113, 133] York Concerning Abortion and the Status of the Foetus,
1664-1968: A Case of Cessation of Constitutionality (pt. 1), 14 N. Y. L. F. 411, 418-
428 (1968) (hereinafter Means I); Stern, Abortion: Reform and the Law, 59 J. Crim.
L. C. & P. S. 84 (1968) (hereinafter Stern); Quay 430-432; Williams 152.
[ Footnote 22 ] Early philosophers believed that the embryo or fetus did not become
formed and begin to live until at least 40 days after conception for a male, and 80 to
90 days for a female. See, for example, Aristotle, Hist. Anim. 7.3.583b; Gen. Anim.
2.3.736, 2.5.741; Hippocrates, Lib. de Nat. Puer., No. 10. Aristotle's thinking derived
from his three-stage theory of life: vegetable, animal, rational. The vegetable stage
was reached at conception, the animal at "animation," and the rational soon after live
birth. This theory, together with the 40/80 day view, came to be accepted by early
Christian thinkers.
The theological debate was reflected in the writings of St. Augustine, who made a
distinction between embryo inanimatus, not yet endowed with a soul, and embryo
animatus. He may have drawn upon Exodus 21:22. At one point, however, he
expressed the view that human powers cannot determine the point during fetal
development at which the critical change occurs. See Augustine, De Origine Animae
4.4 (Pub. Law 44.527). See also W. Reany, The Creation of the Human Soul, c. 2
and 83-86 (1932); Huser, The Crime of Abortion in Canon Law 15 (Catholic Univ.
of America, Canon Law Studies No. 162, Washington, D.C., 1942).
Galen, in three treatises related to embryology, accepted the thinking of Aristotle and
his followers. Quay 426-427. Later, Augustine on abortion was incorporated by
Gratian into the Decretum, published about 1140. Decretum Magistri Gratiani
2.32.2.7 to 2.32.2.10, [410 U.S. 113, 134] in 1 Corpus Juris Canonici 1122, 1123
(A. Friedburg, 2d ed. 1879). This Decretal and the Decretals that followed were
recognized as the definitive body of canon law until the new Code of 1917.
For discussions of the canon-law treatment, see Means I, pp. 411-412; Noonan 20-
26; Quay 426-430; see also J. Noonan, Contraception: A History of Its Treatment by
the Catholic Theologians and Canonists 18-29 (1965).
[ Footnote 23 ] Bracton took the position that abortion by blow or poison was
homicide "if the foetus be already formed and animated, and particularly if it be
animated." 2 H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed.
1879), or, as a later translation puts it, "if the foetus is already formed or quickened,
especially if it is quickened," 2 H. Bracton, On the Laws and Customs of England
341 (S. Thorne ed. 1968). See Quay 431; see also 2 Fleta 60-61 (Book 1, c. 23)
(Selden Society ed. 1955).
[ Footnote 24 ] E. Coke, Institutes III *50.
[ Footnote 25 ] 1 W. Blackstone, Commentaries *129-130.
[ Footnote 26 ] Means, The Phoenix of Abortional Freedom: Is a Penumbral or
Ninth-Amendment Right About to Arise from the Nineteenth-Century Legislative
Ashes of a Fourteenth-Century Common-Law Liberty?, 17 N. Y. L. F. 335 (1971)
(hereinafter Means II). The author examines the two principal precedents cited
marginally by Coke, both contrary to his dictum, and traces the treatment of these
and other cases by earlier commentators. He concludes that Coke, who himself
participated as an advocate in an abortion case in 1601, may have intentionally
misstated the law. The author even suggests a reason: Coke's strong feelings against
abortion, coupled with his determination to assert common-law (secular) jurisdiction
to assess penalties for an offense that traditionally had been an exclusively
ecclesiastical or canon-law crime. See also Lader 78-79, who notes that some
scholars doubt that the common law ever was applied to abortion; that the English
ecclesiastical courts seem to have lost interest in the problem after 1527; and that the
preamble to the English legislation of 1803, 43 Geo. 3, c. 58, 1, referred to in the
text, infra, at 136, states that "no adequate means have been hitherto provided for the
prevention and punishment of such offenses."
[ Footnote 27 ] Commonwealth v. Bangs, 9 Mass. 387, 388 (1812); Commonwealth
v. Parker, 50 Mass. (9 Metc.) 263, 265-266 (1845); State v. Cooper, 22 N. J. L. 52,
58 (1849); Abrams v. Foshee, 3 Iowa 274, 278-280 (1856); Smith v. Gaffard, 31 Ala.
45, 51 (1857); Mitchell v. Commonwealth, 78 Ky. 204, 210 (1879); Eggart v. State,
40 Fla. [410 U.S. 113, 136] 527, 532, 25 So. 144, 145 (1898); State v. Alcorn, 7
Idaho 599, 606, 64 P. 1014, 1016 (1901); Edwards v. State, 79 Neb. 251, 252, 112 N.
W. 611, 612 (1907); Gray v. State, 77 Tex. Cr. R. 221, 224, 178 S. W. 337, 338
(1915); Miller v. Bennett, 190 Va. 162, 169, 56 S. E. 2d 217, 221 (1949). Contra,
Mills v. Commonwealth, 13 Pa. 631, 633 (1850); State v. Slagle, 83 N.C. 630, 632
(1880).
[ Footnote 28 ] See Smith v. State, 33 Me. 48, 55 (1851); Evans v. People, 49 N. Y.
86, 88 (1872); Lamb v. State, 67 Md. 524, 533, 10 A. 208 (1887).
[ Footnote 29 ] Conn. Stat., Tit. 20, 14 (1821).
[ Footnote 30 ] Conn. Pub. Acts, c. 71, 1 (1860).
[ Footnote 31 ] N. Y. Rev. Stat., pt. 4, c. 1, Tit. 2, Art. 1, 9, p. 661, and Tit. 6, 21, p.
694 (1829).
[ Footnote 32 ] Act of Jan. 20, 1840, 1, set forth in 2 H. Gammel, Laws of Texas
177-178 (1898); see Grigsby v. Reib, 105 Tex. 597, 600, 153 S. W. 1124, 1125
(1913).
[ Footnote 33 ] The early statutes are discussed in Quay 435-438. See also Lader 85-
88; Stern 85-86; and Means II 375-376.
[ Footnote 34 ] Criminal abortion statutes in effect in the States as of 1961, together
with historical statutory development and important judicial interpretations of the
state statutes, are cited and quoted in Quay 447-520. See Comment, A Survey of the
Present Statutory and Case Law on Abortion: The Contradictions and the Problems,
1972 U. Ill. L. F. 177, 179, classifying the abortion statutes and listing 25 States as
permitting abortion only if necessary to save or preserve the mother's life.
[ Footnote 35 ] Ala. Code, Tit. 14, 9 (1958); D.C. Code Ann. 22-201 (1967).
[ Footnote 36 ] Mass. Gen. Laws Ann., c. 272, 19 (1970); N. J. Stat. Ann. 2A:87-1
(1969); Pa. Stat. Ann., Tit. 18, 4718, 4719 (1963).
[ Footnote 37 ] Fourteen States have adopted some form of the ALI statute. See Ark.
Stat. Ann. 41-303 to 41-310 (Supp. 1971); Calif. Health & Safety Code 25950-
25955.5 (Supp. 1972); Colo. Rev. Stat. Ann. 40-2-50 to 40-2-53 (Cum. Supp. 1967);
Del. Code Ann., Tit. 24, 1790-1793 (Supp. 1972); Florida Law of Apr. 13, 1972, c.
72-196, 1972 Fla. Sess. Law Serv., pp. 380-382; Ga. Code 26-1201 to 26-1203
(1972); Kan. Stat. Ann. 21-3407 (Supp. 1971); Md. Ann. Code, Art. 43, 137-139
(1971); Miss. Code Ann. 2223 (Supp. 1972); N. M. Stat. Ann. 40A-5-1 to 40A-5-3
(1972); N.C. Gen. Stat. 14-45.1 (Supp. 1971); Ore. Rev. Stat. 435.405 to 435.495
(1971); S. C. Code Ann. 16-82 to 16-89 (1962 and Supp. 1971); Va. Code Ann.
18.1-62 to 18.1-62.3 (Supp. 1972). Mr. Justice Clark described some of these States
as having "led the way." Religion, Morality, and Abortion: A Constitutional
Appraisal, 2 Loyola U. (L. A.) L. Rev. 1, 11 (1969).
By the end of 1970, four other States had repealed criminal penalties for abortions
performed in early pregnancy by a licensed physician, subject to stated procedural
and health requirements. Alaska Stat. 11.15.060 (1970); Haw. Rev. Stat. 453-16
(Supp. 1971); N. Y. Penal Code 125.05, subd. 3 (Supp. 1972-1973); Wash. Rev.
Code 9.02.060 to 9.02.080 (Supp. 1972). The precise status of criminal abortion laws
in some States is made unclear by recent decisions in state and federal courts striking
down existing state laws, in whole or in part.
[ Footnote 38 ] "Whereas, Abortion, like any other medical procedure, should not be
performed when contrary to the best interests of the patient [410 U.S. 113,
144] since good medical practice requires due consideration for the patient's welfare
and not mere acquiescence to the patient's demand; and
"Whereas, The standards of sound clinical judgment, which, together with informed
patient consent should be determinative according to the merits of each individual
case; therefore be it
"RESOLVED, That abortion is a medical procedure and should be performed only
by a duly licensed physician and surgeon in an accredited hospital acting only after
consultation with two other physicians chosen because of their professional
competency and in conformance with standards of good medical practice and the
Medical Practice Act of his State; and be it further
"RESOLVED, That no physician or other professional personnel shall be compelled
to perform any act which violates his good medical judgment. Neither physician,
hospital, nor hospital personnel shall be required to perform any act violative of
personally-held moral principles. In these circumstances good medical practice
requires only that the physician or other professional personnel withdraw from the
case so long as the withdrawal is consistent with good medical practice."
Proceedings of the AMA House of Delegates 220 (June 1970).
[ Footnote 39 ] "The Principles of Medical Ethics of the AMA do not prohibit a
physician from performing an abortion that is performed in accordance with good
medical practice and under circumstances that do not violate the laws of the
community in which he practices.
"In the matter of abortions, as of any other medical procedure, the Judicial Council
becomes involved whenever there is alleged violation of the Principles of Medical
Ethics as established by the House of Delegates."
[ Footnote 40 ] "UNIFORM ABORTION ACT
"SECTION 1. [Abortion Defined; When Authorized.]
"(a) `Abortion' means the termination of human pregnancy with an intention other
than to produce a live birth or to remove a dead fetus.
"(b) An abortion may be performed in this state only if it is performed:
"(1) by a physician licensed to practice medicine [or osteopathy] in this state or by a
physician practicing medicine [or osteopathy] in the employ of the government of
the United States or of this state, [and the abortion is performed [in the physician's
office or in a medical clinic, or] in a hospital approved by the [Department of Health]
or operated by the United States, this state, or any department, agency, or political
subdivision of either;] or by a female upon herself upon the advice of the physician;
and
"(2) within 20. weeks after the commencement of the pregnancy [or after 20. weeks
only if the physician has reasonable cause to believe (i) there is a substantial risk that
continuance of the pregnancy would endanger the life of the mother or would
gravely impair the physical or mental health of the mother, (ii) that the child would
be born with grave physical or mental defect, or (iii) that [410 U.S. 113, 147] the
pregnancy resulted from rape or incest, or illicit intercourse with a girl under the age
of 16 years].
"SECTION 2. [Penalty.] Any person who performs or procures an abortion other
than authorized by this Act is guilty of a [felony] and, upon conviction thereof, may
be sentenced to pay a fine not exceeding [$1,000] or to imprisonment [in the state
penitentiary] not exceeding [5 years], or both.
"SECTION 3. [Uniformity of Interpretation.] This Act shall be construed to
effectuate its general purpose to make uniform the law with respect to the subject of
this Act among those states which enact it.
"SECTION 4. [Short Title.] This Act may be cited as the Uniform Abortion Act.
"SECTION 5. [Severability.] If any provision of this Act or the application thereof to
any person or circumstance is held invalid, the invalidity does not affect other
provisions or applications of this Act which can be given effect without the invalid
provision or application, and to this end the provisions of this Act are severable.
"SECTION 6. [Repeal.] The following acts and parts of acts are repealed: "(1) "(2)
"(3)
"SECTION 7. [Time of Taking Effect.] This Act shall take effect
________________."
[ Footnote 41 ] "This Act is based largely upon the New York abortion act following
a review of the more recent laws on abortion in several states and upon recognition
of a more liberal trend in laws on this subject. Recognition was given also to the
several decisions in state and federal courts which show a further trend toward
liberalization of abortion laws, especially during the first trimester of pregnancy.
"Recognizing that a number of problems appeared in New York, a shorter time
period for `unlimited' abortions was advisable. The [410 U.S. 113, 148] time period
was bracketed to permit the various states to insert a figure more in keeping with the
different conditions that might exist among the states. Likewise, the language
limiting the place or places in which abortions may be performed was also bracketed
to account for different conditions among the states. In addition, limitations on
abortions after the initial `unlimited' period were placed in brackets so that individual
states may adopt all or any of these reasons, or place further restrictions upon
abortions after the initial period.
"This Act does not contain any provision relating to medical review committees or
prohibitions against sanctions imposed upon medical personnel refusing to
participate in abortions because of religious or other similar reasons, or the like. Such
provisions, while related, do not directly pertain to when, where, or by whom
abortions may be performed; however, the Act is not drafted to exclude such a
provision by a state wishing to enact the same."
[ Footnote 42 ] See, for example, YWCA v. Kugler, 342 F. Supp. 1048, 1074 (N. J.
1972); Abele v. Markle, 342 F. Supp. 800, 805-806 (Conn. 1972) (Newman, J.,
concurring in result), appeal docketed, No. 72-56; Walsingham v. State, 250 So.2d
857, 863 (Ervin, J., concurring) (Fla. 1971); State v. Gedicke, 43 N. J. L. 86, 90
(1881); Means II 381-382.
[ Footnote 43 ] See C. Haagensen & W. Lloyd, A Hundred Years of Medicine 19
(1943).
[ Footnote 44 ] Potts, Postconceptive Control of Fertility, 8 Int'l J. of G. & O. 957,
967 (1970) (England and Wales); Abortion Mortality, 20 Morbidity and Mortality
208, 209 (June 12, 1971) (U.S. Dept. of HEW, Public Health Service) (New York
City); Tietze, United States: Therapeutic Abortions, 1963-1968, 59 Studies in Family
Planning 5, 7 (1970); Tietze, Mortality with Contraception and Induced Abortion, 45
Studies in Family Planning 6 (1969) (Japan, Czechoslovakia, Hungary); Tietze &
Lehfeldt, Legal Abortion in Eastern Europe, 175 J. A. M. A. 1149, 1152 (April
1961). Other sources are discussed in Lader 17-23.
[ Footnote 45 ] See Brief of Amicus National Right to Life Committee; R. Drinan,
The Inviolability of the Right to be Born, in Abortion and the Law 107 (D. Smith ed.
1967); Louisell, Abortion, The Practice of Medicine and the Due Process of Law, 16
U. C. L. A. L. Rev. 233 (1969); Noonan 1.
[ Footnote 46 ] See, e. g., Abele v. Markle, 342 F. Supp. 800 (Conn. 1972), appeal
docketed, No. 72-56.
[ Footnote 47 ] See discussions in Means I and Means II.
[ Footnote 48 ] See, e. g., State v. Murphy, 27 N. J. L. 112, 114 (1858).
[ Footnote 49 ] Watson v. State, 9 Tex. App. 237, 244-245 (1880); Moore v. State,
37 Tex. Cr. R. 552, 561, 40 S. W. 287, 290 (1897); Shaw v. State, 73 Tex. Cr. R.
337, 339, 165 S. W. 930, 931 (1914); Fondren v. State, 74 Tex. Cr. R. 552, 557, 169
S. W. 411, 414 (1914); Gray v. State, 77 Tex. Cr. R. 221, 229, 178 S. W. 337, 341
(1915). There is no immunity in Texas for the father who is not married to the
mother. Hammett v. State, 84 Tex. Cr. R. 635, 209 S. W. 661 (1919); Thompson v.
State (Ct. Crim. App. Tex. 1971), appeal docketed, No. 71-1200.
[ Footnote 50 ] See Smith v. State, 33 Me., at 55; In re Vince, 2 N. J. 443, 450, 67 A.
2d 141, 144 (1949). A short discussion of the modern law on this issue is contained
in the Comment to the ALI's Model Penal Code 207.11, at 158 and nn. 35-37 (Tent.
Draft No. 9, 1959).
[ Footnote 51 ] Tr. of Oral Rearg. 20-21.
[ Footnote 52 ] Tr. of Oral Rearg. 24.
[ Footnote 53 ] We are not aware that in the taking of any census under this clause, a
fetus has ever been counted.
[ Footnote 54 ] When Texas urges that a fetus is entitled to Fourteenth Amendment
protection as a person, it faces a dilemma. Neither in Texas nor in any other State are
all abortions prohibited. Despite broad proscription, an exception always exists. The
exception contained [410 U.S. 113, 158] in Art. 1196, for an abortion procured or
attempted by medical advice for the purpose of saving the life of the mother, is
typical. But if the fetus is a person who is not to be deprived of life without due
process of law, and if the mother's condition is the sole determinant, does not the
Texas exception appear to be out of line with the Amendment's command?
There are other inconsistencies between Fourteenth Amendment status and the
typical abortion statute. It has already been pointed out, n. 49, supra, that in Texas
the woman is not a principal or an accomplice with respect to an abortion upon her.
If the fetus is a person, why is the woman not a principal or an accomplice? Further,
the penalty for criminal abortion specified by Art. 1195 is significantly less than the
maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code. If
the fetus is a person, may the penalties be different?
[ Footnote 55 ] Cf. the Wisconsin abortion statute, defining "unborn child" to mean
"a human being from the time of conception until it is born alive," Wis. Stat. 940.04
(6) (1969), and the new Connecticut Statute, Pub. Act No. 1 (May 1972 special
session), declaring it to be the public policy of the State and the legislative intent "to
protect and preserve human life from the moment of conception."
[ Footnote 56 ] Edelstein 16.
[ Footnote 57 ] Lader 97-99; D. Feldman, Birth Control in Jewish Law 251-294
(1968). For a stricter view, see I. Jakobovits, Jewish Views on Abortion, in Abortion
and the Law 124 (D. Smith ed. 1967).
[ Footnote 58 ] Amicus Brief for the American Ethical Union et al. For the position
of the National Council of Churches and of other denominations, see Lader 99-101.
[ Footnote 59 ] L. Hellman & J. Pritchard, Williams Obstetrics 493 (14th ed. 1971);
Dorland's Illustrated Medical Dictionary 1689 (24th ed. 1965).
[ Footnote 60 ] Hellman & Pritchard, supra, n. 59, at 493.
[ Footnote 61 ] For discussions of the development of the Roman Catholic position,
see D. Callahan, Abortion: Law, Choice, and Morality 409-447 (1970); Noonan 1.
[ Footnote 62 ] See Brodie, The New Biology and the Prenatal Child, 9 J. Family L.
391, 397 (1970); Gorney, The New Biology and the Future of Man, 15 U. C. L. A. L.
Rev. 273 (1968); Note, Criminal Law - Abortion - The "Morning-After Pill" and
Other Pre-Implantation Birth-Control Methods and the Law, 46 Ore. L. Rev. 211
(1967); G. Taylor, The Biological Time Bomb 32 (1968); A. Rosenfeld, The Second
Genesis 138-139 (1969); Smith, Through a Test Tube Darkly: Artificial Insemination
and the Law, 67 Mich. L. Rev. 127 (1968): Note, Artificial Insemination and the
Law, 1968 U. Ill. L. F. 203.
[ Footnote 63 ] W. Prosser, The Law of Torts 335-338 (4th ed. 1971); 2 F. Harper &
F. James, The Law of Torts 1028-1031 (1956); Note, 63 Harv. L. Rev. 173 (1949).
[ Footnote 64 ] See cases cited in Prosser, supra, n. 63, at 336-338; Annotation,
Action for Death of Unborn Child, 15 A. L. R. 3d 992 (1967).
[ Footnote 65 ] Prosser, supra, n. 63, at 338; Note, The Law and the Unborn Child:
The Legal and Logical Inconsistencies, 46 Notre Dame Law. 349, 354-360 (1971).
[ Footnote 66 ] Louisell, Abortion, The Practice of Medicine and the Due Process of
Law, 16 U. C. L. A. L. Rev. 233, 235-238 (1969); Note, 56 Iowa L. Rev. 994, 999-
1000 (1971); Note, The Law and the Unborn Child, 46 Notre Dame Law. 349, 351-
354 (1971).
[ Footnote 67 ] Neither in this opinion nor in Doe v. Bolton, post, p. 179, do we
discuss the father's rights, if any exist in the constitutional context, in the abortion
decision. No paternal right has been asserted in either of the cases, and the Texas and
the Georgia statutes on their face take no cognizance of the father. We are aware that
some statutes recognize the father under certain circumstances. North Carolina, for
example, N.C. Gen. Stat. 14-45.1 (Supp. 1971), requires written permission for the
abortion from the husband when the woman is a married minor, that is, when she is
less than 18 years of age, 41 N.C. A. G. 489 (1971); if the woman is an unmarried
minor, written permission from the parents is required. We need not now decide
whether provisions of this kind are constitutional.
MR. JUSTICE STEWART, concurring.
In 1963, this Court, in Ferguson v. Skrupa, 372 U.S. 726 , purported to sound the
death knell for the doctrine of substantive due process, a doctrine under which many
state laws had in the past been held to violate the Fourteenth Amendment. As Mr.
Justice Black's opinion for the Court in Skrupa put it: "We have returned to the
original constitutional proposition that courts do not substitute their social and
economic beliefs for the judgment of legislative bodies, who are elected to pass
laws." Id., at 730. 1
Barely two years later, in Griswold v. Connecticut, 381 U.S. 479 , the Court held a
Connecticut birth control law unconstitutional. In view of what had been so recently
said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid
reliance on the Due Process Clause of the Fourteenth Amendment as the ground for
decision. Yet, the Connecticut law did not violate any provision of the Bill of Rights,
nor any other specific provision of the Constitution. 2 So it was clear [410 U.S. 113,
168] to me then, and it is equally clear to me now, that the Griswold decision can be
rationally understood only as a holding that the Connecticut statute substantively
invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth
Amendment.3 As so understood, Griswold stands as one in a long line of pre-Skrupa
cases decided under the doctrine of substantive due process, and I now accept it as
such.
"In a Constitution for a free people, there can be no doubt that the meaning of
`liberty' must be broad indeed." Board of Regents v. Roth, 408 U.S. 564, 572 . The
Constitution nowhere mentions a specific right of personal choice in matters of
marriage and family life, but the "liberty" protected by the Due Process Clause of the
Fourteenth Amendment covers more than those freedoms explicitly named in the Bill
of Rights. See Schware v. Board of Bar Examiners, 353 U.S. 232, 238 -239; Pierce
v. Society of Sisters, 268 U.S. 510, 534 -535; Meyer v. Nebraska, 262 U.S. 390,
399 -400. Cf. Shapiro v. Thompson, 394 U.S. 618, 629 -630; United States v.
Guest,383 U.S. 745, 757 -758; Carrington v. Rash, 380 U.S. 89, 96 ; Aptheker v.
Secretary of State, 378 U.S. 500, 505; Kent v. Dulles, 357 U.S. 116, 127 ; Bolling v.
Sharpe, 347 U.S. 497, 499 -500; Truax v. Raich, 239 U.S. 33, 41 .[410 U.S. 113,
169]
As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the
Due Process Clause cannot be found in or limited by the precise terms of the specific
guarantees elsewhere provided in the Constitution. This `liberty' is not a series of
isolated points pricked out in terms of the taking of property; the freedom of speech,
press, and religion; the right to keep and bear arms; the freedom from unreasonable
searches and seizures; and so on. It is a rational continuum which, broadly speaking,
includes a freedom from all substantial arbitrary impositions and purposeless
restraints . . . and which also recognizes, what a reasonable and sensitive judgment
must, that certain interests require particularly careful scrutiny of the state needs
asserted to justify their abridgment." Poe v. Ullman, 367 U.S. 497, 543 (opinion
dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice
Frankfurter, "Great concepts like . . . `liberty' . . . were purposely left to gather
meaning from experience. For they relate to the whole domain of social and
economic fact, and the statesmen who founded this Nation knew too well that only a
stagnant society remains unchanged." National Mutual Ins. Co. v. Tidewater
Transfer Co., 337 U.S. 582, 646 (dissenting opinion).
Several decisions of this Court make clear that freedom of personal choice in matters
of marriage and family life is one of the liberties protected by the Due Process
Clause of the Fourteenth Amendment. Loving v. Virginia, 388 U.S. 1, 12 ; Griswold
v. Connecticut, supra; Pierce v. Society of Sisters, supra; Meyer v. Nebraska, supra.
See also Prince v. Massachusetts, 321 U.S. 158, 166 ; Skinner v. Oklahoma, 316
U.S. 535, 541 . As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453 ,
we recognized "the right of the individual, married or single, to be free from
unwarranted governmental intrusion into matters so fundamentally affecting a
person [410 U.S. 113, 170] as the decision whether to bear or beget a child." That
right necessarily includes the right of a woman to decide whether or not to terminate
her pregnancy. "Certainly the interests of a woman in giving of her physical and
emotional self during pregnancy and the interests that will be affected throughout her
life by the birth and raising of a child are of a far greater degree of significance and
personal intimacy than the right to send a child to private school protected in Pierce
v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language
protected in Meyer v. Nebraska, 262 U.S. 390 (1923)." Abele v. Markle, 351 F.
Supp. 224, 227 (Conn. 1972).
Clearly, therefore, the Court today is correct in holding that the right asserted by Jane
Roe is embraced within the personal liberty protected by the Due Process Clause of
the Fourteenth Amendment.
It is evident that the Texas abortion statute infringes that right directly. Indeed, it is
difficult to imagine a more complete abridgment of a constitutional freedom than
that worked by the inflexible criminal statute now in force in Texas. The question
then becomes whether the state interests advanced to justify this abridgment can
survive the "particularly careful scrutiny" that the Fourteenth Amendment here
requires.
The asserted state interests are protection of the health and safety of the pregnant
woman, and protection of the potential future human life within her. These are
legitimate objectives, amply sufficient to permit a State to regulate abortions as it
does other surgical procedures, and perhaps sufficient to permit a State to regulate
abortions more stringently or even to prohibit them in the late stages of pregnancy.
But such legislation is not before us, and I think the Court today has thoroughly
demonstrated that these state interests cannot constitutionally support the broad
abridgment of personal [410 U.S. 113, 171] liberty worked by the existing Texas
law. Accordingly, I join the Court's opinion holding that that law is invalid under the
Due Process Clause of the Fourteenth Amendment.
[ Footnote 1 ] Only Mr. Justice Harlan failed to join the Court's opinion, 372 U.S., at
733 .
[ Footnote 2 ] There is no constitutional right of privacy, as such. "[The Fourth]
Amendment protects individual privacy against certain kinds of governmental
intrusion, but its protections go further, and often have nothing to do with privacy at
all. Other provisions of [410 U.S. 113, 168] the Constitution protect personal
privacy from other forms of governmental invasion. But the protection of a person's
general right to privacy - his right to be let alone by other people - is, like the
protection of his property and of his very life, left largely to the law of the individual
States." Katz v. United States, 389 U.S. 347, 350 -351 (footnotes omitted).
[ Footnote 3 ] This was also clear to Mr. Justice Black, 381 U.S., at 507 (dissenting
opinion); to Mr. Justice Harlan, 381 U.S., at 499 (opinion concurring in the
judgment); and to MR. JUSTICE WHITE, 381 U.S., at 502(opinion concurring in
the judgment). See also Mr. Justice Harlan's thorough and thoughtful opinion
dissenting from dismissal of the appeal in Poe v. Ullman, 367 U.S. 497, 522 .
MR. JUSTICE REHNQUIST, dissenting.
The Court's opinion brings to the decision of this troubling question both extensive
historical fact and a wealth of legal scholarship. While the opinion thus commands
my respect, I find myself nonetheless in fundamental disagreement with those parts
of it that invalidate the Texas statute in question, and therefore dissent.
I
The Court's opinion decides that a State may impose virtually no restriction on the
performance of abortions during the first trimester of pregnancy. Our previous
decisions indicate that a necessary predicate for such an opinion is a plaintiff who
was in her first trimester of pregnancy at some time during the pendency of her law-
suit. While a party may vindicate his own constitutional rights, he may not seek
vindication for the rights of others. Moose Lodge v. Irvis, 407 U.S. 163 (1972);
Sierra Club v. Morton, 405 U.S. 727 (1972). The Court's statement of facts in this
case makes clear, however, that the record in no way indicates the presence of such a
plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a
pregnant woman; for aught that appears in this record, she may have been in her last
trimester of pregnancy as of the date the complaint was filed.
Nothing in the Court's opinion indicates that Texas might not constitutionally apply
its proscription of abortion as written to a woman in that stage of pregnancy.
Nonetheless, the Court uses her complaint against the Texas statute as a fulcrum for
deciding that States may [410 U.S. 113, 172] impose virtually no restrictions on
medical abortions performed during the first trimester of pregnancy. In deciding such
a hypothetical lawsuit, the Court departs from the longstanding admonition that it
should never "formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied." Liverpool, New York & Philadelphia S. S.
Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885). See also Ashwander v.
TVA, 297 U.S. 288, 345 (1936) (Brandeis, J., concurring).
II
Even if there were a plaintiff in this case capable of litigating the issue which the
Court decides, I would reach a conclusion opposite to that reached by the Court. I
have difficulty in concluding, as the Court does, that the right of "privacy" is
involved in this case. Texas, by the statute here challenged, bars the performance of a
medical abortion by a licensed physician on a plaintiff such as Roe. A transaction
resulting in an operation such as this is not "private" in the ordinary usage of that
word. Nor is the "privacy" that the Court finds here even a distant relative of the
freedom from searches and seizures protected by the Fourth Amendment to the
Constitution, which the Court has referred to as embodying a right to privacy. Katz
v. United States, 389 U.S. 347 (1967).
If the Court means by the term "privacy" no more than that the claim of a person to
be free from unwanted state regulation of consensual transactions may be a form of
"liberty" protected by the Fourteenth Amendment, there is no doubt that similar
claims have been upheld in our earlier decisions on the basis of that liberty. I agree
with the statement of MR. JUSTICE STEWART in his concurring opinion that the
"liberty," against deprivation of which without due process the Fourteenth [410 U.S.
113, 173] Amendment protects, embraces more than the rights found in the Bill of
Rights. But that liberty is not guaranteed absolutely against deprivation, only against
deprivation without due process of law. The test traditionally applied in the area of
social and economic legislation is whether or not a law such as that challenged has a
rational relation to a valid state objective. Williamson v. Lee Optical Co., 348 U.S. abortion. 1 While many States have amended or updated[410 U.S. 113, 176] their
483, 491 (1955). The Due Process Clause of the Fourteenth Amendment laws, 21 of the laws on the books in 1868 remain in effect today. 2 Indeed, the Texas
undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws statute struck down today was, as the majority notes, first enacted in 1857 [410 U.S.
such as this. If the Texas statute were to prohibit an abortion even where the mother's 113, 177] and "has remained substantially unchanged to the present time." Ante, at
life is in jeopardy, I have little doubt that such a statute would lack a rational relation 119.
to a valid state objective under the test stated in Williamson, supra. But the Court's
sweeping invalidation of any restrictions on abortion during the first trimester is There apparently was no question concerning the validity of this provision or of any
impossible to justify under that standard, and the conscious weighing of competing of the other state statutes when the Fourteenth Amendment was adopted. The only
factors that the Court's opinion apparently substitutes for the established test is far conclusion possible from this history is that the drafters did not intend to have the
more appropriate to a legislative judgment than to a judicial one. Fourteenth Amendment withdraw from the States the power to legislate with respect
to this matter.
The Court eschews the history of the Fourteenth Amendment in its reliance on the
"compelling state interest" test. See Weber v. Aetna Casualty & Surety Co., 406 U.S. III
164, 179 (1972) (dissenting opinion). But the Court adds a new wrinkle to this test
Even if one were to agree that the case that the Court decides were here, and that the
by transposing it from the legal considerations associated with the Equal Protection
enunciation of the substantive constitutional law in the Court's opinion were proper,
Clause of the Fourteenth Amendment to this case arising under the Due Process
the actual disposition of the case by the Court is still difficult to justify. The Texas
Clause of the Fourteenth Amendment. Unless I misapprehend the consequences of
statute is struck down in toto, even though the Court apparently concedes that at later
this transplanting of the "compelling state interest test," the Court's opinion will
periods of pregnancy Texas might impose these selfsame statutory limitations on
accomplish the seemingly impossible feat of leaving this area of the law more
abortion. My understanding of past practice is that a statute found [410 U.S. 113,
confused than it found it. [410 U.S. 113, 174]
178] to be invalid as applied to a particular plaintiff, but not unconstitutional as a
whole, is not simply "struck down" but is, instead, declared unconstitutional as
While the Court's opinion quotes from the dissent of Mr. Justice Holmes in Lochner
applied to the fact situation before the Court. Yick Wo v. Hopkins, 118 U.S.
v. New York, 198 U.S. 45, 74 (1905), the result it reaches is more closely attuned to
356(1886); Street v. New York, 394 U.S. 576 (1969).
the majority opinion of Mr. Justice Peckham in that case. As in Lochner and similar
cases applying substantive due process standards to economic and social welfare
For all of the foregoing reasons, I respectfully dissent.
legislation, the adoption of the compelling state interest standard will inevitably
require this Court to examine the legislative policies and pass on the wisdom of these
policies in the very process of deciding whether a particular state interest put forward
may or may not be "compelling." The decision here to break pregnancy into three
distinct terms and to outline the permissible restrictions the State may impose in each
one, for example, partakes more of judicial legislation than it does of a determination
of the intent of the drafters of the Fourteenth Amendment.

The fact that a majority of the States reflecting, after all, the majority sentiment in
those States, have had restrictions on abortions for at least a century is a strong
indication, it seems to me, that the asserted right to an abortion is not "so rooted in
the traditions and conscience of our people as to be ranked as fundamental," Snyder
v. Massachusetts, 291 U.S. 97, 105 (1934). Even today, when society's views on
abortion are changing, the very existence of the debate is evidence that the "right" to
an abortion is not so universally accepted as the appellant would have us believe.

To reach its result, the Court necessarily has had to find within the scope of the
Fourteenth Amendment a right that was apparently completely unknown to the
drafters of the Amendment. As early as 1821, the first state law dealing directly with
abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By
the time of the adoption of the Fourteenth [410 U.S. 113, 175] Amendment in 1868,
there were at least 36 laws enacted by state or territorial legislatures limiting
 In her petition, she alleged that she was born on January 13,
1981 and was registered as a female in the Certificate of Live Birth but
SECOND DIVISION
while growing up, she developed secondary male characteristics and
was diagnosed to have Congenital Adrenal Hyperplasia (CAH) which
REPUBLIC OF THE PHILIPPINES, G.R. No. 166676
is a condition where persons thus afflicted possess both male and female
Petitioner,
characteristics. She further alleged that she was diagnosed to have
Present: clitoral hyperthropy in her early years and at age six, underwent an
ultrasound where it was discovered that she has small ovaries. At age
QUISUMBING, J., Chairperson, thirteen, tests revealed that her ovarian structures had minimized, she
- versus - CARPIO MORALES, has stopped growing and she has no breast or menstrual development.
TINGA, She then alleged that for all interests and appearances as well as in mind
VELASCO, JR.,and and emotion, she has become a male person. Thus, she prayed that her
BRION, JJ. birth certificate be corrected such that her gender be changed from
female to male and her first name be changed from Jennifer to Jeff.
JENNIFER B. CAGANDAHAN, Promulgated:
Respondent. The petition was published in a newspaper of general circulation
September 12, 2008 for three (3) consecutive weeks and was posted in conspicuous places
by the sheriff of the court. The Solicitor General entered his appearance
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x and authorized the Assistant Provincial Prosecutor to appear in his
behalf.
DECISION
QUISUMBING, J.: To prove her claim, respondent testified and presented the
testimony of Dr. Michael Sionzon of the Department of Psychiatry,
University of the Philippines-Philippine General Hospital. Dr. Sionzon
This is a petition for review under Rule 45 of the Rules of Court issued a medical certificate stating that respondents condition is known
raising purely questions of law and seeking a reversal of the as CAH. He explained that genetically respondent is female but because
Decision[1] dated January 12, 2005 of the Regional Trial Court her body secretes male hormones, her female organs did not develop
(RTC), Branch 33 of Siniloan, Laguna, which granted the Petition for normally and she has two sex organs female and male. He testified that
Correction of Entries in Birth Certificate filed by Jennifer B. Cagandahan this condition is very rare, that respondents uterus is not fully developed
and ordered the following changes of entries in Cagandahans birth because of lack of female hormones, and that she has no monthly
certificate: (1) the name Jennifer Cagandahan changed to Jeff period. He further testified that respondents condition is permanent and
Cagandahan and (2) gender from female to male. recommended the change of gender because respondent has made up
her mind, adjusted to her chosen role as male, and the gender change
The facts are as follows. would be advantageous to her.

On December 11, 2003, respondent Jennifer Cagandahan filed a The RTC granted respondents petition in a Decision
Petition for Correction of Entries in Birth Certificate[2] before the RTC, dated January 12, 2005 which reads:
Branch 33 of Siniloan, Laguna.
 The Court is convinced that petitioner has
satisfactorily shown that he is entitled to the reliefs
prayed [for]. Petitioner has adequately presented to the
Court very clear and convincing proofs for the granting
of his petition. It was medically proven that petitioners
body produces male hormones, and first his body as well
as his action and feelings are that of a male. He has
chosen to be male. He is a normal person and wants to
be acknowledged and identified as a male.
WHEREFORE, premises considered, the Civil
Register of Pakil, Laguna is hereby ordered to make the
following corrections in the birth [c]ertificate of Jennifer
Cagandahan upon payment of the prescribed fees:
a) By changing the name from Jennifer
Cagandahan to JEFF CAGANDAHAN; and
b) By changing the gender from female
to MALE.
It is likewise ordered that petitioners school
records, voters registry, baptismal certificate, and other
pertinent records are hereby amended to conform with
the foregoing corrected data.
SO ORDERED.[3]
Thus, this petition by the Office of the Solicitor General (OSG)
seeking a reversal of the abovementioned ruling.
The issues raised by petitioner are:
THE TRIAL COURT ERRED IN GRANTING THE
PETITION CONSIDERING THAT:
I.
THE REQUIREMENTS OF RULES 103 AND 108 OF
THE RULES OF COURT HAVE NOT BEEN
COMPLIED WITH; AND,
II.
CORRECTION OF ENTRY UNDER RULE 108 DOES
NOT ALLOW CHANGE OF SEX OR GENDER IN
THE BIRTH CERTIFICATE, WHILE RESPONDENTS
MEDICAL CONDITION, i.e., CONGENITAL
ADRENAL HYPERPLASIA DOES NOT MAKE HER
A MALE.[4]
Simply stated, the issue is whether the trial court erred in
ordering the correction of entries in the birth certificate of respondent to
change her sex or gender, from female to male, on the ground of her
medical condition known as CAH, and her name from Jennifer to Jeff,
under Rules 103 and 108 of the Rules of Court.
The OSG contends that the petition below is fatally defective for
non-compliance with Rules 103 and 108 of the Rules of Court because
while the local civil registrar is an indispensable party in a petition for
cancellation or correction of entries under Section 3, Rule 108 of the
Rules of Court, respondents petition before the court a quo did not
implead the local civil registrar.[5] The OSG further contends
respondents petition is fatally defective since it failed to state that
respondent is a bona fide resident of the province where the petition was
filed for at least three (3) years prior to the date of such filing as
mandated under Section 2(b), Rule 103 of the Rules of Court.[6] The
OSG argues that Rule 108 does not allow change of sex or gender in the
birth certificate and respondents claimed medical condition known as
CAH does not make her a male.[7]
On the other hand, respondent counters that although the Local
Civil Registrar of Pakil, Laguna was not formally named a party in the
Petition for Correction of Birth Certificate, nonetheless the Local Civil
Registrar was furnished a copy of the Petition, the Order to publish on
December 16, 2003 and all pleadings, orders or processes in the course
of the proceedings,[8] respondent is actually a male person and hence his
birth certificate has to be corrected to reflect his true
sex/gender,[9] change of sex or gender is allowed under Rule 108,[10] and
respondent substantially complied with the requirements of Rules 103
and 108 of the Rules of Court.[11]
Rules 103 and 108 of the Rules of Court provide:
Rule 103
CHANGE OF NAME
SECTION 1. Venue. A person desiring to change his
name shall present the petition to the Regional Trial
Court of the province in which he resides, [or, in the City
of Manila, to the Juvenile and Domestic Relations
Court].
SEC. 2. Contents of petition. A petition for change of
name shall be signed and verified by the person desiring
his name changed, or some other person on his behalf,
and shall set forth:
(a) That the petitioner has been a bona
fide resident of the province where the petition is
filed for at least three (3) years prior to the date
of such filing;
(b) The cause for which the change of the
petitioner's name is sought;
(c) The name asked for.
SEC. 3. Order for hearing. If the petition filed is
sufficient in form and substance, the court, by an order
reciting the purpose of the petition, shall fix a date and
place for the hearing thereof, and shall direct that a copy
of the order be published before the hearing at least once
a week for three (3) successive weeks in some newspaper
of general circulation published in the province, as the
court shall deem best. The date set for the hearing shall
not be within thirty (30) days prior to an election nor
within four (4) months after the last publication of the
notice.
SEC. 4. Hearing. Any interested person may appear at
the hearing and oppose the petition. The Solicitor
General or the proper provincial or city fiscal shall
appear on behalf of the Government of the Republic.
SEC. 5. Judgment. Upon satisfactory proof in open court
on the date fixed in the order that such order has been
published as directed and that the allegations of the
petition are true, the court shall, if proper and reasonable
cause appears for changing the name of the petitioner,
adjudge that such name be changed in accordance with
the prayer of the petition.
SEC. 6. Service of judgment. Judgments or orders
rendered in connection with this rule shall be furnished
the civil registrar of the municipality or city where the
court issuing the same is situated, who shall forthwith
enter the same in the civil register.
Rule 108
CANCELLATION OR CORRECTION OF
ENTRIES
IN THE CIVIL REGISTRY
SECTION 1. Who may file petition. Any person
interested in any act, event, order or decree concerning
the civil status of persons which has been recorded in the
civil register, may file a verified petition for the
cancellation or correction of any entry relating thereto,
with the Regional Trial Court of the province where the
corresponding civil registry is located.
SEC. 2. Entries subject to cancellation or correction.
Upon good and valid grounds, the following entries in
the civil register may be cancelled or corrected: (a)
births; (b) marriages; (c) deaths; (d) legal separations; (e)
judgments of annulments of marriage; (f) judgments
declaring marriages void from the beginning; (g)
legitimations; (h) adoptions; (i) acknowledgments of
natural children; (j) naturalization; (k) election, loss or
recovery of citizenship; (l) civil interdiction; (m) judicial
determination of filiation; (n) voluntary emancipation of
a minor; and (o) changes of name.
SEC. 3. Parties. When cancellation or correction of an
entry in the civil register is sought, the civil registrar and
all persons who have or claim any interest which would
be affected thereby shall be made parties to the
proceeding.
SEC. 4. Notice and publication. Upon the filing of the
petition, the court shall, by an order, fix the time and
place for the hearing of the same, and cause reasonable
notice thereof to be given to the persons named in the
petition. The court shall also cause the order to be
published once a week for three (3) consecutive weeks
in a newspaper of general circulation in the province.
SEC. 5. Opposition. The civil registrar and any person
having or claiming any interest under the entry whose
cancellation or correction is sought may, within fifteen
(15) days from notice of the petition, or from the last date
of publication of such notice, file his opposition thereto.
SEC. 6. Expediting proceedings. The court in which the
proceedings is brought may make orders expediting the
proceedings, and may also grant preliminary injunction
for the preservation of the rights of the parties pending
such proceedings.
SEC. 7. Order. After hearing, the court may either
dismiss the petition or issue an order granting the
cancellation or correction prayed for. In either case, a
certified copy of the judgment shall be served upon the
civil registrar concerned who shall annotate the same in
his record.
The OSG argues that the petition below is fatally defective for
non-compliance with Rules 103 and 108 of the Rules of Court because
respondents petition did not implead the local civil registrar. Section 3,
Rule 108 provides that the civil registrar and all persons who have or
claim any interest which would be affected thereby shall be made parties
to the proceedings. Likewise, the local civil registrar is required to be
made a party in a proceeding for the correction of name in the civil
registry. He is an indispensable party without whom no final
determination of the case can be had.[12] Unless all possible
indispensable parties were duly notified of the proceedings, the same
shall be considered as falling much too short of the requirements of the
rules.[13] The corresponding petition should also implead as respondents
the civil registrar and all other persons who may have or may claim to
have any interest that would be affected thereby.[14] Respondent,
however, invokes Section 6,[15] Rule 1 of the Rules of Court which states
that courts shall construe the Rules liberally to promote their objectives
of securing to the parties a just, speedy and inexpensive disposition of
the matters brought before it. We agree that there is substantial
compliance with Rule 108 when respondent furnished a copy of the
petition to the local civil registrar.
The determination of a persons sex appearing in his birth
certificate is a legal issue and the court must look to the statutes. In
this connection, Article 412 of the Civil Code provides:
ART. 412. No entry in a civil register shall be changed or
corrected without a judicial order.
Together with Article 376[16] of the Civil Code, this provision was
amended by Republic Act No. 9048[17] in so far as clerical or
typographical errors are involved. The correction or change of such
matters can now be made through administrative proceedings and
without the need for a judicial order. In effect, Rep. Act No. 9048 respondent, with this condition produces too much androgen, a male
removed from the ambit of Rule 108 of the Rules of Court the hormone. A newborn who has XX chromosomes coupled with CAH
correction of such errors. Rule 108 now applies only to substantial usually has a (1) swollen clitoris with the urethral opening at the base,
changes and corrections in entries in the civil register.[18] an ambiguous genitalia often appearing more male than female; (2)
normal internal structures of the female reproductive tract such as the
ovaries, uterus and fallopian tubes; as the child grows older, some
Under Rep. Act No. 9048, a correction in the civil registry features start to appear male, such as deepening of the voice, facial hair,
involving the change of sex is not a mere clerical or typographical error. and failure to menstruate at puberty. About 1 in 10,000 to 18,000
It is a substantial change for which the applicable procedure is Rule 108 children are born with CAH.
of the Rules of Court.[19]
CAH is one of many conditions[21] that
The entries envisaged in Article 412 of the Civil Code and involve intersex anatomy. During the twentieth century, medicine
correctable under Rule 108 of the Rules of Court are those provided in adopted the term intersexuality to apply to human beings who cannot be
Articles 407 and 408 of the Civil Code: classified as either male or female.[22] The term is now of widespread
use. According to Wikipedia, intersexuality is the state of a living thing
ART. 407. Acts, events and judicial decrees concerning of a gonochoristic species whose sex chromosomes, genitalia, and/or
the civil status of persons shall be recorded in the civil secondary sex characteristics are determined to be neither exclusively
register. male nor female. An organism with intersex may have biological
characteristics of both male and female sexes.
ART. 408. The following shall be entered in the civil
register: Intersex individuals are treated in different ways by different
cultures. In most societies, intersex individuals have been expected to
(1) Births; (2) marriages; (3) deaths; (4) legal conform to either a male or female gender role.[23] Since the rise of
separations; (5) annulments of marriage; (6) judgments modern medical science in Western societies, some intersex people with
declaring marriages void from the beginning; (7) ambiguous external genitalia have had their genitalia surgically
legitimations; (8) adoptions; (9) acknowledgments of modified to resemble either male or female genitals.[24]More commonly,
natural children; (10) naturalization; (11) loss, or (12) an intersex individual is considered as suffering from a disorder which
recovery of citizenship; (13) civil interdiction; (14) is almost always recommended to be treated, whether by surgery and/or
judicial determination of filiation; (15) voluntary by taking lifetime medication in order to mold the individual as neatly
as possible into the category of either male or female.
emancipation of a minor; and(16) changes of name.

In deciding this case, we consider the compassionate calls for

The acts, events or factual errors contemplated under Article recognition of the various degrees of intersex as variations which should
407 of the Civil Code include even those that occur after birth.[20] not be subject to outright denial. It has been suggested that there is some
middle ground between the sexes, a no-mans land for those individuals
Respondent undisputedly has CAH. This condition causes the who are neither truly male nor truly female.[25] The current state of
early or inappropriate appearance of male characteristics. A person, like Philippine statutes apparently compels that a person be classified either
as a male or as a female, but this Court is not controlled by mere
appearances when nature itself fundamentally negates such rigid
classification.
In the instant case, if we determine respondent to be a female,
then there is no basis for a change in the birth certificate entry for
gender. But if we determine, based on medical testimony and scientific
development
showing the respondent to be other than female, then a change in the
subjects birth certificate entry is in order.
Biologically, nature endowed respondent with a mixed (neither
consistently and categorically female nor consistently and categorically
male) composition. Respondent has female (XX)
chromosomes. However, respondents body system naturally produces
high levels of male hormones (androgen). As a result, respondent has
ambiguous genitalia and the phenotypic features of a male.
Ultimately, we are of the view that where the person is
biologically or naturally intersex the determining factor in his gender
classification would be what the individual, like respondent, having
reached the age of majority, with good reason thinks of his/her
sex. Respondent here thinks of himself as a male and considering that
his body produces high levels of male hormones (androgen) there is
preponderant biological support for considering him as being
male. Sexual development in cases of intersex persons makes the gender
classification at birth inconclusive. It is at maturity that the gender of
such persons, like respondent, is fixed.
Respondent here has simply let nature take its course and has not
taken unnatural steps to arrest or interfere with what he was born
with. And accordingly, he has already ordered his life to that of a
male. Respondent could have undergone treatment and taken steps, like
taking lifelong medication,[26] to force his body into the categorical
mold of a female but he did not. He chose not to do so.Nature has instead
taken its due course in respondents development to reveal more fully his
male characteristics.
In the absence of a law on the matter, the Court will not dictate
on respondent concerning a matter so innately private as ones sexuality
and lifestyle preferences, much less on whether or not to undergo
medical treatment to reverse the male tendency due to CAH. The Court
will not consider respondent as having erred in not choosing to undergo
treatment in order to become or remain as a female. Neither will the
Court force respondent to undergo treatment and to take medication in
order to fit the mold of a female, as society commonly currently knows
this gender of the human species. Respondent is the one who has to live
with his intersex anatomy. To him belongs the human right to the pursuit
of happiness and of health. Thus, to him should belong the primordial
choice of what courses of action to take along the path of his sexual
development and maturation. In the absence of evidence that respondent
is an incompetent[27] and in the absence of evidence to show that
classifying respondent as a male will harm other members of society
who are equally entitled to protection under the law, the Court affirms
as valid and justified the respondents position and his personal judgment
of being a male.
In so ruling we do no more than give respect to (1) the diversity
of nature; and (2) how an individual deals with what nature has handed
out. In other words, we respect respondents congenital condition and his
mature decision to be a male. Life is already difficult for the ordinary
person. We cannot but respect how respondent deals with
his unordinary state and thus help make his life easier, considering the
unique circumstances in this case.
As for respondents change of name under Rule 103, this Court
has held that a change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons adduced and the
consequences that will follow.[28] The trial courts grant of respondents
change of name from Jennifer to Jeff implies a change of a feminine
name to a masculine name. Considering the consequence that
respondents change of name merely recognizes his preferred gender, we
find merit in respondents change of name. Such a change will conform
with the change of the entry in his birth certificate from female to male.
 WHEREFORE, the Republics petition is DENIED. The
Decision dated January 12, 2005 of the Regional Trial Court, Branch 33
of Siniloan, Laguna, is AFFIRMED. No pronouncement as to costs.

SO ORDERED.


SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EDITH SCHLAIN WINDSOR, in her capacity
as executor of the ESTATE OF THEA CLARA SPYER, et al.
June 26, 2013
Justice Kennedy delivered the opinion of the Court.
Two women then resident in New York were married in a lawful ceremony in
Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in
New York City. When Spyer died in 2009, she left her entire estate to Windsor.
Windsor sought to claim the estate tax exemption for surviving spouses. She was
barred from doing so, however, by a federal law, the Defense of Marriage Act, which
excludes a same-sex partner from the definition of “spouse” as that term is used in
federal statutes. Windsor paid the taxes but filed suit to challenge the
constitutionality of this provision. The United States District Court and the Court of
Appeals ruled that this portion of the statute is unconstitutional and ordered the
United States to pay Windsor a refund. This Court granted certiorari and now affirms
the judgment in Windsor’s favor.
I President has concluded that given a number of factors, including a documented
In 1996, as some States were beginning to consider the concept of same-sex
marriage, and before any State had acted to permit it, Congress enacted the Defense
of Marriage Act (DOMA). DOMA contains two operative sections: Section 2, which
has not been challenged here, allows States to refuse to recognize same-sex
marriages performed under the laws of other States. Section 3 is at issue here. It
amends the Dictionary Act in Title 1, §7, of the United States Code to provide a
federal definition of “marriage” and “spouse.” Section 3 of DOMA provides as
follows: “In determining the meaning of any Act of Congress, or of any ruling,
regulation, or interpretation of the various administrative bureaus and agencies of the
United States, the word ‘marriage’ means only a legal union between one man and
one woman as husband and wife, and the word ‘spouse’ refers only to a person of the
opposite sex who is a husband or a wife.”
The definitional provision does not by its terms forbid States from enacting laws
permitting same-sex marriages or civil unions or providing state benefits to residents
in that status. The enactment’s comprehensive definition of marriage for purposes of
all federal statutes and other regulations or directives covered by its terms, however,
does control over 1,000 federal laws in which marital or spousal status is addressed
as a matter of federal law.
Edith Windsor and Thea Spyer met in New York City in 1963 and began a long-term
relationship. Windsor and Spyer registered as domestic partners when New York
City gave that right to same-sex couples in 1993. Concerned about Spyer’s health,
the couple made the 2007 trip to Canada for their marriage, but they continued to
reside in New York City. The State of New York deems their Ontario marriage to be
a valid one.
Spyer died in February 2009, and left her entire estate to Windsor. Because DOMA
denies federal recognition to same-sex spouses, Windsor did not qualify for the
marital exemption from the federal estate tax, which excludes from taxation “any
interest in property which passes or has passed from the decedent to his surviving
spouse.” Windsor paid $363,053 in estate taxes and sought a refund. The Internal
Revenue Service denied the refund, concluding that, under DOMA, Windsor was not
a “surviving spouse.” Windsor commenced this refund suit in the United States
District Court for the Southern District of New York. She contended that DOMA
violates the guarantee of equal protection, as applied to the Federal Government
through the Fifth Amendment.
While the tax refund suit was pending, the Attorney General of the United States
notified the Speaker of the House of Representatives that the Department of Justice
would no longer defend the constitutionality of DOMA’s §3. Noting that “the
Department has previously defended DOMA against . . . challenges involving legally
married same-sex couples,” the Attorney General informed Congress that “the
history of discrimination, classifications based on sexual orientation should be
subject to a heightened standard of scrutiny.”
Although “the President . . . instructed the Department not to defend the statute in
Windsor,” he also decided “that Section 3 will continue to be enforced by the
Executive Branch” and that the United States had an “interest in providing Congress
a full and fair opportunity to participate in the litigation of those cases.” The stated
rationale for this dual-track procedure (determination of unconstitutionality coupled
with ongoing enforcement) was to “recogniz[e] the judiciary as the final arbiter of
the constitutional claims raised.”
In response to the notice from the Attorney General, the Bipartisan Legal Advisory
Group (BLAG) of the House of Representatives voted to intervene in the litigation to
defend the constitutionality of §3 of DOMA. The Department of Justice did not
oppose limited intervention by BLAG....
On the merits of the tax refund suit, the District Court ruled against the United
States. It held that §3 of DOMA is unconstitutional and ordered the Treasury to
refund the tax with interest. Both the Justice Department and BLAG filed notices of
appeal, and the Solicitor General filed a petition for certiorari before judgment.
Before this Court acted on the petition, the Court of Appeals for the Second Circuit
affirmed the District Court’s judgment. It applied heightened scrutiny to
classifications based on sexual orientation, as both the Department and Windsor had
urged. The United States has not complied with the judgment. Windsor has not
received her refund, and the Executive Branch continues to enforce §3 of DOMA.
In granting certiorari on the question of the constitutionality of §3 of DOMA, the
Court requested argument on two additional questions: whether the United States’
agreement with Windsor’s legal position precludes further review and whether
BLAG has standing to appeal the case. All parties agree that the Court has
jurisdiction to decide this case....
II
It is appropriate to begin by addressing whether either the Government or BLAG, or
both of them, were entitled to appeal to the Court of Appeals and later to seek
certiorari and appear as parties here....[The Court finds it has jurisdiction to reach the
merits.]
III
When at first Windsor and Spyer longed to marry, neither New York nor any other
State granted them that right. After waiting some years, in 2007 they traveled to
Ontario to be married there. It seems fair to conclude that, until recent years, many
citizens had not even considered the possibility that two persons of the same sex
might aspire to occupy the same status and dignity as that of a man and woman in
lawful marriage. For marriage between a man and a woman no doubt had been
thought of by most people as essential to the very definition of that term and to its
role and function throughout the history of civilization. That belief, for many who
long have held it, became even more urgent, more cherished when challenged. For
others, however, came the beginnings of a new perspective, a new insight.
Accordingly some States concluded that same-sex marriage ought to be given
recognition and validity in the law for those same-sex couples who wish to define
themselves by their commitment to each other. The limitation of lawful marriage to
heterosexual couples, which for centuries had been deemed both necessary and
fundamental, came to be seen in New York and certain other States as an unjust
exclusion.
Slowly at first and then in rapid course, the laws of New York came to acknowledge
the urgency of this issue for same-sex couples who wanted to affirm their
commitment to one another before their children, their family, their friends, and their
community. And so New York recognized same-sex marriages performed elsewhere;
and then it later amended its own marriage laws to permit same-sex marriage. New
York, in common with, as of this writing, 11 other States and the District of
Columbia, decided that same-sex couples should have the right to marry and so live
with pride in themselves and their union and in a status of equality with all other
married persons....
Against this background of lawful same-sex marriage in some States, the design,
purpose, and effect of DOMA should be considered as the beginning point in
deciding whether it is valid under the Constitution. By history and tradition the
definition and regulation of marriage, as will be discussed in more detail, has been
treated as being within the authority and realm of the separate States....
Though these discrete examples establish the constitutionality of limited federal laws
that regulate the meaning of marriage in order to further federal policy, DOMA has a
far greater reach; for it enacts a directive applicable to over 1,000 federal statutes and
the whole realm of federal regulations.... In order to assess the validity of that
intervention it is necessary to discuss the extent of the state power and authority over
marriage as a matter of history and tradition. State laws defining and regulating
marriage, of course, must respect the constitutional rights of persons, see, e.g.,
Loving v. Virginia (1967) ; but, subject to those guarantees, “regulation of domestic
relations” is “an area that has long been regarded as a virtually exclusive province of
the States.”
Consistent with this allocation of authority, the Federal Government, through our
history, has deferred to state-law policy decisions with respect to domestic
relations....
The significance of state responsibilities for the definition and regulation of marriage
dates to the Nation’s beginning; for “when the Constitution was adopted the common
understanding was that the domestic relations of husband and wife and parent and
child were matters reserved to the States.” Marriage laws vary in some respects from
State to State. For example, the required minimum age is 16 in Vermont, but only 13
in New Hampshire. Likewise the permissible degree of consanguinity can vary
(most States permit first cousins to marry, but a handful—such as Iowa and
Washington—prohibit the practice). But these rules are in every event consistent
within each State.
Against this background DOMA rejects the long-established precept that the
incidents, benefits, and obligations of marriage are uniform for all married couples
within each State, though they may vary, subject to constitutional guarantees, from
one State to the next. Despite these considerations, it is unnecessary to decide
whether this federal intrusion on state power is a violation of the Constitution
because it disrupts the federal balance. The State’s power in defining the marital
relation is of central relevance in this case quite apart from principles of federalism.
Here the State’s decision to give this class of persons the right to marry conferred
upon them a dignity and status of immense import. When the State used its historic
and essential authority to define the marital relation in this way, its role and its power
in making the decision enhanced the recognition, dignity, and protection of the class
in their own community. DOMA, because of its reach and extent, departs from this
history and tradition of reliance on state law to define marriage. Discriminations of
an unusual character especially suggest careful consideration to determine whether
they are obnoxious to the constitutional provision.
The Federal Government uses this state-defined class for the opposite purpose—to
impose restrictions and disabilities. That result requires this Court now to address
whether the resulting injury and indignity is a deprivation of an essential part of the
liberty protected by the Fifth Amendment. What the State of New York treats as
alike the federal law deems unlike by a law designed to injure the same class the
State seeks to protect.
In acting first to recognize and then to allow same-sex marriages, New York was
responding “to the initiative of those who [sought] a voice in shaping the destiny of
their own times.” These actions were without doubt a proper exercise of its sovereign
authority within our federal system, all in the way that the Framers of the
Constitution intended. The dynamics of state government in the federal system are to
allow the formation of consensus respecting the way the members of a discrete
community treat each other in their daily contact and constant interaction with each
other.
The States’ interest in defining and regulating the marital relation, subject to
constitutional guarantees, stems from the understanding that marriage is more than a
routine classification for purposes of certain statutory benefits. Private, consensual
sexual intimacy between two adult persons of the same sex may not be punished by
the State, and it can form “but one element in a personal bond that is more
enduring.” Lawrence v. Texas (2003) . By its recognition of the validity of same-sex
marriages performed in other jurisdictions and then by authorizing same-sex unions
and same-sex marriages, New York sought to give further protection and dignity to
that bond. For same-sex couples who wished to be married, the State acted to give
their lawful conduct a lawful status. This status is a far-reaching legal
acknowledgment of the intimate relationship between two people, a relationship
deemed by the State worthy of dignity in the community equal with all other
marriages. It reflects both the community’s considered perspective on the historical
roots of the institution of marriage and its evolving understanding of the meaning of
equality.
IV
DOMA seeks to injure the very class New York seeks to protect. By doing so it
violates basic due process and equal protection principles applicable to the Federal
Government. The Constitution’s guarantee of equality “must at the very least mean
that a bare congressional desire to harm a politically unpopular group cannot” justify
disparate treatment of that group. . In determining whether a law is motivated by an
improper animus or purpose, discriminations of an unusual character especially
require careful consideration. DOMA cannot survive under these principles. The
responsibility of the States for the regulation of domestic relations is an important
indicator of the substantial societal impact the State’s classifications have in the daily
lives and customs of its people. DOMA’s unusual deviation from the usual tradition
of recognizing and accepting state definitions of marriage here operates to deprive
same-sex couples of the benefits and responsibilities that come with the federal
recognition of their marriages. This is strong evidence of a law having the purpose
and effect of disapproval of that class. The avowed purpose and practical effect of
the law here in question are to impose a disadvantage, a separate status, and so a
stigma upon all who enter into same-sex marriages made lawful by the unquestioned
authority of the States.
The history of DOMA’s enactment and its own text demonstrate that interference
with the equal dignity of same-sex marriages, a dignity conferred by the States in the
exercise of their sovereign power, was more than an incidental effect of the federal
statute. It was its essence. The House Report announced its conclusion that “it is both
appropriate and necessary for Congress to do what it can to defend the institution of
traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the
‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to
homosexual couples is a truly radical proposal that would fundamentally alter the
institution of marriage.” The House concluded that DOMA expresses “both moral
disapproval of homosexuality, and a moral conviction that heterosexuality better
comports with traditional (especially Judeo-Christian) morality.” The stated purpose
of the law was to promote an “interest in protecting the traditional moral teachings
reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-
reaching purpose, the title of the Act confirms it: The Defense of Marriage.
The arguments put forward by BLAG are just as candid about the congressional
purpose to influence or interfere with state sovereign choices about who may be
married. As the title and dynamics of the bill indicate, its purpose is to discourage
enactment of state same-sex marriage laws and to restrict the freedom and choice of
couples married under those laws if they are enacted. The congressional goal was “to
put a thumb on the scales and influence a state’s decision as to how to shape its own
marriage laws.” The Act’s demonstrated purpose is to ensure that if any State
decides to recognize same-sex marriages, those unions will be treated as second-
class marriages for purposes of federal law. This raises a most serious question under
the Constitution’s Fifth Amendment.
DOMA’s operation in practice confirms this purpose. When New York adopted a
law to permit same-sex marriage, it sought to eliminate inequality; but DOMA
frustrates that objective through a system-wide enactment with no identified
connection to any particular area of federal law. DOMA writes inequality into the
entire United States Code. The particular case at hand concerns the estate tax, but
DOMA is more than a simple determination of what should or should not be allowed
as an estate tax refund. Among the over 1,000 statutes and numerous federal
regulations that DOMA controls are laws pertaining to Social Security, housing,
taxes, criminal sanctions, copyright, and veterans’ benefits.
DOMA’s principal effect is to identify a subset of state-sanctioned marriages and
make them unequal. The principal purpose is to impose inequality, not for other
reasons like governmental efficiency. Responsibilities, as well as rights, enhance the
dignity and integrity of the person. And DOMA contrives to deprive some couples
married under the laws of their State, but not other couples, of both rights and
responsibilities. By creating two contradictory marriage regimes within the same
State, DOMA forces same-sex couples to live as married for the purpose of state law
but unmarried for the purpose of federal law, thus diminishing the stability and
predictability of basic personal relations the State has found it proper to acknowledge
and protect. By this dynamic DOMA undermines both the public and private
significance of state-sanctioned same-sex marriages; for it tells those couples, and all
the world, that their otherwise valid marriages are unworthy of federal recognition.
This places same-sex couples in an unstable position of being in a second-tier
marriage. The differentiation demeans the couple, whose moral and sexual choices
the Constitution protects, and whose relationship the State has sought to dignify. And
it humiliates tens of thousands of children now being raised by same-sex couples.
The law in question makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with other families in
their community and in their daily lives.
Under DOMA, same-sex married couples have their lives burdened, by reason of
government decree, in visible and public ways. By its great reach, DOMA touches
many aspects of married and family life, from the mundane to the profound. It
prevents same-sex married couples from obtaining government healthcare benefits
they would otherwise receive. It deprives them of the Bankruptcy Code’s special
protections for domestic-support obligations. It forces them to follow a complicated
procedure to file their state and federal taxes jointly.
For certain married couples, DOMA’s unequal effects are even more serious. The
federal penal code makes it a crime to “assault, kidnap, or murder . . . a member of
the immediate family” of “a United States official, a United States judge, or a
Federal law enforcement officer,” with the intent to influence or retaliate against that
official. Although a “spouse” qualifies as a member of the officer’s “immediate
family,” DOMA makes this protection inapplicable to same-sex spouses.
DOMA also brings financial harm to children of same-sex couples. It raises the cost
of health care for families by taxing health benefits provided by employers to their
workers’ same-sex spouses. And it denies or reduces benefits allowed to families
upon the loss of a spouse and parent, benefits that are an integral part of family
security....
The power the Constitution grants it also restrains. And though Congress has great
authority to design laws to fit its own conception of sound national policy, it cannot
deny the liberty protected by the Due Process Clause of the Fifth Amendment.
What has been explained to this point should more than suffice to establish that the
principal purpose and the necessary effect of this law are to demean those persons
who are in a lawful same-sex marriage. This requires the Court to hold, as it now
does, that DOMA is unconstitutional as a deprivation of the liberty of the person
protected by the Fifth Amendment of the Constitution.
The liberty protected by the Fifth Amendment’s Due Process Clause contains within
it the prohibition against denying to any person the equal protection of the laws.
While the Fifth Amendment itself withdraws from Government the power to degrade
or demean in the way this law does, the equal protection guarantee of the Fourteenth
Amendment makes that Fifth Amendment right all the more specific and all the
better understood and preserved.
The class to which DOMA directs its restrictions and restraints are those persons
who are joined in same-sex marriages made lawful by the State. DOMA singles out a
class of persons deemed by a State entitled to recognition and protection to enhance
their own liberty. It imposes a disability on the class by refusing to acknowledge a
status the State finds to be dignified and proper. DOMA instructs all federal officials,
and indeed all persons with whom same-sex couples interact, including their own
children, that their marriage is less worthy than the marriages of others. The federal
statute is invalid, for no legitimate purpose overcomes the purpose and effect to
disparage and to injure those whom the State, by its marriage laws, sought to protect
in personhood and dignity. By seeking to displace this protection and treating those
persons as living in marriages less respected than others, the federal statute is in
violation of the Fifth Amendment. This opinion and its holding are confined to those
lawful marriages.
Chief Justice Roberts, dissenting.
I agree with Justice Scalia that this Court lacks jurisdiction to review the decisions of
the courts below. On the merits of the constitutional dispute the Court decides to
decide, I also agree with Justice Scalia that Congress acted constitutionally in
passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability
amply justified Congress’s decision to retain the definition of marriage that, at that
point, had been adopted by every State in our Nation, and every nation in the
world....
Justice Scalia, with whom Justice Thomas joins, and with whom The Chief Justice
joins as to Part I, dissenting.
This case is about power in several respects. It is about the power of our people to
govern themselves, and the power of this Court to pronounce the law. Today’s
opinion aggrandizes the latter, with the predictable consequence of diminishing the
former. We have no power to decide this case. And even if we did, we have no
power under the Constitution to invalidate this democratically adopted legislation.
The Court’s errors on both points spring forth from the same diseased root: an
exalted conception of the role of this institution in America....
The Court is eager—hungry—to tell everyone its view of the legal question at the
heart of this case. Standing in the way is an obstacle, a technicality of little interest to
anyone but the people of We the People, who created it as a barrier against judges’
intrusion into their lives. They gave judges, in Article III, only the “judicial Power,”
a power to decide not abstract questions but real, concrete “Cases” and
“Controversies.” Yet the plaintiff and the Government agree entirely on what should
happen in this lawsuit. They agree that the court below got it right; and they agreed
in the court below that the court below that one got it right as well. What, then, are
we doing here?....
In the majority’s telling, this story is black-and-white: Hate your neighbor or come
along with us. The truth is more complicated. It is hard to admit that one’s political
opponents are not monsters, especially in a struggle like this one, and the challenge
in the end proves more than today’s Court can handle. Too bad. A reminder that
disagreement over something so fundamental as marriage can still be politically
legitimate would have been a fit task for what in earlier times was called the judicial
temperament. We might have covered ourselves with honor today, by promising all
sides of this debate that it was theirs to settle and that we would respect their
resolution. We might have let the People decide.

For the reasons above, I think that this Court has, and the Court of Appeals had, no
power to decide this suit. We should vacate the decision below and remand to the
Court of Appeals for the Second Circuit, with instructions to dismiss the appeal.
Given that the majority has volunteered its view of the merits, however, I proceed to
discuss that as well.
But that the majority will not do. Some will rejoice in today’s decision, and some
will despair at it; that is the nature of a controversy that matters so much to so many.
But the Court has cheated both sides, robbing the winners of an honest victory, and
the losers of the peace that comes from a fair defeat. We owed both of them better. I
dissent.

There are many remarkable things about the majority’s merits holding. The first is
how rootless and shifting its justifications are. For example, the opinion starts with
seven full pages about the traditional power of States to define domestic relations—
initially fooling many readers, I am sure, into thinking that this is a federalism
opinion. But we are eventually told that “it is unnecessary to decide whether this
federal intrusion on state power is a violation of the Constitution,” and that “[t]he
State’s power in defining the marital relation is of central relevance in this case quite
apart from principles of federalism” because “the State’s decision to give this class
of persons the right to marry conferred upon them a dignity and status of immense
import.” But no one questions the power of the States to define marriage (with the
concomitant conferral of dignity and status), so what is the point of devoting seven
pages to describing how long and well established that power is? Even after the
opinion has formally disclaimed reliance upon principles of federalism, mentions of
“the usual tradition of recognizing and accepting state definitions of marriage”
continue. What to make of this? The opinion never explains. My guess is that the
majority, while reluctant to suggest that defining the meaning of “marriage” in
federal statutes is unsupported by any of the Federal Government’s enumerated
powers, nonetheless needs some rhetorical basis to support its pretense that today’s
prohibition of laws excluding same-sex marriage is confined to the Federal
Government (leaving the second, state-law shoe to be dropped later, maybe next
Term). But I am only guessing....

Few public controversies touch an institution so central to the lives of so many, and
few inspire such attendant passion by good people on all sides. Few public
controversies will ever demonstrate so vividly the beauty of what our Framers gave
us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system
of government that permits us to rule ourselves. Since DOMA’s passage, citizens on
all sides of the question have seen victories and they have seen defeats. There have
been plebiscites, legislation, persuasion, and loud voices—in other words,
democracy. Victories in one place for some are offset by victories in other places for
others...
 Republic of the Philippines
Supreme Court The Case
Manila
This case comes before us via Petition for Review
on Certiorari[1] under Rule 45 of the Rules of Court. The petitioner
SECOND DIVISION seeks that we vacate and set aside the Order[2] dated January 8, 2007 of
the Regional Trial Court (RTC), Branch 1, Butuan City. In lieu of the
BRIGIDO B. QUIAO, G.R. No 176556 said order, we are asked to issue a Resolution defining the net profits
Petitioner, subject of the forfeiture as a result of the decree of legal separation in
Present: accordance with the provision of Article 102(4) of the Family Code, or
alternatively, in accordance with the provisions of Article 176 of the
CARPIO, J., Chairperson, Civil Code.
- versus - BRION,
PEREZ, Antecedent Facts
SERENO, and
REYES, JJ. On October 26, 2000, herein respondent Rita C. Quiao (Rita)
RITA C. QUIAO, KITCHIE C. filed a complaint for legal separation against herein petitioner Brigido
QUIAO, LOTIS C. QUIAO, B. Quiao (Brigido).[3] Subsequently, the RTC rendered a
PETCHIE C. QUIAO, Promulgated: Decision[4] dated October 10, 2005, the dispositive portion of which
represented by their mother July 4, 2012 provides:
RITA QUIAO,
Respondents. WHEREFORE, viewed from the foregoing
x------------------------------------------------------------------------------------ considerations, judgment is hereby rendered declaring
-----x the legal separation of plaintiff Rita C. Quiao and
defendant-respondent Brigido B. Quiao pursuant to
DECISION Article 55.

