Corona v. United Harbor Pilots Assn. of the Phil.

(283 SCRA 31)

EN BANC

[G.R. No. 111953. December 12, 1997]

HON. RENATO C. CORONA, in his capacity as Assistant Secretary for Legal Affairs,
HON. JESUS B. GARCIA, in his capacity as Acting Secretary, Department of
Transportation and Communications, and ROGELIO A. DAYAN, in his capacity as
General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR
PILOTS ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS
ASSOCIATION, respondents.

DECISION
ROMERO, J.:

In issuing Administrative Order No. 04-92 (PPA-AO No. 04-92), limiting the term of
appointment of harbor pilots to one year subject to yearly renewal or cancellation, did the
Philippine Ports Authority (PPA) violate respondents right to exercise their profession and their
right to due process of law?
The PPA was created on July 11, 1974, by virtue of Presidential Decree No. 505. On
December 23, 1975, Presidential Decree No. 857 was issued revising the PPAs charter. Pursuant
to its power of control, regulation, and supervision of pilots and the pilotage profession, [1] the
PPA promulgated PPA-AO-03-85 [2] on March 21, 1985, which embodied the Rules and
Regulations Governing Pilotage Services, the Conduct of Pilots and Pilotage Fees in Philippine
Ports. These rules mandate, inter alia, that aspiring pilots must be holders of pilot licenses [3] and
must train as probationary pilots in outports for three months and in the Port of Manila for four
months. It is only after they have achieved satisfactory performance [4] that they are
given permanent and regular appointments by the PPA itself [5] to exercise harbor pilotage until
they reach the age of 70, unless sooner removed by reason of mental or physical unfitness by the
PPA General Manager. [6] Harbor pilots in every harbor district are further required to organize
themselves into pilot associations which would make available such equipment as may be
required by the PPA for effective pilotage services. In view of this mandate, pilot associations
invested in floating, communications, and office equipment. In fact, every new pilot appointed
by the PPA automatically becomes a member of a pilot association and is required to pay a
proportionate equivalent equity or capital before being allowed to assume his duties, as
reimbursement to the association concerned of the amount it paid to his predecessor.
Subsequently, then PPA General Manager Rogelio A. Dayan issued PPA-AO No. 04-
92 [7] on July 15, 1992, whose avowed policy was to instill effective discipline and thereby afford
better protection to the port users through the improvement of pilotage services. This was
implemented by providing therein that all existing regular appointments which have been
previously issued either by the Bureau of Customs or the PPA shall remain valid up to 31
December 1992 only and that all appointments to harbor pilot positions in all pilotage districts
shall, henceforth, be only for a term of one (1) year from date of effectivity subject to yearly
renewal or cancellation by the Authority after conduct of a rigid evaluation of performance.
On August 12, 1992, respondents United Harbor Pilots Association and the Manila Pilots
Association, through Capt. Alberto C. Compas, questioned PPA-AO No. 04-92 before the
Department of Transportation and Communication, but they were informed by then DOTC
Secretary Jesus B. Garcia that the matter of reviewing, recalling or annulling PPAs
administrative issuances lies exclusively with its Board of Directors as its governing body.
 Meanwhile, on August 31, 1992, the PPA issued Memorandum Order No. 08-92 [8] which
laid down the criteria or factors to be considered in the reappointment of harbor pilots, viz.: (1)
Qualifying Factors: [9] safety record and physical/mental medical exam report and (2) Criteria for
Evaluation: [10] promptness in servicing vessels, compliance with PPA Pilotage Guidelines,
number of years as a harbor pilot, average GRT of vessels serviced as pilot,
awards/commendations as harbor pilot, and age.
Respondents reiterated their request for the suspension of the implementation of PPA-AO
No. 04-92, but Secretary Garcia insisted on his position that the matter was within the
jurisdiction of the Board of Directors of the PPA. Compas appealed this ruling to the Office of
the President (OP), reiterating his arguments before the DOTC.
On December 23, 1992, the OP issued an order directing the PPA to hold in abeyance the
implementation of PPA-AO No. 04-92. In its answer, the PPA countered that said administrative
order was issued in the exercise of its administrative control and supervision over harbor pilots
under Section 6-a (viii), Article IV of P. D. No. 857, as amended, and it, along with its
implementing guidelines, was intended to restore order in the ports and to improve the quality of
port services.
On March 17, 1993, the OP, through then Assistant Executive Secretary for Legal Affairs
Renato C. Corona, dismissed the appeal/petition and lifted the restraining order issued
earlier. [11] He concluded that PPA-AO No. 04-92 applied to all harbor pilots and, for all intents
and purposes, was not the act of Dayan, but of the PPA, which was merely implementing Section
6 of P.D. No. 857, mandating it to control, regulate and supervise pilotage and conduct of pilots
in any port district.
On the alleged unconstitutionality and illegality of PPA-AO No. 04-92 and its implementing
memoranda and circulars, Secretary Corona opined that:

The exercise of ones profession falls within the constitutional guarantee against wrongful
deprivation of, or interference with, property rights without due process. In the limited context of
this case, PPA-AO 04-92 does not constitute a wrongful interference with, let alone a wrongful
deprivation of, the property rights of those affected thereby. As may be noted, the issuance aims
no more than to improve pilotage services by limiting the appointment to harbor pilot positions
to one year, subject to renewal or cancellation after a rigid evaluation of the appointees
performance.

PPA-AO 04-92 does not forbid, but merely regulates, the exercise by harbor pilots of their
profession in PPAs jurisdictional area. (Emphasis supplied)

Finally, as regards the alleged absence of ample prior consultation before the issuance of the
administrative order, Secretary Corona cited Section 26 of P.D. No. 857, which merely requires
the PPA to consult with relevant Government agencies. Since the PPA Board of Directors is
composed of the Secretaries of the DOTC, the Department of Public Works and Highways, the
Department of Finance, and the Department of Environment and Natural Resources, as well as
the Director-General of the National Economic Development Agency, the Administrator of the
Maritime Industry Authority (MARINA), and the private sector representative who, due to his
knowledge and expertise, was appointed by the President to the Board, he concluded that the law
has been sufficiently complied with by the PPA in issuing the assailed administrative order.
Consequently, respondents filed a petition for certiorari, prohibition and injunction with
prayer for the issuance of a temporary restraining order and damages, before Branch 6 of the
Regional Trial Court of Manila, which was docketed as Civil Case No. 93-65673. On September
6, 1993, the trial court rendered the following judgment: [12]

WHEREFORE, for all the foregoing, this Court hereby rules that:

1. Respondents (herein petitioners) have acted in excess of jurisdiction and with grave
abuse of discretion and in a capricious, whimsical and arbitrary manner in
 promulgating PPA Administrative Order 04-92 including all its implementing
Memoranda, Circulars and Orders;

2. PPA Administrative Order 04-92 and its implementing Circulars and Orders are declared null
and void;

3. The respondents are permanently enjoined from implementing PPA Administrative Order 04-
92 and its implementing Memoranda, Circulars and Orders.

No costs.

SO ORDERED.

The court a quo pointed out that the Bureau of Customs, the precursor of the PPA,
recognized pilotage as a profession and, therefore, a property right under Callanta v.Carnation
Philippines, Inc. [13] Thus, abbreviating the term within which that privilege may be exercised
would be an interference with the property rights of the harbor pilots.Consequently, any
withdrawal or alteration of such property right must be strictly made in accordance with the
constitutional mandate of due process of law. This was apparently not followed by the PPA when
it did not conduct public hearings prior to the issuance of PPA-AO No. 04-92; respondents
allegedly learned about it only after its publication in the newspapers. From this decision,
petitioners elevated their case to this Court on certiorari.
After carefully examining the records and deliberating on the arguments of the parties, the
Court is convinced that PPA-AO No. 04-92 was issued in stark disregard of respondents right
against deprivation of property without due process of law. Consequently, the instant petition
must be denied.
Section 1 of the Bill of Rights lays down what is known as the due process clause of the
Constitution, viz.:
SECTION 1. No person shall be deprived of life, liberty, or property without due
process of law, x x x.
In order to fall within the aegis of this provision, two conditions must concur, namely, that
there is a deprivation and that such deprivation is done without proper observance of due
process. When one speaks of due process of law, however, a distinction must be made between
matters of procedure and matters of substance. In essence, procedural due process refers to the
method or manner by which the law is enforced, while substantive due process requires that the
law itself, not merely the procedures by which the law would be enforced, is fair, reasonable, and
just. [14] PPA-AO No. 04-92 must be examined in light of this distinction.
Respondents argue that due process was not observed in the adoption of PPA-AO No. 04-92
allegedly because no hearing was conducted whereby relevant government agencies and the
pilots themselves could ventilate their views. They are obviously referring to the procedural
aspect of the enactment. Fortunately, the Court has maintained a clear position in this regard, a
stance it has stressed in the recent case of Lumiqued v. Hon. Exevea, [15] where it declared that
(a)s long as a party was given the opportunity to defend his interests in due course, he cannot be
said to have been denied due process of law, for this opportunity to be heard is the very essence
of due process. Moreover, this constitutional mandate is deemed satisfied if a person is granted
an opportunity to seek reconsideration of the action or ruling complained of.
In the case at bar, respondents questioned PPA-AO No. 04-92 no less than four
times [16] before the matter was finally elevated to this Tribunal. Their arguments on this score,
however, fail to persuade. While respondents emphasize that the Philippine Coast Guard, which
issues the licenses of pilots after administering the pilots examinations, was not consulted, [17] the
facts show that the MARINA, which took over the licensing function of the Philippine Coast
Guard, was duly represented in the Board of Directors of the PPA. Thus, petitioners correctly
argued that, there being no matters of naval defense involved in the issuance of the
administrative order, the Philippine Coast Guard need not be consulted.[18]
 Neither does the fact that the pilots themselves were not consulted in any way taint the
validity of the administrative order. As a general rule, notice and hearing, as the fundamental
requirements of procedural due process, are essential only when an administrative body exercises
its quasi-judicial function. In the performance of its executive or legislative functions, such as
issuing rules and regulations, an administrative body need not comply with the requirements of
notice and hearing.[19]
Upon the other hand, it is also contended that the sole and exclusive right to the exercise of
harbor pilotage by pilots is a settled issue. Respondents aver that said right has become vested
and can only be withdrawn or shortened by observing the constitutional mandate of due process
of law. Their argument has thus shifted from the procedural to one of substance. It is here where
PPA-AO No. 04-92 fails to meet the condition set by the organic law.
There is no dispute that pilotage as a profession has taken on the nature of a property
right. Even petitioner Corona recognized this when he stated in his March 17, 1993, decision that
(t)he exercise of ones profession falls within the constitutional guarantee against wrongful
deprivation of, or interference with, property rights without due process. [20] He merely expressed
the opinion that (i)n the limited context of this case, PPA-AO 04-92 does not constitute a
wrongful interference with, let alone a wrongful deprivation of, the property rights of those
affected thereby, and that PPA-AO 04-92 does not forbid, but merely regulates, the exercise by
harbor pilots of their profession. As will be presently demonstrated, such supposition is gravely
erroneous and tends to perpetuate an administrative order which is not only unreasonable but
also superfluous.
Pilotage, just like other professions, may be practiced only by duly licensed
individuals. Licensure is the granting of license especially to practice a profession. It is also the
system of granting licenses (as for professional practice) in accordance with established
standards. [21] A license is a right or permission granted by some competent authority to carry on
a business or do an act which, without such license, would be illegal. [22]
Before harbor pilots can earn a license to practice their profession, they literally have to pass
through the proverbial eye of a needle by taking, not one but fiveexaminations, each followed by
actual training and practice. Thus, the court a quo observed:

Petitioners (herein respondents) contend, and the respondents (herein petitioners) do not deny,
that here (sic) in this jurisdiction, before a person can be a harbor pilot, he must pass five (5)
government professional examinations, namely, (1) For Third Mate and after which he must
work, train and practice on board a vessel for at least a year; (2) For Second Mate and after
which he must work, train and practice for at least a year; (3) For Chief Mate and after which he
must work, train and practice for at least a year; (4) For a Master Mariner and after which he
must work as Captain of vessels for at least two (2) years to qualify for an examination to be a
pilot; and finally, of course, that given for pilots.

Their license is granted in the form of an appointment which allows them to engage in
pilotage until they retire at the age 70 years. This is a vested right. Under the terms of PPA-AO
No. 04-92, (a)ll existing regular appointments which have been previously issued by the Bureau
of Customs or the PPA shall remain valid up to 31 December 1992 only, and (a)ll appointments
to harbor pilot positions in all pilotage districts shall, henceforth, be only for a term of one (1)
year from date of effectivity subject to renewal or cancellation by the Authority after conduct of
a rigid evaluation of performance.
It is readily apparent that PPA-AO No. 04-92 unduly restricts the right of harbor pilots to
enjoy their profession before their compulsory retirement. In the past, they enjoyed a measure of
security knowing that after passing five examinations and undergoing years of on-the-job
training, they would have a license which they could use until their retirement, unless sooner
revoked by the PPA for mental or physical unfitness. Under the new issuance, they have to
contend with an annual cancellation of their license which can be temporary or permanent
depending on the outcome of their performance evaluation. Veteran pilots and neophytes alike
are suddenly confronted with one-year terms which ipso facto expire at the end of that
period. Renewal of their license is now dependent on a rigid evaluation of performance which is
conducted only after the license has already been cancelled. Hence, the use of the term
renewal. It is this pre-evaluation cancellation which primarily makes PPA-AO No. 04-92
unreasonable and constitutionally infirm. In a real sense, it is a deprivation of property without
due process of law.
The Court notes that PPA-AO No. 04-92 and PPA-MO No. 08-92 are already covered by
PPA-AO No. 03-85, which is still operational. Respondents are correct in pointing out that PPA-
AO No. 04-92 is a surplusage [23] and, therefore, an unnecessary enactment. PPA-AO 03-85 is a
comprehensive order setting forth the Rules and Regulations Governing Pilotage Services, the
Conduct of Pilots and Pilotage Fees in Philippine Ports. It provides, inter alia, for the
qualification, appointment, performance evaluation, disciplining and removal of harbor pilots -
matters which are duplicated in PPA-AO No. 04-92 and its implementing memorandum
order. Since it adds nothing new or substantial, PPA-AO No. 04-92 must be struck down.
Finally, respondents insinuation that then PPA General Manager Dayan was responsible for
the issuance of the questioned administrative order may have some factual basis; after all, power
and authority were vested in his office to propose rules and regulations. The trial courts finding
of animosity between him and private respondents might likewise have a grain of truth. Yet the
number of cases filed in court between private respondents and Dayan, including cases which
have reached this Court, cannot certainly be considered the primordial reason for the issuance of
PPA-AO No. 04-92. In the absence of proof to the contrary, Dayan should be presumed to have
acted in accordance with law and the best of professional motives. In any event, his actions are
certainly always subject to scrutiny by higher administrative authorities.
WHEREFORE, the instant petition is hereby DISMISSED and the assailed decision of the
court a quo dated September 6, 1993, in Civil Case No. 93-65673 is AFFIRMED.No
pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Panganiban, JJ., concur.
Martinez, J., no part.

[1] Pilotage is the act of conducting a vessel from the high seas into a port. Usually, pilotage is
conducted within a two-mile area offshore to an assigned berthing area and vice versa.
[2] Rollo, p. 87.
[3] The pilot licensing function itself which used to be exercised by the Philippine Coast Guard
pursuant to the Revised Coast Guard Law of 1974 (P. D. No. 601) has been transferred to
the Maritime Industry Authority (MARINA) by virtue of Executive Order No. 125,
which took effect on January 30, 1987.
[4] Determined by an Evaluation Committee.
[5] Upon the recommendation of the PPA General Manager.
[6] Article IV, Section 20.
[7] Rollo, p. 41.
[8] Ibid., p. 42.
[9] Qualifying factors are requirements which must be met before a pilots application for
reappointment is even evaluated by the PPA.
[10] These criteria are used for evaluation by the PPA after a pilot has complied with all the
requirements to qualify for evaluation. Each criterion is assigned a certain number of
points.
[11] Rollo, pp. 36-40.
[12] Ibid., pp. 29-35.
[13] 145 SCRA 268 (1986).
[14] De Leon, Textbook on the Philippine Constitution, 1991, p.81.
[15] G.R. No. 117565, November 18, 1997, citing Legarda v. Court of Appeals, G.R. No. 94457,
October 16, 1997, and Pizza Hut/Progressive Development Corporation v. NLRC, 322
Phil. 573.
[16] Questioned twice before the DOTC, appealed to the OP, before finding affirmative relief
with the RTC of Manila.
[17] Rollo, p. 55.
[18] Ibid., p. 163.
[19] Philippine Communications Satellite Corporation v. Alcuaz, 180 SCRA 218 (1989), citing
73 C.J.S. 452-453.
[20] Rollo, p. 38.
[21] Websters Third World International Dictionary, 1993 ed., p. 1304.
[22] 53 C.J.S. 445, citing 37 C.J. 168. In Tan v. Director of Forestry, 210 Phil. 244 (1983), the
Court defined a license as merely a permit or privilege to do what otherwise would be
unlawful. It is not a contract between the authority, federal, state, or municipal, granting
it and the person to whom it is granted. Neither is it property or a property right, nor does
it create a vested right; nor is it taxation.
[23] Rollo, p. 65.

CASE DIGEST : CORONA VS UNITED HARBOUR PILOT

G.R. No. 111953 December 12, 1997 HON. RENATO C. CORONA, in his capacity as Assistant
Secretary for Legal Affairs, HON. JESUS B. GARCIA, in his capacity as Acting Secretary,
Department of Transportation and Communications, and ROGELIO A. DAYAN, in his capacity
as General Manager of Philippine Ports Authority, petitioners, vs. UNITED HARBOR PILOTS
ASSOCIATION OF THE PHILIPPINES and MANILA PILOTS ASSOCIATION, respondents.

FACTS: : IN ISSUING ADMINISTRATIVE ORDER NO. 04-92 (PPA-AO NO. 04-92),

LIMITING THE TERM OF APPOINTMENT OF HARBOR PILOTS TO ONE YEAR
SUBJECT TO YEARLY RENEWAL OR CANCELLATION
ON AUGUST 12, 1992, RESPONDENTS UNITED HARBOUR PILOTS ASSOCIATION
AND THE MANILA PILOTS ASSOCIATION, THROUGH CAPT. ALBERTO C. COMPAS,
QUESTIONED PPA-AO NO. 04-92
ON DECEMBER 23, 1992, THE OP ISSUED AN ORDER DIRECTING THE PPA TO HOLD
IN ABEYANCE THE IMPLEMENTATION OF PPA-AO NO. 04-92ON
MARCH 17, 1993, THE OP, THROUGH THEN ASSISTANT EXECUTIVE SECRETARY
FOR LEGAL AFFAIRS RENATO C. CORONA, DISMISSED THE APPEAL/PETITION AND
LIFTED THE RESTRAINING ORDER ISSUED EARLIER
RESPONDENTS FILED A PETITION FOR CERTIORARI, PROHIBITION AND
INJUNCTION WITH PRAYER FOR THE ISSUANCE OF A TEMPORARY RESTRAINING
ORDER AND DAMAGES, BEFORE BRANCH 6 OF THE REGIONAL TRIAL COURT

ISSUE: WON PPA-AO-04-92 IS CONSTITUTIONAL

HELD: THE COURT IS CONVINCED THAT PPA-AO NO. 04-92 WAS ISSUED IN STARK
DISREGARD OF RESPONDENTS' RIGHT AGAINST DEPRIVATION OF PROPERTY
WITHOUT DUE PROCESS OF LAW. THE SUPREME COURT SAID THAT IN ORDER TO
FALL WITHIN THE AEGIS OF THIS PROVISION, TWO CONDITIONS MUST CONCUR,
NAMELY, THAT THERE IS A DEPRIVATION AND THAT SUCH DEPRIVATION IS
DONE WITHOUT PROPER OBSERVANCE OF DUE PROCESS. AS A GENERAL RULE,
NOTICE AND HEARING, AS THE FUNDAMENTAL REQUIREMENTS OF
PROCEDURAL DUE PROCESS, ARE ESSENTIAL ONLY WHEN AN ADMINISTRATIVE
BODY EXERCISES ITS QUASI-JUDICIAL FUNCTION. IN THE PERFORMANCE OF ITS
EXECUTIVE OR LEGISLATIVE FUNCTIONS, SUCH AS ISSUING RULES AND
REGULATIONS, AN ADMINISTRATIVE BODY NEED NOT COMPLY WITH THE
REQUIREMENTS OF NOTICE AND HEARING

THERE IS NO DISPUTE THAT PILOTAGE AS A PROFESSION HAS TAKEN ON THE

NATURE OF A PROPERTY RIGHT. IT IS READILY APPARENT THAT PPA-AO NO. 04-
92 UNDULY RESTRICTS THE RIGHT OF HARBOR PILOTS TO ENJOY THEIR
PROFESSION BEFORE THEIR COMPULSORY RETIREMENT

GSIS V. MONTESCLAROS (434 SCRA 441)

EN BANC

[G.R. No. 146494. July 14, 2004]

GOVERNMENT SERVICE INSURANCE SYSTEM, Cebu City Branch, petitioner, vs.

MILAGROS O. MONTESCLAROS, respondent.

DECISION
CARPIO, J.:

The Case

This is a petition for review on certiorari of the Decision[1] dated 13 December 2000 of the
Court of Appeals in CA-G.R. CV No. 48784. The Court of Appeals affirmed the Decision[2] of
the Regional Trial Court, Branch 21, Cebu City (trial court), which held that Milagros Orbiso
Montesclaros is entitled to survivorship pension.

The Facts

Sangguniang Bayan member Nicolas Montesclaros (Nicolas) married Milagros Orbiso

(Milagros) on 10 July 1983.[3] Nicolas was a 72- year old widower when he married Milagros
who was then 43 years old.
On 4 January 1985, Nicolas filed with the Government Service Insurance System (GSIS) an
application for retirement benefits effective 18 February 1985 under Presidential Decree No.
1146 or the Revised Government Service Insurance Act of 1977 (PD 1146). In his retirement
application, Nicolas designated his wife Milagros as his sole beneficiary. [4] Nicolas last day of
actual service was on 17 February 1985.[5] On 31 January 1986, GSIS approved Nicolas
application for retirement effective 17 February 1984, granting a lump sum payment of annuity
for the first five years and a monthly annuity thereafter.[6] Nicolas died on 22 April 1992.
Milagros filed with GSIS a claim for survivorship pension under PD 1146. On 8 June 1992,
GSIS denied the claim because under Section 18 of PD 1146, the surviving spouse has no right
to survivorship pension if the surviving spouse contracted the marriage with the pensioner within
three years before the pensioner qualified for the pension.[7] According to GSIS, Nicolas wed
Milagros on 10 July 1983, less than one year from his date of retirement on 17 February 1984.
On 2 October 1992, Milagros filed with the trial court a special civil action for declaratory
relief questioning the validity of Section 18 of PD 1146 disqualifying her from receiving
survivorship pension.
On 9 November 1994, the trial court rendered judgment declaring Milagros eligible for
survivorship pension. The trial court ordered GSIS to pay Milagros the benefits due including
interest. Citing Articles 115[8] and 117[9] of the Family Code, the trial court held that retirement
benefits, which the pensioner has earned for services rendered and for which the pensioner has
contributed through monthly salary deductions, are onerous acquisitions. Since retirement
benefits are property the pensioner acquired through labor, such benefits are conjugal property.
The trial court held that the prohibition in Section 18 of PD 1146 is deemed repealed for being
inconsistent with the Family Code, a later law.The Family Code has retroactive effect if it does
not prejudice or impair vested rights.
GSIS appealed to the Court of Appeals, which affirmed the decision of the trial
court. Hence, this petition for review.
In the meantime, in a letter dated 10 January 2003, Milagros informed the Court that she has
accepted GSIS decision disqualifying her from receiving survivorship pension and that she is no
longer interested in pursuing the case.[10] Commenting on Milagros letter, GSIS asserts that the
Court must decide the case on the merits.[11]
The Court will resolve the issue despite the manifestation of Milagros. The issue involves
not only the claim of Milagros but also that of other surviving spouses who are similarly situated
and whose claims GSIS would also deny based on the proviso. Social justice and public interest
demand that we resolve the constitutionality of the proviso.