REYES, J.: As such, the herein parties shall be entitled to live

The family is the basic and the most important institution of
society. It is in the family where children are born and molded either to
become useful citizens of the country or troublemakers in the
community. Thus, we are saddened when parents have to separate and
fight over properties, without regard to the message they send to their
children. Notwithstanding this, we must not shirk from our obligation
to rule on this case involving legal separation escalating to questions on
dissolution and partition of properties.
separately from each other, but the marriage bond shall
not be severed.
Except for Letecia C. Quiao who is of legal age,
the three minor children, namely, Kitchie, Lotis and
Petchie, all surnamed Quiao shall remain under the
custody of the plaintiff who is the innocent spouse.
Further, except for the personal and real
properties already foreclosed by the RCBC, all the
remaining properties, namely:

1. coffee mill in Balongagan, Las Nieves,
Agusan del Norte;
2. coffee mill in Durian, Las Nieves, Agusan
del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan
del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square
meters located in Tungao, Butuan City;
6. a parcel of agricultural land with an area of
5 hectares located in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square
meters located in Tungao, Butuan City;
8. Bashier Bon Factory located in
Tungao, Butuan City;
shall be divided equally between herein [respondents]
and [petitioner] subject to the respective legitimes of the
children and the payment of the unpaid conjugal
liabilities of [P]45,740.00.
[Petitioners] share, however, of the net profits
earned by the conjugal partnership is forfeited in favor
of the common children.
He is further ordered to reimburse [respondents]
the sum of [P]19,000.00 as attorney's fees and litigation
expenses of [P]5,000.00[.]
[5]
SO ORDERED.
Neither party filed a motion for reconsideration and appeal
within the period provided for under Section 17(a) and (b) of the Rule
on Legal Separation.[6]
On December 12, 2005, the respondents filed a motion for
execution[7] which the trial court granted in its Order dated December
16, 2005, the dispositive portion of which reads:
Wherefore, finding the motion to be well taken,
the same is hereby granted. Let a writ of execution be
issued for the immediate enforcement of the Judgment.
SO ORDERED.[8]
Subsequently, on February 10, 2006, the RTC issued a Writ of
Execution[9] which reads as follows:
NOW THEREFORE, that of the goods and
chattels of the [petitioner] BRIGIDO B. QUIAO you
cause to be made the sums stated in the afore-quoted
DECISION [sic], together with your lawful fees in the
service of this Writ, all in the Philippine Currency.
But if sufficient personal property cannot be
found whereof to satisfy this execution and your lawful
fees, then we command you that of the lands and
buildings of the said [petitioner], you make the said sums
in the manner required by law. You are enjoined to
strictly observed Section 9, Rule 39, Rule [sic] of the
1997 Rules of Civil Procedure.
You are hereby ordered to make a return of the
said proceedings immediately after the judgment has
been satisfied in part or in full in consonance with
Section 14, Rule 39 of the 1997 Rules of Civil Procedure,
as amended.[10]
On July 6, 2006, the writ was partially executed with the
petitioner paying the respondents the amount of P46,870.00,
representing the following payments:

(a) P22,870.00 as petitioner's share of the payment of the
conjugal share;
(b) P19,000.00 as attorney's fees; and
(c) P5,000.00 as litigation expenses.[11]
On July 7, 2006, or after more than nine months from the
promulgation of the Decision, the petitioner filed before the RTC a
Motion for Clarification,[12] asking the RTC to define the term Net
Profits Earned.
To resolve the petitioner's Motion for Clarification, the RTC
issued an Order[13] dated August 31, 2006, which held that the phrase
NET PROFIT EARNED denotes the remainder of the properties of the
parties after deducting the separate properties of each [of the] spouse
and the debts.[14] The Order further held that after determining the
remainder of the properties, it shall be forfeited in favor of the common
children because the offending spouse does not have any right to any
share of the net profits earned, pursuant to Articles 63, No. (2) and 43,
No. (2) of the Family Code.[15] The dispositive portion of the Order
states:
WHEREFORE, there is no blatant disparity
when the sheriff intends to forfeit all the remaining
properties after deducting the payments of the debts for
only separate properties of the defendant-respondent
shall be delivered to him which he has none.
The Sheriff is herein directed to proceed with the
execution of the Decision.
IT IS SO ORDERED.[16]
Not satisfied with the trial court's Order, the petitioner filed a
Motion for Reconsideration[17] on September 8, 2006. Consequently, the
RTC issued another Order[18] dated November 8, 2006, holding that
although the Decision dated October 10, 2005 has become final and
executory, it may still consider the Motion for Clarification because the
petitioner simply wanted to clarify the meaning of net profit
earned.[19] Furthermore, the same Order held:
ALL TOLD, the Court Order dated August 31,
2006 is hereby ordered set aside. NET PROFIT
EARNED, which is subject of forfeiture in favor of [the]
parties' common children, is ordered to be computed in
accordance [with] par. 4 of Article 102 of the Family
Code.[20]
On November 21, 2006, the respondents filed a Motion for
Reconsideration,[21] praying for the correction and reversal of the Order
dated November 8, 2006. Thereafter, on January 8, 2007,[22] the trial
court had changed its ruling again and granted the respondents' Motion
for Reconsideration whereby the Order dated November 8, 2006 was set
aside to reinstate the Order dated August 31, 2006.
Not satisfied with the trial court's Order, the petitioner filed on
February 27, 2007 this instant Petition for Review under Rule 45 of the
Rules of Court, raising the following:
Issues
I
IS THE DISSOLUTION AND THE CONSEQUENT
LIQUIDATION OF THE COMMON PROPERTIES OF
THE HUSBAND AND WIFE BY VIRTUE OF THE
DECREE OF LEGAL SEPARATION GOVERNED BY
ARTICLE 125 (SIC) OF THE FAMILY CODE?
II
WHAT IS THE MEANING OF THE NET PROFITS
EARNED BY THE CONJUGAL PARTNERSHIP FOR
PURPOSES OF EFFECTING THE FORFEITURE
AUTHORIZED UNDER ARTICLE 63 OF THE
FAMILY CODE?
 III
Section 3, Rule 41 of the Rules of Court provides:
WHAT LAW GOVERNS THE PROPERTY
RELATIONS BETWEEN THE HUSBAND AND Section 3. Period of ordinary appeal. - The
WIFE WHO GOT MARRIED IN 1977? CAN THE appeal shall be taken within fifteen (15) days from notice
FAMILY CODE OF THE PHILIPPINES BE GIVEN of the judgment or final order appealed from. Where a
RETROACTIVE EFFECT FOR PURPOSES OF record on appeal is required, the appellant shall file a
DETERMINING THE NET PROFITS SUBJECT OF notice of appeal and a record on appeal within thirty (30)
FORFEITURE AS A RESULT OF THE DECREE OF days from notice of the judgment or final order.
LEGAL SEPARATION WITHOUT IMPAIRING
VESTED RIGHTS ALREADY ACQUIRED UNDER The period of appeal shall be interrupted by a timely
THE CIVIL CODE? motion for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
IV reconsideration shall be allowed.

WHAT PROPERTIES SHALL BE INCLUDED IN

THE FORFEITURE OF THE SHARE OF THE In Neypes v. Court of Appeals,[25] we clarified that to standardize
GUILTY SPOUSE IN THE NET CONJUGAL the appeal periods provided in the Rules and to afford litigants fair
PARTNERSHIP AS A RESULT OF THE ISSUANCE opportunity to appeal their cases, we held that it would be practical to
OF THE DECREE OF LEGAL SEPARATION?[23] allow a fresh period of 15 days within which to file the notice of appeal
in the RTC, counted from receipt of the order dismissing a motion for a
new trial or motion for reconsideration.[26]
Our Ruling
In Neypes, we explained that the "fresh period rule" shall also
While the petitioner has raised a number of issues on the apply to Rule 40 governing appeals from the Municipal Trial Courts to
applicability of certain laws, we are well-aware that the respondents the RTCs; Rule 42 on petitions for review from the RTCs to the Court
have called our attention to the fact that the Decision dated October 10, of Appeals (CA); Rule 43 on appeals from quasi-judicial agencies to the
2005 has attained finality when the Motion for Clarification was CA and Rule 45 governing appeals by certiorari to the Supreme
filed.[24] Thus, we are constrained to resolve first the issue of the finality Court. We also said, The new rule aims to regiment or make the appeal
of the Decision dated October 10, 2005 and subsequently discuss the period uniform, to be counted from receipt of the order denying the
matters that we can clarify. motion for new trial, motion for reconsideration (whether full or partial)
or any final order or resolution.[27] In other words, a party litigant may
The Decision dated file his notice of appeal within a fresh 15-day period from his receipt of
October 10, 2005 has the trial court's decision or final order denying his motion for new trial
become final and or motion for reconsideration. Failure to avail of the fresh 15-day period
executory at the time the from the denial of the motion for reconsideration makes the decision or
Motion for Clarification final order in question final and executory.
was filed on July 7, 2006.
 In the case at bar, the trial court rendered its Decision on October
10, 2005. The petitioner neither filed a motion for reconsideration nor a
notice of appeal. On December 16, 2005, or after 67 days had lapsed,
the trial court issued an order granting the respondent's motion for
execution; and on February 10, 2006, or after 123 days had lapsed, the
trial court issued a writ of execution. Finally, when the writ had already
been partially executed, the petitioner, on July 7, 2006 or after 270 days
had lapsed, filed his Motion for Clarification on the definition of the net
profits earned. From the foregoing, the petitioner had clearly slept on
his right to question the RTCs Decision dated October 10, 2005. For 270
days, the petitioner never raised a single issue until the decision had
already been partially executed. Thus at the time the petitioner filed his
motion for clarification, the trial courts decision has become final and
executory. A judgment becomes final and executory when the
reglementary period to appeal lapses and no appeal is perfected within
such period. Consequently, no court, not even this Court, can arrogate
unto itself appellate jurisdiction to review a case or modify a judgment
that became final.[28]
The petitioner argues that the decision he is questioning is a void
judgment. Being such, the petitioner's thesis is that it can still be
disturbed even after 270 days had lapsed from the issuance of the
decision to the filing of the motion for clarification. He said that a void
judgment is no judgment at all. It never attains finality and cannot be a
source of any right nor any obligation.[29] But what precisely is a void
judgment in our jurisdiction? When does a judgment becomes void?
A judgment is null and void when the court which rendered it
had no power to grant the relief or no jurisdiction over the subject matter
or over the parties or both.[30] In other words, a court, which does not
have the power to decide a case or that has no jurisdiction over the
subject matter or the parties, will issue a void judgment or a coram non
judice.[31]
The questioned judgment does not fall within the purview of a
void judgment. For sure, the trial court has jurisdiction over a case
involving legal separation. Republic Act (R.A.) No. 8369 confers upon
an RTC, designated as the Family Court of a city, the exclusive original
jurisdiction to hear and decide, among others, complaints or petitions
relating to marital status and property relations of the husband and wife
or those living together.[32] The Rule on Legal Separation[33] provides
that the petition [for legal separation] shall be filed in the Family Court
of the province or city where the petitioner or the respondent has been
residing for at least six months prior to the date of filing or in the case
of a non-resident respondent, where he may be found in the Philippines,
at the election of the petitioner.[34] In the instant case, herein respondent
Rita is found to reside in Tungao, Butuan City for more than six months
prior to the date of filing of the petition; thus, the RTC, clearly has
jurisdiction over the respondent's petition below. Furthermore, the RTC
also acquired jurisdiction over the persons of both parties, considering
that summons and a copy of the complaint with its annexes were served
upon the herein petitioner on December 14, 2000 and that the herein
petitioner filed his Answer to the Complaint on January 9,
2001.[35] Thus, without doubt, the RTC, which has rendered the
questioned judgment, has jurisdiction over the complaint and the
persons of the parties.
From the aforecited facts, the questioned October 10, 2005
judgment of the trial court is clearly not void ab initio, since it was
rendered within the ambit of the court's jurisdiction. Being such, the
same cannot anymore be disturbed, even if the modification is meant to
correct what may be considered an erroneous conclusion of fact or
law.[36] In fact, we have ruled that for [as] long as the public respondent
acted with jurisdiction, any error committed by him or it in the exercise
thereof will amount to nothing more than an error of judgment which
may be reviewed or corrected only by appeal.[37] Granting without
admitting that the RTC's judgment dated October 10, 2005 was
erroneous, the petitioner's remedy should be an appeal filed within the
reglementary period.Unfortunately, the petitioner failed to do this. He
has already lost the chance to question the trial court's decision, which
has become immutable and unalterable. What we can only do is to
clarify the very question raised below and nothing more.
For our convenience, the following matters cannot anymore be
disturbed since the October 10, 2005 judgment has already become
immutable and unalterable, to wit:
 (a) The finding that the petitioner is the offending spouse since
he cohabited with a woman who is not his wife;[38]
(b) The trial court's grant of the petition for legal separation of
respondent Rita;[39]
(c) The dissolution and liquidation of the conjugal
partnership;[40]
(d) The forfeiture of the petitioner's right to any share of the net
profits earned by the conjugal partnership;[41]
(e) The award to the innocent spouse of the minor children's
custody;[42]
(f) The disqualification of the offending spouse from inheriting
from the innocent spouse by intestate succession;[43]
(g) The revocation of provisions in favor of the offending spouse
made in the will of the innocent spouse;[44]
(h) The holding that the property relation of the parties is
conjugal partnership of gains and pursuant to Article 116 of the Family
Code, all properties acquired during the marriage, whether acquired by
one or both spouses, is presumed to be conjugal unless the contrary is
proved;[45]
(i) The finding that the spouses acquired their real and personal
properties while they were living together;[46]
(j) The list of properties which Rizal Commercial Banking
Corporation (RCBC) foreclosed;[47]
(k) The list of the remaining properties of the couple which must
be dissolved and liquidated and the fact that respondent Rita was the
one who took charge of the administration of these properties;[48]
(l) The holding that the conjugal partnership shall be liable to
matters included under Article 121 of the Family Code and the conjugal
liabilities totaling P503,862.10 shall be charged to the income generated
by these properties;[49]
(m) The fact that the trial court had no way of knowing whether
the petitioner had separate properties which can satisfy his share for the
support of the family;[50]
(n) The holding that the applicable law in this case is Article
129(7);[51]
(o) The ruling that the remaining properties not subject to any
encumbrance shall therefore be divided equally between the petitioner
and the respondent without prejudice to the children's legitime;[52]
(p) The holding that the petitioner's share of the net profits
earned by the conjugal partnership is forfeited in favor of the common
children;[53] and
(q) The order to the petitioner to reimburse the respondents the
sum of P19,000.00 as attorney's fees and litigation expenses
of P5,000.00.[54]
After discussing lengthily the immutability of the Decision dated
October 10, 2005, we will discuss the following issues for the
enlightenment of the parties and the public at large.
Article 129 of the Family
Code applies to the
present case since the
parties' property
relation is governed by
the system of relative
community or conjugal
partnership of gains.
The petitioner claims that the court a quo is wrong when it
applied Article 129 of the Family Code, instead of Article 102. He
confusingly argues that Article 102 applies because there is no other
provision under the Family Code which defines net profits earned
subject of forfeiture as a result of legal separation.
Offhand, the trial court's Decision dated October 10, 2005 held
that Article 129(7) of the Family Code applies in this case. We agree
with the trial court's holding.
First, let us determine what governs the couple's property
relation. From the record, we can deduce that the petitioner and the
respondent tied the marital knot on January 6, 1977. Since at the time of
the exchange of marital vows, the operative law was the Civil Code of
the Philippines (R.A. No. 386) and since they did not agree on a
marriage settlement, the property relations between the petitioner and
the respondent is the system of relative community or conjugal
partnership of gains.[55] Article 119 of the Civil Code provides:
Art. 119. The future spouses may in the marriage
settlements agree upon absolute or relative community
of property, or upon complete separation of property, or
upon any other regime. In the absence of marriage
settlements, or when the same are void, the system of
relative community or conjugal partnership of gains as
established in this Code, shall govern the property
relations between husband and wife.
Thus, from the foregoing facts and law, it is clear that what
governs the property relations of the petitioner and of the respondent is
conjugal partnership of gains. And under this property relation, the
husband and the wife place in a common fund the fruits of their separate
property and the income from their work or industry.[56] The husband
and wife also own in common all the property of the conjugal
partnership of gains.[57]
Second, since at the time of the dissolution of the petitioner and
the respondent's marriage the operative law is already the Family Code,
the same applies in the instant case and the applicable law in so far as
the liquidation of the conjugal partnership assets and liabilities is
concerned is Article 129 of the Family Code in relation to Article 63(2)
of the Family Code. The latter provision is applicable because according
to Article 256 of the Family Code [t]his Code shall have retroactive
effect insofar as it does not prejudice or impair vested or acquired rights
in accordance with the Civil Code or other law.[58]
Now, the petitioner asks: Was his vested right over half of the
common properties of the conjugal partnership violated when the trial
court forfeited them in favor of his children pursuant to Articles 63(2)
and 129 of the Family Code?
We respond in the negative.
Indeed, the petitioner claims that his vested rights have been
impaired, arguing: As earlier adverted to, the petitioner acquired vested
rights over half of the conjugal properties, the same being owned in
common by the spouses. If the provisions of the Family Code are to be
given retroactive application to the point of authorizing the forfeiture of
the petitioner's share in the net remainder of the conjugal partnership
properties, the same impairs his rights acquired prior to the effectivity
of the Family Code.[59] In other words, the petitioner is saying that since
the property relations between the spouses is governed by the regime of
Conjugal Partnership of Gains under the Civil Code, the petitioner
acquired vested rights over half of the properties of the Conjugal
Partnership of Gains, pursuant to Article 143 of the Civil Code, which
provides: All property of the conjugal partnership of gains is owned in
common by the husband and wife.[60] Thus, since he is one of the owners
of the properties covered by the conjugal partnership of gains, he has a
vested right over half of the said properties, even after the promulgation
of the Family Code; and he insisted that no provision under the Family
Code may deprive him of this vested right by virtue of Article 256 of
the Family Code which prohibits retroactive application of the Family
Code when it will prejudice a person's vested right.
However, the petitioner's claim of vested right is not one which
is written on stone. In Go, Jr. v. Court of Appeals,[61] we define and
explained vested right in the following manner:
 A vested right is one whose existence, effectivity
and extent do not depend upon events foreign to the will
of the holder, or to the exercise of which no obstacle
exists, and which is immediate and perfect in itself and
not dependent upon a contingency. The term vested right
expresses the concept of present fixed interest which, in
right reason and natural justice, should be protected
against arbitrary State action, or an innately just and
imperative right which enlightened free society,
sensitive to inherent and irrefragable individual rights,
cannot deny.
To be vested, a right must have become a
titlelegal or equitableto the present or future enjoyment
of property.[62] (Citations omitted)
In our en banc Resolution dated October 18, 2005
for ABAKADA Guro Party List Officer Samson S. Alcantara, et al. v.
The Hon. Executive Secretary Eduardo R. Ermita,[63] we also explained:
The concept of vested right is a consequence of
the constitutional guaranty of due process that
expresses a present fixed interest which in right reason
and natural justice is protected against arbitrary state
action; it includes not only legal or equitable title to the
enforcement of a demand but also exemptions from new
obligations created after the right has become
vested. Rights are considered vested when the right to
enjoyment is a present interest, absolute, unconditional,
and perfect or fixed and irrefutable.[64] (Emphasis and
underscoring supplied)
From the foregoing, it is clear that while one may not be
deprived of his vested right, he may lose the same if there is due process
and such deprivation is founded in law and jurisprudence.
In the present case, the petitioner was accorded his right to due
process. First, he was well-aware that the respondent prayed in her
complaint that all of the conjugal properties be awarded to her.[65] In
fact, in his Answer, the petitioner prayed that the trial court divide the
community assets between the petitioner and the respondent as
circumstances and evidence warrant after the accounting and inventory
of all the community properties of the parties.[66] Second, when the
Decision dated October 10, 2005 was promulgated, the petitioner never
questioned the trial court's ruling forfeiting what the trial court termed
as net profits, pursuant to Article 129(7) of the Family Code.[67] Thus,
the petitioner cannot claim being deprived of his right to due process.
Furthermore, we take note that the alleged deprivation of the
petitioner's vested right is one founded, not only in the provisions of the
Family Code, but in Article 176 of the Civil Code. This provision is like
Articles 63 and 129 of the Family Code on the forfeiture of the guilty
spouse's share in the conjugal partnership profits. The said provision
says:
Art. 176. In case of legal separation, the guilty
spouse shall forfeit his or her share of the conjugal
partnership profits, which shall be awarded to the
children of both, and the children of the guilty spouse
had by a prior marriage. However, if the conjugal
partnership property came mostly or entirely from the
work or industry, or from the wages and salaries, or from
the fruits of the separate property of the guilty spouse,
this forfeiture shall not apply.
In case there are no children, the innocent spouse
shall be entitled to all the net profits.
From the foregoing, the petitioner's claim of a vested right has
no basis considering that even under Article 176 of the Civil Code, his
share of the conjugal partnership profits may be forfeited if he is the
guilty party in a legal separation case. Thus, after trial and after the
petitioner was given the chance to present his evidence, the petitioner's
vested right claim may in fact be set aside under the Civil Code since
the trial court found him the guilty party.
More, in Abalos v. Dr. Macatangay, Jr.,[68] we reiterated our
long-standing ruling that:
[P]rior to the liquidation of the conjugal partnership, the
interest of each spouse in the conjugal assets is inchoate,
a mere expectancy, which constitutes neither a legal nor
an equitable estate, and does not ripen into title until it
appears that there are assets in the community as a result
of the liquidation and settlement. The interest of each
spouse is limited to the net remainder or remanente
liquido (haber ganancial) resulting from the liquidation
of the affairs of the partnership after its
dissolution. Thus, the right of the husband or wife to one-
half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal partnership,
or after dissolution of the marriage, when it is finally
determined that, after settlement of conjugal obligations,
there are net assets left which can be divided between the
spouses or their respective heirs.[69] (Citations omitted)
Finally, as earlier discussed, the trial court has already decided
in its Decision dated October 10, 2005 that the applicable law in this
case is Article 129(7) of the Family Code.[70] The petitioner did not file
a motion for reconsideration nor a notice of appeal. Thus, the petitioner
is now precluded from questioning the trial court's decision since it has
become final and executory. The doctrine of immutability and
unalterability of a final judgment prevents us from disturbing the
Decision dated October 10, 2005 because final and executory decisions
can no longer be reviewed nor reversed by this Court.[71]
From the above discussions, Article 129 of the Family Code
clearly applies to the present case since the parties' property relation is
governed by the system of relative community or conjugal partnership
of gains and since the trial court's Decision has attained finality and
immutability.
The net profits of the
conjugal partnership of
gains are all the fruits of
the separate properties
of the spouses and the
products of their labor
and industry.
The petitioner inquires from us the meaning of net profits earned
by the conjugal partnership for purposes of effecting the forfeiture
authorized under Article 63 of the Family Code. He insists that since
there is no other provision under the Family Code, which defines net
profits earned subject of forfeiture as a result of legal separation, then
Article 102 of the Family Code applies.
What does Article 102 of the Family Code say? Is the
computation of net profits earned in the conjugal partnership of gains
the same with the computation of net profits earned in the absolute
community?
Now, we clarify.
First and foremost, we must distinguish between the applicable
law as to the property relations between the parties and the applicable
law as to the definition of net profits. As earlier discussed, Article 129
of the Family Code applies as to the property relations of the parties. In
other words, the computation and the succession of events will follow
the provisions under Article 129 of the said Code. Moreover, as to the
definition of net profits, we cannot but refer to Article 102(4) of the
Family Code, since it expressly provides that for purposes of computing
the net profits subject to forfeiture under Article 43, No. (2) and Article
63, No. (2), Article 102(4) applies. In this provision, net profits shall be
the increase in value between the market value of the community
property at the time of the celebration of the marriage and the market
value at the time of its dissolution.[72] Thus, without any iota of doubt,
Article 102(4) applies to both the dissolution of the absolute community
regime under Article 102 of the Family Code, and to the dissolution of
the conjugal partnership regime under Article 129 of the Family Code.
Where lies the difference? As earlier shown, the difference lies in the
processes used under the dissolution of the absolute community regime
under Article 102 of the Family Code, and in the processes used under
the dissolution of the conjugal partnership regime under Article 129 of
the Family Code.
Let us now discuss the difference in the processes between the
absolute community regime and the conjugal partnership regime.
On Absolute Community Regime:
When a couple enters into a regime of absolute community, the
husband and the wife becomes joint owners of all the properties of the
marriage. Whatever property each spouse brings into the marriage, and
those acquired during the marriage (except those excluded under Article
92 of the Family Code) form the common mass of the couple's
properties. And when the couple's marriage or community is dissolved,
that common mass is divided between the spouses, or their respective
heirs, equally or in the proportion the parties have established,
irrespective of the value each one may have originally owned.[73]
Under Article 102 of the Family Code, upon dissolution of
marriage, an inventory is prepared, listing separately all the properties
of the absolute community and the exclusive properties of each; then the
debts and obligations of the absolute community are paid out of the
absolute community's assets and if the community's properties are
insufficient, the separate properties of each of the couple will be
solidarily liable for the unpaid balance. Whatever is left of the separate
properties will be delivered to each of them. The net remainder of the
absolute community is its net assets, which shall be divided between the
husband and the wife; and for purposes of computing the net profits
subject to forfeiture, said profits shall be the increase in value between
the market value of the community property at the time of the
celebration of the marriage and the market value at the time of its
dissolution.[74]
Applying Article 102 of the Family Code, the net profits requires
that we first find the market value of the properties at the time of the
community's dissolution. From the totality of the market value of all the
properties, we subtract the debts and obligations of the absolute
community and this result to the net assets or net remainder of the
properties of the absolute community, from which we deduct the market
value of the properties at the time of marriage, which then results to the
net profits.[75]
Granting without admitting that Article 102 applies to the instant
case, let us see what will happen if we apply Article 102:
(a) According to the trial court's finding of facts, both husband
and wife have no separate properties, thus, the remaining properties in
the list above are all part of the absolute community. And its market
value at the time of the dissolution of the absolute community
constitutes the market value at dissolution.
(b) Thus, when the petitioner and the respondent finally were
legally separated, all the properties which remained will be liable for the
debts and obligations of the community. Such debts and obligations will
be subtracted from the market value at dissolution.
(c) What remains after the debts and obligations have been paid
from the total assets of the absolute community constitutes the net
remainder or net asset. And from such net asset/remainder of the
petitioner and respondent's remaining properties, the market value at the
time of marriage will be subtracted and the resulting totality constitutes
the net profits.
(d) Since both husband and wife have no separate
properties, and nothing would be returned to each of them, what will
be divided equally between them is simply the net profits. However, in
the Decision dated October 10, 2005, the trial court forfeited the half-
share of the petitioner in favor of his children. Thus, if we use Article
102 in the instant case (which should not be the case), nothing is left to
the petitioner since both parties entered into their marriage without
bringing with them any property.
On Conjugal Partnership Regime:
 Before we go into our disquisition on the Conjugal Partnership
Regime, we make it clear that Article 102(4) of the Family Code applies
in the instant case for purposes only of defining net profit. As earlier
explained, the definition of net profits in Article 102(4) of the Family
Code applies to both the absolute community regime and conjugal
partnership regime as provided for under Article 63, No. (2) of the
Family Code, relative to the provisions on Legal Separation.
Now, when a couple enters into a regime of conjugal
partnership of gains under Article 142 of the Civil Code, the husband
and the wife place in common fund the fruits of their separate property
and income from their work or industry, and divide equally, upon the
dissolution of the marriage or of the partnership, the net gains or benefits
obtained indiscriminately by either spouse during the marriage.[76] From
the foregoing provision, each of the couple has his and her own property
and debts. The law does not intend to effect a mixture or merger of those
debts or properties between the spouses. Rather, it establishes a
complete separation of capitals.[77]
Considering that the couple's marriage has been dissolved under
the Family Code, Article 129 of the same Code applies in the liquidation
of the couple's properties in the event that the conjugal partnership of
gains is dissolved, to wit:
Art. 129. Upon the dissolution of the conjugal
partnership regime, the following procedure shall apply:
(1) An inventory shall be prepared, listing
separately all the properties of the conjugal partnership
and the exclusive properties of each spouse.
(2) Amounts advanced by the conjugal
partnership in payment of personal debts and obligations
of either spouse shall be credited to the conjugal
partnership as an asset thereof.
(3) Each spouse shall be reimbursed for the use
of his or her exclusive funds in the acquisition of
property or for the value of his or her exclusive property,
the ownership of which has been vested by law in the
conjugal partnership.
(4) The debts and obligations of the conjugal
partnership shall be paid out of the conjugal assets. In
case of insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions of
paragraph (2) of Article 121.
(5) Whatever remains of the exclusive properties
of the spouses shall thereafter be delivered to each of
them.
(6) Unless the owner had been indemnified from
whatever source, the loss or deterioration of movables
used for the benefit of the family, belonging to either
spouse, even due to fortuitous event, shall be paid to said
spouse from the conjugal funds, if any.
(7) The net remainder of the conjugal partnership
properties shall constitute the profits, which shall be
divided equally between husband and wife, unless a
different proportion or division was agreed upon in the
marriage settlements or unless there has been a voluntary
waiver or forfeiture of such share as provided in this
Code.
(8) The presumptive legitimes of the common
children shall be delivered upon the partition in
accordance with Article 51.
(9) In the partition of the properties, the conjugal
dwelling and the lot on which it is situated shall, unless
otherwise agreed upon by the parties, be adjudicated to
the spouse with whom the majority of the common
children choose to remain. Children below the age of
seven years are deemed to have chosen the mother,
unless the court has decided otherwise. In case there is
 no such majority, the court shall decide, taking into
consideration the best interests of said children.
In the normal course of events, the following are the steps in the
liquidation of the properties of the spouses:
(a) An inventory of all the actual properties shall be made,
separately listing the couple's conjugal properties and their separate
properties.[78] In the instant case, the trial court found that the couple
has no separate properties when they married.[79] Rather, the trial
court identified the following conjugal properties, to wit:
1. coffee mill in Balongagan, Las Nieves, Agusan del
Norte;
2. coffee mill in Durian, Las Nieves, Agusan del Norte;
3. corn mill in Casiklan, Las Nieves, Agusan del Norte;
4. coffee mill in Esperanza, Agusan del Sur;
5. a parcel of land with an area of 1,200 square meters
located in Tungao, Butuan City;
6. a parcel of agricultural land with an area of 5 hectares
located in Manila de Bugabos, Butuan City;
7. a parcel of land with an area of 84 square meters
located in Tungao, Butuan City;
8. Bashier Bon Factory located in
Tungao, Butuan City.[80]
(b) Ordinarily, the benefit received by a spouse from the
conjugal partnership during the marriage is returned in equal amount to
the assets of the conjugal partnership;[81] and if the community is
enriched at the expense of the separate properties of either spouse, a
restitution of the value of such properties to their respective owners shall
be made.[82]
(c) Subsequently, the couple's conjugal partnership shall pay the
debts of the conjugal partnership; while the debts and obligation of each
of the spouses shall be paid from their respective separate
properties. But if the conjugal partnership is not sufficient to pay all its
debts and obligations, the spouses with their separate properties shall be
solidarily liable.[83]
(d) Now, what remains of the separate or exclusive properties of
the husband and of the wife shall be returned to each of them.[84] In the
instant case, since it was already established by the trial court that
the spouses have no separate properties,[85] there is nothing to
return to any of them. The listed properties above are considered part
of the conjugal partnership. Thus, ordinarily, what remains in the above-
listed properties should be divided equally between the spouses and/or
their respective heirs.[86] However, since the trial court found the
petitioner the guilty party, his share from the net profits of the conjugal
partnership is forfeited in favor of the common children, pursuant to
Article 63(2) of the Family Code. Again, lest we be confused, like in the
absolute community regime, nothing will be returned to the guilty party
in the conjugal partnership regime, because there is no separate
property which may be accounted for in the guilty party's favor.
In the discussions above, we have seen that in both instances, the
petitioner is not entitled to any property at all. Thus, we cannot but
uphold the Decision dated October 10, 2005 of the trial court. However,
we must clarify, as we already did above, the Order dated January 8,
2007.
WHEREFORE, the Decision dated October 10, 2005 of the
Regional Trial Court, Branch 1 of Butuan City is AFFIRMED. Acting
on the Motion for Clarification dated July 7, 2006 in the Regional Trial
Court, the Order dated January 8, 2007 of the Regional Trial Court is
hereby CLARIFIED in accordance with the above discussions.
SO ORDERED.
 SECOND DIVISION had not PPA illegally imposed one hundred percent (100%)
wharfage and berthing fees, and (2) the sum of Five Hundred
Thousand Pesos (P500,000.00) as attorneys fees. No
pronouncement was made as to costs of suit.
[G.R. No. 135639. February 27, 2002]
In G.R. No. 135639 TEFASCO assails the declaration of
validity of the government share and prays for reinstatement in
toto of the decision of the trial court. In G.R. No. 135826 PPA
TERMINAL FACILITIES AND SERVICES impugns the Amended Decision for awarding the said two (2)
CORPORATION, petitioner, vs. PHILIPPINE PORTS amounts for loss of private port usage fees as actual damages,
AUTHORITY and PORT MANAGER, and PORT plus attorney's fees.
DISTRICT OFFICER OF DAVAO CITY, respondents.
TEFASCO is a domestic corporation organized and existing
under the laws of the Philippines with principal place of business
at Barrio Ilang, Davao City. It is engaged in the business of
[G.R. No. 135826. February 27, 2002] providing port and terminal facilities as well as arrastre,
stevedoring and other port-related services at its own private port
at Barrio Ilang.
PHILIPPINE PORTS AUTHORITY and PORT MANAGER, and Sometime in 1975 TEFASCO submitted to PPA a proposal
PORT DISTRICT OFFICER OF DAVAO for the construction of a specialized terminal complex with port
CITY, petitioners, vs. TERMINAL FACILITIES AND facilities and a provision for port services in Davao City. To ease
SERVICES CORPORATION, respondent. the acute congestion in the government ports at Sasa and Sta.
Ana, Davao City, PPA welcomed the proposal and organized an
DECISION inter-agency committee to study the plan. The committee
DE LEON, JR., J.: recommended approval thereof and its report stated that -

TEFASCO Terminal is a specialized terminal complex. The

Before us are two (2) consolidated petitions for review, one
specialized matters intended to be captured are: (a) bananas in
filed by the Terminal Facilities and Services Corporation
consideration of the rate of spoilage; (b) sugar; (c) fertilizers; (d)
(TEFASCO) (G.R. No. 135639) and the other by the Philippine
specialized movement of beer in pallets containerized handling lumber
Ports Authority (PPA) (G.R. No. 135826), of the Amended
and plywood.
Decision[1] dated September 30, 1998 of the former Special
Second Division of the Court of Appeals in CA-G.R. CV No.
47318 ordering the PPA to pay TEFASCO: (1) Fifteen Million 3.2 Limitations of the government facilities -
Eight Hundred Ten Thousand Thirty-Two Pesos and Seven
The government port facilities are good for general cargoes only. Both
Centavos (P15,810,032.07) representing fifty percent
(50%) wharfage dues and Three Million Nine Hundred Sixty-One ports are not equipped to handle specialized cargoes like bananas and
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos container cargoes. Besides the present capacity, as well as the planned
(P3,961,964.06) representing thirty percent (30%) berthing fees improvements, cannot cope with the increasing volume of traffic in the
from 1977 to 1991, which amounts TEFASCO could have earned
area. Participation of the private sector, therefore, involving private
financing should be encouraged in the area.
3.3 Project Viability -
3.3.1 Technical Aspect - From the port operations point of view, the
project is technically feasible. It is within a well-protected harbor and
it has a sufficient depth of water for berthing the ships it will
service. The lack of back up area can be supplied by the 21-hectare
industrial land which will be established out of the hilly land area
which is to be scrapped and leveled to be used to fill the area for
reclamation.
3.3.2 Economic Aspect - The international port of Sasa and the
domestic port of Sta. Ana are general cargo type ports. They are facing
serious ship and cargo congestion problems brought about mainly by
the faster growth of shipping industry than the development of the
ports. They do not possess the special cargo handling facilities which
TFSC plans to put up at the proposed terminal.
xxx The proposed project expects to get a 31% market slice. It will
service domestic and foreign vessels. Main products to be handled
initially will be bananas in the export trade and beer in the domestic
traffic. Banana exporters in Davao, like Stanfilco and Philippine
Packing Corporation have signified their intentions to use the
port. Negotiations between TFSC and banana exporters on whether the
former or the latter should purchase the mechanical loading equipment
have not yet been formed up xxx.
Easing the problems at these two ports would result in savings on cost
of the operation as cargo storage and on damages and losses. It would
also give relief to passengers from time-delay, inconvenience and
exposure to hazards in commuting between the pier and ship at anchor.
Furthermore, it would redound to better utilization of the government
piers, therefore greater revenue from port operations.
At the bigger scale, more economic benefits in terms of more
employment, greater productivity, increased per capita income in
the Davao region, and in light of the limited financial resources of the
government for port development the TFSC proposal would be
beneficial to the country.
On April 21, 1976 the PPA Board of Directors passed
Resolution No. 7 accepting and approving TEFASCO's project
proposal. PPA resolved to -
xxx [a]pprove, xxx the project proposal of the Terminal Facilities and
Services Corporation, Inc. for the construction of specialized port
facilities and provision of port services in Davao City, subject to the
terms and conditions set forth in the report of the Technical Committee
created by the Board in its meeting of January 30, 1975, and to the
usual government rules and regulations.
PPA relayed its acceptance of the project terms and
conditions to TEFASCO in the letter[2] dated May 7, 1976 of
Acting General Manager Mariano Nicanor which affirmed that -
We are pleased to inform you that the Board of Directors, Philippine
Ports Authority, approved the project proposal of the Terminal
Facilities and Services Corporation to construct a specialized port
facilities and provision of port services in Davao City as follows:
1) Docking Facilities for Ocean Going and Interisland vessels
with containerized cargo.
2) Stevedoring and Arrastre for above.
3) Warehousing;
4) Container yard and warehouse for containerizing cargoes
or breaking up cargoes for containers.
5) Bulk handling and silos for corn, in cooperation with the NGA.
6) Bulk handling for fertilizer.
7) Bulk handling or conveyor system for banana exports.
8) Bulk handling for sugar.
9) Bonded warehousing.
The approval is subject to the terms and conditions set forth at
enclosure.
You are hereby authorized to start work immediately taking into
account national and local laws and regulations pertaining to the
project construction and operation.
The enclosure referred to in the letter above-quoted
stipulated the "Terms and Conditions of PPA Board Approval of
the Project Proposal,"[3] particularly -
(1) That all fees and/or permits pertinent to the construction
and operation of the proposed project shall be paid to
and/or secured from the proper authorities.
(2) That the plans shall not be altered without the prior
approval of the Bureau of Public Works in coordination
with the PPA.
(3) That [any] damage to public and private property arising
from the construction and operation of the project shall
be the sole responsibility of the applicant-company.
(4) That the Director of Public Works shall be notified five
(5) days before the start of the construction works and
that the Director of Public Works or his representative
shall be authorized to inspect the works and premises
while the work is in progress and even after the
completion thereof.
(5) That the applicant shall construct and complete the
structure under the proposed project within eighteen (18)
months after the approval of the permit, otherwise the
permit shall be null and void.
(6) That the facility shall handle general cargoes that are
loaded as filler cargoes on bulk/container ships calling at
the facility.
(7) That the applicant shall build up its banana export traffic
to replace the probable loss of its container traffic five
(5) years from now because of the plan of PPA to put up
a common user type container terminal at the port of
Sasa.
(8) That all charges payable to the Bureau of Customs will
continue to apply upon take over of port operations by
the PPA of the Port of Davao from the Bureau of
Customs and direct control and regulations of operations
of private port facilities in the general area of that port.
Under the foregoing terms and conditions, TEFASCO
contracted dollar loans from private commercial institutions
abroad to construct its specialized terminal complex with port
facilities and thereafter poured millions worth of investments in
the process of building the port. Long after TEFASCO broke
ground with massive infrastructure work, the PPA Board curiously
passed on October 1, 1976 Resolution No. 50 under which
TEFASCO, without asking for one, was compelled to submit an
application for construction permit. Without the consent of
TEFASCO, the application imposed additional significant
conditions -
(1) This Permit to Construct (PTC) will entitle the applicant to operate
the facility for a period of fifteen (15) years, without jeopardy to
negotiation for a renewal for a period not exceeding ten (10) years. At
the expiration of the permit, all improvements shall automatically
become the property of the Authority. Thereafter, any interested party,
including the applicant, may lease it under new conditions; (2) In the
event that the Foreshore Lease Application expires or is
disapproved/canceled, this permit shall also be rendered null and void;
xxx (7) All other fees and/or permits pertinent to the construction and
operation of the proposed project shall be paid to and/or secured from
the proper authorities; xxx (9) Unless specifically authorized, no
general cargo shall be handled through the facility; (10) All rates and
charges to be derived from the use of said facility or facilities shall be
approved by the Authority; xxx (12) An application fee in the amount
of one-tenth or one percent of the total estimated cost of the proposed
improvement/structure shall be paid upon advice; (13) Other
requirements of the law shall be complied by the applicant.
NOTE: Subject further to the terms and conditions as approved by
PPA Board under Resolution No. 7 of 21 April 1976, except that PPA
shall take over the role of the Bureau of Public Works and of the
Bureau of Customs stipulated in the said approval.
TEFASCO played along with this needless exercise as PPA
approved the awkward application in a letter stating -
We are returning herewith your application for Permit to Construct
No. 77-19 dated 18 October 1977, duly approved (validation of the
original permit to construct approved by the PPA Board under
Resolution No. 7 of 21 April 1976), for the construction of your port
facilities in Bo. Ilang, Davao City, subject to the conditions stipulated
under the approved permit and in accordance with the attached
approved set of plans and working drawings.
It is understood that this permit is still subject to the terms and
conditions under the original permit except that this Authority takes
over the role of the Bureau of Public Works and of the Bureau of
Customs as stipulated thereon.
The series of PPA impositions did not stop there. Two (2)
years after the completion of the port facilities and the
commencement of TEFASCO's port operations, or on June 10,
1978, PPA again issued to TEFASCO another permit, designated
as Special Permit No. CO/CO-1-067802, under which more
onerous conditions were foisted on TEFASCOs port
operations.[4] In the purported permit appeared for the first time
the contentious provisions for ten percent (10%) government
share out of arrastre and stevedoring gross income and one
hundred percent (100%) wharfage and berthing charges, thus -
Pursuant to the provisions of Presidential Decree No. 857, otherwise
known as the Revised Charter of the Philippine Ports Authority, and
upon due consideration of the formal written application and its
enclosures in accordance with PPA Memorandum Order No. 21 dated
May 27, 1977, PPA Administrative Order No. 22-77 dated December
9, 1977, and other pertinent policies and guidelines, a Special Permit is
hereby granted to TERMINAL FACILITIES AND SERVICES
CORPORATION (TEFASCO), with address at Slip 3, Pier 4, North
Harbor, Manila to provide its arrastre/stevedoring services at its own
private wharf located at Barrio Ilang, Davao City, subject to the
following conditions:
xxx xxx xxx
2. Grantee shall render arrastre/stevedoring services on
cargoes of vessels under the agency of Retla
Shipping/Transcoastal Shipping, Solid Shipping, Sea
Transport and other commercial vessels which cannot
be accommodated in government piers at PMU-Davao
due to port congestion which shall be determined by the
Port Manager/Harbor Master/Port Operations Officer
whose decision shall be conclusive;
3. Grantee shall promptly submit its latest certified financial
statement and all statistical and other data required by
the Authority from time to time;
4. Grantee shall strictly comply with all applicable PPA rules
and regulations now in force or to be promulgated
hereafter and other pertinent rules and regulations
 promulgated by other agency of the government and
other applicable laws, orders or decrees;
5. Grantee shall remit to the government an amount
equivalent to ten (10%) percentum of the handling rates
chargeable on similar cargo in government
piers/wharves within the jurisdiction of PMU-Davao on
or before the 5th working day of every month provided,
however, that in case of delay, grantee shall pay a
penalty of one (1%) percentum of the accumulated total
amount due for every day of delay; provided, further,
that said rate shall be reasonably adjusted if and when
warranted by the financial conditions of the Grantee;
6. Grantee shall settle with the Authority its back accounts on
the 10% government share from the start of its
arrastre/stevedoring operation plus 6% legal interest per
annum as provided by law;
7. That cargoes and vessels diverted to TEFASCO wharf shall
be subject to 100% wharfage and berthing charges
respectively;
8. Grantee shall hold the Authority free from any liability
arising out of the maintenance and operation thereof;
9. Grantee shall not in any manner pose a competition with
any port or port facility owned by the government.
Rates of charges shall in no case be lower than those
prevailing at the Government Port of Davao.
xxx xxx xxx
This Special Permit is non-transferable and shall remain valid from the
date of issuance hereof until December 31, 1978; provided, however,
that at any time prior to the expiration thereof, the same may be
revoked for violation of any of the conditions herein set forth or for
cause at the discretion of the PPA General Manager or his duly
authorized representative.
Subsequent exactions of PPA included: (a) Admin. Order 09-
81, s. 1981,[5] notifying all arrastre and stevedoring operators,
whether they do business in government owned port facilities,
that special services income be subjected to "government share"
equivalent to ten percent (10%) thereof; and, (b) Memo. Circ. 36-
82, s. 1982,[6] mandating an assessment of one hundred percent
(100%) wharfage dues on commercial and third-party cargoes
regardless of extent of use of private port facilities and one
hundred percent (100%) berthing charges on every foreign
vessel docking at private wharves loading or discharging
commercial or third-party cargoes. TEFASCO repeatedly asked
PPA for extensions to pay these additional obligations and for
reduction in the rates. But the PPA's response was final and non-
negotiable statements of arrears and current accounts and
threats of business closure in case of failure to pay them.[7] The
trial court summed up the documentary evidence on this point -
xxx [w]hen TEFASCO requested for the structuring of its account of
P3.5 million, resulting to a memorandum, issued by PPA General
Manager to its internal control, to verify the specific assessment of
TEFASCO, coming out in the specific amount of P3,143,425.67 which
became a subject of TEFASCO various and series of letters-protest to
PPA, for reconsideration of its ultimatum, to enforce TEFASCOs back
account, dated June 1, 1983, marked Exh. 32 for defendant, after a
series of letters for reconsideration of TEFASCO and reply of PPA,
marked Exh. 26 to 31 for the defendants, an ultimatum letter of PPA
was issued followed by another series of letters of protest,
reconsideration and petition of TEFASCO and reply of PPA,
correspondingly marked Exh. 40 51 for the defendants, until
ultimately, the execution of a memorandum of agreement, marked
Exh. 52 for the defendant, dated February 10, 1984.
Most alarming was the receipt of defendants communication by
TEFASCO, in its letter dated June 1, 1983, a cease and desist order of
PPA for TEFASCO, to stop its commercial port operation xxx.[8]
 On February 10, 1984 TEFASCO and PPA executed
a Memorandum of Agreement (MOA) providing among others for
(a) acknowledgment of TEFASCO's arrears in government share
at Three Million Eight Hundred Seven Thousand Five Hundred
Sixty-Three Pesos and Seventy-Five Centavos (P3,807,563.75)
payable monthly, with default penalized by automatic withdrawal
of its commercial private port permit and permit to operate cargo
handling services; (b) reduction of government share from ten
percent (10%) to six percent (6%) on all cargo handling and
related revenue (or arrastre and stevedoring gross income); (c)
opening of its pier facilities to all commercial and third-party
cargoes and vessels for a period coterminous with its foreshore
lease contract with the National Government; and, (d) tenure of
five (5) years extendible by five (5) more years for TEFASCO's
permit to operate cargo handling in its private port facilities. In
return PPA promised to issue the necessary permits for
TEFASCOs port activities. TEFASCO complied with the MOA
and paid the accrued and current government share.[9]
On August 30, 1988 TEFASCO sued PPA and PPA Port
Manager, and Port Officer in Davao City for refund of government
share it had paid and for damages as a result of alleged illegal
exaction from its clients of one hundred percent (100%) berthing
and wharfage fees. The complaint also sought to nullify
the February 10, 1984 MOA and all other PPA issuances
modifying the terms and conditions of the April 21,
1976 Resolution No. 7 above-mentioned.[10]
The RTC, Branch 17, Davao City, in its decision dated July
15, 1992 in Civil Case No. 19216-88, ruled for TEFASCO, (a)
nullifying the MOA and all PPA issuances imposing government
share and one hundred percent (100%) berthing and wharfage
fees or otherwise modifying PPA Resolution No. 7, and, (b)
awarding Five Million Ninety-Five Thousand Thirty Pesos and
Seventeen Centavos (P5,095,030.17) for reimbursement of
government share and Three Million Nine Hundred Sixty-One
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos
(P3,961,964.06) for thirty percent (30%) berthing charges and
Fifteen Million Eight Hundred Ten Thousand Thirty-Two Pesos
and Seven Centavos (P15,810,032.07) for fifty percent (50%)
wharfage fees which TEFASCO could have earned as private
port usage fee from 1977 to 1991 had PPA not collected one
hundred percent (100%) of these fees; Two Hundred Forty-Eight
Thousand Seven Hundred Twenty-Seven Pesos (P248,727.00)
for dredging and blasting expenses; One Million Pesos
(P1,000,000.00) in damages for blatant violation of PPA
Resolution No. 7; and, Five Hundred Thousand Pesos
(P500,000.00) for attorneys fees, with twelve percent (12%)
interest per annum on the total amount awarded.[11]
PPA appealed the decision of the trial court to the Court of
Appeals. The appellate court in its original decision recognized
the validity of the impositions and reversed in toto the decision of
the trial court.[12] TEFASCO moved for reconsideration which the
Court of Appeals found partly meritorious. Thus the Court of
Appeals in its Amended Decision partially affirmed the RTC
decision only in the sense that PPA was directed to pay
TEFASCO (1) the amounts of Fifteen Million Eight Hundred Ten
Thousand Thirty-Two Pesos and Seven Centavos
(P15,810,032.07) representing fifty percent (50%) wharfage fees
and Three Million Nine Hundred Sixty-One Thousand Nine
Hundred Sixty-Four Pesos and Six Centavos (P3,961,964.06)
representing thirty percent (30%) berthing fees which TEFASCO
could have earned as private port usage fee from 1977 to 1991
had PPA not illegally imposed and collected one hundred percent
(100%) of wharfage and berthing fees and (2) Five Hundred
Thousand Pesos (P500,000.00) for attorneys fees. The Court of
Appeals held that the one hundred percent (100%) berthing and
wharfage fees were unenforceable because they had not been
approved by the President under Secs. 19 and 20, P.D. No. 857,
and discriminatory since much lower rates were charged in other
private ports as shown by PPA issuances effective 1995 to
1997. Both PPA and TEFASCO were unsatisfied with this
disposition hence these petitions.
In G.R. No. 135639 TEFASCO prays to reinstate in toto the
decision of the trial court. Its grounds are: (a) PPA Resolution No.
7 and the terms and conditions thereunder constitute a contract
that PPA could not change at will; (b) the MOA between PPA and
TEFASCO indicating the schedule of TEFASCO arrears and
reducing the rate of government share is void for absence of
consideration; and, (c) government share is neither authorized by
PPA Resolution No. 7 nor by any law, and in fact, impairs the
obligation of contracts.
In G.R. No. 135826 PPA seeks to set aside the award of
actual damages for wharfage and berthing fees and for attorneys
fees. PPA anchors its arguments on the following: (a) that its
collection of one hundred percent (100%) wharfage and berthing
fees is authorized by Secs. 6 (b, ix) and 39 (a), P.D. No. 857,
under which the imposable rates for such fees are within the sole
power and authority of PPA; (b) that absence of evidentiary
relevance of PPA issuances effective 1995 to 1997 reducing
wharfage, berthing and port usage fees in private ports; (c) that
TEFASCO's lack of standing to claim alleged overpayments of
wharfage and berthing fees; and, (d) that lack of legal basis for
the award of fifty percent (50%) wharfage and thirty percent
(30%) berthing fees as actual damages in favor of TEFASCO for
the period from 1977 to 1991, and for attorneys fees.
In a nutshell, the issues in the two (2) consolidated petitions
are centered on: (a) the character of the obligations between
TEFASCO and PPA; (b) the validity of the collection by PPA of
one hundred percent (100%) wharfage fees and berthing
charges; (c) the propriety of the award of fifty percent (50%)
wharfage fees and thirty percent (30%) berthing charges as
actual damages in favor of TEFASCO for the period from 1977 to
1991; (d) the legality of the imposed government share and the
MOA stipulating a schedule of TEFASCO's arrears for and
imposing a reduced rate of government share; and, (e) the
propriety of the award of attorneys fees and damages.
Firstly, it was not a mere privilege that PPA bestowed upon
TEFASCO to construct a specialized terminal complex with port
facilities and provide port services in Davao City under PPA
Resolution No. 7 and the terms and conditions thereof. Rather,
the arrangement was envisioned to be mutually beneficial, on one
hand, to obtain business opportunities for TEFASCO, and on the
other, enhance PPA's services -
The international port of Sasa and the domestic port of Sta. Ana are
general cargo type ports. They are facing serious ship and cargo
congestion problems brought about mainly by the faster growth of
shipping industry than the development of the ports. They do not
possess the special cargo handling facilities which TFSC plans to put
up at the proposed terminal.[13]
It is true that under P.D. No. 857 (1975) as amended,[14] the
construction and operation of ports are subject to licensing
regulations of the PPA as public utility.[15] However, the instant
case did not arise out of pure beneficence on the part of the
government where TEFASCO would be compelled to pay
ordinary license and permit fees. TEFASCO accepted and
performed definite obligations requiring big investments that
made up the valuable consideration of the project. The inter-
agency committee report that recommended approval of
TEFASCO port construction and operation estimated
investments at Sixteen Million Pesos (P16,000,000.00)
(1975/1976 price levels) disbursed within a construction period of
one year[16] and covered by foreign loans of Two Million Four
Hundred Thirty-Four Thousand US Dollars (US$2,434,000.00)
with interests of up to Ten Million Nine Hundred Sixty-Five
Thousand Four Hundred Sixty-Five Pesos (P10,965,465.00) for
the years 1979 to 1985.[17] In 1987 the total investment of
TEFASCO in the project was valued at One Hundred Fifty-Six
Million Two Hundred Fifty-One Thousand Seven Hundred Ninety-
Eight Pesos (P156,251,798.00).[18] The inter-agency committee
report also listed the costly facilities TEFASCO would build, and
which in fact it has already built -
xxx The terminal complex will provide specialized mechanical cargo
handling facilities for bananas, sugar, beer, grain and fertilizer, and
containerized cargo operations. The marginal wharf could
accommodate two ocean-going ships and one inter-island vessel at a
time. The essential structures and facilities to be provided are: (1) 400-
meter concrete wharf; (2) Back-up area (3.8 hectare reclaimed area
plus a 21-hectare inland industrial zone); (3) Two warehouses with
total floor area of 5,000 sq. meters; (4) mechanized banana loading
equipment; (5) container yard.[19]
With such considerable amount of money spent in reliance
upon the promises of PPA under Resolution No. 7 and the terms
and conditions thereof, the authorization for TEFASCO to build
and operate the specialized terminal complex with port facilities
assumed the character of a truly binding contract between the
grantor and the grantee.[20] It was a two-way advantage for both
TEFASCO and PPA, that is, the business opportunities for the
former and the decongestion of port traffic in Davao City for the
latter, which is also the cause of consideration for the existence
of the contract. The cases of Ramos v. Central Bank of
the Philippines[21] and Commissioner of Customs v. Auyong
Hian[22] are deemed precedents. In Ramos, the Central Bank
(CB) committed itself to support the Overseas Bank of Manila
(OBM) and avoid its liquidation in exchange for the execution of
a voting trust agreement turning over the management of OBM
to CB and a mortgage of its properties to CB to cover OBMs
overdraft balance. This agreement was reached in CBs capacity
as the regulatory agency of banking operations. After OBM
accepted and performed in good faith its obligations, we deemed
as perfected contract the relation between CB and OBM from
which CB could not retreat and in the end prejudice OBM and its
depositors and creditors -
Bearing in mind that the communications, xxx as well as the voting
trust agreement xxx had been prepared by the CB, and the well-known
rule that ambiguities therein are to be construed against the party that
caused them, the record becomes clear that, in consideration of the
execution of the voting trust agreement by the petitioner stockholders
of OBM, and of the mortgage or assignment of their personal
properties to the CB, xxx the CB had agreed to announce its readiness
to support the new management in order to allay the fears of depositors
and creditors xxx and to stave off liquidation by providing adequate
funds for the rehabilitation, normalization and stabilization of the
OBM, in a manner similar to what the CB had previously done with
the Republic Bank xxx. While no express terms in the documents refer
to the provision of funds by CB for the purpose, the same is
necessarily implied, for in no other way could it rehabilitate, normalize
and stabilize a distressed bank. xxx
The deception practiced by the Central Bank, not only on petitioners
but on its own management team, was in violation of Articles 1159
and 1315 of the Civil Code of the Philippines:
Art. 1159. Obligations arising from contracts have the force of law
between the contracting parties and should be complied with in good
faith.
Art. 1315. Contracts are perfected by mere consent, and from that
moment the parties are bound not only to the fulfillment of what has
been expressly stipulated but also to all the consequences which,
according to their nature, may be in keeping with good faith, usage and
law.[23]
Auyong Hian involved an importation of old newspapers in
four (4) shipments under a "no-dollar" arrangement pursuant to a
license issued by the Import Control Commission. When the last
shipment arrived in Manila, the customs authorities seized the
importation on the ground that it was made without the license
required by Central Bank Circular No. 45.While the seizure
proceedings were pending before the Collector of Customs, the
President of the Philippines through its Cabinet canceled the
aforesaid license for the reason that it was illegally issued "in that
no fixed date of expiration is stipulated." On review, this Court
held -
xxx [W]hile the Cabinet, acting for the President, can pass on the
validity of a license issued by the Import Control Commission, that
power cannot be arbitrarily exercised. The action must be founded on
good ground or reason and must not be capricious or whimsical. This
principle is so clear to require further elaboration.
xxx In fact, if the cancellation were to prevail, the importer would
stand to lose the license fee he paid amounting to P12,000.00, plus the
value of the shipment amounting to P21,820.00. This is grossly
inequitable. Moreover, "it has been held in a great number of cases
that a permit or license may not arbitrarily be revoked xxx where, on
the faith of it, the owner has incurred material expense."
It has also been held that where the licensee has acted under the
license in good faith, and has incurred expense in the execution of it,
by making valuable improvements or otherwise, it is regarded in
equity as an executed contract and substantially an easement, the
revocation of which would be a fraud on the licensee, and therefore the
licensor is estopped to revoke it xxx It has also been held that the
license cannot be revoked without reimbursing the licensee for his
expenditures or otherwise placing him in status quo.[24]
For a regulatory permit to be impressed with contractual
character we held in Batchelder v. Central Bank[25] that the
administrative agency in issuing the permit must have assumed
such obligation on itself. The facts certainly bear out the
conclusion that PPA passed Resolution No. 7 and the terms and
conditions thereof with a view to decongesting port traffic in
government ports in Davao City and engaging TEFASCO to
infuse its own funds and skills to operate another port therein. As
acceptance of these considerations and execution thereof
immediately followed, it is too late for PPA to change the rules of
engagement with TEFASCO as expressed in the said Resolution
and other relevant documents.
The terms and conditions binding TEFASCO are only those
enumerated or mentioned in the inter-agency committee report,
PPA Resolution No. 7 and PPA letter dated May 7, 1976 and its
enclosure. With due consideration for the policy that laws of the
land are written into every contract,[26] the said documents stand
to be the only source of obligations between the parties. That
being the case, it was arbitrary, unreasonable and unfair for PPA
to add new burdens and uncertainties into their agreement of
which TEFASCO had no prior knowledge even in the context of
regulation.
Lowell v. Archambault[27] is persuasive on this issue. In that
case, the defendant was engaged in the business of an
undertaker who wanted to erect on his land a stable to be used
in connection therewith. He then applied to the board of health for
a license to permit him to occupy and use the building when
completed for the stabling of eight (8) horses. His application was
granted and a license was issued to him permitting the exercise
of this privilege. Upon receiving it, he at once had plans prepared
and began the erection of a stable on a site from which he had,
at a pecuniary loss, removed another building. After the work had
begun but before its completion, the board of health acting on a
petition of residents in the immediate vicinity rescinded their
former vote and canceled the license. The court held -
xxxUpon application for permission to erect a stable, which, in the
absence of a restricting statute, would be a legitimate improvement in
the enjoyment of his property, the applicant is entitled to know the full
measure of immunity that can be granted to him before making the
expenditure of money required to carry out his purpose. A resort to the
general laws relating to the subject, or to ordinances or regulations
made pursuant to them, should furnish him with the required
information. When this has been obtained, he has a right to infer that
he can safely act, with the assurance that, so long as he complies with
the requirements under which it is proposed to grant the privilege, he
has a constitutional claim to protection, until the legislature further
restricts or entirely abolishes the right bestowed. A license should not
be subjected to the uncertainties that constantly would arise if
unauthorized limitations, of which he can have no knowledge, are
subsequently and without notice to be read into his license, at the
pleasure of the licensing board. Besides, all reasonable police
regulations enacted for the preservation of the public health or
morality, where a penalty is provided for their violation, while they
may limit or prevent the use or enjoyment of property except under
certain restrictions, and are constitutional, create statutory
misdemeanors, which are not to be extended by implication. xxx. It
was not within the power of the board of health, even after a hearing,
in the absence of an authority conferred upon them by legislative
sanction, to deprive him of the privilege they had unreservedly
granted.[28]
 The record shows that PPA made express representations to
TEFASCO that it would authorize and support its port project
under clear and categorical terms and conditions of an
envisioned contract. TEFASCO complied with its obligation which
ultimately resulted to the benefit of PPA. And the PPA accepted
the project as completed and authorized TEFASCO to operate
the same. Under these circumstances, PPA is estopped from
reneging on its commitments and covenants as exclusively
contained in the inter-agency committee report, PPA Resolution
No. 7 and PPA letter dated May 7, 1976 and its enclosure. As this
Court explained in Ramos v. Central Bank of the Philippines - [29]
xxx[A]n estoppel may arise from the making of a promise even though
without consideration, if it was intended that the promise should be
relied upon and in fact it was relied upon, and if a refusal to enforce it
would be virtually to sanction the perpetration of fraud or would result
in other injustice. In this respect, the reliance by the promisee is
generally evidenced by action or forbearance on his part, and the idea
has been expressed that such action or forbearance would reasonably
have been expected by the promisor. xxx
But even assuming arguendo that TEFASCO relied upon a
mere privilege granted by PPA, still the terms and conditions
between them as written in the documents approving
TEFASCO's project proposal should indubitably remain the
same. Under traditional form of property ownership, recipients of
privileges or largesses from the government could be said to have
no property rights because they possessed no traditionally
recognized proprietary interest therein. The cases of Vinco v.
Municipality of Hinigaran[30] and Pedro v. Provincial Board of
Rizal[31] holding that a license to operate cockpits would be a
mere privilege belonged to this vintage. But the right-privilege
dichotomy came to an end when courts realized that individuals
should not be subjected to the unfettered whims of government
officials to withhold privileges previously given them.[32] Indeed to
perpetuate such distinction would leave the citizens at the mercy
of State functionaries, and worse, threaten the liberties protected
by the Bill of Rights. Thus in Kisner v. Public Service
Commission[33] wherein the US Public Service Commission
reduced the number of vehicles which appellant Kisner was
authorized to operate under his certificate of convenience and
necessity when no limit was stipulated therein, it was ruled -
It appears from the record in this case that after the issuance of the
initial certificate the appellant took steps to procure vehicles in
addition to the one he already owned. He changed his position in
reliance upon the original certificate authorizing him to operate an
unlimited number of vehicles. xxx For the purpose of due process
analysis, a property interest includes not only the traditional notions of
real and personal property, but also extends to those benefits to which
an individual may be deemed to have a legitimate claim of entitlement
under existing rules and regulations. xxx The right of the appellant in
the case at bar to operate more than one vehicle under the certificate of
convenience and necessity, as originally issued, clearly constituted a
benefit to the appellant and that benefit may be deemed to be a
legitimate claim of entitlement under existing rules and regulations.
Even if PPA granted TEFASCO only a license to construct
and operate a specialized complex terminal with port facilities, the
fact remains that PPA cannot unilaterally impose conditions that
find no basis in the inter-agency committee report, PPA
Resolution No. 7 and PPA letter dated May 7, 1976 and its
enclosure.
Secondly, we hold that PPA's imposition of one hundred
percent (100%) wharfage fees and berthing charges is void. It is
very clear from P.D. No. 857 as amended that wharfage and
berthing rates collectible by PPA "upon the coming into operation
of this Decree shall be those now provided under Parts 1, 2, 3
and 6 of Title VII of Book II of The Tariff and Customs Code, until
such time that the President upon recommendation of the Board
may order that the adjusted schedule of dues are in
effect."[34] PPA cannot unilaterally peg such rates but must rely
on either The Tariff and Customs Code or the quasi-legislative
issuances of the President in view of the legislative prerogative
of rate-fixing.[35]
Accordingly, P.D. No. 441 (1974) amending The Tariff and
Customs Code fixed wharfage dues at fixed amounts per
specified quantity brought into or involving national ports or at fifty
percent (50%) of the rates provided for herein in case the articles
imported or exported from or transported within the Philippines
are loaded or unloaded offshore, in midstream, or in private
wharves where no loading or unloading facilities are owned and
maintained by the government. Inasmuch as the TEFASCO port
is privately owned and maintained, we rule that the applicable
rate for imported or exported articles loaded or unloaded thereat
is not one hundred percent (100%) but only fifty percent (50%) of
the rates specified in P.D. No. 441.
As regard berthing charges, this Court has ruled
in Commissioner of Customs v. Court of Tax
[36]
Appeals that "subject vessels, not having berthed at a national
port but at the Port of Kiwalan, which was constructed, operated,
and continues to be maintained by private respondent xxx are not
subject to berthing charges, and petitioner should refund the
berthing fees paid by private respondent." The berthing facilities
at Port of Kiwalan were constructed, improved, operated and
maintained solely by and at the expense of a private corporation,
the Iligan Express. On various dates, vessels using the berthing
facilities therein were assessed berthing fees by the Collector of
Customs which were paid by private respondent under
protest. We nullified the collection and ordered their refund -
The only issue involved in this petition for review is: Whether a
vessel engaged in foreign trade, which berths at a privately owned
wharf or pier, is liable to the payment of the berthing charge under
Section 2901 of the Tariff and Customs Code, which, as amended by
Presidential Decree No. 34, reads:
Sec. 2901. Definition. - Berthing charge is the amount assessed against
a vessel for mooring or berthing at a pier, wharf, bulk-head-wharf,
river or channel marginal wharf at any national port in the Philippines;
or for mooring or making fast to a vessel so berthed; or for coming or
mooring within any slip, channel, basin, river or canal under the
jurisdiction of any national port of the Philippines: Provided, however,
That in the last instance, the charge shall be fifty (50%) per cent of
rates provided for in cases of piers without cargo shed in the
succeeding sections. The owner, agent, operator or master of the vessel
is liable for this charge.
Petitioner Commissioner of Customs contends that the government has
the authority to impose and collect berthing fees whether a vessel
berths at a private pier or at a national port. On the other hand, private
respondent argues that the right of the government to impose berthing
fees is limited to national ports only.
The governing law classifying ports into national ports and municipal
ports is Executive Order No. 72, Series of 1936 (O.G. Vol. 35, No. 6,
pp. 65-66). A perusal of said executive order discloses the absence of
the port of Kiwalan in the list of national ports mentioned therein.
Furthermore, Paragraph 1 of Executive Order No. 72 expressly
provides that the improvement and maintenance of national ports shall
be financed by the Commonwealth Government, and their
administration and operation shall be under the direct supervision and
control of the Insular Collector of Customs. It is undisputed that the
port of Kiwalan was constructed and improved and is operated and
maintained solely by and at the expense of the Iligan Express
Corporation, and not by the National Government of the Republic or
any of its agencies or instrumentalities. xxx The port of Kiwalan not
being included in the list of national ports appended to Customs
Memorandum Circular No. 33-73 nor in Executive Order No. 72, it
follows inevitably as a matter of law and legal principle that this Court
may not properly consider said port as a national port. To do otherwise
would be to legislate on our part and to arrogate unto ourselves powers
not conferred on us by the Constitution. xxx
Plainly, therefore, the port of Kiwalan is not a national port. xxx
Section 2901 of the Tariff and Customs Code prior to its amendment
and said section as amended by Presidential Decree No. 34 are
hereunder reproduced with the amendments duly highlighted:
Sec. 2901. Definition. - Berthing charge is the amount assessed against
a vessel for mooring or berthing at a pier, wharf, bulkhead-wharf, river
or channel marginal wharf at any port in the Philippines; or for
mooring or making fast to a vessel so berthed; or for coming or
mooring within any slip, channel, basin, river or canal under the
jurisdiction of any port of the Philippines (old TCC).
Sec. 2901. Definition. - Berthing charge is the amount assessed a
vessel for mooring or berthing at a pier, wharf, bulkhead-wharf, river
or channel marginal wharf AT ANY NATIONAL PORT IN THE
PHILIPPINES; for mooring or making fast to a vessel so berthed; or
for coming or mooring within any slip, channel, basin, river or canal
under the jurisdiction of ANY NATIONAL port of the Philippines;
Provided, HOWEVER, THAT IN THE LAST INSTANCE, THE
CHARGE SHALL BE FIFTY (50%) PER CENT
OF RATES PROVIDED FOR IN CASES OF PIERS WITHOUT
CARGO SHED IN THE SUCCEEDING SECTIONS. (emphasis in
the original).
It will thus be seen that the word national before the word port is
inserted in the amendment. The change in phraseology by amendment
of a provision of law indicates a legislative intent to change the
meaning of the provision from that it originally had (Agpalo, supra, p.
76). The insertion of the word national before the word port is a clear
indication of the legislative intent to change the meaning of Section
2901 from what it originally meant, and not a mere surplusage as
contended by petitioner, in the sense that the change merely affirms
what customs authorities had been observing long before the law was
amended (p. 18, Petition). It is the duty of this Court to give meaning
to the amendment. It is, therefore, our considered opinion that under
Section 2901 of The Tariff and Customs Code, as amended by
Presidential Decree No. 34, only vessels berthing at national ports are
liable for berthing fees. It is to be stressed that there are differences
between national ports and municipal ports, namely: (1) the
maintenance of municipal ports is borne by the municipality, whereas
that of the national ports is shouldered by the national government; (2)
municipal ports are created by executive order, while national ports are
usually created by legislation; (3) berthing fees are not collected by the
government from vessels berthing at municipal ports, while such
berthing fees are collected by the government from vessels moored at
national ports. The berthing fees imposed upon vessels berthing at
national ports are applied by the national government for the
maintenance and repair of said ports. The national government does
not maintain municipal ports which are solely maintained by the
municipalities or private entities which constructed them, as in the
case at bar. Thus, no berthing charges may be collected from vessels
moored at municipal ports nor may berthing charges be imposed by a
municipal council xxx.[37]
PPA has not cited - nor have we found - any law creating
the TEFASCO Port as a national port or converting it into
one. Hence, following case law, we rule that PPA erred in
collecting berthing fees from vessels that berthed at the privately
funded port of petitioner TEFASCO.
It also bears stressing that one hundred percent (100%)
wharfage dues and berthing charges are void for failing to
comply with Sec. 19, P.D. No. 857[38] as amended, requiring
presidential approval of any increase or decrease of such dues.
In Philippine Interisland Shipping Association of the
Philippines v. CA[39] we ruled that PPA cannot override the
statutory rates for dues by lowering rates of pilotage fees and
leaving the fees to be paid for pilotage to agreement of parties,
and further stated that -
There is, therefore, no legal basis for PPA's intransigence, after failing
to get the new administration of President Aquino to revoke the order
by issuing its own order in the form of A.O. NO. 02-88. It is
noteworthy that if President Marcos had legislative power under
Amendment No. 6 of the 1973 Constitution so did President Aquino
under the Provisional (Freedom) Constitution who could, had she
thought E.O. No. 1088 to be a mere political gimmick, have just as
easily revoked her predecessor's order. It is tempting to ask if the
administrative agency would have shown the same act of defiance of
the President's order had there been no change of administration. What
this Court said in La Perla Cigar and Cigarette Factory v.
Capapas, mutatis mutandis, - may be applied to the cases at bar:
Was it within the powers of the then Collector Ang-angco to refuse to
collect the duties that must be paid? That is the crucial point of
inquiry. We hold that it was not.
Precisely, he had to give the above legal provisions, quite explicit in
character, force and effect. His obligation was to collect the revenue
for the government in accordance with existing legal provisions,
executive agreements and executive orders certainly not excluded. He
would not be living up to his official designation if he were permitted
to act otherwise. He was not named Collector of Customs for nothing
Certainly, if the President himself were called upon to execute the laws
faithfully, a Collector of Customs, himself a subordinate executive
official, cannot be considered as exempt in any wise from such an
obligation of fealty. Similarly, if the President cannot suspend the
operation of any law, it would be presumptuous in the extreme for one
in the position of then Collector Ang-angco to consider himself as
possessed of such a prerogative[40]
Thirdly, PPA argues that the courts a quo wrongly awarded
to TEFASCO fifty percent (50%) and thirty percent (30%) of the
wharfage dues and berthing charges, respectively, as actual
damages representing private port usage fees from 1977 to
1991. It claims that TEFASCO has no cause of action to ask for
a portion of these fees since they were collected from "the owner,
agent, operator or master of the vessel" for the berthing charge
and "the owner or consignee of the article, or the agent of
either" for the wharfage dues.
We find no merit in this argument. The cause of action of
TEFASCO is the injury it suffered as a result of the illegal
imposition on its clientele of such dues and charges that should
have otherwise gone to it as private port usage fee. TEFASCO is
asserting injury to its right to collect valuable consideration for the
use of its facilities and wrongdoing on the part of PPA prejudicing
such right. This is especially true in the light of PPAs practice of
collecting one hundred percent (100%) of the wharfage and
berthing dues by cornering the cargoes and vessels, as it were,
even before they were landed and berthed at TEFASCOs
privately owned port. It is aggravated by the fact that these
unlawful rates were collected by PPA long after the port facilities
of TEFASCO had been completed and functioning. Considering
these pleaded facts, TEFASCOs cause of action has been
sufficiently alleged and proven. We quote with approval the
following ruling of the Court of Appeals -
xxx As earlier stated, TEFASCO is only trying to recover income it
has to forego because of the excessive collections imposed by PPA. By
doing what it was prohibited to do under an existing law, PPA cannot
be allowed to enjoy the fruits of its own illegal act. To be sure,
TEFASCO suffered real damage as a result of such illegal act
requiring indemnification xxx.[41]
There is also no basis for PPAs assertion that there was lack
of evidence to support the award in favor of TEFASCO of Fifteen
Million Eight Hundred Ten Thousand Thirty-Two Pesos and
Seven Centavos (P15,810,032.07) representing fifty percent
(50%) wharfage dues and Three Million Nine Hundred Sixty-One
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos
(P3,961,964.06) for thirty percent (30%) berthing charges from
1977 to 1991. According to the appellate court, the determination
was based on the "actual summarized list of cargoes and vessels
which went through TEFASCOs port, which were under
obligation to pay usage fees, multiplied by the applicable tariff
rates."[42] The trial court explained in more detail the preponderant
evidence for the judgment -
Another harassment is the issuance of Memorandum Circular No. 36-
82, authorizing collection of 100% wharfage fees, instead of only 50%
and also 100% berthing fees, instead of only 70% as provided for in
PD 441, marked Exh. LL for plaintiff, and a copy of Letter of
Instruction No. 8001-A, marked Exh. NN for plaintiff, in the process,
the total collection of PPA for wharfage fees, amounted
to P10,582,850.00 and berthing fee, amounted to P6,997,167.00 in the
latter case, berthing fee collected was marked Exh. PP for plaintiff,
otherwise if PPA collected only 70% as provided, it could have
collected only P4,898,018.03, equally TEFASCO could have earned
the remainder of P2,099,150.90 while in the case of wharfage fee, if
PPA collected only 50%, TEFASCO would have earned the other half
of P5,291,042.00, 50% by way of rentals. xxx
In cases of berthing and wharfage fees prior to the issuance of the
injunction order from this court, PPA charges 100% the totality or
summary of claims from PPA, from 1977 to 1991, was shown and
marked Exhibit KKK and submarkings, showing TEFASCO is
supposed to collect, if PPA collects only 50% wharfage, the other 50%
goes with TEFASCO in case of berthing 70%, the remainder of 30%
could have been collected by TEFASCO.[43]
Under Arts. 2199 and 2200 of the Civil Code, actual or
compensatory damages are those awarded in satisfaction of or
in recompense for loss or injury sustained.[44] They proceed from
a sense of natural justice and are designed to repair the wrong
done. In Producers Bank of the Philippines v. CA[45] we succinctly
explain the kinds of actual damages, thus-
There are two kinds of actual or compensatory damages: one is the
loss of what a person already possesses, and the other is the failure to
receive as a benefit that which would have pertained to him x x x. In
the latter instance, the familiar rule is that damages consisting of
unrealized profits, frequently referred as ganacias
frustradas or lucrum cessans, are not to be granted on the basis of
mere speculation, conjecture, or surmise, but rather by reference to
some reasonably definite standard such as market value, established
experience, or direct inference from known circumstances xxx.
It is not necessary to prove with absolute certainty the
amount of ganacias frustradas or lucrum cessans. In Producers
Bank of the Philippines we ruled that -
xxx the benefit to be derived from a contract which one of the parties
has absolutely failed to perform is of necessity to some extent, a matter
of speculation, but the injured party is not to be denied for this reason
alone. He must produce the best evidence of which his case is
susceptible and if that evidence warrants the inference that he has been
damaged by the loss of profits which he might with reasonable
certainty have anticipated but for the defendants wrongful act, he is
entitled to recover.[46]
Applying the test aforequoted, we find that TEFASCO has
proved with clear and convincing evidence its loss of wharfage
and berthing fees. There was basis for the courts a quo in
awarding to TEFASCO, as actual damages, the sums equivalent
to fifty percent (50%) and thirty percent (30%) of the wharfage
dues and berthing charges, respectively. It has not been denied
that TEFASCO was forced to reluctantly let go of such fees to
avoid the unwise business practice of financially overburdening
the users of its port by requiring them to pay beyond one hundred
percent (100%) of such dues. It has not also been disproved that
this loss of TEFASCO was the direct result of the collection of one
hundred percent (100%) wharfage and berthing dues by PPA, an
imposition that left nothing more for TEFASCO to charge for the
use of its port and terminal facilities. Consequently, there is merit
in TEFASCO's claim that had the PPA imposition been limited to
the fifty percent (50%) wharfage dues and seventy percent (70%)
berthing charges, TEFASCO could have received the remainder
as port usage fees since the amounts were disbursed by its
clients for that purpose. Significantly, in regard to berthing
charges, TEFASCO's cause
of action and evidence presented before the trial court as well as
its assigned error on appeal on that point were limited to thirty
percent (30%) of such charges.
Fourthly, we also declare void the imposition by PPA of ten
percent (10%), later reduced to six percent (6%), government
share out of arrastre and stevedoring gross income of
TEFASCO. This exaction was never mentioned in the contract,
much less is it a binding prestation, between TEFASCO and
PPA. What was clearly stated in the terms and conditions
appended to PPA Resolution No. 7 was for TEFASCO to pay
and/or secure from the proper authorities "all fees and/or permits
pertinent to the construction and operation of the proposed
project." The government share demanded and collected from
the gross income of TEFASCO from its arrastre and stevedoring
activities in TEFASCO's wholly owned port is certainly not a fee
or in any event a proper condition in a regulatory
permit. Rather it is an onerous "contractual stipulation"[47] which
finds no root or basis or reference even in the contract
aforementioned.
We stress that the cause of the contract between TEFASCO
and PPA was, on the part of the former, to engage in the business
of operating its privately owned port facilities, and for the latter, to
decongest port traffic in Davao City and concomitantly to
enhance regional trade. The records of the project acceptance
made by PPA indicate that the contract was executed not to earn
income for PPA or the government as justification for the
subsequent and unfair imposition of government share in the
arrastre and stevedoring gross income of TEFASCO. Hence this
charge was obviously an after-thought conceived by PPA only
after the TEFASCO port had already begun its operations. The
sharing scheme only meant that PPA would piggy back
unreasonably on the substantial investment and labor of
TEFASCO. As the scheme was subsequently stipulated on
percentage of gross income, it actually penalized TEFASCO for
its hand work and substantial capital expenditures in the
TEFASCO port and terminal.
Moreover, PPA is bereft of any authority to
impose whatever amount it pleases as government share in the
gross income of TEFASCO from its arrastre and stevedoring
operations. As an elementary principle of law, license taxation
must not be "so unreasonable to show a purpose to prohibit a
business which is not itself injurious to public health or
morals."[48] In the case at bar, the absurd and confiscatory
character of government share is convincingly proved by PPA's
decision itself to abandon the disadvantageous scheme through
Administrative Order No. 06-95 dated 4 December
1995, Liberalized Regulation on Private Ports Construction,
Development, and Operation.[49] The PPA issuance scrapped
government share in the income of private ports where no
government facilities had been installed and in place thereof
imposed a one-time privilege fee of P20,000.00 per annum for
commercial ports and P10,000.00 yearly for non-commercial
ports. In passing, we believe that this impost is more in
consonance with the description of government share as
consideration for the "supervision inherent in the upgrading and
improvement of port operations, of which said services are an
integral part."[50]
We do not also agree that TEFASCO subsequently acceded
to paying the government share in its gross income from its
arrastre and stevedoring operations, and in recognizing arrears
for such charge. The Memorandum of Agreement (MOA) which it
subsequently signed with PPA did not give TEFASCO any benefit
so that we cannot conclude that there was indeed a voluntary
settlement between them. Rather it could be described aptly as
an imposition under actual threats of closure of TEFASCO's
port. Verily the MOA was meant to cloak semblance of validity
upon that particular charge since there was nothing in the original
TEFASCO-PPA contract authorizing the PPA to collect any share
in the gross income of TEFASCO in its arrastre and stevedoring
operations.
The MOA is invalid for want of consideration and
consent.[51] As such, it is an invalid novation[52] of the original
agreement between TEFASCO and PPA as embodied in the
inter-agency committee report, PPA Resolution No. 7 and PPA
letter dated May 7, 1976 and its enclosure. Truly, the MOA was a
set of stipulations executed under undue pressure on TEFASCO
of permanent closure of its port and terminal. As the TEFASCO
investment was worth millions of dollars in loans and equities,
PPA's posture of prohibiting it from engaging in the bulk of its
business presented it with no reasonable freedom of choice but
to accept and sign the MOA. Furthermore, the MOA suffers from
utter want of consideration since nothing more could have been
stipulated in the agreement when every detail of port operation
had already been previously spelled out and sanctioned in the
original contract. The belated MOA citations of PPAs recognition
of TEFASCO's facility as a private port and provision of arrastre
and stevedoring and repair services were all part of the
agreement from 1976 when the project proposal was approved
by the PPA Board. Under these circumstances, it cannot be said
that TEFASCO embraced voluntarily the unfair imposition in the from determination with reasonable certainty of the amount
MOA that inevitably would cause, as it did, its own bankruptcy. demanded. Thus, applying that rule in the case at bar, the interest
would be six percent (6%) per annum from the date of
In sum, TEFASCO is entitled to Five Million Ninety-Five
promulgation of the decision of the trial court in Civil Cases Nos.
Thousand Thirty Pesos and Seventeen Centavos
19216-88 on July 15, 1992.
(P5,095,030.17) for reimbursement of what PPA illegally
collected as "government share" in the gross income of To recapitulate: PPA is liable to TEFASCO for Fifteen Million
TEFASCO's arrastre and stevedoring operations for 1977 to Eight Hundred Ten Thousand Thirty-Two Pesos and Seven
1991. Centavos (P15,810,032.07) representing fifty percent (50%)
wharfage fees and Three Million Nine Hundred Sixty-One
Fifthly, we affirm the award of Five Hundred Thousand Pesos
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos
(P500,000.00) as attorneys fees. Attorneys fees may be awarded
(P3,961,964.06) for thirty percent (30%) berthing charges from
when a party is compelled to litigate or incur expenses to protect
1977 to 1991 and Five Million Ninety-Five Thousand Thirty Pesos
his interest by reason of an unjustified act of the other party.[53] In
and Seventeen Centavos (P5,095,030.17) for reimbursement of
the instant case, attorneys fees were warranted by PPA's unfair
the unlawfully collected government share in TEFASCOs gross
exaction of exorbitant wharfage and berthing dues from
income from its arrastre and stevedoring operations during the
TEFASCO and threats to close its port. These adverse actions
same period. The said principal amounts herein ordered shall
correctly drove the latter to institute the present proceedings to
earn interest at six percent (6%) annually from July 15, 1992, date
protect its rights and remedy the unfair situation.
of promulgation of the Decision of the Regional Trial Court of
However, we set aside the award of Two Hundred Forty-Eight Davao in Civil Cases Nos. 19216-88. The PPA shall also pay
Thousand Seven Hundred Twenty-Seven Pesos (P248,727.00) TEFASCO the amount of Five Hundred Thousand Pesos
for dredging and blasting expenses. The trial court justified the (P500,000.00) for and as attorneys fees.
award on the ground that this activity was allegedly the
Henceforth, PPA shall collect only such dues and charges as
responsibility of PPA under Sec. 37 of P.D. No. 857[54] as
are duly authorized by the applicable provisions of The Tariff and
amended which TEFASCO in good faith undertook.This is not
Customs Code and presidential issuances pursuant to Sec. 19,
correct. More precisely, the law obliged PPA to fund construction
P.D. No. 857. PPA shall strictly observe only the legally
and dredging works only in "public ports vested in the
imposable rates. Furthermore, PPA has no authority to charge
Authority." Clearly the construction of the TEFASCO port was
government share in the gross income of TEFASCO from its
not the responsibility of the PPA and does not fall under Sec. 37
arrastre and stevedoring operations within its subject private port
of P.D. No. 857. The dredging and blasting done by TEFASCO
in Davao City.
augmented the viability of its port, and therefore the same were
part and parcel of the contractual obligations it agreed to TEFASCO's port operations including cargo handling
undertake when it accepted the terms and conditions of the services shall be co-terminous with its foreshore lease contract
project. with the National Government and any extension of the said
foreshore lease contract shall similarly lengthen the duration of
It is also erroneous to set legal interest on the damages
its port operations. It is clear from the inter-agency committee
awarded herein at twelve percent (12%) yearly computed from
report, PPA Resolution No. 7 and PPA letter dated May7, 1976
the filing of the complaint. In Crismina Garments, Inc. v. CA[55], it
and its enclosure that the intention of the parties under their
was held that interest on damages, other than loan or
contract is to integrate port operations of TEFASCO so that all
forbearance of money, is six percent (6%) annually computed
services therein, including arrastre and stevedoring operations,
shall end at the same time. The subsequent and onerous MOA Republic of the Philippines
did not change the tenure of its port operations, there being no Supreme Court
clear and convincing showing of TEFASCO's free and voluntary Manila
amenability thereto. In no case, however, shall such port
operations of TEFASCO exceed fifty (50) years which is the THIRD DIVISION
maximum period of foreshore lease contracts with the National
Government.
BOARD OF MEDICINE, G.R. No. 166097
WHEREFORE, the Amended Decision of the Court of DR. RAUL FLORES
Appeals dated September 30, 1998 in case CA-G.R. CV No. (now DR. JOSE S. RAMIREZ), Present:
47318 is MODIFIED as follows: in his capacity as Chairman of
the
1. The Philippine Ports Authority (PPA) is held liable and hereby Board,PROFESSIONAL QUISUMBING,* J.,
ordered to pay and reimburse to Terminal Facilities and Services REGULATION COMMISSION, YNARES-SANTIAGO,
Corporation (TEFASCO) the amounts of Fifteen Million Eight through its Chairman, Chairperson,
Hundred Ten Thousand Thirty-Two Pesos and Seven Centavos HERMOGENES POBRE AUSTRIA-MARTINEZ,
(P15,810,032.07) and Three Million Nine Hundred Sixty-One (now DR. ALCESTIS M. NACHURA, and
Thousand Nine Hundred Sixty-Four Pesos and Six Centavos GUIANG),
(P3,961,964.06) representing fifty percent (50%) wharfage fees and Petitioners, REYES, JJ.
thirty percent (30%) berthing charges respectively, from 1977 to 1991,
and the sum of Five Million Ninety-Five Thousand Thirty Pesos and
Seventeen Centavos (P5,095,030.17) representing PPAs unlawfully -versus-
collected government share in the gross income of TEFASCO's
arrastre and stevedoring operations during the said period; Promulgated:
YASUYUKI OTA, July 14, 2008
2. The said principal amounts herein ordered to be paid by PPA to Respondent.
TEFASCO shall earn interest at six percent (6%) per annum from July x -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- --
15, 1992, date of promulgation of the Decision of the Regional Trial -- -- x
Court, Branch 17 of Davao City in Civil Case No. 19216-88; and
D E C I S I O N
3. The PPA is also ordered to pay TEFASCO the sum of Five Hundred
Thousand Pesos (P500,000.00) for and as attorneys fees. AUSTRIA-MARTINEZ, J.:

Costs against the Philippine Ports Authority. Before the Court is a Petition for Review on Certiorari assailing the
SO ORDERED. Decision[1] of the Court of Appeals (CA) in CA-G.R. SP No.
84945[2] dated November 16, 2004 which affirmed the Decision[3] of the
Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, Regional Trial Court (RTC), Branch 22, Manila, dated October 19,
JJ., concur. 2003.[4]
 contravention of the provision of Section 20 of Republic Act (R.A.) No.
The facts are as follows: 2382 (The Medical Act of 1959), depriving him of his legitimate right
to practice his profession in the Philippines to his great damage and
Yasuyuki Ota (respondent) is a Japanese national, married to a Filipina, prejudice.[11]
who has continuously resided in the Philippines for more than 10
years. He graduated from Bicol Christian College of Medicine on April On October 19, 2003, the RTC rendered its Decision finding that
21, 1991 with a degree of Doctor of Medicine.[5] After successfully respondent had adequately proved that the medical laws of Japan allow
completing a one-year post graduate internship training at foreigners like Filipinos to be granted license and be admitted into the
the Jose Reyes Memorial Medical Center, he filed an application to take practice of medicine under the principle of reciprocity; and that the
the medical board examinations in order to obtain a medical license. He Board had a ministerial duty of issuing the Certificate of Registration
was required by the Professional Regulation Commission (PRC) to and license to respondent, as it was shown that he had substantially
submit an affidavit of undertaking, stating among others that should he complied with the requirements under the law.[12] The RTC then ordered
successfully pass the same, he would not practice medicine until he the Board to issue in favor of respondent the corresponding Certificate
submits proof that reciprocity exists between Japan and the Philippines of Registration and/or license to practice medicine in the Philippines.[13]
in admitting foreigners into the practice of medicine.[6] The Board and the PRC (petitioners) appealed the case to the CA, stating
that while respondent submitted documents showing that foreigners are
Respondent submitted a duly notarized English translation of the allowed to practice medicine in Japan, it was not shown that the
Medical Practitioners Law of Japan duly authenticated by the Consul conditions for the practice of medicine there are practical and attainable
General of the Philippine Embassy to Japan, Jesus I. Yabes;[7] thus, he by a foreign applicant, hence, reciprocity was not established; also, the
was allowed to take the Medical Board Examinations in August 1992, power of the PRC and the Board to regulate and control the practice of
which he subsequently passed.[8] medicine is discretionary and not ministerial, hence, not compellable by
a writ of mandamus.[14]
In spite of all these, the Board of Medicine (Board) of the PRC, in
a letter dated March 8, 1993, denied respondent's request for a The CA denied the appeal and affirmed the ruling of the RTC.[15]
license to
Hence, herein petition raising the following issue:

practice medicine in the Philippines on the ground that the Board WHETHER THE COURT OF APPEALS
believes that no genuine reciprocity can be found in the law of Japan as COMMITTED A REVERSIBLE ERROR IN FINDING
there is no Filipino or foreigner who can possibly practice there.[9] THAT RESPONDENT HAD ESTABLISHED THE
EXISTENCE OF RECIPROCITY IN THE PRACTICE
Respondent then filed a Petition for Certiorari and Mandamus against OF MEDICINE BETWEEN
[16]
the Board before the RTC of Manila on June 24, 1993, which petition THE PHILIPPINES AND JAPAN.
was amended on February 14, 1994 to implead the PRC through its Petitioners claim that: respondent has not established by competent and
Chairman.[10] conclusive evidence that reciprocity in the practice of medicine exists
between the Philippines and Japan. While documents state that
In his petition before the RTC, respondent alleged that the Board and foreigners are allowed to practice medicine in Japan, they do not
the PRC, in refusing to issue in his favor a Certificate of Registration similarly show that the conditions for the practice of medicine in said
and/or license to practice medicine, had acted arbitrarily, in clear country are practical and attainable by a foreign applicant. There is no
reciprocity in this case, as the requirements to practice medicine
in Japan are practically impossible for a Filipino to comply with. There
are also ambiguities in the Medical Practitioners Law of Japan, which
were not clarified by respondent, i.e., what are the provisions of the
School Educations Laws, what are the criteria of the Minister of Health
and Welfare of Japan in determining whether the academic and
technical capability of foreign medical graduates are the same or better
than graduates of medical schools in Japan, and who can actually qualify
to take the preparatory test for the National Medical Examination.
Consul General Yabes also stated that there had not been a single
Filipino who was issued a license to practice medicine by the Japanese
Government. The publication showing that there were foreigners
practicing medicine in Japan, which respondent presented before the
Court, also did not specifically show that Filipinos were among those
listed as practicing said profession.[17] Furthermore, under Professional
Regulation Commission v. De Guzman,[18] the power of the PRC and the
Board to regulate and control the practice of medicine includes the
power to regulate admission to the ranks of those authorized to practice
medicine, which power is discretionary and not ministerial, hence, not
compellable by a writ of mandamus.[19]
Petitioners pray that the CA Decision dated November 16, 2004 be
reversed and set aside, that a new one be rendered reinstating the Board
Order dated March 8, 1993 which disallows respondent to practice
medicine in the Philippines, and that respondent's petition before the
trial court be dismissed for lack of merit.[20] examinations.[27]
In his Comment, respondent argues that: Articles 2 and 11 of the
Medical Practitioners Law of Japan and Section 9 of the Philippine
Medical Act of 1959 show that reciprocity exists between
the Philippines and Japan concerning the practice of medicine. Said
laws clearly state that both countries allow foreigners to practice
medicine in their respective jurisdictions as long as the applicant meets
the educational requirements, training or residency in hospitals and pass
the licensure examination given by either country. Consul
General Yabes in his letter dated January 28, 1992 stated that the
Japanese Government allows a foreigner to practice medicine
in Japan after complying with the local requirements. The fact that there
is no reported Filipino who has successfully penetrated the medical
practice in Japan does not mean that there is no reciprocity between the
two countries, since it does not follow that no Filipino will ever be
granted a medical license by the Japanese Government. It is not the
essence of reciprocity that before a citizen of one of the contracting
countries can demand its application, it is necessary that the interested
citizens country has previously granted the same privilege to the citizens
of the other contracting country.[21] Respondent further argues that
Section 20 of the Medical Act of 1959[22] indicates the mandatory
character of the statute and an imperative obligation on the part of the
Board inconsistent with the idea of discretion. Thus, a foreigner, just
like a Filipino citizen, who successfully passes the examination and has
all the qualifications and none of the disqualifications, is entitled as a
matter of right to the issuance of a certificate of registration or a
physicians license, which right is enforceable by mandamus.[23]
Petitioners filed a Reply[24] and both parties filed their respective
memoranda[25] reiterating their arguments.
The Court denies the petition for lack of merit.
There is no question that a license to practice medicine is a
privilege or franchise granted by the government.[26] It is a right that is
earned through years of education and training, and which requires that
one must first secure a license from the state through professional board
Indeed,
[T]he regulation of the practice of medicine in all its
branches has long been recognized as a reasonable
method of protecting the health and safety of the
public. That the power to regulate and control the
practice of medicine includes the power to regulate
admission to the ranks of those authorized to practice
medicine, is also well recognized. Thus, legislation and
administrative regulations requiring those who wish to
practice medicine first to take and pass medical board
examinations have long ago been recognized as valid
exercises of governmental power. Similarly, the
establishment of minimum medical educational
requirements i.e., the completion of prescribed courses
 in a recognized medical school for admission to the
medical profession, has also been sustained as a j) The [Professional Regulation] Commission
legitimate exercise of the regulatory authority of the may, upon the recommendation of the Board concerned,
state.[28] approve the registration of and authorize the issuance of
a certificate of registration with or without examination
to a foreigner who is registered under the laws of his
It must be stressed however that the power to regulate the country: Provided, That the requirement for the
exercise of a profession or pursuit of an occupation cannot be exercised registration or licensing in said foreign state or country
by the State or its agents in an arbitrary, despotic, or oppressive are substantially the same as those required and
manner. A political body which regulates the exercise of a particular contemplated by the laws of the Philippines and that the
privilege has the authority to both forbid and grant such privilege in laws of such foreign state or country allow the citizens
accordance with certain conditions. As the legislature cannot validly of the Philippines to practice the profession on the same
bestow an arbitrary power to grant or refuse a license on a public agency basis and grant the same privileges as the subject or
or officer, courts will generally strike down license legislation that vests citizens of such foreign state or country: Provided,
in public officials discretion to grant or refuse a license to carry on some finally, That the applicant shall submit competent and
ordinarily lawful business, profession, or activity without prescribing conclusive documentary evidence, confirmed by the
definite rules and conditions for the guidance of said officials in the Department of Foreign Affairs, showing that his
exercise of their power.[29] country's existing laws permit citizens of the Philippines
to practice the profession under the rules and regulations
R.A. No. 2382 otherwise known as the Medical Act of 1959 states in governing citizens thereof. The Commission is also
Section 9 thereof that: hereby authorized to prescribe additional requirements
or grant certain privileges to foreigners seeking
Section 9. Candidates for Board registration in the Philippines if the same privileges are
Examinations.- Candidates for Board examinations shall granted to or some additional requirements are required
have the following qualifications: of citizens of the Philippines in acquiring the same
certificates in his country;
1. He shall be a citizen of the Philippines or a citizen of
any foreign country who has submitted competent and x x x x
conclusive documentary evidence, confirmed by the
Department of Foreign Affairs, showing that his
countrys existing laws permit citizens of the Philippines As required by the said laws, respondent submitted a copy of the
to practice medicine under the same rules and regulations Medical Practitioners Law of Japan, duly authenticated by the Consul
governing citizens thereof; General of the Embassy of the Philippines in Japan, which provides in
Articles 2 and 11, thus:
x x x x
Article 2. Anyone who wants to be medical
practitioner must pass the national examination for
Presidential Decree (P.D.) No. 223[30] also provides in medical practitioner and get license from the Minister of
Section (j) thereof that: Health and Welfare.
 Department of Foreign Affairs (DFA), showing that his countrys
x x x x existing laws permit citizens of the Philippines to practice medicine
under the same rules and regulations governing citizens thereof.
Article 11. No one can take the National Medical
Examination except persons who conform to one of the Section (j) of P.D. No. 223 also defines the extent
following items: of PRC's power to grant licenses, i.e., it may, upon recommendation of
the board, approve the registration and authorize the issuance of a
1. Persons who finished regular medical certificate of registration with or without examination to a foreigner
courses at a university based on the School who is registered under the laws of his country, provided the following
Education Laws (December 26, 1947) and conditions are met: (1) that the requirement for the registration or
graduated from said university. licensing in said foreign state or country are substantially the same as
those required and contemplated by the laws of the Philippines; (2) that
2. Persons who passed the preparatory test for the laws of such foreign state or country allow the citizens of the
the National Medical Examination and Philippines to practice the profession on the same basis and grant the
practiced clinics and public sanitation more same privileges as the subject or citizens of such foreign state or
than one year after passing the said test. country; and (3) that the applicant shall submit competent and
conclusive documentary evidence, confirmed by the DFA, showing that
3. Persons who graduated from a foreign his country's existing laws permit citizens of the Philippines to practice
medical school or acquired medical the profession under the rules and regulations governing citizens
practitioner license in a foreign country, and thereof.
also are recognized to have the same or more
academic ability and techniques as persons The said provision further states that the PRC is authorized to
stated in item 1 and item 2 of this article.[31] prescribe additional requirements or grant certain privileges to
foreigners seeking registration in the Philippines if the same privileges
are granted to or some additional requirements are required of citizens
Petitioners argue that while the Medical Practitioners Law of of the Philippines in acquiring the same certificates in his country.
Japan allows foreigners to practice medicine therein, said document
does not show that conditions for the practice of medicine in said Nowhere in said statutes is it stated that the foreign applicant
country are practical and attainable by a foreign applicant; and since must show that the conditions for the practice of medicine in said
the requirements are practically impossible for a Filipino to comply country are practical and attainable by Filipinos. Neither is it stated that
with, there is no reciprocity between the two countries, hence, it must first be proven that a Filipino has been granted license and
respondent may not be granted license to practice medicine in the allowed to practice his profession in said country before a foreign
Philippines. applicant may be given license to practice in the Philippines.Indeed, the
phrase used in both R.A. No. 2382 and P.D. No. 223 is that:
The Court does not agree. [T]he applicant shall submit] competent and conclusive
documentary evidence, confirmed by the Department of
R.A. No. 2382, which provides who may be candidates for the Foreign Affairs, showing that his country's existing
medical board examinations, merely requires a foreign citizen to submit laws permit citizens of the Philippines to practice the
competent and conclusive documentary evidence, confirmed by the profession [of medicine] under the [same] rules and
 regulations governing citizens thereof. x x x (Emphasis
supplied) 1. They are not aware of a Filipino physician who
was granted a license by the Japanese
Government to practice medicine in Japan;
It is enough that the laws in the foreign country permit a Filipino 2. However, the Japanese Government allows a
to get license and practice therein. Requiring respondent to prove first foreigner to practice medicine in Japan after
that a Filipino has already been granted license and is actually practicing complying with the local requirements such as
therein unduly expands the requirements provided for under R.A. No. holding a valid visa for the purpose of taking
2382 and P.D. No. 223. the medical board exam, checking the
applicant's qualifications to take the
While it is true that respondent failed to give details as to the examination, taking the national board
conditions stated in the Medical Practitioners Law of Japan -- i.e., the examination in Japanese and filing an
provisions of the School Educations Laws, the criteria of the Minister application for the issuance of the medical
of Health and Welfare of Japan in determining whether the academic license.
and technical capability of foreign medical graduates are the same as or
better than that of graduates of medical schools in Japan, and who can Accordingly, the Embassy is not aware of a
actually qualify to take the preparatory test for the National Medical single Filipino physician who was issued by the
Examination respondent, however, presented proof that foreigners are Japanese Government a license to practice medicine,
actually practicing in Japan and that Filipinos are not precluded from because it is extremely difficult to pass the medical
getting a license to practice there. board examination in the Japanese language. Filipino
doctors here are only allowed to work in Japanese
Respondent presented before the trial court a Japanese hospitals as trainees under the supervision of a Japanese
Government publication, Physician-Dentist-Pharmaceutist Survey, doctor. On certain occasions, they are allowed to show
showing that there are a number of foreign physicians practicing their medical skills during seminars for demonstration
medicine in Japan.[32] He also presented a letter dated January 28, purposes only. (Emphasis supplied)
1992 from Consul General Yabes,[33] which states:
Very truly yours,

S i r : Jesus I. Yabes
Minister Counsellor &
With reference to your letter dated 12 January Consul General
1993, concerning your request for a Certificate of
Confirmation for the purpose of establishing a
reciprocity with Japan in the practice of medical From said letter, one can see that the Japanese Government
profession relative to the case of Mr. Yasuyuki Ota, a allows foreigners to practice medicine therein provided that the local
Japanese national, the Embassy wishes to inform you that requirements are complied with, and that it is not the impossibility or
inquiries from the Japanese Ministry of Foreign Affairs, the prohibition against Filipinos that would account for the absence of
Ministry of Health and Welfare as well as Bureau of Filipino physicians holding licenses and practicing medicine in Japan,
Immigration yielded the following information: but the difficulty of passing the board examination in the Japanese
language. Granting that there is still no Filipino who has been given to Section 20 and par. (1) of Section 22 of the Medical
license to practice medicine in Japan, it does not mean that no Filipino Act of 1959.[38]
will ever be able to be given one.
In this case, there is no doubt as to the competence and
Petitioners next argue that as held in De Guzman, its power to qualifications of respondent. He finished his medical degree
issue licenses is discretionary, hence, not compellable by mandamus. from Bicol Christian College of Medicine. He completed a one-year
post graduate internship training at
The Court finds that the factual circumstances of De Guzman are the Jose Reyes Memorial Medical Center, a government hospital. Then
different from those of the case at bar; hence, the principle applied he passed the Medical Board Examinations which was given on August
therein should be viewed differently in this case. In De Guzman, there 8, 1992 with a general average of 81.83, with scores higher than 80 in 9
were doubts about the integrity and validity of the test results of the of the 12 subjects.
examinees from a particular school which garnered unusually high
scores in the two most difficult subjects. Said doubts called for serious In fine, the only matter being questioned by petitioners is the
inquiry concerning the applicants satisfactory compliance with the alleged failure of respondent to prove that there is reciprocity between
Board requirements.[34] And as there was no definite showing that the the laws of Japan and the Philippines in admitting foreigners into the
requirements and conditions to be granted license to practice medicine practice of medicine. Respondent has satisfactorily complied with the
had been satisfactorily met, the Court held that the writ said requirement and the CA has not committed any reversible error in
of mandamus may not be granted to secure said privilege without rendering its Decision dated November 16, 2004and Resolution
thwarting the legislative will.[35] dated October 19, 2003.

Indeed, to be granted the privilege to practice medicine, the WHEREFORE, the petition is hereby DENIED for lack of
applicant must show that he possesses all the qualifications and none of merit.
the disqualifications. It must also appear that he has fully complied with
all the conditions and requirements imposed by the law and the SO ORDERED.
licensing authority.[36]

In De Guzman itself, the Court explained that:

A careful reading of Section 20[37] of the Medical
Act of 1959 discloses that the law uses the word shall
with respect to the issuance of certificates of
registration. Thus, the petitioners [PRC] shall sign and
issue certificates of registration to those who have
satisfactorily complied with the requirements of the
Board. In statutory construction the term shall is a word
of command. It is given imperative meaning. Thus, when
an examinee satisfies the requirements for the grant of
his physician's license, the Board is obliged to administer
to him his oath and register him as a physician, pursuant
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-31195 June 5, 1973
PHILIPPINE BLOOMING MILLS EMPLOYMENT ORGANIZATION,
NICANOR TOLENTINO, FLORENCIO, PADRIGANO RUFINO, ROXAS
MARIANO DE LEON, ASENCION PACIENTE, BONIFACIO VACUNA,
BENJAMIN PAGCU and RODULFO MUNSOD, petitioners,
vs.
PHILIPPINE BLOOMING MILLS CO., INC. and COURT OF
INDUSTRIAL RELATIONS, respondents.
L.S. Osorio & P.B. Castillo and J.C. Espinas & Associates for petitioners.
Demetrio B. Salem & Associates for private respondent.
MAKASIAR, J.:
The petitioner Philippine Blooming Mills Employees Organization
(hereinafter referred to as PBMEO) is a legitimate labor union composed
of the employees of the respondent Philippine Blooming Mills Co., Inc.,
and petitioners Nicanor Tolentino, Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu
and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass
demonstration at Malacañang on March 4, 1969, in protest against
alleged abuses of the Pasig police, to be participated in by the workers in
the first shift (from 6 A.M. to 2 P.M.) as well as those in the regular
second and third shifts (from 7 A.M. to 4 P.M. and from 8 A.M. to 5 P.M.,
respectively); and that they informed the respondent Company of their
proposed demonstration.
The questioned order dated September 15, 1969, of Associate Judge
Joaquin M. Salvador of the respondent Court reproduced the following
stipulation of facts of the parties — parties —
3. That on March 2, 1969 complainant company learned
of the projected mass demonstration at Malacañang in
protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM-
2:00 PM) workers as well as those working in the regular
shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00 PM) in
the morning of March 4, 1969;
4. That a meeting was called by the Company on March
3, 1969 at about 11:00 A.M. at the Company's canteen,
and those present were: for the Company: (1) Mr. Arthur
L. Ang (2) Atty. S. de Leon, Jr., (3) and all department
and section heads. For the PBMEO (1) Florencio
Padrigano, (2) Rufino Roxas, (3) Mariano de Leon, (4)
Asencion Paciente, (5) Bonifacio Vacuna and (6)
Benjamin Pagcu.
5. That the Company asked the union panel to confirm or
deny said projected mass demonstration at Malacañang
on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as spokesman of the union panel, confirmed the
planned demonstration and stated that the demonstration
or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that
the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however,
that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon
warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly ,
the officers present who are the organizers of the
demonstration, who shall fail to report for work the
 following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA
and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another
meeting was convoked Company represented by Atty.
C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodolfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon meeting of March
3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the
Malacañang demonstration, the workers for the first and
regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and
thus utilize the workers in the 2nd and 3rd shifts in order
not to violate the provisions of the CBA, particularly Article
XXIV: NO LOCKOUT — NO STRIKE'. All those who will
not follow this warning of the Company shall be dismiss;
De Leon reiterated the Company's warning that the
officers shall be primarily liable being the organizers of
the mass demonstration. The union panel countered that
it was rather too late to change their plans inasmuch as
the Malacañang demonstration will be held the following
morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO
sent a cablegram to the Company which was received
9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.' (Pars. 3-8, Annex "F", pp. 42-43, rec.)
Because the petitioners and their members numbering about 400
proceeded with the demonstration despite the pleas of the respondent
Company that the first shift workers should not be required to participate
in the demonstration and that the workers in the second and third shifts
should be utilized for the demonstration from 6 A.M. to 2 P.M. on March
4, 1969, respondent Company prior notice of the mass demonstration on
March 4, 1969, with the respondent Court, a charge against petitioners
and other employees who composed the first shift, charging them with a
"violation of Section 4(a)-6 in relation to Sections 13 and 14, as well as
Section 15, all of Republic Act No. 875, and of the CBA providing for 'No
Strike and No Lockout.' " (Annex "A", pp. 19-20, rec.). The charge was
accompanied by the joint affidavit of Arthur L. Ang and Cesareo de Leon,
Jr. (Annex "B", pp. 21-24, rec.). Thereafter, a corresponding complaint
was filed, dated April 18, 1969, by Acting Chief Prosecutor Antonio T.
Tirona and Acting Prosecutor Linda P. Ilagan (Annex "C", pp. 25-30, rec.)
In their answer, dated May 9, 1969, herein petitioners claim that they did
not violate the existing CBA because they gave the respondent Company
prior notice of the mass demonstration on March 4, 1969; that the said
mass demonstration was a valid exercise of their constitutional freedom
of speech against the alleged abuses of some Pasig policemen; and that
their mass demonstration was not a declaration of strike because it was
not directed against the respondent firm (Annex "D", pp. 31-34, rec.)
After considering the aforementioned stipulation of facts submitted by the
parties, Judge Joaquin M. Salvador, in an order dated September 15,
1969, found herein petitioner PBMEO guilty of bargaining in bad faith and
herein petitioners Florencio Padrigano, Rufino Roxas, Mariano de Leon,
Asencion Paciente, Bonifacio Vacuna, Benjamin Pagcu, Nicanor
Tolentino and Rodulfo Munsod as directly responsible for perpetrating the
said unfair labor practice and were, as a consequence, considered to
have lost their status as employees of the respondent Company (Annex
"F", pp. 42-56, rec.)
Herein petitioners claim that they received on September 23, 1969, the
aforesaid order (p. 11, rec.); and that they filed on September 29, 1969,
because September 28, 1969 fell on Sunday (p. 59, rec.), a motion for
reconsideration of said order dated September 15, 1969, on the ground
that it is contrary to law and the evidence, as well as asked for ten (10)
days within which to file their arguments pursuant to Sections 15, 16 and
17 of the Rules of the CIR, as amended (Annex "G", pp. 57-60, rec. )
In its opposition dated October 7, 1969, filed on October 11, 1969 (p. 63,
rec.), respondent Company averred that herein petitioners received on
September 22, 1969, the order dated September 17 (should be
September 15), 1969; that under Section 15 of the amended Rules of the
Court of Industrial Relations, herein petitioners had five (5) days from
September 22, 1969 or until September 27, 1969, within which to file their
motion for reconsideration; and that because their motion for
reconsideration was two (2) days late, it should be accordingly dismissed,
invoking Bien vs. Castillo,1 which held among others, that a motion for
extension of the five-day period for the filing of a motion for
reconsideration should be filed before the said five-day period elapses
(Annex "M", pp. 61-64, rec.).
Subsequently, herein petitioners filed on October 14, 1969 their written
arguments dated October 11, 1969, in support of their motion for
reconsideration (Annex "I", pp. 65-73, rec.).
In a resolution dated October 9, 1969, the respondent en banc dismissed
the motion for reconsideration of herein petitioners for being pro forma as
it was filed beyond the reglementary period prescribed by its Rules
(Annex "J", pp. 74-75, rec.), which herein petitioners received on October
28, 196 (pp. 12 & 76, rec.).
At the bottom of the notice of the order dated October 9, 1969, which was
released on October 24, 1969 and addressed to the counsels of the
parties (pp. 75-76, rec.), appear the requirements of Sections 15, 16 and
17, as amended, of the Rules of the Court of Industrial Relations, that a
motion for reconsideration shall be filed within five (5) days from receipt
of its decision or order and that an appeal from the decision, resolution or
order of the C.I.R., sitting en banc, shall be perfected within ten (10) days
from receipt thereof (p. 76, rec.).
On October 31, 1969, herein petitioners filed with the respondent court a
petition for relief from the order dated October 9, 1969, on the ground
that their failure to file their motion for reconsideration on time was due to
excusable negligence and honest mistake committed by the president of
the petitioner Union and of the office clerk of their counsel, attaching
thereto the affidavits of the said president and clerk (Annexes "K", "K-1"
and "K-2", rec.).
Without waiting for any resolution on their petition for relief from the order
dated October 9, 1969, herein petitioners filed on November 3, 1969, with
the Supreme Court, a notice of appeal (Annex "L", pp. 88-89, rec.).
I administration of public affairs as well as in the discipline of abusive
There is need of briefly restating basic concepts and principles which
underlie the issues posed by the case at bar.
(1) In a democracy, the preservation and enhancement of the dignity and
worth of the human personality is the central core as well as the cardinal
article of faith of our civilization. The inviolable character of man as an
individual must be "protected to the largest possible extent in his thoughts
and in his beliefs as the citadel of his person."2
(2) The Bill of Rights is designed to preserve the ideals of liberty, equality
and security "against the assaults of opportunism, the expediency of the
passing hour, the erosion of small encroachments, and the scorn and
derision of those who have no patience with general principles."3
In the pithy language of Mr. Justice Robert Jackson, the purpose of the
Bill of Rights is to withdraw "certain subjects from the vicissitudes of
political controversy, to place them beyond the reach of majorities and
officials, and to establish them as legal principles to be applied by the
courts. One's rights to life, liberty and property, to free speech, or free
press, freedom of worship and assembly, and other fundamental rights
may not be submitted to a vote; they depend on the outcome of no
elections."4 Laski proclaimed that "the happiness of the individual, not the
well-being of the State, was the criterion by which its behaviour was to be
judged. His interests, not its power, set the limits to the authority it was
entitled to exercise."5
(3) The freedoms of expression and of assembly as well as the right to
petition are included among the immunities reserved by the sovereign
people, in the rhetorical aphorism of Justice Holmes, to protect the ideas
that we abhor or hate more than the ideas we cherish; or as Socrates
insinuated, not only to protect the minority who want to talk, but also to
benefit the majority who refuse to listen.6 And as Justice Douglas
cogently stresses it, the liberties of one are the liberties of all; and the
liberties of one are not safe unless the liberties of all are protected.7
(4) The rights of free expression, free assembly and petition, are not only
civil rights but also political rights essential to man's enjoyment of his life,
to his happiness and to his full and complete fulfillment. Thru these
freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the
public officers. The citizen is accorded these rights so that he can appeal
to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring
public officers and employees.
(5) While the Bill of Rights also protects property rights, the primacy of
human rights over property rights is recognized.8 Because these
freedoms are "delicate and vulnerable, as well as supremely precious in
our society" and the "threat of sanctions may deter their exercise almost
as potently as the actual application of sanctions," they "need breathing
space to survive," permitting government regulation only "with narrow
specificity."9
Property and property rights can be lost thru prescription; but human
rights are imprescriptible. If human rights are extinguished by the
passage of time, then the Bill of Rights is a useless attempt to limit the
power of government and ceases to be an efficacious shield against the
tyranny of officials, of majorities, of the influential and powerful, and of
oligarchs — political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of
assembly occupy a preferred position as they are essential to the
preservation and vitality of our civil and political institutions; 10 and such
priority "gives these liberties the sanctity and the sanction not permitting
dubious intrusions." 11
The superiority of these freedoms over property rights is underscored by
the fact that a mere reasonable or rational relation between the means
employed by the law and its object or purpose — that the law is neither
arbitrary nor discriminatory nor oppressive — would suffice to validate a
law which restricts or impairs property rights. 12 On the other hand, a
constitutional or valid infringement of human rights requires a more
stringent criterion, namely existence of a grave and immediate danger of
a substantive evil which the State has the right to prevent. So it has been
stressed in the main opinion of Mr. Justice Fernando in Gonzales vs.
Comelec and reiterated by the writer of the opinion in Imbong vs.
Ferrer. 13 It should be added that Mr. Justice Barredo in Gonzales vs.
Comelec, supra, like Justices Douglas, Black and Goldberg in N.Y. Times
Co. vs. Sullivan, 14 believes that the freedoms of speech and of the press
as well as of peaceful assembly and of petition for redress of grievances
are absolute when directed against public officials or "when exercised in
relation to our right to choose the men and women by whom we shall be
governed," 15 even as Mr. Justice Castro relies on the balancing-of-
interests test. 16 Chief Justice Vinson is partial to the improbable danger
rule formulated by Chief Judge Learned Hand, viz. — whether the gravity
of the evil, discounted by its improbability, justifies such invasion of free
expression as is necessary to avoid the danger. 17
II
The respondent Court of Industrial Relations, after opining that the mass
demonstration was not a declaration of strike, concluded that by their
"concerted act and the occurrence temporary stoppage of work," herein
petitioners are guilty bargaining in bad faith and hence violated the
collective bargaining agreement with private respondent Philippine
Blooming Mills Co., inc.. Set against and tested by foregoing principles
governing a democratic society, such conclusion cannot be sustained.
The demonstration held petitioners on March 4, 1969 before Malacañang
was against alleged abuses of some Pasig policemen, not against their
employer, herein private respondent firm, said demonstrate was purely
and completely an exercise of their freedom expression in general and of
their right of assembly and petition for redress of grievances in particular
before appropriate governmental agency, the Chief Executive, again the
police officers of the municipality of Pasig. They exercise their civil and
political rights for their mutual aid protection from what they believe were
police excesses. As matter of fact, it was the duty of herein private
respondent firm to protect herein petitioner Union and its members fro the
harassment of local police officers. It was to the interest herein private
respondent firm to rally to the defense of, and take up the cudgels for, its
employees, so that they can report to work free from harassment,
vexation or peril and as consequence perform more efficiently their
respective tasks enhance its productivity as well as profits. Herein
respondent employer did not even offer to intercede for its employees
with the local police. Was it securing peace for itself at the expenses of
its workers? Was it also intimidated by the local police or did it encourage
the local police to terrorize or vex its workers? Its failure to defend its own
employees all the more weakened the position of its laborers the alleged
oppressive police who might have been all the more emboldened thereby
subject its lowly employees to further indignities.
In seeking sanctuary behind their freedom of expression well as their
right of assembly and of petition against alleged persecution of local
officialdom, the employees and laborers of herein private respondent firm
were fighting for their very survival, utilizing only the weapons afforded
them by the Constitution — the untrammelled enjoyment of their basic
human rights. The pretension of their employer that it would suffer loss or
damage by reason of the absence of its employees from 6 o'clock in the
morning to 2 o'clock in the afternoon, is a plea for the preservation merely
of their property rights. Such apprehended loss or damage would not
spell the difference between the life and death of the firm or its owners or
its management. The employees' pathetic situation was a stark reality —
abused, harassment and persecuted as they believed they were by the
peace officers of the municipality. As above intimated, the condition in
which the employees found themselves vis-a-vis the local police of Pasig,
was a matter that vitally affected their right to individual existence as well
as that of their families. Material loss can be repaired or adequately
compensated. The debasement of the human being broken in morale
and brutalized in spirit-can never be fully evaluated in monetary terms.
The wounds fester and the scars remain to humiliate him to his dying
day, even as he cries in anguish for retribution, denial of which is like
rubbing salt on bruised tissues.
As heretofore stated, the primacy of human rights — freedom of
expression, of peaceful assembly and of petition for redress of
grievances — over property rights has been sustained. 18 Emphatic
reiteration of this basic tenet as a coveted boon — at once the shield and
armor of the dignity and worth of the human personality, the all-
consuming ideal of our enlightened civilization — becomes Our duty, if
freedom and social justice have any meaning at all for him who toils so
that capital can produce economic goods that can generate happiness for
all. To regard the demonstration against police officers, not against the
employer, as evidence of bad faith in collective bargaining and hence a
violation of the collective bargaining agreement and a cause for the
dismissal from employment of the demonstrating employees, stretches
unduly the compass of the collective bargaining agreement, is "a potent
means of inhibiting speech" and therefore inflicts a moral as well as
mortal wound on the constitutional guarantees of free expression, of
peaceful assembly and of petition. 19
The collective bargaining agreement which fixes the working shifts of the
employees, according to the respondent Court Industrial Relations, in
effect imposes on the workers the "duty ... to observe regular working
hours." The strain construction of the Court of Industrial Relations that a
stipulated working shifts deny the workers the right to stage mass
demonstration against police abuses during working hours, constitutes a
virtual tyranny over the mind and life the workers and deserves severe
condemnation. Renunciation of the freedom should not be predicated on
such a slender ground.
The mass demonstration staged by the employees on March 4, 1969
could not have been legally enjoined by any court, such an injunction
would be trenching upon the freedom expression of the workers, even if it
legally appears to be illegal picketing or strike. 20 The respondent Court of
Industrial Relations in the case at bar concedes that the mass
demonstration was not a declaration of a strike "as the same not rooted
in any industrial dispute although there is concerted act and the
occurrence of a temporary stoppage work." (Annex "F", p. 45, rec.).
The respondent firm claims that there was no need for all its employees
to participate in the demonstration and that they suggested to the Union
that only the first and regular shift from 6 A.M. to 2 P.M. should report for
work in order that loss or damage to the firm will be averted. This stand
failed appreciate the sine qua non of an effective demonstration
especially by a labor union, namely the complete unity of the Union
members as well as their total presence at the demonstration site in order
to generate the maximum sympathy for the validity of their cause but also
immediately action on the part of the corresponding government
agencies with jurisdiction over the issues they raised against the local
police. Circulation is one of the aspects of freedom of expression. 21 If
demonstrators are reduced by one-third, then by that much the circulation
of the issues raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the
rally. Moreover, the absence of one-third of their members will be
regarded as a substantial indication of disunity in their ranks which will
enervate their position and abet continued alleged police persecution. At
any rate, the Union notified the company two days in advance of their
projected demonstration and the company could have made
arrangements to counteract or prevent whatever losses it might sustain
by reason of the absence of its workers for one day, especially in this
case when the Union requested it to excuse only the day-shift employees
who will join the demonstration on March 4, 1969 which request the
Union reiterated in their telegram received by the company at 9:50 in the
morning of March 4, 1969, the day of the mass demonstration (pp. 42-43,
rec.). There was a lack of human understanding or compassion on the
part of the firm in rejecting the request of the Union for excuse from work
for the day shifts in order to carry out its mass demonstration. And to
regard as a ground for dismissal the mass demonstration held against
the Pasig police, not against the company, is gross vindictiveness on the
part of the employer, which is as unchristian as it is unconstitutional.
III
The respondent company is the one guilty of unfair labor practice.
Because the refusal on the part of the respondent firm to permit all its
employees and workers to join the mass demonstration against alleged
police abuses and the subsequent separation of the eight (8) petitioners
from the service constituted an unconstitutional restraint on the freedom
of expression, freedom of assembly and freedom petition for redress of
grievances, the respondent firm committed an unfair labor practice
defined in Section 4(a-1) in relation to Section 3 of Republic Act No. 875,
otherwise known as the Industrial Peace Act. Section 3 of Republic Act
No. 8 guarantees to the employees the right "to engage in concert
activities for ... mutual aid or protection"; while Section 4(a-1) regards as
an unfair labor practice for an employer interfere with, restrain or coerce
employees in the exercise their rights guaranteed in Section Three."
We repeat that the obvious purpose of the mass demonstration staged by
the workers of the respondent firm on March 4, 1969, was for their mutual
aid and protection against alleged police abuses, denial of which was
interference with or restraint on the right of the employees to engage in
such common action to better shield themselves against such alleged
police indignities. The insistence on the part of the respondent firm that
the workers for the morning and regular shift should not participate in the
mass demonstration, under pain of dismissal, was as heretofore stated,
"a potent means of inhibiting speech." 22
Such a concerted action for their mutual help and protection deserves at
least equal protection as the concerted action of employees in giving
publicity to a letter complaint charging bank president with immorality,
nepotism, favoritism an discrimination in the appointment and promotion
of ban employees. 23 We further ruled in the Republic Savings Bank
case, supra, that for the employees to come within the protective mantle
of Section 3 in relation to Section 4(a-1) on Republic Act No. 875, "it is
not necessary that union activity be involved or that collective bargaining
be contemplated," as long as the concerted activity is for the furtherance
of their interests. 24
As stated clearly in the stipulation of facts embodied in the questioned
order of respondent Court dated September 15, 1969, the company,
"while expressly acknowledging, that the demonstration is an inalienable
right of the Union guaranteed by the Constitution," nonetheless
emphasized that "any demonstration for that matter should not unduly
prejudice the normal operation of the company" and "warned the PBMEO
representatives that workers who belong to the first and regular shifts,
who without previous leave of absence approved by the Company,
particularly the officers present who are the organizers of the
demonstration, who shall fail to report for work the following morning
(March 4, 1969) shall be dismissed, because such failure is a violation of
the existing CBA and, therefore, would be amounting to an illegal strike
(;)" (p. III, petitioner's brief). Such threat of dismissal tended to coerce the
employees from joining the mass demonstration. However, the issues
that the employees raised against the local police, were more important
to them because they had the courage to proceed with the
demonstration, despite such threat of dismissal. The most that could
happen to them was to lose a day's wage by reason of their absence
from work on the day of the demonstration. One day's pay means much
to a laborer, more especially if he has a family to support. Yet, they were
willing to forego their one-day salary hoping that their demonstration
would bring about the desired relief from police abuses. But management
was adamant in refusing to recognize the superior legitimacy of their right
of free speech, free assembly and the right to petition for redress.
Because the respondent company ostensibly did not find it necessary to
demand from the workers proof of the truth of the alleged abuses inflicted
on them by the local police, it thereby concedes that the evidence of such
abuses should properly be submitted to the corresponding authorities
having jurisdiction over their complaint and to whom such complaint may
be referred by the President of the Philippines for proper investigation
and action with a view to disciplining the local police officers involved.
On the other hand, while the respondent Court of Industrial Relations
found that the demonstration "paralyzed to a large extent the operations
of the complainant company," the respondent Court of Industrial
Relations did not make any finding as to the fact of loss actually
sustained by the firm. This significant circumstance can only mean that
the firm did not sustain any loss or damage. It did not present evidence
as to whether it lost expected profits for failure to comply with purchase
orders on that day; or that penalties were exacted from it by customers
whose orders could not be filled that day of the demonstration; or that
purchase orders were cancelled by the customers by reason of its failure
to deliver the materials ordered; or that its own equipment or materials or
products were damaged due to absence of its workers on March 4, 1969.
On the contrary, the company saved a sizable amount in the form of
wages for its hundreds of workers, cost of fuel, water and electric
consumption that day. Such savings could have amply compensated for
unrealized profits or damages it might have sustained by reason of the
absence of its workers for only one day.
IV
Apart from violating the constitutional guarantees of free speech and
assembly as well as the right to petition for redress of grievances of the
employees, the dismissal of the eight (8) leaders of the workers for
proceeding with the demonstration and consequently being absent from
work, constitutes a denial of social justice likewise assured by the
fundamental law to these lowly employees. Section 5 of Article II of the
Constitution imposes upon the State "the promotion of social justice to
insure the well-being and economic security of all of the people," which
guarantee is emphasized by the other directive in Section 6 of Article XIV
of the Constitution that "the State shall afford protection to labor ...".
Respondent Court of Industrial Relations as an agency of the State is
under obligation at all times to give meaning and substance to these
constitutional guarantees in favor of the working man; for otherwise these
constitutional safeguards would be merely a lot of "meaningless
constitutional patter." Under the Industrial Peace Act, the Court of
Industrial Relations is enjoined to effect the policy of the law "to eliminate
the causes of industrial unrest by encouraging and protecting the
exercise by employees of their right to self-organization for the purpose
of collective bargaining and for the promotion of their moral, social and
economic well-being." It is most unfortunate in the case at bar that
respondent Court of Industrial Relations, the very governmental agency
designed therefor, failed to implement this policy and failed to keep faith
with its avowed mission — its raison d'etre — as ordained and directed
by the Constitution.
V notice thereof and that the arguments in support of said motion shall be
It has been likewise established that a violation of a constitutional right
divests the court of jurisdiction; and as a consequence its judgment is null
and void and confers no rights. Relief from a criminal conviction secured
at the sacrifice of constitutional liberties, may be obtained through
habeas corpus proceedings even long after the finality of the judgment.
Thus, habeas corpus is the remedy to obtain the release of an individual,
who is convicted by final judgment through a forced confession, which
violated his constitutional right against self-incrimination; 25 or who is
denied the right to present evidence in his defense as a deprivation of his
liberty without due process of law, 26 even after the accused has already
served sentence for twenty-two years. 27
Both the respondents Court of Industrial Relations and private firm
trenched upon these constitutional immunities of petitioners. Both failed
to accord preference to such rights and aggravated the inhumanity to
which the aggrieved workers claimed they had been subjected by the
municipal police. Having violated these basic human rights of the
laborers, the Court of Industrial Relations ousted itself of jurisdiction and
the questioned orders it issued in the instant case are a nullity.
Recognition and protection of such freedoms are imperative on all public
offices including the courts 28 as well as private citizens and corporations,
the exercise and enjoyment of which must not be nullified by mere
procedural rule promulgated by the Court Industrial Relations exercising
a purely delegate legislative power, when even a law enacted by
Congress must yield to the untrammelled enjoyment of these human
rights. There is no time limit to the exercise of the freedoms. The right to
enjoy them is not exhausted by the delivery of one speech, the printing of
one article or the staging of one demonstration. It is a continuing
immunity to be invoked and exercised when exigent and expedient
whenever there are errors to be rectified, abuses to be denounced,
inhumanities to be condemned. Otherwise these guarantees in the Bill of
Rights would be vitiated by rule on procedure prescribing the period for
appeal. The battle then would be reduced to a race for time. And in such
a contest between an employer and its laborer, the latter eventually loses
because he cannot employ the best an dedicated counsel who can
defend his interest with the required diligence and zeal, bereft as he is of
the financial resources with which to pay for competent legal services. 28-a
VI
The Court of Industrial Relations rule prescribes that motion for
reconsideration of its order or writ should filed within five (5) days from
filed within ten (10) days from the date of filing of such motion for
reconsideration (Sec. 16). As above intimated, these rules of procedure
were promulgated by the Court of Industrial Relations pursuant to a
legislative delegation. 29
The motion for reconsideration was filed on September 29, 1969, or
seven (7) days from notice on September 22, 1969 of the order dated
September 15, 1969 or two (2) days late. Petitioners claim that they could
have filed it on September 28, 1969, but it was a Sunday.
Does the mere fact that the motion for reconsideration was filed two (2)
days late defeat the rights of the petitioning employees? Or more directly
and concretely, does the inadvertent omission to comply with a mere
Court of Industrial Relations procedural rule governing the period for filing
a motion for reconsideration or appeal in labor cases, promulgated
pursuant to a legislative delegation, prevail over constitutional rights? The
answer should be obvious in the light of the aforecited cases. To accord
supremacy to the foregoing rules of the Court of Industrial Relations over
basic human rights sheltered by the Constitution, is not only incompatible
with the basic tenet of constitutional government that the Constitution is
superior to any statute or subordinate rules and regulations, but also
does violence to natural reason and logic. The dominance and superiority
of the constitutional right over the aforesaid Court of Industrial Relations
procedural rule of necessity should be affirmed. Such a Court of
Industrial Relations rule as applied in this case does not implement or
reinforce or strengthen the constitutional rights affected,' but instead
constrict the same to the point of nullifying the enjoyment thereof by the
petitioning employees. Said Court of Industrial Relations rule,
promulgated as it was pursuant to a mere legislative delegation, is
unreasonable and therefore is beyond the authority granted by the
Constitution and the law. A period of five (5) days within which to file a
motion for reconsideration is too short, especially for the aggrieved
workers, who usually do not have the ready funds to meet the necessary
expenses therefor. In case of the Court of Appeals and the Supreme
Court, a period of fifteen (15) days has been fixed for the filing of the
motion for re hearing or reconsideration (See. 10, Rule 51; Sec. 1, Rule
52; Sec. 1, Rule 56, Revised Rules of Court). The delay in the filing of the
motion for reconsideration could have been only one day if September
28, 1969 was not a Sunday. This fact accentuates the unreasonableness
of the Court of Industrial are concerned.
It should be stressed here that the motion for reconsideration dated
September 27, 1969, is based on the ground that the order sought to be
reconsidered "is not in accordance with law, evidence and facts adduced
during the hearing," and likewise prays for an extension of ten (10) days
within which to file arguments pursuant to Sections 15, 16 and 17 of the
Rules of the Court of Industrial Relations (Annex "G", pp. 57-60, rec.);
although the arguments were actually filed by the herein petitioners on
October 14, 1969 (Annex "I", pp. 70-73, rec.), long after the 10-day period
required for the filing of such supporting arguments counted from the
filing of the motion for reconsideration. Herein petitioners received only
on October 28, 1969 the resolution dated October 9, 1969 dismissing the
motion for reconsideration for being pro forma since it was filed beyond
the reglementary period (Annex "J", pp. 74-75, rec.)
It is true that We ruled in several cases that where a motion to reconsider
is filed out of time, or where the arguments in suppf such motion are filed
beyond the 10 day reglementary period provided for by the Court of
Industrial Relations rules, the order or decision subject of29-
a reconsideration becomes final and unappealable. But in all these
cases, the constitutional rights of free expression, free assembly and
petition were not involved.
It is a procedural rule that generally all causes of action and defenses
presently available must be specifically raised in the complaint or answer;
so that any cause of action or defense not raised in such pleadings, is
deemed waived. However, a constitutional issue can be raised any time,
even for the first time on appeal, if it appears that the determination of the
constitutional issue is necessary to a decision of the case, the very lis
mota of the case without the resolution of which no final and complete
determination of the dispute can be made. 30 It is thus seen that a
procedural rule of Congress or of the Supreme Court gives way to a
constitutional right. In the instant case, the procedural rule of the Court of
Industrial Relations, a creature of Congress, must likewise yield to the
constitutional rights invoked by herein petitioners even before the
institution of the unfair labor practice charged against them and in their
defense to the said charge.
In the case at bar, enforcement of the basic human freedoms sheltered
no less by the organic law, is a most compelling reason to deny
application of a Court of Industrial Relations rule which impinges on such
human rights. 30-a
It is an accepted principle that the Supreme Court has the inherent power
to "suspend its own rules or to except a particular case from its operation,
whenever the purposes of justice require." 30-b Mr. Justice Barredo in his
concurring opinion in Estrada vs. Sto. Domingo. 30-c reiterated this
principle and added that
Under this authority, this Court is enabled to cove with all
situations without concerning itself about procedural
niceties that do not square with the need to do justice, in
any case, without further loss of time, provided that the
right of the parties to a full day in court is not substantially
impaired. Thus, this Court may treat an appeal as a
certiorari and vice-versa. In other words, when all the
material facts are spread in the records before Us, and all
the parties have been duly heard, it matters little that the
error of the court a quo is of judgment or of jurisdiction.
We can then and there render the appropriate judgment.
Is within the contemplation of this doctrine that as it is
perfectly legal and within the power of this Court to strike
down in an appeal acts without or in excess of jurisdiction
or committed with grave abuse of discretion, it cannot be
beyond the admit of its authority, in appropriate cases, to
reverse in a certain proceed in any error of judgment of a
court a quo which cannot be exactly categorized as a flaw
of jurisdiction. If there can be any doubt, which I do not
entertain, on whether or not the errors this Court has
found in the decision of the Court of Appeals are short of
being jurisdiction nullities or excesses, this Court would
still be on firm legal grounds should it choose to reverse
said decision here and now even if such errors can be
considered as mere mistakes of judgment or only as
faults in the exercise of jurisdiction, so as to avoid the
unnecessary return of this case to the lower court for the
sole purpose of pursuing the ordinary course of an
appeal. (Emphasis supplied). 30-d
Insistence on the application of the questioned Court industrial Relations
rule in this particular case at bar would an unreasoning adherence to
"Procedural niceties" which denies justice to the herein laborers, whose
basic human freedoms, including the right to survive, must be according
supremacy over the property rights of their employer firm which has been
given a full hearing on this case, especially when, as in the case at bar,
no actual material damage has be demonstrated as having been inflicted
on its property rights.
If We can disregard our own rules when justice requires it, obedience to
the Constitution renders more imperative the suspension of a Court of
Industrial Relations rule that clash with the human rights sanctioned and
shielded with resolution concern by the specific guarantees outlined in
the organic law. It should be stressed that the application in the instant
case Section 15 of the Court of Industrial Relations rules relied upon by
herein respondent firm is unreasonable and therefore such application
becomes unconstitutional as it subverts the human rights of petitioning
labor union and workers in the light of the peculiar facts and
circumstances revealed by the record.
The suspension of the application of Section 15 of the Court of Industrial
Relations rules with reference to the case at is also authorized by Section
20 of Commonwealth Act No. 103, the C.I.R. charter, which enjoins the
Court of Industrial Relations to "act according to justice and equity and
substantial merits of the case, without regard to technicalities or legal
forms ..."
On several occasions, We emphasized this doctrine which was re-stated
by Mr. Justice Barredo, speaking for the Court, in the 1970 case
of Kapisanan, etc. vs. Hamilton, etc., et. al., 30-e thus:
As to the point that the evidence being offered by the
petitioners in the motion for new trial is not "newly
discovered," as such term is understood in the rules of
procedure for the ordinary courts, We hold that such
criterion is not binding upon the Court of Industrial
Relations. Under Section 20 of Commonwealth Act No.
103, 'The Court of Industrial Relations shall adopt its,
rules or procedure and shall have such other powers as
generally pertain to a court of justice: Provided, however,
That in the hearing, investigation and determination of
any question or controversy and in exercising any duties
and power under this Act, the Court shall act according to
justice and equity and substantial merits of the case,
without regard to technicalities or legal forms and shall
not be bound by any technical rules of legal evidence but
may inform its mind in such manner as it may deem just
and equitable.' By this provision the industrial court is
disengaged from the rigidity of the technicalities
applicable to ordinary courts. Said court is not even
restricted to the specific relief demanded by the
parties but may issue such orders as may be deemed
necessary or expedient for the purpose of settling the
dispute or dispelling any doubts that may give rise to
future disputes. (Ang Tibay v. C.I.R., G.R. No. 46496,
Feb. 17, 1940; Manila Trading & Supply Co. v. Phil.
Labor, 71 Phil. 124.) For these reasons, We believe that
this provision is ample enough to have enabled the
respondent court to consider whether or not its previous
ruling that petitioners constitute a minority was founded
on fact, without regard to the technical meaning of newly
discovered evidence. ... (Alonso v. Villamor, 16 Phil. 315;
Chua Kiong v. Whitaker, 46 Phil. 578). (emphasis
supplied.)
To apply Section 15 of the Court of Industrial Relations rules with
"pedantic rigor" in the instant case is to rule in effect that the poor
workers, who can ill-afford an alert competent lawyer, can no longer seek
the sanctuary of human freedoms secured to them by the fundamental
law, simply because their counsel — erroneously believing that he
received a copy of the decision on September 23, 1969, instead of
September 22, 1969 - filed his motion for reconsideration September 29,
1969, which practically is only one day late considering that September
28, 1969 was a Sunday.
Many a time, this Court deviated from procedure technicalities when they
ceased to be instruments of justice, for the attainment of which such rules
have been devised. Summarizing the jurisprudence on this score, Mr.
Justice Fernando, speaking for a unanimous Court in Palma vs. Oreta, 30-
f Stated:
As was so aptly expressed by Justice Moreland in Alonso
v. Villamor (16 Phil. 315 [1910]. The Villamor decision
was cited with approval in Register of Deeds v. Phil. Nat.
Bank, 84 Phil. 600 [1949]; Potenciano v. Court of
Appeals, 104 Phil. 156 [1958] and Uy v. Uy, 14243, June
30, 1961, 2 SCRA 675.), decided as far back as 1910,
"technicality. when it deserts its proper-office as an aid to
justice and becomes its great hindrance and chief enemy,
deserves scant consideration from courts." (Ibid., p, 322.)
To that norm, this Court has remained committed. The
late Justice Recto in Blanco v. Bernabe, (63 Phil. 124
[1936]) was of a similar mind. For him the interpretation of
 procedural rule should never "sacrifice the ends justice."
While "procedural laws are no other than technicalities"
view them in their entirety, 'they were adopted not as
ends themselves for the compliance with which courts
have organized and function, but as means conducive to
the realization the administration of the law and of justice
(Ibid., p.,128). We have remained steadfastly opposed, in
the highly rhetorical language Justice Felix, to "a sacrifice
of substantial rights of a litigant in altar of sophisticated
technicalities with impairment of the sacred principles of
justice." (Potenciano v. Court of Appeals, 104 Phil. 156,
161 [1958]). As succinctly put by Justice Makalintal, they
"should give way to the realities of the situation."
(Urbayan v. Caltex, L-15379, Aug. 31, 1962, 5 SCRA
1016, 1019). In the latest decision in point promulgated in
1968, (Udan v. Amon, (1968, 23 SCRA citing McEntee v.
Manotok, L-14968, Oct. 27, 1961, 3 SCRA 272.) Justice
Zaldivar was partial to an earlier formulation of Justice
Labrador that rules of procedure "are not to be applied in
a very rigid, technical sense"; but are intended "to help
secure substantial justice." (Ibid., p. 843) ... 30-g
Even if the questioned Court of Industrial Relations orders and rule were
to be given effect, the dismissal or termination of the employment of the
petitioning eight (8) leaders of the Union is harsh for a one-day absence
from work. The respondent Court itself recognized the severity of such a
sanction when it did not include the dismissal of the other 393 employees
who are members of the same Union and who participated in the
demonstration against the Pasig police. As a matter of fact, upon the
intercession of the Secretary of Labor, the Union members who are not
officers, were not dismissed and only the Union itself and its thirteen (13)
officers were specifically named as respondents in the unfair labor
practice charge filed against them by the firm (pp. 16-20, respondent's
Brief; Annexes "A", "B" and "C", pp. 20-30, rec.). Counsel for respondent
firm insinuates that not all the 400 or so employee participated in the
demonstration, for which reason only the Union and its thirteen (13)
officers were specifically named in the unfair labor practice charge (p. 20,
respondent's brief). If that were so, then many, if not all, of the morning
and regular shifts reported for work on March 4, 1969 and that, as a
consequence, the firm continued in operation that day and did not sustain
any damage.
The appropriate penalty — if it deserves any penalty at all — should have
been simply to charge said one-day absence against their vacation or
sick leave. But to dismiss the eight (8) leaders of the petitioner Union is a
most cruel penalty, since as aforestated the Union leaders depend on
their wages for their daily sustenance as well as that of their respective
families aside from the fact that it is a lethal blow to unionism, while at the
same time strengthening the oppressive hand of the petty tyrants in the
localities.
Mr. Justice Douglas articulated this pointed reminder:
The challenge to our liberties comes frequently not from
those who consciously seek to destroy our system of
Government, but from men of goodwill — good men who
allow their proper concerns to blind them to the fact that
what they propose to accomplish involves an impairment
of liberty.
... The Motives of these men are often commendable.
What we must remember, however, is thatpreservation of
liberties does not depend on motives. A suppression of
liberty has the same effect whether the suppress or be a
reformer or an outlaw. The only protection against
misguided zeal is a constant alertness of the infractions of
the guarantees of liberty contained in our
Constitution. Each surrender of liberty to the demands of
the moment makes easier another, larger surrender. The
battle over the Bill of Rights is a never ending one.
... The liberties of any person are the liberties of all of us.
... In short, the Liberties of none are safe unless the
liberties of all are protected.
... But even if we should sense no danger to our own
liberties, even if we feel secure because we belong to a
group that is important and respected, we must recognize
that our Bill of Rights is a code of fair play for the less
fortunate that we in all honor and good conscience must
be observe. 31
The case at bar is worse.
Management has shown not only lack of good-will or good intention, but
a complete lack of sympathetic understanding of the plight of its laborers
who claim that they are being subjected to indignities by the local police,
It was more expedient for the firm to conserve its income or profits than to
assist its employees in their fight for their freedoms and security against
alleged petty tyrannies of local police officers. This is sheer opportunism.
Such opportunism and expediency resorted to by the respondent
company assaulted the immunities and welfare of its employees. It was
pure and implement selfishness, if not greed.
Of happy relevance is the 1967 case of Republic Savings Bank vs.
C.I.R., 32 where the petitioner Bank dismissed eight (8) employees for
having written and published "a patently libelous letter ... to the Bank
president demanding his resignation on the grounds of immorality,
nepotism in the appointment and favoritism as well as discrimination in
the promotion of bank employees." Therein, thru Mr. Justice Castro, We
ruled:
It will avail the Bank none to gloat over this admission of
the respondents. Assuming that the latter acted in their
individual capacities when they wrote the letter-charge
they were nonetheless protected for they were engaged
in concerted activity, in the exercise of their right of self
organization that includes concerted activity for mutual aid
and protection, (Section 3 of the Industrial Peace Act ...)
This is the view of some members of this Court. For, as
has been aptly stated, the joining in protests or demands,
even by a small group of employees, if in furtherance of
their interests as such, is a concerted activity protected by
the Industrial Peace Act. It is not necessary that union
activity be involved or that collective bargaining be
contemplated. (Annot., 6 A.L.R. 2d 416 [1949]).
xxx xxx xxx
Instead of stifling criticism, the Bank should have allowed
the respondents to air their grievances.
xxx xxx xxx
The Bank defends its action by invoking its right to
discipline for what it calls the respondents' libel in giving
undue publicity to their letter-charge. To be sure, the right
of self-organization of employees is not unlimited
(Republic Aviation Corp. vs. NLRB 324 U.S. 793 [1945]),
as the right of the employer to discharge for cause
(Philippine Education Co. v. Union of Phil. Educ.
Employees, L-13773, April 29, 1960) is undenied. The
Industrial Peace Act does not touch the normal exercise
of the right of the employer to select his employees or to
discharge them. It is directed solely against the abuse of
that right by interfering with the countervailing right of self
organization (Phelps Dodge Corp. v. NLRB 313 U.S. 177
[1941])...
xxx xxx xxx
In the final sum and substance, this Court is in unanimity
that the Bank's conduct, identified as an interference with
the employees' right of self-organization or as a retaliatory
action, and/or as a refusal to bargain collectively,
constituted an unfair labor practice within the meaning
and intendment of section 4(a) of the Industrial Peace
Act. (Emphasis supplied.) 33
If free expression was accorded recognition and protection to fortify labor
unionism in the Republic Savings case, supra, where the complaint
assailed the morality and integrity of the bank president no less, such
recognition and protection for free speech, free assembly and right to
petition are rendered all the more justifiable and more imperative in the
case at bar, where the mass demonstration was not against the company
nor any of its officers.
WHEREFORE, judgement is hereby rendered:
(1) setting aside as null and void the orders of the respondent Court of
Industrial Relations dated September 15 and October 9, 1969; and
(2) directing the re instatement of the herein eight (8) petitioners, with full
back pay from the date of their separation from the service until re
instated, minus one day's pay and whatever earnings they might have
realized from other sources during their separation from the service.
With costs against private respondent Philippine Blooming Company, Inc.
Zaldivar, Castro, Fernando and Esguerra, JJ., concur.
Makalintal, C.J, took no part.

Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels
me to dissent.
The background of this case may be found principally in the stipulation of
facts upon which the decision under review is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company,
Inc., is a corporation existing and operating under and by
virtue of the laws of the Philippines with corporate
address at 666 Muelle de Binondo, Manila, which is the
employer of respondent;
2. That Philippine Blooming Mills Employees Organization
PBMEO for short, is a legitimate labor organization, and
the respondents herein are either officers of respondent
PBMEO or members thereof;
3. That on March 2, 1969 complainant company learned
of the projected mass demonstration at Malacañang in
protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM
— 2:00 PM workers as well as those working in the
regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00
PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March
3, 1969 at about 11:00 A.M. at the Company's canteen,
and those present were: for the Company: (1) Mr. Arthur
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all
department and section heads. For the PBMEO (1)
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or
deny said projected mass demonstration at Malacañang
on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the
planned demonstration and stated that the demonstration
or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that
the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however,
that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon,
warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly
the officers present who are the organizers of the
demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA
and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another
meeting was convoked. Company represented by Atty.
C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon meeting of March
3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the
Malacañang demonstration, the workers for the first and
regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and
thus utilize the workers in the 2nd and 3rd shifts in order
not to violate the provisions of the CBA, particularly Article
XXIV "NO LOCKOUT — NO STRIKE". All those who will
 not follow this warning of the Company shall be
dismissed; De Leon reiterated the Company's warning
that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans
inasmuch as the Malacañang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO
sent a cablegram to the Company which was received
9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.
Additionally, the trial court found that "the projected demonstration did in
fact occur and in the process paralyzed to a large extent the operations
of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial
Relations filed with said court a complaint for Unfair Labor Practice
against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners
herein) particularly those in the first shift, in violation of
the existing collective bargaining agreement and without
filing the necessary notice as provided for by law, failed to
report for work, amounting to a declaration of strike;
4. That the above acts are in violation of Section 4(a)
subparagraph 6, in relation to Sections 13, 14 and 15 of
Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part of
which read's:
IN VIEW HEREOF, the respondent Philippine Blooming
Mills Employees Organization is found guilty of bargaining
in bad faith and is hereby ordered to cease and desist
from further committing the same and its representatives
namely: respondent Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod
who are directly responsible for perpetrating this unfair
labor practice act, are hereby considered to have lost
their status as employees of the Philippine Blooming
Mills, Inc. (p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were notified of
this decision on September 23, 1969, there seems to be no serious
question that they were actually served therewith on September 22,
1969. In fact, petitioners admitted this date of notice in paragraph 2 of
their Petition for Relief dated October 30, 1969 and filed with the
industrial court on the following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven
(7) days after they were notified of the court's decision, that petitioners
filed their motion for reconsideration with the industrial court; as it is also
not disputed that they filed their "Arguments in Support of the
Respondents' Motion for Reconsideration" only on October 14, 1969.
(See Annex I.) In other words, petitioners' motion for reconsideration was
filed two (2) days after the lapse of the five (5) day period provided for the
filing thereof in the rules of the Court of Industrial Relations, whereas the
"Arguments" were filed five (5) days after the expiration of the period
therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by
respondent private firm, namely, that in view of the failure of petitioners to
file not only their motion for reconsideration but also their arguments in
support thereof within the periods respectively fixed in the rules therefor,
the Court of Industrial Relations acted correctly and within the law in
rendering and issuing its impugned order of October 9, 1969 dismissing
petitioners' motion for reconsideration.
Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision
of the then Associate Judge Arsenio I. Martinez, the
dispositive part of which was set forth earlier in this
opinion.
August 12, 1963. Petitioner filed a motion for
reconsideration. No arguments were advanced in support
thereof.
August 21, 1963. Petitioner moved for additional time to
file its arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support
of its aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the
motion for reconsideration. Ground therefor was that the
arguments were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and
at the same time lodged the present petition with this
Court.
Upon respondent Perlado's return and petitioner's brief
(respondents did not file their brief), the case is now
before us for resolution.
1. That the judgment appealed from is a final judgment —
not merely an interlocutory order — there is no doubt. The
fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision
incomplete. This in effect is the holding of the Court in
Pan American World Airways System (Philippines) vs.
Pan American Employees Association, which runs thus: 'It
is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated
its judicial functions and thereby rendered an incomplete
decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most.
And the report would still have to be submitted to the
Industrial Court for its approval, by the very terms of the
order itself. That there was no specification of the amount
of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate
Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in
the sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the
jurisprudence of this Court both answer the question in
the affirmative.
Section 15 of the CIR Rules requires that one who seeks
to reconsider the judgment of the trial judge must do so
within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows
Section 16 which says that the motion must be submitted
with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the
motion, the same section commands the 'the movant shall
file the same within ten (10) days from the date of the
filing of his motion for reconsideration.' Section 17 of the
same rules admonishes a movant that "(f)ailure to
observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or
striking out of the answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand alone. Jurisprudence
has since stabilized the enforceability thereof. Thus,
in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time
its denial is in order pursuant to CIR rules, regardless of
whether the arguments in support of said motion were or
were not filed on time. Pangasinan Employees Laborers
& Tenants Association (PELTA) vs. Martinez, (L-13846,
May 20, 1960) pronounced that where a motion to
reconsider is filed out of time, the order or decision
subject of reconsideration comes final. And so also,
where the arguments in support of the motion for
reconsideration are filed beyond the ten-day reglementary
period, the pre forma motion for reconsideration although
seasonably filed must nevertheless be denied. This in
essence is our ruling in Local 7, Press & Printing Free
Workers (FFW) vs. Tabigne. The teaching in Luzon
Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon
the ground that the arguments in support thereof were
filed out of time, the order or decision subject of the
motion becomes "final and unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On
August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to
reconsider — without arguments in support thereof — of
August 12 was filed on time. For, August 11, the end of
the five-day reglementary period to file a motion for
reconsideration, was a Sunday. But, actually, the written
arguments in support of the said motion were submitted
to the court on August 27. The period from August 12 to
August 27, is a space of fifteen (15) days. Surely enough,
said arguments were filed out of time — five (5) days late.
And the judgment had become final.
3. There is, of course, petitioner's motion of August 21,
1963 seeking extension of time within which to present its
arguments in support of its motion. Counsel in his petition
before this Court pleads that the foregoing motion was
grounded on the 'extremely busy and difficult schedule of
counsel which would not enable him to do so within the
stated ten-day reglementary period. The arguments were
only filed on August 27 — five (5) days late, as aforesaid.
The foregoing circumstances will not avail petitioner any.
It is to be noted that the motion for expansion of time was
filed only on August 21, that is, one day before the due
date which is August 22. It was petitioner's duty to see to
it that the court act on this motion forthwith or at least
inquire as to the fate thereof not later than the 22nd of
August. It did not. It merely filed its arguments on the
27th.
To be underscored at this point is that "obviously to speed
up the disposition of cases", CIR "has a standing rule
against the extension of the ten-day period for filing
supporting arguments". That no-extension policy should
have placed petitioner on guard. It should not have simply
folded its arms, sit by supinely and relied on the court's
generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that
by that time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of
September 16, 1963 dismissing the motion for
reconsideration on the ground that the supporting
arguments were filed out of time. That ruling in effect
denied the motion for extension.
We rule that CIR's judgment has become final and
unappealable. We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has
not been in any way modified, much less revoked or reversed by this
Court, the main opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for
reinstatement on constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on
an exposition of the constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so scholarly and masterful
that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for
the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
dutifully state that as presented by petitioners themselves and in the light
of its attendant circumstances, this case does not call for the resolution of
any constitutional issue. Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects individual freedoms
enshrined in the bill of rights, deserves the closest attention of this Court.
It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights
may be protected by the courts only when their jurisdiction over the
subject matter is unquestionably established and the applicable rules of
procedure consistent with substantive and procedural due process are
observed. No doubt no constitutional right can be sacrificed in the altar of
procedural technicalities, very often fittingly downgraded as niceties but
as far as I know, this principle is applied to annul or set aside final
judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or
cited in the well-documented main opinion, wherein a final and executory
judgment has been invalidated and set aside upon the ground that the
same has the effect of sanctioning the violation of a constitutional right,
unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from
any judicial precedent or reason of principle, the main opinion nudely and
unqualifiedly asserts, as if it were universally established and accepted
as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void
and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663,
which is mentioned almost in passing, does uphold the proposition that
"relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after
the finality of the judgment". And, of course, Chavez is correct; as is
also Abriol vs. Homeres2 which, in principle, served as its precedent, for
the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify
against himself as a witness for the prosecution; in Abriol, the accused
was denied his request to be allowed to present evidence to establish his
defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those
cases are a far cry from the one now before Us. Here, petitioners do not
claim they were denied due process. Nor do they pretend that in denying
their motion for reconsideration, "the respondent Court of Industrial
Relations and private firm trenched upon any of their constitutional
immunities ...," contrary to the statement to such effect in the main
opinion. Indeed, neither in the petition herein nor in any of the other
pleading of petitioners can any direct or indirect assertion be found
assailing the impugned decision of the respondent court as being null
and void because it sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be
resolved is whether or not the respondent Court en
banc under the facts and circumstances, should consider
the Motion for Reconsideration filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of
certiorari, humbly beg this Honorable Court to treat this
petition under Rule 43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court
en banc of the strict and narrow technical rules of
procedure without taking into account justice, equity and
substantial merits of the case.
On the other hand, the complete argument submitted by
petitioners on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute
bargaining in bad faith? and,
Do the facts found by the court below justify the
declaration and conclusion that the union was guilty of
bargaining in bad faith meriting the dismissal of the
persons allegedly responsible therefore?
2. Was there grave abuse of discretion when the
respondent court refused to act one way or another on
the petition for relief from the resolution of October 9,
1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union
guilty of bargaining in bad faith and consequently
dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on
record; that the dismissal of leaders was discriminatory.
As a result of exercising the constitutional rights of
freedom to assemble and petition the duly constituted
authorities for redress of their grievances, the petitioners
were charged and then condemned of bargaining in bad
faith.
The findings that petitioners were guilty of bargaining in
bad faith were not borne out by the records. It was not
even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove
was that the demonstration amounted to a strike and
hence, a violation of the provisions of the "no-lockout —
no strike" clause of the collective bargaining agreement.
However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated
categorically:
'The company alleges that the walkout
because of the demonstration is
tantamount to a declaration of a strike. We
do not think so, as the same is not rooted
in any industrial dispute although there is
a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis
supplied, p. 4, 5th paragraph, Decision.)
The respondent court's findings that the
petitioner union bargained in bad faith is
not tenable because:
First, it has not been alleged nor proven by the
respondent company; .
Second, before the demonstration, the petitioner union
and the respondent company convened twice in a
meeting to thresh out the matter of demonstration.
Petitioners requested that the employees and workers be
excused but the respondent company instead of granting
the request or even settling the matter so that the hours of
work will not be disrupted, immediately threatened the
employees of mass dismissal;
Third, the refusal of the petitioner union to grant the
request of the company that the first shift shall be
excluded in the demonstration is not tantamount to
bargaining in bad faith because the company knew that
the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration
without their officers. It must be stated that the company
intends to prohibit its officers to lead and join the
demonstration because most of them belonged to the first
shift; and
Fourth, the findings of the respondent court that the
demonstration if allowed will practically give the union the
right to change the working conditions agreed in the CBA
is a conclusion of facts, opinionated and not borne by any
evidence on record. The demonstration did not practically
change the terms or conditions of employment because it
was only for one (1) day and the company knew about it
before it went through. We can even say that it was the
company who bargained in bad faith, when upon
representation of the Bureau of Labor not to dismiss the
employees demonstrating, the company tacitly approved
the same and yet while the demonstration was in
progress, the company filed a ULP Charge and
consequently dismissed those who participated.
Records of the case show that more or less 400 members
of the union participated in the demonstration and yet, the
respondent court selected the eight officers to be
dismissed from the union thus losing their status as
employees of the respondent company. The respondent
court should have taken into account that the company's
action in allowing the return of more or less three hundred
ninety two (392) employees/members of the union is an
act of condonation and the dismissal of the eight (8)
officers is an act of discrimination (Phil. Air Lines Inc., vs.
Phil. Air Lines Employees Association, G.R. No. L-8197,
Oct. 31, 1958). Seemingly, from the opinion stated in the
decision by the court, while there is a collective
bargaining agreement, the union cannot go on
demonstration or go on strike because it will change the
terms and conditions of employment agreed in the CBA. It
follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of
a union to strike as provided for in Republic Act 875. This
creates a bad precedent because it will appear that the
rights of the union is solely dependent upon the CBA.
One of the cardinal primary rights which must be
respected in proceedings before the Court of Industrial
Relations is that "the decision must be rendered on the
evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected."
(Interstate Commerce Commission vs. L & N R. Co., 227
U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
 the administrative tribunal to the evidence disclosed to the
parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR,
G.R. No. L-45496, February 27, 1940.)
The petitioners respectfully and humbly submit that there
is no scintilla of evidence to support the findings of the
respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the
individual petitioners is without basis either in fact or in
law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have
been guilty of bargaining in bad faith and consequently
lost their status as employees of the respondent company
did not meet the meaning and comprehension of
"substantial merits of the case." Bargaining in bad faith
has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The
important and substantial merit of the case is whether
under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully
reiterate and humbly submit, that the respondent court
had altogether opined and decided that such
demonstration does not amount to a strike. Hence, with
that findings, petitioners should have been absolved of
the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out
of bounds by declaring the petitioners as having
"bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-
siquitor";
2) That again respondents wanted to impress that the
freedom to assemble peaceably to air grievances against
the duly constituted authorities as guaranteed in our
Constitution is subject to the limitation of the agreement in
the Collective Bargaining Agreement. The fundamental
rights of the petitioners to free speech and assembly is
paramount to the provision in the Collective Bargaining
Agreement and such attempt to override the constitutional
provision would be null and void. These fundamental
rights of the petitioners were not taken into consideration
in the deliberation of the case by the respondent court;
Thus, it is clear from the foregoing contentions that petitioners are not
raising any issue of due process. They do not posit that the decision of
the industrial court is null and void on that constitutional ground. True it is
that they fault the respondent court for having priced the provisions of the
collective bargaining agreement herein involved over and above their
constitutional right to peaceably assemble and petition for redress of their
grievances against the abuses of the Pasig police, but in no sense at all
do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere error
of judgment rather than that of jurisdiction which the main opinion
projects. For this Court to roundly and indignantly condemn private
respondent now for the grievous violation of the fundamental law the
main opinion sees in its refusal to allow all its workers to join the
demonstration in question, when that specific issue has not been duly
presented to Us and properly argued, is to my mind unfair and unjust, for
the simple reason that the manner this case was brought to Us does not
afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an
error of jurisdiction by finding petitioners guilty of bargaining in bad faith
when the charge against them alleged in the complaint was for having
conducted a mass demonstration, which "amounted to a strike", in
violation of the Collective Bargaining Agreement, but definitely, this
jurisdictional question has no constitutional color. Indeed, We can even
assume for the sake of argument, that the trial judge did err in not giving
preferential importance to the fundamental freedoms invoked by the
petitioners over the management and proprietary attributes claimed by
the respondent private firm — still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is that
"decisions, erroneous or not, become final after the period fixed by law;
litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were
allowed to reopen them at any time in the future".3
I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a
denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned
violation of an ordinary statute than by a misconstrued or constitutional
injunction affecting his individual, freedoms. In both instances, there is
injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments.
I dare say this must be the reason why, as I have already noted, the main
opinion does not cite any constitutional provision, law or rule or any
judicial doctrine or principle supporting its basic holding that infringement
of constitutional guarantees, other than denial of due process, divests
courts of jurisdiction to render valid judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners
have not raised, they are not insisting upon, much less have they
adequately argued the constitutional issues so extendedly and ably
discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold
that the erroneous resolution by a court of a constitutional issue not
amounting to a denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even after said judgment
or decision has become final and executory. I have actually tried to bring
myself into agreement with the views of the distinguished and learned
writer of the main opinion, if only to avoid dissenting from his well
prepared thesis, but its obvious incongruity with settled jurisprudence
always comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along
with petitioners under the authority of our constitutionally irreducible
appellate jurisdiction under Section 2(5) of Article VII of the
Philippines6 (reenacted practically ipssisimis verbis in Section 5(2) of the
1973 Constitution), only to realize upon further reflection that the very
power granted to us to review decisions of lower courts involving
questions of law(and these include constitutional issues not affecting the
validity of statutes, treaty, executive agreement, etc.) is not unqualified
but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may
be, there must first be a showing of compliance with the applicable
procedural law or rules, among them, those governing appeals from the
Court of Industrial Relations involved herein. Consequently, if by law or
rule, a judgment of the industrial court is already final and executory, this
Court would be devoid of power and authority to review, much less alter
or modify the same, absent any denial of due process or fatal defect of
jurisdiction. It must be borne in mind that the situation confronting Us now
is not merely whether or not We should pass upon a question or issue
not specifically raised by the party concerned, which, to be sure, could be
enough reason to dissuade Us from taking pains in resolving the same;
rather, the real problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated earlier, no less than
Justice Conrado Sanchez, the writer of Chavez, supra., which is being
relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the
facts of this case, We have no choice but to follow, that is, that in view of
reconsideration but even their argument supporting the same within the
prescribed period, "the judgment (against them)has become final, beyond
recall".
Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness
thereof from the constitutional standpoint, and that in truth, whether or not
they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally
as changeable as the members themselves are changed, I cannot
conceive of anything more pernicious and destructive to a trustful
administration of justice than the idea that, even without any showing of
denial of due process or want of jurisdiction of the court, a final and
executory judgment of such court may still be set aside or reopened in
instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code.7 And just to
emphasize the policy of the law of respecting judgments once they have
become final, even as this Court has ruled that final decisions are mute in
the presence of fraud which the law abhors,8 it is only when the fraud is
extrinsic and not intrinsic that final and executory judgments may be set
aside,9and this only when the remedy is sought within the prescriptive
period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw,
82 Phil. 776:
 Litigation must end and terminate sometime and
somewhere, and it is essential to an effective and efficient
administration of justice that once a judgment has
become final, the winning party be not, through a mere
subterfuge, deprived of the fruits of the verdict. Courts
must therefore guard against any scheme calculated to
bring about that result. Constituted as they are to put an
end to controversies, courts should frown upon any
attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v.
Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the
risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end
to controversies. To fulfill this purpose and to do so
speedily, certain time limits, more or less arbitrary, have
to be set up to spur on the slothful. 'If a vacillating,
irresolute judge were allowed to thus keep causes ever
within his power, to determine and redetermine them term
after term, to bandy his judgments about from one party
to the other, and to change his conclusions as freely and
as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs
it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los
Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability
and invulnerability of final judgments but rather on the correct
interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:
The point of res adjudicata discussed in the dissents has
not escaped my attention. Neither am I overlooking the
point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the
revision, amendment or alteration of a final and executory
judgment. I want to emphasize that my position in this
opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining
any such modifications. The public policy of maintaining
faith and respect in judicial decisions, which inform said
doctrines, is admittedly of the highest order. I am not
advocating any departure from them. Nor am I trying to
put forth for execution a decision that I believe should
have been rather than what it is. All I am doing is to view
not the judgment of Judge Tengco but the decision of this
Court in G.R. No. L-20950, as it is and not as I believe it
should have been, and, by opinion, I would like to guide
the court a quo as to what, in my own view, is the true
and correct meaning and implications of decision of this
Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases
in the industrial court, wherein the Court refused to be constrained by
technical rules of procedure in its determination to accord substantial
justice to the parties I still believe in those decisions, some of which were
penned by me. I am certain, however, that in none of those precedents
did this Court disturb a judgment already final and executory. It too
obvious to require extended elucidation or even reference any precedent
or authority that the principle of immutability of final judgments is not a
mere technicality, and if it may considered to be in a sense a procedural
rule, it is one that is founded on public policy and cannot, therefore, yield
to the ordinary plea that it must give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to
hold on, the main opinion goes far as to maintain that the long existing
and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this
case does not implement on reinforce or strengthen the constitutional
rights affected, but instead constricts the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court on
Industrial Relations Rule, promulgated as it was pursuant to mere
legislative delegation, is unreasonable and therefore is beyond the
authority granted by the Constitution and the law. A period of five (5)
days within which to file a motion for reconsideration is too short,
especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of
Appeal and the Supreme Court, a period of fifteen (15) days has been
fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10,
Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The
delay in the filing of the motion for reconsideration could have been only
one day if September 28, 1969 was not a Sunday. This fact accentuates
the unreasonableness of the Court of Industrial Relations Rule insofar as
circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the
conclusion suggested. Viewed objectively, it can readily be seen that
there can hardly be any factual or logical basis for such a critical view of
the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies,
within five (5) days from the date on which he receives
notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with
respect to the correctness of the allegations of fact, and
serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six
(6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be
submitted with arguments supporting the same. If the
arguments can not be submitted simultaneously with said
motions, upon notice Court, the movant shall file same
within ten (10) days from the date of the filing of his
motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by
him of a copy of the arguments submitted by the movant.
Sec. 17. After an answer to the motion is registered, or
after ten (10) days from the receipt of the arguments in
support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc,
unless it is considered necessary to bear oral arguments,
in which case the Court shall issue the corresponding
order or notice to that effect.
Failure to observe the above-specified periods shall be
sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the
supporting arguments, as the case may be. (As amended
April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as everyone
acquainted with proceedings in the industrial court well knows, precisely
permits the party aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any argument or lengthy
discussion and with barely a brief statement of the fundamental ground or
grounds therefor, without prejudice to supplementing the same by making
the necessary exposition, with citations laws and authorities, in the
written arguments the be filed (10) days later. In truth, such a pro-forma
motion has to effect of just advising the court and the other party that the
movant does not agree with the judgment due to fundamental defects
stated in brief and general terms. Evidently, the purpose of this
requirement is to apprise everyone concerned within the shortest
possible time that a reconsideration is to sought, and thereby enable the
parties concerned to make whatever adjustments may be warranted by
the situation, in the meanwhile that the litigation is prolonged. It must
borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might
require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the
case be known to the other so that both avenues for earlier settlement
may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is
short or inadequate. In fact, the motion filed petitioners was no more than
the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to
this Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable
Court dated September 17, 1969 on the ground that the
same is not in accordance with law, evidence and facts
adduced during the hearing of the above entitled case.
Movant-respondents most respectfully move for leave to
file their respective arguments within ten (10) days
pursuant to Section 15, 16 & 17 as amended of the Rules
of Court.
WHEREFORE, it is respectfully prayed that this Motion
for Reconsideration be admitted.
 Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the
filing of such a motion is to me simply incomprehensible.
What worse in this case is that petitioners have not even
taken the trouble of giving an explanation of their inability
to comply with the rule. Not only that, petitioners were
also late five (5) days in filing their written arguments in
support of their motion, and, the only excuse offered for
such delay is that both the President of the Union and the
office clerk who took charge of the matter forgot to do
what they were instructed to do by counsel, which,
according to this Court, as I shall explain anon "is the
most hackneyed and habitual subterfuge employed by
litigants who fail to observe the procedural requirements
prescribed by the Rules of Court". (Philippine Airlines, Inc.
vs. Arca, infra). And yet, very indignantly, the main
opinion would want the Court to overlook such
nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules
fixing periods for the finality of judgments are in a sense more
substantive than procedural in their real nature, for in their operation they
have the effect of either creating or terminating rights pursuant to the
terms of the particular judgment concerned. And the fact that the court
that rendered such final judgment is deprived of jurisdiction or authority to
alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement
thereof, it may be said that said rules partake of the nature also of rules
of prescription, which again are substantive. Now, the twin predicates of
prescription are inaction or abandonment and the passage of time or a
prescribed period. On the other hand, procrastination or failure to act on
time is unquestionably a form of abandonment, particularly when it is not
or cannot be sufficiently explained. The most valuable right of a party
may be lost by prescription, and be has no reason to complain because
public policy demands that rights must be asserted in time, as otherwise
they can be deemed waived.
I see no justification whatsoever for not applying these self-evident
principles to the case of petitioners. Hence, I feel disinclined to adopt the
suggestion that the Court suspend, for the purposes of this case the rules
aforequoted of the Court of Industrial Relations. Besides, I have grave
doubts as to whether we can suspend rules of other courts, particularly
that is not under our supervisory jurisdiction, being administrative agency
under the Executive Department Withal, if, in order to hasten the
administration of substance justice, this Court did exercise in some
instances its re power to amend its rules, I am positively certain, it has
done it for the purpose of reviving a case in which the judo has already
become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in
a belated effort to salvage their Petitioners filed in the industrial court on
October 31, 1969 a Petition for relief alleging that their failure to file
"Arguments in Support of their Motion for Reconsideration within the
reglementary period or five (5), if not seven (7), days late "was due to
excusable negligence and honest mistake committed by the President of
the respondent Union and on office clerk of the counsel for respondents
as shown attested in their respective affidavits", (See Annexes K, and K-
2) which in brief, consisted allegedly of the President's having forgotten
his appointment with his lawyer "despite previous instructions and of the
said office employee having also coincidentally forgotten "to do the work
instructed (sic) to (him) by Atty. Osorio" because he "was busy with
clerical jobs". No sympathy at all can be evoked these allegations, for,
under probably more justification circumstances, this Court ruled out a
similar explanation previous case this wise:
We find merit in PAL's petition. The excuse offered
respondent Santos as reason for his failure to perfect in
due time appeal from the judgment of the Municipal
Court, that counsel's clerk forgot to hand him the court
notice, is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The
uncritical acceptance of this kind of common place
excuses, in the face of the Supreme Court's repeated
rulings that they are neither credible nor constitutive of
excusable negligence (Gaerlan vs. Bernal, L-4039, 29
January 1952; Mercado vs. Judge Domingo, L-19457,
December 1966) is certainly such whimsical exercise of
judgment to be a grave abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought
to be reviewed in the present case has already become final and
executory, nay, not without the fault of the petitioners, hence, no matter
how erroneous from the constitutional viewpoint it may be, it is already
beyond recall, I vote to dismiss this case, without pronouncement as to
costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacañang on March 4,
1969 in protest against alleged abuses of the Pasig police department,
upon two days' prior notice to respondent employer company, as against the latter's insistence
that the first shift 1should not participate but instead report for work, under pain of dismissal, the
industrial court ordered the dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on respondent's
complaint of bargaining in bad faith and unfair labor practice for having so
carried out the mass demonstration, notwithstanding that it concededly
was not a declaration of strike nor directed in any manner against
respondent employer, and ordering the dismissal of the union office
manifestly constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor
practice since respondent firm conceded that "the demonstration is an
inalienable right of the union guaranteed' by the Constitution" and the
union up to the day of the demonstration pleaded by cablegram to the
company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective
bargaining agreement's "no-strike" clause as would warrant the union
leaders' dismissal, since as found by respondent court itself the mass
demonstration was not a declaration of a strike, there being no industrial
dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their
constitutional rights of free expression, peaceable assembly and petition
for redress of grievance against alleged police excesses.
Respondent court's en banc resolution dismissing petitioners' motion for
reconsideration for having been filed two days late, after expiration of the
reglementary five-day period fixed by its rules, due to the negligence of
petitioners' counsel and/or the union president should likewise be set
aside as a manifest act of grave abuse of discretion. Petitioners' petition
for relief from the normal adverse consequences of the late filing of their
motion for reconsideration due to such negligence — which was not
acted upon by respondent court — should have been granted,
considering the monstrous injustice that would otherwise be caused the
petitioners through their summary dismissal from employment, simply
because they sought in good faith to exercise basic human rights
guaranteed them by the Constitution. It should be noted further that no
proof of actual loss from the one-day stoppage of work was shown by
respondent company, providing basis to the main opinion's premise that
its insistence on dismissal of the union leaders for having included the
first shift workers in the mass demonstration against its wishes was but
an act of arbitrary vindictiveness.
Only thus could the basic constitutional rights of the individual petitioners
and the constitutional injunction to afford protection to labor be given true
substance and meaning. No person may be deprived of such basic rights
without due process — which is but "responsiveness to the supremacy of
reason, obedience to the dictates of justice. Negatively put, arbitrariness
is ruled out and unfairness avoided ... Due process is thus hostile to any
official action marred by lack of reasonableness. Correctly it has been
identified as freedom from arbitrariness."2
Accordingly, I vote for the setting aside of the appealed orders of the
respondent court and concur in the judgment for petitioners as set forth in
the main opinion.
Separate Opinions
BARREDO, J., dissenting:
I bow in respectful and sincere admiration, but my sense of duty compels
me to dissent.
The background of this case may be found principally in the stipulation of
facts upon which the decision under review is based. It is as follows:
1. That complainant Philippine Blooming Mills, Company,
Inc., is a corporation existing and operating under and by
virtue of the laws of the Philippines with corporate
address at 666 Muelle de Binondo, Manila, which is the
employer of respondent;
2. That Philippine Blooming Mills Employees Organization
PBMEO for short, is a legitimate labor organization, and
the respondents herein are either officers of respondent
PBMEO or members thereof;
3. That on March 2, 1969 complainant company learned
of the projected mass demonstration at Malacañang in
protest against alleged abuses of the Pasig Police
Department to be participated by the first shift (6:00 AM
— 2:00 PM workers as well as those working in the
regular shifts (7:00 A.M. to 4:00 PM and 8:00 AM to 5:00
PM in the morning of March 4, 1969;
4. That a meeting was called by the Company on March
3, 1969 at about 11:00 A.M. at the Company's canteen,
and those present were: for the Company: (1) Mr. Arthur
L. Ang, (2) Atty. Cesareo S. de Leon, Jr. (3) and all
department and section heads. For the PBMEO (1)
Florencio Padrigano, (2) Rufino Roxas, (3) Mariano de
Leon, (4) Asencion Paciente, (5) Bonifacio Vacuna and
(6) Benjamin Pagcu.
5. That the Company asked the union panel to confirm or
deny said projected mass demonstration at Malacañang
on March 4, 1969. PBMEO thru Benjamin Pagcu who
acted as the spokesman of the union panel, confirmed the
planned demonstration and stated that the demonstration
or rally cannot be cancelled because it has already been
agreed upon in the meeting. Pagcu explained further that
the demonstration has nothing to do with the Company
because the union has no quarrel or dispute with
Management;
6. That Management, thru Atty. C.S. de Leon, Company
personnel manager, informed PBMEO that the
demonstration is an inalienable right of the union
guaranteed by the Constitution but emphasized, however,
that any demonstration for that matter should not unduly
prejudice the normal operation of the Company. For
which reason, the Company, thru Atty. C.S. de Leon,
warned the PBMEO representatives that workers who
belong to the first and regular shifts, who without previous
leave of absence approved by the Company, particularly
the officers present who are the organizers of the
demonstration, who shall fail to report for work the
following morning (March 4, 1969) shall be dismissed,
because such failure is a violation of the existing CBA
and, therefore, would be amounting to an illegal strike;
7. That at about 5:00 P.M. on March 3, 1969, another
meeting was convoked. Company represented by Atty.
C.S. de Leon, Jr. The Union panel was composed of:
Nicanor Tolentino, Rodulfo Munsod, Benjamin Pagcu and
Florencio Padrigano. In this afternoon meeting of March
3, 1969, Company reiterated and appealed to the PBMEO
representatives that while all workers may join the
Malacañang demonstration, the workers for the first and
regular shift of March 4, 1969 should be excused from
joining the demonstration and should report for work; and
thus utilize the workers in the 2nd and 3rd shifts in order
not to violate the provisions of the CBA, particularly Article
XXIV "NO LOCKOUT — NO STRIKE". All those who will
not follow this warning of the Company shall be
dismissed; De Leon reiterated the Company's warning
that the officers shall be primarily liable being the
organizers of the mass demonstration. The union panel
countered that it was rather too late to change their plans
inasmuch as the Malacañang demonstration will be held
the following morning; and
8. That a certain Mr. Wilfredo Ariston, adviser of PBMEO
sent a cablegram to the Company which was received
9:50 A.M., March 4, 1969, the contents of which are as
follows: 'REITERATING REQUEST EXCUSE DAY SHIFT
EMPLOYEES JOINING DEMONSTRATION MARCH 4,
1969.
Additionally, the trial court found that "the projected demonstration did in
fact occur and in the process paralyzed to a large extent the operations
of the complainant company". (p. 5, Annex F).
Upon these facts the Prosecution Division of the Court of Industrial
Relations filed with said court a complaint for Unfair Labor Practice
against petitioners charging that: .
3. That on March 4, 1969, respondents (petitioners
herein) particularly those in the first shift, in violation of
the existing collective bargaining agreement and without
filing the necessary notice as provided for by law, failed to
report for work, amounting to a declaration of strike;
 4. That the above acts are in violation of Section 4(a)
subparagraph 6, in relation to Sections 13, 14 and 15 of
Republic Act No. 875, and of the collective bargaining
agreement. (Pars. 3 and 4, Annex C.)
After due hearing, the court rendered judgment, the dispositive part of
which read's:
IN VIEW HEREOF, the respondent Philippine Blooming
Mills Employees Organization is found guilty of bargaining
in bad faith and is hereby ordered to cease and desist
from further committing the same and its representatives
namely: respondent Florencio Padrigano, Rufino Roxas,
Mariano de Leon, Asencion Paciente, Bonifacio Vacuna,
Benjamin Pagcu, Nicanor Tolentino and Rodulfo Monsod
who are directly responsible for perpetrating this unfair
labor practice act, are hereby considered to have lost
their status as employees of the Philippine Blooming
Mills, Inc. (p. 8, Annex F.)
Although it is alleged in the petition herein that petitioners were notified of
this decision on September 23, 1969, there seems to be no serious
question that they were actually served therewith on September 22,
1969. In fact, petitioners admitted this date of notice in paragraph 2 of
their Petition for Relief dated October 30, 1969 and filed with the
industrial court on the following day. (See Annex K.)
It is not controverted that it was only on September 29, 1969, or seven
(7) days after they were notified of the court's decision, that petitioners
filed their motion for reconsideration with the industrial court; as it is also
not disputed that they filed their "Arguments in Support of the
Respondents' Motion for Reconsideration" only on October 14, 1969.
(See Annex I.) In other words, petitioners' motion for reconsideration was
filed two (2) days after the lapse of the five (5) day period provided for the
filing thereof in the rules of the Court of Industrial Relations, whereas the
"Arguments" were filed five (5) days after the expiration of the period
therefor also specified in the same rules.
Accordingly, the first issue that confronts the Court is the one raised by
respondent private firm, namely, that in view of the failure of petitioners to
file not only their motion for reconsideration but also their arguments in
support thereof within the periods respectively fixed in the rules therefor,
the Court of Industrial Relations acted correctly and within the law in
rendering and issuing its impugned order of October 9, 1969 dismissing
petitioners' motion for reconsideration.
Respondent's contention presents no problem. Squarely applicable to the
facts hereof is the decision of this Court in Elizalde & Co. Inc. vs. Court of
Industrial Relations1 wherein it was ruled that:
August 6, 1963. Petitioner received a copy of the decision
of the then Associate Judge Arsenio I. Martinez, the
dispositive part of which was set forth earlier in this
opinion.
August 12, 1963. Petitioner filed a motion for
reconsideration. No arguments were advanced in support
thereof.
August 21, 1963. Petitioner moved for additional time to
file its arguments in support of its motion to reconsider.
August 27, 1963. Petitioner filed its arguments in support
of its aforesaid motion seeking reconsideration.
September 16, 1963. CIR en banc resolved to dismiss the
motion for reconsideration. Ground therefor was that the
arguments were filed out of time.
October 3, 1963. Petitioner filed its notice of appeal and
at the same time lodged the present petition with this
Court.
Upon respondent Perlado's return and petitioner's brief
(respondents did not file their brief), the case is now
before us for resolution.
1. That the judgment appealed from is a final judgment —
not merely an interlocutory order — there is no doubt. The
fact that there is need for computation of respondent
Perlado's overtime pay would not render the decision
incomplete. This in effect is the holding of the Court in
Pan American World Airways System (Philippines) vs.
Pan American Employees Association, which runs thus: 'It
is next contended that in ordering the Chief of the
Examining Division or his representative to compute the
compensation due, the Industrial Court unduly delegated
its judicial functions and thereby rendered an incomplete
decision. We do not believe so. Computation of the
overtime pay involves a mechanical function, at most.
And the report would still have to be submitted to the
Industrial Court for its approval, by the very terms of the
order itself. That there was no specification of the amount
of overtime pay in the decision did not make it incomplete,
since this matter should necessarily be made clear
enough in the implementation of the decision (see Malate
Taxicab & Garage, Inc. vs. CIR, et al.,
L-8718, May 11, 1956).
2. But has that judgment reached the stage of finality in
the sense that it can no longer, be disturbed?
CIR Rules of Procedure, as amended, and the
jurisprudence of this Court both answer the question in
the affirmative.
Section 15 of the CIR Rules requires that one who seeks
to reconsider the judgment of the trial judge must do so
within five (5) days from the date on which he received
notice of the decision, subject of the motion. Next follows
Section 16 which says that the motion must be submitted
with arguments supporting the same. But if said
arguments could not be submitted simultaneously with the
motion, the same section commands the 'the movant shall
file the same within ten (10) days from the date of the
filing of his motion for reconsideration.' Section 17 of the
same rules admonishes a movant that "(f)ailure to
observe the above-specified periods shall be sufficient
cause for dismissal of the motion for reconsideration or
striking out of the answer and/or the supporting
arguments, as the case may be".
Not that the foregoing rules stand alone. Jurisprudence
has since stabilized the enforceability thereof. Thus,
in Bien vs. Castillo, (97 Phil. 956) we ruled that where a
pro forma motion for reconsideration was filed out of time
its denial is in order pursuant to CIR rules, regardless of
whether the arguments in support of said motion were or
were not filed on time. Pangasinan Employees Laborers
& Tenants Association (PELTA) vs. Martinez, (L-13846,
May 20, 1960) pronounced that where a motion to
reconsider is filed out of time, the order or decision
subject of reconsideration comes final. And so also,
where the arguments in support of the motion for
reconsideration are filed beyond the ten-day reglementary
period, the pre forma motion for reconsideration although
seasonably filed must nevertheless be denied. This in
essence is our ruling in Local 7, Press & Printing Free
Workers (FFW) vs. Tabigne. The teaching in Luzon
Stevedoring Co., Inc. vs. Court of Industrial Relations, is
that where the motion for reconsideration is denied upon
the ground that the arguments in support thereof were
filed out of time, the order or decision subject of the
motion becomes "final and unappealable".
We find no difficulty in applying the foregoing rules and
pronouncements of this Court in the case before us. On
August 6, petitioner received a copy of the judgment of
Judge Arsenio I. Martinez aforesaid. Petitioner's motion to
reconsider — without arguments in support thereof — of
August 12 was filed on time. For, August 11, the end of
the five-day reglementary period to file a motion for
reconsideration, was a Sunday. But, actually, the written
arguments in support of the said motion were submitted
to the court on August 27. The period from August 12 to
August 27, is a space of fifteen (15) days. Surely enough,
said arguments were filed out of time — five (5) days late.
And the judgment had become final.
3. There is, of course, petitioner's motion of August 21,
1963 seeking extension of time within which to present its
arguments in support of its motion. Counsel in his petition
before this Court pleads that the foregoing motion was
grounded on the 'extremely busy and difficult schedule of
counsel which would not enable him to do so within the
stated ten-day reglementary period. The arguments were
only filed on August 27 — five (5) days late, as aforesaid.
The foregoing circumstances will not avail petitioner any.
It is to be noted that the motion for expansion of time was
filed only on August 21, that is, one day before the due
date which is August 22. It was petitioner's duty to see to
it that the court act on this motion forthwith or at least
inquire as to the fate thereof not later than the 22nd of
 August. It did not. It merely filed its arguments on the
27th.
To be underscored at this point is that "obviously to speed
up the disposition of cases", CIR "has a standing rule
against the extension of the ten-day period for filing
supporting arguments". That no-extension policy should
have placed petitioner on guard. It should not have simply
folded its arms, sit by supinely and relied on the court's
generosity. To compound petitioner's neglect, it filed the
arguments only on August 27, 1953, knowing full well that
by that time the reglementary period had expired.
Petitioner cannot complain against CIR's ruling of
September 16, 1963 dismissing the motion for
reconsideration on the ground that the supporting
arguments were filed out of time. That ruling in effect
denied the motion for extension.
We rule that CIR's judgment has become final and
unappealable. We may not review the same.
Notwithstanding this unequivocal and unmistakable precedent, which has
not been in any way modified, much less revoked or reversed by this
Court, the main opinion has chosen not only to go into the merits of
petitioners' pose that the respondent court erred in holding them guilty of
bargaining in bad faith but also to ultimately uphold petitioners' claim for
reinstatement on constitutional grounds.
Precisely because the conclusions of the main opinion are predicated on
an exposition of the constitutional guarantees of freedoms of speech and
peaceful assembly for redress of grievances, so scholarly and masterful
that it is bound to overwhelm Us unless We note carefully the real issues
in this case, I am constrained, over and above my sincere admiration for
the eloquence and zeal of Mr. Justice Makasiar's brilliant dissertation, to
dutifully state that as presented by petitioners themselves and in the light
of its attendant circumstances, this case does not call for the resolution of
any constitutional issue. Admittedly, the invocation of any constitutional
guarantee, particularly when it directly affects individual freedoms
enshrined in the bill of rights, deserves the closest attention of this Court.
It is my understanding of constitutional law and judicial practices related
thereto, however, that even the most valuable of our constitutional rights
may be protected by the courts only when their jurisdiction over the
subject matter is unquestionably established and the applicable rules of
procedure consistent with substantive and procedural due process are
observed. No doubt no constitutional right can be sacrificed in the altar of
procedural technicalities, very often fittingly downgraded as niceties but
as far as I know, this principle is applied to annul or set aside final
judgments only in cases wherein there is a possible denial of due
process. I have not come across any instance, and none is mentioned or
cited in the well-documented main opinion, wherein a final and executory
judgment has been invalidated and set aside upon the ground that the
same has the effect of sanctioning the violation of a constitutional right,
unless such violation amounts to a denial of due process.
Without support from any provision of the constitution or any law or from
any judicial precedent or reason of principle, the main opinion nudely and
unqualifiedly asserts, as if it were universally established and accepted
as an absolute rule, that the violation of a constitutional right divests the
court of jurisdiction; and as a consequence its judgment is null and void
and confers no rights". Chavez vs. Court of Appeals, 24 SCRA 663,
which is mentioned almost in passing, does uphold the proposition that
"relief from a criminal conviction secured at the sacrifice of constitutional
liberties, may be obtained through habeas corpus proceedings even after
the finality of the judgment". And, of course, Chavez is correct; as is
also Abriol vs. Homeres2 which, in principle, served as its precedent, for
the very simple reason that in both of those cases, the accused were
denied due process. In Chavez, the accused was compelled to testify
against himself as a witness for the prosecution; in Abriol, the accused
was denied his request to be allowed to present evidence to establish his
defense after his demurrer to the People's evidence was denied.
As may be seen, however, the constitutional issues involved in those
cases are a far cry from the one now before Us. Here, petitioners do not
claim they were denied due process. Nor do they pretend that in denying
their motion for reconsideration, "the respondent Court of Industrial
Relations and private firm trenched upon any of their constitutional
immunities ...," contrary to the statement to such effect in the main
opinion. Indeed, neither in the petition herein nor in any of the other
pleading of petitioners can any direct or indirect assertion be found
assailing the impugned decision of the respondent court as being null
and void because it sanctioned a denial of a valued constitutional liberty.
In their petition, petitioners state the issue for Our resolution as follows:
Petitioners herein humbly submit that the issue to be
resolved is whether or not the respondent Court en
banc under the facts and circumstances, should consider
the Motion for Reconsideration filed by your petitioners.
Petitioners, therefore, in filing this petition for a writ of
certiorari, humbly beg this Honorable Court to treat this
petition under Rule 43 and 65 of the Rules of Court.
xxx xxx xxx
The basic issue therefore is the application by the Court
en banc of the strict and narrow technical rules of
procedure without taking into account justice, equity and
substantial merits of the case.
On the other hand, the complete argument submitted by
petitioners on this point in their brief runs thus:
III
ISSUES
1. Does the refusal to heed a warning in the exercise of a
fundamental right to peaceably assemble and petition the
government for redress of grievances constitute
bargaining in bad faith? and,
Do the facts found by the court below justify the
declaration and conclusion that the union was guilty of
bargaining in bad faith meriting the dismissal of the
persons allegedly responsible therefore?
2. Was there grave abuse of discretion when the
respondent court refused to act one way or another on
the petition for relief from the resolution of October 9,
1969?
IV
ARGUMENT
The respondent Court erred in finding the petition union
guilty of bargaining in bad faith and consequently
dismissing the persons allegedly responsible therefor,
because such conclusion is country to the evidence on
record; that the dismissal of leaders was discriminatory.
As a result of exercising the constitutional rights of
freedom to assemble and petition the duly constituted
authorities for redress of their grievances, the petitioners
were charged and then condemned of bargaining in bad
faith.
The findings that petitioners were guilty of bargaining in
bad faith were not borne out by the records. It was not
even alleged nor proven by evidence. What has been
alleged and which the respondent company tried to prove
was that the demonstration amounted to a strike and
hence, a violation of the provisions of the "no-lockout —
no strike" clause of the collective bargaining agreement.
However, this allegation and proof submitted by the
respondent company were practically resolved when the
respondent court in the same decision stated
categorically:
'The company alleges that the walkout
because of the demonstration is
tantamount to a declaration of a strike. We
do not think so, as the same is not rooted
in any industrial dispute although there is
a concerted act and the occurrence of a
temporary stoppage of work.' (Emphasis
supplied, p. 4, 5th paragraph, Decision.)
The respondent court's findings that the
petitioner union bargained in bad faith is
not tenable because:
First, it has not been alleged nor proven by the
respondent company; .
Second, before the demonstration, the petitioner union
and the respondent company convened twice in a
meeting to thresh out the matter of demonstration.
Petitioners requested that the employees and workers be
excused but the respondent company instead of granting
the request or even settling the matter so that the hours of
work will not be disrupted, immediately threatened the
employees of mass dismissal;
Third, the refusal of the petitioner union to grant the
request of the company that the first shift shall be
excluded in the demonstration is not tantamount to
bargaining in bad faith because the company knew that
the officers of the union belonged to the first shift, and
that the union cannot go and lead the demonstration
without their officers. It must be stated that the company
intends to prohibit its officers to lead and join the
demonstration because most of them belonged to the first
shift; and
Fourth, the findings of the respondent court that the
demonstration if allowed will practically give the union the
right to change the working conditions agreed in the CBA
is a conclusion of facts, opinionated and not borne by any
evidence on record. The demonstration did not practically
change the terms or conditions of employment because it
was only for one (1) day and the company knew about it
before it went through. We can even say that it was the
company who bargained in bad faith, when upon
representation of the Bureau of Labor not to dismiss the
employees demonstrating, the company tacitly approved
the same and yet while the demonstration was in
progress, the company filed a ULP Charge and
consequently dismissed those who participated.
Records of the case show that more or less 400 members
of the union participated in the demonstration and yet, the
respondent court selected the eight officers to be
dismissed from the union thus losing their status as
employees of the respondent company. The respondent
court should have taken into account that the company's
action in allowing the return of more or less three hundred
ninety two (392) employees/members of the union is an
act of condonation and the dismissal of the eight (8)
officers is an act of discrimination (Phil. Air Lines Inc., vs.
Phil. Air Lines Employees Association, G.R. No. L-8197,
Oct. 31, 1958). Seemingly, from the opinion stated in the
decision by the court, while there is a collective
bargaining agreement, the union cannot go on
demonstration or go on strike because it will change the
terms and conditions of employment agreed in the CBA. It
follows that the CBA is over and above the constitutional
rights of a man to demonstrate and the statutory rights of
a union to strike as provided for in Republic Act 875. This
creates a bad precedent because it will appear that the
rights of the union is solely dependent upon the CBA.
One of the cardinal primary rights which must be
respected in proceedings before the Court of Industrial
Relations is that "the decision must be rendered on the
evidence presented at the hearing, or at least contained
in the record and disclosed to the parties affected."
(Interstate Commerce Commission vs. L & N R. Co., 227
U.S. 88, 33 S. Ct. 185, 57 Law ed. 431.) Only by confining
the administrative tribunal to the evidence disclosed to the
parties, can the latter be protected in their rights to know
and meet the case against them. (Ang Tibay vs. CIR,
G.R. No. L-45496, February 27, 1940.)
The petitioners respectfully and humbly submit that there
is no scintilla of evidence to support the findings of the
respondent court that the petitioner union bargained in
bad faith. Corollary therefore, the dismissal of the
individual petitioners is without basis either in fact or in
law.
Additionally, in their reply they also argued that:
1) That respondent court's finding that petitioners have
been guilty of bargaining in bad faith and consequently
lost their status as employees of the respondent company
did not meet the meaning and comprehension of
"substantial merits of the case." Bargaining in bad faith
has not been alleged in the complaint (Annex "C",
Petition) nor proven during the hearing of the can. The
important and substantial merit of the case is whether
under the facts and circumstances alleged in respondent
company's pleadings, the demonstration done by the
petitioners amounted to on "illegal strike" and therefore in
violation of the "no strike — no lock out" clause of the
Collective Bargaining Agreement. Petitioners respectfully
reiterate and humbly submit, that the respondent court
had altogether opined and decided that such
 demonstration does not amount to a strike. Hence, with
that findings, petitioners should have been absolved of
the charges against them. Nevertheless, the same
respondent court disregarding, its own findings, went out
of bounds by declaring the petitioners as having
"bargained in faith." The stand of the respondent court is
fallacious, as it follows the principle in logic as "non-
siquitor";
2) That again respondents wanted to impress that the
freedom to assemble peaceably to air grievances against
the duly constituted authorities as guaranteed in our
Constitution is subject to the limitation of the agreement in
the Collective Bargaining Agreement. The fundamental
rights of the petitioners to free speech and assembly is
paramount to the provision in the Collective Bargaining
Agreement and such attempt to override the constitutional
provision would be null and void. These fundamental
rights of the petitioners were not taken into consideration
in the deliberation of the case by the respondent court;
Thus, it is clear from the foregoing contentions that petitioners are not
raising any issue of due process. They do not posit that the decision of
the industrial court is null and void on that constitutional ground. True it is
that they fault the respondent court for having priced the provisions of the
collective bargaining agreement herein involved over and above their
constitutional right to peaceably assemble and petition for redress of their
grievances against the abuses of the Pasig police, but in no sense at all
do they allege or contend that such action affects its jurisdiction in a
manner that renders the proceedings a nullity. In other words, petitioners
themselves consider the alleged flaw in the court's action as a mere error
of judgment rather than that of jurisdiction which the main opinion
projects. For this Court to roundly and indignantly condemn private
respondent now for the grievous violation of the fundamental law the
main opinion sees in its refusal to allow all its workers to join the
demonstration in question, when that specific issue has not been duly
presented to Us and properly argued, is to my mind unfair and unjust, for
the simple reason that the manner this case was brought to Us does not
afford it the opportunity to be heard in regard to such supposed
constitutional transgression.
To be sure, petitioners do maintain, that respondent court committed an
error of jurisdiction by finding petitioners guilty of bargaining in bad faith
when the charge against them alleged in the complaint was for having
conducted a mass demonstration, which "amounted to a strike", in
violation of the Collective Bargaining Agreement, but definitely, this
jurisdictional question has no constitutional color. Indeed, We can even
assume for the sake of argument, that the trial judge did err in not giving
preferential importance to the fundamental freedoms invoked by the
petitioners over the management and proprietary attributes claimed by
the respondent private firm — still, We cannot rightly hold that such
disregard of petitioners' priceless liberties divested His Honor of
jurisdiction in the premises. The unbending doctrine of this Court is that
"decisions, erroneous or not, become final after the period fixed by law;
litigations would be endless, no questions would be finally settled; and
titles to property would become precarious if the losing party were
allowed to reopen them at any time in the future".3
I only have to add to this that the fact that the error is in the interpretation,
construction or application of a constitutional precept not constituting a
denial of due process, should not make any difference. Juridically, a party
cannot be less injured by an overlooked or erroneously sanctioned
violation of an ordinary statute than by a misconstrued or constitutional
injunction affecting his individual, freedoms. In both instances, there is
injustice which should be intolerable were it not for the more paramount
considerations that inform the principle of immutability of final judgments.
I dare say this must be the reason why, as I have already noted, the main
opinion does not cite any constitutional provision, law or rule or any
judicial doctrine or principle supporting its basic holding that infringement
of constitutional guarantees, other than denial of due process, divests
courts of jurisdiction to render valid judgments.
In this connection, it must be recalled that the teaching of Philippine
Association of Colleges and Universities vs. Secretary of
Education,4 following Santiago vs. Far Eastern Broadcasting,5 is that "it is
one of our (the Supreme Court's) decisional practices that unless a
constitutional point is specifically raised, insisted upon and adequately
argued, the court will not consider it". In the case at bar, the petitioners
have not raised, they are not insisting upon, much less have they
adequately argued the constitutional issues so extendedly and ably
discussed in the main opinion.
Indeed, it does not seem wise and sound for the Supreme Court to hold
that the erroneous resolution by a court of a constitutional issue not
amounting to a denial of due process renders its judgment or decision
null and void, and, therefore, subject to attack even after said judgment
or decision has become final and executory. I have actually tried to bring
myself into agreement with the views of the distinguished and learned
writer of the main opinion, if only to avoid dissenting from his well
prepared thesis, but its obvious incongruity with settled jurisprudence
always comes to the fore to stifle my effort.
As a matter of fact, for a moment, it appeared to me as if I could go along
with petitioners under the authority of our constitutionally irreducible
appellate jurisdiction under Section 2(5) of Article VII of the
Philippines6 (reenacted practically ipssisimis verbis in Section 5(2) of the
1973 Constitution), only to realize upon further reflection that the very
power granted to us to review decisions of lower courts involving
questions of law(and these include constitutional issues not affecting the
validity of statutes, treaty, executive agreement, etc.) is not unqualified
but has to be exercised only in the manner provided in the law of the
Rules of Court. In other words, before We can exercise appellate
jurisdiction over constitutional issues, no matter how important they may
be, there must first be a showing of compliance with the applicable
procedural law or rules, among them, those governing appeals from the
Court of Industrial Relations involved herein. Consequently, if by law or
rule, a judgment of the industrial court is already final and executory, this
Court would be devoid of power and authority to review, much less alter
or modify the same, absent any denial of due process or fatal defect of
jurisdiction. It must be borne in mind that the situation confronting Us now
is not merely whether or not We should pass upon a question or issue
not specifically raised by the party concerned, which, to be sure, could be
enough reason to dissuade Us from taking pains in resolving the same;
rather, the real problem here is whether or not We have jurisdiction to
entertain it. And, in this regard, as already stated earlier, no less than
Justice Conrado Sanchez, the writer of Chavez, supra., which is being
relied upon by the main opinion, already laid down the precedent
in Elizalde vs. Court, supra, which for its four-square applicability to the
facts of this case, We have no choice but to follow, that is, that in view of
reconsideration but even their argument supporting the same within the
prescribed period, "the judgment (against them)has become final, beyond
recall".
Indeed, when I consider that courts would be useless if the finality and
enforceability of their judgments are made contingent on the correctness
thereof from the constitutional standpoint, and that in truth, whether or not
they are correct is something that is always dependent upon combined
opinion of the members of the Supreme Court, which in turn is naturally
as changeable as the members themselves are changed, I cannot
conceive of anything more pernicious and destructive to a trustful
administration of justice than the idea that, even without any showing of
denial of due process or want of jurisdiction of the court, a final and
executory judgment of such court may still be set aside or reopened in
instances other than those expressly allowed by Rule 38 and that of
extrinsic fraud under Article 1146(1) of the Civil Code.7 And just to
emphasize the policy of the law of respecting judgments once they have
become final, even as this Court has ruled that final decisions are mute in
the presence of fraud which the law abhors,8 it is only when the fraud is
extrinsic and not intrinsic that final and executory judgments may be set
aside,9and this only when the remedy is sought within the prescriptive
period. 10
Apropos here is the following passage in Li Kim Those vs. Go Sin Kaw,
82 Phil. 776:
Litigation must end and terminate sometime and
somewhere, and it is essential to an effective and efficient
administration of justice that once a judgment has
become final, the winning party be not, through a mere
subterfuge, deprived of the fruits of the verdict. Courts
must therefore guard against any scheme calculated to
bring about that result. Constituted as they are to put an
end to controversies, courts should frown upon any
attempt to prolong them.
Likewise the stern admonition of Justice George Malcolm in Dy Cay v.
Crossfield, 38 Phil. 521, thus:
... Public policy and sound practice demand that, at the
risk of occasional errors, judgments of courts should
become final at some definite date fixed by law. The very
object for which courts were instituted was to put an end
to controversies. To fulfill this purpose and to do so
speedily, certain time limits, more or less arbitrary, have
to be set up to spur on the slothful. 'If a vacillating,
irresolute judge were allowed to thus keep causes ever
within his power, to determine and redetermine them term
after term, to bandy his judgments about from one party
to the other, and to change his conclusions as freely and
as capriciously as a chamelon may change its hues, then
litigation might become more intolerable than the wrongs
it is intended to redress.' (See Arnedo vs. Llorente and
Liongson (1911), 18 Phil., 257.).
My disagreement with the dissenters in Republic vs. Judge de los
Angeles,
L-26112, October 4, 1971, 41 SCRA 422, was not as to the unalterability
and invulnerability of final judgments but rather on the correct
interpretation of the contents of the judgment in question therein.
Relevantly to this case at bar, I said then:
The point of res adjudicata discussed in the dissents has
not escaped my attention. Neither am I overlooking the
point of the Chief Justice regarding the dangerous and
inimical implications of a ruling that would authorize the
revision, amendment or alteration of a final and executory
judgment. I want to emphasize that my position in this
opinion does not detract a whit from the soundness,
authority and binding force of existing doctrines enjoining
any such modifications. The public policy of maintaining
faith and respect in judicial decisions, which inform said
doctrines, is admittedly of the highest order. I am not
advocating any departure from them. Nor am I trying to
put forth for execution a decision that I believe should
have been rather than what it is. All I am doing is to view
not the judgment of Judge Tengco but the decision of this
Court in G.R. No. L-20950, as it is and not as I believe it
should have been, and, by opinion, I would like to guide
the court a quo as to what, in my own view, is the true
and correct meaning and implications of decision of this
Court, not that of Judge Tengco's.
The main opinion calls attention to many instant precisely involving cases
in the industrial court, wherein the Court refused to be constrained by
technical rules of procedure in its determination to accord substantial
justice to the parties I still believe in those decisions, some of which were
penned by me. I am certain, however, that in none of those precedents
did this Court disturb a judgment already final and executory. It too
obvious to require extended elucidation or even reference any precedent
or authority that the principle of immutability of final judgments is not a
mere technicality, and if it may considered to be in a sense a procedural
rule, it is one that is founded on public policy and cannot, therefore, yield
to the ordinary plea that it must give priority to substantial justice.
Apparently vent on looking for a constitutional point of due process to
hold on, the main opinion goes far as to maintain that the long existing
and constantly applied rule governing the filing of motions for
reconsideration in the Court of Industrial Relations, "as applied in this
case does not implement on reinforce or strengthen the constitutional
rights affected, but instead constricts the same to the point of nullifying
the enjoyment thereof by the petitioning employees. Said Court on
Industrial Relations Rule, promulgated as it was pursuant to mere
legislative delegation, is unreasonable and therefore is beyond the
authority granted by the Constitution and the law. A period of five (5)
days within which to file a motion for reconsideration is too short,
especially for the aggrieve workers, who usually do not have the ready
funds to meet the necessary expenses therefor. In case of the Court of
Appeal and the Supreme Court, a period of fifteen (15) days has been
fixed for the filing of the motion for re-hearing or reconsideration (Sec. 10,
Rule 51; Sec. 1, Rule 52; Sec. 1, Rule 56, Revised Rules of Court). The
delay in the filing of the motion for reconsideration could have been only
one day if September 28, 1969 was not a Sunday. This fact accentuates
the unreasonableness of the Court of Industrial Relations Rule insofar as
circumstances of the instant case are concerned."
I am afraid the zeal and passion of these arguments do not justify the
conclusion suggested. Viewed objectively, it can readily be seen that
there can hardly be any factual or logical basis for such a critical view of
the rule in question. Said rule provides:
MOTIONS FOR RECONSIDERATION
Sec. 15. The movant shall file the motion, in six copies,
within five (5) days from the date on which he receives
notice of the order or decision, object of the motion for
reconsideration, the same to be verified under oath with
respect to the correctness of the allegations of fact, and
serving a copy thereof, personally or by registered mail,
on the adverse party. The latter may file an answer, in six
(6) copies, duly verified under oath.
Sec. 16. Both the motion and the answer shall be
submitted with arguments supporting the same. If the
arguments can not be submitted simultaneously with said
motions, upon notice Court, the movant shall file same
within ten (10) days from the date of the filing of his
motion for reconsideration. The adverse party shall also
file his answer within ten (10) days from the receipt by
him of a copy of the arguments submitted by the movant.
 Sec. 17. After an answer to the motion is registered, or
after ten (10) days from the receipt of the arguments in
support of said motion having been filed, the motion shall
be deemed submitted for resolution of the Court in banc,
unless it is considered necessary to bear oral arguments,
in which case the Court shall issue the corresponding
order or notice to that effect.
Failure to observe the above-specified periods shall be
sufficient cause for dismissal of the motion for
reconsideration or striking out of the answer and/or the
supporting arguments, as the case may be. (As amended
April 20, 1951, Court of Industrial Relations.).
As implemented and enforced in actual practice, this rule, as everyone
acquainted with proceedings in the industrial court well knows, precisely
permits the party aggrieved by a judgment to file no more than a pro-
forma motion for reconsideration without any argument or lengthy
discussion and with barely a brief statement of the fundamental ground or
grounds therefor, without prejudice to supplementing the same by making
the necessary exposition, with citations laws and authorities, in the
written arguments the be filed (10) days later. In truth, such a pro-forma
motion has to effect of just advising the court and the other party that the
movant does not agree with the judgment due to fundamental defects
stated in brief and general terms. Evidently, the purpose of this
requirement is to apprise everyone concerned within the shortest
possible time that a reconsideration is to sought, and thereby enable the
parties concerned to make whatever adjustments may be warranted by
the situation, in the meanwhile that the litigation is prolonged. It must
borne in mind that cases in the industrial court may involve affect the
operation of vital industries in which labor-management problems might
require day-to-day solutions and it is to the best interests of justice and
concerned that the attitude of each party at every imports juncture of the
case be known to the other so that both avenues for earlier settlement
may, if possible, be explored.
There can be no reason at all to complain that the time fixed by the rule is
short or inadequate. In fact, the motion filed petitioners was no more than
the following:
MOTION FOR RECONSIDERATION
COME NOW movant respondents, through counsel, to
this Honorable Court most respectfully moves for the
RECONSIDERATION of the Order of this Honorable
Court dated September 17, 1969 on the ground that the
same is not in accordance with law, evidence and facts
adduced during the hearing of the above entitled case.
Movant-respondents most respectfully move for leave to
file their respective arguments within ten (10) days
pursuant to Section 15, 16 & 17 as amended of the Rules
of Court.
WHEREFORE, it is respectfully prayed that this Motion
for Reconsideration be admitted.
Manila, September 27, 1969.
To say that five (5) days is an unreasonable period for the
filing of such a motion is to me simply incomprehensible.
What worse in this case is that petitioners have not even
taken the trouble of giving an explanation of their inability
to comply with the rule. Not only that, petitioners were
also late five (5) days in filing their written arguments in
support of their motion, and, the only excuse offered for
such delay is that both the President of the Union and the
office clerk who took charge of the matter forgot to do
what they were instructed to do by counsel, which,
according to this Court, as I shall explain anon "is the
most hackneyed and habitual subterfuge employed by
litigants who fail to observe the procedural requirements
prescribed by the Rules of Court". (Philippine Airlines, Inc.
vs. Arca, infra). And yet, very indignantly, the main
opinion would want the Court to overlook such
nonchalance and indifference.
In this connection, I might add that in my considered opinion, the rules
fixing periods for the finality of judgments are in a sense more
substantive than procedural in their real nature, for in their operation they
have the effect of either creating or terminating rights pursuant to the
terms of the particular judgment concerned. And the fact that the court
that rendered such final judgment is deprived of jurisdiction or authority to
alter or modify the same enhances such substantive character. Moreover,
because they have the effect of terminating rights and the enforcement
thereof, it may be said that said rules partake of the nature also of rules
of prescription, which again are substantive. Now, the twin predicates of
prescription are inaction or abandonment and the passage of time or a
prescribed period. On the other hand, procrastination or failure to act on
time is unquestionably a form of abandonment, particularly when it is not
or cannot be sufficiently explained. The most valuable right of a party
may be lost by prescription, and be has no reason to complain because
public policy demands that rights must be asserted in time, as otherwise
they can be deemed waived.
I see no justification whatsoever for not applying these self-evident
principles to the case of petitioners. Hence, I feel disinclined to adopt the
suggestion that the Court suspend, for the purposes of this case the rules
aforequoted of the Court of Industrial Relations. Besides, I have grave
doubts as to whether we can suspend rules of other courts, particularly
that is not under our supervisory jurisdiction, being administrative agency
under the Executive Department Withal, if, in order to hasten the
administration of substance justice, this Court did exercise in some
instances its re power to amend its rules, I am positively certain, it has
done it for the purpose of reviving a case in which the judo has already
become final and executory.
Before closing, it may be mentioned here, that as averred their petition, in
a belated effort to salvage their Petitioners filed in the industrial court on
October 31, 1969 a Petition for relief alleging that their failure to file
"Arguments in Support of their Motion for Reconsideration within the
reglementary period or five (5), if not seven (7), days late "was due to
excusable negligence and honest mistake committed by the President of
the respondent Union and on office clerk of the counsel for respondents
as shown attested in their respective affidavits", (See Annexes K, and K-
2) which in brief, consisted allegedly of the President's having forgotten
his appointment with his lawyer "despite previous instructions and of the
said office employee having also coincidentally forgotten "to do the work
instructed (sic) to (him) by Atty. Osorio" because he "was busy with
clerical jobs". No sympathy at all can be evoked these allegations, for,
under probably more justification circumstances, this Court ruled out a
similar explanation previous case this wise:
We find merit in PAL's petition. The excuse offered
respondent Santos as reason for his failure to perfect in
due time appeal from the judgment of the Municipal
Court, that counsel's clerk forgot to hand him the court
notice, is the most hackneyed and habitual subterfuge
employed by litigants who fail to observe procedural
requirements prescribed by the Rules of Court. The
uncritical acceptance of this kind of common place
excuses, in the face of the Supreme Court's repeated
rulings that they are neither credible nor constitutive of
excusable negligence (Gaerlan vs. Bernal, L-4039, 29
January 1952; Mercado vs. Judge Domingo, L-19457,
December 1966) is certainly such whimsical exercise of
judgment to be a grave abuse of discretion. (Philippine Air
Lines, Inc. Arca, 19 SCRA 300.)
For the reason, therefore, that the judgment of the industrial court sought
to be reviewed in the present case has already become final and
executory, nay, not without the fault of the petitioners, hence, no matter
how erroneous from the constitutional viewpoint it may be, it is already
beyond recall, I vote to dismiss this case, without pronouncement as to
costs.
TEEHANKEE, J., concurring:
For having carried out a mass demonstration at Malacañang on March 4,
1969 in protest against alleged abuses of the Pasig police department,
upon two days' prior notice to respondent employer company, as against the latter's insistence
that the first shift 1should not participate but instead report for work, under pain of dismissal, the
industrial court ordered the dismissal from employment of the eight individual petitioners as union
officers and organizers of the mass demonstration.
Respondent court's order finding petitioner union guilty on respondent's
complaint of bargaining in bad faith and unfair labor practice for having so
carried out the mass demonstration, notwithstanding that it concededly
was not a declaration of strike nor directed in any manner against
respondent employer, and ordering the dismissal of the union office
manifestly constituted grave abuse of discretion in fact and in law.
There could not be, in fact, bargaining in bad faith nor unfair labor
practice since respondent firm conceded that "the demonstration is an
inalienable right of the union guaranteed' by the Constitution" and the
union up to the day of the demonstration pleaded by cablegram to the
company to excuse the first shift and allow it to join the demonstration in
accordance with their previous requests.
Neither could there be, in law, a willful violation of the collective
bargaining agreement's "no-strike" clause as would warrant the union
leaders' dismissal, since as found by respondent court itself the mass
demonstration was not a declaration of a strike, there being no industrial
dispute between the protagonists, but merely the occurrence of a
temporary stoppage of work" to enable the workers to exercise their
constitutional rights of free expression, peaceable assembly and petition
for redress of grievance against alleged police excesses.