The Ruling of the Court of Appeals

The Court of Appeals agreed with the trial court that the retirement benefits are onerous and
conjugal because the pension came from the deceased pensioners salary deductions. The Court of
Appeals held that the pension is not gratuitous since it is a deferred compensation for services
rendered.

The Issues

GSIS raises the following issues:

1. Whether Section 16 of PD 1146 entitles Milagros to survivorship pension;
2. Whether retirement benefits form part of conjugal property;
3. Whether Articles 254 and 256 of the Family Code repealed Section 18 of PD
1146.[12]

The Courts Ruling

The pertinent provisions of PD 1146 on survivorship benefits read:

SEC. 16. Survivorship Benefits. When a member or pensioner dies, the beneficiary shall be
entitled to survivorship benefits provided for in sections seventeen and eighteen hereunder. The
survivorship pension shall consist of:
(1) basic survivorship pension which is fifty percent of the basic monthly pension; and

(2) dependents pension not exceeding fifty percent of the basic monthly pension payable in
accordance with the rules and regulations prescribed by the System.

SEC. 17. Death of a Member. (a) Upon the death of a member, the primary beneficiaries shall be
entitled to:

(1) the basic monthly pension which is guaranteed for five years; Provided, That, at the option of
the beneficiaries, it may be paid in lump sum as defined in this Act: Provided, further, That, the
member is entitled to old-age pension at the time of his death; or

(2) the basic survivorship pension which is guaranteed for thirty months and the dependents
pension; Provided, That, the deceased had paid at least thirty-six monthly contributions within
the five-year period immediately preceding his death, or a total of at least one hundred eighty
monthly contributions prior to his death.

(b) At the end of the guaranteed periods mentioned in the preceding sub-section (a), the
survivorship pension shall be paid as follows:

(1) when the dependent spouse is the only survivor, he shall receive the basic survivorship
pension for life or until he remarries;

(2) when only dependent children are the survivors, they shall be entitled to the survivorship
pension for as long as they are qualified;

(3) when the survivors are the dependent spouse and the dependent children, they shall be
entitled to the survivorship pension so long as there are dependent children and, thereafter, the
surviving spouse shall receive the basic survivorship pension for life or until he remarries.

(c) In the absence of primary beneficiaries, the secondary beneficiaries designated by the
deceased and recorded in the System, shall be entitled to:

(1) a cash payment equivalent to thirty times the basic survivorship pension when the member is
qualified for old-age pension; or

(2) a cash payment equivalent to fifty percent of the average monthly compensation for each year
he paid contributions, but not less than five hundred pesos; Provided, That, the member paid at
least thirty-six monthly contributions within the five-year period immediately preceding his
death or paid a total of at least one hundred eighty monthly contributions prior to his death.

(d) When the primary beneficiaries are not entitled to the benefits mentioned in paragraph (a) of
this section, they shall receive a cash payment equivalent to one hundred percent of the average
monthly compensation for each year the member paid contributions, but not less than five
hundred pesos. In the absence of primary beneficiaries, the amount shall revert to the funds of
the System.

SEC. 18. Death of a Pensioner. Upon the death of a pensioner, the primary beneficiaries shall
receive the applicable pension mentioned under paragraph (b) of section seventeen of this
Act:Provided, That, the dependent spouse shall not be entitled to said pension if his
marriage with the pensioner is contracted within three years before the pensioner qualified
for the pension. When the pensioner dies within the period covered by the lump sum, the
survivorship pension shall be paid only after the expiration of the said period. This shall also
apply to the pensioners living as of the effectivity of this Act, but the survivorship benefit shall
be based on the monthly pension being received at the time of death. (Emphasis supplied)
 Under PD 1146, the primary beneficiaries are (1) the dependent spouse until such spouse
remarries, and (2) the dependent children.[13] The secondary beneficiaries are the dependent
parents and legitimate descendants except dependent children.[14] The law defines dependent as
the legitimate, legitimated, legally adopted, acknowledged natural or illegitimate child who is
unmarried, not gainfully employed, and not over twenty-one years of age or is over twenty-one
years of age but physically or mentally incapacitated and incapable of self-support. The term also
includes the legitimate spouse dependent for support on the member, and the legitimate parent
wholly dependent on the member for support.[15]
The main question for resolution is the validity of the proviso in Section 18 of PD 1146,
which proviso prohibits the dependent spouse from receiving survivorship pension if such
dependent spouse married the pensioner within three years before the pensioner qualified for the
pension (the proviso).
We hold that the proviso, which was the sole basis for the rejection by GSIS of Milagros
claim, is unconstitutional because it violates the due process clause. The proviso is also
discriminatory and denies equal protection of the law.

Retirement Benefits as Property Interest

Under Section 5 of PD 1146, it is mandatory for the government employee to pay monthly
contributions. PD 1146 mandates the government to include in its annual appropriation the
necessary amounts for its share of the contributions. It is compulsory on the government
employer to take off and withhold from the employees monthly salaries their contributions and to
remit the same to GSIS.[16] The government employer must also remit its corresponding share to
GSIS.[17] Considering the mandatory salary deductions from the government employee, the
government pensions do not constitute mere gratuity but form part of compensation.
In a pension plan where employee participation is mandatory, the prevailing view is that
employees have contractual or vested rights in the pension where the pension is part of the terms
of employment.[18] The reason for providing retirement benefits is to compensate service to the
government. Retirement benefits to government employees are part of emolument to encourage
and retain qualified employees in the government service. Retirement benefits to government
employees reward them for giving the best years of their lives in the service of their country.[19]
Thus, where the employee retires and meets the eligibility requirements, he acquires a vested
right to benefits that is protected by the due process clause.[20] Retirees enjoy a protected
property interest whenever they acquire a right to immediate payment under pre-existing
law.[21] Thus, a pensioner acquires a vested right to benefits that have become due as provided
under the terms of the public employees pension statute.[22] No law can deprive such person of
his pension rights without due process of law, that is, without notice and opportunity to be
heard.[23]
In addition to retirement and disability benefits, PD 1146 also provides for benefits to
survivors of deceased government employees and pensioners. Under PD 1146, the dependent
spouse is one of the beneficiaries of survivorship benefits. A widows right to receive pension
following the demise of her husband is also part of the husbands contractual compensation.[24]

Denial of Due Process

The proviso is contrary to Section 1, Article III of the Constitution, which provides that [n]o
person shall be deprived of life, liberty, or property without due process of law, nor shall any
person be denied the equal protection of the laws. The proviso is unduly oppressive in outrightly
denying a dependent spouses claim for survivorship pension if the dependent spouse contracted
marriage to the pensioner within the three-year prohibited period. There is outright confiscation
of benefits due the surviving spouse without giving the surviving spouse an opportunity to be
heard. The proviso undermines the purpose of PD 1146, which is to assure comprehensive and
integrated social security and insurance benefits to government employees and their dependents
in the event of sickness, disability, death, and retirement of the government employees.
The whereas clauses of PD 1146 state:

WHEREAS, the Government Service Insurance System in promoting the efficiency and welfare
of the employees of the Government of the Philippines, administers the laws that grant to its
members social security and insurance benefits;

WHEREAS, it is necessary to preserve at all times the actuarial solvency of the funds
administered by the System; to guarantee to the government employee all the benefits due him;
and to expand and increase the benefits made available to him and his dependents to the extent
permitted by available resources;

WHEREAS, provisions of existing laws have impeded the efficient and effective discharge by
the System of its functions and have unduly hampered the System from being more responsive to
the dramatic changes of the times and from meeting the increasing needs and expectations of the
Filipino public servant;

WHEREAS, provisions of existing laws that have prejudiced, rather than benefited, the
government employee; restricted, rather than broadened, his benefits, prolonged, rather than
facilitated the payment of benefits, must now yield to his paramount welfare;

WHEREAS, the social security and insurance benefits of government employees must be
continuously re-examined and improved to assure comprehensive and integrated social security
and insurance programs that will provide benefits responsive to their needs and those of their
dependents in the event of sickness, disability, death, retirement, and other contingencies; and to
serve as a fitting reward for dedicated public service;

WHEREAS, in the light of existing economic conditions affecting the welfare of government
employees, there is a need to expand and improve the social security and insurance programs
administered by the Government Service Insurance System, specifically, among others, by
increasing pension benefits, expanding disability benefits, introducing survivorship benefits,
introducing sickness and income benefits, and eventually extending the compulsory coverage of
these programs to all government employees regardless of employment status.

PD 1146 has the following purposes:

a. to preserve at all times the actuarial solvency of the funds administered by the
System;
b. to guarantee to the government employee all the benefits due him; and
c. to expand, increase, and improve the social security and insurance benefits made
available to him and his dependents such as:
increasing pension benefits
expanding disability benefits
introducing survivorship benefits
introducing sickness income benefits
extending compulsory membership to all
government employees irrespective of status[25]
The law extends survivorship benefits to the surviving and qualified beneficiaries of the
deceased member or pensioner to cushion the beneficiaries against the adverse economic effects
resulting from the death of the wage earner or pensioner.[26]
 Violation of the Equal Protection Clause

The surviving spouse of a government employee is entitled to receive survivors benefits

under a pension system. However, statutes sometimes require that the spouse should have
married the employee for a certain period before the employees death to prevent sham
marriages contracted for monetary gain. One example is the Illinois Pension Code which
restricts survivors annuity benefits to a surviving spouse who was married to a state employee
for at least one year before the employees death. The Illinois pension system classifies spouses
into those married less than one year before a members death and those married one year or
more. The classification seeks to prevent conscious adverse risk selection of deathbed marriages
where a terminally ill member of the pension system marries another so that person becomes
eligible for benefits. In Sneddon v. The State Employees Retirement System of Illinois,[27] the
Appellate Court of Illinois held that such classification was based on difference in situation and
circumstance, bore a rational relation to the purpose of the statute, and was therefore not in
violation of constitutional guarantees of due process and equal protection.
A statute based on reasonable classification does not violate the constitutional guaranty of
the equal protection of the law.[28] The requirements for a valid and reasonable classification are:
(1) it must rest on substantial distinctions; (2) it must be germane to the purpose of the law; (3) it
must not be limited to existing conditions only; and (4) it must apply equally to all members of
the same class.[29] Thus, the law may treat and regulate one class differently from another class
provided there are real and substantial differences to distinguish one class from another.[30]
The proviso in question does not satisfy these requirements. The proviso discriminates
against the dependent spouse who contracts marriage to the pensioner within three years before
the pensioner qualified for the pension.[31] Under the proviso, even if the dependent spouse
married the pensioner more than three years before the pensioners death, the dependent spouse
would still not receive survivorship pension if the marriage took place within three years before
the pensioner qualified for pension. The object of the prohibition is vague. There is no
reasonable connection between the means employed and the purpose intended. The law itself
does not provide any reason or purpose for such a prohibition. If the purpose of the proviso is to
prevent deathbed marriages, then we do not see why the proviso reckons the three-year
prohibition from the date the pensioner qualified for pension and not from the date the pensioner
died. The classification does not rest on substantial distinctions. Worse, the classification lumps
all those marriages contracted within three years before the pensioner qualified for pension as
having been contracted primarily for financial convenience to avail of pension benefits.
Indeed, the classification is discriminatory and arbitrary. This is probably the reason
Congress deleted the proviso in Republic Act No. 8291 (RA 8291),[32] otherwise known as the
Government Service Insurance Act of 1997, the law revising the old charter of GSIS (PD
1146). Under the implementing rules of RA 8291, the surviving spouse who married the member
immediately before the members death is still qualified to receive survivorship pension unless
the GSIS proves that the surviving spouse contracted the marriage solely to receive the
benefit.[33]
Thus, the present GSIS law does not presume that marriages contracted within three years
before retirement or death of a member are sham marriages contracted to avail of survivorship
benefits. The present GSIS law does not automatically forfeit the survivorship pension of the
surviving spouse who contracted marriage to a GSIS member within three years before the
members retirement or death. The law acknowledges that whether the surviving spouse
contracted the marriage mainly to receive survivorship benefits is a matter of evidence. The law
no longer prescribes a sweeping classification that unduly prejudices the legitimate surviving
spouse and defeats the purpose for which Congress enacted the social legislation.
WHEREFORE, the petition is DENIED for want of merit. We declare VOID for being
violative of the constitutional guarantees of due process and equal protection of the law the
proviso in Section 18 of Presidential Decree No. 1146, which proviso states that the dependent
spouse shall not be entitled to said pension if his marriage with the pensioner is contracted within
three years before the pensioner qualified for the pension. The Government Service Insurance
System cannot deny the claim of Milagros O. Montesclaros for survivorship benefits based on
this invalid proviso.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.

[1]
Penned by Associate Justice Ruben T. Reyes, with Associate Justices Mariano M. Umali and
Rebecca de Guia-Salvador concurring.
[2]
Penned by Judge Peary G. Aleonar.
[3]
See Marriage Contract; Records, p. 5.
[4]
Records, p. 8.
[5]
See Service Record; Records p. 70.
[6]
Records, p. 112.
[7]
Ibid., pp. 9, 12.
[8]
Article 115 of the Family Code reads:
Art. 115. Retirement benefits, pensions, annuities, gratuities, usufructs and similar benefits shall
be governed by the rules on gratuitous or onerous acquisitions as may be proper in each
case.
[9]
Article 117 of the family Code reads:
Art. 117. The following are conjugal partnership properties:
(1) Those acquired by onerous title during the marriage at the expense of the common fund,
whether the acquisition be for the partnership, or for only one of the spouses;
(2) Those obtained from the labor, industry, work or profession of either or both of the spouses;
xxx
[10]
Rollo, p. 78.
[11]
Ibid., p. 84.
[12]
Ibid., pp. 14-15.
[13]
Sec. 2(g), PD 1146.
[14]
Sec. 2(h), PD 1146.
[15]
Sec. 2(f), PD 1146.
[16]
Section 6, PD 1146.
[17]
Ibid.
[18]
60A Am. Jur. 2D Pensions and Retirement Funds 1620 (1988).
[19]
GSIS v. Civil Service Commission, 315 Phil. 159 (1995).
[20]
60A Am. Jur. 2D Pensions and Retirement Funds 1506 (1988).
[21]
Zucker v. U.S., 758 F.2d 637 (CA Fed. Cir., 1985).
[22]
Pennie v. Reis, 132 U.S. 464, 33 L.Ed. 426 (1889).
[23]
Stevens v. Minneapolis Fire Department Relief Assn, 124 Minn 381, 141 NW 35 (1914).
[24]
60A Am. Jur. 2D Pensions and Retirement Funds 1620 (1988).
[25]
Information Primer on Presidential Decree 1146 and other Benefits 14.
[26]
Section 1, Rule VI of the Implementing Rules and Regulations of PD 1146, Rollo, p. 8.
[27]
388 N.E.2d 229 (1979).
[28]
Farias v. The Executive Secretary, G.R. No. 147387, 10 December 2003; Villarea v. The
Commission on Audit, G.R. Nos. 145383-84, 6 August 2003.
[29]
Philippine Rural Electric Cooperatives Association, Inc. (PHILRECA) v. The Secretary,
Department of Interior and Local Government, G.R. No. 143076, 10 June 2003, 403
SCRA 558; Lacson v. The Executive Secretary, 361 Phil. 251 (1999); Tiu v. CA. 361
Phil. 229 (1999); People v. Cayat, 68 Phil. 12 (1939).
[30]
Farias v. The Executive Secretary, G.R. No. 147387, 10 December 2003; Abbas v.
Commission on Elections, G.R. No. 89651, 10 November 1989, 179 SCRA 287.
[31]
Section 11 of PD 1146 provides for the qualifications to become entitled to retirement
benefits:
SEC. 11. Conditions for Old-Age Pension. (a) Old-age pension shall be paid to a member who:
(1) has at least fifteen years of service;
(2) is at least sixty years of age; and
(3) is separated from the service.
(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for
an employee at sixty-five years of age with at least fifteen years of service: Provided,
That if he has less than fifteen years of service, he shall be allowed to continue in the
service to complete the fifteen years.
[32]
The pertinent provisions of RA 8291 regarding survivorship benefits read:
SEC. 20. Survivorship Benefits. - When a member or pensioner dies, the beneficiaries shall be
entitled to survivorship benefits provided in Sections 21 and 22 hereunder subject to the
conditions therein provided for. The survivorship pension shall consist of:
(1) the basic survivorship pension which is fifty percent (50%) of the basic monthly pension; and
(2) the dependent childrens pension not exceeding fifty percent (50%) of the basic monthly
pension.
SEC. 21. Death of a Member. - (a) Upon the death of a member, the primary beneficiaries shall
be entitled to:
(1) survivorship pension: Provided, That the deceased:
(i) was in the service at the time of his death; or
(ii) if separated from the service, has at least three (3) years of service at the time of his
death and has paid thirty-six (36) monthly contributions within the five-year period
immediately preceding his death; or has paid a total of at least one hundred eighty (180)
monthly contributions prior to his death; or
(2) the survivorship pension plus a cash payment equivalent to one hundred percent (100%) of
his average monthly compensation for every year of service: Provided, That the deceased
was in the service at the time of his death with at least three (3) years of service; or
(3) a cash payment equivalent to one hundred percent (100%) of his average monthly
compensation for each year of service he paid contributions, but not less than Twelve
Thousand Pesos (P12,000.00):Provided, That the deceased has rendered at least three (3)
 years of service prior to his death but does not qualify for the benefits under item (1) or
(2) of this paragraph.
(b) The survivorship pension shall be paid as follows:
(1) when the dependent spouse is the only survivor, he/she shall receive the basic survivorship
pension for life or until he/she remarries;
(2) when only dependent children are the survivors, they shall be entitled to the basic
survivorship pension for as long as they are qualified, plus the dependent childrens
pension equivalent to ten percent (10%) of the basic monthly pension for every
dependent child not exceeding five (5), counted from the youngest and without
substitution;
(3) when the survivors are the dependent spouse and the dependent children, the dependent
spouse shall receive the basic survivorship pension for life or until he/she remarries, and
the dependent children shall receive the dependent childrens pension mentioned in the
immediately preceding paragraph (2) hereof.
(c) In the absence of primary beneficiaries, the secondary beneficiaries shall be entitled to:
(1) the cash payment equivalent to one hundred percent (100%) of his average monthly
compensation for each year of service he paid contributions, but not less than Twelve
Thousand Pesos (P12,000.00):Provided, That the member is in the service at the time of
his death and has at least three (3) years of service; or
(2) in the absence of secondary beneficiaries, the benefits under this paragraph shall be paid to
his legal heirs.
(d) For purposes of the survivorship benefits, legitimate children shall include legally adopted
and legitimated children.
SEC. 22. Death of a Pensioner. - Upon the death of an old-age pensioner or a member receiving
the monthly income benefit for permanent disability, the qualified beneficiaries shall be
entitled to the survivorship pension defined in Section 20 of this Act, subject to the
provisions of paragraph (b) of Section 21 hereof. When the pensioner dies within the
period covered by the lump sum, the survivorship pension shall be paid only after the
expiration of the said period.
[33]
Section 10.4.1 of the Implementing Rule and Regulation of R.A. No. 8291 reads:
Section 10.4 Allocation of the Survivorship Pension Among Beneficiaries. The survivorship
pension shall be paid as follows:
10.4.1 When the dependent spouse is the only survivor, he/she shall receive the basic
survivorship pension for life or until he/she remarries. For purposes of this section, the
marriage of the surviving spouse immediately prior to the death of the member or
pensioner shall be acceptable, unless it is proven that the marriage was solemnized
solely for the purpose of receiving the benefit. (Emphasis supplied)
GSIS v. MONTESCLAROS

January 31, 2013 § Leave a comment

FACTS: Milagros assail unconstitutionality of section 18 PD 1146 being violative of due process
and equal protection clause. When her husband died, she filed in GSIS for claim for survivorship
pension. GSIS denied claim, it said surviving spouse has no right of survivorship pension if the
surviving spouse contracted the marriage with the pensioner within three years before the
pensioner qualified for the pension.

HELD: There is denial of due process when it outrightly denies the claim for survivorship. There
is outright confiscation of benefits due the surviving spouse without giving her an opportunity to
be heard. There is also violation of equal protection. A proviso requiring certain number of years
of togetherness in marriage before the employee’s death is valid to prevent sham marriages
contracted for monetary gains. Here, it is 3 years before pensioner qualified for the pension.
Under this, even if the dependent spouse married the pensioner more than 3 years before the
pensioner’s death, the dependent spouse would still not receive survivorship pension if the
marriage took place within 3 years before the pensioner qualified for pension. The object of
prohibition is vague. There is no reasonable connection between the means employed and the
purpose intended.

CHAVEZ V. ROMULO (431 SCRA 534)

EN BANC

[G.R. No. 157036. June 9, 2004]

FRANCISCO I. CHAVEZ, petitioner, vs. HON. ALBERTO G. ROMULO, IN HIS

CAPACITY AS EXECUTIVE SECRETARY; DIRECTOR GENERAL
HERMOGENES E. EBDANE, JR., IN HIS CAPACITY AS THE CHIEF OF THE
PNP, et al., respondents.

DECISION
SANDOVAL-GUTIERREZ, J.:

The right of individuals to bear arms is not absolute, but is subject to regulation. The
maintenance of peace and order[1] and the protection of the people against violence are
constitutional duties of the State, and the right to bear arms is to be construed in connection and
in harmony with these constitutional duties.
Before us is a petition for prohibition and injunction seeking to enjoin the implementation of
the Guidelines in the Implementation of the Ban on the Carrying of Firearms Outside of
Residence[2] (Guidelines) issued on January 31, 2003, by respondent Hermogenes E. Ebdane, Jr.,
Chief of the Philippine National Police (PNP).
The facts are undisputed:
In January 2003, President Gloria Macapagal-Arroyo delivered a speech before the members
of the PNP stressing the need for a nationwide gun ban in all public places to avert the rising
crime incidents. She directed the then PNP Chief, respondent Ebdane, to suspend the issuance of
Permits to Carry Firearms Outside of Residence (PTCFOR), thus:

THERE IS ALSO NEED TO FOCUS ON THE HIGH PROFILE CRIMES THAT TEND TO
DISTURB THE PSYCHOLOGICAL PERIMETERS OF THE COMMUNITY THE LATEST
BEING THE KILLING OF FORMER NPA LEADER ROLLY KINTANAR. I UNDERSTAND
WE ALREADY HAVE THE IDENTITY OF THE CULPRIT. LET US BRING THEM TO THE
BAR OF JUSTICE.

THE NPA WILL FIND IT MORE DIFFICULT TO CARRY OUT THEIR PLOTS IF OUR
LAW ENFORCEMENT AGENCIES CAN RID THEMSELVES OF RASCALS IN UNIFORM,
AND ALSO IF WE ENFORCE A GUN BAN IN PUBLIC PLACES.
THUS, I AM DIRECTING THE PNP CHIEF TO SUSPEND INDEFINITELY THE
ISSUANCE OF PERMIT TO CARRY FIREARMS IN PUBLIC PLACES. THE
ISSUANCE OF PERMITS WILL NOW BE LIMITED ONLY TO OWNERSHIP AND
POSSESSION OF GUNS AND NOT TO CARRYING THEM IN PUBLIC
PLACES. FROM NOW ON, ONLY THE UNIFORMED MEN IN THE MILITARY AND
AUTHORIZED LAW ENFORCEMENT OFFICERS CAN CARRY FIREARMS IN
PUBLIC PLACES, AND ONLY PURSUANT TO EXISTING LAW. CIVILIAN OWNERS
MAY NO LONGER BRING THEIR FIREARMS OUTSIDE THEIR
RESIDENCES. THOSE WHO WANT TO USE THEIR GUNS FOR TARGET
PRACTICE WILL BE GIVEN SPECIAL AND TEMPORARY PERMITS FROM TIME
TO TIME ONLY FOR THAT PURPOSE. AND THEY MAY NOT LOAD THEIR GUNS
WITH BULLETS UNTIL THEY ARE IN THE PREMISES OF THE FIRING RANGE.

WE CANNOT DISREGARD THE PARAMOUNT NEED FOR LAW AND ORDER. JUST AS WE
CANNOT BE HEEDLESS OF OUR PEOPLES ASPIRATIONS FOR PEACE.

Acting on President Arroyos directive, respondent Ebdane issued the assailed Guidelines
quoted as follows:

TO : All Concerned

FROM : Chief, PNP

SUBJECT : Guidelines in the Implementation of the Ban on the Carrying of

Firearms Outside of Residence.

DATE : January 31, 2003

1. Reference: PD 1866 dated June 29, 1983 and its Implementing Rules and
Regulations.

2. General:

The possession and carrying of firearms outside of residence is a privilege granted

by the State to its citizens for their individual protection against all threats of
lawlessness and security.

As a rule, persons who are lawful holders of firearms (regular license, special
permit, certificate of registration or MR) are prohibited from carrying their
firearms outside of residence. However, the Chief, Philippine National Police
may, in meritorious cases as determined by him and under conditions as he may
impose, authorize such person or persons to carry firearms outside of residence.

3. Purposes:

This Memorandum prescribes the guidelines in the implementation of the ban on

the carrying of firearms outside of residence as provided for in the
Implementing Rules and Regulations, Presidential Decree No. 1866, dated
June 29, 1983 and as directed by PGMA. It also prescribes the conditions,
requirements and procedures under which exemption from the ban may be
granted.

4. Specific Instructions on the Ban on the Carrying of Firearms:

a. All PTCFOR are hereby revoked. Authorized holders of licensed firearms

covered with valid PTCFOR may re-apply for a new PTCFOR in
accordance with the conditions hereinafter prescribed.
 b. All holders of licensed or government firearms are hereby prohibited from
carrying their firearms outside their residence except those covered with
mission/letter orders and duty detail orders issued by competent
authority pursuant to Section 5, IRR, PD 1866, provided, that the said
exception shall pertain only to organic and regular employees.

5. The following persons may be authorized to carry firearms outside of residence.

a. All persons whose application for a new PTCFOR has been approved,
provided, that the persons and security of those so authorized are under actual
threat, or by the nature of their position, occupation and profession are under
imminent danger.

b. All organic and regular employees with Mission/Letter Orders granted by their
respective agencies so authorized pursuant to Section 5, IRR, PD 1866,
provided, that such Mission/Letter Orders is valid only for the duration of the
official mission which in no case shall be more than ten (10) days.

c. All guards covered with Duty Detail Orders granted by their respective security
agencies so authorized pursuant to Section 4, IRR, PD 1866, provided, that
such DDO shall in no case exceed 24-hour duration.

d. Members of duly recognized Gun Clubs issued Permit to Transport (PTT) by

the PNP for purposes of practice and competition, provided, that such firearms
while in transit must not be loaded with ammunition and secured in an
appropriate box or case detached from the person.

e. Authorized members of the Diplomatic Corps.

6. Requirements for issuance of new PTCFOR:

a. Written request by the applicant addressed to Chief, PNP stating his

qualification to possess firearm and the reasons why he needs to carry firearm
outside of residence.

b. Xerox copy of current firearm license duly authenticated by Records Branch,

FED;

c. Proof of actual threat, the details of which should be issued by the Chief of
Police/Provincial or City Directors and duly validated by C, RIID;

d. Copy of Drug Test Clearance, duly authenticated by the Drug Testing Center, if
photocopied;

e. Copy of DI/ RIID clearance, duly authenticated by ODI/RIID, if photocopied;

f. Copy of Neuro-Psychiatric Clearance duly authenticated by NP Testing Center,

if photocopied;

g. Copy of Certificate of Attendance to a Gun Safety Seminar, duly validated by

Chief, Operations Branch, FED;

h. NBI Clearance;

i. Two (2) ID pictures (2 x 2) taken not earlier than one (1) year from date of
filing of application; and
 j. Proof of Payment

7. Procedures:

a. Applications may be filed directly to the Office of the PTCFOR Secretariat in

Camp Crame. In the provinces, the applications may also be submitted to the
Police Regional Offices (PROs) and Provincial/City Police Offices (P/CPOs)
for initial processing before they are forwarded to the office of the PTCFOR
Secretariat. The processors, after ascertaining that the documentary
requirements are in order, shall issue the Order of Payment (OP) indicating
the amount of fees payable by the applicant, who in turn shall pay the fees to
the Land Bank.

b. Applications, which are duly processed and prepared in accordance with

existing rules and regulations, shall be forwarded to the OCPNP for approval.

c. Upon approval of the application, OCPNP will issue PTCFOR valid for one (1)
year from date of issue.

d. Applications for renewal of PTCFOR shall be processed in accordance with the

provisions of par. 6 above.

e. Application for possession and carrying of firearms by diplomats in the

Philippines shall be processed in accordance with NHQ PNP Memo dated
September 25, 2000, with Subj: Possession and Carrying of Firearms by
Diplomats in the Philippines.

8. Restrictions in the Carrying of Firearms:

a. The firearm must not be displayed or exposed to public view, except those
authorized in uniform and in the performance of their official duties.

b. The firearm shall not be brought inside public drinking and amusement places,
and all other commercial or public establishments.

Petitioner Francisco I. Chavez, a licensed gun owner to whom a PTCFOR has been issued,
requested the Department of Interior and Local Government (DILG) to reconsider the
implementation of the assailed Guidelines. However, his request was denied. Thus, he filed the
present petition impleading public respondents Ebdane, as Chief of PNP; Alberto G. Romulo, as
Executive Secretary; and Gerry L. Barias, as Chief of the PNP-Firearms and Explosives
Division. He anchored his petition on the following grounds:
I

THE PRESIDENT HAS NO POWER OR AUTHORITY MUCH LESS BY A MERE

SPEECH TO ALTER, MODIFY OR AMEND THE LAW ON FIREARMS BY IMPOSING A
GUN BAN AND CANCELING EXISTING PERMITS FOR GUNS TO BE CARRIED
OUTSIDE RESIDENCES.

II

OFFICIALLY, THERE IS NO PRESIDENTIAL ISSUANCE ON THE GUN BAN; THE

PRESIDENTIAL SPEECH NEVER INVOKED POLICE POWER TO JUSTIFY THE GUN
BAN; THE PRESIDENTS VERBAL DECLARATION ON GUN BAN VIOLATED THE
PEOPLES RIGHT TO PROTECT LIFE AND THEIR PROPERTY RIGHT TO CARRY
FIREARMS.
 III

THE PNP CHIEF HAS NO POWER OR AUTHORITY TO ISSUE THE QUESTIONED

GUIDELINES BECAUSE:

1) THERE IS NO LAW, STATUTE OR EXECUTIVE ORDER WHICH GRANTS THE PNP

CHIEF THE AUTHORITY TO PROMULGATE THE PNP GUIDELINES.

2) THE IMPLEMENTING RULES AND REGULATIONS OF PD 1866 CANNOT BE THE

SUBJECT OF ANOTHER SET OF IMPLEMENTING GUIDELINES.

3) THE PRESIDENTS SPEECH CANNOT BE A BASIS FOR THE PROMULGATION OF

IMPLEMENTNG GUIDELINES ON THE GUN BAN.

IV

ASSUMING ARGUENDO, THAT THE PNP GUIDELINES IMPLEMENT PD 1866, AND

THE AMENDMENTS THERETO, THE PNP CHIEF STILL HAS NO POWER OR
AUTHORITY TO ISSUE THE SAME BECAUSE

1) PER SEC 6, RA 8294, WHICH AMENDS PD 1866, THE IRR SHALL BE

PROMULGATED JOINTLY BY THE DOJ AND THE DILG.

2) SEC. 8, PD 1866 STATES THAT THE IRR SHALL BE PROMULGATED BY THE CHIEF
OF THE PHILIPPINE CONSTABULARY.

THE PNP GUIDELINES VIOLATE THE DUE PROCESS CLAUSE OF THE

CONSTITUTION BECAUSE:

1) THE RIGHT TO OWN AND CARRY A FIREARM IS NECESSARILY INTERTWINED

WITH THE PEOPLES INHERENT RIGHT TO LIFE AND TO PROTECT LIFE. THUS, THE
PNP GUIDELINES DEPRIVE PETITIONER OF THIS RIGHT WITHOUT DUE PROCESS
OF LAW FOR:

A) THE PNP GUIDELINES DEPRIVE PETITIONER OF HIS MOST POTENT, IF NOT HIS
ONLY, MEANS TO DEFEND HIMSELF.

B) THE QUESTIONED GUIDELINES STRIPPED PETITIONER OF HIS MEANS OF

PROTECTION AGAINST CRIME DESPITE THE FACT THAT THE STATE COULD NOT
POSSIBLY PROTECT ITS CITIZENS DUE TO THE INADEQUACY AND INEFFICIENCY
OF THE POLICE FORCE.

2) THE OWNESHIP AND CARRYING OF FIREARMS ARE CONSTITUTIONALLY

PROTECTED PROPERTY RIGHTS WHICH CANNOT BE TAKEN AWAY WITHOUT DUE
PROCESS OF LAW AND WITHOUT JUST CAUSE.

VI

ASSUMING ARGUENDO, THAT THE PNP GUIDELINES WERE ISSUED IN THE

EXERCISE OF POLICE POWER, THE SAME IS AN INVALID EXERCISE
THEREOF SINCE THE MEANS USED THEREFOR ARE UNREASONABLE AND
UNNCESSARY FOR THE ACCOMPLISHMENT OF ITS PURPOSE TO DETER AND
PREVENT CRIME THEREBY BECOMING UNDULY OPPRESSIVE TO LAW-ABIDING
GUN-OWNERS.

VII

THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND CONFISCATORY SINCE IT

REVOKED ALL EXISTING PERMITS TO CARRY WITHOUT, HOWEVER, REFUNDING
THE PAYMENT THE PNP RECEIVED FROM THOSE WHO ALREADY PAID THEREFOR.

VIII

THE PNP GUIDELINES VIOLATE THE EQUAL PROTECTION CLAUSE OF THE

CONSTITUTION BECAUSE THEY ARE DIRECTED AT AND OPPRESSIVE ONLY TO
LAW-ABIDING GUN OWNERS WHILE LEAVING OTHER GUN-OWNERS THE
LAWBREAKERS (KIDNAPPERS, ROBBERS, HOLD-UPPERS, MNLF, MILF, ABU
SAYYAF COLLECTIVELY, AND NPA) UNTOUCHED.

IX

THE PNP GUIDELINES ARE UNJUST, OPPRESSIVE AND UNFAIR BECAUSE THEY
WERE IMPLEMENTED LONG BEFORE THEY WERE PUBLISHED.

THE PNP GUIDELINES ARE EFFECTIVELY AN EX POST FACTO LAW SINCE THEY
APPLY RETROACTIVELY AND PUNISH ALL THOSE WHO WERE ALREADY
GRANTED PERMITS TO CARRY OUTSIDE OF RESIDENCE LONG BEFORE THEIR
PROMULGATION.

Petitioners submissions may be synthesized into five (5) major issues:

First, whether respondent Ebdane is authorized to issue the assailed Guidelines;

Second, whether the citizens right to bear arms is a constitutional right?;

Third, whether the revocation of petitioners PTCFOR pursuant to the assailed Guidelines is a
violation of his right to property?;

Fourth, whether the issuance of the assailed Guidelines is a valid exercise of police power?; and

Fifth, whether the assailed Guidelines constitute an ex post facto law?

The Solicitor General seeks the dismissal of the petition pursuant to the doctrine of
hierarchy of courts. Nonetheless, in refutation of petitioners arguments, he contends that: (1) the
PNP Chief is authorized to issue the assailed Guidelines; (2) petitioner does not have a
constitutional right to own and carry firearms; (3) the assailed Guidelines do not violate the due
process clause of the Constitution; and (4) the assailed Guidelines do not constitute an ex post
facto law.
Initially, we must resolve the procedural barrier.
On the alleged breach of the doctrine of hierarchy of courts, suffice it to say that the doctrine
is not an iron-clad dictum. In several instances where this Court was confronted with cases of
national interest and of serious implications, it never hesitated to set aside the rule and proceed
with the judicial determination of the cases.[3] The case at bar is of similar import as it involves
the citizens right to bear arms.
I
 Authority of the PNP Chief

Relying on the principle of separation of powers, petitioner argues that only Congress can
withhold his right to bear arms. In revoking all existing PTCFOR, President Arroyo and
respondent Ebdane transgressed the settled principle and arrogated upon themselves a power
they do not possess the legislative power.
We are not persuaded.
It is true that under our constitutional system, the powers of government are distributed
among three coordinate and substantially independent departments: the legislative, the executive
and the judiciary. Each has exclusive cognizance of the matters within its jurisdiction and is
supreme within its own sphere.[4]
Pertinently, the power to make laws the legislative power is vested in Congress. [5] Congress
may not escape its duties and responsibilities by delegating that power to any other body or
authority. Any attempt to abdicate the power is unconstitutional and void, on the principle
that delegata potestas non potest delegari delegated power may not be delegated.[6]
The rule which forbids the delegation of legislative power, however, is not absolute and
inflexible. It admits of exceptions. An exception sanctioned by immemorial practice permits the
legislative body to delegate its licensing power to certain persons, municipal corporations, towns,
boards, councils, commissions, commissioners, auditors, bureaus and directors.[7] Such licensing
power includes the power to promulgate necessary rules and regulations.[8]
The evolution of our laws on firearms shows that since the early days of our Republic, the
legislatures tendency was always towards the delegation of power. Act No. 1780,[9] delegated
upon the Governor-General (now the President) the authority (1) to approve or disapprove
applications of any person for a license to deal in firearms or to possess the same for personal
protection, hunting and other lawful purposes; and (2) to revoke such license any
time.[10] Further, it authorized him to issue regulations which he may deem necessary for the
proper enforcement of the Act. [11] With the enactment of Act No. 2711, the Revised
Administrative Code of 1917, the laws on firearms were integrated.[12] The Act retained the
authority of the Governor General provided in Act No. 1780. Subsequently, the growing
complexity in the Office of the Governor-General resulted in the delegation of his authority to
the Chief of the Constabulary. On January 21, 1919, Acting Governor-General Charles E. Yeater
issued Executive Order No. 8[13] authorizing and directing the Chief of Constabulary to act on his
behalf in approving and disapproving applications for personal, special and hunting
licenses. This was followed by Executive Order No. 61[14] designating the Philippine
Constabulary (PC) as the government custodian of all firearms, ammunitions and
explosives. Executive Order No. 215,[15]issued by President Diosdado Macapagal on December
3, 1965, granted the Chief of the Constabulary, not only the authority to approve or disapprove
applications for personal, special and hunting license, but also the authority to revoke the
same. With the foregoing developments, it is accurate to say that the Chief of the Constabulary
had exercised the authority for a long time. In fact, subsequent issuances such as Sections 2 and
3 of the Implementing Rules and Regulations of Presidential Decree No. 1866[16]perpetuate such
authority of the Chief of the Constabulary. Section 2 specifically provides that any person or
entity desiring to possess any firearm shall first secure the necessary permit/license/authority
from the Chief of the Constabulary. With regard to the issuance of PTCFOR, Section 3
imparts: The Chief of Constabulary may, in meritorious cases as determined by him and
under such conditions as he may impose, authorize lawful holders of firearms to carry
them outside of residence. These provisions are issued pursuant to the general power granted by
P.D. No. 1866 empowering him to promulgate rules and regulations for the effective
implementation of the decree.[17] At this juncture, it bears emphasis that P.D. No. 1866 is the
chief law governing possession of firearms in the Philippines and that it was issued by President
Ferdinand E. Marcos in the exercise of his legislative power.[18]
In an attempt to evade the application of the above-mentioned laws and regulations,
petitioner argues that the Chief of the PNP is not the same as the Chief of the Constabulary, the
PC being a mere unit or component of the newly established PNP. He contends further that
Republic Act No. 8294[19] amended P.D. No. 1866 such that the authority to issue rules and
regulations regarding firearms is now jointly vested in the Department of Justice and the DILG,
not the Chief of the Constabulary.[20]
Petitioners submission is bereft of merit.
By virtue of Republic Act No. 6975,[21] the Philippine National Police (PNP) absorbed the
Philippine Constabulary (PC). Consequently, the PNP Chief succeeded the Chief of the
Constabulary and, therefore, assumed the latters licensing authority. Section 24 thereof
specifies, as one of PNPs powers, the issuance of licenses for the possession of firearms and
explosives in accordance with law.[22] This is in conjunction with the PNP Chiefs power to
issue detailed implementing policies and instructions on such matters as may be necessary to
effectively carry out the functions, powers and duties of the PNP.[23]
Contrary to petitioners contention, R.A. No. 8294 does not divest the Chief of the
Constabulary (now the PNP Chief) of his authority to promulgate rules and regulations for the
effective implementation of P.D. No. 1866. For one, R.A. No. 8294 did not repeal entirely P.D.
No. 1866. It merely provides for the reduction of penalties for illegal possession of
firearms. Thus, the provision of P.D. No. 1866 granting to the Chief of the Constabulary the
authority to issue rules and regulations regarding firearms remains effective. Correspondingly,
the Implementing Rules and Regulations dated September 15, 1997 jointly issued by the
Department of Justice and the DILG pursuant to Section 6 of R.A. No. 8294 deal only with the
automatic review, by the Director of the Bureau of Corrections or the Warden of a provincial or
city jail, of the records of convicts for violations of P.D. No. 1866. The Rules seek to give effect
to the beneficent provisions of R.A. No. 8294, thereby ensuring the early release and
reintegration of the convicts into the community.
Clearly, both P.D. No. 1866 and R.A. No. 6975 authorize the PNP Chief to issue the assailed
guidelines.
Corollarily, petitioner disputes President Arroyos declaration of a nationwide gun ban,
arguing that she has no authority to alter, modify, or amend the law on firearms through a mere
speech.
First, it must be emphasized that President Arroyos speech was just an expression of her
policy and a directive to her subordinate. It cannot, therefore, be argued that President Arroyo
enacted a law through a mere speech.
Second, at the apex of the entire executive officialdom is the President. Section 17, Article
VII of the Constitution specifies his power as Chief Executive, thus: The President shall have
control of all the executive departments, bureaus and offices. He shall ensure that the laws
be faithfully executed. As Chief Executive, President Arroyo holds the steering wheel that
controls the course of her government. She lays down policies in the execution of her plans and
programs. Whatever policy she chooses, she has her subordinates to implement them. In short,
she has the power of control. Whenever a specific function is entrusted by law or regulation
to her subordinate, she may act directly or merely direct the performance of a
duty.[24] Thus, when President Arroyo directed respondent Ebdane to suspend the issuance of
PTCFOR, she was just directing a subordinate to perform an assigned duty. Such act is well
within the prerogative of her office.
II

Right to bear arms: Constitutional or Statutory?

Petitioner earnestly contends that his right to bear arms is a constitutionally-protected right.
This, he mainly anchors on various American authorities. We therefore find it imperative to
determine the nature of the right in light of American jurisprudence.
 The bearing of arms is a tradition deeply rooted in the English and American society. It
antedates not only the American Constitution but also the discovery of firearms.[25]
A provision commonly invoked by the American people to justify their possession of
firearms is the Second Amendment of the Constitution of the United States of America, which
reads:

A well regulated militia, being necessary for the security of free state, the right of the people to
keep and bear Arms, shall not be infringed.

An examination of the historical background of the foregoing provision shows that it

pertains to the citizens collective right to take arms in defense of the State, not to the citizens
individual right to own and possess arms. The setting under which the right was contemplated
has a profound connection with the keeping and maintenance of a militia or an armed
citizenry. That this is how the right was construed is evident in early American cases.
The first case involving the interpretation of the Second Amendment that reached the United
States Supreme Court is United States vs. Miller.[26] Here, the indictment charged the defendants
with transporting an unregistered Stevens shotgun without the required stamped written order,
contrary to the National Firearms Act. The defendants filed a demurrer challenging the facial
validity of the indictment on the ground that the National Firearms Act offends the inhibition of
the Second Amendment. The District Court sustained the demurrer and quashed the
indictment. On appeal, the Supreme Court interpreted the right to bear arms under the
Second Amendment as referring to the collective right of those comprising the Militia a
body of citizens enrolled for military discipline. It does not pertain to the individual right of
citizen to bear arm. Millerexpresses its holding as follows:

In the absence of any evidence tending to show that possession or use of a shotgun having a
barrel of less than eighteen inches in length at this time has some reasonable relationship to
the preservation or efficiency of a well regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument. Certainly it is not
within judicial notice that this weapon is any part of the ordinary military equipment or that its
use could contribute to the common defense.

The same doctrine was re-echoed in Cases vs. United States.[27] Here, the Circuit Court of
Appeals held that the Federal Firearms Act, as applied to appellant, does not conflict with the
Second Amendment. It ruled that:

While [appellants] weapon may be capable of military use, or while at least familiarity with it
might be regarded as of value in training a person to use a comparable weapon of military type
and caliber, still there is no evidence that the appellant was or ever had been a member of
any military organization or that his use of the weapon under the circumstances disclosed
was in preparation for a military career. In fact, the only inference possible is that the
appellant at the time charged in the indictment was in possession of, transporting, and
using the firearm and ammunition purely and simply on a frolic of his own and without
any thought or intention of contributing to the efficiency of the well regulated militia which
the Second amendment was designed to foster as necessary to the security of a free state.