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

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

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

Accordingly, I vote for the setting aside of the appealed orders of the
respondent court and concur in the judgment for petitioners as set forth in
the main opinion.
 EN BANC
[G.R. No. 148560. November 19, 2001]
JOSEPH EJERCITO ESTRADA, petitioner,
vs. SANDIGANBAYAN (Third Division) and PEOPLE OF
THE PHILIPPINES, respondents.
DECISION
BELLOSILLO, J.:
JOHN STUART MILL, in his essay On Liberty, unleashes the full
fury of his pen in defense of the rights of the individual from the vast
powers of the State and the inroads of societal pressure. But even as he
draws a sacrosanct line demarcating the limits on individuality beyond
which the State cannot tread - asserting that "individual spontaneity"
must be allowed to flourish with very little regard to social interference
- he veritably acknowledges that the exercise of rights and liberties is
imbued with a civic obligation, which society is justified in enforcing at
all cost, against those who would endeavor to withhold fulfillment. Thus
he says -
The sole end for which mankind is warranted, individually or
collectively, in interfering with the liberty of action of any of their
number, is self-protection. The only purpose for which power can be
rightfully exercised over any member of a civilized community, against
his will, is to prevent harm to others.
Parallel to individual liberty is the natural and illimitable right of
the State to self-preservation. With the end of maintaining the integrity
and cohesiveness of the body politic, it behooves the State to formulate
a system of laws that would compel obeisance to its collective wisdom
and inflict punishment for non-observance.
The movement from Mill's individual liberalism to unsystematic
collectivism wrought changes in the social order, carrying with it a new
formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process,
the web of rights and State impositions became tangled and obscured,
enmeshed in threads of multiple shades and colors, the skein irregular
and broken. Antagonism, often outright collision, between the law as
the expression of the will of the State, and the zealous attempts by its
members to preserve their individuality and dignity, inevitably
followed. It is when individual rights are pitted against State authority
that judicial conscience is put to its severest test.
Petitioner Joseph Ejercito Estrada, the highest-ranking official to be
prosecuted under RA 7080 (An Act Defining and Penalizing the Crime
of Plunder),[1] as amended by RA 7659,[2] wishes to impress upon us
that the assailed law is so defectively fashioned that it crosses that thin
but distinct line which divides the valid from the constitutionally
infirm. He therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly because,
according to him, (a) it suffers from the vice of vagueness; (b) it
dispenses with the "reasonable doubt" standard in criminal
prosecutions; and, (c) it abolishes the element of mens rea in crimes
already punishable under The Revised Penal Code, all of which are
purportedly clear violations of the fundamental rights of the accused to
due process and to be informed of the nature and cause of the accusation
against him.
Specifically, the provisions of the Plunder Law claimed by
petitioner to have transgressed constitutional boundaries are Secs. 1,
par. (d), 2 and 4 which are reproduced hereunder:
Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property,
business, enterprise or material possession of any person within the
purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or
business associates by any combination or series of the following
means or similar schemes:
(1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury;
(2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public office
concerned;
(3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities, or government owned or controlled
corporations and their subsidiaries;
(4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise
or undertaking;
(5) By establishing agricultural, industrial or commercial monopolies
or other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or
(6) By taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the
expense and to the damage and prejudice of the Filipino people and
the Republic of the Philippines.
Section 2. Definition of the Crime of Plunder, Penalties. - Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-
gotten wealth through a combination or series of overt or criminal
acts as described in Section 1 (d) hereof, in the aggregate amount or
total value of at least fifty million pesos (P50,000,000.00) shall be
guilty of the crime of plunder and shall be punished by reclusion
perpetua to death. Any person who participated with the said public
officer in the commission of an offense contributing to the crime of
plunder shall likewise be punished for such offense. In the imposition
of penalties, the degree of participation and the attendance of
mitigating and extenuating circumstances as provided by
the Revised Penal Code shall be considered by the court. The court
shall declare any and all ill-gotten wealth and their interests and other
incomes and assets including the properties and shares of stocks
derived from the deposit or investment thereof forfeited in favor of the
State (underscoring supplied).
Section 4. Rule of Evidence. - For purposes of establishing the crime
of plunder, it shall not be necessary to prove each and every criminal
act done by the accused in furtherance of the scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth, it being sufficient
to establish beyond reasonable doubt a pattern of overt or criminal
acts indicative of the overall unlawful scheme or
conspiracy (underscoring supplied).
On 4 April 2001 the Office of the Ombudsman filed before the
Sandiganbayan eight (8) separate Informations, docketed as: (a) Crim.
Case No. 26558, for violation of RA 7080, as amended by RA 7659; (b)
Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3,
par. (a), 3, par. (a), 3, par. (e) and 3, par. (e), of RA 3019 (Anti-Graft
and Corrupt Practices Act), respectively; (c) Crim. Case No. 26563, for
violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and
Ethical Standards for Public Officials and Employees); (d) Crim. Case
No. 26564, for Perjury (Art. 183 of The Revised Penal Code); and, (e)
Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as
amended by RA 6085).
On 11 April 2001 petitioner filed an Omnibus Motion for the
remand of the case to the Ombudsman for preliminary investigation
with respect to specification "d" of the charges in the Information in
Crim. Case No. 26558; and, for reconsideration/reinvestigation of the
offenses under specifications "a," "b," and "c" to give the accused an
opportunity to file counter-affidavits and other documents necessary to
prove lack of probable cause. Noticeably, the grounds raised were only
lack of preliminary investigation, reconsideration/reinvestigation of
offenses, and opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness of the law under
which they are charged were never raised in that Omnibus Motion thus
indicating the explicitness and comprehensibility of the Plunder Law.
 On 25 April 2001 the Sandiganbayan, Third Division, issued a
Resolution in Crim. Case No. 26558 finding that "a probable cause for
the offense of PLUNDER exists to justify the issuance of warrants for
the arrest of the accused." On 25 June 2001 petitioner's motion for
reconsideration was denied by the Sandiganbayan.
On 14 June 2001 petitioner moved to quash the Information in
Crim. Case No. 26558 on the ground that the facts alleged therein did
not constitute an indictable offense since the law on which it was based
was unconstitutional for vagueness, and that the Amended Information
for Plunder charged more than one (1) offense. On 21 June 2001 the
Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the
Opposition. On 9 July 2001 the Sandiganbayan denied
petitioner's Motion to Quash.
As concisely delineated by this Court during the oral arguments on
18 September 2001, the issues for resolution in the instant petition for
certiorari are: (a) The Plunder Law is unconstitutional for being vague;
(b) The Plunder Law requires less evidence for proving the predicate
crimes of plunder and therefore violates the rights of the accused to due
process; and, (c) Whether Plunder as defined in RA 7080 is a malum
prohibitum, and if so, whether it is within the power of Congress to so
classify it.
Preliminarily, the whole gamut of legal concepts pertaining to the
validity of legislation is predicated on the basic principle that a
legislative measure is presumed to be in harmony with the
Constitution.[3] Courts invariably train their sights on this fundamental
rule whenever a legislative act is under a constitutional attack, for it is
the postulate of constitutional adjudication. This strong predilection for
constitutionality takes its bearings on the idea that it is forbidden for one
branch of the government to encroach upon the duties and powers of
another. Thus it has been said that the presumption is based on the
deference the judicial branch accords to its coordinate branch - the
legislature.
If there is any reasonable basis upon which the legislation may
firmly rest, the courts must assume that the legislature is ever conscious
of the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what
is right and advancing the welfare of the majority. Hence in determining
whether the acts of the legislature are in tune with the fundamental law,
courts should proceed with judicial restraint and act with caution and
forbearance. Every intendment of the law must be adjudged by the
courts in favor of its constitutionality, invalidity being a measure of last
resort. In construing therefore the provisions of a statute, courts must
first ascertain whether an interpretation is fairly possible to sidestep the
question of constitutionality.
In La Union Credit Cooperative, Inc. v. Yaranon[4] we held that as
long as there is some basis for the decision of the court, the
constitutionality of the challenged law will not be touched and the case
will be decided on other available grounds. Yet the force of the
presumption is not sufficient to catapult a fundamentally deficient law
into the safe environs of constitutionality. Of course, where the law
clearly and palpably transgresses the hallowed domain of the organic
law, it must be struck down on sight lest the positive commands of the
fundamental law be unduly eroded.
Verily, the onerous task of rebutting the presumption weighs
heavily on the party challenging the validity of the statute. He must
demonstrate beyond any tinge of doubt that there is indeed an
infringement of the constitution, for absent such a showing, there can be
no finding of unconstitutionality. A doubt, even if well-founded, will
hardly suffice. As tersely put by Justice Malcolm, "To doubt is to
sustain."[5] And petitioner has miserably failed in the instant case to
discharge his burden and overcome the presumption of constitutionality
of the Plunder Law.
As it is written, the Plunder Law contains ascertainable standards
and well-defined parameters which would enable the accused to
determine the nature of his violation. Section 2 is
sufficiently explicit in its description of the acts, conduct and conditions
required or forbidden, and prescribes the elements of the crime with
reasonable certainty and particularity. Thus -
1. That the offender is a public officer who acts by himself or in
connivance with members of his family, relatives by affinity or
consanguinity, business associates, subordinates or other persons;
2. That he amassed, accumulated or acquired ill-gotten wealth
through a combination or series of the following overt or criminal
acts: (a) through misappropriation,
conversion, misuse, or malversation of public funds or raids on the
public treasury; (b) by receiving, directly or indirectly, any
commission, gift, share, percentage, kickback or any other form of
pecuniary benefits from any person and/or entity in connection with
any government contract or project or by reason of the office or
position of the public officer; (c) by the illegal or fraudulent
conveyance or disposition of assets belonging to the
National Government or any of its subdivisions, agencies or
instrumentalities of Government owned or controlled corporations or
their subsidiaries; (d) by obtaining, receiving or accepting directly or
indirectly any shares of stock, equity or any other form of interest or
participation including the promise of future employment in any
business enterprise or undertaking; (e) by establishing agricultural,
industrial or commercial monopolies or other combinations and/or
implementation of decrees and orders intended to benefit particular
persons or special interests; or (f) by taking advantage of official
position, authority, relationship, connection or influence to unjustly
enrich himself or themselves at the expense and to the damage and
prejudice of the Filipino people and the Republic of the Philippines;
and,
3. That the aggregate amount or total value of the ill-gotten wealth
amassed, accumulated or acquired is at least P50,000,000.00.
As long as the law affords some comprehensible guide or rule that
would inform those who are subject to it what conduct would render
them liable to its penalties, its validity will be sustained. It must
sufficiently guide the judge in its application; the counsel, in defending
one charged with its violation; and more importantly, the accused, in
identifying the realm of the proscribed conduct.Indeed, it can be
understood with little difficulty that what the assailed statute punishes
is the act of a public officer in amassing or accumulating ill-gotten
wealth of at least P50,000,000.00 through a series or combination of
acts enumerated in Sec. 1, par. (d), of the Plunder Law.
In fact, the amended Information itself closely tracks the language
of the law, indicating with reasonable certainty the various elements of
the offense which petitioner is alleged to have committed:
"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former PRESIDENT OF
THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,'
together with Jose 'Jinggoy' Estrada, Charlie 'Atong' Ang, Edward
Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOEa.k.a.
Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a.
Delia Rajas, and John DOES & Jane Does, of the crime of Plunder,
defined and penalized under R.A. No. 7080, as amended by Sec. 12 of
R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January 2001, in the
Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES, by
himself AND/OR in CONNIVANCE/CONSPIRACY with his co-
accused, WHO ARE MEMBERS OF HIS FAMILY, RELATIVES
BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS,
BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL
POSITION, AUTHORITY, RELATIONSHIP, CONNECTION,
OR INFLUENCE, did then and there willfully, unlawfully and
criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate
amount or TOTAL VALUE of FOUR BILLION NINETY SEVEN
MILLION EIGHT HUNDRED FOUR THOUSAND ONE
HUNDRED SEVENTY THREE PESOS AND SEVENTEEN
CENTAVOS (P4,097,804,173.17), more or less, THEREBY
UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT
THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO
PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR A series of overt OR criminal
acts, OR SIMILAR SCHEMES OR MEANS, described as follows:
(a) by receiving OR collecting, directly or indirectly, on SEVERAL
INSTANCES, MONEY IN THE AGGREGATE AMOUNT OF
FIVE HUNDRED FORTY-FIVE MILLION PESOS
(P545,000,000.00), MORE OR LESS, FROM ILLEGAL
GAMBLING IN THE FORM OF GIFT, SHARE,
PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY
BENEFIT, BY HIMSELF AND/OR in connection with co-
accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy' Estrada, Yolanda
T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE
DOES, in consideration OF TOLERATION OR PROTECTION
OF ILLEGAL GAMBLING;
(b) by DIVERTING, RECEIVING, misappropriating,
converting OR misusing DIRECTLY OR INDIRECTLY, for HIS
OR THEIR PERSONAL gain and benefit, public funds in the
amount of ONE HUNDRED THIRTY MILLION PESOS
(P130,000,000.00), more or less, representing a portion of the TWO
HUNDRED MILLION PESOS (P200,000,000.00) tobacco excise
tax share allocated for the province of Ilocos Sur under R.A. No.
7171, by himself and/or in connivance with co-accused Charlie
'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a. Eleuterio Ramos Tan or
Mr. Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES &
JANE DOES; (italic supplied).
(c) by directing, ordering and compelling, FOR HIS PERSONAL
GAIN AND BENEFIT, the Government Service Insurance System
(GSIS) TO PURCHASE 351,878,000 SHARES OF STOCKS,
MORE OR LESS, and the Social Security System (SSS),
329,855,000 SHARES OF STOCK, MORE OR LESS, OF THE
BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE
HUNDRED SIXTY FIVE THOUSAND SIX HUNDRED SEVEN
PESOS AND FIFTY CENTAVOS (P1,102,965,607.50) AND
MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION
SIX HUNDRED TWELVE THOUSAND AND FOUR HUNDRED
FIFTY PESOS (P744,612,450.00), RESPECTIVELY, OR A
TOTAL OF MORE OR LESS ONE BILLION EIGHT
HUNDRED FORTY SEVEN MILLION FIVE HUNDRED
SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND
FIFTY CENTAVOS (P1,847,578,057.50); AND BY
COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE
WITH JOHN DOES AND JANE DOES, COMMISSIONS OR
PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED
EIGHTY NINE MILLION SEVEN HUNDRED THOUSAND
PESOS (P189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT
IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT
NAME 'JOSE VELARDE;'
(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS,
SHARES, PERCENTAGES, KICKBACKS, OR ANY FORM OF
PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, in the amount of MORE OR
LESS THREE BILLION TWO HUNDRED THIRTY THREE
MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS
(P3,233,104,173.17) AND DEPOSITING THE SAME UNDER HIS
ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-
PCI BANK."
We discern nothing in the foregoing that is vague or ambiguous -
as there is obviously none - that will confuse petitioner in his
defense. Although subject to proof, these factual assertions clearly show
that the elements of the crime are easily understood and provide
adequate contrast between the innocent and the prohibited acts. Upon
such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent
defense.
Petitioner, however, bewails the failure of the law to provide for the
statutory definition of the terms "combination" and "series" in the key
phrase "a combination or series of overt or criminal acts" found in Sec.
1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions,
according to petitioner, render the Plunder Law unconstitutional for
being impermissibly vague and overbroad and deny him the right to be
informed of the nature and cause of the accusation against him, hence,
violative of his fundamental right to due process.
The rationalization seems to us to be pure sophistry. A statute is not
rendered uncertain and void merely because general terms are used
therein, or because of the employment of terms without defining
them;[6] much less do we have to define every word we use. Besides,
there is no positive constitutional or statutory command requiring the
legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so
define the words employed in a statute will not necessarily result in the
vagueness or ambiguity of the law so long as the legislative will is clear,
or at least, can be gathered from the whole act, which is distinctly
expressed in the Plunder Law.
Moreover, it is a well-settled principle of legal hermeneutics that
words of a statute will be interpreted in their natural, plain and ordinary
acceptation and signification,[7] unless it is evident that the legislature
intended a technical or special legal meaning to those words.[8] The
intention of the lawmakers - who are, ordinarily, untrained philologists
and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains
the following commonly accepted definition of the words
"combination" and "series:"
Combination - the result or product of combining; the act or process of
combining. To combine is to bring into such close relationship as to
obscure individual characters.
Series - a number of things or events of the same class coming one
after another in spatial and temporal succession.
That Congress intended the words "combination" and "series" to be
understood in their popular meanings is pristinely evident from the
legislative deliberations on the bill which eventually became RA 7080
or the Plunder Law:
DELIBERATIONS OF THE BICAMERAL COMMITTEE ON
JUSTICE, 7 May 1991
REP. ISIDRO: I am just intrigued again by our definition of
plunder. We say THROUGH A COMBINATION OR SERIES OF
OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE
HEREOF. Now when we say combination, we actually mean to say, if
there are two or more means, we mean to say that number one and two
or number one and something else are included, how about a series of
the same act? For example, through misappropriation, conversion,
misuse, will these be included also?
REP. GARCIA: Yeah, because we say a series.
REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination,
two acts.
REP. ISIDRO: So in other words, thats it. When we say
combination, we mean, two different acts. It cannot be a
repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are
two.
REP. GARCIA: A series.
REP. ISIDRO: Thats not series. Its a combination. Because when
we say combination or series, we seem to say that two or more,
di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary
crimes. That is why, I said, that is a very good suggestion
because if it is only one act, it may fall under ordinary crime
but we have here a combination or series of overt or criminal
acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term series?
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two
misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be
combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989
SENATOR MACEDA: In line with our interpellations that
sometimes one or maybe even two acts may already result in
such a big amount, on line 25, would the Sponsor consider
deleting the words a series of overt or, to read, therefore: or
conspiracy COMMITTED by criminal acts such as. Remove
the idea of necessitating a series. Anyway, the criminal acts are
in the plural.
SENATOR TANADA: That would mean a combination of two or
more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because a series implies several or
many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say acts of
plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring
to at least two (2) acts falling under different categories of enumeration
provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec. 1,
par. (d), subpar. (1), and fraudulent conveyance of assets belonging to
the National Government under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or
more overt or criminal acts falling under the same category of
enumeration found in Sec. 1, par. (d), say, misappropriation,
malversation and raids on the public treasury, all of which fall under
Sec. 1, par. (d), subpar. (1). Verily, had the legislature intended a
technical or distinctive meaning for "combination" and "series," it
would have taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the
Sandiganbayan[9] that this term is sufficiently defined in Sec. 4, in
relation to Sec. 1, par. (d), and Sec. 2 -
x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a
combination or series of overt or criminal acts enumerated in
subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the
law, the pattern of overt or criminal acts is directed towards a
common purpose or goal which is to enable the public officer to
amass, accumulate or acquire ill-gotten wealth. And thirdly, there
must either be an 'overall unlawful scheme' or 'conspiracy' to achieve
said common goal. As commonly understood, the term 'overall
unlawful scheme' indicates a 'general plan of action or method' which
the principal accused and public officer and others conniving with him
follow to achieve the aforesaid common goal. In the alternative, if
there is no such overall scheme or where the schemes or methods used
by multiple accused vary, the overt or criminal acts must form part of
a conspiracy to attain a common goal.
Hence, it cannot plausibly be contended that the law does not give
a fair warning and sufficient notice of what it seeks to penalize. Under
the circumstances, petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been formulated in
various ways, but is most commonly stated to the effect that a statute
establishing a criminal offense must define the offense with sufficient
definiteness that persons of ordinary intelligence can understand what
conduct is prohibited by the statute. It can only be invoked against that
specie of legislation that is utterly vague on its face, i.e., that which
cannot be clarified either by a saving clause or by construction.
A statute or act may be said to be vague when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its
meaning and differ in its application. In such instance, the statute is
repugnant to the Constitution in two (2) respects - it violates due process
for failure to accord persons, especially the parties targeted by it, fair
notice of what conduct to avoid; and, it leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing
of the Government muscle.[10] But the doctrine does not apply as against
legislations that are merely couched in imprecise language but which
nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of
activities. The first may be "saved" by proper construction, while no
challenge may be mounted as against the second whenever directed
against such activities.[11] With more reason, the doctrine cannot be
invoked where the assailed statute is clear and free from ambiguity, as
in this case.
The test in determining whether a criminal statute is void for
uncertainty is whether the language conveys a sufficiently definite
warning as to the proscribed conduct when measured by common
understanding and practice.[12] It must be stressed, however, that the
"vagueness" doctrine merely requires a reasonable degree of certainty
for the statute to be upheld - not absolute precision or mathematical
exactitude, as petitioner seems to suggest. Flexibility, rather than
meticulous specificity, is permissible as long as the metes and bounds
of the statute are clearly delineated. An act will not be held invalid
merely because it might have been more explicit in its wordings or
detailed in its provisions, especially where, because of the nature of the
act, it would be impossible to provide all the details in advance as in all
other statutes.
Moreover, we agree with, hence we adopt, the observations of Mr.
Justice Vicente V. Mendoza during the deliberations of the Court that
the allegations that the Plunder Law is vague and overbroad do not
justify a facial review of its validity -
The void-for-vagueness doctrine states that "a statute which either
forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process of
law."[13] The overbreadth doctrine, on the other hand, decrees that "a
governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected
freedoms."[14]
A facial challenge is allowed to be made to a vague statute and to one
which is overbroad because of possible "chilling effect" upon
protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself
as a vehicle for rehabilitating the statutes in a single prosecution, the
transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad
statutes with no requirement that the person making the attack
demonstrate that his own conduct could not be regulated by a statute
drawn with narrow specificity."[15] The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed
by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory
effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have
general in terrorem effect resulting from their very existence, and, if
facial challenge is allowed for this reason alone, the State may well be
prevented from enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in the area of free
speech.
The overbreadth and vagueness doctrines then have special application
only to free speech cases. They are inapt for testing the validity of
penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth'
doctrine outside the limited context of the First
Amendment."[16] In Broadrick v. Oklahoma,[17] the Court ruled that
"claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words"
and, again, that "overbreadth claims, if entertained at all, have been
curtailed when invoked against ordinary criminal laws that are sought
to be applied to protected conduct." For this reason, it has been held
that "a facial challenge to a legislative act is the most difficult
challenge to mount successfully, since the challenger must establish
that no set of circumstances exists under which the Act would be
valid."[18] As for the vagueness doctrine, it is said that a litigant may
challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to
the conduct of others."[19]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
analytical tools developed for testing "on their faces" statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is
that "one to whom application of a statute is constitutional will not be
heard to attack the statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in which its
application might be unconstitutional."[20] As has been pointed out,
"vagueness challenges in the First Amendment context, like
overbreadth challenges typically produce facial invalidation, while
statutes found vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular
defendant."[21] Consequently, there is no basis for petitioner's claim
that this Court review the Anti-Plunder Law on its face and in its
entirety.
Indeed, "on its face" invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected.[22] It
constitutes a departure from the case and controversy requirement of
the Constitution and permits decisions to be made without concrete
factual settings and in sterile abstract contexts.[23]But, as the U.S.
Supreme Court pointed out in Younger v. Harris[24]
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis
of detailed statutes, . . . ordinarily results in a kind of case that is
wholly unsatisfactory for deciding constitutional questions, whichever
way they might be decided.
For these reasons, "on its face" invalidation of statutes has been
described as "manifestly strong medicine," to be employed "sparingly
and only as a last resort,"[25] and is generally disfavored.[26] In
determining the constitutionality of a statute, therefore, its provisions
which are alleged to have been violated in a case must be examined in
the light of the conduct with which the defendant is charged.[27]
In light of the foregoing disquisition, it is evident that the purported
ambiguity of the Plunder Law, so tenaciously claimed and argued at
length by petitioner, is more imagined than real. Ambiguity, where none
exists, cannot be created by dissecting parts and words in the statute to
furnish support to critics who cavil at the want of scientific precision in
the law. Every provision of the law should be construed in relation and
with reference to every other part. To be sure, it will take more than
nitpicking to overturn the well-entrenched presumption of
constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one
of the Senators who voted for its passage, petitioner must be aware that
the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his
affirmative vote with full knowledge of its legal implications and sound
constitutional anchorage.
The parallel case of Gallego v. Sandiganbayan[28] must be
mentioned if only to illustrate and emphasize the point that courts are
loathed to declare a statute void for uncertainty unless the law itself is
so imperfect and deficient in its details, and is susceptible of no
reasonable construction that will support and give it effect. In that case,
petitioners Gallego and Agoncillo challenged the constitutionality of
Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act for being
vague. Petitioners posited, among others, that the term "unwarranted" is
highly imprecise and elastic with no common law meaning or settled
definition by prior judicial or administrative precedents; that, for its
vagueness, Sec. 3, par. (e), violates due process in that it does not give
fair warning or sufficient notice of what it seeks to penalize. Petitioners
further argued that the Information charged them with three (3) distinct
offenses, to wit: (a) giving of "unwarranted" benefits through manifest
partiality; (b) giving of "unwarranted" benefits through evident bad
faith; and, (c) giving of "unwarranted" benefits through gross
inexcusable negligence while in the discharge of their official function
and that their right to be informed of the nature and cause of the
accusation against them was violated because they were left to guess
which of the three (3) offenses, if not all, they were being charged and
prosecuted.
In dismissing the petition, this Court held that Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act does not suffer from the
constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely
describe the different modes by which the offense penalized in Sec. 3,
par. (e), of the statute may be committed, and the use of all these phrases
in the same Information does not mean that the indictment charges three
(3) distinct offenses.
The word 'unwarranted' is not uncertain. It seems lacking adequate or
official support; unjustified; unauthorized (Webster, Third
International Dictionary, p. 2514); or without justification or adequate
reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D.
Pa., 405 F. Supp. 8, 12, cited in Words and Phrases, Permanent
Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).
The assailed provisions of the Anti-Graft and Corrupt Practices Act
consider a corrupt practice and make unlawful the act of the public
officer in:
x x x or giving any private party any unwarranted benefits, advantage
or preference in the discharge of his official, administrative or judicial
functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as
amended).
It is not at all difficult to comprehend that what the aforequoted penal
provisions penalize is the act of a public officer, in the discharge of his
official, administrative or judicial functions, in giving any private
party benefits, advantage or preference which is unjustified,
unauthorized or without justification or adequate reason, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In other words, this Court found that there was nothing vague or
ambiguous in the use of the term "unwarranted" in Sec. 3, par. (e), of The
Anti-Graft and Corrupt Practices Act, which was understood in its
primary and general acceptation. Consequently, in that case, petitioners'
objection thereto was held inadequate to declare the section
unconstitutional.
On the second issue, petitioner advances the highly stretched theory
that Sec. 4 of the Plunder Law circumvents the immutable obligation of
the prosecution to prove beyond reasonable doubt the predicate acts
constituting the crime of plunder when it requires only proof of a pattern
of overt or criminal acts showing unlawful scheme or conspiracy -
SEC. 4. Rule of Evidence. - For purposes of establishing the crime of
plunder, it shall not be necessary to prove each and every criminal act
done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to
establish beyond reasonable doubt a pattern of overt or criminal acts
indicative of the overall unlawful scheme or conspiracy.
The running fault in this reasoning is obvious even to the simplistic
mind. In a criminal prosecution for plunder, as in all other
crimes, the accused always has in his favor the presumption of
innocence which is guaranteed by the Bill of Rights, and unless the State
succeeds in demonstrating by proof beyond reasonable doubt that
culpability lies, the accused is entitled to an acquittal.[29] The use of
the "reasonable doubt" standard is indispensable to command the
respect and confidence of the community in the application of criminal
law. It is critical that the moral force of criminal law be not diluted by a
standard of proof that leaves people in doubt whether innocent men are
being condemned. It is also important in our free society that every
individual going about his ordinary affairs has confidence that his
government cannot adjudge him guilty of a criminal offense without
convincing a proper factfinder of his guilt with utmost
certainty. This "reasonable doubt" standard has acquired such exalted
stature in the realm of constitutional law as it gives life to the Due
Process Clause which protects the accused against conviction except
upon proof beyond reasonable doubt of every fact necessary to
constitute the crime with which he is charged.[30] The following
exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of
Representatives are elucidating -
DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON
RA 7080, 9 October 1990
MR. ALBANO: Now, Mr. Speaker, it is also elementary in our
criminal law that what is alleged in the information must be
proven beyond reasonable doubt. If we will prove only one act
and find him guilty of the other acts enumerated in the
information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is
less than P100 million, but the totality of the crime committed
is P100 million since there is malversation, bribery,
falsification of public document, coercion, theft?
MR. GARCIA: Mr. Speaker, not everything alleged in the
information needs to be proved beyond reasonable doubt. What
is required to be proved beyond reasonable doubt is every
element of the crime charged. For example, Mr. Speaker, there
is an enumeration of the things taken by the robber in the
information three pairs of pants, pieces of jewelry. These need
not be proved beyond reasonable doubt, but these will not
prevent the conviction of a crime for which he was charged just
because, say, instead of 3 pairs of diamond earrings the
prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.
MR. ALBANO: I am aware of that, Mr. Speaker, but considering
that in the crime of plunder the totality of the amount is very
important, I feel that such a series of overt criminal acts has to
be taken singly. For instance, in the act of bribery, he was able
to accumulate only P50,000 and in the crime of extortion, he
was only able to accumulate P1 million. Now, when we add the
totality of the other acts as required under this bill through the
interpretation on the rule of evidence, it is just one single act,
so how can we now convict him?
MR. GARCIA: With due respect, Mr. Speaker, for purposes of
proving an essential element of the crime, there is a need to
prove that element beyond reasonable doubt. For example, one
essential element of the crime is that the amount involved
is P100 million. Now, in a series of defalcations and other acts
of corruption in the enumeration the total amount would
be P110 or P120 million, but there are certain acts that could
not be proved, so, we will sum up the amounts involved in those
transactions which were proved. Now, if the amount involved
in these transactions, proved beyond reasonable doubt, is P100
million, then there is a crime of plunder (underscoring
supplied).
It is thus plain from the foregoing that the legislature did not in any
manner refashion the standard quantum of proof in the crime of
plunder. The burden still remains with the prosecution to prove beyond
any iota of doubt every fact or element necessary to constitute the crime.
The thesis that Sec. 4 does away with proof of each and every
component of the crime suffers from a dismal misconception of the
import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a
combination or series which would constitute a pattern and involving an
amount of at least P50,000,000.00. There is no need to prove each and
every other act alleged in the Information to have been committed by
the accused in furtherance of the overall unlawful scheme or conspiracy
to amass, accumulate or acquire ill-gotten wealth. To illustrate,
supposing that the accused is charged in an Information for plunder with
having committed fifty (50) raids on the public
treasury. The prosecution need not prove all these fifty (50) raids, it
being sufficient to prove by pattern at least two (2) of the raids beyond
reasonable doubt provided only that they amounted to at
least P50,000,000.00.[31]
A reading of Sec. 2 in conjunction with Sec. 4, brings us to the
logical conclusion that "pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. Stated otherwise,
such pattern arises where the prosecution is able to prove beyond
reasonable doubt the predicate acts as defined in Sec. 1, par. (d). Pattern
is merely a by-product of the proof of the predicate acts. This conclusion
is consistent with reason and common sense. There would be no other
explanation for a combination or series of
overt or criminal acts to stash P50,000,000.00 or more, than "a scheme
or conspiracy to amass, accumulate or acquire ill gotten wealth." The
prosecution is therefore not required to make a deliberate and conscious
effort to prove pattern as it necessarily follows with the establishment
of a series or combination of the predicate acts.
Relative to petitioner's contentions on the purported defect of Sec.
4 is his submission that "pattern" is "a very important element of the
crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a rule
of evidence and a substantive element of the crime," such that without
it the accused cannot be convicted of plunder -
JUSTICE BELLOSILLO: In other words, cannot an accused be
convicted under the Plunder Law without applying Section 4
on the Rule of Evidence if there is proof beyond reasonable
doubt of the commission of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual
crimes enumerated in the Revised Penal Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the
crime are proved beyond reasonable doubt without applying
Section 4, can you not have a conviction under the Plunder
Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of
Sec. 4 in convicting an accused charged for violation of the
Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays
down a substantive element of the law x x x x
JUSTICE BELLOSILLO: What I said is - do we have to avail of
Section 4 when there is proof beyond reasonable doubt on the
acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two
pronged, it contains a rule of evidence and it contains a
substantive element of the crime of plunder. So, there is no way
by which we can avoid Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable
doubt insofar as the predicate crimes charged are concerned
that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4
contains a very important element of the crime of plunder and
that cannot be avoided by the prosecution.[32]
We do not subscribe to petitioner's stand. Primarily, all the essential
elements of plunder can be culled and understood from its definition in
Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of
them. Moreover, the epigraph and opening clause of Sec. 4 is clear and
unequivocal:
SEC. 4. Rule of Evidence. - For purposes of establishing the
crime of plunder x x x x
It purports to do no more than prescribe a rule of procedure for the
prosecution of a criminal case for plunder. Being a purely procedural
measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is
only a means to an end, an aid to substantive law. Indubitably, even
without invoking Sec. 4, a conviction for plunder may be had, for what
is crucial for the prosecution is to present sufficient evidence to
engender that moral certitude exacted by the fundamental law to prove
the guilt of the accused beyond reasonable doubt. Thus, even granting
for the sake of argument that Sec. 4 is flawed and vitiated for the reasons
advanced by petitioner, it may simply be severed from the rest of the
provisions without necessarily resulting in the demise of the law; after
all, the existing rules on evidence can supplant Sec. 4 more than
enough. Besides, Sec. 7 of RA 7080 provides for a separability clause -
Sec. 7. Separability of Provisions. - If any provisions of this Act or the
application thereof to any person or circumstance
is held invalid, the remaining provisions of this Act and the application
of such provisions to other persons or circumstances shall not be
affected thereby.
Implicit in the foregoing section is that to avoid the whole act from
being declared invalid as a result of the nullity of some of its provisions,
assuming that to be the case although it is not really so, all the provisions
thereof should accordingly be treated independently of each other,
especially if by doing so, the objectives of the statute can best be
achieved.
As regards the third issue, again we agree with Justice Mendoza
that plunder is a malum in se which requires proof of criminal
intent. Thus, he says, in his Concurring Opinion -
x x x Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus
alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the requirement
of mens rea and that is the reason he claims the statute is void,
petitioner cites the following remarks of Senator Taada made during
the deliberation on S.B. No. 733:
SENATOR TAADA . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.[33]
However, Senator Taada was discussing 4 as shown by the succeeding
portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it
is contained in Section 4, Rule of Evidence, which, in the Gentleman's
view, would provide for a speedier and faster process of attending to
this kind of cases?
SENATOR TAADA: Yes, Mr. President . . .[34]
Senator Taada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every
criminal act done to further the scheme or conspiracy, it being enough
if it proves beyond reasonable doubt a pattern of overt or ciminal acts
indicative of the overall unlawful scheme or conspiracy. As far as the
acts constituting the pattern are concerned, however, the elements of
the crime must be proved and the requisite mens rea must be shown.
Indeed, 2 provides that -
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties,
the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that 2 refers to "any person who participates with the
said public officer in the commission of an offense contributing to the
crime of plunder." There is no reason to believe, however, that it does
not apply as well to the public officer as principal in the crime. As
Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon
against using common sense in construing laws as saying what they
obviously mean."[35]
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring
to these groups of heinous crimes, this Court held in People v.
Echegaray:[36]
The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously taken
or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being . . . . Seen in this light, the capital crimes of kidnapping and
serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape,
parricide, infanticide, kidnapping and serious illegal detention, where
the victim is detained for more than three days or serious physical
injuries were inflicted on the victim or threats to kill him were made or
the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver
or occupant of the carnapped vehicle is killed or raped, which are
penalized by reclusion perpetua to death, are clearly heinous by their
very nature.
There are crimes, however, in which the abomination lies in the
significance and implications of the subject criminal acts in the scheme
of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and
underprivileged masses. Reeling from decades of corrupt tyrannical
rule that bankrupted the government and impoverished the population,
the Philippine Government must muster the political will to dismantle
the culture of corruption, dishonesty, greed and syndicated criminality
that so deeply entrenched itself in the structures of society and the
psyche of the populace. [With the government] terribly lacking the
money to provide even the most basic services to its people, any form
of misappropriation or misapplication of government funds translates
to an actual threat to the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in this context, no
less heinous are the effects and repercussions of crimes like qualified
bribery, destructive arson resulting in death, and drug offenses
involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
damage to society.
The legislative declaration in R.A. No. 7659 that plunder is a heinous
offense implies that it is a malum in se. For when the acts punished are
inherently immoral or inherently wrong, they are mala in se[37] and it
does not matter that such acts are punished in a special law, especially
since in the case of plunder the predicate crimes are mainly mala in
se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing
Check Law (B.P. Blg. 22) or of an ordinance against jaywalking,
without regard to the inherent wrongness of the acts.
To clinch, petitioner likewise assails the validity of RA 7659, the
amendatory law of RA 7080, on constitutional grounds. Suffice it to say
however that it is now too late in the day for him to
resurrect this long dead issue, the same having been eternally consigned
by People v. Echegaray[38] to the archives of jurisprudential history. The
declaration of this Court therein that RA 7659 is constitutionally valid
stands as a declaration of the State, and becomes, by necessary effect,
assimilated in the Constitution now as an integral part of it.
Our nation has been racked by scandals of corruption and obscene
profligacy of officials in high places which have shaken its very
foundation. The anatomy of graft and corruption has become more
elaborate in the corridors of time as unscrupulous people
relentlessly contrive more and more ingenious ways to bilk the coffers
of the government. Drastic and radical measures are imperative to fight
the increasingly sophisticated, extraordinarily methodical and
economically catastrophic looting of the national treasury. Such is the
Plunder Law, especially designed to disentangle those ghastly tissues of
grand-scale corruption which, if left unchecked, will spread like a
malignant tumor and ultimately consume the moral and institutional
fiber of our nation. The Plunder Law, indeed, is a living testament to the
will of the legislature to ultimately eradicate this scourge and thus secure
society against the avarice and other venalities in public office.
These are times that try men's souls. In the checkered history of this
nation, few issues of national importance can equal the amount of
interest and passion generated by petitioner's ignominious fall from the
highest office, and his eventual prosecution and trial under a virginal
statute. This continuing
saga has driven a wedge of dissension among our people that may linger
for a long time. Only by responding to the clarion call for patriotism, to
rise above factionalism and prejudices, shall we emerge triumphant in
the midst of ferment.
PREMISES CONSIDERED, this Court holds that RA 7080
otherwise known as the Plunder Law, as amended by RA 7659, is
CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.
SO ORDERED.
MENDOZA, J., concurring in the judgment:
Before I explain my vote, I think it necessary to restate the basic
facts.
Petitioner Joseph Ejercito Estrada was President of the Philippines
until January 20, 2001 when he was forced to vacate the presidency by
people power and then Vice President Gloria Macapagal-Arroyo
succeeded him in office.[1] He was charged, in eight cases filed with the
Sandiganbayan, with various offenses committed while in office, among
them plunder, for allegedly having amassed ill-gotten wealth in the
amount of P4.1 billion, more or less. He moved to quash the information
for plunder on the ground that R.A. No. 7080, otherwise called the Anti-
Plunder Law, is unconstitutional and that the information charges more
than one offense.
In its resolution dated July 9, 2001, the Sandiganbayan denied
petitioners motion, along with those filed by his co-accused, Edward
Serapio, and his son, Jose Jinggoy Estrada. Petitioner brought this
petition for certiorari and prohibition under Rule 65 to set aside the
Sandiganbayans resolution principally on the ground that the Anti-
Plunder Law is void for being vague and overbroad. We gave due course
to the petition and required respondents to file comments and later heard
the parties in oral arguments on September 18, 2001 and on their
memoranda filed on September 28, 2001 to consider the constitutional
claims of petitioner.
I. THE ANTI-PLUNDER LAW
The Anti-Plunder Law (R.A. No. 7080) was enacted by Congress
on July 12, 1991 pursuant to the constitutional mandate that the State
shall maintain honesty and integrity in the public service and take
positive and effective measures against graft and corruption.[2] Section
2 of the statute provides:
Definition of the Crime of Plunder; Penalties. Any public officer who,
by himself or in connivance with members of his family, relatives by
affinity or consanguinity, business associates, subordinates or other
persons, amasses, accumulates or acquires ill-gotten wealth through a
combination or series of overt or criminal acts as described in Section
1(d) hereof in the aggregate amount or total value of at least Fifty
million pesos (P50,000,000.00) shall be guilty of the crime of plunder
and shall be punished by reclusion perpetua to death. Any person who
participated with the said public officer in the commission of an
offense contributing to the crime of plunder shall likewise be punished
for such offense. In the imposition of penalties, the degree of
participation and the attendance of mitigating and extenuating
circumstances, as provided by the Revised Penal Code, shall be
considered by the court. The court shall declare any and all ill-gotten
wealth and their interests and other incomes and assets including the
properties and shares of stocks derived from the deposit or investment
thereof forfeited in favor of the State. (As amended by Sec. 12, R.A.
No. 7659).
The term ill-gotten wealth is defined in 1(d) as follows:
Ill-gotten wealth, means any asset, property, business enterprise or
material possession of any person within the purview of Section Two
(2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer
concerned;
3) By the illegal or fraudulent conveyance or disposition of assets
belonging to the National Government or any of its subdivisions,
agencies or instrumentalities or government-owned or controlled
corporations and their subsidiaries.
4) By obtaining, receiving or accepting directly or indirectly any
shares of stock, equity or any other form of interest or participation
including the promise of future employment in any business enterprise
or undertaking;
5) By establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders
intended to benefit particular persons or special interests; or
6) By taking undue advantage of official position, authority,
relationship, connection or influence to unjustly enrich himself or
themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.
Section 4 of the said law states:
Rule of Evidence. For purposes of establishing the crime of plunder, it
shall not be necessary to prove each and every criminal act done by the
accused in furtherance of the scheme or conspiracy to amass,
accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative
of the overall unlawful scheme or conspiracy.
II. ANTI-PLUNDER LAW NOT TO BE JUDGED
ON ITS FACE
The amended information against petitioner charges violations of
2, in relation to 1(d)(1)(2), of the statute. It reads:
AMENDED INFORMATION
The undersigned Ombudsman Prosecutor and OIC-Director, EPIB,
Office of the Ombudsman, hereby accuses former President of the
Republic of the Philippines, Joseph Ejercito Estrada a.k.a Asiong
Salonga and a.k.a Jose Velarde, together with Jose Jinggoy Estrada,
Charlie Atong Ang, Edward Serapio, Yolanda T. Ricaforte, Alma
Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or Mr.
Uy, Jane Doe a.k.a. Delia Rajas, and John Does & Jane Does, of the
crime of plunder, defined and penalized under R.A. No. 7080, as
amended by Sec. 12 of R.A. No. 7659, committed as follows:
That during the period from June, 1998 to January, 2001, in the
Philippines, and within the jurisdiction of this Honorable Court,
accused Joseph Ejercito Estrada, then a public officer, being then the
President of the Republic of the Philippines, by himself and/or in
connivance/conspiracy with his co-accused, who are members of his
family, relatives by affinity or consanguinity, business associates,
subordinates and/or other persons, by taking undue advantage of his
official position, authority, relationship, connection, or influence, did
then and there wilfully, unlawfully and criminally amass, accumulate
and acquire by himself, directly or indirectly, ill-gotten wealth in the
aggregate amount or total value of four billion ninety seven million
eight hundred four thousand one hundred seventy three pesos and
seventeen centavos [P4,097,804,173.17], more or less, thereby
unjustly enriching himself or themselves at the expense and to the
damage of the Filipino people and the Republic of the Philippines,
through any or a combination or a series of overt or criminal acts, or
similar schemes or means, described as follows:
(a) by receiving or collecting, directly or indirectly, on several
instances, money in the aggregate amount of five hundred forty-five
million pesos (P545,000,000.00), more or less, from illegal gambling
in the form of gift, share, percentage, kickback or any form of
pecuniary benefit, by himself and/or in connivance with co-accused
Charlie Atong Ang, Jose Jinggoy Estrada, Yolanda T. Ricaforte,
Edward Serapio, and John Does and Jane Does, in consideration of
toleration or protection of illegal gambling;
(b) by diverting, receiving, misappropriating, converting or misusing
directly or indirectly, for his or their personal gain and benefit, public
funds in the amount of ONE HUNDRED THIRTY MILLION PESOS
[P130,000,000.00], more or less, representing a portion of the two
hundred million pesos [P200,000,000.00] tobacco excise tax share
allocated for the Province of Ilocos Sur under R.A. No. 7171, by
himself and/or in connivance with co-accused Charlie Atong Ang,
Alma Alfaro, John Doe a.k.a. Eleuterio Tan or Eleuterio Ramos Tan or
Mr. Uy, and Jane Doe a.k.a. Delia Rajas, and other John Does and
Jane Does;
(c) by directing, ordering and compelling, for his personal gain and
benefit, the Government Service Insurance System (GSIS) to purchase
351,878,000 shares of stocks, more or less, and the Social Security
System (SSS), 329,855,000 shares of stocks, more or less, of the Belle
Corporation in the amount of more or less one billion one hundred two
million nine hundred sixty five thousand six hundred seven pesos and
fifty centavos [P1,102,965,607.50] and more or less seven hundred
forty four million six hundred twelve thousand and four hundred fifty
pesos [P744,612,450.00], respectively, or a total of more or less one
billion eight hundred forty seven million five hundred seventy eight
thousand fifty seven pesos and fifty centavos [P1,847,578,057.50]; and
by collecting or receiving, directly or indirectly, by himself and/or in
connivance with John Does and Jane Does, commissions or
percentages by reason of said purchases of shares of stock in the
amount of one hundred eighty nine million seven hundred thousand
pesos [P189,700,000.00], more or less, from the Belle Corporation
which became part of the deposit in the Equitable-PCI Bank under the
account name Jose Velarde;
(d) by unjustly enriching himself from commissions, gifts, shares,
percentages, kickbacks, or any form of pecuniary benefits, in
connivance with John Does and Jane Does, in the amount of more or
less three billion two hundred thirty three million one hundred four
thousand one hundred seventy three pesos and seventeen centavos
[P3,233,104,173.17] and depositing the same under his account name
Jose Velarde at the Equitable-PCI Bank.
CONTRARY TO LAW.
Manila for Quezon City, Philippines, 18 April 2001
But, although this is a prosecution under 2, in relation to 1(d)(1)(2),
what we are seeing here is a wholesale attack on the validity of the entire
statute. Petitioner makes little effort to show the alleged invalidity of the
statute as applied to him. His focus is instead on the statute as a whole
as he attacks on their face not only 1(d)(1)(2) of the statute but also its
other provisions which deal with plunder committed by illegal or
fraudulent disposition of government assets (1(d)(3)), acquisition of
interest in business (1(d)(4)), and establishment of monopolies and
combinations or implementation of decrees intended to benefit
particular persons or special interests (1(d)(5)).
These other provisions of the statute are irrelevant to this
case. What relevance do questions regarding the establishment of
monopolies and combinations, or the ownership of stocks in a business
enterprise, or the illegal or fraudulent dispositions of government
property have to the criminal prosecution of petitioner when they are
not even mentioned in the amended information filed against him? Why
should it be important to inquire whether the phrase overt act in 1(d) and
2 means the same thing as the phrase criminal act as used in the same
provisions when the acts imputed to petitioner in the amended
information are criminal acts? Had the provisions of the Revised Penal
Code been subjected to this kind of line-by-line scrutiny whenever a
portion thereof was involved in a case, it is doubtful if we would have
the jurisprudence on penal law that we have today. The prosecution of
crimes would certainly have been hampered, if not stultified. We should
not even attempt to assume the power we are asked to exercise. The
delicate power of pronouncing an Act of Congress unconstitutional is
not to be exercised with reference to hypothetical cases . . . . In
determining the sufficiency of the notice a statute must of necessity be
examined in the light of the conduct with which a defendant is
charged.[3]
Nonetheless, it is contended that because these provisions are void
for being vague and overbroad, the entire statute, including the part
under which petitioner is being prosecuted, is also void. And if the entire
statute is void, there is no law under which he can be prosecuted for
plunder. Nullum crimen sine lege, nullum poena sine lege.
Two justifications are advanced for this facial challenge to the
validity of the entire statute. The first is that the statute comes within the
specific prohibitions of the Constitution and, for this reason, it must be
given strict scrutiny and the normal presumption of constitutionality
should not be applied to it nor the usual judicial deference given to the
judgment of Congress.[4] The second justification given for the facial
attack on the Anti-Plunder Law is that it is vague and overbroad.[5]
We find no basis for such claims either in the rulings of this Court
or of those of the U.S. Supreme Court, from which petitioners counsel
purports to draw for his conclusions. We consider first the claim that the
statute must be subjected to strict scrutiny.
A. Test of Strict Scrutiny Not Applicable to Penal Statutes
Petitioner cites the dictum in Ople v. Torres[6] that when the
integrity of a fundamental right is at stake, this Court will give the
challenged law, administrative order, rule or regulation stricter scrutiny
and that It will not do for authorities to invoke the presumption of
regularity in the performance of official duties. As will presently be
shown, strict scrutiny, as used in that decision, is not the same thing as
the strict scrutiny urged by petitioner. Much less did this Court rule that
because of the need to give stricter scrutiny to laws abridging
fundamental freedoms, it will not give such laws the presumption of
validity.
Petitioner likewise cites the most celebrated footnote in [American]
constitutional law, i.e., footnote 4 of the opinion in United States v.
Carolene Products Co.,[7] in which it was stated:
There may be narrower scope for operation of the presumption of
constitutionality when legislation appears on its face to be within a
specific prohibition of the Constitution, such as those of the first ten
amendments, which are deemed equally specific when held to be
embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which restricts
those political processes which can ordinarily be expected to bring
about repeal of undesirable legislation, is to be subjected to more
exacting judicial scrutiny under the general prohibitions of the
Fourteenth Amendment than are most other types of legislation.
Nor need we inquire whether similar considerations enter into the
review of statutes directed at particular religious, or national, or racial
minorities: whether prejudice against discrete and insular minorities
may be a special condition, which tends seriously to curtail the
operation of those political processes ordinarily to be relied upon to
protect minorities, and which may call for a correspondingly more
searching judicial inquiry.
 Again, it should be noted that what the U.S. Supreme Court said is
that there may be narrower scope for the operation of the presumption
of constitutionality for legislation which comes within the first ten
amendments to the American Federal Constitution compared to
legislation covered by the Fourteenth Amendment Due Process
Clause. The American Court did not say that such legislation is not to
be presumed constitutional, much less that it is presumptively invalid,
but only that a narrower scope will be given for the presumption of
constitutionality in respect of such statutes. There is, therefore, no
warrant for petitioners contention that the presumption of
constitutionality of a legislative act is applicable only where the
Supreme Court deals with facts regarding ordinary economic affairs, not
where the interpretation of the text of the Constitution is involved.[8]
What footnote 4 of the Carolene Products case posits is a double
standard of judicial review: strict scrutiny for laws dealing with freedom
of the mind or restricting the political process, and deferential or rational
basis standard of review for economic legislation. As Justice (later Chief
Justice) Fernando explained in Malate Hotel and Motel Operators Assn
v. The City Mayor,[9] this simply means that if the liberty involved were
freedom of the mind or the person, the standard for the validity of
governmental acts is much more rigorous and exacting, but where the
liberty curtailed affects what are at the most rights of property, the
permissible scope of regulatory measures is wider.
Hence, strict scrutiny is used today to test the validity of laws
dealing with the regulation of speech, gender, or race and facial
challenges are allowed for this purpose. But criminal statutes, like the
Anti-Plunder Law, while subject to strict construction, are not subject
to strict scrutiny. The two (i.e., strict construction and strict scrutiny) are
not the same. The rule of strict construction is a rule of legal
hermeneutics which deals with the parsing of statutes to determine the
intent of the legislature. On the other hand, strict scrutiny is a standard
of judicial review for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms. It is set opposite such terms as deferential review and
intermediate review.
Thus, under deferential review, laws are upheld if they rationally
further a legitimate governmental interest, without courts seriously
inquiring into the substantiality of such interest and examining the
alternative means by which the objectives could be achieved. Under
intermediate review, the substantiality of the governmental interest is
seriously looked into and the availability of less restrictive alternatives
are considered. Under strict scrutiny, the focus is on the presence of
compelling, rather than substantial, governmental interest and on the
absence of less restrictive means for achieving that interest.[10]
Considering these degrees of strictness in the review of statutes,
how many criminal laws can survive the test of strict scrutiny to which
petitioner proposes to subject them? How many can pass muster if, as
petitioner would have it, such statutes are not to be presumed
constitutional? Above all, what will happen to the States ability to deal
with the problem of crimes, and, in particular, with the problem of graft
and corruption in government, if criminal laws are to be upheld only if
it is shown that there is a compelling governmental interest for making
certain conduct criminal and if there is no other means less restrictive
than that contained in the law for achieving such governmental interest?
B. Vagueness and Overbreadth Doctrines, as Grounds for Facial
Challenge,
Not Applicable to Penal Laws
Nor do allegations that the Anti-Plunder Law is vague and
overbroad justify a facial review of its validity. The void-for-vagueness
doctrine states that a statute which either forbids or requires the doing
of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application, violates
the first essential of due process of law.[11] The overbreadth doctrine, on
the other hand, decrees that a governmental purpose may not be
achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms.[12]
A facial challenge is allowed to be made to a vague statute and to
one which is overbroad because of possible chilling effect upon
protected speech. The theory is that [w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests itself as a vehicle
for rehabilitating the statutes in a single prosecution, the transcendent
value to all society of constitutionally protected expression is deemed
to justify allowing attacks on overly broad statutes with no requirement
that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity.[13] The
possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of
others may be deterred and perceived grievances left to fester because
of possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence, and,
if facial challenge is allowed for this reason alone, the State may well
be prevented from enacting laws against socially harmful conduct. In
the area of criminal law, the law cannot take chances as in the area of
free speech.
The overbreadth and vagueness doctrines then have special
application only to free speech cases. They are inapt for testing the
validity of penal statutes. As the U.S. Supreme Court put it, in an
opinion by Chief Justice Rehnquist, we have not recognized an
overbreadth doctrine outside the limited context of the First
Amendment.[14] In Broadrick v. Oklahoma,[15] the Court ruled that
claims of facial overbreadth have been entertained in cases involving
statutes which, by their terms, seek to regulate only spoken words and,
again, that overbreadth claims, if entertained at all, have been curtailed
when invoked against ordinary criminal laws that are sought to be
applied to protected conduct. For this reason, it has been held that a
facial challenge to a legislative Act is the most difficult challenge to
mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid.[16] As for the
vagueness doctrine, it is said that a litigant may challenge a statute on
its face only if it is vague in all its possible applications. A plaintiff who
engages in some conduct that is clearly proscribed cannot complain of
the vagueness of the law as applied to the conduct of others.[17]
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness
are analytical tools developed for testing on their faces statutes in free
speech cases or, as they are called in American law, First Amendment
cases. They cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the established rule is that
one to whom application of a statute is constitutional will not be heard
to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application
might be unconstitutional.[18] As has been pointed out, vagueness
challenges in the First Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found vague as a
matter of due process typically are invalidated [only] as applied to a
particular defendant.[19] Consequently, there is no basis for petitioners
claim that this Court review the Anti-Plunder Law on its face and in its
entirety.
C. Anti-Plunder Law Should be Construed As Applied
Indeed, on its face invalidation of statutes results in striking them
down entirely on the ground that they might be applied to parties not
before the Court whose activities are constitutionally protected.[20] It
constitutes a departure from the case and controversy requirement of the
Constitution and permits decisions to be made without concrete factual
settings and in sterile abstract contexts.[21]But, as the U.S. Supreme
Court pointed out in Younger v. Harris:[22]
[T]he task of analyzing a proposed statute, pinpointing its deficiencies,
and requiring correction of these deficiencies before the statute is put
into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact
on the legislative process of the relief sought, and above all the
speculative and amorphous nature of the required line-by-line analysis
of detailed statutes,...ordinarily results in a kind of case that is wholly
unsatisfactory for deciding constitutional questions, whichever way
they might be decided.
This is the reason on its face invalidation of statutes has been described
as manifestly strong medicine, to be employed sparingly and only as a
last resort,[23] and is generally disfavored.[24] In determining the
constitutionality of a statute, therefore, its provisions which are alleged
to have been violated in a case must be examined in the light of the
conduct with which the defendant is charged.[25]
This brings me to the question whether, as applied, 2, in relation to
1(d)(1)(2), of the Anti-Plunder Law is void on the ground of vagueness
and overbreadth.
III. ANTI-PLUNDER LAW NEITHER VAGUE NOR OVERBROAD
As earlier noted, the case against petitioner Joseph Ejercito Estrada
in the Sandiganbayan is for violation of 2, in relation to 1(d)(1)(2), of
the Anti-Plunder Law, which, so far as pertinent, provide:
SEC. 2. Definition of the Crime of Plunder; Penalties. Any public
officer who, by himself or in connivance with members of his family,
relatives by affinity or consanguinity, business associates, subordinates
or other persons, amasses, accumulates or acquires ill-gotten wealth
through a combination or series of overt or criminal acts as described
in Section 1(d) hereof in the aggregate amount or total value of at least
Fifty million pesos (P50,000,000.00) shall be guilty of the crime of
plunder and shall be punished by reclusion perpetua to death....
SEC. 1. Definition of Terms. ...
(d) Ill-gotten wealth, means any asset, property, business enterprise or
material possession of any person within the purview of Section Two
(2) hereof, acquired by him directly or indirectly through dummies,
nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:
1) Through misappropriation, conversion, misuse, or malversation of
public funds or raids on the public treasury.
2) By receiving, directly or indirectly, any commission, gift, share,
percentage, kickbacks or any other form of pecuniary benefit from any
person and/or entity in connection with any government contract or
project or by reason of the office or position of the public officer
concerned;
The charge is that in violation of these provisions, during the period
June 1998 to January 2001, petitioner, then the President of the
Philippines, willfully, unlawfully, and criminally amassed wealth in the
total amount of P4,097,804,173.17, more or less, through a combination
or series of overt or criminal acts, to wit: (1) by receiving or collecting
the total amount of P545,000,000.00, more or less, from illegal
gambling by himself and/or in connivance with his co-accused named
therein, in exchange for protection of illegal gambling; (2) by
misappropriating, converting, or misusing, by himself or in connivance
with his co-accused named therein, public funds amounting to
P130,000,000.00, more or less, representing a portion of the share of the
Province of Ilocos Sur in the tobacco excise tax; (3) by ordering the
GSIS and the SSS to buy shares of stocks of the Belle Corp., worth
P1,102,965,607.50 and P744,612,450.00 respectively, or the total
amount of P1,847,578,057.50, for which he received as commission the
amount of P189,700,000.00, more or less, from Belle Corp.; (4) by
unjustly enriching himself from commissions, gifts, shares, percentages,
and kickbacks in the amount of P3,233,104,173.17, which he deposited
in the Equitable-PCI Bank under the name of Jose Velarde.
Anyone reading the law in relation to this charge cannot possibly
be mistaken as to what petitioner is accused of in Criminal Case No.
26558 of the Sandiganbayan. But, repeatedly, petitioner complains that
the law is vague and deprives him of due process. He invokes the ruling
in Connally v. General Constr. Co.[26] that a statute which either forbids
or requires the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law. He does
this by questioning not only 2, in relation to 1(d)(1)(2), as applied to
him, but also other provisions of the Anti-Plunder Law not involved in
this case. In 55 out of 84 pages of discussion in his Memorandum,
petitioner tries to show why on their face these provisions are vague and
overbroad by asking questions regarding the meaning of some words
and phrases in the statute, to wit:
1. Whether series means two, three, or four overt or criminal acts
listed in 1(d) in view of the alleged divergence of interpretation given
to this word by the Ombudsman, the Solicitor General, and the
Sandiganbayan, and whether the acts in a series should be directly
related to each other;
2. Whether combination includes two or more acts or at least two
of the means or similar schemes mentioned in 1(d);
3. Whether pattern as used in 1(d) must be related to the word
pattern in 4 which requires that it be indicative of an overall unlawful
scheme or conspiracy;
 4. Whether overt means the same thing as criminal;
5. Whether misuse of public funds is the same as illegal use of
public property or technical malversation;
6. Whether raids on the public treasury refers to raids on the
National Treasury or the treasury of a province or municipality;
7. Whether the receipt or acceptance of a gift, commission,
kickback, or pecuniary benefits in connection with a government
contract or by reason of his office, as used in 1(d)(2), is the same as
bribery in the Revised Penal Code or those which are considered corrupt
practices of public officers;
8. Whether illegal or fraudulent conveyance or disposition of assets
belonging to the National Government, as used in 1(d)(3), refers to
technical malversation or illegal use of public funds or property in the
Revised Penal Code;
9. Whether mere ownership of stocks in a private corporation, such
as a family firm engaged in fishing, is prohibited under 1(d)(4);
10. Whether the phrase monopolies or other combinations in
restraint of trade in 1(d)(5) means the same thing as monopolies and
combinations in restraint of trade in the Revised Penal Code because the
latter contemplates monopolies and combinations established by any
person, not necessarily a public officer; and
11. Whether under 1(d)(5) it is the public officer who intends to
confer benefit on a particular person by implementing a decree or it is
the decree that is intended to benefit the particular person and the public
officer simply implements it.
Many more questions of this tenor are asked in the memorandum
of petitioner[27] as well as in the dissent of MR. JUSTICE
KAPUNAN. Not only are they irrelevant to this case, as already pointed
out. It is also evident from their examination that what they present are
simply questions of statutory construction to be resolved on a case-to-
case basis. Consider, for example, the following words and phrases in
1(d) and 2:
A. Combination or series of overt or criminal acts
Petitioner contends that the phrase combination or series of overt,
or criminal acts in 1(d) and 2 should state how many acts are needed in
order to have a combination or a series. It is not really required that this
be specified. Petitioner, as well as MR. JUSTICE KAPUNAN, cites the
following remarks of Senators Gonzales and Taada during the
discussion of S. No. 733 in the Senate:
SENATOR GONZALES. To commit the offense of plunder, as
defined in this Act while constituting a single offense, it must consist
of a series of overt or criminal acts, such as bribery, extortion,
malversation of public funds, swindling, falsification of public
documents, coercion, theft, fraud, and illegal exaction, and graft or
corrupt practices act and like offenses. Now, Mr. President, I think,
this provision, by itself, will be vague. I am afraid that it might be
faulted for being violative of the due process clause and the right to be
informed of the nature and cause of accusation of an accused. Because,
what is meant by series of overt or criminal acts? I mean, would 2, 3, 4
or 5 constitute a series? During the period of amendments, can we
establish a minimum of overt acts like, for example, robbery in
band? The law defines what is robbery in band by the number of
participants therein.
In this particular case, probably, we can statutorily provide for the
definition of series so that two, for example, would that be already a
series? Or, three, what would be the basis for such a determination?
SENATOR TAADA. I think, Mr. President, that would be called for,
this being a penal legislation, we should be very clear as to what it
encompasses; otherwise, we may contravene the constitutional
provision on the right of the accused to due process.[28]
But, as the later discussion in the Senate shows, the senators in the
end reached a consensus as to the meaning of the phrase so that an
enumeration of the number of acts needed was no longer
proposed. Thus, the record shows:
SENATOR MACEDA. In line with our interpellations that
sometimes one or maybe even two acts may already result in
such a big amount, on line 25, would the Sponsor consider
 deleting the words a series of overt or. To read, therefore: or
conspiracy COMMITTED by criminal acts such. Remove the
idea of necessitating a series. Anyway, the criminal acts are in
the plural.
SENATOR TAADA. That would mean a combination of two or
more of the acts mentioned in this.
THE PRESIDENT. Probably, two or more would be . . .
SENATOR MACEDA. Yes, because a series implies several or
many; two or more.
SENATOR TAADA: Accepted, Mr. President.
....
THE PRESIDENT: If there is only one, then he has to be
prosecuted under the particular crime. But when we say acts of
plunder there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by
existing laws, Mr. President.[29]
Indeed, the record shows that no amendment to S. No. 733 was
proposed to this effect. To the contrary, Senators Gonzales and Taada
voted in favor of the bill on its third and final reading on July 25,
1989. The ordinary meaning of the term combination as the union of
two things or acts was adopted, although in the case of series, the
senators agreed that a repetition of two or more times of the same thing
or act would suffice, thus departing from the ordinary meaning of the
word as a group of usually three or more things or events standing or
succeeding in order and having a like relationship to each other, or a
spatial or temporal succession of persons or things, or a group that has
or admits an order of arrangement exhibiting progression.[30]
In the Bicameral Conference Committee on Justice meeting held on
May 7, 1991, the same meanings were given to the words combination
and series. Representative Garcia explained that a combination is
composed of two or more of the overt or criminal acts enumerated in
1(d), while a series is a repetition of any of the same overt or criminal
acts. Thus:
REP. ISIDRO: I am just intrigued again by our definition of
plunder. We say, THROUGH A COMBINATION OR SERIES
OF OVERT OR CRIMINAL ACTS AS MENTIONED IN
SECTION ONE HEREOF. Now when we say combination, we
actually mean to say, if there are two or more means, we mean
to say that number one and two or number one and something
else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will
these be included also?
....
REP. ISIDRO: When we say combination, it seems that
THE CHAIRMAN (REP. GARCIA): Two.
REP. ISIDRO: Not only two but we seem to mean that two of the
enumerated means not twice of one enumeration.
THE CHAIRMAN (REP. GARCIA): No, no, not twice.
REP. ISIDRO: Not twice?
THE CHAIRMAN (REP. GARCIA): Yes, combination is not
twice but combination, two acts.
REP. ISIDRO: So in other words, thats it. When we say
combination, we mean, two different acts. It can not be a
repetition of the same act.
THE CHAIRMAN (REP. GARCIA): That be referred to
series. Yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are
two.
THE CHAIRMAN (REP. GARCIA): A series.
REP. ISIDRO: Thats not [a] series. Its a combination. Because
when we say combination or series, we seem to say that two or
more, di ba?
THE CHAIRMAN (REP. GARCIA): Yes, this distinguishes it,
really, from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under
 ordinary crime but we have here a combination or series of
overt or criminal acts. So. . .
....
REP. ISIDRO: When you say combination, two different?
THE CHAIRMAN (REP. GARCIA): Yes.
THE CHAIRMAN (SEN. TAADA): Two different. . . .
REP. ISIDRO: Two different acts.
THE CHAIRMAN (REP. GARCIA): For example, ha. . .
REP. ISIDRO: Now a series, meaning, repetition. . .[31]
Thus, resort to the deliberations in Congress will readily reveal that
the word combination includes at least two different overt or criminal
acts listed in R.A. No. 7080, such as misappropriation (1(d)(1)) and
taking undue advantage of official position (1(d)(6)). On the other hand,
series is used when the offender commits the same overt or criminal act
more than once. There is no plunder if only one act is proven, even if
the ill-gotten wealth acquired thereby amounts to or exceeds the figure
fixed by the law for the offense (now P50,000,000.00). The overt or
criminal acts need not be joined or separated in space or time, since the
law does not make such a qualification. It is enough that the prosecution
proves that a public officer, by himself or in connivance with others,
amasses wealth amounting to at least P50 million by committing two or
more overt or criminal acts.
Petitioner also contends that the phrase series of acts or transactions
is the subject of conflicting decisions of various Circuit Courts of
Appeals in the United Sates. It turns out that the decisions concerned a
phrase in Rule 8(b) of the Federal Rules of Criminal Procedure which
provides:
(b) Joinder of Defendants: Two or more defendants may be charged in
the same indictment or information if they are alleged to have
participated in the same act or transaction or in the same series of acts
or transactions constituting an offense or offenses. Such defendants
may be charged in one or more counts together or separately and all of
the defendants need not be charged on each count.(Emphasis added)
The fact that there is a conflict in the rulings of the various courts
does not mean that Rule 8(b) is void for being vague but only that the
U.S. Supreme Court should step in, for one of its essential functions is
to assure the uniform interpretation of federal laws.
We have a similar provision in Rule 3, 6 of the 1997 Code of Civil
Procedure. It reads:
SEC. 6. Permissive joinder of parties. All persons in whom or against
whom any right to relief in respect to or arising out of the same
transaction or series of transactions is alleged to exist, whether jointly,
severally, or in the alternative, may, except as otherwise provided in
these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such
plaintiffs or to all such defendants may arise in the action; but the
court may make such orders as may be just to prevent any plaintiff or
defendant from being embarrassed or put to expense in connection
with any proceedings in which he may have no interest. (Emphasis
added)
This provision has been in our Rules of Court since 1940 but it has
never been thought of as vague. It will not do, therefore, to cite the
conflict of opinions in the United States as evidence of the vagueness of
the phrase when we do not have any conflict in this country.
B. Pattern of overt or criminal acts
Petitioner contends that it is not enough that there be at least two
acts to constitute either a combination or series because 4 also mentions
a pattern of overt or criminal acts indicative of the overall scheme or
conspiracy, and pattern means an arrangement or order of things or
activity.
A pattern of overt or criminal acts is required in 4 to prove an
unlawful scheme or conspiracy. In such a case, it is not necessary to
prove each and every criminal act done in furtherance of the scheme or
conspiracy so long as those proven show a pattern indicating the scheme
or conspiracy. In other words, when conspiracy is charged, there must
be more than a combination or series of two or more acts. There must
be several acts showing a pattern which is indicative of the overall
scheme or conspiracy. As Senate President Salonga explained, if there
are 150 constitutive crimes charged, it is not necessary to prove beyond
reasonable doubt all of them. If a pattern can be shown by proving, for
example, 10 criminal acts, then that would be sufficient to secure
conviction.[32]
The State is thereby enabled by this device to deal with several acts
constituting separate crimes as just one crime of plunder by allowing
their prosecution by means of a single information because there is a
common purpose for committing them, namely, that of amassing,
accumulating or acquiring wealth through such overt or criminal acts.
The pattern is the organizing principle that defines what otherwise
would be discreet criminal acts into the single crime of plunder.
As thus applied to petitioner, the Anti-Plunder Law presents only
problems of statutory construction, not vagueness or
[33]
overbreadth. In Primicias v. Fugoso, an ordinance of the City of
Manila, prohibiting the holding of parades and assemblies in streets and
public places unless a permit was first secured from the city mayor and
penalizing its violation, was construed to mean that it gave the city
mayor only the power to specify the streets and public places which can
be used for the purpose but not the power to ban absolutely the use of
such places. A constitutional doubt was thus resolved through a limiting
construction given to the ordinance.
Nor is the alleged difference of opinion among the Ombudsman,
the Solicitor General, and the Sandiganbayan as to the number of acts
or crimes needed to constitute plunder proof of the vagueness of the
statute and, therefore, a ground for its invalidation. For sometime it was
thought that under Art. 134 of the Revised Penal Code convictions can
be had for the complex crime of rebellion with murder, arson, and other
common crimes. The question was finally resolved in 1956 when this
Court held that there is no such complex crime because the common
crimes were absorbed in rebellion.[34] The point is that Art. 134 gave
rise to a difference of opinion that nearly split the legal profession at the
time, but no one thought Art. 134 to be vague and, therefore, void.
Where, therefore, the ambiguity is not latent and the legislative
intention is discoverable with the aid of the canons of construction, the
void for vagueness doctrine has no application.
In Connally v. General Constr. Co.[35] the test of vagueness was
formulated as follows:
[A] statute which either forbids or requires the doing of an act in terms
so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application, violates the first essential
of due process of law.
Holmess test was that of the viewpoint of the bad man. In The Path
of the Law, Holmes said:
If you want to know the law and nothing else, you must look at it as a
bad man, who cares only for the material consequences which such
knowledge enables him to predict, not as a good one, who finds his
reasons for conduct, whether inside the law or outside of it, in the
vaguer sanctions of conscience.[36]
Whether from the point of view of a man of common intelligence
or from that of a bad man, there can be no mistaking the meaning of the
Anti-Plunder Law as applied to petitioner.
IV. PLUNDER A COMPLEX CRIME REQUIRING PROOF OF
MENS REA
Petitioner argues that, in enacting the statute in question, Congress
eliminated the element of mens rea, or the scienter, thus reducing the
burden of evidence required for proving the crimes which are mala in
se.[37]
There are two points raised in this contention. First is the question
whether the crime of plunder is a malum in se or a malum
prohibitum. For if it is a malum prohibitum, as the Ombudsman and the
Solicitor General say it is,[38] then there is really a constitutional problem
because the predicate crimes are mainly mala in se.
A. Plunder A Malum In Se Requiring Proof of Mens Rea
Plunder is a malum in se, requiring proof of criminal
intent. Precisely because the constitutive crimes are mala in se the
element of mens rea must be proven in a prosecution for plunder. It is
noteworthy that the amended information alleges that the crime of
plunder was committed willfully, unlawfully and criminally. It thus
alleges guilty knowledge on the part of petitioner.
In support of his contention that the statute eliminates the
requirement of mens rea and that is the reason he claims the statute is
void, petitioner cites the following remarks of Senator Taada made
during the deliberation on S. No. 733:
SENATOR TAADA. . . . And the evidence that will be required to
convict him would not be evidence for each and every individual
criminal act but only evidence sufficient to establish the conspiracy or
scheme to commit this crime of plunder.[39]
However, Senator Taada was discussing 4 as shown by the
succeeding portion of the transcript quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it
is contained in Section 4, Rule of Evidence, which, in the Gentlemans
view, would provide for a speedier and faster process of attending to
this kind of cases?
SENATOR TAADA. Yes, Mr. President . . .[40]
Seator Taada was only saying that where the charge is conspiracy to
commit plunder, the prosecution need not prove each and every criminal
act done to further the scheme or conspiracy, it being enough if it proves
beyond reasonable doubt a pattern of overt or criminal acts indicative of
the overall unlawful scheme or conspiracy. As far as the acts
constituting the pattern are concerned, however, the elements of the
crime must be proved and the requisite mens rea must be shown.
Indeed, 2 provides that
Any person who participated with the said public officer in the
commission of an offense contributing to the crime of plunder shall
likewise be punished for such offense. In the imposition of penalties,
the degree of participation and the attendance of mitigating and
extenuating circumstances, as provided by the Revised Penal Code,
shall be considered by the court.
The application of mitigating and extenuating circumstances in the
Revised Penal Code to prosecutions under the Anti-Plunder Law
indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal
intent. It is true that 2 refers to any person who participates with the said
public officers in the commission of an offense contributing to the crime
of plunder. There is no reason to believe, however, that it does not apply
as well to the public officer as principal in the crime. As Justice Holmes
said: We agree to all the generalities about not supplying criminal laws
with what they omit, but there is no canon against using common sense
in construing laws as saying what they obviously mean.[41]
Finally, any doubt as to whether the crime of plunder is a malum in
se must be deemed to have been resolved in the affirmative by the
decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are
punished with death as a straight penalty in R.A. No. 7659. Referring to
these groups of heinous crimes, this Court held in People v.
Echagaray:[42]
The evil of a crime may take various forms. There are crimes that are,
by their very nature, despicable, either because life was callously taken
or the victim is treated like an animal and utterly dehumanized as to
completely disrupt the normal course of his or her growth as a human
being. . . . Seen in this light, the capital crimes of kidnapping and
serious illegal detention for ransom resulting in the death of the victim
or the victim is raped, tortured, or subjected to dehumanizing acts;
destructive arson resulting in death; and drug offenses involving
minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and
serious illegal detention, where the victim is detained for more than
three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with
homicide, rape or intentional mutilation, destructive arson, and
carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to Congress simply combined several existing crimes into a single one but
death, are clearly heinous by their very nature. the penalty which it provided for the commission of the crime is grossly
disproportionate to the crimes combined while the quantum of proof
There are crimes, however, in which the abomination lies in the required to prove each predicate crime is greatly reduced.
significance and implications of the subject criminal acts in the scheme
We have already explained why, contrary to petitioners contention,
of the larger socio-political and economic context in which the state
the quantum of proof required to prove the predicate crimes in plunder
finds itself to be struggling to develop and provide for its poor and
is the same as that required were they separately prosecuted. We,
underprivileged masses. Reeling from decades of corrupt tyrannical
therefore, limit this discussion to petitioners claim that the penalty
rule that bankrupted the government and impoverished the population,
provided in the Anti-Plunder Law is grossly disproportionate to the
the Philippine Government must muster the political will to dismantle
penalties imposed for the predicate crimes. Petitioner cites the following
the culture of corruption, dishonesty, greed and syndicated criminality
examples:
that so deeply entrenched itself in the structures of society and the
psyche of the populace. [With the government] terribly lacking the
For example, please consider the following combination or series of
money to provide even the most basic services to its people, any form
overt or criminal acts (assuming the P50 M minimum has been
of misappropriation or misapplication of government funds translates
acquired) in light of the penalties laid down in the Penal Code:
to an actual threat to the very existence of government, and in turn, the
very survival of the people it governs over. Viewed in this context, no
a. One act of indirect bribery (penalized under Art. 211 of the
less heinous are the effects and repercussions of crimes like qualified
Revised Penal Code with prision correccional in its
bribery, destructive arson resulting in death, and drug offenses
medium and maximum periods),
involving government officials, employees or officers, that their
perpetrators must not be allowed to cause further destruction and
combined with
damage to society.
one act of fraud against the public treasury (penalized under
The legislative declaration in R.A. No. 7659 that plunder is a
Art. 213 of the Revised Penal Code with prision
heinous offense implies that it is a malum in se. For when the acts
correccional in its medium period to prision mayor in its
punished are inherently immoral or inherently wrong, they are mala in
minimum period,
se[43] and it does not matter that such acts are punished in a special law,
especially since in the case of plunder the predicate crimes are
- equals -
mainly mala in se. Indeed, it would be absurd to treat prosecutions for
plunder as though they are mere prosecutions for violations of the
plunder (punished by reclusion perpetua to death plus
Bouncing Check Law (B.P. Blg. 22) or of an ordinance against
forfeiture of assets under R.A. 7080)
jaywalking, without regard to the inherent wrongness of the acts.
b. One act of prohibited transaction (penalized under Art. 215
B. The Penalty for Plunder of the revised Penal Code with prision correccional in its
minimum period or a fine ranging from P200 to P1,000 or
The second question is whether under the statute the prosecution is both),
relieved of the duty of proving beyond reasonable doubt the guilt of the
defendant. It is contended that, in enacting the Anti-Plunder Law, combined with
 one act of establishing a commercial monopoly (penalized
under Art. 186 of Revised Penal Code with prision
correccional in its minimum period or a fine ranging from
P200 to P6,000, or both),
-equals-
plunder (punished by reclusion perpetua to death, and
forfeiture of assets under R.A. 7080.
c. One act of possession of prohibited interest by a public
officer (penalized with prision correccional in
its minimum period or a fine of P200 to P1,000, or both
under Art. 216 of the Revised Penal Code),
combined with
one act of combination or conspiracy in restraint of trade
(penalized under Art. 186 of the Revised penal Code
with prision correccional in its minimum period, or a fine
of P200 to P1,000, or both,
- equals -
plunder, punished by reclusion perpetua to death, and
forfeiture of assets)[44]
But this is also the case whenever other special complex crimes are
created out of two or more existing crimes. For example, robbery with
violence against or intimidation of persons under Art. 294, par. 5 of the
Revised Penal Code is punished with prision correccional in its
maximum period (4 years, 2 months, and 1 day) to prision mayor in its
medium period (6 years and 1 day to 8 years).Homicide under Art. 249
of the same Code is punished with reclusion temporal (12 years and 1
day to 20 years). But when the two crimes are committed on the same
occasion, the law treats them as a special complex crime of robbery with
homicide and provides the penalty of reclusion perpetua to death for its
commission. Again, the penalty for simple rape under Art. 266-B of the
Revised Penal Code is reclusion perpetua, while that for homicide
under Art. 249 it is reclusion temporal (12 years and 1 day to 20
years). Yet, when committed on the same occasion, the two are treated
as one special complex crime of rape with homicide and punished with
a heavier penalty of reclusion perpetua to death. Obviously, the
legislature views plunder as a crime as serious as robbery with homicide
or rape with homicide by punishing it with the same penalty. As the
explanatory note accompanying S. No. 733 explains:
Plunder, a term chosen from other equally apt terminologies
like kleptocracy and economic treason, punishes the use of high office
for personal enrichment, committed thru a series of acts done not in
the public eye but in stealth and secrecy over a period of time, that
may involve so many persons, here and abroad, and which touch so
many states and territorial units. The acts and/or omissions sought to
be penalized do not involve simple cases of malversation of public
funds, bribery, extortion, theft and graft but constitute the plunder of
an entire nation resulting in material damage to the national
economy. The above-described crime does not yet exist in Philippine
statute books. Thus, the need to come up with a legislation as a
safeguard against the possible recurrence of the depravities of the
previous regime and as a deterrent to those with similar inclination to
succumb to the corrupting influences of power.
Many other examples drawn from the Revised Penal Code and from
special laws may be cited to show that, when special complex crimes
are created out of existing crimes, the penalty for the new crime is
heavier.
______________________
To recapitulate, had R.A. No. 7080 been a law regulating speech, I
would have no hesitation examining it on its face on the chance that
some of its provisions even though not here before us are void. For then
the risk that some state interest might be jeopardized, i.e., the interest in
the free flow of information or the prevention of chill on the freedom of
expression, would trump any marginal interest in security.
But the Anti-Plunder Law is not a regulation of speech. It is a
criminal statute designed to combat graft and corruption, especially
those committed by highly-placed public officials. As conduct and not
speech is its object, the Court cannot take chances by examining other
provisions not before it without risking vital interests of
society. Accordingly, such statute must be examined only as applied to
the defendant and, if found valid as to him, the statute as a whole should
not be declared unconstitutional for overbreadth or vagueness of its
other provisions. Doing so, I come to the following conclusions:
1. That the validity of R.A. No. 7080, otherwise known as the Anti-
Plunder Law, cannot be determined by applying the test of strict scrutiny
in free speech cases without disastrous consequences to the States effort
to prosecute crimes and that, contrary to petitioners contention, the
statute must be presumed to be constitutional;
2. That in determining the constitutionality of the Anti-Plunder
Law, its provisions must be considered in light of the particular acts
alleged to have been committed by petitioner;
3. That, as applied to petitioner, the statute is neither vague nor
overbroad;
4. That, contrary to the contention of the Ombudsman and the
Solicitor General, the crime of plunder is a malum in se and not a malum
prohibitum and the burden of proving each and every predicate crime is
on the prosecution.
For these reasons, I respectfully submit that R.A. No. 7080 is valid
and that, therefore, the petition should be dismissed.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122846 January 20, 2009
WHITE LIGHT CORPORATION, TITANIUM CORPORATION and STA.
MESA TOURIST & DEVELOPMENT CORPORATION, Petitioners,
vs.
CITY OF MANILA, represented by DE CASTRO, MAYOR ALFREDO
S. LIM, Respondent.
DECISION
Tinga, J.:
With another city ordinance of Manila also principally involving the tourist
district as subject, the Court is confronted anew with the incessant clash
between government power and individual liberty in tandem with the
archetypal tension between law and morality.
In City of Manila v. Laguio, Jr.,1 the Court affirmed the nullification of a
city ordinance barring the operation of motels and inns, among other
establishments, within the Ermita-Malate area. The petition at bar assails
a similarly-motivated city ordinance that prohibits those same
establishments from offering short-time admission, as well as pro-rated or
"wash up" rates for such abbreviated stays. Our earlier decision tested
the city ordinance against our sacred constitutional rights to liberty, due
process and equal protection of law. The same parameters apply to the
present petition.
This Petition2 under Rule 45 of the Revised Rules on Civil Procedure,
which seeks the reversal of the Decision3 in C.A.-G.R. S.P. No. 33316 of
the Court of Appeals, challenges the validity of Manila City Ordinance No.
7774 entitled, "An Ordinance Prohibiting Short-Time Admission, Short-
Time Admission Rates, and Wash-Up Rate Schemes in Hotels, Motels,
Inns, Lodging Houses, Pension Houses, and Similar Establishments in
the City of Manila" (the Ordinance).
I.
The facts are as follows:
On December 3, 1992, City Mayor Alfredo S. Lim (Mayor Lim) signed into
law the Ordinance.4 The Ordinance is reproduced in full, hereunder:
SECTION 1. Declaration of Policy. It is hereby the declared policy of the
City Government to protect the best interest, health and welfare, and the
morality of its constituents in general and the youth in particular.
SEC. 2. Title. This ordinance shall be known as "An Ordinance"
prohibiting short time admission in hotels, motels, lodging houses,
pension houses and similar establishments in the City of Manila.
SEC. 3. Pursuant to the above policy, short-time admission and rate [sic],
wash-up rate or other similarly concocted terms, are hereby prohibited in
hotels, motels, inns, lodging houses, pension houses and similar
establishments in the City of Manila.
SEC. 4. Definition of Term[s]. Short-time admission shall mean
admittance and charging of room rate for less than twelve (12) hours at
any given time or the renting out of rooms more than twice a day or any
other term that may be concocted by owners or managers of said
establishments but would mean the same or would bear the same
meaning.
SEC. 5. Penalty Clause. Any person or corporation who shall violate any
provision of this ordinance shall upon conviction thereof be punished by a
fine of Five Thousand (₱5,000.00) Pesos or imprisonment for a period of
not exceeding one (1) year or both such fine and imprisonment at the
discretion of the court; Provided, That in case of [a] juridical person, the
president, the manager, or the persons in charge of the operation thereof
shall be liable: Provided, further, That in case of subsequent conviction
for the same offense, the business license of the guilty party shall
automatically be cancelled.
SEC. 6. Repealing Clause. Any or all provisions of City ordinances not
consistent with or contrary to this measure or any portion hereof are
hereby deemed repealed.
SEC. 7. Effectivity. This ordinance shall take effect immediately upon
approval.
Enacted by the city Council of Manila at its regular session today,
November 10, 1992.
Approved by His Honor, the Mayor on December 3, 1992.
On December 15, 1992, the Malate Tourist and Development
Corporation (MTDC) filed a complaint for declaratory relief with prayer for
a writ of preliminary injunction and/or temporary restraining order (
TRO)5 with the Regional Trial Court (RTC) of Manila, Branch 9
impleading as defendant, herein respondent City of Manila (the City)
represented by Mayor Lim.6 MTDC prayed that the Ordinance, insofar as
it includes motels and inns as among its prohibited establishments, be
declared invalid and unconstitutional. MTDC claimed that as owner and
operator of the Victoria Court in Malate, Manila it was authorized by
Presidential Decree (P.D.) No. 259 to admit customers on a short time
basis as well as to charge customers wash up rates for stays of only
three hours.
On December 21, 1992, petitioners White Light Corporation (WLC),
Titanium Corporation (TC) and Sta. Mesa Tourist and Development
Corporation (STDC) filed a motion to intervene and to admit attached
complaint-in-intervention7 on the ground that the Ordinance directly
affects their business interests as operators of drive-in-hotels and motels
in Manila.8 The three companies are components of the Anito Group of
Companies which owns and operates several hotels and motels in Metro
Manila.9
On December 23, 1992, the RTC granted the motion to intervene.10 The
RTC also notified the Solicitor General of the proceedings pursuant to
then Rule 64, Section 4 of the Rules of Court. On the same date, MTDC
moved to withdraw as plaintiff.11
On December 28, 1992, the RTC granted MTDC's motion to
withdraw.12 The RTC issued a TRO on January 14, 1993, directing the
City to cease and desist from enforcing the Ordinance.13 The City filed an
Answer dated January 22, 1993 alleging that the Ordinance is a
legitimate exercise of police power.14
On February 8, 1993, the RTC issued a writ of preliminary injunction
ordering the city to desist from the enforcement of the Ordinance.15 A
month later, on March 8, 1993, the Solicitor General filed his Comment
arguing that the Ordinance is constitutional.
During the pre-trial conference, the WLC, TC and STDC agreed to submit
the case for decision without trial as the case involved a purely legal
question.16 On October 20, 1993, the RTC rendered a decision declaring
the Ordinance null and void. The dispositive portion of the decision reads:
WHEREFORE, in view of all the foregoing, [O]rdinance No. 7774 of the
City of Manila is hereby declared null and void.
Accordingly, the preliminary injunction heretofor issued is hereby made
permanent.
SO ORDERED.17
The RTC noted that the ordinance "strikes at the personal liberty of the
individual guaranteed and jealously guarded by the
Constitution."18 Reference was made to the provisions of the Constitution
encouraging private enterprises and the incentive to needed investment,
as well as the right to operate economic enterprises. Finally, from the
observation that the illicit relationships the Ordinance sought to dissuade
could nonetheless be consummated by simply paying for a 12-hour stay,
the RTC likened the law to the ordinance annulled in Ynot v. Intermediate
Appellate Court,19 where the legitimate purpose of preventing
indiscriminate slaughter of carabaos was sought to be effected through
an inter-province ban on the transport of carabaos and carabeef.
The City later filed a petition for review on certiorari with the Supreme
Court.20 The petition was docketed as G.R. No. 112471. However in a
resolution dated January 26, 1994, the Court treated the petition as a
petition for certiorari and referred the petition to the Court of Appeals.21
Before the Court of Appeals, the City asserted that the Ordinance is a
valid exercise of police power pursuant to Section 458 (4)(iv) of the Local
Government Code which confers on cities, among other local
government units, the power:
[To] regulate the establishment, operation and maintenance of cafes,
restaurants, beerhouses, hotels, motels, inns, pension houses, lodging
houses and other similar establishments, including tourist guides and
transports.22
The Ordinance, it is argued, is also a valid exercise of the power of the
City under Article III, Section 18(kk) of the Revised Manila Charter, thus:
"to enact all ordinances it may deem necessary and proper for the
sanitation and safety, the furtherance of the prosperity and the promotion
of the morality, peace, good order, comfort, convenience and general
welfare of the city and its inhabitants, and such others as be necessary to
carry into effect and discharge the powers and duties conferred by this
Chapter; and to fix penalties for the violation of ordinances which shall
not exceed two hundred pesos fine or six months imprisonment, or both
such fine and imprisonment for a single offense.23
Petitioners argued that the Ordinance is unconstitutional and void since it
violates the right to privacy and the freedom of movement; it is an invalid
exercise of police power; and it is an unreasonable and oppressive
interference in their business.
The Court of Appeals reversed the decision of the RTC and affirmed the
constitutionality of the Ordinance.24 First, it held that the Ordinance did
not violate the right to privacy or the freedom of movement, as it only
penalizes the owners or operators of establishments that admit
individuals for short time stays. Second, the virtually limitless reach of
police power is only constrained by having a lawful object obtained
through a lawful method. The lawful objective of the Ordinance is
satisfied since it aims to curb immoral activities. There is a lawful method
since the establishments are still allowed to operate. Third, the adverse
effect on the establishments is justified by the well-being of its
constituents in general. Finally, as held in Ermita-Malate Motel Operators
Association v. City Mayor of Manila, liberty is regulated by law.
TC, WLC and STDC come to this Court via petition for review on
certiorari.25 In their petition and Memorandum, petitioners in essence
repeat the assertions they made before the Court of Appeals. They
contend that the assailed Ordinance is an invalid exercise of police
power.
II.
We must address the threshold issue of petitioners’ standing. Petitioners
allege that as owners of establishments offering "wash-up" rates, their
business is being unlawfully interfered with by the Ordinance. However,
petitioners also allege that the equal protection rights of their clients are
also being interfered with. Thus, the crux of the matter is whether or not
these establishments have the requisite standing to plead for protection
of their patrons' equal protection rights.
Standing or locus standi is the ability of a party to demonstrate to the
court sufficient connection to and harm from the law or action challenged
to support that party's participation in the case. More importantly, the
doctrine of standing is built on the principle of separation of
powers,26 sparing as it does unnecessary interference or invalidation by
the judicial branch of the actions rendered by its co-equal branches of
government.
The requirement of standing is a core component of the judicial system
derived directly from the Constitution.27 The constitutional component of
standing doctrine incorporates concepts which concededly are not
susceptible of precise definition.28 In this jurisdiction, the extancy of "a
direct and personal interest" presents the most obvious cause, as well as
the standard test for a petitioner's standing.29 In a similar vein, the United
States Supreme Court reviewed and elaborated on the meaning of the
three constitutional standing requirements of injury, causation, and
redressability in Allen v. Wright.30
Nonetheless, the general rules on standing admit of several exceptions
such as the overbreadth doctrine, taxpayer suits, third party standing
and, especially in the Philippines, the doctrine of transcendental
importance.31
For this particular set of facts, the concept of third party standing as an
exception and the overbreadth doctrine are appropriate. In Powers v.
Ohio,32 the United States Supreme Court wrote that: "We have
recognized the right of litigants to bring actions on behalf of third parties,
provided three important criteria are satisfied: the litigant must have
suffered an ‘injury-in-fact,’ thus giving him or her a "sufficiently concrete
interest" in the outcome of the issue in dispute; the litigant must have a
close relation to the third party; and there must exist some hindrance to
the third party's ability to protect his or her own interests."33 Herein, it is
clear that the business interests of the petitioners are likewise injured by
the Ordinance. They rely on the patronage of their customers for their
continued viability which appears to be threatened by the enforcement of
the Ordinance. The relative silence in constitutional litigation of such
special interest groups in our nation such as the American Civil Liberties
Union in the United States may also be construed as a hindrance for
customers to bring suit.34
American jurisprudence is replete with examples where parties-in-interest
were allowed standing to advocate or invoke the fundamental due
process or equal protection claims of other persons or classes of persons
injured by state action. In Griswold v. Connecticut,35 the United States
Supreme Court held that physicians had standing to challenge a
reproductive health statute that would penalize them as accessories as
well as to plead the constitutional protections available to their patients.
The Court held that:
"The rights of husband and wife, pressed here, are likely to be diluted or
adversely affected unless those rights are considered in a suit involving
those who have this kind of confidential relation to them."36
An even more analogous example may be found in Craig v.
Boren,37 wherein the United States Supreme Court held that a licensed
beverage vendor has standing to raise the equal protection claim of a
male customer challenging a statutory scheme prohibiting the sale of
beer to males under the age of 21 and to females under the age of 18.
The United States High Court explained that the vendors had standing
"by acting as advocates of the rights of third parties who seek access to
their market or function."38
Assuming arguendo that petitioners do not have a relationship with their
patrons for the former to assert the rights of the latter, the overbreadth
doctrine comes into play. In overbreadth analysis, challengers to
government action are in effect permitted to raise the rights of third
parties. Generally applied to statutes infringing on the freedom of speech,
the overbreadth doctrine applies when a statute needlessly restrains
even constitutionally guaranteed rights.39 In this case, the petitioners
claim that the Ordinance makes a sweeping intrusion into the right to
liberty of their clients. We can see that based on the allegations in the
petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to assert the
constitutional rights of their clients to patronize their establishments for a
"wash-rate" time frame.
III.
To students of jurisprudence, the facts of this case will recall to mind not
only the recent City of Manila ruling, but our 1967 decision in Ermita-
Malate Hotel and Motel Operations Association, Inc., v. Hon. City Mayor
of Manila.40Ermita-Malate concerned the City ordinance requiring patrons
to fill up a prescribed form stating personal information such as name,
gender, nationality, age, address and occupation before they could be
admitted to a motel, hotel or lodging house. This earlier ordinance was
precisely enacted to minimize certain practices deemed harmful to public
morals. A purpose similar to the annulled ordinance in City of
Manila which sought a blanket ban on motels, inns and similar
establishments in the Ermita-Malate area. However, the constitutionality
of the ordinance in Ermita-Malate was sustained by the Court.
The common thread that runs through those decisions and the case at
bar goes beyond the singularity of the localities covered under the
respective ordinances. All three ordinances were enacted with a view of
regulating public morals including particular illicit activity in transient
lodging establishments. This could be described as the middle case,
wherein there is no wholesale ban on motels and hotels but the services
offered by these establishments have been severely restricted. At its
core, this is another case about the extent to which the State can intrude
into and regulate the lives of its citizens.
The test of a valid ordinance is well established. A long line of decisions
including City of Manila has held that for an ordinance to be valid, it must
not only be within the corporate powers of the local government unit to
enact and pass according to the procedure prescribed by law, it must
also conform to the following substantive requirements: (1) must not
contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit
but may regulate trade; (5) must be general and consistent with public
policy; and (6) must not be unreasonable.41
The Ordinance prohibits two specific and distinct business practices,
namely wash rate admissions and renting out a room more than twice a
day. The ban is evidently sought to be rooted in the police power as
conferred on local government units by the Local Government Code
through such implements as the general welfare clause.
A.
Police power, while incapable of an exact definition, has been purposely
veiled in general terms to underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient and flexible
response as the conditions warrant.42 Police power is based upon the
concept of necessity of the State and its corresponding right to protect
itself and its people.43 Police power has been used as justification for
numerous and varied actions by the State. These range from the
regulation of dance halls,44 movie theaters,45 gas stations46 and
cockpits.47 The awesome scope of police power is best demonstrated by
the fact that in its hundred or so years of presence in our nation’s legal
system, its use has rarely been denied.
The apparent goal of the Ordinance is to minimize if not eliminate the use
of the covered establishments for illicit sex, prostitution, drug use and
alike. These goals, by themselves, are unimpeachable and certainly fall
within the ambit of the police power of the State. Yet the desirability of
these ends do not sanctify any and all means for their achievement.
Those means must align with the Constitution, and our emerging
sophisticated analysis of its guarantees to the people. The Bill of Rights
stands as a rebuke to the seductive theory of Macchiavelli, and,
sometimes even, the political majorities animated by his cynicism.
Even as we design the precedents that establish the framework for
analysis of due process or equal protection questions, the courts are
naturally inhibited by a due deference to the co-equal branches of
government as they exercise their political functions. But when we are
compelled to nullify executive or legislative actions, yet another form of
caution emerges. If the Court were animated by the same passing
fancies or turbulent emotions that motivate many political decisions,
judicial integrity is compromised by any perception that the judiciary is
merely the third political branch of government. We derive our respect
and good standing in the annals of history by acting as judicious and
neutral arbiters of the rule of law, and there is no surer way to that end
than through the development of rigorous and sophisticated legal
standards through which the courts analyze the most fundamental and
far-reaching constitutional questions of the day.
B.
The primary constitutional question that confronts us is one of due
process, as guaranteed under Section 1, Article III of the Constitution.
Due process evades a precise definition.48 The purpose of the guaranty is
to prevent arbitrary governmental encroachment against the life, liberty
and property of individuals. The due process guaranty serves as a
protection against arbitrary regulation or seizure. Even corporations and
partnerships are protected by the guaranty insofar as their property is
concerned.
The due process guaranty has traditionally been interpreted as imposing
two related but distinct restrictions on government, "procedural due
process" and "substantive due process." Procedural due process refers
to the procedures that the government must follow before it deprives a
person of life, liberty, or property.49 Procedural due process concerns
itself with government action adhering to the established process when it
makes an intrusion into the private sphere. Examples range from the form
of notice given to the level of formality of a hearing.
If due process were confined solely to its procedural aspects, there would
arise absurd situation of arbitrary government action, provided the proper
formalities are followed. Substantive due process completes the
protection envisioned by the due process clause. It inquires whether the
government has sufficient justification for depriving a person of life,
liberty, or property.50
The question of substantive due process, moreso than most other fields
of law, has reflected dynamism in progressive legal thought tied with the
expanded acceptance of fundamental freedoms. Police power,
traditionally awesome as it may be, is now confronted with a more
rigorous level of analysis before it can be upheld. The vitality though of
constitutional due process has not been predicated on the frequency with
which it has been utilized to achieve a liberal result for, after all, the
libertarian ends should sometimes yield to the prerogatives of the State.
Instead, the due process clause has acquired potency because of the
sophisticated methodology that has emerged to determine the proper
metes and bounds for its application.
C.
The general test of the validity of an ordinance on substantive due
process grounds is best tested when assessed with the evolved footnote
4 test laid down by the U.S. Supreme Court in U.S. v. Carolene
Products.51 Footnote 4 of the Carolene Products case acknowledged that
the judiciary would defer to the legislature unless there is a discrimination
against a "discrete and insular" minority or infringement of a "fundamental
right."52 Consequently, two standards of judicial review were established:
strict scrutiny for laws dealing with freedom of the mind or restricting the
political process, and the rational basis standard of review for economic
legislation.
A third standard, denominated as heightened or immediate scrutiny, was
later adopted by the U.S. Supreme Court for evaluating classifications
based on gender53 and legitimacy.54 Immediate scrutiny was adopted by
the U.S. Supreme Court in Craig,55 after the Court declined to do so in
Reed v. Reed.56 While the test may have first been articulated in equal
protection analysis, it has in the United States since been applied in all
substantive due process cases as well.
We ourselves have often applied the rational basis test mainly in analysis
of equal protection challenges.57 Using the rational basis examination,
laws or ordinances are upheld if they rationally further a legitimate
governmental interest.58 Under intermediate review, governmental
interest is extensively examined and the availability of less restrictive
measures is considered.59 Applying strict scrutiny, the focus is on the
presence of compelling, rather than substantial, governmental interest
and on the absence of less restrictive means for achieving that interest.
In terms of judicial review of statutes or ordinances, strict scrutiny refers
to the standard for determining the quality and the amount of
governmental interest brought to justify the regulation of fundamental
freedoms.60 Strict scrutiny is used today to test the validity of laws dealing
with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal
protection.61 The United States Supreme Court has expanded the scope
of strict scrutiny to protect fundamental rights such as suffrage,62 judicial
access63and interstate travel.64
If we were to take the myopic view that an Ordinance should be analyzed
strictly as to its effect only on the petitioners at bar, then it would seem
that the only restraint imposed by the law which we are capacitated to act
upon is the injury to property sustained by the petitioners, an injury that
would warrant the application of the most deferential standard – the
rational basis test. Yet as earlier stated, we recognize the capacity of the
petitioners to invoke as well the constitutional rights of their patrons –
those persons who would be deprived of availing short time access or
wash-up rates to the lodging establishments in question.
Viewed cynically, one might say that the infringed rights of these
customers were are trivial since they seem shorn of political
consequence. Concededly, these are not the sort of cherished rights that,
when proscribed, would impel the people to tear up their cedulas. Still,
the Bill of Rights does not shelter gravitas alone. Indeed, it is those
"trivial" yet fundamental freedoms – which the people reflexively exercise
any day without the impairing awareness of their constitutional
consequence – that accurately reflect the degree of liberty enjoyed by the
people. Liberty, as integrally incorporated as a fundamental right in the
Constitution, is not a Ten Commandments-style enumeration of what may
or what may not be done; but rather an atmosphere of freedom where the
people do not feel labored under a Big Brother presence as they interact
with each other, their society and nature, in a manner innately
understood by them as inherent, without doing harm or injury to others.
D.
The rights at stake herein fall within the same fundamental rights to
liberty which we upheld in City of Manila v. Hon. Laguio, Jr. We
expounded on that most primordial of rights, thus:
Liberty as guaranteed by the Constitution was defined by Justice
Malcolm to include "the right to exist and the right to be free from arbitrary
restraint or servitude. The term cannot be dwarfed into mere freedom
from physical restraint of the person of the citizen, but is deemed to
embrace the right of man to enjoy the facilities with which he has been
endowed by his Creator, subject only to such restraint as are necessary
for the common welfare."[65] In accordance with this case, the rights of the
citizen to be free to use his faculties in all lawful ways; to live and work
where he will; to earn his livelihood by any lawful calling; and to pursue
any avocation are all deemed embraced in the concept of liberty.[66]
The U.S. Supreme Court in the case of Roth v. Board of Regents, sought
to clarify the meaning of "liberty." It said:
While the Court has not attempted to define with exactness the liberty . . .
guaranteed [by the Fifth and Fourteenth Amendments], the term denotes
not merely freedom from bodily restraint but also the right of the
individual to contract, to engage in any of the common occupations of life,
to acquire useful knowledge, to marry, establish a home and bring up
children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized . . . as essential
to the orderly pursuit of happiness by free men. In a Constitution for a
free people, there can be no doubt that the meaning of "liberty" must be
broad indeed.67 [Citations omitted]
It cannot be denied that the primary animus behind the ordinance is the
curtailment of sexual behavior. The City asserts before this Court that the
subject establishments "have gained notoriety as venue of ‘prostitution,
adultery and fornications’ in Manila since they ‘provide the necessary
atmosphere for clandestine entry, presence and exit and thus became
the ‘ideal haven for prostitutes and thrill-seekers.’"68 Whether or not this
depiction of a mise-en-scene of vice is accurate, it cannot be denied that
legitimate sexual behavior among willing married or consenting single
adults which is constitutionally protected69 will be curtailed as well, as it
was in the City of Manila case. Our holding therein retains significance for
our purposes:
The concept of liberty compels respect for the individual whose claim to
privacy and interference demands respect. As the case of Morfe v.
Mutuc, borrowing the words of Laski, so very aptly stated:
Man is one among many, obstinately refusing reduction to unity. His
separateness, his isolation, are indefeasible; indeed, they are so
fundamental that they are the basis on which his civic obligations are
built. He cannot abandon the consequences of his isolation, which are,
broadly speaking, that his experience is private, and the will built out of
that experience personal to himself. If he surrenders his will to others, he
surrenders himself. If his will is set by the will of others, he ceases to be a
master of himself. I cannot believe that a man no longer a master of
himself is in any real sense free.
Indeed, the right to privacy as a constitutional right was recognized
in Morfe, the invasion of which should be justified by a compelling state
interest. Morfe accorded recognition to the right to privacy independently
of its identification with liberty; in itself it is fully deserving of constitutional
protection. Governmental powers should stop short of certain intrusions
into the personal life of the citizen.70
We cannot discount other legitimate activities which the Ordinance would
proscribe or impair. There are very legitimate uses for a wash rate or
renting the room out for more than twice a day. Entire families are known
to choose pass the time in a motel or hotel whilst the power is
momentarily out in their homes. In transit passengers who wish to wash
up and rest between trips have a legitimate purpose for abbreviated stays
in motels or hotels. Indeed any person or groups of persons in need of
comfortable private spaces for a span of a few hours with purposes other
than having sex or using illegal drugs can legitimately look to staying in a
motel or hotel as a convenient alternative.
E.
That the Ordinance prevents the lawful uses of a wash rate depriving
patrons of a product and the petitioners of lucrative business ties in with
another constitutional requisite for the legitimacy of the Ordinance as a
police power measure. It must appear that the interests of the public
generally, as distinguished from those of a particular class, require an
interference with private rights and the means must be reasonably
necessary for the accomplishment of the purpose and not unduly
oppressive of private rights.71 It must also be evident that no other
alternative for the accomplishment of the purpose less intrusive of private
rights can work. More importantly, a reasonable relation must exist
between the purposes of the measure and the means employed for its
accomplishment, for even under the guise of protecting the public
interest, personal rights and those pertaining to private property will not
be permitted to be arbitrarily invaded.72
Lacking a concurrence of these requisites, the police measure shall be
struck down as an arbitrary intrusion into private rights. As held in Morfe
v. Mutuc, the exercise of police power is subject to judicial review when
life, liberty or property is affected.73 However, this is not in any way meant
to take it away from the vastness of State police power whose exercise
enjoys the presumption of validity.74
Similar to the Comelec resolution requiring newspapers to donate
advertising space to candidates, this Ordinance is a blunt and heavy
instrument.75 The Ordinance makes no distinction between places
frequented by patrons engaged in illicit activities and patrons engaged in
legitimate actions. Thus it prevents legitimate use of places where illicit
activities are rare or even unheard of. A plain reading of section 3 of the
Ordinance shows it makes no classification of places of lodging, thus
deems them all susceptible to illicit patronage and subject them without
exception to the unjustified prohibition.
The Court has professed its deep sentiment and tenderness of the
Ermita-Malate area, its longtime home,76 and it is skeptical of those who
wish to depict our capital city – the Pearl of the Orient – as a modern-day
Sodom or Gomorrah for the Third World set. Those still steeped in Nick
Joaquin-dreams of the grandeur of Old Manila will have to accept that
Manila like all evolving big cities, will have its problems. Urban decay is a
fact of mega cities such as Manila, and vice is a common problem
confronted by the modern metropolis wherever in the world. The solution
to such perceived decay is not to prevent legitimate businesses from
offering a legitimate product. Rather, cities revive themselves by offering
incentives for new businesses to sprout up thus attracting the dynamism
of individuals that would bring a new grandeur to Manila.
The behavior which the Ordinance seeks to curtail is in fact already
prohibited and could in fact be diminished simply by applying existing
laws. Less intrusive measures such as curbing the proliferation of
prostitutes and drug dealers through active police work would be more
effective in easing the situation. So would the strict enforcement of
existing laws and regulations penalizing prostitution and drug use. These
measures would have minimal intrusion on the businesses of the
petitioners and other legitimate merchants. Further, it is apparent that the
Ordinance can easily be circumvented by merely paying the whole day
rate without any hindrance to those engaged in illicit activities. Moreover,
drug dealers and prostitutes can in fact collect "wash rates" from their
clientele by charging their customers a portion of the rent for motel rooms
and even apartments.
IV.
We reiterate that individual rights may be adversely affected only to the
extent that may fairly be required by the legitimate demands of public
interest or public welfare. The State is a leviathan that must be restrained
from needlessly intruding into the lives of its citizens. However well-
intentioned the Ordinance may be, it is in effect an arbitrary and
whimsical intrusion into the rights of the establishments as well as their
patrons. The Ordinance needlessly restrains the operation of the
businesses of the petitioners as well as restricting the rights of their
patrons without sufficient justification. The Ordinance rashly equates
wash rates and renting out a room more than twice a day with immorality
without accommodating innocuous intentions.
The promotion of public welfare and a sense of morality among citizens
deserves the full endorsement of the judiciary provided that such
measures do not trample rights this Court is sworn to protect.77 The
notion that the promotion of public morality is a function of the State is as
old as Aristotle.78 The advancement of moral relativism as a school of
philosophy does not de-legitimize the role of morality in law, even if it may
foster wider debate on which particular behavior to penalize. It is
conceivable that a society with relatively little shared morality among its
citizens could be functional so long as the pursuit of sharply variant moral
perspectives yields an adequate accommodation of different interests.79
Yet the continuing progression of the human story has seen not only the
acceptance of the right-wrong distinction, but also the advent of
fundamental liberties as the key to the enjoyment of life to the fullest. Our
democracy is distinguished from non-free societies not with any more
extensive elaboration on our part of what is moral and immoral, but from
our recognition that the individual liberty to make the choices in our lives
is innate, and protected by the State. Independent and fair-minded
judges themselves are under a moral duty to uphold the Constitution as
the embodiment of the rule of law, by reason of their expression of
consent to do so when they take the oath of office, and because they are
entrusted by the people to uphold the law.81
Even as the implementation of moral norms remains an indispensable
complement to governance, that prerogative is hardly absolute,
especially in the face of the norms of due process of liberty. And while
the tension may often be left to the courts to relieve, it is possible for the
government to avoid the constitutional conflict by employing more
judicious, less drastic means to promote morality.
WHEREFORE, the Petition is GRANTED. The Decision of the Court of
Appeals is REVERSED, and the Decision of the Regional Trial Court of
Manila, Branch 9, is REINSTATED. Ordinance No. 7774 is hereby
declared UNCONSTITUTIONAL. No pronouncement as to costs.
SO ORDERED.