With the foregoing jurisprudence, it is erroneous to assume that the US Constitution grants
upon the American people the right to bear arms. In a more explicit language, the United States
vs. Cruikshank[28] decreed: The right of the people to keep and bear arms is not a right
granted by the Constitution. Neither is it in any way dependent upon that
instrument. Likewise, in People vs. Persce,[29] the Court of Appeals said: Neither is there any
constitutional provision securing the right to bear arms which prohibits legislation with reference
to such weapons as are specifically before us for consideration. The provision in the
Constitution of the United States that the right of the people to keep and bear arms shall
not be infringed is not designed to control legislation by the state.
 With more reason, the right to bear arms cannot be classified as fundamental under the 1987
Philippine Constitution. Our Constitution contains no provision similar to the Second
Amendment, as we aptly observed in the early case of United States vs. Villareal:[30]

The only contention of counsel which would appear to necessitate comment is the claim that the
statute penalizing the carrying of concealed weapons and prohibiting the keeping and the use of
firearms without a license, is in violation of the provisions of section 5 of the Philippine Bill of
Rights.

Counsel does not expressly rely upon the prohibition in the United States Constitution
against the infringement of the right of the people of the United States to keep and bear
arms (U. S. Constitution, amendment 2), which is not included in the Philippine Bill. But it
may be well, in passing, to point out that in no event could this constitutional guaranty have
any bearing on the case at bar, not only because it has not been expressly extended to the
Philippine Islands, but also because it has been uniformly held that both this and similar
provisions in State constitutions apply only to arms used in civilized warfare (see cases
cited in 40 Cyc., 853, note 18); x x x.

Evidently, possession of firearms by the citizens in the Philippines is the exception, not
the rule. The right to bear arms is a mere statutory privilege, not a constitutional right. It is a
mere statutory creation. What then are the laws that grant such right to the Filipinos? The
first real firearm law is Act No. 1780 enacted by the Philippine Commission on October 12,
1907. It was passed to regulate the importation, acquisition, possession, use and transfer of
firearms. Section 9 thereof provides:

SECTION 9. Any person desiring to possess one or more firearms for personal protection,
or for use in hunting or other lawful purposes only, and ammunition therefor, shall make
application for a license to possess such firearm or firearms or ammunition as hereinafter
provided. Upon making such application, and before receiving the license, the applicant shall
make a cash deposit in the postal savings bank in the sum of one hundred pesos for each firearm
for which the license is to be issued, or in lieu thereof he may give a bond in such form as the
Governor-General may prescribe, payable to the Government of the Philippine Islands, in the
sum of two hundred pesos for each such firearm: PROVIDED, HOWEVER, That persons who
are actually members of gun clubs, duly formed and organized at the time of the passage of this
Act, who at such time have a license to possess firearms, shall not be required to make the
deposit or give the bond prescribed by this section, and the bond duly executed by such person in
accordance with existing law shall continue to be security for the safekeeping of such arms.

The foregoing provision was restated in Section 887[31] of Act No. 2711 that integrated the
firearm laws. Thereafter, President Ferdinand E. Marcos issued P.D. No. 1866. It codified the
laws on illegal possession, manufacture, dealing in, acquisition of firearms, ammunitions or
explosives and imposed stiffer penalties for their violation. R.A. No. 8294 amended some of the
provisions of P.D. No. 1866 by reducing the imposable penalties. Being a mere statutory
creation, the right to bear arms cannot be considered an inalienable or absolute right.
III

Vested Property Right

Section 1, Article III of the Constitution provides that no person shall be deprived of life,
liberty or property without due process of law. Petitioner invokes this provision, asserting that
the revocation of his PTCFOR pursuant to the assailed Guidelines deprived him of his vested
property right without due process of law and in violation of the equal protection of law.
Petitioner cannot find solace to the above-quoted Constitutional provision.
 In evaluating a due process claim, the first and foremost consideration must be whether life,
liberty or property interest exists.[32] The bulk of jurisprudence is that a license authorizing a
person to enjoy a certain privilege is neither a property nor property right. In Tan vs. The
Director of Forestry,[33] we ruled that a license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between the authority granting it and the
person to whom it is granted; neither is it property or a property right, nor does it create a
vested right. In a more emphatic pronouncement, we held in Oposa vs. Factoran, Jr.[34] that:

Needless to say, all licenses may thus be revoked or rescinded by executive action. It is not a
contract, property or a property right protected by the due process clause of the
Constitution.

Petitioner, in arguing that his PTCFOR is a constitutionally protected property right, relied
heavily on Bell vs. Burson[35] wherein the U.S. Supreme Court ruled that once a license is issued,
continued possession may become essential in the pursuit of livelihood. Suspension of issued
licenses thus involves state action that adjudicates important interest of the licensees.
Petitioners reliance on Bell is misplaced. This case involves a drivers license, not a license to
bear arms. The catena of American jurisprudence involving license to bear arms is perfectly in
accord with our ruling that a PTCFOR is neither a property nor a property right. In Erdelyi vs.
OBrien,[36] the plaintiff who was denied a license to carry a firearm brought suit against the
defendant who was the Chief of Police of the City of Manhattan Beach, on the ground that the
denial violated her constitutional rights to due process and equal protection of the laws. The
United States Court of Appeals Ninth Circuit ruled that Erdelyi did not have a property interest
in obtaining a license to carry a firearm, ratiocinating as follows:

Property interests protected by the Due Process Clause of the Fourteenth Amendment do
not arise whenever a person has only an abstract need or desire for, or unilateral
expectation of a benefit. x x x Rather, they arise from legitimate claims of entitlement
defined by existing rules or understanding that stem from an independent source, such as
state law. x x x

Concealed weapons are closely regulated by the State of California. x x x Whether the statute
creates a property interest in concealed weapons licenses depends largely upon the extent
to which the statute contains mandatory language that restricts the discretion of the
[issuing authority] to deny licenses to applicants who claim to meet the minimum eligibility
requirements. x x x Where state law gives the issuing authority broad discretion to grant or
deny license application in a closely regulated field, initial applicants do not have a
property right in such licenses protected by the Fourteenth Amendment. See
Jacobson, supra, 627 F.2d at 180 (gaming license under Nevada law);

Similar doctrine was announced in Potts vs. City of Philadelphia,[37] Conway vs.
King,[38] Nichols vs. County of Sta. Clara,[39] and Gross vs. Norton.[40] These cases enunciated
that the test whether the statute creates a property right or interest depends largely on the extent
of discretion granted to the issuing authority.
In our jurisdiction, the PNP Chief is granted broad discretion in the issuance of
PTCFOR. This is evident from the tenor of the Implementing Rules and Regulations of P.D. No.
1866 which state that the Chief of Constabulary may, in meritorious cases as determined by
him and under such conditions as he may impose, authorize lawful holders of firearms to
carry them outside of residence. Following the American doctrine, it is indeed logical to say that
a PTCFOR does not constitute a property right protected under our Constitution.
Consequently, a PTCFOR, just like ordinary licenses in other regulated fields, may be
revoked any time. It does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions, and such as may thereafter be reasonably imposed. [41] A
licensee takes his license subject to such conditions as the Legislature sees fit to impose, and one
of the statutory conditions of this license is that it might be revoked by the selectmen at their
pleasure. Such a license is not a contract, and a revocation of it does not deprive the
defendant of any property, immunity, or privilege within the meaning of these words in the
Declaration of Rights.[42] The US Supreme Court, in Doyle vs. Continental Ins.
Co,[43] held: The correlative power to revoke or recall a permission is a necessary
consequence of the main power. A mere license by the State is always revocable.
The foregoing jurisprudence has been resonating in the Philippines as early as 1908. Thus,
in The Government of the Philippine Islands vs. Amechazurra[44] we ruled:

x x x no private person is bound to keep arms. Whether he does or not is entirely optional with
himself, but if, for his own convenience or pleasure, he desires to possess arms, he must do so
upon such terms as the Government sees fit to impose, for the right to keep and bear arms is not
secured to him by law. The Government can impose upon him such terms as it pleases. If he is
not satisfied with the terms imposed, he should decline to accept them, but, if for the purpose of
securing possession of the arms he does agree to such conditions, he must fulfill them.

IV

Police Power

At any rate, assuming that petitioners PTCFOR constitutes a property right protected by the
Constitution, the same cannot be considered as absolute as to be placed beyond the reach of the
States police power. All property in the state is held subject to its general regulations, necessary
to the common good and general welfare.
In a number of cases, we laid down the test to determine the validity of a police measure,
thus:

(1) The interests of the public generally, as distinguished from those of a particular class, require
the exercise of the police power; and

(2) The means employed are reasonably necessary for the accomplishment of the purpose and
not unduly oppressive upon individuals.

Deeper reflection will reveal that the test merely reiterates the essence of the constitutional
guarantees of substantive due process, equal protection, and non-impairment of property rights.
It is apparent from the assailed Guidelines that the basis for its issuance was the need for
peace and order in the society. Owing to the proliferation of crimes, particularly those committed
by the New Peoples Army (NPA), which tends to disturb the peace of the community, President
Arroyo deemed it best to impose a nationwide gun ban.Undeniably, the motivating factor in the
issuance of the assailed Guidelines is the interest of the public in general.
The only question that can then arise is whether the means employed are appropriate and
reasonably necessary for the accomplishment of the purpose and are not unduly oppressive. In
the instant case, the assailed Guidelines do not entirely prohibit possession of firearms. What
they proscribe is merely the carrying of firearms outside of residence. However, those who wish
to carry their firearms outside of their residences may re-apply for a new PTCFOR. This we
believe is a reasonable regulation. If the carrying of firearms is regulated, necessarily, crime
incidents will be curtailed. Criminals carry their weapon to hunt for their victims; they do not
wait in the comfort of their homes. With the revocation of all PTCFOR, it would be difficult for
criminals to roam around with their guns. On the other hand, it would be easier for the PNP to
apprehend them.
Notably, laws regulating the acquisition or possession of guns have frequently been upheld
as reasonable exercise of the police power.[45] In State vs. Reams,[46] it was held that the
legislature may regulate the right to bear arms in a manner conducive to the public peace. With
the promotion of public peace as its objective and the revocation of all PTCFOR as the means,
we are convinced that the issuance of the assailed Guidelines constitutes a reasonable exercise of
police power. The ruling in United States vs. Villareal,[47] is relevant, thus:

We think there can be no question as to the reasonableness of a statutory regulation prohibiting

the carrying of concealed weapons as a police measure well calculated to restrict the too frequent
resort to such weapons in moments of anger and excitement. We do not doubt that the strict
enforcement of such a regulation would tend to increase the security of life and limb, and to
suppress crime and lawlessness, in any community wherein the practice of carrying concealed
weapons prevails, and this without being unduly oppressive upon the individual owners of these
weapons. It follows that its enactment by the legislature is a proper and legitimate exercise of the
police power of the state.

Ex post facto law

In Mekin vs. Wolfe,[48] an ex post facto law has been defined as one (a) which makes an
action done before the passing of the law and which was innocent when done criminal, and
punishes such action; or (b) which aggravates a crime or makes it greater than it was when
committed; or (c) which changes the punishment and inflicts a greater punishment than the law
annexed to the crime when it was committed; or (d) which alters the legal rules of evidence and
receives less or different testimony than the law required at the time of the commission of the
offense in order to convict the defendant.
We see no reason to devote much discussion on the matter. Ex post facto law prohibits
retrospectivity of penal laws.[49] The assailed Guidelines cannot be considered as an ex post facto
law because it is prospective in its application. Contrary to petitioners argument, it would not
result in the punishment of acts previously committed.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

[1]
Section 5, Article II of the 1987 Philippine Constitution.
[2]
Annex A of the Petition, Rollo at 60-62.
[3]
See Buklod ng Kawaning EIIB vs. Zamora, G.R. Nos. 142801-802, July 10, 2001, 360 SCRA
718; Fortich vs. Corona, G.R. No. 131457, April 24, 1998, 289 SCRA 624; Dario vs.
Mison, G.R. No. 81954, August 8, 1989, 176 SCRA 84.
[4]
People vs. Vera, 65 Phil. 56 (1937).
[5]
Section 1, Article VI of the 1987 Constitution.
[6]
Freund, Sutherland, Howe, Brown, Constitutional Law Cases and Other Problems, Fourth
Edition, 1977, at 653.
[7]
51 Am. Jur. 2d 51.
[8]
51 Am Jur 2d 52.
[9] AN ACT TO REGULATE THE IMPORTATION, ACQUISITION, POSSESSION,
USE, AND TRANSFER OF FIREARMS, AND TO PROHIBIT THE POSSESSION
 OF SAME EXCEPT IN COMPLIANCE WITH THE PROVISIONS OF THIS
ACT.
[10] SECTION 11. An application for a personal license to possess firearms and ammunition, as
herein provided for, made by a resident of the city of Manila, shall be directed to the
chief of police of said city, and it shall be the duty of the chief of the police to forward
the application to the Governor-General with his recommendations. Any such application
made by a resident of a province shall be directed to the governor of the province who
shall make his recommendations thereon and forward the application to the senior
inspector of the Constabulary of the province, who in turn shall make his
recommendations thereon and forward the application, through official channels, to the
Governor-General. The Governor-General may approve or disapprove any such
application, and, in the event of the approval, the papers shall be transmitted to the
Director of Constabulary with instructions to issue the license as hereinbefore
provided. The Director of Constabulary, upon receiving and approving the bond, or
receiving the certificate of deposit duly endorsed to the order of the Insular Treasurer,
shall issue the license for the time fixed for such license as hereinafter provided, and the
Director of Constabulary shall transmit the license direct to the applicant, and shall notify
the chief of police of the city of Manila if the applicant resides in Manila, otherwise the
senior inspector of Constabulary of the province in which the applicant resides. The
Director of Constabulary shall file the certificate of deposit in his office. It shall be the
duty of all officers through whom applications for licenses to possess firearms are
transmitted to expedite the same.
[11]
SECTION 30. The Governor-General is hereby authorized to issue executive orders
prescribing the forms and regulations which he may deem necessary for the proper
enforcement of the provisions of this Act.
[12] SEC. 882. Issuance of special hunting permits. The Department Head may authorize the
Chief of Constabulary to issue special hunting permits to persons temporarily visiting the
Philippine Islands, without requiring a bond or deposit as a guarantee of security for their
arms and ammunition. Such special hunting permit shall be valid only during the
temporary sojourn of the holder in the Islands, shall be nontransferable, and shall be
revocable at the pleasure of the Department Head.
SEC. 887. License required for individual keeping arms for personal use. Security to be
given. Any person desiring to possess one or more firearms for personal protection or for
use in hunting or other lawful purposes only, and ammunition thereof, shall make
application for a license to possess such firearm or firearms or ammunition as hereinafter
provided. Upon making such application, and before receiving the license, the applicant
shall, for the purpose of security, make a cash deposit in the postal savings bank in the
sum of one hundred pesos for each firearm for which the license is to be issued, and shall
indorse the certificated of deposit therefor to the Insular Treasurer; or in lieu thereof he
may give a bond in such form as the Governor-General may prescribed, payable to the
Government of the Philippine Islands, in the sum of two hundred pesos for each such
firearms.
SEC. 888. Mode of making application and acting upon the same. An application for a personal
license to possess firearms and ammunition, as herein provided, made by a resident of the
City of Manila, shall be directed to the Mayor of said city, whose duty it shall be to
forward the application to the Governor-General, with his recommendation. Applications
made by residents of a province shall be directed to the governor of the same, who shall
make his recommendation thereon and forward them to the Governor-General, who may
approve or disapprove any such application.
SEC. 889. Duration of personal license. A personal firearms license shall continue in force until
the death or legal disability of the licensee, unless, prior thereto, the license shall be
surrendered by him or revoked by authority of the Governor-General.
SEC. 899. Revocation of firearms license by Governor-General. Any firearms license may be
revoked at any time by order of the Governor-General.
SEC. 905. Forms and regulations to be prescribed by Governor-General. The Governor-General
shall prescribe such forms and promulgate such regulations as he shall deem necessary
for the proper enforcement of this law.
[13] (Delegating the CPC to Approve/Disapprove Applications)
15. In carrying out the provisions of Sections eight hundred and eighty-one, eight hundred and
eighty-two, eighty hundred and eighty-eight, as amended by Section two of Act two
thousand seven hundred and seventy-four, eight hundred and ninety-one and eight
hundred and ninety-two of the Administrative Code, empowering the Governor-General
to approve and disapprove applications for personal, special, and hunting licenses to
possess firearms and ammunition, the Chief of Constabulary is authorized and directed to
act for the Governor-General.
[14] Issued on December 5, 1924 by Governor-General Leonard Wood.
[15] Pursuant to the provisions of Section 905, Administrative Code, as amended, empowering the
President of the Philippines to prescribe regulations for the enforcement of the provisions
of the law relating to the possession, use of firearms, etc., the following regulations are
hereby promulgated.
SECTION 1. In carrying out the provision of Sections 881, 882 and 888 of the Revised
Administrative Code, empowering the President of the Philippines to approve or
disapprove applications for personal, special and hunting license to possess firearms and
ammunition, the Chief of Constabulary or his representative is authorized and directed to
act for the President.
SECTION 2. In carrying out the provisions of Section 899 of the Revised Administrative Code,
empowering the President of the Philippines to revoke any firearm license anytime, the
Chief of Constabulary is authorized and directed to act for the President.
[16]CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL POSSESSION, MANUFACTURE,
DEALING IN, ACQUISITION OR DISPOSITION, OF FIREARMS, AMMUNITION
OR EXPLOSIVES OR INSTRUMENTS USED IN THE MANUFACTURE OF
FIREARMS, AMMUNITION OR EXPLOSIVES, AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF AND FOR RELEVANT
PURPOSES.
[17]
Section 8 of P.D. No. 1866.
[18]
Baylosis vs. Chavez, Jr., G.R. No. 95136, October 3, 1991, 202 SCRA 405.
[19] AN ACT AMENDING THE PROVISIONS OF PRESIDENTIAL DECREE NO. 1866, AS
AMENDED, ENTITLED CODIFYING THE LAWS ON ILLEGAL/UNLAWFUL
POSSESSION, MANUFACTURE, DEALING IN, ACQUISITION OR DISPOSITION
OF FIREARMS, AMMUNITION OR EXPLOSIVES OR INSTRUMENTS USED IN
THE MANUFACTURE OF FIREARMS, AMMUNITION OR EXPLOSIVES, AND
IMPOSING STIFFER PENALTIES FOR EXPLOSIVES, AND IMPOSING STIFFER
PENALTIES FOR CERTAIN VIOLATIONS THEREOF, AND FOR RELEVANT
PURPOSES. Issued on June 29, 1983.
[20]
Section 6 of R.A. No. 8294 provides:
SECTION 6. Rules and Regulations. The Department of Justice and the Department of the
Interior and Local Government shall jointly issue, within ninety (90) days after the
approval of this Act, the necessary rules and regulations pertaining to the
administrative aspect of the provisions hereof, furnishing the Committee on Public
Order and Security and the Committee on Justice and Human Rights of both Houses of
Congress copies of such rules and regulations within thirty (30) days from the
promulgation hereof.
[21] AN ACT ESTABLISHING THE PHILIPPINE NATIONAL POLICE UNDER A
REORGANIZED DEPARMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
AND FOR OTHER PURPOSES. Approved December 13, 1990.
[22]
Under Section 2 (11), Chapter 1, Book 7 of Executive Order No. 292, the Administrative
Code of 1987, the term licensing includes agency process involving the grant, renewal,
denial, revocation, suspension, annulment, withdrawal, limitation, amendment,
modification or conditioning of a license.
[23]
Section 26 of R.A. No. 6975.
[24]
Chapter 7, Book IV of E.O. No. 292.

[25] Under the laws of Alfred the Great, whose reign began in 872 A.D., all English citizens, from
the nobility to the peasants, were obliged to privately purchase weapons and be available
for military duty.[25] This body of armed citizens was known as the fyrd.
Following the Norman conquest, many of the Saxon rights were abridged, however, the right and
duty of arms possession was retained. Under the Assize of Arms of 1181, the whole
community of freemen is required to possess arms and to demonstrate to the Royal
officials that each of them is appropriately armed.
The Tudor monarchs continued the system of arm ownership and Queen Elizabeth added to it by
creating what came to be known as train bands that is, the selected portions of the
citizenry chosen for special training. These trained bands were distinguished from
the militia which term was first used during the Spanish Armada crisis to designate the
entire of the armed citizenry.
The militia played a pivotal role in the English political system. When civil war broke out in
1642, the critical issue was whether the King or Parliament had the right to control the
militia. After the war, England, which was then under the control of a military
government, ordered its officers to search for and seize all arms owned by
Catholics, opponents of the government, or any other person whom the commissioners
had judged dangerous to the peace of the Commonwealth.
The restoration of Charles II ended the military government. Charles II opened his reign with a
variety of repressive legislation. In 1662, a Militia Act was enacted empowering officials
to search and to seize all arms in the custody or possession of any person or persons
whom the said lieutenants or any two or more of their deputies shall judge dangerous to
the peace of the kingdom. Such seizures of arms continued under James I, who directed
them particularly against the Irish population.
In 1668, the government of James was overturned in a peaceful uprising which came to be
known as The Glorious Revolution. Parliament promulgated a Declaration of Rights, later
enacted as the Bill of Rights. Before coronation, James successor, William of Orange,
was required to swear to respect these rights. The Bill of Rights, as drafted in the House
of Commons, simply provided that the acts concerning the militia are grievous to the
subject and it is necessary for the public safety that the subjects, which are protestants,
should provide and keep arms for the common defense; And that the arms which have
been seized, and taken from them, be restored. The House of Lords changed this to a
more concise statement: That the subjects which are Protestant may have arms for their
defense suitable to their conditions and as allowed by law.
In the colonies, the prevalence of hunting as means of livelihood and the need for defense led to
armament statutes comparable to those of the early Saxon times. When the British
government began to increase its military presence therein in the mid-eighteenth century,
Massachusetts responded by calling upon its citizens to arm themselves in defense. In
September 1774, an incorrect rumor that British troops killed colonists prompted 60,000
citizens to take arms. A few months later, when Patrick Henry delivered his famed Give
me liberty or give me death speech, he spoke in support of a proposition that a well
 regulated militia, composed of gentlemen and freemen, is the natural strength and only
security of a free government
When the first Congress convened for the purpose of drafting a Bill of Rights, it delegated the
task to James Madison. Madison did not write upon a blank tablet. Instead, he obtained a
pamphlet listing the States proposals for a Bill of Rights and sought to produce a briefer
version incorporating all the vital proposals of such States. Madison proposed among
other rights: The right of the people to keep and bear arms shall not be infringed; a well
armed and regulated militia being the best security of a free country; but no person
religiously scrupulous of bearing arms shall be compelled to render military service. In
the House, this was initially modified so that the militia clause came before the proposal
recognizing the right. The proposal finally passed the House in its present form: A well
regulated militia, being necessary for the security of free state, the right of the people to
keep and bear arms, shall not be infringed. In this form it was submitted to the Senate,
which passed it the following day.
[26]
307 U.S. 174 (1939).
[27]
131 Federal Reporter, 2d Series, 916.
[28]
92 U.S. 542, 23 L. Ed. 588.
[29]
204 N.Y. 397, 97 N.E. 877.
[30]
28 Phil. 390 (1914).
[31] Supra.
[32]
Bzdzuich vs. U.S. Drug Enforcement Admin., 76 F 3d 738, 1996 FED App. 59P (6th Cir.
1996).
[33]
G.R. No. L-24548, October 27, 1983, 125 SCRA 302. See also Pedro vs. Provincial Board of
Rizal, 56 Phil. 123 (1931).
[34]
G.R. No. 101083, July 30, 1993, 224 SCRA 792, penned by Chief Justice Hilario G. Davide,
Jr.
[35]
402 U.S. 535 (1971).
[36]
680 F 2d 61 (1982).
[37]
01-CV-3247, August 2002.
[38]
718 F. Supp. 1059 (1989).
[39]
223 Cal. App. 3d 1236, 273 Cal. Rptr. 84 (1990).
[40]
120 F. 3d 877 (1997).
[41]
Stone vs. Fritts, 82 NE 792 (1907) citing Calder vs. Kurby, 5 Gray [Mass.] 597; Freleigh vs.
State, 8 Mo. 606; People vs. New York Tax, etc., Comrs, 47 N.Y. 501; State vs.
Burgoyne, 75 Tenn. 173, 40 Am. Rep. 60.
[42]
Commonwealth vs. Kinsley, 133 Mass. 578.
[43]
94 U.S. 535, 540 24 L.Ed.148.
[44]
10 Phil. 637 (1908).
[45]
Calvan vs. Superior Court of San Francisco, 70 Cal 2d 851, 76 Cal Rptr 642, 452 P2d 930;
State vs. Robinson (Del Sup) 251 A2d 552; People vs. Brown, 253 Mich 537, 235 NW
245, 82 ALR 341.
[46]
121 N.C. 556, 557, 27 S.E. 1004, 1005 (1897).
[47]
28 Phil. 390 (1914).
[48]
2 Phil. 74 (1903).
[49]
Lacson vs. The Executive Secretary G.R. No. 128096, January 20, 1999, 301 SCRA 298.