To be candid about it, the oft-quoted American maxim that "you cannot
legislate morality" is ultimately illegitimate as a matter of law, since as
explained by Calabresi, that phrase is more accurately interpreted as
meaning that efforts to legislate morality will fail if they are widely at
variance with public attitudes about right and wrong.80 Our penal laws, for
one, are founded on age-old moral traditions, and as long as there are
widely accepted distinctions between right and wrong, they will remain so
oriented.

EN BANC
[G.R. No. 139465. January 18, 2000]
SECRETARY OF JUSTICE, petitioner, vs. HON. RALPH C.
LANTION, Presiding Judge, Regional Trial Court of Manila,
Branch 25, and MARK B. JIMENEZ, respondents. Esmso
DECISION
MELO, J.:
The individual citizen is but a speck of particle or molecule vis--vis the
vast and overwhelming powers of government. His only guarantee
against oppression and tyranny are his fundamental liberties under the
Bill of Rights which shield him in times of need. The Court is now
called to decide whether to uphold a citizens basic due process rights,
or the governments ironclad duties under a treaty. The bugle sounds
and this Court must once again act as the faithful guardian of the
fundamental writ.
The petition at our doorstep is cast against the following factual
backdrop:
On January 13, 1977, then President Ferdinand E. Marcos issued
Presidential Decree No. 1069 "Prescribing the Procedure for the
Extradition of Persons Who Have Committed Crimes in a Foreign
Country". The Decree is founded on: the doctrine of incorporation
under the Constitution; the mutual concern for the suppression of
crime both in the state where it was committed and the state where the
criminal may have escaped; the extradition treaty with the Republic of
Indonesia and the intention of the Philippines to enter into similar
treaties with other interested countries; and the need for rules to guide
the executive department and the courts in the proper implementation
of said treaties.
On November 13, 1994, then Secretary of Justice Franklin M. Drilon,
representing the Government of the Republic of the Philippines, signed
in Manila the "Extradition Treaty Between the Government of the
Republic of the Philippines and the Government of the United States
of America" (hereinafter referred to as the RP-US Extradition Treaty).
The Senate, by way of Resolution No. 11, expressed its concurrence in
the ratification of said treaty. It also expressed its concurrence in the
Diplomatic Notes correcting Paragraph (5)(a), Article 7 thereof (on the
admissibility of the documents accompanying an extradition request
upon certification by the principal diplomatic or consular officer of the
requested state resident in the Requesting State). Kycalr
On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs U. S. Note Verbale No. 0522
containing a request for the extradition of private respondent Mark
Jimenez to the United States. Attached to the Note Verbale were the
Grand Jury Indictment, the warrant of arrest issued by the U.S. District
Court, Southern District of Florida, and other supporting documents
for said extradition. Based on the papers submitted, private respondent
appears to be charged in the United States with violation of the
following provisions of the United States Code (USC):
A)......18 USC 371 (Conspiracy to commit offense or to
defraud the United States; two [2] counts; Maximum
Penalty 5 years on each count);
B)......26 USC 7201 (Attempt to evade or defeat tax;
four [4] counts; Maximum Penalty 5 years on each
count);
C)......18 USC 1343 (Fraud by wire, radio, or
television; two [2] counts; Maximum Penalty 5 years on
each count);
D)......18 USC 1001 (False statement or entries; six [6]
counts; Maximum Penalty 5 years on each count);
 E)......2 USC 441f (Election contributions in name of
another; thirty-three [33] counts; Maximum Penalty
less than one year).
(p. 14, Rollo.)
On the same day, petitioner issued Department Order No. 249
designating and authorizing a panel of attorneys to take charge of and
to handle the case pursuant to Section 5(1) of Presidential Decree No.
1069. Accordingly, the panel began with the "technical evaluation and
assessment" of the extradition request and the documents in support
thereof. The panel found that the "official English translation of some
documents in Spanish were not attached to the request and that there
are some other matters that needed to be addressed" (p. 15,
Rollo). Calrky
Pending evaluation of the aforestated extradition documents, private
respondent, through counsel, wrote a letter dated July 1, 1999
addressed to petitioner requesting copies of the official extradition
request from the U. S. Government, as well as all documents and
papers submitted therewith; and that he be given ample time to
comment on the request after he shall have received copies of the
requested papers. Private respondent also requested that the
proceedings on the matter be held in abeyance in the meantime.
Later, private respondent requested that preliminarily, he be given at
least a copy of, or access to, the request of the United States
Government, and after receiving a copy of the Diplomatic Note, a
period of time to amplify on his request.
In response to private respondents July 1, 1999 letter, petitioner, in a
reply-letter dated July 13, 1999 (but received by private respondent
only on August 4, 1999), denied the foregoing requests for the
following reasons:
1. We find it premature to furnish you with copies of
the extradition request and supporting documents from
the United States Government, pending evaluation by
this Department of the sufficiency of the extradition
documents submitted in accordance with the provisions
of the extradition treaty and our extradition law. Article
7 of the Extradition Treaty between the Philippines and
the United States enumerates the documentary
requirements and establishes the procedures under
which the documents submitted shall be received and
admitted as evidence. Evidentiary requirements under
our domestic law are also set forth in Section 4 of P.D.
No. 1069.
Evaluation by this Department of the aforementioned
documents is not a preliminary investigation nor akin to
preliminary investigation of criminal cases. We merely
determine whether the procedures and requirements
under the relevant law and treaty have been complied
with by the Requesting Government. The
constitutionally guaranteed rights of the accused in all
criminal prosecutions are therefore not available.
It is only after the filing of the petition for extradition
when the person sought to be extradited will be
furnished by the court with copies of the petition,
request and extradition documents and this Department
will not pose any objection to a request for ample time
to evaluate said documents. Mesm
2. The formal request for extradition of the United
States contains grand jury information and documents
obtained through grand jury process covered by strict
secrecy rules under United States law. The United
States had to secure orders from the concerned District
Courts authorizing the United States to disclose certain
grand jury information to Philippine government and
law enforcement personnel for the purpose of
extradition of Mr. Jimenez. Any further disclosure of
the said information is not authorized by the United
States District Courts. In this particular extradition
request the United States Government requested the
Philippine Government to prevent unauthorized
 disclosure of the subject information. This Departments
denial of your request is consistent with Article 7 of the
RP-US Extradition Treaty which provides that the
Philippine Government must represent the interests of
the United States in any proceedings arising out of a
request for extradition. The Department of Justice under
P.D. No. 1069 is the counsel of the foreign
governments in all extradition requests.
3. This Department is not in a position to hold in
abeyance proceedings in connection with an extradition
request. Article 26 of the Vienna Convention on the
Law of Treaties, to which we are a party provides that
"[E]very treaty in force is binding upon the parties to it
and must be performed by them in good faith".
Extradition is a tool of criminal law enforcement and to
be effective, requests for extradition or surrender of
accused or convicted persons must be processed
expeditiously.
(pp. 77-78, Rollo.)
Such was the state of affairs when, on August 6, 1999, private
respondent filed with the Regional Trial Court of the National Capital
Judicial Region a petition against the Secretary of Justice, the
Secretary of Foreign Affairs, and the Director of the National Bureau
of Investigation, for mandamus (to compel herein petitioner to furnish
private respondent the extradition documents, to give him access
thereto, and to afford him an opportunity to comment on, or oppose,
the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively); certiorari (to set aside herein
petitioners letter dated July 13, 1999); and prohibition (to restrain
petitioner from considering the extradition request and from filing an
extradition petition in court; and to enjoin the Secretary of Foreign
Affairs and the Director of the NBI from performing any act directed
to the extradition of private respondent to the United States), with an
application for the issuance of a temporary restraining order and a writ
of preliminary injunction (pp. 104-105, Rollo). Scslx
The aforementioned petition was docketed as Civil Case No. 99-94684
and thereafter raffled to Branch 25 of said regional trial court stationed
in Manila which is presided over by the Honorable Ralph C. Lantion.
After due notice to the parties, the case was heard on August 9, 1999.
Petitioner, who appeared in his own behalf, moved that he be given
ample time to file a memorandum, but the same was denied.
On August 10, 1999, respondent judge issued an order dated the
previous day, disposing:
WHEREFORE, this Court hereby Orders the
respondents, namely: the Secretary of Justice, the
Secretary of Foreign Affairs and the Director of the
National Bureau of Investigation, their agents and/or
representatives to maintain the status quo by refraining
from committing the acts complained of; from
conducting further proceedings in connection with the
request of the United States Government for the
extradition of the petitioner; from filing the
corresponding Petition with a Regional Trial court; and
from performing any act directed to the extradition of
the petitioner to the United States, for a period of
twenty (20) days from service on respondents of this
Order, pursuant to Section 5, Rule 58 of the 1997 Rules
of Court.
The hearing as to whether or not this Court shall issue
the preliminary injunction, as agreed upon by the
counsels for the parties herein, is set on August 17,
1999 at 9:00 oclock in the morning. The respondents
are, likewise, ordered to file their written comment
and/or opposition to the issuance of a Preliminary
Injunction on or before said date.
SO ORDERED.
(pp. 110-111, Rollo.)
Forthwith, petitioner initiated the instant proceedings, arguing that:
PUBLIC RESPONDENT ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION IN ISSUING THE
TEMPORARY RESTRAINING ORDER
BECAUSE: Slxs c
I.
BY ORDERING HEREIN PETITIONER TO
REFRAIN FROM COMMITTING THE ACTS
COMPLAINED OF, I. E., TO DESIST FROM
REFUSING PRIVATE RESPONDENT ACCESS TO
THE OFFICIAL EXTRADITION REQUEST AND
DOCUMENTS AND FROM DENYING PRIVATE
RESPONDENT AN OPPORTUNITY TO FILE A
COMMENT ON, OR OPPOSITION TO, THE
REQUEST, THE MAIN PRAYER FOR A WRIT OF
MANDAMUS IN THE PETITION FOR
MANDAMUS, CERTIORARI AND PROHIBITION
WAS, IN EFFECT, GRANTED SO AS TO
CONSTITUTE AN ADJUDICATION ON THE
MERITS OF THE MANDAMUS ISSUES;
II.
PETITIONER WAS UNQUALIFIEDLY
PREVENTED FROM PERFORMING LEGAL
DUTIES UNDER THE EXTRADITION TREATY
AND THE PHILIPPINE EXTRADITION LAW;
III.
THE PETITION FOR (MANDAMUS), CERTIORARI
AND PROHIBITION IS, ON ITS FACE, FORMALLY
AND SUBSTANTIALLY DEFICIENT; AND
IV.
PRIVATE RESPONDENT HAS NO RIGHT IN
ESSE THAT NEEDS PROTECTION AND
ENFORCEMENT, AND WILL NOT SUFFER ANY
IRREPARABLE INJURY.
(pp. 19-20, Rollo.)
On August 17, 1999, the Court required private respondent to file his
comment. Also issued, as prayed for, was a temporary restraining
order (TRO) providing: slx mis
NOW, THEREFORE, effective immediately and
continuing until further orders from this Court, You,
Respondent Judge Ralph C. Lantion, your agents,
representatives or any person or persons acting in your
place or stead are hereby ORDERED to CEASE and
DESIST from enforcing the assailed order dated August
9, 1999 issued by public respondent in Civil Case No.
99-94684.
GIVEN by the Honorable HILARIO G. DAVIDE, JR.,
Chief Justice, Supreme Court of the Philippines, this
17th day of August 1999.
(pp. 120-121, Rollo.)
The case was heard on oral argument on August 31, 1999, after which
the parties, as directed, filed their respective memoranda.
From the pleadings of the opposing parties, both procedural and
substantive issues are patent. However, a review of these issues as well
as the extensive arguments of both parties, compel us to delineate the
focal point raised by the pleadings: During the evaluation stage of the
extradition proceedings, is private respondent entitled to the two basic
due process rights of notice and hearing? An affirmative answer would
necessarily render the proceedings at the trial court, moot and
academic (the issues of which are substantially the same as those
before us now), while a negative resolution would call for the
immediate lifting of the TRO issued by this Court dated August 24,
1999, thus allowing petitioner to fast-track the process leading to the
filing of the extradition petition with the proper regional trial court.
Corollarily, in the event that private respondent is adjudged entitled to
basic due process rights at the evaluation stage of the extradition
proceedings, would this entitlement constitute a breach of the legal
commitments and obligations of the Philippine Government under the
RP-US Extradition Treaty? And assuming that the result would indeed
be a breach, is there any conflict between private respondents basic
due process rights and the provisions of the RP-US Extradition Treaty?
The issues having transcendental importance, the Court has elected to
go directly into the substantive merits of the case, brushing aside
peripheral procedural matters which concern the proceedings in Civil
Case No. 99-94684, particularly the propriety of the filing of the
petition therein, and of the issuance of the TRO of August 17, 1999 by
the trial court. Missdaa
To be sure, the issues call for a review of the extradition procedure.
The RP-US Extradition Treaty which was executed only on November
13, 1994, ushered into force the implementing provisions of
Presidential Decree No. 1069, also called as the Philippine Extradition
Law. Section 2(a) thereof defines extradition as "the removal of an
accused from the Philippines with the object of placing him at the
disposal of foreign authorities to enable the requesting state or
government to hold him in connection with any criminal investigation
directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government."
The portions of the Decree relevant to the instant case which involves
a charged and not convicted individual, are abstracted as follows:
The Extradition Request
The request is made by the Foreign Diplomat of the Requesting State,
addressed to the Secretary of Foreign Affairs, and shall be
accompanied by:
1. The original or an authentic copy of the criminal charge and the
warrant of arrest issued by the authority of the Requesting State having
jurisdiction over the matter, or some other instruments having
equivalent legal force;
2. A recital of the acts for which extradition is requested, with the
fullest particulars as to the name and identity of the accused, his
whereabouts in the Philippines, if known, the acts or omissions
complained of, and the time and place of the commission of these
acts; Sda adsc
3. The text of the applicable law or a statement of the contents of said
law, and the designation or description of the offense by the law,
sufficient for evaluation of the request; and
4. Such other documents or information in support of the request.
(Section 4, Presidential Decree No. 1069.)
Section 5 of the Presidential Decree, which sets forth the duty of the
Secretary of Foreign Affairs, pertinently provides:
. . . (1) Unless it appears to the Secretary of Foreign
Affairs that the request fails to meet the requirements of
this law and the relevant treaty or convention, he shall
forward the request together with the related documents
to the Secretary of Justice, who shall immediately
designate and authorize an attorney in his office to take
charge of the case.
The above provision shows only too clearly that the executive
authority given the task of evaluating the sufficiency of the request and
the supporting documents is the Secretary of Foreign Affairs. What
then is the coverage of this task?
In accordance with Paragraphs 2 and 3, Article 7 of the RP-US
Extradition Treaty, the executive authority must ascertain whether or
not the request is supported by:
1. Documents, statements, or other types of information which
describe the identity and probable location of the person sought;
2. A statement of the facts of the offense and the procedural history of
the case;
3. A statement of the provisions of the law describing the essential
elements of the offense for which extradition is requested;
4. A statement of the provisions of law describing the punishment for
the offense; Rtc spped
5. A statement of the provisions of the law describing any time limit
on the prosecution or the execution of punishment for the offense;
6. Documents, statements, or other types of information specified in
paragraph 3 or paragraph 4 of said Article, as applicable.
(Paragraph 2, Article 7, Presidential Decree No. 1069.)
7. Such evidence as, according to the law of the Requested State,
would provide probable cause for his arrest and committal for trial if
the offense had been committed there;
8. A copy of the warrant or order of arrest issued by a judge or other
competent authority; and
9. A copy of the charging document.
(Paragraph 3, ibid.)
The executive authority (Secretary of Foreign Affairs) must also see to
it that the accompanying documents received in support of the request
had been certified by the principal diplomatic or consular officer of the
Requested State resident in the Requesting State (Embassy Note No.
052 from U. S. Embassy; Embassy Note No. 951309 from the
Department of Foreign Affairs).
In this light, Paragraph 3, Article 3 of the Treaty provides that
"[e]xtradition shall not be granted if the executive authority of the
Requested State determines that the request is politically motivated, or
that the offense is a military offense which is not punishable under
non-military penal legislation."
The Extradition Petition
Upon a finding made by the Secretary of Foreign Affairs that the
extradition request and its supporting documents are sufficient and
complete in form and substance, he shall deliver the same to the
Secretary of Justice, who shall immediately designate and authorize an
attorney in his office to take charge of the case (Paragraph [1], Section
5, P. D. No. 1069). The lawyer designated shall then file a written
petition with the proper regional trial court of the province or city,
with a prayer that the court take the extradition request under
consideration (Paragraph [2], ibid.). Korte
The presiding judge of the regional trial court, upon receipt of the
petition for extradition, shall, as soon as practicable, issue an order
summoning the prospective extraditee to appear and to answer the
petition on the day and hour fixed in the order. The judge may issue a
warrant of arrest if it appears that the immediate arrest and temporary
detention of the accused will best serve the ends of justice (Paragraph
[1], Section 6, ibid.), particularly to prevent the flight of the
prospective extraditee.
The Extradition Hearing
The Extradition Law does not specifically indicate whether the
extradition proceeding is criminal, civil, or a special proceeding.
Nevertheless, Paragraph [1], Section 9 thereof provides that in the
hearing of the extradition petition, the provisions of the Rules of
Court, insofar as practicable and not inconsistent with the summary
nature of the proceedings, shall apply. During the hearing, Section 8 of
the Decree provides that the attorney having charge of the case may,
upon application by the Requesting State, represent the latter
throughout the proceedings.
Upon conclusion of the hearing, the court shall render a decision
granting the extradition and giving the reasons therefor upon a
showing of the existence of a prima facie case, or dismiss the petition
(Section 10, ibid.). Said decision is appealable to the Court of Appeals,
whose decision shall be final and immediately executory (Section
12, ibid.). The provisions of the Rules of Court governing appeal in
criminal cases in the Court of Appeals shall apply in the
aforementioned appeal, except for the required 15-day period to file
brief (Section 13, ibid.).
The trial court determines whether or not the offense mentioned in the
petition is extraditable based on the application of the dual criminality
rule and other conditions mentioned in Article 2 of the RP-US
Extradition Treaty. The trial court also determines whether or not the
offense for which extradition is requested is a political one (Paragraph
[1], Article 3, RP-US Extradition Treaty).
With the foregoing abstract of the extradition proceedings as backdrop,
the following query presents itself: What is the nature of the role of the
Department of Justice at the evaluation stage of the extradition
proceedings? Sclaw
A strict observance of the Extradition Law indicates that the only duty
of the Secretary of Justice is to file the extradition petition after the
request and all the supporting papers are forwarded to him by the
Secretary of Foreign Affairs. It is the latter official who is authorized
to evaluate the extradition papers, to assure their sufficiency, and
under Paragraph [3], Article 3 of the Treaty, to determine whether or
not the request is politically motivated, or that the offense is a military
offense which is not punishable under non-military penal
legislation. Ipso facto, as expressly provided in Paragraph [1], Section
5 of the Extradition Law, the Secretary of Justice has the ministerial
duty of filing the extradition papers.
However, looking at the factual milieu of the case before us, it would
appear that there was failure to abide by the provisions of Presidential
Decree No. 1069. For while it is true that the extradition request was
delivered to the Department of Foreign Affairs on June 17, 1999, the
following day or less than 24 hours later, the Department of Justice
received the request, apparently without the Department of Foreign
Affairs discharging its duty of thoroughly evaluating the same and its
accompanying documents. The statement of an assistant secretary at
the Department of Foreign Affairs that his Department, in this regard,
is merely acting as a post office, for which reason he simply forwarded
the request to the Department of Justice, indicates the magnitude of the
error of the Department of Foreign Affairs in taking lightly its
responsibilities. Thereafter, the Department of Justice took it upon
itself to determine the completeness of the documents and to evaluate
the same to find out whether they comply with the requirements laid
down in the Extradition Law and the RP-US Extradition Treaty.
Petitioner ratiocinates in this connection that although the Department
of Justice had no obligation to evaluate the extradition documents, the
Department also had to go over them so as to be able to prepare an
extradition petition (tsn, August 31, 1999, pp. 24-25). Notably, it was
also at this stage where private respondent insisted on the following:
(1) the right to be furnished the request and the supporting papers; (2)
the right to be heard which consists in having a reasonable period of
time to oppose the request, and to present evidence in support of the
opposition; and (3) that the evaluation proceedings be held in abeyance
pending the filing of private respondent's opposition to the
request. Kyle
The two Departments seem to have misread the scope of their duties
and authority, one abdicating its powers and the other enlarging its
commission. The Department of Foreign Affairs, moreover, has,
through the Solicitor General, filed a manifestation that it is adopting
the instant petition as its own, indirectly conveying the message that if
it were to evaluate the extradition request, it would not allow private
respondent to participate in the process of evaluation.
Plainly then, the record cannot support the presumption of regularity
that the Department of Foreign Affairs thoroughly reviewed the
extradition request and supporting documents and that it arrived at a
well-founded judgment that the request and its annexed documents
satisfy the requirements of law. The Secretary of Justice, eminent as he
is in the field of law, could not privately review the papers all by
himself. He had to officially constitute a panel of attorneys. How then
could the DFA Secretary or his undersecretary, in less than one day,
make the more authoritative determination?
The evaluation process, just like the extradition proceedings proper,
belongs to a class by itself. It is sui generis. It is not a criminal
investigation, but it is also erroneous to say that it is purely an exercise
of ministerial functions. At such stage, the executive authority has the
power: (a) to make a technical assessment of the completeness and
sufficiency of the extradition papers; (b) to outrightly deny the request
if on its face and on the face of the supporting documents the crimes
indicated are not extraditable; and (c) to make a determination whether
or not the request is politically motivated, or that the offense is a
military one which is not punishable under non-military penal
legislation (tsn, August 31, 1999, pp. 28-29; Article 2 & and Paragraph
[3], Article 3, RP-US Extradition Treaty). Hence, said process may be
characterized as an investigative or inquisitorial process in contrast to
a proceeding conducted in the exercise of an administrative bodys
quasi-judicial power. Ex sm
In administrative law, a quasi-judicial proceeding involves: (a) taking
and evaluation of evidence; (b) determining facts based upon the
evidence presented; and (c) rendering an order or decision supported
by the facts proved (De Leon, Administrative Law: Text and Cases,
1993 ed., p. 198, citing Morgan vs. United States, 304 U.S. 1).
Inquisitorial power, which is also known as examining or investigatory
power, is one of the determinative powers of an administrative body
which better enables it to exercise its quasi-judicial authority (Cruz,
Phil. Administrative Law, 1996 ed., p. 26). This power allows the
administrative body to inspect the records and premises, and
investigate the activities, of persons or entities coming under its
jurisdiction (Ibid., p. 27), or to require disclosure of information by
means of accounts, records, reports, testimony of witnesses,
production of documents, or otherwise (De Leon, op. cit., p. 64).
The power of investigation consists in gathering, organizing, and
analyzing evidence, which is a useful aid or tool in an administrative
agencys performance of its rule-making or quasi-judicial functions.
Notably, investigation is indispensable to prosecution.
In Ruperto v. Torres (100 Phil. 1098 [1957], unreported), the Court
had occasion to rule on the functions of an investigatory body with the
sole power of investigation. It does not exercise judicial functions and
its power is limited to investigating the facts and making findings in
respect thereto. The Court laid down the test of determining whether
an administrative body is exercising judicial functions or merely
investigatory functions: Adjudication signifies the exercise of power
and authority to adjudicate upon the rights and obligations of the
parties before it. Hence, if the only purpose for investigation is to
evaluate evidence submitted before it based on the facts and
circumstances presented to it, and if the agency is not authorized to
make a final pronouncement affecting the parties, then there is an
absence of judicial discretion and judgment. Mse sm
The above description in Ruperto applies to an administrative body
authorized to evaluate extradition documents. The body has no power
to adjudicate in regard to the rights and obligations of both the
Requesting State and the prospective extraditee. Its only power is to
determine whether the papers comply with the requirements of the law
and the treaty and, therefore, sufficient to be the basis of an extradition
petition. Such finding is thus merely initial and not final. The body has
no power to determine whether or not the extradition should be
effected. That is the role of the court. The bodys power is limited to an
initial finding of whether or not the extradition petition can be filed in
court.
It is to be noted, however, that in contrast to ordinary investigations,
the evaluation procedure is characterized by certain peculiarities.
Primarily, it sets into motion the wheels of the extradition process.
Ultimately, it may result in the deprivation of liberty of the prospective
extraditee. This deprivation can be effected at two stages: First, the
provisional arrest of the prospective extraditee pending the submission
of the request. This is so because the Treaty provides that in case of
urgency, a contracting party may request the provisional arrest of the
person sought pending presentation of the request (Paragraph [1],
Article 9, RP-US Extradition Treaty), but he shall be automatically
discharged after 60 days if no request is submitted (Paragraph 4).
Presidential Decree No. 1069 provides for a shorter period of 20 days
after which the arrested person could be discharged (Section 20[d]).
Logically, although the Extradition Law is silent on this respect, the
provisions only mean that once a request is forwarded to the
Requested State, the prospective extraditee may be continuously
detained, or if not, subsequently rearrested (Paragraph [5], Article 9,
RP-US Extradition Treaty), for he will only be discharged if no request
is submitted. Practically, the purpose of this detention is to prevent his
possible flight from the Requested State. Second, the temporary arrest
of the prospective extraditee during the pendency of the extradition
petition in court (Section 6, Presidential Decree No. 1069).
Clearly, there is an impending threat to a prospective extraditees
liberty as early as during the evaluation stage. It is not only an
imagined threat to his liberty, but a very imminent one. Sc lex
Because of these possible consequences, we conclude that the
evaluation process is akin to an administrative agency conducting an
investigative proceeding, the consequences of which are essentially
criminal since such technical assessment sets off or commences the
procedure for, and ultimately, the deprivation of liberty of a
prospective extraditee. As described by petitioner himself, this is a
"tool" for criminal law enforcement (p. 78, Rollo). In essence,
therefore, the evaluation process partakes of the nature of a criminal
investigation. In a number of cases, we had occasion to make available
to a respondent in an administrative case or investigation certain
constitutional rights that are ordinarily available only in criminal
prosecutions. Further, as pointed out by Mr. Justice Mendoza during
the oral arguments, there are rights formerly available only at the trial
stage that had been advanced to an earlier stage in the proceedings,
such as the right to counsel and the right against self-incrimination
(tsn, August 31, 1999, p. 135; Escobedo vs. Illinois, 378 U.S.
478; Gideon vs. Wainwright, 372 U.S. 335; Miranda vs. Arizona, 384
U.S. 436).
In Pascual v. Board of Medical Examiners (28 SCRA 344 [1969]), we
held that the right against self-incrimination under Section 17, Article
III of the 1987 Constitution which is ordinarily available only in
criminal prosecutions, extends to administrative proceedings which
possess a criminal or penal aspect, such as an administrative
investigation of a licensed physician who is charged with immorality,
which could result in his loss of the privilege to practice medicine if
found guilty. The Court, citing the earlier case of Cabal vs.
Kapunan (6 SCRA 1059 [1962]), pointed out that the revocation of
ones license as a medical practitioner, is an even greater deprivation
than forfeiture of property.
Cabal vs. Kapunan (supra) involved an administrative charge of
unexplained wealth against a respondent which was filed under
Republic Act No. 1379, or the Anti-Graft Law. Again, we therein
ruled that since the investigation may result in forfeiture of property,
the administrative proceedings are deemed criminal or penal, and such
forfeiture partakes the nature of a penalty. There is also the earlier case
of Almeda, Sr. vs. Perez (5 SCRA 970 [1962]), where the Court, citing
American jurisprudence, laid down the test to determine whether a
proceeding is civil or criminal: If the proceeding is under a statute such
that if an indictment is presented the forfeiture can be included in the
criminal case, such proceeding is criminal in nature, although it may
be civil in form; and where it must be gathered from the statute that the
action is meant to be criminal in its nature, it cannot be considered as
civil. If, however, the proceeding does not involve the conviction of
the wrongdoer for the offense charged, the proceeding is civil in
nature. x law
The cases mentioned above refer to an impending threat of deprivation
of ones property or property right. No less is this true, but even more
so in the case before us, involving as it does the possible deprivation of
liberty, which, based on the hierarchy of constitutionally protected
rights, is placed second only to life itself and enjoys precedence over
property, for while forfeited property can be returned or replaced, the
time spent in incarceration is irretrievable and beyond recompense.
By comparison, a favorable action in an extradition request exposes a
person to eventual extradition to a foreign country, thus saliently
exhibiting the criminal or penal aspect of the process. In this sense, the
evaluation procedure is akin to a preliminary investigation since both
procedures may have the same result the arrest and imprisonment of
the respondent or the person charged. Similar to the evaluation stage of
extradition proceedings, a preliminary investigation, which may result
in the filing of an information against the respondent, can possibly lead
to his arrest, and to the deprivation of his liberty.
Petitioners reliance on Wright vs. Court of Appeals (235 SCRA 241
[1992]) (p. 8, Petitioners Memorandum) that the extradition treaty is
neither a piece of criminal legislation nor a criminal procedural statute
is not well-taken. Wright is not authority for petitioners conclusion that
his preliminary processing is not akin to a preliminary investigation.
The characterization of a treaty in Wright was in reference to the
applicability of the prohibition against an ex post facto law. It had
nothing to do with the denial of the right to notice, information, and
hearing.
As early as 1884, the United States Supreme Court ruled that "any
legal proceeding enforced by public authority, whether sanctioned by
age or custom, or newly devised in the discretion of the legislative
power, in furtherance of the general public good, which regards and
preserves these principles of liberty and justice, must be held to be due
process of law" (Hurtado vs. California, 110 U.S. 516). Compliance
with due process requirements cannot be deemed non-compliance with
treaty commitments.
The United States and the Philippines share a mutual concern about
the suppression and punishment of crime in their respective
jurisdictions. At the same time, both States accord common due
process protection to their respective citizens. Sc
The due process clauses in the American and Philippine Constitutions
are not only worded in exactly identical language and terminology, but
more importantly, they are alike in what their respective Supreme
Courts have expounded as the spirit with which the provisions are
informed and impressed, the elasticity in their interpretation, their
dynamic and resilient character which make them capable of meeting
every modern problem, and their having been designed from earliest
time to the present to meet the exigencies of an undefined and
expanding future. The requirements of due process are interpreted in
both the United States and the Philippines as not denying to the law
the capacity for progress and improvement. Toward this effect and in
order to avoid the confines of a legal straitjacket, the courts instead
prefer to have the meaning of the due process clause "gradually
ascertained by the process of inclusion and exclusion in the course of
the decisions of cases as they arise" (Twining vs. New Jersey, 211 U.S.
78). Capsulized, it refers to "the embodiment of the sporting idea of
fair play" (Ermita-Malate Hotel and Motel Owners Association vs.
City Mayor of Manila, 20 SCRA 849 [1967]). It relates to certain
immutable principles of justice which inhere in the very idea of free
government (Holden vs. Hardy, 169 U.S. 366).
Due process is comprised of two components substantive due process
which requires the intrinsic validity of the law in interfering with the
rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing, as
well as the guarantee of being heard by an impartial and competent
tribunal (Cruz, Constitutional Law, 1993 Ed., pp. 102-106).
True to the mandate of the due process clause, the basic rights of
notice and hearing pervade not only in criminal and civil proceedings,
but in administrative proceedings as well. Non-observance of these
rights will invalidate the proceedings. Individuals are entitled to be
notified of any pending case affecting their interests, and upon notice,
they may claim the right to appear therein and present their side and to
refute the position of the opposing parties (Cruz, Phil. Administrative
Law, 1996 ed., p. 64).
In a preliminary investigation which is an administrative investigatory
proceeding, Section 3, Rule 112 of the Rules of Court guarantees the
respondents basic due process rights, granting him the right to be
furnished a copy of the complaint, the affidavits, and other supporting
documents, and the right to submit counter-affidavits and other
supporting documents within ten days from receipt thereof. Moreover,
the respondent shall have the right to examine all other evidence
submitted by the complainant. Scmis
These twin rights may, however, be considered dispensable in certain
instances, such as:
1. In proceedings where there is an urgent need for immediate action,
like the summary abatement of a nuisance per se (Article 704, Civil
Code), the preventive suspension of a public servant facing
administrative charges (Section 63, Local Government Code, B. P.
Blg. 337), the padlocking of filthy restaurants or theaters showing
obscene movies or like establishments which are immediate threats to
public health and decency, and the cancellation of a passport of a
person sought for criminal prosecution;
2. Where there is tentativeness of administrative action, that is, where
the respondent is not precluded from enjoying the right to notice and
hearing at a later time without prejudice to the person affected, such as
the summary distraint and levy of the property of a delinquent
taxpayer, and the replacement of a temporary appointee; and
3. Where the twin rights have previously been offered but the right to
exercise them had not been claimed.
Applying the above principles to the case at bar, the query may be
asked: Does the evaluation stage of the extradition proceedings fall
under any of the described situations mentioned above?
Let us take a brief look at the nature of American extradition
proceedings which are quite noteworthy considering that the subject
treaty involves the U.S. Government. Mis sc
American jurisprudence distinguishes between interstate rendition or
extradition which is based on the Extradition Clause in the U.S.
Constitution (Art. IV, 2 cl 2), and international extradition
proceedings. In interstate rendition or extradition, the governor of the
asylum state has the duty to deliver the fugitive to the demanding state.
The Extradition Clause and the implementing statute are given a
liberal construction to carry out their manifest purpose, which is to
effect the return as swiftly as possible of persons for trial to the state in
which they have been charged with crime (31A Am Jur 2d 754-755).
In order to achieve extradition of an alleged fugitive, the requisition
papers or the demand must be in proper form, and all the elements or
jurisdictional facts essential to the extradition must appear on the face
of the papers, such as the allegation that the person demanded was in
the demanding state at the time the offense charged was committed,
and that the person demanded is charged with the commission of the
crime or that prosecution has been begun in the demanding state
before some court or magistrate (35 C.J.S. 406-407). The extradition
documents are then filed with the governor of the asylum state, and
must contain such papers and documents prescribed by statute, which
essentially include a copy of the instrument charging the person
demanded with a crime, such as an indictment or an affidavit made
before a magistrate. Statutory requirements with respect to said
charging instrument or papers are mandatory since said papers are
necessary in order to confer jurisdiction on the governor of the asylum
state to effect the extradition (35 C.J.S. 408-410). A statutory
provision requiring duplicate copies of the indictment, information,
affidavit, or judgment of conviction or sentence and other
instruments accompanying the demand or requisitions be furnished
and delivered to the fugitive or his attorney is directory. However, the
right being such a basic one has been held to be a right mandatory
on demand (Ibid., p. 410, citing Ex parte Moore, 256 S.W. 2d 103,
158 Tex. Cr. 407 and Ex parte Tucker, Cr., 324, S.W.2d
853). Mis spped
In international proceedings, extradition treaties generally provide for
the presentation to the executive authority of the Requested State of a
requisition or demand for the return of the alleged offender, and the
designation of the particular officer having authority to act in behalf of
the demanding nation (31A Am Jur 2d 815).
In petitioners memorandum filed on September 15, 1999, he attached
thereto a letter dated September 13, 1999 from the Criminal Division
of the U.S. Department of Justice, summarizing the U.S. extradition
procedures and principles, which are basically governed by a
combination of treaties (with special reference to the RP-US
Extradition Treaty), federal statutes, and judicial decisions, to wit:
1. All requests for extradition are transmitted through the diplomatic
channel. In urgent cases, requests for the provisional arrest of an
individual may be made directly by the Philippine Department of
Justice to the U.S. Department of Justice, and vice-versa. In the event
of a provisional arrest, a formal request for extradition is transmitted
subsequently through the diplomatic channel.
2. The Department of State forwards the incoming Philippine
extradition request to the Department of Justice. Before doing so, the
Department of State prepares a declaration confirming that a formal
request has been made, that the treaty is in full force and effect, that
under Article 17 thereof the parties provide reciprocal legal
representation in extradition proceedings, that the offenses are covered
as extraditable offenses under Article 2 thereof, and that the
documents have been authenticated in accordance with the federal
statute that ensures admissibility at any subsequent extradition hearing.
3. A judge or magistrate judge is authorized to issue a warrant for the
arrest of the prospective extraditee (18 U.S.C. 3184). Said judge or
magistrate is authorized to hold a hearing to consider the evidence
offered in support of the extradition request (Ibid.)
4. At the hearing, the court must determine whether the person arrested
is extraditable to the foreign country. The court must also determine
that (a) it has jurisdiction over the defendant and jurisdiction to
conduct the hearing; (b) the defendant is being sought for offenses for
which the applicable treaty permits extradition; and (c) there is
probable cause to believe that the defendant is the person sought and
that he committed the offenses charged (Ibid.) Spped
5. The judge or magistrate judge is vested with jurisdiction to certify
extraditability after having received a "complaint made under oath,
charging any person found within his jurisdiction" with having
committed any of the crimes provided for by the governing treaty in
the country requesting extradition (Ibid.) [In this regard, it is noted that
a long line of American decisions pronounce that international
extradition proceedings partake of the character of a preliminary
examination before a committing magistrate, rather than a trial of the
guilt or innocence of the alleged fugitive (31A Am Jur 2d 826).]
6. If the court decides that the elements necessary for extradition are
present, it incorporates its determinations in factual findings and
conclusions of law and certifies the persons extraditability. The court
then forwards this certification of extraditability to the Department of
State for disposition by the Secretary of State. The ultimate decision
whether to surrender an individual rests with the Secretary of State (18
U.S.C. 3186).
7. The subject of an extradition request may not litigate questions
concerning the motives of the requesting government in seeking his
extradition. However, a person facing extradition may present
whatever information he deems relevant to the Secretary of State, who
makes the final determination whether to surrender an individual to the
foreign government concerned.
From the foregoing, it may be observed that in the United States,
extradition begins and ends with one entity the Department of State
which has the power to evaluate the request and the extradition
documents in the beginning, and, in the person of the Secretary of
State, the power to act or not to act on the courts determination of
extraditability. In the Philippine setting, it is the Department of
Foreign Affairs which should make the initial evaluation of the
request, and having satisfied itself on the points earlier mentioned (see
pp. 10-12), then forwards the request to the Department of Justice for
the preparation and filing of the petition for extradition. Sadly,
however, the Department of Foreign Affairs, in the instant case,
perfunctorily turned over the request to the Department of Justice
which has taken over the task of evaluating the request as well as
thereafter, if so warranted, preparing, filing, and prosecuting the
petition for extradition. Jo spped
Private respondent asks what prejudice will be caused to the U.S.
Government should the person sought to be extradited be given due
process rights by the Philippines in the evaluation stage. He
emphasizes that petitioners primary concern is the possible delay in the
evaluation process.
We agree with private respondents citation of an American Supreme
Court ruling:
The establishment of prompt efficacious procedures to
achieve legitimate state ends is a proper state interest
worthy of cognizance in constitutional
adjudication. But the Constitution recognizes higher
 values than speed and efficiency. Indeed, one might
fairly say of the Bill of Rights in general, and the Due
Process Clause, in particular, that they were designed to
protect the fragile values of a vulnerable citizenry from
the overbearing concern for efficiency and efficacy that
may characterize praiseworthy government officials no
less, and perhaps more, than mediocre ones.
(Stanley vs. Illinois, 404 U.S. 645, 656)
The United States, no doubt, shares the same interest as
the Philippine Government that no right that of liberty
secured not only by the Bills of Rights of the
Philippines Constitution but of the United States as
well, is sacrificed at the altar of expediency.
(pp. 40-41, Private Respondents
Memorandum.) Spped jo
In the Philippine context, this Courts ruling is invoked:
One of the basic principles of the democratic system is
that where the rights of the individual are concerned,
the end does not justify the means. It is not enough that
there be a valid objective; it is also necessary that the
means employed to pursue it be in keeping with the
Constitution. Mere expediency will not excuse
constitutional shortcuts. There is no question that not
even the strongest moral conviction or the most urgent
public need, subject only to a few notable exceptions,
will excuse the bypassing of an individuals rights. It is
no exaggeration to say that a person invoking a right
guaranteed under Article III of the Constitution is a
majority of one even as against the rest of the nation
who would deny him that right (Association of Small
Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform, 175 SCRA 343, 375-376 [1989]).
There can be no dispute over petitioners argument that extradition is a
tool of criminal law enforcement. To be effective, requests for
extradition or the surrender of accused or convicted persons must be
processed expeditiously. Nevertheless, accelerated or fast-tracked
proceedings and adherence to fair procedures are, however, not always
incompatible. They do not always clash in discord. Summary does not
mean precipitous haste. It does not carry a disregard of the basic
principles inherent in "ordered liberty." Miso
Is there really an urgent need for immediate action at the evaluation
stage? At that point, there is no extraditee yet in the strict sense of the
word. Extradition may or may not occur. In interstate extradition, the
governor of the asylum state may not, in the absence of mandatory
statute, be compelled to act favorably (37 C.J.S. 387) since after a
close evaluation of the extradition papers, he may hold that federal and
statutory requirements, which are significantly jurisdictional, have not
been met (31 Am Jur 2d 819). Similarly, under an extradition treaty,
the executive authority of the requested state has the power to deny the
behest from the requesting state. Accordingly, if after a careful
examination of the extradition documents the Secretary of Foreign
Affairs finds that the request fails to meet the requirements of the law
and the treaty, he shall not forward the request to the Department of
Justice for the filing of the extradition petition since non-compliance
with the aforesaid requirements will not vest our government with
jurisdiction to effect the extradition.
In this light, it should be observed that the Department of Justice
exerted notable efforts in assuring compliance with the requirements
of the law and the treaty since it even informed the U.S. Government
of certain problems in the extradition papers (such as those that are in
Spanish and without the official English translation, and those that are
not properly authenticated). In fact, petitioner even admits that
consultation meetings are still supposed to take place between the
lawyers in his Department and those from the U.S. Justice Department.
With the meticulous nature of the evaluation, which cannot just be
completed in an abbreviated period of time due to its intricacies, how
then can we say that it is a proceeding that urgently necessitates
immediate and prompt action where notice and hearing can be
dispensed with?
Worthy of inquiry is the issue of whether or not there is tentativeness
of administrative action. Is private respondent precluded from
enjoying the right to notice and hearing at a later time without
prejudice to him? Here lies the peculiarity and deviant characteristic of
the evaluation procedure. On one hand, there is yet no extraditee, but
ironically on the other, it results in an administrative determination
which, if adverse to the person involved, may cause his immediate
incarceration. The grant of the request shall lead to the filing of the
extradition petition in court. The "accused" (as Section 2[c] of
Presidential Decree No. 1069 calls him), faces the threat of arrest, not
only after the extradition petition is filed in court, but even during the
evaluation proceeding itself by virtue of the provisional arrest allowed
under the treaty and the implementing law. The prejudice to the
"accused" is thus blatant and manifest.
Plainly, the notice and hearing requirements of administrative due
process cannot be dispensed with and shelved aside.
Apart from the due process clause of the Constitution, private
respondent likewise invokes Section 7 of Article III which
reads: Nex old
Sec. 7. The right of the people to information on
matters of public concern shall be recognized. Access
to official records, and to documents and papers
pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for
policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
The above provision guarantees political rights which are available to
citizens of the Philippines, namely: (1) the right to information on
matters of public concern, and (2) the corollary right of access to
official records and documents. The general right guaranteed by said
provision is the right to information on matters of public concern. In
its implementation, the right of access to official records is likewise
conferred. These cognate or related rights are "subject to limitations as
may be provided by law" (Bernas, The 1987 Phil. Constitution A
Reviewer-Primer, 1997 ed., p. 104) and rely on the premise that
ultimately it is an informed and critical public opinion which alone can
protect the values of democratic government (Ibid.).
Petitioner argues that the matters covered by private respondents
letter-request dated July 1, 1999 do not fall under the guarantee of the
foregoing provision since the matters contained in the documents
requested are not of public concern. On the other hand, private
respondent argues that the distinction between matters vested with
public interest and matters which are of purely private interest only
becomes material when a third person, who is not directly affected by
the matters requested, invokes the right to information. However, if the
person invoking the right is the one directly affected thereby, his right
to information becomes absolute.
The concept of matters of public concern escapes exact definition.
Strictly speaking, every act of a public officer in the conduct of the
governmental process is a matter of public concern (Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 336). This
concept embraces a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives or simply
because such matters arouse the interest of an ordinary citizen
(Legaspi v. Civil Service Commission, 150 SCRA 530 [1987]). Hence,
the real party in interest is the people and any citizen has
"standing".Mani kx
When the individual himself is involved in official government action
because said action has a direct bearing on his life, and may either
cause him some kind of deprivation or injury, he actually invokes the
basic right to be notified under Section 1 of the Bill of Rights and not
exactly the right to information on matters of public concern. As to an
accused in a criminal proceeding, he invokes Section 14, particularly
the right to be informed of the nature and cause of the accusation
against him.
The right to information is implemented by the right of access to
information within the control of the government (Bernas, The 1987
Constitution of the Republic of the Philippines, 1996 ed., p. 337). Such
information may be contained in official records, and in documents
and papers pertaining to official acts, transactions, or decisions.
In the case at bar, the papers requested by private respondent pertain to
official government action from the U. S. Government. No official
action from our country has yet been taken. Moreover, the papers have
some relation to matters of foreign relations with the U. S.
Government. Consequently, if a third party invokes this constitutional
provision, stating that the extradition papers are matters of public
concern since they may result in the extradition of a Filipino, we are
afraid that the balance must be tilted, at such particular time, in favor
of the interests necessary for the proper functioning of the government.
During the evaluation procedure, no official governmental action of
our own government has as yet been done; hence the invocation of the
right is premature. Later, and in contrast, records of the extradition
hearing would already fall under matters of public concern, because
our government by then shall have already made an official decision to
grant the extradition request. The extradition of a fellow Filipino
would be forthcoming.
We now pass upon the final issue pertinent to the subject matter of the
instant controversy: Would private respondents entitlement to notice
and hearing during the evaluation stage of the proceedings constitute a
breach of the legal duties of the Philippine Government under the RP-
Extradition Treaty? Assuming the answer is in the affirmative, is there
really a conflict between the treaty and the due process clause in the
Constitution?
First and foremost, let us categorically say that this is not the proper
time to pass upon the constitutionality of the provisions of the RP-US
Extradition Treaty nor the Extradition Law implementing the same.
We limit ourselves only to the effect of the grant of the basic rights of
notice and hearing to private respondent on foreign
relations. Maniks
The rule of pacta sunt servanda, one of the oldest and most
fundamental maxims of international law, requires the parties to a
treaty to keep their agreement therein in good faith. The observance of
our country's legal duties under a treaty is also compelled by Section 2,
Article II of the Constitution which provides that "[t]he Philippines
renounces war as an instrument of national policy, adopts the generally
accepted principles of international law as part of the law of the land,
and adheres to the policy of peace, equality, justice, freedom,
cooperation and amity with all nations." Under the doctrine of
incorporation, rules of international law form part of the law of the
land and no further legislative action is needed to make such rules
applicable in the domestic sphere (Salonga & Yap, Public International
Law, 1992 ed., p. 12).
The doctrine of incorporation is applied whenever municipal tribunals
(or local courts) are confronted with situations in which there appears
to be a conflict between a rule of international law and the provisions
of the constitution or statute of the local state. Efforts should first be
exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the
generally accepted principles of international law in observance of the
Incorporation Clause in the above-cited constitutional provision
(Cruz, Philippine Political Law, 1996 ed., p. 55). In a situation,
however, where the conflict is irreconcilable and a choice has to be
made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the
municipal courts (Ichong vs. Hernandez, 101 Phil. 1155
[1957]; Gonzales vs. Hechanova, 9 SCRA 230 [1963]; In re: Garcia, 2
SCRA 984 [1961]) for the reason that such courts are organs of
municipal law and are accordingly bound by it in all circumstances
(Salonga & Yap, op. cit., p. 13). The fact that international law has
been made part of the law of the land does not pertain to or imply the
primacy of international law over national or municipal law in the
municipal sphere. The doctrine of incorporation, as applied in most
countries, decrees that rules of international law are given equal
standing with, but are not superior to, national legislative enactments.
Accordingly, the principle lex posterior derogat priori takes effect a
treaty may repeal a statute and a statute may repeal a treaty. In states
where the constitution is the highest law of the land, such as the
Republic of the Philippines, both statutes and treaties may be
invalidated if they are in conflict with the constitution
(Ibid.). Manikan
In the case at bar, is there really a conflict between international law
and municipal or national law? En contrario, these two components of
the law of the land are not pitted against each other. There is no
occasion to choose which of the two should be upheld. Instead, we see
a void in the provisions of the RP-US Extradition Treaty, as
implemented by Presidential Decree No. 1069, as regards the basic due
process rights of a prospective extraditee at the evaluation stage of
extradition proceedings. From the procedures earlier abstracted, after
the filing of the extradition petition and during the judicial
determination of the propriety of extradition, the rights of notice and
hearing are clearly granted to the prospective extraditee. However,
prior thereto, the law is silent as to these rights. Reference to the U.S.
extradition procedures also manifests this silence.
Petitioner interprets this silence as unavailability of these rights.
Consequently, he describes the evaluation procedure as an "ex
parte technical assessment" of the sufficiency of the extradition
request and the supporting documents.
We disagree.
In the absence of a law or principle of law, we must apply the rules of
fair play. An application of the basic twin due process rights of notice
and hearing will not go against the treaty or the implementing law.
Neither the Treaty nor the Extradition Law precludes these rights from
a prospective extraditee. Similarly, American jurisprudence and
procedures on extradition pose no proscription. In fact, in interstate
extradition proceedings as explained above, the prospective extraditee
may even request for copies of the extradition documents from the
governor of the asylum state, and if he does, his right to be supplied
the same becomes a demandable right (35 C.J.S. 410).
Petitioner contends that the United States requested the Philippine
Government to prevent unauthorized disclosure of confidential
information. Hence, the secrecy surrounding the action of the
Department of Justice Panel of Attorneys. The confidentiality
argument is, however, overturned by petitioners revelation that
everything it refuses to make available at this stage would be
obtainable during trial. The Department of Justice states that the U.S.
District Court concerned has authorized the disclosure of certain grand
jury information. If the information is truly confidential, the veil of
secrecy cannot be lifted at any stage of the extradition proceedings.
Not even during trial. Oldmis o
A libertarian approach is thus called for under the premises.
One will search in vain the RP-US Extradition Treaty, the Extradition
Law, as well as American jurisprudence and procedures on extradition,
for any prohibition against the conferment of the two basic due process
rights of notice and hearing during the evaluation stage of the
extradition proceedings. We have to consider similar situations in
jurisprudence for an application by analogy.
Earlier, we stated that there are similarities between the evaluation
process and a preliminary investigation since both procedures may
result in the arrest of the respondent or the prospective extraditee. In
the evaluation process, a provisional arrest is even allowed by the
Treaty and the Extradition Law (Article 9, RP-US Extradition Treaty;
Sec. 20, Presidential Decree No. 1069). Following petitioners theory,
because there is no provision of its availability, does this imply that for
a period of time, the privilege of the writ of habeas corpus is
suspended, despite Section 15, Article III of the Constitution which
states that "[t]he privilege of the writ of habeas corpus shall not be
suspended except in cases of invasion or rebellion when the public
safety requires it"? Petitioners theory would also infer that bail is not
available during the arrest of the prospective extraditee when the
extradition petition has already been filed in court since Presidential
Decree No. 1069 does not provide therefor, notwithstanding Section
13, Article III of the Constitution which provides that "[a]ll persons,
except those charged with offenses punishable by reclusion
perpetua when evidence of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on recognizance as may
be provided by law. The right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is suspended " Can
petitioner validly argue that since these contraventions are by virtue of
a treaty and hence affecting foreign relations, the aforestated
guarantees in the Bill of Rights could thus be subservient
thereto? Ncm
The basic principles of administrative law instruct us that "the essence
of due process in administrative proceedings is an opportunity to
explain ones side or an opportunity to seek reconsideration of the
actions or ruling complained of (Mirano vs. NLRC, 270 SCRA 96
[1997]; Padilla vs. NLRC, 273 SCRA 457 [1997]; PLDT vs. NLRC,
276 SCRA 1 [1997]; Helpmate, Inc. vs. NLRC, 276 SCRA 315
[1997]; Aquinas School vs. Magnaye, 278 SCRA 602 [1997]; Jamer
vs. NLRC, 278 SCRA 632 [1997]). In essence, procedural due process
refers to the method or manner by which the law is enforced (Corona
vs. United Harbor Pilots Association of the Phils., 283 SCRA 31
[1997]). This Court will not tolerate the least disregard of
constitutional guarantees in the enforcement of a law or treaty.
Petitioners fears that the Requesting State may have valid objections to
the Requested States non-performance of its commitments under the
Extradition Treaty are insubstantial and should not be given paramount
consideration.
How then do we implement the RP-US Extradition Treaty? Do we
limit ourselves to the four corners of Presidential Decree No. 1069?
Of analogous application are the rulings in Government Service
Insurance System vs. Court of Appeals (201 SCRA 661 [1991])
and Go vs. National Police Commission (271 SCRA 447 [1997])
where we ruled that in summary proceedings under Presidential
Decree No. 807 (Providing for the Organization of the Civil Service
Commission in Accordance with Provisions of the Constitution,
Prescribing its Powers and Functions and for Other Purposes), and
Presidential Decree No. 971 (Providing Legal Assistance for Members
of the Integrated National Police who may be charged for Service-
Connected Offenses and Improving the Disciplinary System in the
Integrated National Police, Appropriating Funds Therefor and for
other purposes), as amended by Presidential Decree No. 1707,
although summary dismissals may be effected without the necessity of
a formal investigation, the minimum requirements of due process still
operate. As held in GSIS vs. Court of Appeals:
... [I]t is clear to us that what the opening sentence of
Section 40 is saying is that an employee may be
removed or dismissed even without formal
investigation, in certain instances. It is equally clear to
us that an employee must be informed of the charges
preferred against him, and that the normal way by
which the employee is so informed is by furnishing him
with a copy of the charges against him. This is a basic
procedural requirement that a statute cannot dispense
with and still remain consistent with the constitutional
provision on due process. The second minimum
requirement is that the employee charged with some
misfeasance or malfeasance must have a reasonable
opportunity to present his side of the matter, that is to
say, his defenses against the charges levelled against
him and to present evidence in support of his
defenses. Ncmmis
(at p. 671)
Said summary dismissal proceedings are also non-litigious in nature,
yet we upheld the due process rights of the respondent.
In the case at bar, private respondent does not only face a clear and
present danger of loss of property or employment, but of liberty itself,
which may eventually lead to his forcible banishment to a foreign land.
The convergence of petitioners favorable action on the extradition
request and the deprivation of private respondents liberty is easily
comprehensible.
We have ruled time and again that this Courts equity jurisdiction,
which is aptly described as "justice outside legality," may be availed of
only in the absence of, and never against, statutory law or judicial
pronouncements (Smith Bell & Co., Inc. vs. Court of Appeals, 267
SCRA 530 [1997]; David-Chan vs. Court of Appeals, 268 SCRA 677
[1997]). The constitutional issue in the case at bar does not even call
for "justice outside legality," since private respondents due process
rights, although not guaranteed by statute or by treaty, are protected by
constitutional guarantees. We would not be true to the organic law of
the land if we choose strict construction over guarantees against the
deprivation of liberty. That would not be in keeping with the principles
of democracy on which our Constitution is premised.
Verily, as one traverses treacherous waters of conflicting and opposing
currents of liberty and government authority, he must ever hold the oar
of freedom in the stronger arm, lest an errant and wayward course be
laid.