Chavez vs Romulo GR 157036 09 June 2004

POSTED BY RACHEL CHAN IN CASE DIGESTS, CONSTITUTIONAL LAW II

≈ LEAVE A COMMENT
Facts: GMA delivered a speech to PNP directing PNP Chief Hermogenes Ebdane to suspend the
issuance pf Permit to Carry Firearms Outside of Residence PTCFOR). Ebdane issued guidelines
banning carrying firearms outside of residence. Petitioner, Francisco Chaves requested DILG to
reconsider the implementation. The request was denied. Hence the petition for prohibition and
injunction against Executive Secretary Alberto Romulo and PNP Chief Ebdane.
Issue: Whether or not revocation of PTCFOR is a violation of right to property? Whether or not
the banning of carrying firearms outside the residence is a valid exercise of police power?
Decision: Petition dismissed. Just like ordinary licenses in other regulated fields, PTCFOR may
be revoked any time. It does not confer an absolute right, but only a personal privilege to be
exercised under existing restrictions. A licensee takes his license subject to such conditions as
the Legislature sees fit to impose, and one of the statutory conditions of this license is that it
might be revoked. Revocation of it does not deprive the defendant of any property, immunity, or
privilege.
The basis for its issuance was the need for peace and order in the society. the assailed Guidelines
do not entirely prohibit possession of firearms. What they proscribe is merely the carrying of
firearms outside of residence. However, those who wish to carry their firearms outside of their
residences may re-apply for a new PTCFOR. This is a reasonable regulation. If the carrying of
firearms is regulated, necessarily, crime incidents will be curtailed.

4. Mirasol v. DPWH (490 SCRA 318)

EN BANC

G.R. No. 158793 June 8, 2006

JAMES MIRASOL, RICHARD SANTIAGO, and LUZON MOTORCYCLISTS

FEDERATION, INC., Petitioners,
vs.
DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS and TOLL REGULATORY
BOARD, Respondents.

DECISION

CARPIO, J.:

This petition for review on certiorari1 seeks to reverse the Decision dated 10 March 2003 of the
Regional Trial Court, Branch 147, Makati City (RTC) in Civil Case No. 01-034, as well as the
RTC’s Order dated 16 June 2003 which denied petitioners’ Motion for Reconsideration.
Petitioners assert that Department of Public Works and Highways’ (DPWH) Department Order
No. 74 (DO 74), Department Order No. 215 (DO 215), and the Revised Rules and Regulations
on Limited Access Facilities of the Toll Regulatory Board (TRB) violate Republic Act No. 2000
(RA 2000) or the Limited Access Highway Act. Petitioners also seek to declare Department
Order No. 123 (DO 123) and Administrative Order No. 1 (AO 1)2 unconstitutional.

Antecedent Facts
The facts are not in dispute. As summarized by the Solicitor General, the facts are as follows:

1. On January 10, 2001, petitioners filed before the trial court a Petition for Declaratory
Judgment with Application for Temporary Restraining Order and Injunction docketed as
Civil Case No. 01-034. The petition sought the declaration of nullity of the following
administrative issuances for being inconsistent with the provisions of Republic Act 2000,
entitled "Limited Access Highway Act" enacted in 1957:

a. DPWH Administrative Order No. 1, Series of 1968;

b. DPWH Department Order No. 74, Series of 1993;

c. Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities
promulgated in 199[8] by the DPWH thru the Toll Regulatory Board (TRB).

2. Previously, pursuant to its mandate under R.A. 2000, DPWH issued on June 25, 1998
Department Order (DO) No. 215 declaring the Manila-Cavite (Coastal Road) Toll
Expressway as limited access facilities.

3. Accordingly, petitioners filed an Amended Petition on February 8, 2001 wherein

petitioners sought the declaration of nullity of the aforesaid administrative issuances.
Moreover, petitioners prayed for the issuance of a temporary restraining order and/or
preliminary injunction to prevent the enforcement of the total ban on motorcycles along
the entire breadth of North and South Luzon Expressways and the Manila-Cavite (Coastal
Road) Toll Expressway under DO 215.

4. On June 28, 2001, the trial court, thru then Presiding Judge Teofilo Guadiz, after due
hearing, issued an order granting petitioners’ application for preliminary injunction. On
July 16, 2001, a writ of preliminary injunction was issued by the trial court, conditioned
upon petitioners’ filing of cash bond in the amount of P100,000.00, which petitioners
subsequently complied with.

5. On July 18, 2001, the DPWH acting thru the TRB, issued Department Order No. 123
allowing motorcycles with engine displacement of 400 cubic centimeters inside limited
access facilities (toll ways).

6. Upon the assumption of Honorable Presiding Judge Ma. Cristina Cornejo, both the
petitioners and respondents were required to file their respective Memoranda. Petitioners
likewise filed [their] Supplemental Memorandum. Thereafter, the case was deemed
submitted for decision.

7. Consequently, on March 10, 2003, the trial court issued the assailed decision
dismissing the petition but declaring invalid DO 123. Petitioners moved for a
reconsideration of the dismissal of their petition; but it was denied by the trial court in its
Order dated June 16, 2003.3

Hence, this petition.

The RTC’s Ruling

The dispositive portion of the RTC’s Decision dated 10 March 2003 reads:

WHEREFORE, [t]he Petition is denied/dismissed insofar as petitioners seek to declare null and
void ab initio DPWH Department Order No. 74, Series of 1993, Administrative Order No. 1, and
Art. II, Sec. 3(a) of the Revised Rules on Limited Access Facilities promulgated by the DPWH
thru the TRB, the presumed validity thereof not having been overcome; but the petition is
granted insofar as DPWH Department Order No. 123 is concerned, declaring the same to be
invalid for being violative of the equal protection clause of the Constitution.

SO ORDERED.4

The Issues

Petitioners seek a reversal and raise the following issues for resolution:

1. WHETHER THE RTC’S DECISION IS ALREADY BARRED BY RES JUDICATA;

2. WHETHER DO 74, DO 215 AND THE TRB REGULATIONS CONTRAVENE RA

2000; AND

3. WHETHER AO 1 AND DO 123 ARE UNCONSTITUTIONAL.5

The Ruling of the Court

The petition is partly meritorious.

Whether the RTC’s Decision Dismissing Petitioners’ Case is Barred by Res Judicata

Petitioners rely on the RTC’s Order dated 28 June 2001, which granted their prayer for a writ of
preliminary injunction. Since respondents did not appeal from that Order, petitioners argue that
the Order became "a final judgment" on the issues. Petitioners conclude that the RTC erred when
it subsequently dismissed their petition in its Decision dated 10 March 2003.

Petitioners are mistaken. As the RTC correctly stated, the Order dated 28 June 2001 was not an
adjudication on the merits of the case that would trigger res judicata. A preliminary injunction
does not serve as a final determination of the issues. It is a provisional remedy, which merely
serves to preserve the status quo until the court could hear the merits of the case.6 Thus, Section
9 of Rule 58 of the 1997 Rules of Civil Procedure requires the issuance of a final injunction to
confirm the preliminary injunction should the court during trial determine that the acts
complained of deserve to be permanently enjoined. A preliminary injunction is a mere adjunct,
an ancillary remedy which exists only as an incident of the main proceeding.7

Validity of DO 74, DO 215 and the TRB Regulations

Petitioners claim that DO 74,8 DO 215,9 and the TRB’s Rules and Regulations issued under them
violate the provisions of RA 2000. They contend that the two issuances unduly expanded the
power of the DPWH in Section 4 of RA 2000 to regulate toll ways. Petitioners assert that the
DPWH’s regulatory authority is limited to acts like redesigning curbings or central dividing
sections. They claim that the DPWH is only allowed to re-design the physical structure of toll
ways, and not to determine "who or what can be qualified as toll way users."10

Section 4 of RA 200011 reads:

SEC. 4. Design of limited access facility. — The Department of Public Works and
Communications is authorized to so design any limited access facility and to so regulate,
restrict, or prohibit access as to best serve the traffic for which such facility is intended; and
its determination of such design shall be final. In this connection, it is authorized to divide and
separate any limited access facility into separate roadways by the construction of raised curbings,
central dividing sections, or other physical separations, or by designating such separate roadways
by signs, markers, stripes, and the proper lane for such traffic by appropriate signs, markers,
stripes and other devices. No person, shall have any right of ingress or egress to, from or across
limited access facilities to or from abutting lands, except at such designated points at which
access may be permitted, upon such terms and conditions as may be specified from time to time.
(Emphasis supplied)

On 19 February 1968, Secretary Antonio V. Raquiza of the Department of Public Works and
Communicationsissued AO 1, which, among others, prohibited motorcycles on limited access
highways. The pertinent provisions of AO 1 read:

SUBJECT: Revised Rules and Regulations Governing Limited Access Highways

By virtue of the authority granted the Secretary [of] Public Works and Communications
under Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the
following rules and regulations governing limited access highways are hereby promulgated for
the guidance of all concerned:

xxxx

Section 3 – On limited access highways, it is unlawful for any person or group of persons to:

xxxx

(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized);

x x x x12 (Emphasis supplied)

On 5 April 1993, Acting Secretary Edmundo V. Mir of the Department of Public Works and
Highways issued DO 74:

SUBJECT: Declaration of the North Luzon Expressway from Balintawak to Tabang and the
South Luzon Expressway from Nichols to Alabang as Limited Access Facilities

Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a
highway or street especially designed for through traffic, and over, from, or to which owners or
occupants of abutting land or other persons have no right or easement or only a limited right or
easement of access, light, air or view by reason of the fact that their proper[t]y abuts upon such
limited access facility or for any other reason. Such highways or streets may be parkways, from
which trucks, buses, and other commerical [sic] vehicles shall be excluded; or they may be free
ways open to use by all customary forms of street and highway traffic."

Section 3 of the same Act authorizes the Department of Public Works and Communications (now
Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use wherever it is of the
opinion that traffic conditions, present or future, will justify such special facilities."

Therefore, by virtue of the authority granted above, the Department of Public Works and
Highways hereby designates and declares the Balintawak to Tabang Sections of the North Luzon
Expressway, and the Nichols to Alabang Sections of the South Luzon Expressways, to be
LIMITED ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may
be imposed by the DPWH thru the Toll Regulatory Board (TRB).

In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after
consultation with the TRB and in coordination with the Philippine National Police (PNP), to
close all illegal openings along the said Limited Access Highways/Facilities. In this connection,
the NCR is instructed to organize its own enforcement and security group for the purpose of
assuring the continued closure of the right-of-way fences and the implementation of the rules and
regulations that may be imposed by the DPWH thru the TRB.

This Order shall take effect immediately.13

On 25 June 1998, then DPWH Secretary Gregorio R. Vigilar issued DO 215:

SUBJECT: Declaration of the R-1 Expressway, from Seaside drive to Zapote, C-5 Link
Expressway, from Zapote to Noveleta, of the Manila Cavite Toll Expressway as Limited Access
Facility.

Pursuant to Section 2 of Republic Act No. 2000, a limited access facility is defined as "a
highway or street especially designed for through traffic, and over, from, or to which owners or
occupants of abutting land or other persons have no right or easement or only a limited right or
easement of access, light, air or view by reason of the fact that their property abuts upon such
limited access facility or for any other reason. Such highways or streets may be parkways, from
which trucks, buses, and other commercial vehicles shall be excluded; or they may be free ways
open to use by all customary forms of street and highway traffic."

Section 3 of the same Act authorizes the Department of Public Works and Communications (now
Department of Public Works and Highways) "to plan, designate, establish, regulate, vacate, alter,
improve, maintain, and provide limited access facilities for public use wherever it is of the
opinion that traffic conditions, present or future, will justify such special facilities."

Therefore, by virtue of the authority granted above, the Department of Public Works and
Highways hereby designates and declares the R-1 Expressway, C-5 Link Expressway and the R-
1 Extension Expressway Sections of the Manila Cavite Toll Expressway to be LIMITED
ACCESS HIGHWAYS/FACILITIES subject to such rules and regulations that may be imposed
by the DPWH thru the Toll Regulatory Board (TRB).

In view thereof, the National Capital Region (NCR) of this Department is hereby ordered, after
consultation with the TRB and in coordination with the Philippine National Police (PNP), to
close all illegal openings along the said Limited Access Highways/Facilities. In this connection,
the NCR is instructed to organize its own enforcement and security group for the purpose of
assuring the continued closure of the right-of-way fences and the implementation of the rules and
regulations that may be imposed by the DPWH thru the TRB.

This Order shall take effect immediately.14

The RTC held that Section 4 of RA 2000 expressly authorized the DPWH to design limited
access facilities and to regulate, restrict, or prohibit access as to serve the traffic for which such
facilities are intended. According to the RTC, such authority to regulate, restrict, or prohibit
logically includes the determination of who and what can and cannot be permitted entry or
access into the limited access facilities. Thus, the RTC concluded that AO 1, DO 74, and the
Revised Rules and Regulations on Limited Access Facilities, which ban motorcycles’ entry or
access to the limited access facilities, are not inconsistent with RA 2000.

RA 2000, otherwise known as the Limited Access Highway Act, was approved on 22 June 1957.
Section 4 of RA 2000 provides that "[t]he Department of Public Works and
Communications is authorized to so design any limited access facility and to so regulate,
restrict, or prohibit access as to best serve the traffic for which such facility is intended." The
RTC construed this authorization to regulate, restrict, or prohibit access to limited access
facilities to apply to the Department of Public Works and Highways (DPWH).

The RTC’s ruling is based on a wrong premise. The RTC assumed that the DPWH derived its
authority from its predecessor, the Department of Public Works and Communications, which is
expressly authorized to regulate, restrict, or prohibit access to limited access facilities under
Section 4 of RA 2000. However, such assumption fails to consider the evolution of the
Department of Public Works and Communications.

Under Act No. 2711, otherwise known as the Revised Administrative Code, approved on 10
March 1917, there were only seven executive departments, namely: the Department of the
Interior, the Department of Finance, the Department of Justice, the Department of Agriculture
and Commerce, the Department of Public Works and Communications, the Department of
Public Instruction, and the Department of Labor.15 On 20 June 1964, Republic Act No.
413616 created the Land Transportation Commission under the Department of Public Works and
Communications. Later, the Department of Public Works and Communications was restructured
into the Department of Public Works, Transportation and Communications.

On 16 May 1974, Presidential Decree No. 458 (PD 458) separated the Bureau of Public
Highways from the Department of Public Works, Transportation and Communications and
created it as a department to be known as Department of Public Highways. Under Section 3 of
PD 458, the Department of Public Highways is "responsible for developing and implementing
programs on the construction and maintenance of roads, bridges and airport runways."

With the amendment of the 1973 Philippine Constitution in 1976, resulting in the shift in the
form of government, national agencies were renamed from Departments to Ministries. Thus, the
Department of Public Works, Transportation and Communications became the Ministry of
Public Works, Transportation and Communications.

On 23 July 1979, then President Ferdinand E. Marcos issued Executive Order No. 546 (EO 546),
creating a Ministry of Public Works and a Ministry of Transportation and
Communications.17 Under Section 1 of EO 546, the Ministry of Public Works assumed
the public works functions of the Ministry of Public Works, Transportation and
Communications. The functions of the Ministry of Public Works were the "construction,
maintenance and repair of port works, harbor facilities, lighthouses, navigational aids, shore
protection works, airport buildings and associated facilities, public buildings and school
buildings, monuments and other related structures, as well as undertaking harbor and river
dredging works, reclamation of foreshore and swampland areas, water supply, and flood control
and drainage works."18

On the other hand, the Ministry of Transportation and Communications became the "primary
policy, planning, programming, coordinating, implementing, regulating and administrative entity
of the executive branch of the government in the promotion, development, and regulation of a
dependable and coordinated network of transportation and communication systems."19 The
functions of the Ministry of Transportation and Communications were:

a. Coordinate and supervise all activities of the Ministry relative to transportation and
communications;

b. Formulate and recommend national policies and guidelines for the preparation
and implementation of an integrated and comprehensive transportation and
communications system at the national, regional and local levels;

c. Establish and administer comprehensive and integrated programs for transportation and
communication, and for this purpose, may call on any agency, corporation, or
organization, whether government or private, whose development programs include
transportation and communications as an integral part to participate and assist in the
preparation and implementation of such programs;

d. Regulate, whenever necessary, activities relative to transportation and

communications and prescribe and collect fees in the exercise of such power;

e. Assess, review and provide direction to transportation and communications research

and development programs of the government in coordination with other institutions
concerned; and

f. Perform such other functions as may be necessary to carry into effect the provisions of
this Executive Order.20 (Emphasis supplied)
On 27 July 1981, then President Marcos issued Executive Order No. 710 (EO 710), which
merged the Ministry of Public Works and the Ministry of Public Highways for "greater
simplicity and economy in operations."21 The restructured agency became known as
the Ministry of Public Works and Highways. Under Section 1 of EO 710 the functions of the
Ministry of Public Works and the Ministry of Public Highways22 were transferred to the Ministry
of Public Works and Highways.

Upon the ratification of the 1987 Constitution in February 1987, the former Ministry of Public
Works and Highways became the Department of Public Works and Highways (DPWH) and
the former Ministry of Transportation and Communications became the Department of
Transportation and Communications (DOTC).

DPWH issued DO 74 and DO 215 declaring certain expressways as limited access facilities on 5
April 1993 and 25 June 1998, respectively. Later, the TRB, under the DPWH, issued the Revised
Rules and Regulations on Limited Access Facilities. However, on 23 July 1979, long before
these department orders and regulations were issued, the Ministry of Public Works,
Transportation and Communications was divided into two agencies – the Ministry of Public
Works and the Ministry of Transportation and Communications – by virtue of EO 546. The
question is, which of these two agencies is now authorized to regulate, restrict, or prohibit
access to limited access facilities?23

Under Section 1 of EO 546, the Ministry of Public Works (now DPWH) assumed the public
works functions of the Ministry of Public Works, Transportation and Communications. On
the other hand, among the functions of the Ministry of Transportation and
Communications (now Department of Transportation and Communications [DOTC]) were
to (1) formulate and recommend national policies and guidelines for the preparation and
implementation of an integrated and comprehensive transportation and communications systems
at the national, regional, and local levels; and (2) regulate, whenever necessary, activities relative
to transportation and communications and prescribe and collect fees in the exercise of such
power. Clearly, under EO 546, it is the DOTC, not the DPWH, which has authority to regulate,
restrict, or prohibit access to limited access facilities.

Even under Executive Order No. 125 (EO 125)24 and Executive Order No. 125-A (EO 125-
A),25 which further reorganized the DOTC, the authority to administer and enforce all laws, rules
and regulations relative to transportation is clearly with the DOTC.26

Thus, DO 74 and DO 215 are void because the DPWH has no authority to declare certain
expressways as limited access facilities. Under the law, it is the DOTC which is authorized to
administer and enforce all laws, rules and regulations in the field of transportation and to regulate
related activities.

Since the DPWH has no authority to regulate activities relative to transportation, the
TRB27 cannot derive its power from the DPWH to issue regulations governing limited access
facilities. The DPWH cannot delegate a power or function which it does not possess in the first
place. Since DO 74 and DO 215 are void, it follows that the rules implementing them are
likewise void.

Whether AO 1 and DO 123 are Unconstitutional

DPWH Secretary Simeon A. Datumanong issued DO 123 on 18 July 2001. DO 123 reads in part:

SUBJECT: Revised Rules and Regulations Governing Limited Access Highways

By virtue of the authority granted the Secretary of Public Works and Highways under
Section 3 of R.A. 2000, otherwise known as the Limited Access Highway Act, the following
revised rules and regulations governing limited access highways are hereby promulgated for the
guidance of all concerned:
1. Administrative Order No. 1 dated February 19, 1968, issued by the Secretary of the then
Department of Public Works and Communications, is hereby amended by deleting the word
"motorcycles" mentioned in Section 3(h) thereof. Therefore, motorcycles are hereby allowed to
operate inside the toll roads and limited access highways, subject to the following:

a. Motorcycles shall have an engine displacement of at least 400 cubic centimeters

(cc) provided that:

x x x x28 (Emphasis supplied)

The RTC’s Decision dated 10 March 2003 declared DO 123 unconstitutional on the ground that
it violates the equal protection clause by allowing only motorcycles with at least 400 cubic
centimeters engine displacement to use the toll ways. The RTC reasoned that the creation of a
distinction within the class of motorcycles was not based on real differences.

We need not pass upon the constitutionality of the classification of motorcycles under DO 123.
As previously discussed, the DPWH has no authority to regulate limited access highways since
EO 546 has devolved this function to the DOTC. Thus, DO 123 is void for want of authority of
the DPWH to promulgate it.

On the other hand, the assailed portion of AO 1 states:

Section 3. On limited access highways, it is unlawful for any person or group of persons to:

xxxx

(h) Drive any bicycle, tricycle, pedicab, motorcycle or any vehicle (not motorized);

xxxx

Petitioners assail the DPWH’s failure to provide "scientific" and "objective" data on the danger
of having motorcycles plying our highways. They attack this exercise of police power as baseless
and unwarranted. Petitioners belabor the fact that there are studies that provide proof that
motorcycles are safe modes of transport. They also claim that AO 1 introduces an unreasonable
classification by singling-out motorcycles from other motorized modes of transport. Finally,
petitioners argue that AO 1 violates their right to travel.

Petitioners’ arguments do not convince us.

We emphasize that the Secretary of the Department of Public Works and Communications
issued AO 1 on 19 February 1968.

Section 3 of RA 200029 authorized the issuance of the guidelines. In contrast, DPWH issued DO
74, DO 215 and DO 123 after EO 546 devolved to the DOTC the authority to regulate limited
access highways.

We now discuss the constitutionality of AO 1. Administrative issuances have the force and effect
of law.30 They benefit from the same presumption of validity and constitutionality enjoyed by
statutes.31 These two precepts place a heavy burden upon any party assailing governmental
regulations. The burden of proving unconstitutionality rests on such party.32 The burden becomes
heavier when the police power is at issue.