WHEREFORE, in view of the foregoing premises, the instant

petition is hereby DISMISSED for lack of merit. Petitioner is ordered
to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which
to file his comment with supporting evidence. The incidents in Civil
Case No. 99-94684 having been rendered moot and academic by this
decision, the same is hereby ordered dismissed.

SO ORDERED. 6/


EN BANC
G.R. No. 211362, February 24, 2015
FIRST CLASS CADET ALDRIN JEFF P. CUDIA OF THE PHILIPPINE
MILITARY ACADEMY, REPRESENTED BY HIS FATHER RENATO P. CUDIA,
WHO ALSO ACTS ON HIS OWN BEHALF, AND BERTENI CATALUÑA
CAUSING, Petitioners, v. THE SUPERINTENDENT OF THE PHILIPPINE
MILITARY ACADEMY (PMA), THE HONOR COMMITTEE (HC) OF 2014 OF
THE PMA AND HC MEMBERS, AND THE CADET REVIEW AND APPEALS
BOARD (CRAB), Respondents.
FILIPINA P. CUDIA, IN BEHALF OF CADET FIRST CLASS ALDRIN JEFF P.
CUDIA, AND ON HER OWN BEHALF, Petitioner-Intervenor.
DECISION
PERALTA, J.:
The true test of a cadet’s character as a leader rests on his personal
commitment to uphold what is morally and ethically righteous at the most
critical and trying times, and at the most challenging circumstances. When a
cadet must face a dilemma between what is true and right as against his
security, well-being, pleasures and comfort, or dignity, what is at stake is his
honor and those that [define] his values. A man of an honorable character
does not think twice and chooses the fore. This is the essence of and the Spirit
of the Honor Code – it is championing truth and righteousness even if it may
mean the surrender of one’s basic rights and privileges.1
The Procedural Antecedents
Six days prior to the March 16, 2014 graduation ceremonies of the Philippine
Military Academy (PMA), petitioners Renato P. Cudia, acting for himself and in
behalf of his son, Cadet First Class Aldrin Jeff P. Cudia (Cadet 1CL Cudia), and
Berteni Cataluña Causing filed this petition for certiorari, prohibition, and
mandamus with application for extremely urgent temporary restraining order
(TRO).2chanroblesvirtuallawlibrary
In a Resolution dated March 17, 2014, the Court denied the prayer for TRO
and, instead, required respondents to file their comment on the petition.3 chanroblesvirtuallawlibrary
On March 25, 2014, Filipina P. Cudia, acting for herself and in behalf of her son
Cadet 1CL Cudia, filed a motion for leave to intervene, attaching thereto the
petition-in-intervention.4 Per Resolution dated March 31, 2014, the Court
granted the motion and resolved to await respondents’ comment on the
petition.5
chanroblesvirtuallawlibrary
A manifestation was then filed by petitioners on April 3, 2014, recommending
the admission of the petition-in-intervention and adopting it as an integral part
of their petition.6 On May 20, 2014, petitioner-intervenor filed a manifestation
with motion for leave to admit the Final Investigation Report of the
Commission on Human Rights (CHR) dated April 25, 2014.7 The Report8 was
relative to CHR-CAR Case No. 2014-0029 filed by the spouses Renato and
Filipina Cudia (Spouses Cudia), for themselves and in behalf of their son,
against the PMA Honor Committee (HC) members and Major Vladimir P.
Gracilla (Maj. Gracilla)9 for violation of Cadet 1CL Cudia’s rights to due process,
education, and privacy of communication. Subsequently, on June 3, 2014,
petitioners filed a motion for leave to adopt the submission of the CHR
Report.10 The manifestation was granted and the motion was noted by the
Court in its Resolution dated July 7, 2014.
After filing three motions for extension of time,11 respondents filed their
Consolidated Comment12 on June 19, 2014. In a motion, petitioner-intervenor
filed a Reply, which was later adopted by petitioners.13Submitted as Annex “A”
of the Reply was a copy of the CHR Resolution dated May 22, 2014 regarding
CHR-CAR Case No. 2014-0029.14 We noted and granted the same on August
11, 2014 and October 13, 2014.
Petitioner-intervenor twice filed a manifestation with motion to submit the case
for early resolution,15which the Court noted in a Resolution dated August 11,
2014 and October 13, 2014.16 chanroblesvirtuallawlibrary
The Facts
Cadet 1CL Cudia was a member of Siklab Diwa Class of 2014 of the PMA, the
country’s premiere military academy located at Fort Gregorio del Pilar in
Baguio City. He belonged to the “A” Company and was the Deputy Baron of his
class. As claimed by petitioners and petitioner-intervenor (hereinafter
collectively called “petitioners,” unless otherwise indicated), he was supposed
to graduate with honors as the class salutatorian, receive the Philippine Navy
Saber as the top Navy cadet graduate, and be commissioned as an ensign of
the Philippine Navy.
On November 14, 2013, the combined classes of the Navy and Air Force 1CL
cadets had a lesson examination (LE) on Operations Research (OR432) under
Dr. Maria Monica C. Costales (Dr. Costales) at the PMAFI Room. Per published
schedule from the Headquarters Academic Group, the 4th period class in OR432
was from 1:30-3:00 p.m. (1330H-1500H), while the 5th period class in ENG412
was from 3:05-4:05 p.m. (1505H-1605H).
Five days after, Professor Juanita Berong (Prof. Berong) of the 5th period class
issued a Delinquency Report (DR) against Cadet 1CL Cudia because he was
“[l]ate for two (2) minutes in his Eng 412 class x x x.”17 Cadets 1CL Narciso,
Arcangel, Miranda, Pontillas, Diaz, Otila, and Dela Cruz were also reported late
for five minutes.18 chanroblesvirtuallawlibrary
On December 4, 2013, the DRs reached the Department of Tactical Officers.
They were logged and transmitted to the Company Tactical Officers (CTO) for
explanation of the concerned cadets. Two days later, Cadet 1CL Cudia received
his DR.
In his Explanation of Report dated December 8, 2013, Cadet 1CL Cudia
reasoned out that: “I came directly from OR432 Class. We were dismissed a bit
late by our instructor Sir.”19 chanroblesvirtuallawlibrary
On December 19, 2013, Major Rommel Dennis Hindang (Maj. Hindang), the
CTO of Cadet 1CL Cudia, meted out to him the penalty of 11 demerits and 13
touring hours. Immediately, Cadet 1CL Cudia clarified with Maj. Hindang his
alleged violation. The latter told him that the basis of the punishment was the
result of his conversation with Dr. Costales, who responded that she never
dismissed her class late, and the protocol to dismiss the class 10-15 minutes
earlier than scheduled. When he expressed his intention to appeal and seek
reconsideration of the punishment, he was advised to put the request in
writing. Hence, that same day, Cadet 1CL Cudia addressed his Request for
Reconsideration of Meted Punishment to Maj. Benjamin L. Leander, Senior
Tactical Officer (STO), asserting:
I strongly believe that I am not in control of the circumstances, our 4th period
class ended 1500H and our 5th period class, which is ENG412, started 1500H
also. Immediately after 4th period class, I went to my next class without any
intention of being late Sir.20
A day after, Maj. Leander instructed Maj. Hindang to give his comments on the
request of Cadet 1CL Cudia and to indicate if there were other cadets belonging
to the same section who were also late.
On December 28, 2013, Maj. Hindang submitted his reply to Maj. Leander
pointing out that, based on his investigation, the 4th period class was not
dismissed late. As a result, Maj. Leander sustained the penalty imposed.
Petitioners alleged that Cadet 1CL Cudia came to know of the denial of his
request only on January 24, 2014 upon inquiry with Maj. Leander.
Several days passed, and on January 7, 2014, Cadet 1CL Cudia was informed
that Maj. Hindang reported him to the HC21 for violation of the Honor Code.
The Honor Report stated: chanRoblesvirtualLawlibrary
Lying that is giving statement that perverts the truth in his written appeal,
stating that his 4th period class ended at 1500H that made him late in the
succeeding class.22
Upon asking the HC Chairman, Cadet 1CL Mike Anthony P. Mogol (Cadet 1CL
Mogol), as to what Maj. Hindang meant in his Report, Cadet 1CL Cudia learned
that it was based on Maj. Hindang’s conversations with their instructors and
classmates as well as his statement in the request for reconsideration to Maj.
Leander. He then verbally applied for and was granted an extension of time to
answer the charge against him because Dr. Costales, who could shed light on
the matter, was on emergency leave.
On January 13, 2014, Dr. Costales sent text messages to Cadet 1CL Cudia,
conveying: chanRoblesvirtualLawlibrary
Gud pm cdt cudia. Mam belandres gave me bkground na. She told me its a
report dated november. When maj hindang ask me, no time referens.
chanRoblesvirtualLawlibrary
(04:25:11 P.M.)
All the while I thot he was refering to dismisal during last day last december.
Whc i told, i wud presume they wil finish early bec its grp work. (04:29:21
P.M.)23
The next day, Cadets 1CL Cudia and Arcangel approached Dr. Costales, who
reaffirmed that she and Maj. Hindang were not in the same time reference
when the latter asked her.
Later, Cadet 1CL Cudia submitted his letter of explanation on the Honor
Report. He averred: chanRoblesvirtualLawlibrary
Sir,
We had an LE that day (14 November 2013) in OR432 class. When the first bell
rang (1455), I stood up, reviewed my paper and submitted it to my instructor,
Ms. Costales. After which, I and Cadet 1cl Arcangel asked for some query with
regards (sic) to the deductions of our previous LE. Our instructor gladly
answered our question. She then told me that she will give the copy of our
section grade, so I waited at the hallway outside the ACAD5 office, and then
she came out of the room and gave me a copy of the grades. Cadet Arcangel,
Cadet Narciso and I immediately went to our 5th period class which is ENG412.
With these statements, I would like to clarify the following: chanRoblesvirtualLawlibrary
1. How could this be lying?
2. What is wrong with the side of Maj. Hindang (why did he come
up to that honor report)?
3. What are his assumptions?
I appeal, in the name of clarity, fairness and truth[,] that my case be reopened
and carefully reviewed for I did not violate the honor code/system, I can
answer NO to both questions (Did I intend to deceive? Did I intend to take
undue advantage?) and for the following reasons: chanRoblesvirtualLawlibrary
1. The honor report of Maj. Hindang was already settled and
finalized given the fact that no face-to-face personal
conversation with Ms. Costales was conducted to clarify what
and when exactly was the issue at hand.
2. Statements of the respondents support my explanation.
3. My explanation to my appeal to my DR (Request for
reconsideration of meted punishment) further supports my
explanation in my delinquency report.
4. My understanding of the duration of the “CLASS” covers not
just a lecture in a typical classroom instruction but includes
every transaction and communication a teacher does with her
 students, especially that in our case some cadets asked for
queries, and I am given instruction by which (sic) were
directly related to our CLASS. Her transaction and
communication with our other classmates may have already
ended but ours extended for a little bit.
I agree and consider that because Cadet CUDIA is under my
instruction to wait, and the other cadets still have business
with me, it is reasonable enough for him to say that “Our class
was dismissed a bit late” (dealing with matter of seconds or a
minute particularly 45 seconds to 1 minute and 30 seconds)
And with concern to (sic) OR432 class, I can say it ended on
time (1500H).
(signed)
M. COSTALES
w/ attached certification
5. I was transparent and honest in explaining the 2-minute delay
and did not attempt to conceal anything that happened or I
did.
6. Furthermore, CPT DULAWAN PA, the Tactical Officer of Hawk
Company[,] and I had a conversation with regards (sic) to the
same matter for which he can give important points of my
case.
7. Cadet 1cl DIAZ “D” Co can also stand as a witness that I
waited for Ms. Costales.24
On January 15, 2014, the HC constituted a team to conduct a preliminary
investigation on the reported honor violation of Cadet 1CL Cudia. The Foxtrot
Company was designated as the investigating team and was composed of
Cadet 1CL Hasigan as Presiding Officer, and Cadets 1CL Mogol, 1CL Raguindin,
2CL Gumilab, 2CL Saldua, 3CL Espejo, and 3CL Poncardas as members.25 Soon
after, the team submitted its Preliminary Investigation Report recommending
that the case be formalized.
The formal investigation against Cadet 1CL Cudia then ensued. The Presiding
Officer was Cadet 1CL Rhona K. Salvacion, while the nine (9) voting members
were Cadets 1CL Jairus O. Fantin, 1CL Bryan Sonny S. Arlegui, 1CL Kim Adrian
R. Martal, 1CL Jeanelyn P. Cabrido, 1CL Shu-Aydan G. Ayada, 1CL Dalton John
G. Lagura, 2CL Renato A. Cariño, Jr., 2CL Arwi C. Martinez, and 2CL Niko
Angelo C. Tarayao.26 Acting as recorders tasked to document the entire
proceedings were 4CL Jennifer A. Cuarteron and 3CL Leoncio Nico A. de Jesus
II.27 Those who observed the trial were Cadets 1CL Balmeo, Dag-uman,
Hasigan, Raguindin, Paulino, Arcangel, and Narciso; Cadets 2CL Jocson and
Saldua, Jr.; and Cadet 3CL Umaguing.28 chanroblesvirtuallawlibrary
The first formal hearing started late evening of January 20, 2014 and lasted
until early morning the next day. Cadet 1CL Cudia was informed of the charge
against him, as to which he pleaded “Not Guilty.” Among those who testified
were Cadet 1CL Cudia, Maj. Hindang, and Cadets 1CL Arcangel and Narciso. On
the second night of the hearing held on January 21, 2014, Cadet 1CL Cudia
again appeared and was called to the witness stand along with Cadets Brit and
Barrawed. Dr. Costales also testified under oath via phone on a loudspeaker.
Deliberation among the HC voting members followed. After that, the ballot
sheets were distributed. The members cast their votes through secret balloting
and submitted their accomplished ballot sheets together with their written
justification. The result was 8-1 in favor of a guilty verdict. Cadet 1CL Dalton
John G. Lagura (Cadet 1CL Lagura) was the lone dissenter. Allegedly, upon the
order of HC Chairman Cadet 1CL Mogol, the Presiding Officer and voting
members went inside a chamber adjoining the court room for further
deliberation. After several minutes, they went out and the Presiding Officer
announced the 9-0 guilty verdict. Cadet 1CL Cudia, who already served nine
(9) touring hours, was then informed of the unanimous votes finding him guilty
of violating the Honor Code. He was immediately placed in the PMA Holding
Center until the resolution of his appeal.
On January 24, 2014, Cadet 1CL Cudia filed a written appeal addressed to the
HC Chairman, the full text of which stated: chanRoblesvirtualLawlibrary
WRITTEN APPEAL
14 NOVEMBER 2013
This is when I was reported for “Late for two (2) minutes in Eng412 class”, my
explanation on this delinquency report when I received it, is that “Our class
was dismissed a (little) bit late and I came directly from 4th period class... etc”.
Knowing the fact that in my delinquency report, it is stated that ENG412
classes started 1500H and I am late for two minutes, it is logical enough for I
(sic) to interpret it as “I came 1502H during that class”. This is the explanation
that came into my mind that time. (I just cannot recall the exact words I used
in explaining that delinquency report, but what I want to say is that I have no
intention to be late). In my statements, I convey my message as “since I was
not the only one left in that class, and the instructor is with us, I used the term
“CLASS”, I used the word “DISMISSED” because I was under instruction (to
wait for her to give the section grade) by the instructor, Ms. Costales. The
other cadets (1CL MIRANDA, 1CL ARCANGEL) still have queries and business
with her that made me decide to use the word “CLASS”, while the others who
don’t have queries and business with her (ex: 1CL NARCISO and 1CL DIAZ)
were also around.
Note: chanRoblesvirtualLawlibrary
The four named cadets were also reported late.
Reference: Para 171.0. (Leaving the Classroom Prior to Dismissal Time)(Sec
XVII, CCAFPR s2008)
It is stated in this reference that “Cadets shall not linger in the place of
instruction after the section has been dismissed. EXCEPT when told or allowed
to do so by the instructor or by any competent authority for official purposes.”
The instruction by Ms. Costales was given to me before the two bells rang
(indicating the end of class hour, 1500H). I waited for her for about 45 seconds
to 1 minute and 30 seconds, that made me to decide to write “a little bit late”
in my explanation. Truly, the class ENDED 1500H but due to official purpose
(instruction by Ms. Costales to wait) and the conflict in academic schedule (to
which I am not in control of the circumstances, 4th PD class 1330H-1500H and
5th PD class 1500H-1600H), and since Ms. Costales, my other classmates, and
I were there, I used the word “CLASS”.
19 December 2013
I was informed that my delinquency report was awarded, 11 Demerits and 13
Touring hours. Not because I don’t want to serve punishment, but because I
know I did nothing wrong, I obeyed instruction, and believing that my reason
is justifiable and valid, that is why I approached our tactical officer, MAJ
HINDANG PAF, to clarify and ask why it was awarded that day.
In our conversation, he said that he had a phone call to my instructor and he
even added that they have a protocol to dismiss the class, 15 minutes or 10
minutes before 1500H. I explained: chanRoblesvirtualLawlibrary
Sir, I strongly believe that I am not in control of the circumstances, our
4th period class ended 1500H and our 5th period class, which is ENG412,
started 1500H also. Immediately after 4th period class, I went to my next class
without any intention of being late Sir.
These statements are supplementary to my explanation in my delinquency
report, in here, I specified the conflict in the schedule and again, I have no
intention to be late. After explaining it further with these statements, my
tactical officer said that since I was reported in a written form, I should make
an appeal in a written form. Thinking that he already understood what I want
to say, I immediately made an appeal that day stating the words that I used in
having conversation with him.29
Attached to the written appeal was a Certification dated January 24, 2014,
wherein Dr. Costales attested: chanRoblesvirtualLawlibrary
1. That Cadet MIRANDA, ARCANGEL, [and] NARCISO was (sic)
with Cadet CUDIA in making query about their latest grades in
OR432 and/or results of UE1 outside the ACADS office. The
following facts may explain their queries on 14 November
2013: chanRoblesvirtualLawlibrary
a. That I held my class in the PMAFI room instead of
room 104.
b. That OR432 releases grades every Wednesday and
cadets are informed during Thursday, either in class
or posted grades in the bulletin board (grades
released was [sic] based on the previous LEs: latest
LE before UE was Decision Trees).
c. That UE papers were already checked but not yet
recorded due to (sic) other cadets have not taken the
UE. Cadets were allowed to verify scores but not to
look at the papers.
d. Last 23 January 2014, Captain Dulawan clarified if
indeed Cadet NARCISO and ARCANGEL verified
grades. The two cadets said that they verified
something with me after the OR432 class and they
were with Cadet CUDIA. That the statements of the
three (3) cadets are all the same and consistent,
thus[,] I honor that as true.
2. As to the aspect of dismissing late, I could not really account
for the specific time that I dismissed the class. To this date, I
[cannot] really recall an account that is more than two (2)
months earlier. According to my records, there was a lecture
followed by an LE during (sic) on 14 November 2013. To
determine the time of my dismissal, maybe it can be verified
with the other members of class I was handling on that said
date.30
Respondents contend that the HC denied the appeal the same day, January 24,
as it found no reason to conduct a re-trial based on the arguments and
evidence presented.31 Petitioners, however, claim that the written appeal was
not acted upon until the filing of the petition-in-intervention.32
chanroblesvirtuallawlibrary
From January 25 to February 7, 2014, respondents allege that the
Headquarters Tactics Group (HTG) conducted an informal review to check the
findings of the HC. During the course of the investigation, Prof. Berong was
said to have confirmed with the Officer-in-Charge of the HC that classes
started as scheduled (i.e., 3:05 p.m. or 1505H), and that Cadet 1CL Barrawed,
the acting class marcher of ENG412, verified before the Commandant,
Assistant Commandant, and STO that the class started not earlier than
scheduled.
Meantime, on February 4, 2014, the OIC of the HC forwarded the Formal
Investigation Report to the Staff Judge Advocate (SJA) for review. The next
day, the SJA found the report to be legally in order.
On February 8, 2014, Colonel Rozzano D. Briguez (Col. Briguez), the
Commandant of Cadets, affirmed the HC findings and recommended to Vice
Admiral Edgar Abogado, then PMA Superintendent, the separation from the
PMA of Cadet 1CL Cudia for violation of the First Tenet of the Honor Code
(Lying, pursuant to Sec. VII.12.b of the CCAFPR S-2008). On the same date,
Special Orders No. 26 was issued by the PMA Headquarters placing Cadet 1CL
Cudia on indefinite leave of absence without pay and allowances effective
February 10, 2014 pending approval of his separation by the AFP-GHQ, barring
him from future appointment and/or admission as cadet, and not permitting
him to qualify for any entrance requirements to the PMA.33 chanroblesvirtuallawlibrary
Two days later, Vice Admiral Abogado approved the recommendation to
dismiss Cadet 1CL Cudia.
On February 13, 2014, Cadet 1CL Cudia submitted a letter to the Office of the
Commandant of Cadets requesting for reinstatement by the PMA of his status
as a cadet.34 chanroblesvirtuallawlibrary
Four days passed, Annavee P. Cudia (Annavee), the sister of Cadet 1CL Cudia,
posted his plight in her Facebook account. The day after, the Spouses Cudia
gave a letter to Major General Oscar Lopez (Maj. Gen. Lopez), the new PMA
Superintendent, asking to recognize the 8-1 voting of the HC,35 copies of which
were furnished to the AFP Chief of Staff and other concerned military officials.
Subsequently, Maj. Gen. Lopez was directed to review Cadet 1CL Cudia’s case.
The latter, in turn, referred the matter to the Cadet Review and Appeals Board
(CRAB).
On February 19, 2014, Cadet 1CL Cudia made his personal appeal letter to
Maj. Gen. Lopez. On even date, the AFP Chief of Staff ordered a reinvestigation
following the viral Facebook post of Annavee demanding the intervention of the
military leadership.
Petitioners claim that, on February 21, 2014, Special Order No. 1 was issued
directing all PMA cadets to ostracize Cadet 1CL Cudia by not talking to him and
by separating him from all activities/functions of the cadets. It is said that any
violation shall be a “Class 1” offense entailing 45 demerits, 90 hours touring,
and 90 hours confinement. Cadet 1CL Cudia was not given a copy of the order
and learned about it only from the media.36 According to an alleged news
report, PMA Spokesperson Major Agnes Lynette Flores (Maj. Flores) confirmed
the HC order to ostracize Cadet 1CL Cudia. Among his offenses were: breach of
confidentiality by putting documents in the social media, violation of the PMA
Honor Code, lack of initiative to resign, and smearing the name of the
PMA.37chanroblesvirtuallawlibrary
On February 24, 2014, Cadet 1CL Cudia requested the CRAB for additional
time, until March 4, 2014, to file an appeal on the ground that his intended
witnesses were in on-the-job training (OJT).38 As additional evidence to
support his appeal, he also requested for copies of the Minutes of the HC
proceedings, relevant documents pertaining to the case, and video footages
and recordings of the HC hearings.
The next day, Cadet 1CL Cudia and his family engaged the services of the
Public Attorney’s Office (PAO) in Baguio City.
The CRAB conducted a review of the case based on the following: (a) letter of
appeal of the Spouses Cudia dated February 18, 2014; (b) directive from the
AFP-GHQ to reinvestigate the case; and (c) guidance from Maj. Gen. Lopez.
On February 26, 2014, Brigadier General Andre M. Costales, Jr. (Brig. Gen.
Costales, Jr.), the CRAB Chairman, informed Cadet 1CL Cudia that, pending
approval of the latter’s request for extension, the CRAB would continue to
review the case and submit its recommendations based on whatever evidence
and testimonies received, and that it could not favorably consider his request
for copies of the HC minutes, relevant documents, and video footages and
recordings of the HC hearings since it was neither the appropriate nor the
authorized body to take action thereon.39 Subsequently, upon verbal advice,
Cadet 1CL Cudia wrote a letter to Maj. Gen. Lopez reiterating his request.40 chanroblesvirtuallawlibrary
Two days after, the Spouses Cudia filed a letter-complaint before the CHR-
Cordillera Administrative Region (CAR) Office against the HC members and
Maj. Gracilla for alleged violation of the human rights of Cadet 1CL Cudia,
particularly his rights to due process, education, and privacy of
communication.41 chanroblesvirtuallawlibrary
On March 4, 2014, Cadet 1CL Cudia, through the PAO, moved for additional
time, until March 19, 2014, to file his appeal and submit evidence. PAO also
wrote a letter to AFP Chief of Staff General Emmanuel T. Bautista (Gen.
Bautista) seeking for immediate directive to the PMA to expeditiously and
favorably act on Cadet 1CL Cudia’s requests.42 chanroblesvirtuallawlibrary
Exactly a week prior to the commencement exercises of Siklab Diwa Class, the
following events transpired: chanRoblesvirtualLawlibrary
On March 10, 2014, Annavee sought the assistance of PAO Chief Public
Attorney Persida V. Rueda-Acosta.43 On the other hand, the CRAB submitted a
report to the AFP-GHQ upholding the dismissal of Cadet 1CL Cudia.44 chanroblesvirtuallawlibrary
On March 11, 2014, PAO received a letter from Maj. Gen. Lopez stating the
denial of Cadet 1CL Cudia’s requests for extension of time to file an Appeal
Memorandum in view of the ample time already given, and to be furnished with
a copy of relevant documents because of confidentiality and presumption of
regularity of the HC proceedings.45 Cadet 1CL Cudia, through PAO, then filed
an Appeal Memorandum46before the CRAB.
On March 12, 2014, Spouses Cudia wrote a letter to President Benigno Simeon
C. Aquino III (Pres. Aquino), who is the Commander-in-Chief of the AFP,
attaching thereto the Appeal Memorandum.47 On the same day, Special Orders
No. 48 was issued by the PMA constituting a Fact-Finding Board/Investigation
Body composed of the CRAB members and PMA senior officers to conduct a
deliberate investigation pertaining to Cadet 1CL Cudia’s Appeal
Memorandum.48 The focus of the inquiry was not just to find out whether the
appeal has merit or may be considered but also to investigate possible
involvement of other cadets and members of the command related to the
incident and to establish specific violation of policy or regulations that had been
violated by other cadets and members of the HC.49 chanroblesvirtuallawlibrary
On March 13, 2014, the Cudia family and the Chief Public Attorney had a
dialogue with Maj. Gen. Lopez.
On March 14, 2014, the CHR-CAR came out with its preliminary findings, which
recommended the following: chanRoblesvirtualLawlibrary
a. For the PMA and the Honor Committee to respect and uphold
the 8 Guilty – 1 Not guilty vote;
b. For the PMA and the Honor Committee to officially pronounce
Cdt Cudia as Not Guilty of the charge filed against him before
the Honor Committee;
chanrobleslaw
c. For the PMA to restore Cadet Cudia’s rights and entitlements
as a full-fledge graduating cadet and allow him to graduate on
Sunday, 16 March 2014; chanrobleslaw
d. For the PMA to fully cooperate with the CHR in the
investigation of Cudia’s Case.50
On March 15, 2014, Cadet 1CL Cudia and his family had a meeting with Pres.
Aquino and Department of National Defense (DND) Secretary Voltaire T.
Gazmin. The President recommended that they put in writing their appeal,
requests, and other concerns. According to respondents, the parties agreed
that Cadet 1CL Cudia would not join the graduation but it was without
prejudice to the result of the appeal, which was elevated to the AFP Chief of
Staff. The President then tasked Gen. Bautista to handle the reinvestigation of
the case, with Maj. Gen. Oscar Lopez supervising the group conducting the
review.
Four days after Siklab Diwa Class’ graduation day, petitioner Renato S. Cudia
received a letter dated March 11, 2014 from the Office of the AFP Adjutant
General and signed by Brig. Gen. Ronald N. Albano for the AFP Chief of Staff,
affirming the CRAB’s denial of Cadet 1CL Cudia’s appeal. It held:
After review, The Judge Advocate General, AFP finds that the action of the PMA
CRAB in denying the appeal for reinvestigation is legally in order. There was
enough evidence to sustain the finding of guilt and the proprietary (sic) of the
punishment imposed. Also, your son was afforded sufficient time to file his
appeal from the date he was informed of the final verdict on January 21, 2014,
when the decision of the Honor Committee was read to him in person, until the
time the PMA CRAB conducted its review on the case. Moreover, the continued
stay of your son at the Academy was voluntary. As such, he remained subject
to the Academy’s policy regarding visitation. Further, there was no violation of
his right to due process considering that the procedure undertaken by the
Honor Committee and PMA CRAB was consistent with existing policy. Thus, the
previous finding and recommendation of the Honor Committee finding your
son, subject Cadet guilty of “Lying” and recommending his separation from the
Academy is sustained.
In view of the foregoing, this Headquarters resolved to deny your appeal for
lack of merit.51
Thereafter, the Fact-Finding Board/Investigating Body issued its Final
Investigation Report on March 23, 2014 denying Cadet 1CL Cudia’s
appeal.52 Subsequently, on April 28, 2014, the special investigation board
tasked to probe the case submitted its final report to the President.53 Pursuant
to the administrative appeals process, the DND issued a Memorandum dated
May 23, 2014, directing the Office of AFP Chief of Staff to submit the complete
records of the case for purposes of DND review and recommendation for
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disposition by the President.54 chanroblesvirtuallawlibrary
Meanwhile, on May 22, 2014, the CHR-CAR issued its Resolution with respect
to CHR-CAR Case No. 2014-0029, concluding and recommending as
follows:
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WHEREFORE, PREMISES CONSIDERED, the Commission on Human Rights-
CAR Office finds PROBABLE CAUSE FOR HUMAN RIGHTS
VIOLATIONS against the officers and members of the PMA Honor Committee
and certain PMA officials, specifically for violations of the rights of CADET
ALDRIN JEFF P. CUDIA to dignity, due process, education, privacy/privacy of
communication, and good life.
IN VIEW OF THE FOREGOING, the CHR-CAR Office RESOLVED to indorse to
competent authorities for their immediate appropriate action on the following
recommendations: chanRoblesvirtualLawlibrary
1. The Philippine Military Academy must set aside the “9-Guilty,
0-Not Guilty” verdict against Cadet Aldrin Jeff P. Cudia, for
being null and void; to uphold and respect the “8-Guilty, 1-Not
Guilty” voting result and make an official pronouncement of
NOT GUILTY in favor of Cadet Cudia; chanrobleslaw
2. The PMA, the AFP Chief of Staff, and the President in whose
hands rest the ends of justice and fate of Cadet Cudia, to:
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2.1officially proclaim Cadet Cudia a graduate and
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alumnus of the Philippine Military Academy;
2.2issue to Cadet Cudia the corresponding Diploma for
the degree of Bachelors of Science; and
2.3Issue to Cadet Cudia the corresponding official
transcript of his academic records for his BS degree,
without conditions therein as to his status as a PMA
cadet.
3. The Public Attorneys’ Office to provide legal services to Cadet
Cudia in pursuing administrative, criminal and civil suits
against the officers and members of the Honor Committee
named hereunder, for violation of the Honor Code and System
and the Procedure in Formal Investigation, dishonesty,
violation of the secrecy of the ballot, tampering the true result
of the voting, perjury, intentional omission in the Minutes of
substantive part of the formal trial proceedings which are
 prejudicial to the interest of justice and Cadet Cudia’s immediately cause the comprehensive review of all rules of
fundamental rights to dignity, non-discrimination and due procedures, regulations, policies, including the so-called
process, which led to the infringement of his right to education practices in the implementation of the Honor Code; and,
and even transgressing his right to a good life. thereafter, adopt new policies, rules of procedures and
relevant regulations which are human-rights based and
3.1 Cdt 1CL MIKE ANTHONY MOGUL, now 2nd Lt. of the consistent with the Constitution and other applicable laws; chanrobleslaw

AFP 7. The Congress of the Philippines to consider the enactment of a

3.2 Cdt 1CL RHONA K. SALVACION, now 2nd Lt. of the law defining and penalizing ostracism and discrimination,
which is apparently being practiced in the PMA, as a criminal
AFP offense in this jurisdiction;
3.3 Cdt 2CL ARWI C. MARTINEZ
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3.4 Cdt 2CL RENATO A. CARIÑO, JR. 8. His Excellency The President of the Philippines to certify as
priority, the passage of an anti-ostracism and/or anti-
3.5 Cdt 2CL NIKO ANGELO C. TARAYAO discrimination law; and
3.6 Cdt 1CL JEANELYN P. CABRIDO, now 2nd Lt. of the
AFP 9. Finally, for the AFP Chief of Staff and the PMA authorities to
nd ensure respect and protection of the rights of those who
3.7 Cdt 1CL KIM ADRIAN R. MARTAL, now 2 Lt. of the testified for the cause of justice and truth as well as human
AFP rights of Cadet Cudia.
3.8 Cdt 1CL JAIRUS O. FANTIN, now 2nd Lt. of the AFP
RESOLVED FURTHER, to monitor the actions by the competent authorities on
3.9 Cdt 1CL BRYAN SONNY S. ARLEGUI, now 2nd Lt. of the foregoing CHR recommendations.
the AFP
3.10Cdt 1CL DALTON JOHN G. LAGURA, now 2nd Lt. of Let copy of this resolution be served by personal service or by substituted
service to the complainants (the spouses Renato and Filipina Cudia; and Aldrin
the AFP Jeff P. Cudia), and all the respondents. Also, to the PMA Superintendent, the
3.11Cdt 1CL BIANCHIHEIMER L. EDRA, now 2nd Lt. of AFP Chief of Staff, the Secretary of National Defense, His Excellency The
President of the Philippines, The Public Attorneys’ Office.
the AFP
3.12Cdt 4CL JENNIFER A. CUARTERON (recorder) SO RESOLVED.55
On June 11, 2014, the Office of the President sustained the findings of the AFP
3.13Cdt 3CL LEONCIO NICO A. DE JESUS II (recorder) Chief of Staff and the CRAB. The letter, which was addressed to the Spouses
Cudia and signed by Executive Secretary Paquito N. Ochoa, Jr., stated in
whole:chanRoblesvirtualLawlibrary

4. The Office of the AFP Chief of Staff and the PMA competent
authorities should investigate and file appropriate charges
against Maj. VLADIMIR P. GRACILLA, for violation of the right
to privacy of Cadet Cudia and/or failure, as intelligence officer,
to ensure the protection of the right to privacy of Cudia who
was then billeted at the PMA Holding Center; chanrobleslaw
5. The Office of the AFP Chief of Staff and PMA competent
authorities should investigate Maj. DENNIS ROMMEL HINDANG
for his failure and ineptness to exercise his responsibility as a
competent Tactical Officer and a good father of his cadets, in
this case, to Cadet Cudia; for failure to respect exhaustion of
administrative remedies; chanrobleslaw
6. The Secretary of National Defense, the Chief of Staff of the
Armed Forces of the Philppines, the PMA Superintendent, to
This refers to your letters to the President dated 12 March 2014 and 26 March
2014 appealing for a reconsideration of the decision of the Philippine Military
Academy (PMA) Honor Committee on the case of your son, Cadet 1CL Aldrin
Jeff Cudia.
After carefully studying the records of the case of Cadet Cudia, the decision of
the Chief of Staff of the Armed Forces of the Philippines (AFP), and the Honor
Code System of the AFP Cadet Corps, this Office has found no substantial basis
to disturb the findings of the AFP and the PMA Cadet Review Appeals Board
(CRAB). There is no competent evidence to support the claim that the decision
of the Honor Committee members was initially at 8 “Guilty” votes and 1 “Not
Guilty” vote. The lone affidavit of an officer, based on his purported
conversation with one Honor Committee member, lacks personal knowledge on
the deliberations of the said Committee and is hearsay at best.
Similarly, the initial recommendations of the Commission on Human Rights
cannot be adopted as basis that Cadet Cudia’s due process rights were Constitution, notwithstanding the unquestionable fact that the
violated. Apart from being explicitly preliminary in nature, such former should yield to the latter.
recommendations are anchored on a finding that there was an 8-1 vote which,
as discussed above, is not supported by competent evidence. II

In the evaluation of Cadet Cudia’s case, this Office has been guided by the
precept that military law is regarded to be in a class of its own, “applicable only
to military personnel because the military constitutes an armed organization
requiring a system of discipline separate from that of civilians” (Gonzales v.
Abaya, G.R. No. 164007, 10 August 2005 citing Calley v. Callaway, 519 F. 2d
184 [1975] and Orloff v. Willoughby, 345 US 83 [1953]). Thus, this Office
regarded the findings of the AFP Chief, particularly his conclusion that there
was nothing irregular in the proceedings that ensued, as carrying great weight.
Accordingly, please be informed that the President has sustained the findings
of the AFP Chief and the PMA CRAB.56
The Issues
To petitioners, the issues for resolution are:
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND
THE CADET REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF
DISCRETION IN HOLDING THAT CADET FIRST CLASS ALDRIN JEFF P. CUDIA
LIED, THEREBY VIOLATING THE HONOR CODE
III
WHETHER THE RESULT OF THE FACT-FINDING INVESTIGATION
INDEPENDENTLY CONDUCTED BY THE COMMISSION ON HUMAN RIGHTS IS OF
SUCH GREAT WEIGHT AND PERSUASIVE NATURE THAT THIS HONORABLE
COURT MAY HONOR, UPHOLD AND RESPECT57
On the other hand, in support of their prayer to dismiss the petition,
respondents presented the issues below:
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PROCEDURAL GROUNDS
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I.
I.
WHETHER THE PHILIPPINE MILITARY ACADEMY, THE HONOR COMMITTEE AND
THE CADET REVIEW AND APPEALS BOARD COMMITTED GRAVE ABUSE OF
THE MANDAMUS PETITION PRAYING THAT CADET CUDIA BE INCLUDED IN THE
DISCRETION IN DISMISSING CADET FIRST CLASS ALDRIN JEFF P. CUDIA
LIST OF GRADUATES OF SIKLAB DIWA CLASS OF 2014 AND BE ALLOWED TO
FROM THE ACADEMY IN UTTER DISREGARD OF HIS RIGHT TO DUE PROCESS
TAKE PART IN THE COMMENCEMENT EXERCISES HAS ALREADY BEEN
RENDERED MOOT.
CONSIDERING THAT:
II.
A. Despite repeated requests for relevant documents regarding
his case, Cadet First Class Aldrin Jeff Cudia was deprived of THE ISSUES RAISED IN THE PETITIONS ARE ACTUALLY FACTUAL WHICH ARE
his right to have access to evidence which would have proven BEYOND THE SCOPE OF A PETITION FOR CERTIORARI, PROHIBITION AND
his defense, would have totally belied the charge against him, MANDAMUS.
and more importantly, would have shown the irregularity in
the Honor Committee’s hearing and rendition of decision III.

B. Cadet First Class Aldrin Jeff Cudia was vaguely informed of the
decisions arrived at by the Honor Committee, the Cadet
Review and Appeals Board and the Philippine Military Academy
C. The Honor Committee, the Cadet Review and Appeals Board
and the Philippine Military Academy have afforded Cadet First
Class Aldrin Jeff Cudia nothing but a sham trial
MANDAMUS DOES NOT LIE TO COMPEL RESPONDENTS TO GRANT THE
RELIEFS PRAYED FOR.
IV.
IT IS PREMATURE TO INVOKE JUDICIAL REDRESS PENDING THE DECISION OF
THE PRESIDENT ON CADET CUDIA’S APPEAL.