The use of public highways by motor vehicles is subject to regulation as an exercise of the police
power of the state.33 The police power is far-reaching in scope and is the "most essential,
insistent and illimitable" of all government powers.34 The tendency is to extend rather than to
restrict the use of police power. The sole standard in measuring its exercise is
reasonableness.35 What is "reasonable" is not subject to exact definition or scientific formulation.
No all-embracing test of reasonableness exists,36 for its determination rests upon human
judgment applied to the facts and circumstances of each particular case.37

We find that AO 1 does not impose unreasonable restrictions. It merely outlines several
precautionary measures, to which toll way users must adhere. These rules were designed to
ensure public safety and the uninhibited flow of traffic within limited access facilities. They
cover several subjects, from what lanes should be used by a certain vehicle, to maximum vehicle
height. The prohibition of certain types of vehicles is but one of these. None of these rules
violates reason. The purpose of these rules and the logic behind them are quite evident. A toll
way is not an ordinary road. The special purpose for which a toll way is constructed necessitates
the imposition of guidelines in the manner of its use and operation. Inevitably, such rules will
restrict certain rights. But the mere fact that certain rights are restricted does not invalidate the
rules.

Consider Section 3(g) of AO 1, which prohibits the conduct of rallies inside toll ways.38 The
regulation affects the right to peaceably assemble. The exercise of police power involves
restriction, restriction being implicit in the power itself. Thus, the test of constitutionality of a
police power measure is limited to an inquiry on whether the restriction imposed on
constitutional rights is reasonable, and not whether it imposes a restriction on those rights.

None of the rules outlined in AO 1 strikes us as arbitrary and capricious. The DPWH, through
the Solicitor General, maintains that the toll ways were not designed to accommodate
motorcycles and that their presence in the toll ways will compromise safety and traffic
considerations. The DPWH points out that the same study the petitioners rely on cites that the
inability of other drivers to detect motorcycles is the predominant cause of accidents.39 Arguably,
prohibiting the use of motorcycles in toll ways may not be the "best" measure to ensure the
safety and comfort of those who ply the toll ways.

However, the means by which the government chooses to act is not judged in terms of what is
"best," rather, on simply whether the act is reasonable. The validity of a police power measure
does not depend upon the absolute assurance that the purpose desired can in fact be probably
fully accomplished, or upon the certainty that it will best serve the purpose intended.40 Reason,
not scientific exactitude, is the measure of the validity of the governmental regulation.
Arguments based on what is "best" are arguments reserved for the Legislature’s discussion.
Judicial intervention in such matters will only be warranted if the assailed regulation is patently
whimsical. We do not find the situation in this case to be so.

Neither do we find AO 1 oppressive. Petitioners are not being deprived of their right to use the
limited access facility. They are merely being required, just like the rest of the public, to adhere
to the rules on how to use the facility. AO 1 does not infringe upon petitioners’ right to travel but
merely bars motorcycles, bicycles, tricycles, pedicabs, and any non-

motorized vehicles as the mode of traveling along limited access highways.41 Several cheap,
accessible and practical alternative modes of transport are open to petitioners. There is nothing
oppressive in being required to take a bus or drive a car instead of one’s scooter, bicycle, calesa,
or motorcycle upon using a toll way.

Petitioners’ reliance on the studies they gathered is misplaced. Police power does not rely upon
the existence of definitive studies to support its use. Indeed, no requirement exists that the
exercise of police power must first be conclusively justified by research. The yardstick has
always been simply whether the government’s act is reasonable and not oppressive.42 The use of
"reason" in this sense is simply meant to guard against arbitrary and capricious government
action. Scientific certainty and conclusiveness, though desirable, may not be demanded in every
situation. Otherwise, no government will be able to act in situations demanding the exercise of
its residual powers because it will be tied up conducting studies.
A police power measure may be assailed upon proof that it unduly violates constitutional
limitations like due process and equal protection of the law.43 Petitioners’ attempt to seek redress
from the motorcycle ban under the aegis of equal protection must fail. Petitioners’ contention
that AO 1 unreasonably singles out motorcycles is specious. To begin with, classification by
itself is not prohibited.44

A classification can only be assailed if it is deemed invidious, that is, it is not based on real or
substantial differences. As explained by Chief Justice Fernando in Bautista v. Juinio:45

x x x To assure that the general welfare be promoted, which is the end of law, a regulatory
measure may cut into the rights to liberty and property. Those adversely affected may under such
circumstances invoked the equal protection clause only if they can show that the governmental
act assailed, far from being inspired by the attainment of the common weal was prompted by the
spirit of hostility, or at the very least, discrimination that finds no support in reason. It suffices
then that the laws operate equally and uniformly on all persons under similar circumstances or
that all persons must be treated in the same manner, the conditions not being different, both in
the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be
allowed. For the principle is that equal protection and security shall be given to every person
under circumstances, which if not identical is analogous. If law be looked upon in terms of
burden or charges, those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding the rest.

We find that it is neither warranted nor reasonable for petitioners to say that the only justifiable
classification among modes of transport is the motorized against the non-motorized. Not all
motorized vehicles are created equal. A 16-wheeler truck is substantially different from other
light vehicles. The first may be denied access to some roads where the latter are free to drive.
Old vehicles may be reasonably differentiated from newer models.46 We find that real and
substantial differences exist between a motorcycle and other forms of transport sufficient to
justify its classification among those prohibited from plying the toll ways. Amongst all types of
motorized transport, it is obvious, even to a child, that a motorcycle is quite different from a car,
a bus or a truck. The most obvious and troubling difference would be that a two-wheeled vehicle
is less stable and more easily overturned than a four-wheeled vehicle.

A classification based on practical convenience and common knowledge is not unconstitutional

simply because it may lack purely theoretical or scientific uniformity. Moreover, we take note
that the Philippines is home to a host of unique motorized modes of transport ranging from
modified hand-carts (kuliglig) to bicycle "sidecars" outfitted with a motor. To follow petitioners’
argument to its logical conclusion would open up toll ways to all these contraptions. Both safety
and traffic considerations militate against any ruling that would bring about such a nightmare.

Petitioners complain that the prohibition on the use of motorcycles in toll ways unduly deprive
them of their right to travel.

We are not persuaded.

A toll way is not an ordinary road. As a facility designed to promote the fastest access to certain
destinations, its use, operation, and maintenance require close regulation. Public interest and
safety require the imposition of certain restrictions on toll ways that do not apply to ordinary
roads. As a special kind of road, it is but reasonable that not all forms of transport could use it.

The right to travel does not mean the right to choose any vehicle in traversing a toll way. The
right to travel refers to the right to move from one place to another. Petitioners can traverse the
toll way any time they choose using private or public four-wheeled vehicles. Petitioners are not
denied the right to move from Point A to Point B along the toll way. Petitioners are free to access
the toll way, much as the rest of the public can. The mode by which petitioners wish to travel
pertains to the manner of using the toll way, a subject that can be validly limited by regulation.
Petitioners themselves admit that alternative routes are available to them. Their complaint is that
these routes are not the safest and most convenient. Even if their claim is true, it hardly qualifies
as an undue curtailment of their freedom of movement and travel. The right to travel does not
entitle a person to the best form of transport or to the most convenient route to his destination.
The obstructions found in normal streets, which petitioners complain of (i.e., potholes, manholes,
construction barriers, etc.), are not suffered by them alone.

Finally, petitioners assert that their possession of a driver’s license from the Land Transportation
Office (LTO) and the fact that their vehicles are registered with that office entitle them to use all
kinds of roads in the country. Again, petitioners are mistaken. There exists no absolute right to
drive. On the contrary, this privilege, is heavily regulated. Only a qualified group is allowed to
drive motor vehicles: those who pass the tests administered by the LTO. A driver’s license issued
by the LTO merely allows one to drive a particular mode of transport. It is not a license to drive
or operate any form of transportation on any type of road. Vehicle registration in the LTO on the
other hand merely signifies the roadworthiness of a vehicle. This does not preclude the
government from prescribing which roads are accessible to certain vehicles.

WHEREFORE, we PARTLY GRANT the petition. We MODIFY the Decision dated 10 March
2003 of the Regional Trial Court, Branch 147, Makati City and its Order dated 16 June 2003 in
Civil Case No. 01-034. We declare VOID Department Order Nos. 74, 215, and 123 of the
Department of Public Works and Highways, and the Revised Rules and Regulations on Limited
Access Facilities of the Toll Regulatory Board. We declare VALID Administrative Order No. 1
of the Department of Public Works and Communications.

SO ORDERED.

ANTONIO T. CARPIO
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

Associate Justice Asscociate Justice

ANGELINA SANDOVAL-
CONSUELO YNARES-SANTIAGO
GUTIERREZ
Associate Justice
Asscociate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Asscociate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ADOLFO S. AZCUNA DANTE O. TINGA

Associate Justice Asscociate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

 Associate Justice Asscociate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the
opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Under Rule 45 of the 1997 Rules of Civil Procedure.
2
Revised Rules and Regulations Governing Limited Access Highways, issued on 19
February 1968.
3
Rollo, pp. 330-333.
4
Id. at 68.
5
Id. at 22.
6
Searth Commodities Corp. v. Court of Appeals, G.R. No. 64220, 31 March 1992, 207
SCRA 622.
7
Urbanes, Jr. v. Court of Appeals, G.R. No. 117964, 28 March 2001, 355 SCRA 537.
8
Declaring the North and South Luzon Expressways as Limited Access Facilities. It also
authorized the TRB to issue rules and regulations to be applied to the two highways.
9
Declaring the R-1 Expressway, the C-5 Link Expressway and the R-1 Extension
Expressway as Limited Access Facilities.
10
Rollo, p. 31.
11
Limited Access Highway Act, approved on 22 June 1957.
12
Rollo, pp. 89-90.
13
Id. at 91.
14
Id. at 96.
15
Section 75 of Act No. 2711.
16
Land Transportation and Traffic Code.
17
The purpose for the creation of two separate ministries was explained in the
"WHEREAS" clauses of EO 546:

WHEREAS, the accelerated pace of national development requires the effective,

purposeful and unified implementation of public works projects and the effective
control and supervision of transportation and communications facilities and
services;

WHEREAS, the development, rehabilitation, improvement, construction,

maintenance and repairs of ports, flood control and drainage systems, buildings,
water supply systems; and other public works facilities involve the utilization of
technologies and manpower different from those required for the control and
supervision of transportation and communications facilities and services;

WHEREAS, a rational distribution of the functions of government pertaining to

public works on one hand and control and supervision of facilities and services
related to transportation and communications on the other would enhance the
efficiency of government;

WHEREAS, in keeping with the policy of government to effect continuing

reforms in the organizational structure to enhance efficiency and effectiveness, it
is necessary to entrust in one ministry all functions pertaining to the construction,
repair and maintenance of public works facilities and restructure the organization
for the control and supervision of transportation and communications facilities
and services in the country; and

xxxx
18
Section 3 of EO 546.
19
Section 6 of EO 546.
20
Section 8 of EO 546.
21
See "WHEREAS" clauses of EO 710.
22
Presidential Decree No. 458, creating the Department of Public Highways, provides
under Section 3 the function of the department:

SEC. 3. Relationships between the Department Proper, the Bureaus and the
Regional Offices. – The Department Proper shall have direct line supervision over
the bureaus and regional offices. It shall be responsible for developing and
implementing programs on the construction and maintenance of roads, bridges
and airport runways. The Bureau of Construction and Maintenance shall be
essentially staff in character and as such, shall exercise only functional
supervision over the regional offices, while the Bureau of Equipment shall
provide equipment support to the field offices through its equipment depots and
area shops. x x x
23
This authority was expressly granted to the Department of Public Works and
Communications under Section 4 of RA 2000.
24
Reorganization Act of the Ministry of Transportation and Communications, approved
on 30 January 1987.
25
Amending EO 125, approved on 13 April 1987.
26
Section 5 of EO 125, as amended by EO 125-A, enumerates the powers and functions
of the DOTC:

Sec. 5. Powers and Functions. — To accomplish its mandate, the Department

[DOTC] shall have the following powers and functions:

(a) Formulate and recommend national policies and guidelines for the
preparation and implementation of integrated and comprehensive
transportation and communications systems at the national, regional and
local levels;

(b) Establish and administer comprehensive and integrated programs for

transportation and communications, and for this purpose, may call on any
agency, corporation, or organization, whether public or private, whose
development programs include transportation and communications as an
integral part thereof, to participate and assist in the preparation and
implementation of such program;

(c) Assess, review and provide direction to transportation and communication

research and development programs of the government in coordination with other
institutions concerned;

(d) Administer and enforce all laws, rules and regulations in the field of
transportation and communications;

(e) Coordinate with the Department of Public Works and Highways in the design,
location, development, rehabilitation, improvement, construction, maintenance
and repair of all infrastructure projects and facilities of the Department. However,
government corporate entities attached to the Department shall be authorized to
undertake specialized telecommunications, ports, airports and railways projects
and facilities as directed by the President of the Philippines or as provided by law;

(f) Establish, operate and maintain a nationwide postal system that shall include
mail processing, delivery services, and money order services and promote the art
of philately;

(g) Issue certificates of public convenience for the operation of public land and
rail transportation utilities and services;

(h) Accredit foreign aircraft manufacturers and/or international organizations for

aircraft certification in accordance with established procedures and standards;

(i) Establish and prescribe rules and regulations for identification of routes, zones
and/or areas of operation of particular operators of public land services;

(j) Establish and prescribe rules and regulations for the establishment, operation
and maintenance of such telecommunications facilities in areas not adequately
served by the private sector in order to render such domestic and overseas
services that are necessary with due consideration for advances in technology;

(k) Establish and prescribe rules and regulations for the operation and
maintenance of a nationwide postal system that shall include mail processing,
delivery services, money order services and promotion of philately;

(l) Establish and prescribe rules and regulations for the issuance of certificates of
public convenience for public land transportation utilities, such as motor vehicles,
trimobiles and railways;
 (m) Establish and prescribe rules and regulations for the inspection and
registration of air and land transportation facilities, such as motor vehicles,
trimobiles, railways and aircrafts;

(n) Establish and prescribe rules and regulations for the issuance of licenses to
qualified motor vehicle drivers, conductors, and airmen;

(o) Establish and prescribe the corresponding rules and regulations for the
enforcement of laws governing land transportation, air transportation and
postal services, including the penalties for violations thereof, and for the
deputation of appropriate law enforcement agencies in pursuance thereof;

(p) Determine, fix and/or prescribe charges and/or rates pertinent to the operation
of public air and land transportation utility facilities and services, except such
rates and/or charges as may prescribed by the Civil Aeronautics Board under its
charter, and, in cases where charges or rates are established by international
bodies or associations of which the Philippines is a participating member or by
bodies or associations recognized by the Philippine government as the proper
arbiter of such charges or rates;

(q) Establish and prescribe the rules, regulations, procedures and standards for the
accreditation of driving schools;

(r) Administer and operate the Civil Aviation Training Center (CATC) and the
National Telecommunications Training Institute (NTTI); and

(s) Perform such other powers and functions as may be prescribed by law, or as
may be necessary, incidental, or proper to its mandate or as may be assigned from
time to time by the President of the Republic of the Philippines. (Emphasis
supplied). See also Section 3, Chapter 1, Title XV, Book IV of the Administrative
Code of 1987.
27
The TRB, which was created under Presidential Decree No. 1112, was attached to the
DPWH on 9 July 1990 by virtue of Republic Act No. 6957. Executive Order No. 67,
dated 26 January 1999, transferred the TRB to the Office of the President. On 10 October
2002, the TRB was transferred to the DOTC by virtue of Executive Order No. 133.
28
Rollo, p. 242.
29
Section 3 of RA 2000 reads:

SEC. 3. Authority to establish limited access facilities. — The Department of

Public Works and Communications is hereby authorized to plan, designate,
establish, regulate, vacate, alter, improve, maintain, and provide limited access
facilities for public use wherever it is of the opinion that traffic conditions, present
or future, will justify such special facilities: Provided, That within provinces,
cities and towns, the establishment of such limited access facilities insofar as they
affect provincial, city and municipal streets and plazas shall have the consent of
provincial board, city or municipal council as the case may be.
30
Eslao v. Commission on Audit, G.R. No. 108310, 1 September 1994, 236 SCRA 161.
31
Id.
32
JMM Promotion and Management, Inc. v. Court of Appeals, G.R. No. 120095, 5
August 1996, 260 SCRA 319.
 33
Wall v. King, 109 F. Supp. 198 (1952); Munz v. Harnett, 6 F. Supp. 158
(1933); Schwartzman Service v. Stahl, 60 F.2d 1034 (1932).
34
Ichong v. Hernandez, 101 Phil. 1155, 1163 (1957).
35
Department of Education, Culture and Sports v. San Diego, G.R. No. 89572, 21
December 1989, 180 SCRA 533.
36
City of Raleigh v. Norfolk Southern Railway Co., 165 S.E.2d 745 (1969).
37
Board of Zoning Appeals of Decatur v. Decatur, Ind. Co. of Jehovah’s Witnesses, 117
N.E.2d 115 (1954).
38
Section 3 – On limited access highways, it is unlawful for any person or group of
persons to:

xxxx

(g) Jaywalk, loiter, litter, or travel by foot, drive or herd animals, conduct or hold
rallies, parades, funeral processions and the like;

xxxx
39
Rollo, p. 395.
40
Hunter v. Owens, 80 Fla. 812, 86 So. 839 (1920).
41
See American Motorcyclist Ass’n. v. Park Comm’n. of City of Brockton, 575 N.E.2d
754 (1991). In this case, the plaintiffs sought declaratory and injunctive relief from a park
commission regulation which prohibited motorcycles and mopeds in the city park. The
court held that the regulation did not infringe upon plaintiffs’ right to travel. The court
held that the right to travel does not require the state to avoid any regulation of methods
of transportation. According to the court, the regulation does not prevent any person from
traveling once inside the park but merely bars motorcycles as the mode of transportation.
42
United States v. Toribio, 15 Phil. 85 (1910).
43
Ichong v. Hernandez, 101 Phil. 1155 (1957).
44
Dumlao v. COMELEC, No. L-52245, 22 January 1980, 95 SCRA 392.
45
212 Phil. 307, 317-318 (1984).
46
Taxicab Operators of Metro Manila, Inc. v. Board of Transportation, 202 Phil. 925
(1982).

The Lawphil Project - Arellano Law Foundation

DISSENTING OPINION

TINGA, J.:
I dissent from the opinion which has found favor with the majority holding that Department of
Public Works and Highways (DPWH) Department Orders Nos. 74, 215 and 123 are void for
want of authority on the part of the DPWH to promulgate them.

The fundamental question which seeks an answer from this Court is which between the DPWH
and the Department of Transportation and Communications (DOTC) has the charge of
implementing Republic Act No. 2000, otherwise known as the Limited Access Highway Act.
These two departments have mutually exclusive functions in the general scheme of government.
The DPWH oversees the construction, maintenance and operation of public works and
infrastructure facilities, and administers the highway system. The DOTC, on the other hand,
directs the nation’s transportation and communication network systems. To resolve this case, it is
crucial for us to determine within which sphere of functions the powers granted under the
Limited Access Highway Act fall, i.e., whether the Limited Access Highway Act involves the
administration of the highway system or the management of the transportation network.

After tracing the evolution of the Department of Public Works and Communications (DPWC)
which was originally given the authority under the Limited Access Highway Act to regulate,
restrict or prohibit access to limited access facilities, the ponencia concludes that this authority
was eventually bestowed upon the DOTC.

With due respect, I cannot share this conclusion. I shall explain.

The Limited Access Highway Act authorized the DPWC "to plan, designate, establish, regulate,
vacate, alter, improve, maintain, and provide limited access facilities for public use wherever it is
of the opinion that traffic conditions present or future, will justify such special facilities…"1 At
the time of the enactment of the Limited Access Highway Act in 1957, the Bureau of Public
Highways (BPH) had already been created as an office under the DPWC by RA 1192 in 1954.2

Under RA 1192, the Commissioner of Public Highways was directly responsible

for administering the Philippine Highway Act of 1953;3 preparing long-range programs of
highway development, improvement and construction; formulating uniform practices for the
physical design of highway facilities; directing research in matters of highway planning,
location, design, construction and maintenance, including the testing of materials and the proper
and efficient use of highway equipment; promoting sane economy in the expenditure of highway
funds, utilization of supplies and materials, preservation of property and equipment, and
management operations; preparing annual budgets of proposed expenditures for construction,
reconstruction, and improvement work; and supervising the signing of vouchers, orders for
supplies, materials, and any other expenditures.

The task of administering the nation’s highways squarely fell on the shoulders of the
Commissioner of Public Highways as specified in RA 1192. Upon the enactment of the Limited
Access Highway Act in 1957, it was also the BPH, headed by the Commissioner of Public
Highways, which carried out the functions of establishing and regulating the highways and
streets to be used as limited access facilities.

It is significant to note that the establishment of limited access facilities requires engineering
expertise, for which reason the Limited Access Highway Act specifically authorized the DPWC
"to divide and separate any limited access facility into separate roadways by the construction of
raised curbings, central dividing sections, or other physical separations, or by designating such
separate roadways by signs, markers, stripes, and the proper land for such traffic by appropriate
signs, markers, stripes, and other devices." The BPH, with its mandate to plan and administer the
national highway program and the Chief Highway Engineer4 at its disposal, was in the best
position to establish and regulate limited access facilities.

It is worth mentioning that even under the Revised Philippine Highway Act5 passed in 1972, the
BPH was designated as the agency of the DPWC "that has the charge of the administration of
highways." The Revised Philippine Highway Act primarily controls the disposition of the
Highway Special Fund; the manner of its apportionment and release; the selection and
designation of highways or highway projects to receive national aid; the expenditures for the
administration, maintenance, improvement, betterment and rehabilitation of highway projects;
and the classification of highways, widths, acquisition and use of rights of way. However, it also
provides for the establishment of an integrated system of highways, and vests in the
Secretary of the DPWC the power to make rules and regulations and make such
recommendations as he may deem necessary to preserve and protect the highways and
insure traffic safety.6 I submit that the duty of highway administration and management vested
upon the BPH and succeeded to by the DPWH includes the duty to regulate the use and
enjoyment thereof.

In 1974, the BPH was separated from the Department of Public Works, Transportation and
Communications (DPWTC). It was expanded and restructured into the Department of Public
Highways (DPH) by virtue of Presidential Decree No. 458 (PD 458).7

With the shift in the form of government resulting from the amendment of the 1973 Constitution,
national agencies were renamed from departments to ministries. Thus, the DPWTC became the
Ministry of Public Works, Transportation and Communications (MPWTC) and the DPH became
the Ministry of Public Highways (MPH).