D. The Honor Committee, the Cadet Review and Appeals Board V.

and the Philippine Military Academy violated their own rules
and principles as embodied in the Honor Code WITH UTMOST DUE RESPECT, THE HONORABLE COURT MUST EXERCISE
CAREFUL RESTRAINT AND REFRAIN FROM UNDULY OR PREMATURELY
E. The Honor Committee, the Cadet Review and Appeals Board INTERFERING WITH LEGITIMATE MILITARY MATTERS.
and the Philippine Military Academy, in deciding Cadet First
Class Aldrin Jeff Cudia’s case, grossly and in bad faith,
misapplied the Honor Code so as to defy the 1987
 SUBSTANTIVE GROUNDS
VI.
CADET CUDIA HAS NECESSARILY AND VOLUNTARILY RELINQUISHED CERTAIN
CIVIL LIBERTIES BY VIRTUE OF HIS ENTRY INTO THE PMA.
VII.
THE PMA ENJOYS THE ACADEMIC FREEDOM WHICH AUTHORIZES IT TO
IMPOSE DISCIPLINARY MEASURES AND PUNISHMENT AS IT DEEMS FIT AND
CONSISTENT WITH THE PECULIAR NEEDS OF THE ACADEMY.
VIII.
CADET CUDIA WAS PROPERLY AFFORDED PROCEDURAL DUE PROCESS.
The PMA has regulatory authority to administratively terminate cadets despite
the absence of statutory authority.
Violation of the Honor Code warrants the administrative dismissal of a guilty
cadet.
Cadet Cudia violated the first tenet of the Honor Code by providing untruthful
statements in the explanation for his tardiness.
The higher authorities of the PMA did not blindly adopt the findings of the
Honor Committee.
The procedural safeguards in a student disciplinary case were properly
accorded to Cadet Cudia.
The subtle evolution in the voting process of the Honor Committee, by
incorporating executive session/chambering, was adopted to further strengthen
the voting procedure of the Honor Committee.
Cadet Lagura voluntarily changed his vote without any pressure from the other
voting members of the Honor Committee.
Ostracism is not a sanctioned practice of the PMA.
The findings of the Commission on Human Rights are not binding on the
Honorable Court, and are, at best, recommendatory.
Cadet Cudia was not effectively deprived of his future when he was dismissed
from the PMA.58
The Ruling of the Court
PROCEDURAL GROUNDS
Propriety of a petition for mandamus
Respondents argue that the mandamus aspect of the petition praying that
Cadet 1CL Cudia be included in the list of graduating cadets and for him to
take part in the commencement exercises was already rendered moot and
academic when the graduation ceremonies of the PMA Siklab Diwa Class took
place on March 16, 2014. Also, a petition for mandamus is improper since it
does not lie to compel the performance of a discretionary duty. Invoking Garcia
v. The Faculty Admission Committee, Loyola School of Theology,59 respondents
assert that a mandamus petition could not be availed of to compel an academic
institution to allow a student to continue studying therein because it is merely
a privilege and not a right. In this case, there is a clear failure on petitioners’
part to establish that the PMA has the ministerial duty to include Cadet 1CL
Cudia in the list, much less award him with academic honors and commission
him to the Philippine Navy. Similar to the case of University of San Agustin,
Inc. v. Court of Appeals,60 it is submitted that the PMA may rightfully exercise
its discretionary power on who may be admitted to study pursuant to its
academic freedom.
In response, petitioners contend that while the plea to allow Cadet 1CL Cudia
to participate in the PMA 2014 commencement exercises could no longer be
had, the Court may still grant the other reliefs prayed for. They add
that Garcia enunciated that a respondent can be ordered to act in a particular
manner when there is a violation of a constitutional right, and that the
certiorari aspect of the petition must still be considered because it is within the
province of the Court to determine whether a branch of the government or any
of its officials has acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack or excess thereof.
We agree that a petition for mandamus is improper.
Under Section 3, Rule 65 of the Rules of Civil Procedure, a petition for
mandamus may be filed when any tribunal, corporation, board, officer, or
person unlawfully neglects the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust, or station. It may also be filed
when any tribunal, corporation, board, officer, or person unlawfully excludes
another from the use and enjoyment of a right or office to which such other is
entitled.
For mandamus to lie, the act sought to be enjoined must be a ministerial act or
duty. An act is ministerial if the act should be performed "[under] a given state
of facts, in a prescribed manner, in obedience to the mandate of a legal
authority, without regard to or the exercise of [the tribunal or corporation's]
own judgment upon the propriety or impropriety of the act done." The tribunal,
corporation, board, officer, or person must have no choice but to perform the
act specifically enjoined by law. This is opposed to a discretionary act whereby
the officer has the choice to decide how or when to perform the duty.61 chanroblesvirtuallawlibrary
In this case, petitioners pray for, among others: chanRoblesvirtualLawlibrary
Also, after due notice and hearing, it is prayed of the Court to issue a Writ of
Mandamusto: chanRoblesvirtualLawlibrary
 1. direct the PMA to include Cadet Cudia in the list of graduates
of Siklab Diwa Class of 2014 of the PMA, including inclusion in
the yearbook;
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2. direct the PMA to allow Cadet Cudia to take part in the
commencement exercises if he completed all the requirements
for his baccalaureate degree; chanrobleslaw
3. direct the PMA to award unto Cadet Cudia the academic
honors he deserves, and the commission as a new Philippine
Navy ensign; chanrobleslaw
4. direct the Honor Committee to submit to the CRAB of the PMA
all its records of the proceedings taken against Cadet Cudia,
including the video footage and audio recordings of the
deliberations and voting, for the purpose of allowing the CRAB
to conduct intelligent review of the case of Cadet Cudia;
5. direct the PMA’s CRAB to conduct a review de novo of all the
records without requiring Cadet Cudia to submit new
evidence if it was physically impossible to do so;
6. direct the PMA’s CRAB to take into account the certification
signed by Dr. Costales, the new evidence consisting of the
affidavit of a military officer declaring under oath that the
cadet who voted “not guilty” revealed to this officer that this
cadet was coerced into changing his vote, and other new
evidence if there is any;
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7. direct the PMA’s CRAB to give Cadet Cudia the right to a
counsel who is allowed to participate actively in the
proceedings as well as in the cross-examinations during the
exercise of the right to confront witnesses against him; and
8. direct the Honor Committee in case of remand of the case by
the CRAB to allow Cadet Cudia a representation of a counsel.62
Similarly, petitioner-intervenor seeks for the following reliefs:
A. x x x
B. a Writ of Mandamus be issued commanding:
a.)The PMA, Honor Committee, and CRAB to respect
and uphold the 8 Guilty - 1 Not Guilty vote;
b.)The PMA, Honor Committee, and CRAB to officially
pronounce Cadet Cudia as Not Guilty of the charge
filed against him before the Honor Committee;
c.) The PMA to restore Cadet Cudia’s rights and
entitlements as a full-fledged graduating cadet,
including his diploma and awards.63
Anent the plea to direct the PMA to include Cadet 1CL Cudia in the list of
graduates of Siklab Diwa Class of 2014 and to allow him to take part in the
commencement exercises, the same was rendered moot and academic when
the graduation ceremonies pushed through on March 16, 2014 without
including Cadet 1CL Cudia in the roll of graduates.
With respect to the prayer directing the PMA to restore Cadet 1CL Cudia’s
rights and entitlements as a full-fledged graduating cadet, including his
diploma, awards, and commission as a new Philippine Navy ensign, the same
cannot be granted in a petition for mandamus on the basis of academic
freedom, which We shall discuss in more detail below. Suffice it to say at this
point that these matters are within the ambit of or encompassed by the right of
academic freedom; therefore, beyond the province of the Court to
decide.64 The powers to confer degrees at the PMA, grant awards, and
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commission officers in the military service are discretionary acts on the part of
the President as the AFP Commander-in-Chief. Borrowing the words
of Garcia:
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There are standards that must be met. There are policies to be pursued.
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Discretion appears to be of the essence. In terms of Hohfeld's terminology,
what a student in the position of petitioner possesses is a privilege rather than
a right. She [in this case, Cadet 1CL Cudia] cannot therefore satisfy the prime
and indispensable requisite of a mandamusproceeding.65
Certainly, mandamus is never issued in doubtful cases. It cannot be availed
against an official or government agency whose duty requires the exercise of
discretion or judgment.66 For a writ to issue, petitioners should have a clear
legal right to the thing demanded, and there should be an imperative duty on
the part of respondents to perform the act sought to be mandated.67 chanroblesvirtuallawlibrary
The same reasons can be said as regards the other reliefs being sought by
petitioners, which pertain to the HC and the CRAB proceedings. In the absence
of a clear and unmistakable provision of a law, a mandamus petition does not
lie to require anyone to a specific course of conduct or to control or review the
exercise of discretion; it will not issue to compel an official to do anything
which is not his duty to do or which is his duty not to do or give to the
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applicant anything to which he is not entitled by law.68
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The foregoing notwithstanding, the resolution of the case must proceed since,
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as argued by petitioners, the Court is empowered to settle via petition
for certiorari whether there is grave abuse of discretion on the part of
respondents in dismissing Cadet 1CL Cudia from the PMA.
Factual nature of the issues
According to respondents, the petition raises issues that actually require the
Court to make findings of fact because it sets forth several factual disputes
which include, among others: the tardiness of Cadet 1CL Cudia in his ENG412
class and his explanation thereto, the circumstances that transpired in the
investigation of his Honor Code violation, the proceedings before the HC, and
the allegation that Cadet 1CL Lagura was forced to change his vote during the
executive session/“chambering.”
In opposition, petitioners claim that the instant controversy presents legal
issues. Rather than determining which between the two conflicting versions of
the parties is true, the case allegedly centers on the application, appreciation,
and interpretation of a person’s rights to due process, to education, and to
property; the interpretation of the PMA Honor Code and Honor System; and
the conclusion on whether Cadet 1CL Cudia’s explanation constitutes lying.
Even if the instant case involves questions of fact, petitioners still hold that the
Court is empowered to settle mixed questions of fact and law.
Petitioners are correct.
There is a question of law when the issue does not call for an examination of
the probative value of evidence presented, the truth or falsehood of facts being
admitted and the doubt concerns the correct application of law and
jurisprudence on the matter. On the other hand, there is a question of fact
when the doubt or controversy arises as to the truth or falsity of the alleged
facts. When there is no dispute as to fact, the question of whether or not the
conclusion drawn therefrom is correct is a question of law.69
The petition does not exclusively present factual matters for the Court to
decide. As pointed out, the all-encompassing issue of more importance is the
determination of whether a PMA cadet has rights to due process, to education,
and to property in the context of the Honor Code and the Honor System, and,
if in the affirmative, the extent or limit thereof. Notably, even respondents
themselves raise substantive grounds that We have to resolve. In support of
their contention that the Court must exercise careful restraint and should
refrain from unduly or prematurely interfering in legitimate military matters,
they argue that Cadet 1CL Cudia has necessarily and voluntarily relinquished
certain civil liberties by virtue of his entry into the PMA, and that the Academy
enjoys academic freedom authorizing the imposition of disciplinary measures
and punishment as it deems fit and consistent with the peculiar needs of the
PMA. These issues, aside from being purely legal questions, are of first
impression; hence, the Court must not hesitate to make a categorical ruling.
Exhaustion of administrative remedies
Respondents assert that the Court must decline jurisdiction over the petition
pending President Aquino’s resolution of Cadet 1CL Cudia’ appeal. They say
that there is an obvious non-exhaustion of the full administrative process.
While Cadet 1CL Cudia underwent the review procedures of his guilty verdict at
the Academy level – the determination by the SJA of whether the HC acted
according to the established procedures of the Honor System, the assessment
by the Commandant of Cadets of the procedural and legal correctness of the
guilty verdict, the evaluation of the PMA Superintendent to warrant the
administrative separation of the guilty cadet, and the appellate review
proceedings before the CRAB – he still appealed to the President, who has the
utmost latitude in making decisions affecting the military. It is contended that
the President’s power over the persons and actions of the members of the
armed forces is recognized in B/Gen. (Ret.) Gudani v. Lt./Gen. Senga70 and in
Section 3171 of Commonwealth Act (C.A.) No. 1 (also known as "The National
Defense Act"). As such, the President could still overturn the decision of the
PMA. In respondents’ view, the filing of this petition while the case is pending
resolution of the President is an irresponsible defiance, if not a personal
affront. For them, comity dictates that courts of justice should shy away from a
dispute until the system of administrative redress has been completed.
From the unfolding of events, petitioners, however, consider that President
Aquino effectively denied the appeal of Cadet 1CL Cudia. They claim that his
family exerted insurmountable efforts to seek reconsideration of the HC
recommendation from the AFP officials and the President, but was in vain. The
circumstances prior to, during, and after the PMA 2014 graduation rites, which
was attended by President Aquino after he talked to Cadet 1CL Cudia’s family
the night before, foreclose the possibility that the challenged findings would
still be overturned. In any case, petitioners insist that the rule on exhaustion of
administrative remedies is not absolute based on the Corsiga v.
Defensor72 and Verceles v. BLR-DOLE73rulings.
We rule for petitioners.
In general, no one is entitled to judicial relief for a supposed or threatened
injury until the prescribed administrative remedy has been exhausted. The
rationale behind the doctrine of exhaustion of administrative remedies is that
“courts, for reasons of law, comity, and convenience, should not entertain suits
unless the available administrative remedies have first been resorted to and
the proper authorities, who are competent to act upon the matter complained
of, have been given the appropriate opportunity to act and correct their alleged
errors, if any, committed in the administrative forum.”74 In the U.S. case
of Ringgold v. United States,75 which was cited by respondents, it was
specifically held that in a typical case involving a decision by military
authorities, the plaintiff must exhaust his remedies within the military before
appealing to the court, the doctrine being designed both to preserve the
balance between military and civilian authorities and to conserve judicial
resources.
Nonetheless, there are exceptions to the rule. In this jurisdiction, a party may
directly resort to judicial remedies if any of the following is present:
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1. when there is a violation of due process;
2. when the issue involved is purely a legal question;
3. when the administrative action is patently illegal amounting to
lack or excess of jurisdiction;
4. when there is estoppel on the part of the administrative
agency concerned;
5. when there is irreparable injury;
6. when the respondent is a department secretary whose acts as
an alter ego of the President bear the implied and assumed
approval of the latter;
7. when to require exhaustion of administrative remedies would
be unreasonable;
8. when it would amount to a nullification of a claim;
9. when the subject matter is a private land in land case
proceedings;
 10. when the rule does not provide a plain, speedy and adequate
remedy; and
11. when there are circumstances indicating the urgency of
judicial intervention.76
Petitioners essentially raise the lack of due process in the dismissal of Cadet
1CL Cudia from the PMA. Thus, it may be a ground to give due course to the
petition despite the non-exhaustion of administrative remedies. Yet more
significant is the fact that during the pendency of this case, particularly on June
11, 2014, the Office of the President finally issued its ruling, which sustained
the findings of the AFP Chief and the CRAB. Hence, the occurrence of this
supervening event bars any objection to the petition based on failure to
exhaust administrative remedies.
Court’s interference within military affairs
Respondents cite the U.S. cases of Bois v. Marsh77 and Schlesinger v.
Councilman78 to support their contention that judicial intervention would pose
substantial threat to military discipline and that there should be a deferential
review of military statutes and regulations since political branches have
particular expertise and competence in assessing military needs. Likewise,
in Orloff v. Willoughby79 and Parker v. Levy,80 it was allegedly opined by the
U.S. Supreme Court that the military constitutes a specialized community
governed by a separate discipline from that of the civilian. According to
respondents, the U.S. courts’ respect to the military recognizes that
constitutional rights may apply differently in the military context than in civilian
society as a whole. Such military deference is exercised either by refusing to
apply due process and equal protection doctrines in military cases or applying
them but with leniency.
In respondents’ view, although Philippine courts have the power of judicial
review in cases attended with grave abuse of discretion amounting to lack or
excess of jurisdiction, policy considerations call for the widest latitude of
deference to military affairs. Such respect is exercised by the court where the
issues to be resolved entail a substantial consideration of legitimate
governmental interest. They suppose that allowing Cadet 1CL Cudia’s case to
prosper will set an institutionally dangerous precedent, opening a Pandora’s
box of other challenges against the specialized system of discipline of the PMA.
They state that with the PMA’s mandate to train cadets for permanent
commission in the AFP, its disciplinary rules and procedure necessarily must
impose a different standard of conduct compared with civilian institutions.
Petitioners, on the other hand, consider that this Court is part of the State’s
check-and-balance machinery, specifically mandated by Article VIII of the 1987
Constitution to ensure that no branch of the government or any of its officials
acts without or in excess of jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. They assert that judicial non-
interference in military affairs is not deemed as absolute even in the U.S. They
cite Schlesinger and Parker, which were invoked by respondents, as well
as Burns v. Wilson81 and Harmon v. Brucker,82 wherein the U.S. Supreme Court
reviewed the proceedings of military tribunals on account of issues posed
concerning due process and violations of constitutional rights. Also, in Magno v.
De Villa83 decided by this Court, petitioners note that We, in fact, exercised the
judicial power to determine whether the AFP and the members of the court
martial acted with grave abuse of discretion in their military investigation.
Petitioners’ contentions are tenable.
Admittedly, the Constitution entrusts the political branches of the government,
not the courts, with superintendence and control over the military because the
courts generally lack the competence and expertise necessary to evaluate
military decisions and they are ill-equipped to determine the impact upon
discipline that any particular intrusion upon military authority might
have.84 Nevertheless, for the sake of brevity, We rule that the facts as well as
the legal issues in the U.S. cases cited by respondents are not on all fours with
the case of Cadet 1CL Cudia. Instead, what applies is the 1975 U.S. case
of Andrews v. Knowlton,85 which similarly involved cadets who were separated
from the United States Military Academy due to Honor Code violations.
Following Wasson v. Trowbridge86 and Hagopian v. Knowlton,87 Andrews re-
affirmed the power of the district courts to review procedures used at the
service academies in the separation or dismissal of cadets and midshipmen.
While it recognized the “constitutional permissibility of the military to set and
enforce uncommonly high standards of conduct and ethics,” it said that the
courts “have expanded at an accelerated pace the scope of judicial access for
review of military determinations.” Later, in Kolesa v. Lehman,88 it was opined
that it has been well settled that federal courts have jurisdiction "where there
is a substantial claim that prescribed military procedures violates one's
constitutional rights." By 1983, the U.S. Congress eventually made major
revisions to the Uniform Code of Military Justice (UCMJ) by expressly providing,
among others, for a direct review by the U.S. Supreme Court of decisions by
the military’s highest appellate authority.89 chanroblesvirtuallawlibrary
Even without referring to U.S. cases, the position of petitioners is still
formidable. In this jurisdiction, Section 1 Article VIII of the 1987 Constitution
expanded the scope of judicial power by mandating that the duty of the courts
of justice includes not only “to settle actual controversies involving rights which
are legally demandable and enforceable” but also “to determine whether or not
there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government”
even if the latter does not exercise judicial, quasi-judicial or ministerial
functions.90Grave abuse of discretion implies such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction or where the power
is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, which must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined or
to act at all in contemplation of law.91 chanroblesvirtuallawlibrary
The proceedings of the Cadet Honor Committee can, for purposes of the Due
Process Clause, be considered a governmental activity. As ruled
in Andrews: chanRoblesvirtualLawlibrary
The relationship between the Cadet Honor Committee and the separation
process at the Academy has been sufficiently formalized, and is sufficiently
interdependent, so as to bring that committee's activities within the definition
of governmental activity for the purposes of our review. While the Academy
has long had the informal practice of referring all alleged violations to the
Cadet Honor Committee, the relationship between that committee and the
separation process has to a degree been formalized. x x x
Regardless of whether the relationship be deemed formal or informal, the
Honor Committee under its own procedures provides that a single "not guilty"
vote by a member ends the matter, while a "guilty" finding confronts a cadet
with the hard choice of either resigning or electing to go before a Board of
Officers. An adverse finding there results not only in formal separation from
the Academy but also in a damaging record that will follow the cadet through
life. Accordingly, we conclude that the Cadet Honor Committee, acting not
unlike a grand jury, is clearly part of the process whereby a cadet can
ultimately be adjudged to have violated the Cadet Honor Code and be
separated from the Academy. Therefore, the effect of the committee's
procedures and determinations on the separation process is sufficiently
intertwined with the formal governmental activity which may follow as to bring
it properly under judicial review.92
No one is above the law, including the military. In fact, the present
Constitution declares it as a matter of principle that civilian authority is, at all
times, supreme over the military.93 Consistent with the republican system of
checks and balances, the Court has been entrusted, expressly or by necessary
implication, with both the duty and the obligation of determining, in
appropriate cases, the validity of any assailed legislative or executive
action.94
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SUBSTANTIVE GROUNDS
Cadet’s relinquishment of certain civil liberties
Respondents assert that the standard of rights applicable to a cadet is not the
same as that of a civilian because the former’s rights have already been
recalibrated to best serve the military purpose and necessity. They claim that
both Gudani and Lt. Col. Kapunan, Jr. v. Gen. De Villa95 recognized that, to a
certain degree, individual rights of persons in the military service may be
curtailed by the rules of military discipline in order to ensure its effectiveness in
fulfilling the duties required to be discharged under the law. Respondents
remind that, as a military student aspiring to a commissioned post in the
military service, Cadet 1CL Cudia voluntarily gave up certain civil and political
rights which the rest of the civilian population enjoys. The deliberate surrender
of certain freedoms on his part is embodied in the cadets’ Honor Code
Handbook. It is noted that at the beginning of their academic life in the PMA,
Cadet 1CL Cudia, along with the rest of Cadet Corps, took an oath and
undertaking to stand by the Honor Code and the Honor System.
To say that a PMA cadet surrenders his fundamental human rights, including
the right to due process, is, for petitioners, contrary to the provisions of
Section 3, Article II of the 1987 Constitution,96 Executive Order (E.O.) No.
17897 (as amended by E.O. No. 100598), AFP Code of Ethics, Oath of Cadet
Corps to the Honor Code and the Honor System, military professionalism, and,
in general, military culture. They maintain that the HC, the CRAB, and the
PMA, grossly and in bad faith misapplied the Honor Code and the Honor
System in deciding Cadet 1CL Cudia’s case considering that these should not
be implemented at the expense of human rights, due process, and fair play.
Further, under the doctrine of constitutional supremacy, they can never
overpower or defy the 1987 Constitution since the former should yield to the
latter. Petitioners stress that the statement that “a cadet can be compelled to
surrender some civil rights and liberties in order for the Code and System to be
implemented” simply pertains to what cadets have to sacrifice in order to prove
that they are men or women of integrity and honor, such as the right to
entertain vices and the right to freely choose what they want to say or do. In
the context of disciplinary investigation, it does not contemplate a surrender of
the right to due process but, at most, refers to the cadets’ rights to privacy and
to remain silent.
We concur with the stand of petitioners.
Of course, a student at a military academy must be prepared to subordinate
his private interests for the proper functioning of the educational institution he
attends to, one that is with a greater degree than a student at a civilian public
school.99 In fact, the Honor Code and Honor System Handbook of the PMA
expresses that, “[as] a training environment, the Cadet Corps is a society
which has its own norms. Each member binds himself to what is good for him,
his subordinates, and his peers. To be part of the Cadet Corps requires the
surrender of some basic rights and liberties for the good of the group.”100 chanroblesvirtuallawlibrary
It is clear, however, from the teachings of Wasson and Hagopian, which were
adopted by Andrews, that a cadet facing dismissal from the military academy
for misconduct has constitutionally protected private interests (life, liberty, or
property); hence, disciplinary proceedings conducted within the bounds of
procedural due process is a must.101 For that reason, the PMA is not immune
from the strictures of due process. Where a person's good name, reputation,
honor, or integrity is at stake because of what the government is doing to him,
the minimal requirements of the due process clause must be
satisfied.102Likewise, the cadet faces far more severe sanctions of being
expelled from a course of college instruction which he or she has pursued with
a view to becoming a career officer and of probably being forever denied that
career.103
chanroblesvirtuallawlibrary
The cases of Gudani and Kapunan, Jr. are inapplicable as they do not
specifically pertain to dismissal proceedings of a cadet in a military academy
due to honor violation. In Gudani, the Court denied the petition that sought to
annul the directive from then President Gloria Macapagal-Arroyo, which
enjoined petitioners from testifying before the Congress without her consent.
We ruled that petitioners may be subjected to military discipline for their
defiance of a direct order of the AFP Chief of Staff. On the other hand,
in Kapunan, Jr., this Court upheld the restriction imposed on petitioner since
the conditions for his “house arrest” (particularly, that he may not issue any
press statements or give any press conference during the period of his
detention) are justified by the requirements of military discipline. In these two
cases, the constitutional rights to information, transparency in matters of
public concern, and to free speech – not to due process clause – were
restricted to better serve the greater military purpose.
Academic freedom of the PMA
Petitioners posit that there is no law providing that a guilty finding by the HC
may be used by the PMA to dismiss or recommend the dismissal of a cadet
from the PMA. They argue that Honor Code violation is not among those listed
as justifications for the attrition of cadets considering that the Honor Code and
the Honor System do not state that a guilty cadet is automatically terminated
or dismissed from service. To them, the Honor Code and Honor System are
“gentleman’s agreement” that cannot take precedence over public interest – in
the defense of the nation and in view of the taxpayer’s money spent for each
cadet. Petitioners contend that, based on the Civil Code, all written or verbal
agreements are null and void if they violate the law, good morals, good
customs, public policy, and public safety.
In opposition, respondents claim that the PMA may impose disciplinary
measures and punishment as it deems fit and consistent with the peculiar
needs of the Academy. Even without express provision of a law, the PMA has
regulatory authority to administratively dismiss erring cadets since it is
deemed reasonably written into C.A. No. 1. Moreover, although said law grants
to the President the authority of terminating a cadet’s appointment, such
power may be delegated to the PMA Superintendent, who may exercise direct
supervision and control over the cadets.
Respondents likewise contend that, as an academic institution, the PMA has the
inherent right to promulgate reasonable norms, rules and regulations that it
may deem necessary for the maintenance of school discipline, which is
specifically mandated by Section 3 (2),104 Article XIV of the 1987 Constitution.
As the premiere military educational institution of the AFP in accordance with
Section 30,105 Article III of C.A. No. 1 and Sections 58 and 59,106 Chapter 9,
Subtitle II, Title VIII, Book IV of E.O. No. 292 (“Administrative Code of 1987?),
the PMA is an institution that enjoys academic freedom guaranteed by Section
5 (2),107 Article XIV of the 1987 Constitution. In Miriam College Foundation,
Inc. v. Court of Appeals,108 it was held that concomitant with such freedom is
the right and duty to instill and impose discipline upon its students. Also,
consistent with Isabelo, Jr. v. Perpetual Help College of Rizal, Inc.109and Ateneo
de Manila University v. Capulong,110 the PMA has the freedom on who to admit
(and, conversely, to expel) given the high degree of discipline and honor
expected from its students who are to form part of the AFP.
For respondents, Cadet 1CL Cudia cannot, therefore, belatedly assail the Honor
Code as basis of the HC’s decision to recommend his dismissal from the PMA.
When he enlisted for enrolment and studied in the PMA for four years, he knew
or should have been fully aware of the standards of discipline imposed on all
cadets and the corresponding penalty for failing to abide by these standards.
In their Reply, petitioners counter that, as shown in Isabelo, Jr. and Ateneo,
academic freedom is not absolute and cannot be exercised in blatant disregard
of the right to due process and the 1987 Constitution. Although schools have
the prerogative to choose what to teach, how to teach, and who to teach, the
same does not go so far as to deprive a student of the right to graduate when
there is clear evidence that he is entitled to the same since, in such a case, the
right to graduate becomes a vested right which takes precedence over the
limited and restricted right of the educational institution.
While both parties have valid points to consider, the arguments of respondents
are more in line with the facts of this case.
We have ruled that the school-student relationship is contractual in nature.
Once admitted, a student’s enrolment is not only semestral in duration but for
the entire period he or she is expected to complete it.111 An institution of
learning has an obligation to afford its students a fair opportunity to complete
the course they seek to pursue.112 Such contract is imbued with public interest
because of the high priority given by the Constitution to education and the
grant to the State of supervisory and regulatory powers over all educational
institutions.113
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The school-student relationship has also been held as reciprocal. “[It] has
consequences appurtenant to and inherent in all contracts of such kind – it
gives rise to bilateral or reciprocal rights and obligations. The school
undertakes to provide students with education sufficient to enable them to
pursue higher education or a profession. On the other hand, the students agree
to abide by the academic requirements of the school and to observe its rules
and regulations.”114 chanroblesvirtuallawlibrary
Academic freedom or, to be precise, the institutional autonomy of universities
and institutions of higher learning,115 has been enshrined in our
Constitutions of 1935, 1973, and 1987.116 In Garcia, this Court espoused the
concurring opinion of U.S. Supreme Court Justice Felix Frankfurter in Sweezy
v. New Hampshire,117 which enumerated “the four essential freedoms” of a
university: To determine for itself on academic grounds (1) who may teach, (2)
what may be taught, (3) how it shall be taught, and (4) who may be admitted
to study.118 An educational institution has the power to adopt and enforce such
rules as may be deemed expedient for its government, this being incident to
the very object of incorporation, and indispensable to the successful
management of the college.119 It can decide for itself its aims and objectives
and how best to attain them, free from outside coercion or interference except
when there is an overriding public welfare which would call for some
restraint.120 Indeed, “academic freedom has never been meant to be an
unabridged license. It is a privilege that assumes a correlative duty to exercise
it responsibly. An equally telling precept is a long recognized mandate, so well
expressed in Article 19 of the Civil Code, that every ‘person must, in the
exercise of his rights and in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.’”121 chanroblesvirtuallawlibrary
The schools’ power to instill discipline in their students is subsumed in their
academic freedom and that “the establishment of rules governing university-
student relations, particularly those pertaining to student discipline, may be
regarded as vital, not merely to the smooth and efficient operation of the
institution, but to its very survival.”122 As a Bohemian proverb puts it: "A
school without discipline is like a mill without water." Insofar as the water turns
the mill, so does the school's disciplinary power assure its right to survive and
continue operating.123 In this regard, the Court has always recognized the right
of schools to impose disciplinary sanctions, which includes the power to dismiss
or expel, on students who violate disciplinary rules.124 In Miriam College
Foundation, Inc. v. Court of Appeals,125 this Court elucidated: chanRoblesvirtualLawlibrary
The right of the school to discipline its students is at once apparent in the third
freedom, i.e., "how it shall be taught." A school certainly cannot function in an
atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational
institution requires rules and regulations necessary for the maintenance of an
orderly educational program and the creation of an educational environment
conducive to learning. Such rules and regulations are equally necessary for the
protection of the students, faculty, and property.
Moreover, the school has an interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of learning. By instilling
discipline, the school teaches discipline. Accordingly, the right to discipline the
student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop discipline
in its students. The Constitution no less imposes such duty.
[All educational institutions] shall inculcate patriotism and nationalism, foster
love of humanity, respect for human rights, appreciation of the role of national
heroes in the historical development of the country, teach the rights and duties
of citizenship, strengthen ethical and spiritual values, develop moral character
and personal discipline, encourage critical and creative thinking, broaden
scientific and technological knowledge, and promote vocational efficiency.
In Angeles vs. Sison, we also said that discipline was a means for the school to
carry out its responsibility to help its students "grow and develop into mature,
responsible, effective and worthy citizens of the community."
Finally, nowhere in the above formulation is the right to discipline more evident
than in "who may be admitted to study." If a school has the freedom to
determine whom to admit, logic dictates that it also has the right to determine
whom to exclude or expel, as well as upon whom to impose lesser sanctions
such as suspension and the withholding of graduation privileges.126
The power of the school to impose disciplinary measures extends even after
graduation for any act done by the student prior thereto. In University of the
Phils. Board of Regents v. Court of Appeals,127 We upheld the university’s
withdrawal of a doctorate degree already conferred on a student who was
found to have committed intellectual dishonesty in her dissertation. Thus:
Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be
enjoyed in all institutions of higher learning." This is nothing new. The 1935
Constitution and the 1973 Constitution likewise provided for the academic
freedom or, more precisely, for the institutional autonomy of universities and
institutions of higher learning. As pointed out by this Court in Garcia v. Faculty
Admission Committee, Loyola School of Theology, it is a freedom granted to
"institutions of higher learning" which is thus given "a wide sphere of authority
certainly extending to the choice of students." If such institution of higher
learning can decide who can and who cannot study in it, it certainly can also
determine on whom it can confer the honor and distinction of being its
graduates.
chanRoblesvirtualLawlibrary
Where it is shown that the conferment of an honor or distinction was obtained
through fraud, a university has the right to revoke or withdraw the honor or
distinction it has thus conferred. This freedom of a university does not
terminate upon the "graduation" of a student, as the Court of Appeals held. For
it is precisely the "graduation" of such a student that is in question. It is
noteworthy that the investigation of private respondent's case began before
her graduation. If she was able to join the graduation ceremonies on April 24,
1993, it was because of too many investigations conducted before the Board of
Regents finally decided she should not have been allowed to graduate.
Wide indeed is the sphere of autonomy granted to institutions of higher
learning, for the constitutional grant of academic freedom, to quote again
from Garcia v. Faculty Admission Committee, Loyola School of Theology, "is
not to be construed in a niggardly manner or in a grudging fashion."
Under the U.P. Charter, the Board of Regents is the highest governing body of
the University of the Philippines. It has the power to confer degrees upon the
recommendation of the University Council. It follows that if the conferment of a
degree is founded on error or fraud, the Board of Regents is also empowered,
subject to the observance of due process, to withdraw what it has granted
without violating a student's rights. An institution of higher learning cannot be
powerless if it discovers that an academic degree it has conferred is not
rightfully deserved. Nothing can be more objectionable than bestowing a
university's highest academic degree upon an individual who has obtained the
same through fraud or deceit. The pursuit of academic excellence is the
university's concern. It should be empowered, as an act of self-defense, to
take measures to protect itself from serious threats to its integrity.
While it is true that the students are entitled to the right to pursue their
education, the USC as an educational institution is also entitled to pursue its
academic freedom and in the process has the concomitant right to see to it
that this freedom is not jeopardized.128
It must be borne in mind that schools are established, not merely to develop
the intellect and skills of the studentry, but to inculcate lofty values, ideals and
attitudes; nay, the development, or flowering if you will, of the total
man.129 Essentially, education must ultimately be religious, i.e., one which
inculcates duty and reverence.130 Under the rubric of "right to education,"
students have a concomitant duty to learn under the rules laid down by the
school.131 Every citizen has a right to select a profession or course of study,
subject to fair, reasonable, and equitable admission and academic
requirements.132 chanroblesvirtuallawlibrary
The PMA is not different. As the primary training and educational institution of
the AFP, it certainly has the right to invoke academic freedom in the
enforcement of its internal rules and regulations, which are the Honor Code
and the Honor System in particular.
The Honor Code is a set of basic and fundamental ethical and moral principle.
It is the minimum standard for cadet behavior and serves as the guiding spirit
behind each cadet’s action. It is the cadet’s responsibility to maintain the
highest standard of honor. Throughout a cadet’s stay in the PMA, he or she is
absolutely bound thereto. It binds as well the members of the Cadet Corps
from its alumni or the member of the so-called “Long Gray Line.”
Likewise, the Honor Code constitutes the foundation for the cadets’ character
development. It defines the desirable values they must possess to remain part
of the Corps; it develops the atmosphere of trust so essential in a military
organization; and it makes them professional military soldiers.133 As it is for
character building, it should not only be kept within the society of cadets. It is
best adopted by the Cadet Corps with the end view of applying it outside as an
officer of the AFP and as a product of the PMA.134 chanroblesvirtuallawlibrary
The Honor Code and System could be justified as the primary means of
achieving the cadets’ character development and as ways by which the
Academy has chosen to identify those who are deficient in conduct.135 Upon the
Code rests the ethical standards of the Cadet Corps and it is also an
institutional goal, ensuring that graduates have strong character,
unimpeachable integrity, and moral standards of the highest order.136 To
emphasize, the Academy's disciplinary system as a whole is characterized as
"correctional and educational in nature rather than being legalistic and
punitive." Its purpose is to teach the cadets "to be prepared to accept full
responsibility for all that they do or fail to do and to place loyalty to the service
above self-interest or loyalty to friends or associates."137 chanroblesvirtuallawlibrary
Procedural safeguards in a student disciplinary case
Respondents stress that Guzman v. National University138 is more appropriate
in determining the minimum standards for the imposition of disciplinary
sanctions in academic institutions. Similarly, with the guideposts set
in Andrews, they believe that Cadet 1CL Cudia was accorded due process.
On the other hand, petitioners argue that the HC, the CRAB and the PMA fell
short in observing the important safeguards laid down in Ang Tibay v.
CIR139 and Non v. Judge Dames II,140 which set the minimum standards to
satisfy the demands of procedural due process in the imposition of disciplinary
sanctions. For them, Guzman did not entirely do away with the due process
requirements outlined in Ang Tibay as the Court merely stated that the
minimum requirements in the Guzman case are more apropos.
Respondents rightly argued.
Ateneo de Manila University v. Capulong141 already settled the issue as it held
that although both Ang Tibay and Guzman essentially deal with the
requirements of due process, the latter case is more apropossince it specifically
deals with the minimum standards to be satisfied in the imposition of
disciplinary sanctions in academic institutions. That Guzman is the authority on
the procedural rights of students in disciplinary cases was reaffirmed by the
Court in the fairly recent case of Go v. Colegio De San Juan De Letran.142
In Guzman, the Court held that there are minimum standards which must be
met to satisfy the demands of procedural due process, to wit:
(1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the charges
against them, with the assistance of counsel, if desired; (3) they shall be
informed of the evidence against them; (4) they shall have the right to adduce
evidence in their own behalf; and (5) the evidence must be duly considered by
the investigating committee or official designated by the school authorities to
hear and decide the case.143
We have been consistent in reminding that due process in disciplinary cases
involving students does not entail proceedings and hearings similar to those
prescribed for actions and proceedings in courts of justice;144 that the
proceedings may be summary;145 that cross-examination is not an essential
part of the investigation or hearing;146 and that the required proof in a student
disciplinary action, which is an administrative case, is neither proof beyond
reasonable doubt nor preponderance of evidence but only substantial evidence
or “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.”147chanroblesvirtuallawlibrary
What is crucial is that official action must meet minimum standards of fairness
to the individual, which generally encompass the right of adequate notice and a
meaningful opportunity to be heard.148 As held in De La Salle University, Inc. v.
Court of Appeals:149
Notice and hearing is the bulwark of administrative due process, the right to
which is among the primary rights that must be respected even in
administrative proceedings. The essence of due process is simply an
opportunity to be heard, or as applied to administrative proceedings, an
opportunity to explain one’s side or an opportunity to seek reconsideration of
the action or ruling complained of. So long as the party is given the
opportunity to advocate her cause or defend her interest in due course, it
cannot be said that there was denial of due process.
A formal trial-type hearing is not, at all times and in all instances, essential to
due process – it is enough that the parties are given a fair and reasonable
opportunity to explain their respective sides of the controversy and to present
supporting evidence on which a fair decision can be based. “To be heard” does
not only mean presentation of testimonial evidence in court – one may also be
heard through pleadings and where the opportunity to be heard through
pleadings is accorded, there is no denial of due process.150
The PMA Honor Code explicitly recognizes that an administrative proceeding
conducted to investigate a cadet’s honor violation need not be clothed with the
attributes of a judicial proceeding. It articulates that –
The Spirit of the Honor Code guides the Corps in identifying and assessing
misconduct. While cadets are interested in legal precedents in cases involving
Honor violations, those who hold the Spirit of the Honor Code dare not look
into these precedents for loopholes to justify questionable acts and they are
not to interpret the system to their own advantage.
The Spirit of the Honor Code is a way for the cadets to internalize Honor in a
substantive way. Technical and procedural misgivings of the legal systems may
chanroblesvirtuallawlibrary avert the true essence of imparting the Spirit of the Code for the reason that it
can be used to make unlawful attempt to get into the truth of matters
especially when a cadet can be compelled to surrender some civil rights and
chanRoblesvirtualLawlibrary liberties in order for the Code and System to be implemented. By virtue of
being a cadet, a member of the CCAFP becomes a subject of the Honor Code
and System. Cadet’s actions are bound by the existing norms that are logically
applied through the Code and System in order to realize the Academy’s mission
to produce leaders of character – men of integrity and honor.151
One of the fundamental principles of the Honor System also states: chanRoblesvirtualLawlibrary
2. The Honor System correlates with legal procedures of the
state’s Justice System but it does not demean its Spirit by
reducing the Code to a systematic list of externally observed
rules. Where misinterpretations and loopholes arise through
legalism and its technicalities, the objective of building the
character of the cadets becomes futile. While, generally, Public
Law penalizes only the faulty acts, the Honor System tries to
examine both the action and the intention.152
Like in other institutions of higher learning, there is aversion towards undue
judicialization of an administrative hearing in the military academy. It has been
said that the mission of the military is unique in the sense that its primary
business is to fight or be ready to fight wars should the occasion arise, and
that over-proceduralizing military determinations necessarily gives soldiers less
time to accomplish this task.153 Extensive cadet investigations and complex due
process hearing could sacrifice simplicity, practicality, and timeliness.
Investigations that last for several days or weeks, sessions that become
increasingly involved with legal and procedural points, and legal motions and
evidentiary objections that are irrelevant and inconsequential tend to disrupt,
delay, and confuse the dismissal proceedings and make them unmanageable.
Excessive delays cannot be tolerated since it is unfair to the accused, to his or
her fellow cadets, to the Academy, and, generally, to the Armed Forces. A good
balance should, therefore, be struck to achieve fairness, thoroughness, and
efficiency.154
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Considering that the case of Cadet 1CL Cudia is one of first impression in the
sense that this Court has not previously dealt with the particular issue of a
dismissed cadet’s right to due process, it is necessary for Us to refer to U.S.
jurisprudence for some guidance. Notably, our armed forces have been
patterned after the U.S. Army and the U.S. military code produced a salutary
effect in the military justice system of the Philippines.155 Hence, pertinent case
laws interpreting the U.S. military code and practices have persuasive, if not
the same, effect in this jurisdiction.
We begin by stating that U.S. courts have uniformly viewed that “due process”
is a flexible concept, requiring consideration in each case of a variety of
circumstances and calling for such procedural protections as the particular
situation demands.156Hagopian opined: chanRoblesvirtualLawlibrary
In approaching the question of what process is due before governmental action
adversely affecting private interests may properly be taken, it must be
recognized that due process is not a rigid formula or simple rule of thumb to be
applied undeviatingly to any given set of facts. On the contrary, it is a flexible
concept which depends upon the balancing of various factors, including
the nature of the private right or interest that is threatened, the extent
to which the proceeding is adversarial in character, the severity and
consequences of any action that might be taken, the burden that would
be imposed by requiring use of all or part of the full panoply of trial-
type procedures, and the existence of other overriding interests, such
as the necessity for prompt action in the conduct of crucial military
operations. The full context must therefore be considered in each
case.157 (Emphasis supplied)
Wasson, which was cited by Hagopian, broadly outlined the minimum
standards of due process required in the dismissal of a cadet. Thus: chanRoblesvirtualLawlibrary
[W]hen the government affects the private interests of individuals, it may not
proceed arbitrarily but must observe due process of law. x x x Nevertheless,
the flexibility which is inherent in the concept of due process of law precludes
the dogmatic application of specific rules developed in one context to entirely
distinct forms of government action. "For, though 'due process of law' generally
implies and includes actor, reus, judex, regular allegations, opportunity to
answer, and a trial according to some settled course of judicial proceedings, *
* * yet, this is not universally true." x x x Thus, to determine in any given case
what procedures due process requires, the court must carefully determine and
balance the nature of the private interest affected and of the government
interest involved, taking account of history and the precise circumstances
surrounding the case at hand.
While the government must always have a legitimate concern with the subject
matter before it may validly affect private interests, in particularly vital and
sensitive areas of government concern such as national security and military
affairs, the private interest must yield to a greater degree to the governmental.
x x x Few decisions properly rest so exclusively within the discretion of the
appropriate government officials than the selection, training, discipline and
dismissal of the future officers of the military and Merchant Marine. Instilling
and maintaining discipline and morale in these young men who will be required
to bear weighty responsibility in the face of adversity -- at times extreme -- is
a matter of substantial national importance scarcely within the competence of
the judiciary. And it cannot be doubted that because of these factors
historically the military has been permitted greater freedom to fashion its
disciplinary procedures than the civilian authorities.
We conclude, therefore, that due process only requires for the dismissal of a
Cadet from the Merchant Marine Academy that he be given a fair hearing at
which he is apprised of the charges against him and permitted a
defense. x x x For the guidance of the parties x x x the rudiments of a fair
hearing in broad outline are plain. The Cadet must be apprised of the
specific charges against him. He must be given an adequate
opportunity to present his defense both from the point of view of time
and the use of witnesses and other evidence. We do not suggest,
however, that the Cadet must be given this opportunity both when demerits
are awarded and when dismissal is considered. The hearing may be
procedurally informal and need not be adversarial.158 (Emphasis
supplied)
In Andrews, the U.S. Court of Appeals held that Wasson and Hagopian are
equally controlling in cases where cadets were separated from the military
academy for violation of the Honor Code. Following the two previous cases, it
was ruled that in order to be proper and immune from constitutional infirmity,
a cadet who is sought to be dismissed or separated from the academy must be
afforded a hearing, be apprised of the specific charges against him, and be
given an adequate opportunity to present his or her defense both from the
point of view of time and the use of witnesses and other
evidence.159Conspicuously, these vital conditions are not too far from what We
have already set in Guzman and the subsequent rulings in Alcuaz v. Philippine
School of Business Administration160 and De La Salle University, Inc. v. Court
of Appeals.161chanroblesvirtuallawlibrary
In this case, the investigation of Cadet 1CL Cudia’s Honor Code violation
followed the prescribed procedure and existing practices in the PMA. He was
notified of the Honor Report from Maj. Hindang. He was then given the
opportunity to explain the report against him. He was informed about his
options and the entire process that the case would undergo. The preliminary
investigation immediately followed after he replied and submitted a written
explanation. Upon its completion, the investigating team submitted a written
report together with its recommendation to the HC Chairman. The HC
thereafter reviewed the findings and recommendations. When the honor case
was submitted for formal investigation, a new team was assigned to conduct
the hearing. During the formal investigation/hearing, he was informed of the
charge against him and given the right to enter his plea. He had the chance to
explain his side, confront the witnesses against him, and present evidence in
his behalf. After a thorough discussion of the HC voting members, he was
found to have violated the Honor Code. Thereafter, the guilty verdict
underwent the review process at the Academy level – from the OIC of the HC,
to the SJA, to the Commandant of Cadets, and to the PMA Superintendent. A
separate investigation was also conducted by the HTG. Then, upon the
directive of the AFP-GHQ to reinvestigate the case, a review was conducted by
the CRAB. Further, a Fact-Finding Board/Investigation Body composed of the
CRAB members and the PMA senior officers was constituted to conduct a
deliberate investigation of the case. Finally, he had the opportunity to appeal
to the President. Sadly for him, all had issued unfavorable rulings.
It is well settled that by reason of their special knowledge and expertise gained
from the handling of specific matters falling under their respective jurisdictions,
the factual findings of administrative tribunals are ordinarily accorded respect if
not finality by the Court, unless such findings are not supported by evidence or
vitiated by fraud, imposition or collusion; where the procedure which led to the
findings is irregular; when palpable errors are committed; or when a grave
abuse of discretion, arbitrariness, or capriciousness is manifest.162 In the case
of Cadet 1CL Cudia, We find no reason to deviate from the general rule. The
grounds therefor are discussed below seriatim: chanRoblesvirtualLawlibrary
As to the right to be represented by a counsel –
For petitioners, respondents must be compelled to give Cadet 1CL Cudia the
right to be represented by a counsel who could actively participate in the
proceedings like in the cross-examination of the witnesses against him before
the CRAB or HC, if remanded. This is because while the CRAB allowed him to
be represented by a PAO lawyer, the counsel was only made an observer
without any right to intervene and demand respect of Cadet 1CL Cudia’s
rights.163 According to them, he was not sufficiently given the opportunity to
seek a counsel and was not even asked if he would like to have one. He was
only properly represented when it was already nearing graduation day after his
family sought the assistance of the PAO. Petitioners assert that Guzman is
specific in stating that the erring student has the right to answer the charges
against him or her with the assistance of counsel, if desired.
On the other hand, respondents cited Lumiqued v. Exevea164 and Nera v. The
Auditor General165 in asserting that the right to a counsel is not imperative in
administrative investigations or non-criminal proceedings. Also, based on Cadet
1CL Cudia’s academic standing, he is said to be obviously not untutored to fully
understand his rights and express himself. Moreover, the confidentiality of the
HC proceedings worked against his right to be represented by a counsel. In
any event, respondents claim that Cadet 1CL Cudia was not precluded from
seeking a counsel’s advice in preparing his defense prior to the HC hearing.
Essentially, petitioners claim that Cadet 1CL Cudia is guaranteed the right to
have his counsel not just in assisting him in the preparation for the
investigative hearing before the HC and the CRAB but in participating fully in
said hearings. The Court disagrees.
Consistent with Lumiqued and Nera, there is nothing in the 1987 Constitution
stating that a party in a non-litigation proceeding is entitled to be represented
by counsel. The assistance of a lawyer, while desirable, is not indispensable.
Further, in Remolona v. Civil Service Commission,166 the Court held that “a
party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of the respondent's capacity to
represent himself, and no duty rests on such body to furnish the person being
investigated with counsel.” Hence, the administrative body is under no duty to
provide the person with counsel because assistance of counsel is not an
absolute requirement.
More in point is the opinion in Wasson, which We adopt. Thus: chanRoblesvirtualLawlibrary
The requirement of counsel as an ingredient of fairness is a function of all of
the other aspects of the hearing. Where the proceeding is non-criminal in
nature, where the hearing is investigative and not adversarial and the
government does not proceed through counsel, where the individual concerned
is mature and educated, where his knowledge of the events x x x should
enable him to develop the facts adequately through available sources, and
where the other aspects of the hearing taken as a whole are fair, due process
does not require representation by counsel.167
To note, U.S. courts, in general, have declined to recognize a right to
representation by counsel, as a function of due process, in military academy
disciplinary proceedings.168 This rule is principally motivated by the policy of
"treading lightly on the military domain, with scrupulous regard for the power
and authority of the military establishment to govern its own affairs within the
broad confines of constitutional due process" and the courts' views that
disciplinary proceedings are not judicial in nature and should be kept informal,
and that literate and educated cadets should be able to defend
themselves.169 In Hagopian, it was ruled that the importance of informality in
the proceeding militates against a requirement that the cadet be accorded the
right to representation by counsel before the Academic Board and that unlike
the welfare recipient who lacks the training and education needed to
understand his rights and express himself, the cadet should be capable of
doing so.170 In the subsequent case of Wimmer v. Lehman,171 the issue was not
access to counsel but the opportunity to have counsel, instead of oneself,
examine and cross-examine witnesses, make objections, and argue the case
during the hearing. Disposing of the case, the U.S. Court of Appeals for the
Fourth Circuit was not persuaded by the argument that an individual of a
midshipman's presumed intelligence, selected because he is expected to be
able to care for himself and others, often under difficult circumstances, and
who has full awareness of what he is facing, with counsel's advice, was
deprived of due process by being required to present his defense in person at
an investigatory hearing.
In the case before Us, while the records are bereft of evidence that Cadet 1CL
Cudia was given the option or was able to seek legal advice prior to and/or
during the HC hearing, it is indubitable that he was assisted by a counsel, a
PAO lawyer to be exact, when the CRAB reviewed and reinvestigated the case.
The requirement of due process is already satisfied since, at the very least, the
counsel aided him in the drafting and filing of the Appeal Memorandum and
even acted as an observer who had no right to actively participate in the
proceedings (such as conducting the cross-examination). Moreover, not to be
missed out are the facts that the offense committed by Cadet 1CL Cudia is not
criminal in nature; that the hearings before the HC and the CRAB were
investigative and not adversarial; and that Cadet 1CL Cudia’s excellent
academic standing puts him in the best position to look after his own vested
interest in the Academy.
As to the confidentiality of records of the proceedings –
Petitioners allege that when Maj. Gen. Lopez denied in his March 11, 2014
letter Cadet 1CL Cudia’s request for documents, footages, and recordings
relevant to the HC hearings, the vital evidence negating the regularity of the
HC trial and supporting his defense have been surely overlooked by the CRAB
in its case review. Indeed, for them, the answers on whether Cadet 1CL Cudia
was deprived of due process and whether he lied could easily be unearthed
from the video and other records of the HC investigation. Respondents did not
deny their existence but they refused to present them for the parties and the
Court to peruse. In particular, they note that the Minutes of the HC dated
January 21, 2014 and the HC Formal Investigation Report dated January 20,
2014 were considered by the CRAB but were not furnished to petitioners and
the Court; hence, there is no way to confirm the truth of the alleged
statements therein. In their view, failure to furnish these documents could only
mean that it would be adverse if produced pursuant to Section 3 (e), Rule 131
of the Rules of Court.172
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For lack of legal basis on PMA’s claim of confidentiality of records, petitioners
contend that it is the ministerial duty of the HC to submit to the CRAB, for the
conduct of intelligent review of the case, all its records of the proceedings,
including video footages of the deliberations and voting. They likewise argue
that PMA’s refusal to release relevant documents to Cadet 1CL Cudia under the
guise of confidentiality reveals another misapplication of the Honor Code, which
merely provides: “A cadet who becomes part of any investigation is subject to
the existing regulations pertaining to rules of confidentiality and, therefore,
must abide to the creed of secrecy. Nothing shall be disclosed without proper
guidance from those with authority” (IV. The Honor System, Honor Committee,
Cadet Observer). This provision, they say, does not deprive Cadet 1CL Cudia of
his right to obtain copies and examine relevant documents pertaining to his
case.
Basically, petitioners want Us to assume that the documents, footages, and
recordings relevant to the HC hearings are favorable to Cadet 1CL Cudia’s
cause, and, consequently, to rule that respondents’ refusal to produce and
have them examined is tantamount to the denial of his right to procedural due
process. They are mistaken.
In this case, petitioners have not particularly identified any documents, witness
testimony, or oral or written presentation of facts submitted at the hearing that
would support Cadet 1CL Cudia’s defense. The Court may require that an
administrative record be supplemented, but only "where there is a 'strong
showing of bad faith or improper behavior' on the part of the agency,"173 both
of which are not present here. Petitioners have not specifically indicated the
nature of the concealed evidence, if any, and the reason for withholding it.
What they did was simply supposing that Cadet 1CL Cudia’s guilty verdict
would be overturned with the production and examination of such documents,
footages, and recordings. As will be further shown in the discussions below, the
requested matters, even if denied, would not relieve Cadet 1CL Cudia’s
predicament. If at all, such denial was a harmless procedural error since he
was not seriously prejudiced thereby.
As to the ostracism in the PMA –
To petitioners, the CRAB considered only biased testimonies and evidence
because Special Order No. 1 issued on February 21, 2014, which directed the
ostracism of Cadet 1CL Cudia, left him without any opportunity to secure
statements of his own witnesses. He could not have access to or approach the
cadets who were present during the trial and who saw the 8-1 voting result. It
is argued that the Order directing Cadet 1CL Cudia’s ostracism is of doubtful
legal validity because the Honor Code unequivocally announced: “x x x But by
wholeheartedly dismissing the cruel method of ostracizing Honor Code
violators, PMA will not have to resort to other humiliating means and shall only
have the option to make known among its alumni the names of those who
have not sincerely felt remorse for violating the Honor Code.”
On their part, respondents assert that neither the petition nor the petition-in-
intervention attached a full text copy of the alleged Special Order No. 1. In any
case, attributing its issuance to PMA is improper and misplaced because of
petitioners’ admission that ostracism has been absolutely dismissed as an
Academy-sanctioned activity consistent with the trend in International
Humanitarian Law that the PMA has included in its curriculum. Assuming that
said Order was issued, respondents contend that it purely originated from the
cadets themselves, the sole purpose of which was to give a strong voice to the
Cadet Corps by declaring that they did not tolerate Cadet 1CL Cudia’s honor
violation and breach of confidentiality of the HC proceedings.
More importantly, respondents add that it is highly improbable and unlikely
that Cadet 1CL Cudia was ostracized by his fellow cadets. They manifest that
as early as January 22, 2014, he was already transferred to the Holding
Center. The practice of billeting an accused cadet at the Holding Center is
provided for in the Honor Code Handbook. Although within the PMA compound,
the Holding Center is off-limits to cadets who do not have any business to
conduct therein. The cadets could not also ostracize him during mess times
since Cadet 1CL Cudia opted to take his meals at the Holding Center. The
circumstances obtaining when Special Order No. 1 was issued clearly foreclose
the possibility that he was ostracized in common areas accessible to other
cadets. He remained in the Holding Center until March 16, 2014 when he
voluntarily left the PMA. Contrary to his claim, guests were also free to visit
him in the Holding Center.
However, petitioners swear that Cadet 1CL Cudia suffered from ostracism in
the PMA. The practice was somehow recognized by respondents in
their Consolidated Comment and by PMA Spokesperson Maj. Flores in a news
report. The CHR likewise confirmed the same in its Resolution dated May 22,
2014. For them, it does not matter where the ostracism order originated from
because the PMA appeared to sanction it even if it came from the cadets
themselves. There was a tacit approval of an illegal act. If not, those cadets
responsible for ostracism would have been charged by the PMA officials.
Finally, it is claimed that Cadet 1CL Cudia did not choose to take his meals at
the Holding Center as he was not allowed to leave the place. Petitioners opine
that placing the accused cadet in the Holding Center is inconsistent with his or
her presumed innocence and certainly gives the implication of ostracism.
We agree with respondents. Neither the petition nor the petition-in-
intervention attached a full text copy or even a pertinent portion of the alleged
Special Order No. 1, which authorized the ostracism of Cadet 1CL Cudia. Being
hearsay, its existence and contents are of doubtful veracity. Hence, a definite
ruling on the matter can never be granted in this case.
The Court cannot close its eyes though on what appears to be an admission of
Cadet 1CL Mogol during the CHR hearing that, upon consultation with the
entire class, the baron, and the Cadet Conduct Policy Board, they issued an
ostracism order against Cadet 1CL Cudia.174 While not something new in a
military academy,175 ostracism’s continued existence in the modern times
should no longer be countenanced. There are those who argue that the
"silence" is a punishment resulting in the loss of private interests, primarily
that of reputation, and that such penalty may render illusory the possibility of
vindication by the reviewing body once found guilty by the HC.176 Furthermore,
in Our mind, ostracism practically denies the accused cadet’s protected rights
to present witnesses or evidence in his or her behalf and to be presumed
innocent until finally proven otherwise in a proper proceeding.
As to Cadet 1CL Cudia’s stay in the Holding Center, the Court upholds the
same. The Honor Code and Honor System Handbook provides that, in case a
cadet has been found guilty by the HC of violating the Honor Code and has
opted not to resign, he or she may stay and wait for the disposition of the
case. In such event, the cadet is not on full-duty status and shall be billeted at
the HTG Holding Center.177Similarly, in the U.S., the purpose of “Boarders
Ward” is to quarter those cadets who are undergoing separation actions.
Permitted to attend classes, the cadet is sequestered therein until final
disposition of the case. In Andrews, it was opined that the segregation of
cadets in the Ward was a proper exercise of the discretionary authority of
Academy officials. It relied on the traditional doctrine that "with respect to
decisions made by Army authorities, 'orderly government requires us to tread
lightly on the military domain, with scrupulous regard for the power and
authority of the military establishment to govern its own affairs within the
broad confines of constitutional due process.'" Also, in Birdwell v.
Schlesinger,178the “administrative segregation” was held to be a reasonable
exercise of military discipline and could not be considered an invasion of the
rights to freedom of speech and freedom of association.
Late and vague decisions –
It is claimed that Cadet 1CL Cudia was kept in the dark as to the charge
against him and the decisions arrived at by the HC, the CRAB, and the PMA. No
written decision was furnished to him, and if any, the information was unjustly
belated and the justifications for the decisions were vague. He had to
constantly seek clarification and queries just to be apprised of what he was
confronted with.
Petitioners relate that upon being informed of the “guilty” verdict, Cadet 1CL
Cudia immediately inquired as to the grounds therefor, but Cadet 1CL Mogol
answered that it is confidential since he would still appeal the same. By March
11, 2014, Maj. Gen. Lopez informed Cadet 1CL Cudia that the CRAB already
forwarded their recommendation for his dismissal to the General Headquarters
sometime in February-March 2014. Even then, he received no
decision/recommendation on his case, verbally or in writing. The PMA
commencement exercises pushed through with no written decision from the
CRAB or the PMA on his appeal. The letter from the Office of the Adjutant
General of the AFP was suspiciously delayed when the Cudia family received
the same only on March 20, 2014. Moreover, it fell short in laying down with
specificity the factual and legal bases used by the CRAB and even by the Office
of the Adjutant General. There remains no proof that the CRAB and the PMA
considered the evidence presented by Cadet 1CL Cudia, it being uncertain as to
what evidence was weighed by the CRAB, whether the same is substantial, and
whether the new evidence submitted by him was ever taken into account.
In refutation, respondents allege the existence of PMA’s practice of orally
declaring the HC finding, not putting it in a written document so as to protect
the integrity of the erring cadet and guard the confidentiality of the HC
proceedings pursuant to the Honor System. Further, they aver that a copy of
the report of the CRAB, dated March 10, 2014, was not furnished to Cadet 1CL
Cudia because it was his parents who filed the appeal, hence, were the ones
who were given a copy thereof.
Petitioners’ contentions have no leg to stand on. While there is a constitutional
mandate stating that “[no] decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on which it is
based,”179 such provision does not apply in Cadet 1CL Cudia’s case.
Neither Guzman nor Andrews require a specific form and content of a decision
issued in disciplinary proceedings. The Honor Code and Honor System
Handbook also has no written rule on the matter. Even if the provision applies,
nowhere does it demand that a point-by-point consideration and resolution of
the issues raised by the parties are necessary.180 What counts is that, albeit
furnished to him late, Cadet 1CL Cudia was informed of how it was decided,
with an explanation of the factual and legal reasons that led to the conclusions
of the reviewing body, assuring that it went through the processes of legal
reasoning. He was not left in the dark as to how it was reached and he knows
exactly the reasons why he lost, and is able to pinpoint the possible errors for
review.
As to the blind adoption of the HC findings –
Petitioners assert that, conformably with Sections 30 and 31 of C.A. No. 1, only
President Aquino as the Commander-in-Chief has the power to appoint and
remove a cadet for a valid/legal cause. The law gives no authority to the HC as
the sole body to determine the guilt or innocence of a cadet. It also does not
empower the PMA to adopt the guilty findings of the HC as a basis for
recommending the cadet’s dismissal. In the case of Cadet 1CL Cudia, it is
claimed that the PMA blindly followed the HC’s finding of guilt in terminating
his military service.
Further, it is the ministerial duty of the CRAB to conduct a review de novo of all
records without requiring Cadet 1CL Cudia to submit new evidence if it is
physically impossible for him to do so. In their minds, respondents cannot
claim that the CRAB and the PMA thoroughly reviewed the HC recommendation
and heard Cadet 1CL Cudia’s side. As clearly stated in the letter from the Office
of the AFP Adjutant General, “[in] its report dated March 10, 2014, PMA CRAB
sustained the findings and recommendations of the Honor Committee x x x It
also resolved the appeal filed by the subject Cadet.” However, the Final
Investigation Report of the CRAB was dated March 23, 2014. While such report
states that a report was submitted to the AFP General Headquarters on March
10, 2014 and that it was only on March 12, 2014 that it was designated as a
Fact-Finding Board/Investigating Body, it is unusual that the CRAB would do
the same things twice. This raised a valid and well-grounded suspicion that the
CRAB never undertook an in-depth investigation/review the first time it came
out with its report, and the Final Investigation Report was drafted merely as an
afterthought when the lack of written decision was pointed out by petitioners
so as to remedy the apparent lack of due process during the CRAB
investigation and review.
Despite the arguments, respondents assure that there was a proper
assessment of the procedural and legal correctness of the guilty verdict against
Cadet 1CL Cudia. They assert that the higher authorities of the PMA did not
merely rely on the findings of the HC, noting that there was also a separate
investigation conducted by the HTG from January 25 to February 7, 2014.
Likewise, contrary to the contention of petitioners that the CRAB continued
with the review of the case despite the absence of necessary documents, the
CRAB conducted its own review of the case and even conducted another
investigation by constituting the Fact-Finding Board/Investigating Body. For
respondents, petitioners failed to discharge the burden of proof in showing bad
faith on the part of the PMA. In the absence of evidence to the contrary and
considering further that petitioners’ allegations are merely self-serving and
baseless, good faith on the part of the PMA’s higher authorities is presumed
and should, therefore, prevail.
We agree with respondents.
The Honor Committee, acting on behalf of the Cadet Corps, has a limited role
of investigating and determining whether or not the alleged offender has
actually violated the Honor Code.181 It is given the responsibility of
administering the Honor Code and, in case of breach, its task is entirely
investigative, examining in the first instance a suspected violation. As a means
of encouraging self-discipline, without ceding to it any authority to make final
adjudications, the Academy has assigned it the function of identifying
suspected violators.182 Contrary to petitioners’ assertion, the HC does not have
the authority to order the separation of a cadet from the Academy. The results
of its proceedings are purely recommendatory and have no binding effect. The
HC determination is somewhat like an indictment, an allegation, which, in
Cadet 1CL Cudia’s case, the PMA-CRAB investigated de novo.183 In the U.S., it
was even opined that due process safeguards do not actually apply at the
Honor Committee level because it is only a "charging body whose decisions had
no effect other than to initiate de novo proceedings before a Board of
Officers."184
chanroblesvirtuallawlibrary
Granting, for argument’s sake, that the HC is covered by the due process
clause and that irregularities in its proceedings were in fact committed, still,
We cannot rule for petitioners. It is not required that procedural due process
be afforded at every stage of developing disciplinary action. What is required is
that an adequate hearing be held before the final act of dismissing a cadet
from the military academy.185In the case of Cadet 1CL Cudia, the OIC of HC,
the SJA, the Commandant of Cadets, and the PMA Superintendent reviewed
the HC findings. A separate investigation was also conducted by the HTG.
Then, upon the directive of the AFP-GHQ to reinvestigate the case, a review
was conducted by the CRAB. Finally, a Fact-Finding Board/Investigating Body
composed of the CRAB members and the PMA senior officers was constituted to
conduct a deliberate investigation of the case. The Board/Body actually held
hearings on March 12, 13, 14 and 20, 2014. Instead of commendation,
petitioners find it “unusual” that the CRAB would do the same things twice and
suspect that it never undertook an in-depth investigation/review the first time
it came out with its report. Such assertion is mere conjecture that deserves
scant consideration.
As to the dismissal proceedings as sham trial –
According to petitioners, the proceedings before the HC were a sham. The
people behind Cadet 1CL Cudia’s charge, investigation, and conviction were
actually the ones who had the intent to deceive and who took advantage of the
situation. Cadet 1CL Raguindin, who was a senior HC member and was the
second in rank to Cadet 1CL Cudia in the Navy cadet 1CL, was part of the team
which conducted the preliminary investigation. Also, Cadet 1CL Mogol, the HC
Chairman, previously charged Cadet 1CL Cudia with honor violation allegedly
for cheating (particularly, conniving with and tutoring his fellow cadets on a
difficult topic by giving solutions to a retake exam) but the charge was
dismissed for lack of merit. Even if he was a non-voting member, he was in a
position of influence and authority. Thus, it would be a futile exercise for Cadet
1CL Cudia to resort to the procedure for the removal of HC members.186 chanroblesvirtuallawlibrary
Further, no sufficient prior notice of the scheduled CRAB hearing was given to
Cadet 1CL Cudia, his family, or his PAO counsel. During one of her visits to him
in the Holding Center, petitioner-intervenor was advised to convince his son to
resign and immediately leave the PMA. Brig. Gen. Costales, who later became
the CRAB Head, also categorically uttered to Annavee: “Your brother, he lied!”
The CRAB conferences were merely used to formalize his dismissal and the
PMA never really intended to hear his side. For petitioners, these are
manifestations of PMA’s clear resolve to dismiss him no matter what.
For their part, respondents contend that the CHR’s allegation that Maj. Hindang
acted in obvious bad faith and that he failed to discharge his duty to be a good
father of cadets when he “paved the road to [Cadet 1CL Cudia’s] sham trial by
the Honor Committee” is an unfounded accusation. They note that when Maj.
Hindang was given the DR of Cadet 1CL Cudia, he revoked the penalty
awarded because of his explanation. However, all revocations of awarded
penalties are subject to the review of the STO. Therefore, it was at the
instance of Maj. Leander and the established procedure followed at the PMA
that Maj. Hindang was prompted to investigate the circumstances surrounding
Cadet 1 CL Cudia’s tardiness. Respondents add that bad faith cannot likewise
be imputed against Maj. Hindang by referring to the actions taken by Maj.
Jekyll Dulawan, the CTO of Cadets 1CL Narciso and Arcangel who also arrived
late for their next class. Unlike the other cadets, Cadet 1CL Cudia did not admit
his being late and effectively evaded responsibility by ascribing his tardiness to
Dr. Costales.
As to the CHR s finding that Cadet 1CL Mogol was likewise “in bad faith and
determined to destroy [Cadet 1CL] Cudia, for reasons of his own” because the
former previously reported the latter for an honor violation in November 2013,
respondents argue that the bias ascribed against him is groundless as there is
failure to note that Cadet 1CL Mogol was a non-voting member of the HC.
Further, he cannot be faulted for reporting a possible honor violation since he
is the HC Chairman and nothing less is expected of him. Respondents
emphasize that the representatives of the HC are elected from each company,
while the HC Chairman is elected by secret ballot from the incoming first class
representatives. Thus, if Cadet 1CL Cudia believed that there was bias against
him, he should have resorted to the procedure for the removal of HC members
provided for in the Honor Code Handbook.
Finally, respondents declare that there is no reason or ill-motive on the part of
the PMA to prevent Cadet 1CL Cudia from graduating because the Academy
does not stand to gain anything from his dismissal. On the contrary, in view of
his academic standing, the separation militates against PMA’s mission to
produce outstanding, honorable, and exceptional cadets.
The Court differs with petitioners.
Partiality, like fraudulent intent, can never be presumed. Absent some showing
of actual bias, petitioners’ allegations do not hold water. The mere imputation
of ill-motive without proof is speculative at best. Kolesa teaches us that to
sustain the challenge, specific evidence must be presented to overcome
a presumption of honesty and integrity in those serving as adjudicators; and it
must convince that, under a realistic appraisal of psychological tendencies and
human weaknesses, conferring investigative and adjudicative powers on the
same individual poses such a risk of actual bias or prejudgment that the
practice must be forbidden if the guarantee of due process is to be
implemented.187
Although a CTO like Maj. Hindang must decide whether demerits are to be
awarded, he is not an adversary of the cadet but an educator who shares an
identity of interest with the cadet, whom he counsels from time to time as a
future leader.188 When the occasion calls for it, cadets may be questioned as to
the accuracy or completeness of a submitted work. A particular point or issue
may be clarified. In this case, the question asked of Cadet 1CL Cudia
concerning his being late in class is proper, since there is evidence indicating
that a breach of regulation may have occurred and there is reasonable cause to
believe that he was involved in the breach of regulations.189 chanroblesvirtuallawlibrary
For lack of actual proof of bad faith or ill-motive, the Court shall rely on the
non-toleration clause of the Honor Code, i.e., “We do not tolerate those who
violate the Code.” Cadets are reminded that they are charged with a
tremendous duty far more superior to their personal feeling or
friendship.190 They must learn to help others by guiding them to accept the
truth and do what is right, rather than tolerating actions against truth and
justice.191 Likewise, cadets are presumed to be characteristically honorable;
they cannot overlook or arbitrarily ignore the dishonorable action of their
peers, seniors, or subordinates.192 These are what Cadet 1CL Mogol exactly
did, although he was later proven to have erred in his accusation. Note that
even the Honor Code and Honor System Handbook recognizes that
interpretation of one’s honor is generally subjective.193chanroblesvirtuallawlibrary
Moreover, assuming, for the sake of argument, that Cadets 1CL Raguindin and
Mogol as well as Brig. Gen. Costales have an axe to grind against Cadet 1CL
Cudia and were bent on causing, no matter what, the latter’s downfall, their
nefarious conduct would still be insignificant. This is so since the HC (both the
preliminary and formal investigation), the CRAB, and the Fact-Finding
Board/Investigating Body are collegial bodies. Hence, the claim that the
proceedings/hearings conducted were merely a farce because the three
personalities participated therein is tantamount to implying the existence of a
conspiracy, distrusting the competence, independence, and integrity of the
other members who constituted the majority. Again, in the absence of specifics
and substantial evidence, the Court cannot easily give credence to this
baseless insinuation.
As to the HC executive session/chambering –
Petitioners narrate that there was an irregular administrative hearing in the
case of Cadet 1CL Cudia because two voting rounds took place. After the result
of the secret balloting, Cadet 1CL Mogol ordered the voting members to go to a
room without the cadet recorders. Therein, the lone dissenter, Cadet 1CL
Lagura, was asked to explain his “not guilty” vote. Pressured to change his
vote, he was made to cast a new one finding Cadet 1CL Cudia guilty. The
original ballot was discarded and replaced. There was no record of the change
in vote from 8-1 to 9-0 that was mentioned in the HC formal report.
The Affidavit of Commander Junjie B. Tabuada executed on March 6, 2014 was
submitted by petitioners since he purportedly recalled Cadet 1CL Lagura telling
him that he was pressured to change his “not guilty” vote after the voting
members were “chambered.” In the sworn statement, Commander Tabuada
said:
chanRoblesvirtualLawlibrary
1. That after CDT 1CL CUDIA [was] convicted for honor
violation, I [cannot] remember exactly the date but sometime
in the morning of 23rd or 24th of January 2014, I was in my
office filling up forms for the renewal of my passport, CDT
1CL LAGURA entered and had business with my staff;
chanrobleslaw
2. When he was about to leave I called him. “Lags, halika
muna dito,” and he approached me and I let him sit down on
the chair in front of my table. I told and asked
him, “Talagang nadali si Cudia ah... ano ba ang
nangyari? Mag-Tagalog or mag-Bisaya ka.” He
replied, “Talagang NOT GUILTY ang vote ko sa kanya
sir”, and I asked him, “Oh, bakit naging guilty di ba pag
may isang nag NOT GUILTY, abswelto na? He
replied “Chinamber ako sir, bale pinapa-justify kung
bakit NOT GUILTY vote ko, at na-pressure din ako sir
kaya binago ko, sir.” So, I told him, “Sayang sya,
matalino at mabait pa naman”and he replied “oo nga sir”.
After that conversation, I let him go.194
It is claimed that the HC gravely abused its discretion when it committed
voting manipulation since, under the rules, it is required to have a unanimous
nine (9) votes finding an accused cadet guilty. There is nothing in the
procedure that permits the HC Chairman to order the “chambering” of a
member who voted contrary to the majority and subjects him or her to
reconsider in order to reflect a unanimous vote. Neither is there an order from
the Chief of Staff or the President sanctioning the HC procedure or approving
any change therein pursuant to Sections 30 and 31 of C.A. No. 1. The HC, the
CRAB, and the PMA violated their own rules and principles as embodied in the
Honor Code. Being a clear deviation from the established procedures, the
second deliberation should be considered null and void.
Petitioners further contend that the requirement of unanimous vote involves a
substantive right which cannot be unceremoniously changed without a
corresponding amendment/revision in the Honor Code and Honor System
Handbook. In their view, “chambering” totally defeats the purpose of voting by
secret ballot as it glaringly destroys the very essence and philosophy behind
the provisions of the Honor System, which is to ensure that the voting member
is free to vote what is in his or her heart and mind and that no one can
pressure or persuade another to change his or her vote. They suggest that if
one voting member acquits an accused cadet who is obviously guilty of the
offense, the solution is to remove him or her from the HC through the vote of
non-confidence as provided for in the Honor Code.195 chanroblesvirtuallawlibrary
Anent the above arguments, respondents contend that a distinction must be
made between the concepts of the Honor Code and the Honor System.
According to them, the former sets the standard for a cadet’s minimum ethical
and moral behavior and does not change, while the latter is a set of rules for
the conduct of the observance and implementation of the Honor Code and may
undergo necessary adjustments as may be warranted by the incumbent
members of the HC in order to be more responsive to the moral training and
character development of the cadets. The HC may provide guidelines when the
Honor System can be used to supplement regulations. This being so, the voting
process is continuously subject to change.
Respondents note that, historically, a non-unanimous guilty verdict
automatically acquits a cadet from the charge of Honor violation. The voting
members only write either “guilty” or “not guilty” in the voting sheets without
stating their name or their justification. However, this situation drew criticisms
since there were instances where a reported cadet already admitted his honor
violation but was acquitted due to the lone vote of a sympathetic voting
member.
In the case of Cadet 1CL Cudia, the HC adopted an existing practice that
should the voting result in 7-2 or 8-1 the HC would automatically sanction a
jury type of discussion called “executive session” or “chambering,” which is
intended to elicit the explanation and insights of the voting member/s. This
prevents the tyranny of the minority or lone dissenter from prevailing over the
manifest proof of guilt. The assailed voting practice has been adopted and
widely accepted by the PMA Siklab Diwa Class of 2014 since their first year in
the Academy. The allegations of conspiracy and sham trial are, therefore,
negated by the fact that such practice was in place and applied to all cases of
honor violations, not solely to the case of Cadet 1CL Cudia.
It is emphasized by respondents that any decision to change vote rests solely
on the personal conviction of the dissenter/s, without any compulsion from the
other voting members. There can also be no pressuring to change one’s vote to
speak of since a vote may only be considered as final when the Presiding
Officer has affixed his signature.
To debunk Commander Tabuada’s statements, respondents raise the argument
that the Fact-Finding Board/Investigating Body summoned Cadet 1CL Lagura
for inquiry. Aside from his oral testimony made under oath, he submitted to
the Board/Body an affidavit explaining that: chanRoblesvirtualLawlibrary
rd th
11.Sometime on 23 or 24 of January 2014, I went to
the Department of Naval Warfare to ask permission
if it is possible not to attend the Navy duty for the
reason that I will be attending our baseball game
outside the Academy.
12.After I was permitted not to attend my Navy Duty
and when I was about to exit out of the Office, CDR
JUNJIE B TABUADA PN, our Head Department Naval
Warfare Officer, called my attention. I approached
 him and he said: “Talagang nadali si Cudia ah. Ano
ba talaga ang nangyari?” At first, I was hesitant to
answer because of the confidentiality of the Honor
Committee proceedings. He again said: “Wag kang
mag-alala, atin, atin lang ito, alam ko naman na
bawal magsabi.” Then I answered: “Ako yung isang
not guilty Sir. Kaya [yung] Presiding Officer nagsabi
na pumunta muna kami sa Chamber. Nung nasa
chamber kami, nagsalita [yung] mga nagvote ng
Guilty tapos isa-isa nagsabi kung bakit ang boto nila
Guilty. Nung pakinggan ko, eh naliwanagan ako.
Pinalitan ko yung boto ko from Not Guilty to Guilty
Sir.” He replied: “Sayang si Cudia ano?” And I said:
“Oo nga sir, [s]ayang si Cudia, mabait pa naman at
matalino.”196
Cadet 1CL Lagura restated the above in the Counter-Affidavit executed on
March 12, 2014, which he submitted before the CHR wherein he attested to the
following:
3. I was chosen to be a voting member of the Honor
Committee for Honor Code violation committed by
Cadet Cudia, for “lying”. As a voting member, we
are the one who assess or investigate the case
whether the reported Cadet is Guilty for his actions
or not.
4. I was the only one who INITIALLY voted “NOT
GUILTY” among the nine (9) voting members of the
Honor Committee in the case of Cdt Cudia for Lying.
5. I initially voted “NOT GUILTY” for the reason that
after the proceedings and before the presiding
Officer told the members to vote, I was confused of
the case of Cadet Cudia. I have gathered some facts
from the investigation to make my decision but for
me it is not yet enough to give my verdict of guilty
to Cdt Cudia so I decided to vote “NOT GUILTY”
with a reservation in my mind that we will still be
discussing our verdicts if we will arrive at 8-1 or 7-
2. Thus, I can still change my vote if I may be
enlightened with the other’s justifications.
6. After the votes were collected, the Presiding Officer
told us that the vote is 8 for guilty and 1 for not
guilty. By way of practice and as I predicted, we
were told to go inside the anteroom for executive
meeting and to discuss our respective justifications.
I have been a member for two (2) years and the
voting committee will always go for executive
meeting whenever it will meet 8-1 or 7-2 votes.
7. I listened to them and they listened to me, then I
saw things that enlightened my confusions that
time. I gave a thumbs-up sign and asked for
another sheet of voting paper. I then changed my
vote from “NOT GUILTY” to “GUILTY” and the voting
members of the Honor Committee came up with the
final vote of nine (9) votes for guilty and zero (0)
votes for not guilty.
9. Cdt Cudia was called inside the courtroom and told
that the verdict was GUILTY of LYING. After that, all
persons inside the courtroom went back to
barracks.
10. Right after I changed to sleeping uniform, I was
approached by Cdt Jocson and Cdt Cudia, inquiring
and said: “Bakit ka naman nagpalit ng boto?” I
answered: “Nasa process yan, may mali talaga sa
rason mo.” They also asked who were inside the
Chamber and I mentioned only Cdt Arlegui and Cdt
Mogol. That was the last time that Cdt Cudia and
Cdt Jocson talked to me.
11. Sometime on 23rd or 24th of January 2014, I went to
the Department of Naval Warfare to asked (sic)
permission if it is possible not to attend the Navy
duty for the reason that I will be attending our
baseball game outside the Academy.
12. After I was permitted not to attend my Navy Duty
and when I was about to exit out of the Office, CDR
JUNJIE B TABUADA PN, our Head Department Naval
Warfare Officer, called my attention. I approached
him and he said: “Talagang nadali si Cudia ah. Ano
ba talaga ang nangyari?” At first, I was hesitant to
answer because of the confidentiality of the Honor
Committee proceedings. He again said: “Wag kang
mag-alala, atin, atin lang ito, alam ko naman na
bawal magsabi.” Then I answered: “Ako yung isang
not guilty Sir. Kaya [yung] Presiding Officer nagsabi
na pumunta muna kami sa Chamber. Nung nasa
chamber kami, nagsalita [yung] mga nagvote ng
Guilty tapos isa-isa nagsabi kung bakit ang boto nila
Guilty. Nung pakinggan ko, eh naliwanagan ako.
Pinalitan ko yung boto ko from Not Guilty to Guilty
Sir.” He replied: “Sayang si Cudia ano?” And I said:
“Oo nga sir, [s]ayang si Cudia, mabait pa naman at
matalino.”197
Still not to be outdone, petitioners argue that the very fact that Cadet 1CL
Lagura, as the lone dissenter, was made to explain in the presence of other HC
members, who were in disagreement with him, gives a semblance of
intimidation, force, or pressure. For them, the records of the HC proceedings,
which were not presented assuming they actually exist, could have been the
best way to ensure that he was free to express his views, reject the opinion of
the majority, and stick to his decision. Also, it was pointed out that Cadet 1CL
Lagura failed to clearly explain in his affidavit why he initially found Cadet 1CL
Cudia “not guilty” and what made him change his mind. His use of general
statements like he “was confused of the case” and “saw things that enlightened
my confusions” could hardly suffice to establish why he changed his vote.
Finally, petitioners note the admission of Cadet 1CL Lagura during the CHR
investigation that he was the only one who was given another ballot sheet
while in the chamber and that he accomplished it in the barracks which he only
submitted the following day. However, as the CHR found, the announcement of
the 9-0 vote was done immediately after the HC came out from the chamber
and before Cadet 1CL Lagura submitted his accomplished ballot sheet.
We rule for respondents.
As to the manner of voting by the HC members, the Honor Code tersely
provides:
chanRoblesvirtualLawlibrary
After a thorough discussion and deliberation, the presiding member of the
Board will call for the members to vote whether the accused is GUILTY or NOT
GUILTY. A unanimous vote (9 votes) of GUILTY decides that a cadet is found
guilty of violating the Honor Code.198
From the above-quoted provision, it readily appears that the HC practice of
conducting “executive session” or “chambering” is not at all prohibited. The HC
is given leeway on the voting procedures in actual cases taking into account
the exigency of the times. What is important is that, in the end, there must be
a unanimous nine votes in order to hold a cadet guilty of violating the Honor
Code.
Granting, for argument’s sake, that the HC violated its written
procedure,199 We still rule that there is nothing inherently wrong with the
practice of “chambering” considering that the presence of intimidation or force
cannot automatically be inferred therefrom. The essence of secret balloting and
the freedom to vote based on what is in the heart and mind of the voting
member is not necessarily diluted by the fact that a second/final voting was
conducted. As explained by Cadet 1CL Mogol before the CRAB: chanRoblesvirtualLawlibrary
13. x x x [The] dissenting voter would have to explain his side and
insights regarding the case at hand. The other members, on
the other hand, would be given the chance to explain their
votes as well as their insights to the dissenting voter. The
decision to change the vote of the dissenting voter rests solely
on his personal conviction. Thus, if he [or she] opted not to
change his/her vote despite the discussion, his [or her] vote is
accorded respect by the Honor Committee.200
It is elementary that intimidation or force is never presumed. Mere allegation is
definitely not evidence. It must be substantiated and proved because a person
is presumed to be innocent of a crime or wrong and that official duty has been
regularly performed.201
chanroblesvirtuallawlibrary
The oral and written statements of Cadet 1CL Lagura should settle the issue.
Before the Fact-Finding Board/Investigating Body and the CHR, he consistently
denied that he was pressured by the other voting members of the HC. His
representation must be accepted as it is regardless of whether he has
satisfactorily elaborated his decision to change his vote. Being the one who
was “chambered,” he is more credible to clarify the issue. In case of doubt, We
have to rely on the faith that Cadet 1CL Lagura observed the Honor Code,
which clearly states that every cadet must be his or her own Final Authority in
honor; that he or she should not let other cadets dictate on him or her their
sense of honor.202 Moreover, the Code implies that any person can have
confidence that a cadet and any graduate of the PMA will be fair and just in
dealing with him; that his actions, words and ways are sincere and true.203 chanroblesvirtuallawlibrary

As to the other alleged “irregularities” committed such as not putting on record
the initial/first voting and Cadet 1CL Lagura’s bringing of his ballot sheet to and
accomplishing it in the barracks, the Court shall no longer dwell on the same
for being harmless procedural errors that do not materially affect the validity of
the HC proceedings.
Cadet 1CL Cudia’s alleged untruthful statements
Petitioners insist that Cadet 1CL Cudia did not lie. According to them, there is
no clear time reference as to when was the actual dismissal or what was the
exact time of dismissal – whether it should be the dismissal inside the room or
the dismissal after the section grade was given by Dr. Costales – in the minds
of Cadet 1CL Cudia, Maj. Hindang, and the HC investigators and voting
members. They claim that during long examinations, the time of dismissal was
usually five minutes before the class was set to end and the protocol of
dismissing the class 15 minutes earlier was not observed. When Maj. Hindang
stated in accusatory language that Cadet 1CL Cudia perverted the truth by
stating that OR432 class ended at 1500H, he did not state what was the true
time of dismissal. He did not mention whether the truth he was relying on was
5 or 15 minutes before the scheduled end of class.
It is also averred that Cadet 1CL Cudia’s only business was to ask Dr. Costales
a query such that his business was already finished as soon as she gave an
answer. However, a new business was initiated by Dr. Costales, which is, Cadet
1CL Cudia must stay and wait for the section grade. At that point in time, he
was no longer in control of the circumstances. Petitioners claim that Dr.
Costales never categorically stated that Cadet 1CL Cudia was lying. She
recognized the confusion. Her text messages to him clarified his alleged
violation. Also, the CHR noted during its investigation that she could not
exactly recall what happened in her class on November 14, 2013.
Furthermore, petitioners reasoned out that when respondents stated that
ENG412 class started at 3:05 p.m., it proves that Cadet 1CL Cudia was
obviously not late. If, as indicated in his Delinquency Report, he was late two
(2) minutes in his 1500-1600H class in ENG 412, he must have arrived 3:02
p.m. Respondents, however, claim that the class started at 3:05 p.m. Thus,
Cadet 1CL Cudia was not late.
Relative to his explanation to the delinquency report, petitioners were of the
view that what appears to have caused confusion in the minds of respondents
is just a matter of semantics; that the entire incident was a product of
inaccuracy, not lying. It is malicious for them to insinuate that Cadet 1CL Cudia
purposely used incorrect language to hide the truth. Citing Merriam Webster’s
Dictionary, petitioners argue that “dismiss” means to permit or cause to leave,
while “class” refers to a body of students meeting regularly to study the same
subject. According to them, these two words do not have definite and precise
meanings but are generic terms. Other than the words “class” and “dismiss”
used by Cadet 1CL Cudia, which may actually be used in their generic sense,
there is nothing deceiving about what he said. Thus, the answer he chose
might be wrong or not correct, but it is not false or not true.
For petitioners, Cadet 1CL Cudia’s explanations are evidently truthful and with
no intent to deceive or mislead. He did not manipulate any fact and was
truthful of his explanation. His statements were clear and unambiguous but
were given a narrow-minded interpretation. Even the Honor Code
acknowledges that “[e]xperience demonstrates that human communication is
imperfect at best, and some actions are often misinterpreted.”
Lastly, petitioners contend that Cadet 1CL Cudia’s transcript of records reflects
not only his outstanding academic performance but proves his good conduct
during his four-year stay in the Academy. He has above-average grades in
Conduct, with grades ranging from 96 to 100 in Conduct I to XI. His propensity
to lie is, therefore, far from the truth.
On the other hand, respondents were equally adamant to contend that Cadet
1CL Cudia was obviously quibbling, which, in the military parlance, is
tantamount to lying. He fell short in telling a simple truth. He lied by making
untruthful statements in his written explanation. Respondents want Us to
consider the following:chanRoblesvirtualLawlibrary
First, their OR432 class was not dismissed late. During the formal
investigation, Dr. Costales testified that a class is dismissed as long as the
instructor is not there and the bell has rung. In cases of lesson examinations
(LE), cadets are dismissed from the time they have answered their respective
LEs. Here, as Cadet Cudia stated in his Request for Reconsideration of Meted
Punishment, “We had an LE that day (14 November 2013) in OR432 class.
When the first bell rang (1455), I stood up, reviewed my paper and submitted
it to my instructor, Ms. Costales. xxx” Clearly, at the time Cadet Cudia
submitted his papers, he was already considered dismissed. Thus, he cannot
claim that his [OR432] class ended at 3:00 in the afternoon (1500H) or “a bit
late.”
Second, Cadet Cudia was in control of the circumstances leading to his
tardiness. After submitting his paper, Cadet Cudia is free to leave and attend
his next class. However, he initiated a conversation with Dr. Costales regarding
their grades. He was not under instruction by Dr. Costales to stay beyond the
period of her class.
Furthermore, during the investigation of the Fact-Finding Board/Investigating
Body, Dr. Costales clarified her statements in her written explanation. She
explained that the “instruction to wait” is a response to Cadet Cudia’s request
and that it was not her initiated instruction. Clearly, there was no directive
from Dr. Costales for Cadet Cudia and the other cadets to stay. On the
contrary, it was them who wanted to meet with the instructor.
Third, contrary to Cadet Cudia’s explanation, his subsequent class, ENG412,
did not exactly start at 3:00 in the afternoon (1500H). In the informal review
conducted by the HTG to check the findings of the HC, Professor Berong
confirmed that her English class started as scheduled (3:05 in the afternoon, or
1505H) and not earlier. Cadet 1 CL Barrawed, the acting class marcher of
ENG412 also testified that their class started as scheduled (3:05 in the
afternoon, or 1505) and not earlier.204
Respondents were unimpressed with the excuse that Cadet 1CL Cudia had no
intention to mislead or deceive but merely used wrong and unfitting words in
his explanations. For them, considering his academic standing, it is highly
improbable that he used incorrect language to justify his mistake.
Respondents’ arguments are tenable.
The issue of whether Cadet 1CL Cudia committed lying is an issue of fact.
Unfortunately for petitioners, the Court, not being a trier of facts, cannot pass
upon factual matters as it is not duty-bound to analyze and weigh again the
evidence considered in the proceedings below. Moreover, We reiterate the long
standing rule that factual findings of administrative tribunals are ordinarily
accorded respect if not finality by the Court. In this case, as shown in the
previous discussions, there is no evidence that the findings of the investigating
and reviewing bodies below are not supported by evidence or vitiated by fraud,
imposition or collusion; that the procedure which led to the findings is
irregular; that palpable errors were committed; or that a grave abuse of
discretion, arbitrariness, or capriciousness is manifest. With respect to the core
issue of whether lying is present in this case, all investigating and reviewing
bodies are in consonance in holding that Cadet 1CL Cudia in truth and in fact
lied.
For purposes of emphasis though, We shall supplement some points.
As succinctly worded, the Honor Code of the Cadet Corps Armed Forces of the
Philippines (CCAFP) states: “We, the Cadets, do not lie, cheat, steal, nor
tolerate among us those who do.”
The First Tenet of the Honor Code is “We do not lie.” Cadets violate the Honor
Code by lying if they make an oral or written statement which is contrary to
what is true or use doubtful information with the intent to deceive or
mislead.205 It is expected that every cadet’s word is accepted without challenge
on its truthfulness; that it is true without qualification; and that the cadets
must answer directly, completely and truthfully even though the answer may
result in punitive action under the CCPB and CCAFPR.206 chanroblesvirtuallawlibrary
To refresh, in his Explanation of Report dated December 8, 2013, Cadet 1CL
Cudia justified that: “I came directly from OR432 Class. We were dismissed a
bit late by our instructor Sir.” Subsequently, in his Request for Reconsideration
of Meted Punishment to Maj. Leander, he reasoned out as follows:
I strongly believe that I am not in control of the circumstances, our 4th period
class ended 1500H and our 5th period class, which is ENG412, started 1500H
also. Immediately after 4th period class, I went to my next class without any
intention of being late Sir.207
In this case, the Court agrees with respondents that Cadet 1CL Cudia
committed quibbling; hence, he lied in violation of the Honor Code.
Following an Honor Reference Handbook, the term "Quibbling" has been
defined in one U.S. case as follows: chanRoblesvirtualLawlibrary
A person can easily create a false impression in the mind of his listener by
cleverly wording what he says, omitting relevant facts, or telling a partial truth.
When he knowingly does so with the intent to deceive or mislead, he is
quibbling. Because it is an intentional deception, quibbling is a form of lying.208
The above definition can be applied in the instant case. Here, instead of
directly and completely telling the cause of his being late in the ENG412 class
of Prof. Berong, Cadet 1CL Cudia chose to omit relevant facts, thereby, telling
a half-truth.
The two elements that must be presented for a cadet to have committed an
honor violation are: chanRoblesvirtualLawlibrary
1. The act and/or omission, and
2. The intent pertinent to it. cralawred
Intent does not only refer to the intent to violate the Honor Code, but intent to
commit or omit the act itself.209 chanroblesvirtuallawlibrary
The basic questions a cadet must always seek to answer unequivocally are: chanRoblesvirtualLawlibrary
1. Do I intend to deceive?
2. Do I intend to take undue advantage?
If a cadet can answer NO to BOTH questions, he or she is doing the honorable
thing.210
chanroblesvirtuallawlibrary
Intent, being a state of mind, is rarely susceptible of direct proof, but must
ordinarily be inferred from the facts, and therefore, can only be proved by
unguarded expressions, conduct and circumstances generally.211 In this case,
Cadet 1CL Cudia’s intent to deceive is manifested from the very act of
capitalizing on the use of the words “dismiss” and “class.” The truth of the
matter is that the ordinary usage of these two terms, in the context of an
educational institution, does not correspond to what Cadet 1CL Cudia is trying
to make it appear. In that sense, the words are not generic and have definite
and precise meaning.
By no stretch of the imagination can Cadets 1CL Cudia, Miranda, Arcangel, and
Narciso already constitute a “class.” The Court cannot agree that such term
includes “every transaction and communication a teacher does with her
students.” Clearly, it does not take too much intelligence to conclude that
Cadet 1CL Cudia should have been accurate by pinpointing who were with him
when he was late in the next class. His deceptive explanation is made more
obvious when compared with what Cadets 1CL Archangel and Narciso wrote in
their DR explanation, which was: “We approached our instructor after our
class.”212 chanroblesvirtuallawlibrary
chanRoblesvirtualLawlibrary
Further, it is unimportant whether the time of dismissal on November 14, 2013
was five or fifteen minutes ahead of the scheduled end of class. Worth noting is
that even Dr. Costales, who stood as a witness for Cadet 1CL Cudia,
consistently admitted before the HC, the Fact-Finding Board/Investigating
Body, and the CHR that he was already dismissed when he passed his LE
paper.213 During the hearing of the Board/Body, she also declared that she
merely responded to his request to see the results of the UE1 and that she had
reservations on the phrases “under my instruction” and “dismissed a bit late”
used in his letter of explanation to the HC. In addition, Dr. Costales manifested
her view before the CHR that the act of Cadet 1CL Cudia of inquiring about his
grade outside their classroom after he submitted his LE paper is not part of the
class time because the consultation, being cadet-initiated, is voluntary.214 chanroblesvirtuallawlibrary
Assuming, for the sake of argument, that a new business was initiated by Dr.
Costales when Cadet 1CL Cudia was asked to stay and wait for the section
grade, still, this does not acquit him. Given such situation, a responsible cadet
who is fully aware of the time constraint has the last say, that is, to politely
decline the invitation and immediately go to the next class. This was not done
by Cadet 1CL Cudia. Thus, it cannot be said that he already lost control over
the circumstances.
It is apparent, therefore, that Cadet 1CL Cudia cunningly chose words which
led to confusion in the minds of respondents and eventually commenced the
HC inquiry. His case is not just a matter of semantics and a product of plain
and simple inaccuracy. There is manipulation of facts and presentation of
untruthful explanation constitutive of Honor Code violation.
Evidence of prior good conduct cannot clear Cadet 1CL Cudia. While his
Transcript of Records (TOR) may reflect not only his outstanding academic
performance but his excellent grade in subjects on Conduct during his four-
year stay in the PMA,215 it does not necessarily follow that he is innocent of the
offense charged. It is enough to say that “evidence that one did or did not do a
certain thing at one time is not admissible to prove that he did or did not do
the same or similar thing at another time.”216 While the TOR may be received
to prove his identity or habit as an exceptional PMA student, it does not show
his specific intent, plan, or scheme as cadet accused of committing a specific
Honor Code violation.
Dismissal from the PMA as unjust and cruel punishment
Respondents insist that violation of the Honor Code warrants separation of the
guilty cadet from the cadet corps. Under the Cadet Corps Armed Forces of the
Philippines Regulation (CCAFPR), a violation of the Cadet Honor Code is
considered Grave (Class 1) delinquency which merits a recommendation for a
cadet’s dismissal from the PMA Superintendent. The same is likewise clear
from the Honor Code and Honor System Handbook. Cadet 1CL Cudia is,
therefore, presumed to know that the Honor Code does not accommodate a
gradation or degree of offenses. There is no difference between a little lie and a
huge falsehood. Respondents emphasize that the Honor Code has always been
considered as an absolute yardstick against which cadets have measured
themselves ever since the PMA began and that the Honor Code and System
seek to assure that only those who are able to meet the high standards of
integrity and honor are produced by the PMA. As held in Andrews, it is
constitutionally permissible for the military “to set and enforce uncommonly
high standards of conduct and ethics.” Thus, in violating the Honor Code, Cadet
1CL Cudia forfeits his privilege to graduate from the PMA.
On their part, petitioners concede that if it is proven that a cadet breached the
Honor Code, the offense warrants his or her dismissal since such a policy may
be the only means to maintain and uphold the spirit of integrity in the
military.217 They maintain though that in Cadet 1CL Cudia’s case there is no
need to distinguish between a “little lie” and a “huge falsehood” since he did
not lie at all. Absent any intent to deceive and to take undue advantage, the
penalty imposed on him is considered as unjust and cruel. Under the
circumstances obtaining in this case, the penalty of dismissal is not
commensurate to the fact that he is a graduating cadet with honors and what
he allegedly committed does not amount to an academic deficiency or an
intentional and flagrant violation of the PMA non-academic rules and
regulations. Citing Non, petitioners argue that the penalty imposed must be
proportionate to the offense. Further, Isabelo, Jr. is squarely applicable to the
facts of the case. Cadet 1CL Cudia was deprived of his right to education, the
only means by which he may have a secure life and future.
Considering Our finding that Cadet 1CL Cudia in truth and in fact lied and his
acceptance that violation of the Honor Code warrants the ultimate penalty of
dismissal from the PMA, there is actually no more dispute to resolve. Indeed,
the sanction is clearly set forth and Cadet 1CL Cudia, by contract, risked this
when he entered the Academy.218 We adopt the ruling in Andrews219 wherein it
was held that, while the penalty is severe, it is nevertheless reasonable and
not arbitrary, and, therefore, not in violation of due process. It quoted the
disposition of the district court, thus:
chanRoblesvirtualLawlibrary
The fact that a cadet will be separated from the Academy upon a finding that
he has violated the Honor Code is known to all cadets even prior to the
beginning of their careers there. The finding of a Code violation by hypothesis
includes a finding of scienter on the part of the offender. While separation is
admittedly a drastic and tragic consequence of a cadet's transgression, it is not
an unconstitutionally arbitrary one, but rather a reasonable albeit severe
method of preventing men who have suffered ethical lapses from becoming
career officers. That a policy of admonitions or lesser penalties for single
violations might be more compassionate -- or even more effective in achieving
the intended result -- is quite immaterial to the question of whether the
harsher penalty violates due process.220
Nature of the CHR Findings
Petitioners contend that the PMA turned a blind eye on the CHR’s
recommendations. The CHR, they note, is a constitutional body mandated by
the 1987 Constitution to investigate all forms of human rights violations
involving civil and political rights, and to conduct investigative monitoring of
economic, social, and cultural rights, particularly of vulnerable sectors of
society. Further, it was contended that the results of CHR’s investigation and
recommendations are so persuasive that this Court, on several occasions like
in the cases of Cruz v. Sec. of Environment & Natural Resources221 and Ang
Ladlad LGBT Party v. Commission on Elections,222 gave its findings serious
consideration. It is not, therefore, too late for the Court to hear what an
independent and unbiased fact-finding body has to say on the case.
In opposition, respondents assert that Simon, Jr. v. Commission on Human
Rights223 ruled that the CHR is merely a recommendatory body that is not
empowered to arrive at a conclusive determination of any controversy.
We are in accord with respondents.
The findings of fact and the conclusions of law of the CHR are merely
recommendatory and, therefore, not binding to this Court. The reason is that
the CHR’s constitutional mandate extends only to the investigation of all forms
of human rights violations involving civil and political rights.224 As held
in Cariño v. Commission on Human Rights225 and a number of subsequent
cases,226 the CHR is only a fact-finding body, not a court of justice or a quasi-
judicial agency. It is not empowered to adjudicate claims on the merits or
settle actual case or controversies. The power to investigate is not the same as
adjudication:chanRoblesvirtualLawlibrary
The most that may be conceded to the Commission in the way of adjudicative
power is that it may investigate, i.e., receive evidence and make findings of
fact as regards claimed human rights violations involving civil and political
rights. But fact-finding is not adjudication, and cannot be likened to the judicial
function of a court of justice, or even a quasi-judicial agency or official. The
function of receiving evidence and ascertaining therefrom the facts of a
controversy is not a judicial function, properly speaking. To be considered
such, the faculty of receiving evidence and making factual conclusions in a
controversy must be accompanied by the authority of applying the law to those
factual conclusions to the end that the controversy may be decided or
determined authoritatively, finally and definitively, subject to such appeals or
modes of review as may be provided by law. This function, to repeat, the
Commission does not have.
xxxx
[i]t cannot try and decide cases (or hear and determine causes) as courts of
justice, or even quasi-judicial bodies do. To investigate is not to adjudicate or
adjudge. Whether in the popular or the technical sense, these terms have well
understood and quite distinct meanings.
sense;" and "adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x x Implies a judicial determination of a
fact, and the entry of a judgment."227
All told, petitioners are not entitled to moral and exemplary damages in
accordance with Articles 19, 2217, 2219 and 2229 of the Civil Code. The
dismissal of Cadet 1CL Cudia from the PMA did not effectively deprive him of a
future. Cliché though it may sound, being a PMA graduate is not the “be-all and
end-all” of his existence. A cadet separated from the PMA may still continue to
pursue military or civilian career elsewhere without suffering the stigma
attached to his or her dismissal. For one, as suggested by respondents, DND-
AFP Circular No. 13, dated July 15, 1991, on the enlistment and reenlistment in
the AFP Regular Force, provides under Section 14 (b) thereof that priority shall
be given to, among others, the ex-PMA or PAFFFS cadets.228 If the positions
open does not appeal to his interest for being way below the rank he could
have achieved as a PMA graduate, Cadet 1CL Cudia could still practice other
equally noble profession or calling that is best suited to his credentials,
competence, and potential. Definitely, nobody can deprive him of that choice.
WHEREFORE, the Petition is DENIED. The dismissal of Cadet First Class
Aldrin Jeff P. Cudia from the Philippine Military Academy is hereby AFFIRMED.
No costs.
SO ORDERED.

"Investigate," commonly understood, means to examine, explore, inquire or

delve or probe into, research on, study. The dictionary definition of
“investigate” is "to observe or study closely: inquire into systematically: "to
search or inquire into: x x x to subject to an official probe x x x: to conduct an
official inquiry;" The purpose of investigation, of course, is to discover, to find
out, to learn, obtain information. Nowhere included or intimated is the notion
of settling, deciding or resolving a controversy involved in the facts inquired
into by application of the law to the facts established by the inquiry.

The legal meaning of "investigate" is essentially the same: "(t)o follow up step
by step by patient inquiry or observation. To trace or track; to search into; to
examine and inquire into with care and accuracy; to find out by careful
inquisition; examination; the taking of evidence; a legal inquiry;" "to inquire;
to make an investigation," "investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily does not require a
hearing. 2 Am J2d Adm L Sec. 257; x x x an inquiry, judicial or otherwise, for
the discovery and collection of facts concerning a certain matter or matters."

"Adjudicate," commonly or popularly understood, means to adjudge, arbitrate,

judge, decide, determine, resolve, rule on, settle. The dictionary defines the
term as "to settle finally (the rights and duties of the parties to a court case)
on the merits of issues raised: xx to pass judgment on: settle judicially: x x x
act as judge." And "adjudge" means "to decide or rule upon as a judge or with
judicial or quasi-judicial powers: xx to award or grant judicially in a case of
controversy x x x."

In the legal sense, "adjudicate" means: "To settle in the exercise of judicial
authority. To determine finally. Synonymous with adjudge in its strictest