In 1979, President Marcos issued Executive Order No. 546 (EO 546)8 creating a Ministry of
Public Works (MPW) which assumed the public works functions of the MPWTC and was
charged with the "construction, maintenance and repair of port-works, harbor facilities,
lighthouses, navigational aids, shore protection works, airport buildings and associated facilities,
public buildings and school buildings, monuments and other related structures, as well as
undertaking harbor and river dredging works, reclamation of foreshore and swampland areas,
water supply, and flood control and drainage works."9

EO 546 also created a Ministry of Transportation and Communications (MOTC) declared as the
"primary policy, planning, programming, coordinating, implementing, regulating and
administrative entity of the executive branch of the government in the promotion, development,
and regulation of a dependable and coordinated network of transportation and communication
systems…"10

The ponencia correctly noted that the MPW took over the public works functions of the
MPWTC. However, it omitted mention of the fact that even as these new ministries were created,
the MPH continued to exist and exercise the powers vested in it by RA 1192, including those
under the Limited Access Highway Act. Because of the MPH’s continued existence, at no time
were these functions ever transferred to or exercised by the MPW or even the MOTC. I
vigorously reiterate that the creation of these two ministries did not affect the existence of the
MPH or result in the transfer of the functions of the MPH to the MPW and the MOTC. The MPH
continued to exist as a distinct entity with clearly-delineated functions, including the duty of
highway administration.

The MPW and the MPH were later abolished by EO 71011 which, instead, created a Ministry of
Public Works and Highways (MPWH) and transferred to the latter the functions of the abolished
ministries. The MPWH is now known as the DPWH, the government’s primary engineering and
construction arm, responsible for the planning, design, construction and maintenance of
infrastructures such as roads, bridges, flood control systems, water resource development
projects and other public works.

The foregoing history of the DPWH, which has evolved from its predecessors, the BPH, DPH,
MPH and MPWH, I submit, supports my view that it is the DPWH, and not the DOTC, which
has inherited the functions previously exercised by the BPH, including those granted by the
Limited Access Highway Act.
The Limited Access Highway Act confers the authority to plan, designate, establish,
regulate, vacate, alter, improve, maintain, and provide limited access facilities for public
use under Sec. 3 thereof, and the powers to design, regulate, restrict, or prohibit access to
these limited access facilities under Sec. 4. Although they appear in different sections of the
law, the clear and unmistakable intent was for all of these powers to be integrated in and
exercised by just one entity, the DPWC.

Instead of continuing with the integration of the mandate under the Limited Highway Act,
the ponencia essentially dichotomizes these functions covered by the mandate. While it appears
to concede that the functions of the DPWH includes the planning, design, construction,
maintenance and operation of infrastructure facilities, which should also include limited access
facilities, in the same breath it posits that the powers to regulate, restrict or prohibit access
thereto have been devolved to the DOTC. This is obvious from the way the ponencia focuses on
the regulatory power of the DOTC under the Administrative Code in furtherance of the view that
the DPWH does not have the authority to regulate, restrict or prohibit access to limited access
facilities, and sidesteps a discussion on the powers conferred under Section 3 of the Limited
Access Highway Act which, by their very nature, can only be exercised by the DPWH. I submit
that this approach is inconsistent with the intent of the law for the powers conferred therein to be
exercised by only one entity.

Justice Carpio asserts that as the DOTC is empowered to administer and enforce all laws, rules
and regulations in the field of transportation and communications, so is it granted authority over
limited access facilities. I beg to differ.

The authority of the DOTC over land transportation is exercised by the Land Transportation
Office (LTO) and covers the inspection and registration of motor vehicles, issuance of licenses
and permits, enforcement of land transportation rules and regulations, and adjudication of traffic
cases. These functions have remained the same despite the changes in the names of the LTO and
the reorganizations it underwent.

The predecessor of the LTO is the Land Transportation Commission (LTC) created in 1964 by
RA 4136.12 RA 4136 was amended by RA Nos. 5715 and 6374, PD Nos. 382, 843, 896, 1057,
1934, 1950 and 1958, and BP Blg. 43, 74 and 398, and is now known as the Land Transportation
and Traffic Code. Its provisions control the registration and operation of motor vehicles and the
licensing of owners, dealers, conductors, drivers, and similar matters.

The powers and duties of the former LTC Commissioner, now exercised by the LTO, are as
follows:

(1) With the approval of the Secretary of Public Works and Communications, to issue
rules and regulations not in conflict with the provisions of this Act, prescribing the
procedure for the examination, licensing and bonding of drivers; the registration and re-
registration of motor vehicles, transfer of ownership, change of status; the replacement of
lost certificates, licenses, badges, permits or number plates; and to prescribe the
minimum standards and specifications including allowable gross weight, allowable
length, width and height of motor vehicles, distribution of loads, allowable loads on tires,
change of tire sizes, body design or carrying capacity subsequent to registration and all
other special cases which may arise for which no specific provision is otherwise made in
this Act.

(2) To compile and arrange all applications, certificates, permits, licenses, and to enter,
note and record thereon transfers, notifications, suspensions, revocations, or judgments of
conviction rendered by competent courts concerning violations of this Act, with the end
in view of preserving and making easily available such documents and records to public
officers and private persons properly and legitimately interested therein.
 (3) To give public notice of the certificates, permits, licenses and badges issued,
suspended or revoked and/or motor vehicles transferred and/or drivers bonded under the
provisions of this Act.

(4) The Commissioner of Land Transportation, with the approval of the Secretary of
Public Works and Communications, may designate as his deputy and agent any employee
of the Land Transportation Commission, or such other government employees as he may
deem expedient to assist in the carrying out the provisions of this Act.

(5) The Commissioner of Land Transportation and his deputies are hereby authorized to
make arrests for violations of the provisions of this Act in so far as motor vehicles are
concerned; to issue subpoena and subpoena duces tecum to compel the appearance of
motor vehicle operators and drivers and/or other persons or conductors; and to use all
reasonable means within their powers to secure enforcement of the provisions of this Act.

(6) The Commissioner of Land Transportation or his deputies may at any time examine
and inspect any motor vehicle to determine whether such motor vehicle is registered, or is
unsightly, unsafe, overloaded, improperly marked or equipped, or otherwise unfit to be
operated because of possible excessive damage to highways, bridges and/or culverts;

(7) The Philippine Constabulary and the city and municipal police forces are hereby
given the authority and the primary responsibility and duty to prevent violations of this
Act, and to carry out the police provisions hereof within their respective
jurisdictions: Provided, That all apprehensions made shall be submitted for final
disposition to the Commissioner and his deputies within twenty-four hours from the date
of apprehension.

(8) All cases involving violations of this Act shall be endorsed immediately by the
apprehending officer to the Land Transportation Commission. Where such violations
necessitate immediate action, the same shall be endorsed in the traffic court, city or
municipal court for summary investigation, hearing and disposition, but in all such cases,
appropriate notices of the apprehensions and dispositions thereof shall be given to the
Commissioner of Land Transportation by the law-enforcement agency and the court
concerned.

Notation of such dispositions shall be entered in the records, and a copy shall be mailed to the
owner and to the driver concerned.

Nowhere in this list of functions is there any indication that the LTO has the authority to
establish and regulate limited access facilities. The traffic rules and regulations which the LTO is
tasked to enforce pertains to traffic rules enumerated in the Land Transportation and Traffic
Code, including speed limit and keeping to the right, overtaking and passing a vehicle and
turning at intersections, right of way and signals, turning and parking, reckless driving, right of
way for police and other emergency vehicles, tampering with vehicles, hitching to a vehicle,
driving or parking on sidewalk, driving while under the influence of liquor or narcotic drug,
obstruction of traffic and duty of driver in case of accident.13

Significantly, even as it codified all laws relative to land transportation and traffic, the Land
Transportation and Traffic Code, as amended, makes no mention of or reference to the
establishment and regulation of limited access facilities, a tacit recognition of the DOTC’s lack
of authority on the matter.

Justice Carpio’s pronouncement that the Administrative Code of 1987 (Administrative Code)
confers upon the DOTC the authority to establish and regulate limited access facilities is an
inference based on an erroneous reading of the law. The Administrative Code does provide,
among others, that the DOTC shall administer and enforce all laws, rules and regulations in the
field of transportation and communications, and establish and prescribe the corresponding rules
and regulations for enforcement of laws governing land transportation. I submit, however, that if
we were to interpret these provisions correctly and apply them to the instant case, it is imperative
that a distinction be drawn between the power to regulate transportation and the power to
regulate highways, the former being a DOTC prerogative, and the latter an authority
unquestionably belonging to the DPWH.

Transportation is defined as the movement of goods or persons from one place to another by a
carrier.14 And so it is that the powers vested in the DOTC refer to its authority
over transportation carriers and utilities and makes no mention at all of highways as clearly
demonstrated by the Reply’s enumeration of the DOTC’s powers under the Administrative Code.

In contrast, the Administrative Code makes several references to the DPWH’s authority over
highways, defined as roadways laid out or constructed to accommodate modes of travel and
other related purposes.15 It provides:

Sec. 3. Powers and Functions.—The Department, in order to carry out its mandate, shall:

(1) Provide technical services for the planning, design, construction, maintenance, or
operation of infrastructure facilities;

(2) Develop and implement effective codes, standards, and reasonable guidelines to
ensure the safety of all public and private structures in the country and assure efficiency
and proper quality in the construction of public works;

(3) Ascertain that all public works plans and project implementation designs are
consistent with current standards and guidelines;

(4) Identify, plan, secure funding for, program, design, construct or undertake
prequalification, bedding, and award of contracts of public works projects with the
exception only of specialized projects undertaken by Government corporate entities with
established technical capability and as directed by the President of the Philippines or as
provided by law;

(5) Provide the works supervision function for all public works construction and ensure
that actual construction is done in accordance with approved government plans and
specifications;

(6) Assist other agencies, including the local governments, in determining the most
suitable entity to undertake the actual construction of public works projects;

(7) Maintain or cause to be maintained all highways, flood control, and other public
works throughout the country except those that are the responsibility of other agencies as
directed by the President of the Philippines or as provided by law;

(8) Provide an integrated planning for highways, flood control and water resources
development systems, and other public works;

(9) Classify roads and highways into national, regional, provincial, city, municipal, and
barangay roads and highways, based on objective criteria it shall adopt; provide or
authorize the conversion of roads and highways from one category to another;

(10) Delegate, to any agency it determines to have adequate technical capability, any of
the foregoing powers and functions; and

(11) Perform such other functions as may be provided by law.

The foregoing references to the DPWH’s power over highways, and the concurrent absence
of any such reference in the DOTC, to my mind, are unmistakable indications of the
Administrative Code’s intention to recognize and acknowledge the DPWH’s exclusive
competence and jurisdiction in matters of highway administration and management.

Parenthetically, I should like to point out that the ponencia leaned heavily on the premise that
EO 546 devolved the authority to regulate limited access highways to the DOTC. Justice Carpio
merely took off from my reference to the Administrative Code to support his view that the
DPWH does not have the power to regulate access to limited access facilities since this is not a
function specified by the Administrative Code.

Apart from emphasizing yet again that the creation by EO 546 of the MPW and MOTC did not
affect the existence of and functions exercised by the MPH, I also accentuate the fact that the
Administrative Code did not repeal the Philippine Highway Act of 1953, as amended. Even as
the Administrative Code codified the powers and functions of the departments of the executive
branch including the DPWH and the DOTC, the authority to administer the nation’s highway
system, which, I submit, includes the power to establish and regulate limited access facilities,
remained to be a function of the DPWH. To reiterate, there is nothing in the Administrative
Code which vests in the DOTC the administration of the Limited Access Highway Act or
the regulation of the use of highways.

Finally, since the DPWH has traditionally exercised the power and authority to establish
and regulate limited access facilities to the exclusion of and without objection from other
government agencies including the DOTC, I submit that we grant judicial imprimatur to
its jurisdiction absent any unequivocal conferment of authority on the DOTC.

A parallelism can be drawn between this case and another in which an administrative agency has
maintained its own interpretation of a particular statute. In Saxbe v. Bustos,16 for example, an
administrative construction of the Immigration and Naturalization Act classified a worker who
lives in Canada or Mexico and commutes to work in the United States either daily or seasonally
as a variety of "special immigrant" or an immigrant lawfully admitted for permanent residence
who is returning from a visit abroad. The United Farm Workers objected to the benefits given to
alien workers of this classification, such as those that allow them to leave the country
temporarily, re-enter without regard to quotas, and dispense with visas or other formal
documentation. The Court upheld the agency interpretation saying that the Court’s conclusion
reflects the administrative practice, dating back at least to 1927 when the Bureau of Immigration
was part of the Department of Labor, which is entitled to great weight.

Similarly, in this case, the questioned department orders were issued between 1993-2001.
Through all these years, and even earlier in the case of Administrative Order No. 1 issued in
1968, the DPWH has been exercising the functions under the Limited Access Highway Act.
Judicial deference should be accorded this long-standing practice consistently acquiesced to and
recognized by the other executive departments, including the DOTC.

FOR THE FOREGOING REASONS, I cannot concur with my colleagues in their judgment. I
vote for the dismissal of the petitions.

DANTE O. TINGA
Associate Justice

Footnotes
1
Incidentally, in 1951, the DPWC was already reconstituted as the Department of Public
Works, Transportation and Communication (DPWTC).
 2
An Act to Create the Bureau of Public Highways, Abolishing the Division of Highways
of the Bureau of Public Works approved on August 25, 1954.
3
RA 917.
4
Under Sec. 4 of RA 1192, the Chief Highway Engineer was directly responsible for: (1)
coordinating the various phases of planning, location, design, construction and
maintenance of public highways; (2) coordinating matters of line and grade with the
services on design of bridges and railroad crossings; (3) coordinating matters of research
and specifications with other highway services; (4) checking and passing on final awards
of contracts; and (5) reviewing and passing on highway budgets prepared by the
corresponding division or service.
5
See PD 17, October 5, 1972, with the attached Revised Philippine Highway Act.
6
Sec. 19, Art. VIII and Sec. 20, Art. IX.
7
Amending Presidential Decree no. 1 Dated September 24, 1972 Relative to Part X of
the Integrated Reorganization Plan promulgated on May 16, 1974.
8
Creating a Ministry of Public Works and a Ministry of Transportation and
Communications dated July 23, 1979.
9
Sec. 3.
10
Sec. 6.
11
Creating a Ministry of Public Works and Highways dated July 27, 1981.
12
An Act To Compile The Laws Relative To Land Transportation And Traffic Rules, To
Create A Land Transportation Commission And For Other Purposes.
13
Articles I-V, RA 4136.
14
Black’s Law Dictionary, 6th Ed.
15
Id.
16
419 U.S. 65, 95 S.Ct. 272, 42 L.Ed. 231 (1974) cited by Alfred C. Aman, Jr. and
William T. Mayton in Administrative Law, 2nd Ed, 2001, p. 499.

MIRASOL VS. DPWH, digested

Posted by Pius Morados on November 8, 2011
GR # 158793, June 8, 2006 (Constitutional Law – Police Power)
FACTS: Petitioner assailed the constitutionality of an administrative regulation banning the use
of motorcycles at the toll way on the ground that it is baseless and unwarranted for failure to
provide scientific and objective data on the dangers of motorcycles plying the highways.
Respondent avers that the toll ways were not designed to accommodate motorcycles and that
their presence in the toll ways will compromise safety and traffic considerations.
ISSUE: Whether or not administrative regulation banning the use of motorcycles is
unconstitutional.
HELD: No, the use of public highways by motor vehicles is subject to regulation as an exercise
of the police power of the state. The sole standard in measuring its exercise is reasonableness,
not exact definition and scientific formulation. It is evident that assailed regulation does not
impose unreasonable restrictions, but outlines precautionary measures designed to ensure public
safety.

5. Espinocilla v. Bagong Tanyag Homeowners’ Assn., Inc. (529 SCRA 654)

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 175155 October 22, 2012

JOHN C. ARROYO, JASMIN ALIPATO, PRIMITIVO BELANDRES, NESTOR

LEDUNA, PATRICK SEMENA, ANITA DE LOS REYES, MERCY SILVESTRE,
RODOLFO CABALLERO, GINA CABALLERO, LETECIA HUEBOS, TARCILA
PINILI, RODELIA UY, CRIS PARAS, FLOR MORENO, AND JOSE
PEROTE, Petitioners,
vs.
ROSAL HOMEOWNERS ASSOCIATION, INC., Respondent.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure
assailing the November 23, 2005 Decision1 and the October 4, 2006 Resolution2 of the Court of
Appeals (CA) in CA-G.R. CV No. 70994 entitled "Rosal Homeowners Association, Inc. v. John
C. Arroyo, et al."

The Facts

Respondent Rosal Homeowners Association, Incorporated (RHAI) is a non-stock, non-profit

organization duly organized and existing under the laws of the Philippines. Its membership is
composed mainly of occupants of a parcel of land with an area of 19,897 square meters, situated
in Brgy. Rosal, Taculing, Bacolod City, and formerly owned by Philippine Commercial
International Bank (PCIB).

Petitioners Jasmin Alipato, Primitivo Belandres, Nestor Leduna, Anita de los Reyes, and Gina
Caballero (petitioners)3 were among the actual occupants of the subject land. They occupied the
land by mere tolerance long before the said land was acquired by PCIB in 1989. To evade
eviction from PCIB and in order to avail of the benefits of acquiring land under the Community
Mortgage Program (CMP) of the National Home Mortgage Finance Corporation (NHMFC), the
said occupants formally organized themselves into an association, the RHAI. With the aid and
representation of the Bacolod Housing Authority (BHA), RHAI was able to obtain a loan from
the NHMFC and acquired the subject land from PCIB. As a consequence, the Registry of Deeds
of Bacolod City issued a Transfer Certificate of Title (TCT) No. T- 202933,4 covering the 19,897
square-meter land, in the name of RHAI. By virtue of the land acquisition by RHAI, all the
occupants of the land became automatic members of RHAI. To fully avail of the benefits of the
CMP, the NHMFC required the RHAI members to sign the Lease Purchase Agreement (LPA)
and to maintain their membership in good standing in accordance with the provisions of the By-
Laws5 of RHAI. Petitioners, however, refused to sign the LPA as a precondition under the CMP.
They likewise failed to attend the regular meetings and pay their membership dues as required by
the RHAI By-Laws. As a result, RHAI through its Board of Directors, approved a resolution6 to
enforce the eviction of petitioners and recover possession of the portions of land which they were
occupying. Pursuant to the said resolution, RHAI, through written letters of demand,7 called for
petitioners to vacate the premises and deliver possession thereof to RHAI. Petitioners, however,
ignored the demand. This prompted RHAI to file an action for recovery of possession of the
subject property before the Regional Trial Court, Branch 49, Bacolod City (RTC), which was
docketed as Civil Case No. 98-10388.8

In their Answer, petitioners denied RHAI’s claim that they were illegal occupants of the subject
land. They argued that they could not be ejected from the said property because they were
entitled to own the land that they had occupied for several years prior to RHAI’s acquisition of
title therein. They also claimed that RHAI sought their ejectment to accommodate other persons
who were not qualified beneficiaries of the CMP.9

After trial on the merits, the RTC ruled in favor of RHAI. The RTC found petitioners as already
non-members, having been expelled from the RHAI. Petitioners did not qualify as loan
beneficiaries for their refusal to sign the LPA as required by the NHMFC. As such, they had no
more right to remain in the land they are occupying. The dispositive portion of the RTC decision
reads:

FOR ALL THE FOREGOING, judgment is hereby rendered as follows:

1. Defendants are ordered to vacate the premises of the lot covered by TCT No. T-
202933 situated at Taculing, Bacolod City and to remove their structures constructed
thereon.

2. Defendants are ordered to pay the amount of P500.00 monthly for the use of the lot
occupied by their respective houses starting from date of this decision until they actually
leave the premises.10

Aggrieved, petitioners appealed to the CA, claiming that they were denied due process by the
RTC when it rendered judgment in favor of RHAI. They added that the RTC erred in finding that
they refused to join the association or were expelled therefrom for failure to comply with their
obligations, specifically the payment of membership dues and attendance in meetings.

On November 23, 2005, the CA rendered its decision affirming the RTC decision. It ruled that
petitioners were not denied of their right to procedural due process as they were given
opportunity to present evidence, but failed to do so. According to the CA, "where opportunity to
be heard either through oral argument or pleadings is accorded, there can be no denial of
procedural due process."11

Further, the CA sustained the RTC’s finding that petitioners refused to become members of
RHAI or were considered expelled from the same because of their failure to comply with their
duties and responsibilities. The decretal portion of the CA Decision states:

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us

DENYING the appeal filed in this case and AFFIRMING the assailed decision of the Regional
Trial Court, Branch 49, in Bacolod City in Civil Case No. 98-10388.

SO ORDERED.12

Petitioners filed a motion for reconsideration13 of the said decision on the ground that their
expulsion from RHAI was illegal for want of due process. The motion, however, was denied by
the CA in its Resolution, dated October 4, 2006.
Hence, petitioners interpose the present petition before this Court anchored on the following
GROUNDS

That the Honorable Court of Appeals committed errors when it overlooked the following
formulations:

1. The petitioners were denied of their right to due process when they were expelled as
members of respondent.

2. The petitioners were denied of their right to own a piece of land for their homes under
the socialized housing program of the government.14

The issues to be resolved are: 1) whether due process was observed in this case; and 2) whether
petitioners were denied of their right to own a piece of land for their homes under the socialized
housing program of the government.

Petitioners contend that the CA committed a serious error in upholding the ruling of the RTC that
they were expelled as members of RHAI because the records are bereft of any evidence
indicating the initiation of expulsion proceedings against them. In addition, they claim that they
were not informed by RHAI that they had been expelled as members of the association. Invoking
the case of Ynot v. Intermediate Court of Appeals,15 petitioners insist that, consistent with the
requirements of due process, they should have been given the opportunity to be heard.

Petitioners insist that they cannot be ejected by RHAI being the actual occupants of the portions
of the subject land long before the same was acquired by the latter. They opine that RHAI, in
filing the ejectment case against them, violated the very purpose for the creation and existence of
the socialized housing program, that is, to allow actual beneficiaries, like them, to own the
portions of the land they were actually occupying.

On the other hand, RHAI, in its Memorandum,16 points out that the issues being raised involve
questions of fact which were properly disposed of both by the RTC and the CA when they found
that petitioners were deemed expelled from their membership of RHAI for non-compliance with
its rules and regulations specifically their refusal to pay membership dues and reasonable fees.
The evidence on record conclusively shows that petitioners were validly expelled from the
association in accordance with its By-Laws and in compliance with the demands of due process.
Their refusal to comply with the requirements of the CMP disqualified them from being
member-beneficiaries of RHAI. Hence, they were not denied of their right to own the portions of
land they occupy for their homes.

The petition must fail.

On the first issue raised by petitioners, the Court finds no merit in their repeated claim of denial
of due process.

The record shows that petitioners were accorded a fair trial in the RTC. In fact, they were
properly represented by a counsel who was able to confront and cross-examine the witnesses
presented by RHAI. They had ample opportunity to substantiate their claim that they were not
expelled as members and to present witnesses. Unfortunately, petitioners did not present their
own evidence to bolster their defense. Thus, they cannot feign denial of due process where they
had been afforded the opportunity to present their side.17 Petitioners, having chosen not to avail
of the opportunity to present evidence to rebut the charges against them, cannot complain of
denial of due process. As long as the parties are given the opportunity to be heard before
judgment is rendered, the demands of due process are sufficiently met. What is offensive to due
process is the denial of this opportunity to be heard.18

Relevant in this regard is the findings of the CA, as follows:

It is basic that, as long as a party is given the opportunity to defend his interest in due course, he
would have no reason to complain, for it is this opportunity to be heard that makes upon the
essence of due process. Where opportunity to be heard, either through oral argument or pleadings
is accorded, there can be no denial of procedural due process. In the case at bench, the record
reveals that, during the trial on the merits of Civil Case No. 98-10388, the defendants-appellants
were accordingly represented by their counsel on record, Atty. Allan Zamora. The said counsel
was able to cross-examine the witnesses for the plaintiff-appellee association. Although it
appears that, on the May 23, 2000 hearing of Civil Case No. 98-10388, said counsel raised to the
court a quo the issue of a possible conflict of interest on his part, considering that he was then the
City Legal Officer of Bacolod, the fact remains that the court a quo, in its order dated March 31,
2002, gave said counsel an opportunity to file a manifestation within 10 days as to whether or not
he would still continue to act as counsel for the defendants-appellants. Unfortunately, the 10-day
period stated in the order lapsed with the failure of Atty. Zamora to file his manifestation to
withdraw as counsel for the defendants-appellants. When the court a quo heard again Civil Case
No. 98-10388, the defendants-appellants’ counsel still did not appear. When the court a quo
rendered its assailed decision on March 21, 2001, defendants-appellants did not even bother to
seek for reconsideration thereof. It is rather unfortunate that defendants-appellants’ counsel
neglected his duties to the latter. Be that as it may, the negligence of counsel binds the client.19

At any rate, when the RTC rendered its decision adverse to petitioners, the latter were able to
seek reconsideration and avail of their right to appeal to the CA. The CA then required the
parties to file their respective pleadings before it rendered a decision denying petitioners’ appeal.
They even moved for the reconsideration of the denial of their appeal. Having been able to
appeal and move for a reconsideration of the assailed rulings, petitioners cannot claim a denial of
due process.20

Likewise devoid of merit is petitioners’ claim that they were deprived of their right to due
process when they were allegedly expelled from RHAI.

The essence of due process is the opportunity to be heard. What the law prohibits is not the
absence of previous notice but the absolute absence thereof and the lack of opportunity to be
heard.21

The records of this case disclose that there was a board resolution issued for the expulsion of the
erring or defaulting members of RHAI. The latter were duly informed that they were already
expelled as members of the association through notices sent to them. These notices, however,
were refused to be received by petitioners. Their expulsion was made pursuant to the By-Laws of
RHAI as shown by the testimony of Mildred de la Peña (dela Peña), President, on cross-
examination by the counsel for petitioners:

ATTY ZAMORA:

Q. Is there any provision in the by-laws which provides for expulsion of the members of the
association?

A. Yes, Attorney.

Q. And is there a procedure to be followed before a member xxx (is) expelled from the
association?

A. Yes, Attorney.

Q. And could you please tell us those procedure to be followed before a member could be
expelled from association?

xxx
A. As per by-laws of the association we are sending notices for the members to come, to attend
the meeting and inform them whether they have paid their obligation. Three (3) successive
demand from the association and they will not still appear with the association, the association
have the right to default them as per by-laws.

COURT

Q. The question of counsel is not on the matter of how a member is defaulted. He is asking about
the procedure on how to expel a member. How do you go about expelling a member?

A. Before we expel a member we go over and follow the by-laws.

Q. And what does your by-laws say about that?

A. As to the obligation, a member should pay his monthly obligation, joined all the activities and
meetings of the association. If a member could not comply with his obligation for three (3)
successive months that member is already capable for a default.

Q. You are always talking of default. Alright, assuming that a member has already incurred a
default. How do you go about expelling him?

A. We will inform that member that they are no longer with the association. The association will
send them a notice that they are already expelled from the association.

Q. Meaning to say that they are no longer member of the association?

A. Yes, your Honor.

ATTY. ZAMORA

Q. Madam witness this decision of the association to expel a member from membership, is that
through a resolution?

xxx

A. Yes, Attorney.

Q. Now, was there any board resolution expelling the defendants their membership from the
association?

A. We have.

Q. Where are those?

A. We could give it to Atty. Figura.

COURT

Q. Now, did you give the defendants here copies of the resolution expelling them from the
membership in your association?

A. Actually, your Honor, we did not furnish them since we furnished the National Homes. The
defendants will not accept any communications from us.

Q. The Court is not asking you whether you notify the National Home Mortgage, whether there
was an acceptance or rejection by the defendants. The Court is only asking you if you notify the
defendants that resolution expelling them from Membership?
A. Yes, your Honor.22

[Emphases and underscoring supplied]

The foregoing testimony strongly indicates that petitioners were duly expelled from RHAI.
There is nothing irregular when they were expelled for non-payment of dues and for non-
attendance of meetings. This is expressly sanctioned by the By-Laws of RHAI. The Court quotes
with approval the ruling of the CA on the matter, viz:

Like any other organization, plaintiff-appellee association has to set certain rules and regulations.
The evidence adduced in the court a quo by the plaintiff-appellee association proved that the
defendants-appellants failed to pay their membership fees and other reasonable fees. A perusal of
the by-laws of the plaintiff-appellee association reveals that a member is only required to pay a
membership fee of P100.00 to be paid every fiscal year and a monthly maintenance fee in the
amount of P10.00. Although it likewise provides for contribution and special assessments which
the defendants-appellants claimed to be unreasonable, yet, the defendants-appellants failed to
prove by the amount of evidence required by law as to what extent the plaintiff-appellee
association unreasonably assessed them. To us, there is no reason at all for the defendants-
appellants to protest the fees or dues as assessed against them by the plaintiff-appellee
association. Such unwholesome attitude of the defendant-appellants to pay the memberships fees
and monthly dues to the plaintiff-association clearly indicates that they do not want to be a part
of the membership of the association. Thus, the court a quo was correct in holding that
defendants-appellants were deemed expelled from their membership of the plaintiff-appellee
association because of their irrational failure to obey the rules and regulations of the latter. The
defendants-appellants likewise refused to acknowledge and sign the Lease Purchase Agreement
(LPA) as required by the NHMFC. Because of the defendants-appellants’ refusal to be members
in good standing of the plaintiff-appellee corporation, they remained squatters of the subject land
in the true sense of the word. As such, their possession is only by tolerance of the plaintiff-
appellee association, and the latter can recover possession of the subject land as the lawful owner
thereof. Squatting is unlawful and no amount of acquiescence converts it into a lawful act.23

Apparently, petitioners’ refusal to sign and submit the LPA, the most important requirement of
the NHMFC for the acquisition of the land, disqualified them as loan beneficiaries. As such, they
acquire no better rights than mere occupants of the subject land.

In any case, the due process guarantee cannot be invoked when no vested right has been
acquired. The period during which petitioners occupied the lots, no matter how long, did not vest
them with any right to claim ownership since it is a fundamental principle of law that acts of
possessory character executed by virtue of license or tolerance of the owner, no matter how long,
do not start the running of the period of acquisitive prescription.24

Indeed, the Court does not lose sight of the fact that petitioners were actual occupants of the
subject land. True enough, the RHAI was purposely formed to enable the dwellers, including
petitioners, to purchase the lots they were occupying, being the ultimate beneficiaries of the
CMP of the NHMFC. Petitioners, however, must be reminded that they have to comply with
certain requirements and obligations to qualify as beneficiaries and be entitled to the benefits
under the program. Their unreasonable refusal to join RHAI and their negative response to
comply with their obligations compelled RHAI to either expel them or declare them as non-
members of the association. Petitioners cannot now claim that they were denied the right to own
the portions of land they were occupying for their homes under the CMP.

It should be noted that petitioners were never prevented from becoming members of RHAI. In
fact, they were strongly encouraged to join and comply with the requirements of the CMP, not
only by the RHAI, but also by the BHA. The following testimony of De la Pena illustrate that the
direct intervention of the BHA proved futile, thus:

ATTY. ZAMORA
Q. Madam witness, inasmuch as the facilitator of the loan was the Bacolod Housing Authority,
did you call the attention of the Bacolod Housing Authority about it?

A. Yes, sir.

Q. And was there any action taken by the Bacolod Housing Authority on that Question?

A. Yes, sir.

Q. What action was taken?

A. They go back to the area and called for another meeting. Actually, when the Bacolod Housing
Authority was asking for a meeting to patch up this problems the defendants were not attending.

Q. And the meeting was called by the Bacolod Housing Authority on what dates?

A. The meeting of the association we have a date but I cannot remember. We invite the Bacolod
Housing Committee to help us patch up this problems.

Q. And who in particular?

A. Mrs. Tornilla.

Q. And Mrs. Tornilla try to reach out with the defendants?

A. Yes, Attorney.

Q. And did Mrs. Tornilla tell you about the reason why the defendants acted that way?

A. Mrs. Tornilla did not tell me. So the advise off Mrs. Tornilla and the Bacolod Housing
Authority that if the defendants will go on resisting not to sign the documents we have nothing to
do with them.25

Moreover, the Court cannot accept petitioners’ contention that the non-payment of dues was
simply a convenient excuse by the officers of RHAI to eject them from their lands to allow
strangers to become beneficiaries to the prejudice of the actual occupants.

Needless to state, petitioners’ presence as non-paying occupants had caused RHAI to experience
deficiency in the payment of the monthly amortizations for the land to the detriment of the other
RHAI members who had been complying with the requirements. This was the reason why RHAI
filed a suit against them – to cause their eviction from their present occupancy and to place, in
their stead, substitutes who would be willing to comply with the requirements. Before the case
was filed, RHAI made formal demands to petitioners to vacate the lots they were occupying. As
testified to by Jeanette Deslate, Regional Director (Region IV) of the NHMFC, to wit:

ATTY. NIFRAS

Q. In brief, can you tell the Honorable Court the basic functions of the corporation?

A. The corporation is one of the housing agencies under the Housing Coordinating council. It
provides shelter and we finance housing loans and we have projects like unified Home Lending
program, the regular housing loan of the subdivision. We also extend loans for developers. xxx
and we have a special project called Community Mortgage Program which caters to squatters
and non-owners of any residential units in Urban areas and danger zones.

Q. Can you please tell us some more of this Community Mortgage program, Mrs. Witness?
A. The Community Mortgage Program is a noble community program wherein the community
association or people residing in Urban areas or danger areas organized themselves into
community association and they, through an originator, they contract a loan with us and they are
the dwellers of these areas which they are willing to buy and wherein the owners are willing to
sell, and through that agreement a loan is filed with us and through the originator, they take out
the loan after complying all the requirements of the corporation.

(TSN, 23 March 2000, pp. 08-11)

Q. You mentioned about the originator. In the case of Rosal Homeowners Association, who is
the originator?

A. The originator of Rosal Homeowners Association is Bacolod Housing Authority.

Q. And the Bacolod Housing Authority is connected with the City Government?

(TSN, 23 March 2000, pp. 13-14)

Q. As far as the Rosal Homeowners is concerned what is now the status in relation to the
program of the corporation?

A. The association is a legitimate association who is now amortizing their loans with us.

(TSN, 23 March 2000, p. 17)

COURT

What do the individual applicants for housing come in?

WITNESS

Actually, as members of the association.

COURT

Just the individual member.

WITNESS

As individual member, they have to maintain their membership or their legitimacy or their
obedience of the rules of the association or to become the direct beneficiaries but as of now, they
have the assigned lots. Although this is temporary but if they prove that they can pay the lot up to
the end of the term, it will be awarded to each of them.

COURT

The court understands that they are not co-makes of the promissory notes for the loan with the
association?

WITNESS

They have individual loan purchase agreement and promissory notes submitted to us.

(TSN, 23 March 2000, pp. 23-24)

WITNESS
Through our visits and interviews, we knew that there are member-beneficiaries who do not pay
their monthly amortization. Some of the reasons are perhaps… ah…some of them, we call them
"recalcitrants" who are very… we call them "hard-headed" in paying their amortization.

(TSN, 23 March 2000, pp. 31-32)

ATTY. NIFRAS

Q. As far as the recalcitrants, in the procedure of payment is concerned what can the association
do if there are recalcitrant members?

A. If the reason for the low collection deficiency is because of recalcitrants, we have the so
called substitution of beneficiaries. Substitution of beneficiaries can only be possible because of
three reasons: One, is the default in paying the monthly amortization: one the waiver of the
beneficiary because he lost interest in the lot anymore and the loan and the third, is non-
compliance or disobedience of the rules and regulation of the association or the community.

(TSN, 23 March 2000, pp. 34-35)

ATTY. NIFRAS

Q. In other words, the association had [been] given the authority to determine the recalcitrants
and in a way submit the names to the corporation so that the said recalcitrants can be substituted?

WITNESS

Yes, sir, through the process I mentioned.

ATTY. NIFRAS

Are you aware whether the process was followed by the association

WITNESS

Yes, sir, because they have already submitted the requirements of the corporation.

(TSN, March 23, 2000, pp. 37-38)

ATTY. NIFRAS

In your process with emerging with the community, do you know whether the Bacolod Housing
Authority, the originator also participates the same activity as assailing the Rosal Homeowners
Association?

WITNESS

Yes. Actually, this is not the only project of the BHA so we required the BHA to improve their
collection deficiency, that is why, they campaigned within their association to pay regularly.

ATTY. NIFRAS

Are you aware whether or not the Bacolod Housing Authority also favorably indorsed the action
of the Rosal Homeowners Association, as far as, the recalcitrant members are concerned?

WITNESS
I think, Bacolod Housing Authority is aware and even recommends for the substitution in order
to improve the collection of the association.

(TSN, 23 March 2000, pp. 46-48)26

[Emphases and underscoring supplied]

On the basis of all the foregoing the Court finds no error on the part of the CA to warrant the
reversal or modification of the assailed decision.

WHEREFORE, the petition is DENIED.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson

TERESITA J. LEONARDO-DE
DIOSDADO M. PERALTA
CASTRO*
Associate Justice
Associate Justice

ROBERTO A. ABAD
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

* Designated acting member, per Special Order No. 1343, dated October 9, 2012.
1
Annex "A" of Petition, rollo, pp. 38-45. Penned by Associate Justice Isaias P. Dicdican
with Associate Justice Ramon M. Bato, Jr. and Associate Justice Apolinario D. Bruselas,
Jr., concurring.
2
Annex "B" of Petition, id. at 48-49.
3
The other petitioners in the Motion for Extension of Time to File Petition for Review on
Certiorari, John C. Arroyo, Patrick Semena, Mercy Silvestre, Rodolfo Caballero, Letecia
Huebos, Tarcila Pinili, Rodelia Uy, Cris Paras, Flor Moreno, and Jose Perote, did not
continue or participate in the filing of the instant petition.
4
Rollo, p. 75.
5
Id. at 76-77.
6
Id. at 78.
7
Id. at 80, 82, 89-91.
8
Annex "D" of Petition, id. at 68-73.
9
Id. at 40.
10
Id. at 107-108.
11
Id. at 42.
12
Id. at 45.
13
Dated December 26, 2005, id. at 50-67.
14
Id. at 18.
15
232 Phil. 615 (1987).
16
Dated March 2, 2008, rollo, pp. 164-183.
17
Cada v. Time Saver Laundry, G.R. No. 181480, January 30, 2009, 577 SCRA 565, 579,
citing Audion Electric Co., Inc. v. National Labor Relations Commission, 367 Phil. 620,
633 (1999).
18
Flores v. Montemayor, G.R. No. 170146, June 8, 2011, 651 SCRA 396, 406.
19
Rollo, pp. 42-43.
20
Equitable PCI Banking Corporation v. RCBC Capital Corporation, G.R. No. 182248,
December 18, 2008, 574 SCRA 858, 890, citing Sunrise Manning Agency, Inc. v.
National Labor Relations Commission, G.R. No. 146703, November 18, 2004, 443
SCRA 35, 42.
21
Espinocilla, Jr. v. Bagong Tanyag Homeowners Association, Inc., G.R. No. 151019,
August 9, 2007, 529 SCRA 654, 660, citing Medenilla v. Civil Service Commission,
G.R. No. 93868, February 19, 1991, 194 SCRA 278, 285 (citations omitted).
22
Rollo, pp. 171-174.
23
Id. at 44-45.
 24
Espinocilla, Jr. v. Bagong Tanyag Homeowners Association, Inc., supra note 21 at 662.
25
Rollo, pp. 177-178.
26
Id. at 179-182.

BELTRAN V. SECRETARY OF HEALTH (476 SCRA 168)

EN BANC

RODOLFO S. BELTRAN, doing G.R. No. 133640

business under the name and style, OUR LADY
OF FATIMA BLOOD BANK, FELY G. MOSALE,
doing business under the name and style,
MOTHER SEATON BLOOD BANK; PEOPLES
BLOOD BANK, INC.; MARIA VICTORIA T.
VITO, M.D., doing business under the name and
style, AVENUE BLOOD BANK; JESUS M.
GARCIA, M.D., doing business under the name
and style, HOLY REDEEMER BLOOD BANK,
ALBERT L. LAPITAN, doing business under the
name and style, BLUE CROSS BLOOD
TRANSFUSION SERVICES; EDGARDO R.
RODAS, M.D., doing business under the name
and style, RECORD BLOOD BANK, in their
individual capacities and for and in behalf of
PHILIPPINE ASSOCIATION OF BLOOD BANKS,
Petitioners,

- versus

THE SECRETARY OF HEALTH,

Respondent.

x ------------------------------------------------ x

DOCTORS BLOOD CENTER, G.R. No. 133661

Petitioner,

- versus

DEPARTMENT OF HEALTH.
Respondent.
x --------------------------------------------- x

RODOLFO S. BELTRAN, doing G.R. No. 139147

business under the name and style, OUR LADY
OF FATIMA BLOOD
BANK, FELY G. MOSALE, doing Present:
business under the name and style,
MOTHER SEATON BLOOD BANK; DAVIDE, JR., C.J.,
PEOPLES BLOOD BANK, INC.; PUNO,
MARIA VICTORIA T. VITO, M.D., PANGANIBAN,
doing business under the name and QUISUMBING,
style, AVENUE BLOOD BANK; YNARES-SANTIAGO,
JESUS M. GARCIA, M.D., doing SANDOVAL-GUTIERREZ,
business under the name and style, CARPIO,
HOLY REDEEMER BLOOD BANK, AUSTRIA-MARTINEZ,
ALBERT L. LAPITAN, doing CORONA,
business under the name and style, CARPIO-MORALES,
BLUE CROSS BLOOD CALLEJO, SR.,
TRANSFUSION SERVICES; AZCUNA,
EDGARDO R. RODAS, M.D., doing TINGA,
business under the name and style, CHIZO-NAZARIO,* and
RECORD BLOOD BANK, in their GARCIA, JJ.
Individual capacities and for
and in behalf of PHILIPPINE Promulgated:
ASSOCIATION OF BLOOD BANKS,
Petitioners, November 25, 2005
- versus

THE SECRETARY OF HEALTH,

Respondent.

x ---------------------------------------------------------------------------------------- x

DECISION

AZCUNA, J.:

Before this Court are petitions assailing primarily the constitutionality of Section 7 of
Republic Act No. 7719, otherwise known as the National Blood Services Act of 1994,
and the validity of Administrative Order (A.O.) No. 9, series of 1995 or the Rules and
Regulations Implementing Republic Act No. 7719.

G.R. No. 133640,[1] entitled Rodolfo S. Beltran, doing business under the name and style,
Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health and G.R. No.
133661,[2] entitled Doctors Blood Bank Center vs. Department of Health are petitions for
certiorari and mandamus, respectively, seeking the annulment of the following: (1)
Section 7 of Republic Act No. 7719; and, (2) Administrative Order (A.O.) No. 9, series of
1995. Both petitions likewise pray for the issuance of a writ of prohibitory injunction
enjoining the Secretary of Health from implementing and enforcing the aforementioned
law and its Implementing Rules and Regulations; and, for a mandatory injunction
ordering and commanding the Secretary of Health to grant, issue or renew petitioners
license to operate free standing blood banks (FSBB).

The above cases were consolidated in a resolution of the Court En Banc dated June 2,
1998.[3]

G.R. No. 139147,[4] entitled Rodolfo S. Beltran, doing business under the name and style,
Our Lady of Fatima Blood Bank, et al., vs. The Secretary of Health, on the other hand, is
a petition to show cause why respondent Secretary of Health should not be held in
contempt of court.
This case was originally assigned to the Third Division of this Court and later
consolidated with G.R. Nos. 133640 and 133661 in a resolution dated August 4, 1999.[5]
Petitioners comprise the majority of the Board of Directors of the Philippine
Association of Blood Banks, a duly registered non-stock and non-profit association
composed of free standing blood banks.

Public respondent Secretary of Health is being sued in his capacity as the public official
directly involved and charged with the enforcement and implementation of the law in
question.

The facts of the case are as follows:

Republic Act No. 7719 or the National Blood Services Act of 1994 was enacted into law
on April 2, 1994. The Act seeks to provide

an adequate supply of safe blood by promoting voluntary blood donation and by

regulating blood banks in the country. It was approved by then President Fidel V.
Ramos on May 15, 1994 and was subsequently published in the Official Gazette
on August 18, 1994. The law took effect on August 23, 1994.

On April 28, 1995, Administrative Order No. 9, Series of 1995, constituting the
Implementing Rules and Regulations of said law was promulgated by respondent
Secretary of the Department of Health (DOH).[6]

Section 7 of R.A. 7719 [7] provides:

Section 7. Phase-out of Commercial Blood Banks - All commercial blood

banks shall be phased-out over a period of two (2) years after the
effectivity of this Act, extendable to a maximum period of two (2) years by
the Secretary.

Section 23 of Administrative Order No. 9 provides:

Section 23. Process of Phasing Out. -- The Department shall effect the
phasing-out of all commercial blood banks over a period of two (2) years,
extendible for a maximum period of two (2) years after the effectivity of
R.A. 7719. The decision to extend shall be based on the result of a careful
study and review of the blood supply and demand and public safety.[8]

Blood banking and blood transfusion services in the country have been arranged in four
(4) categories: blood centers run by the Philippine National Red Cross (PNRC),
government-run blood services, private hospital blood banks, and commercial blood
services.

Years prior to the passage of the National Blood Services Act of 1994, petitioners
have already been operating commercial blood banks under Republic Act No. 1517,
entitled An Act Regulating the Collection, Processing and Sale of Human Blood, and the
Establishment and Operation of Blood Banks and Blood Processing Laboratories. The
law, which was enacted on June 16, 1956, allowed the establishment and operation by
licensed physicians of blood banks and blood processing laboratories. The Bureau of
Research and Laboratories (BRL) was created in 1958 and was given the power to
regulate clinical laboratories in 1966 under Republic Act No. 4688. In 1971, the
Licensure Section was created within the BRL. It was given the duty to enforce the
licensure requirements for blood banks as well as clinical laboratories. Due to this
development, Administrative Order No. 156, Series of 1971, was issued. The new rules
and regulations triggered a stricter enforcement of the Blood Banking Law, which was
characterized by frequent spot checks, immediate suspension and communication of
such suspensions to hospitals, a more systematic record-keeping and frequent
communication with blood banks through monthly information bulletins.
Unfortunately, by the 1980s, financial difficulties constrained the BRL to reduce the
frequency of its supervisory visits to the blood banks.[9]

Meanwhile, in the international scene, concern for the safety of blood and blood
products intensified when the dreaded disease Acute Immune Deficiency Syndrome
(AIDS) was first described in 1979. In 1980, the International Society of Blood
Transfusion (ISBT) formulated the Code of Ethics for Blood Donation and Transfusion.
In 1982, the first case of transfusion-associated AIDS was described in an infant. Hence,
the ISBT drafted in 1984, a model for a national blood policy outlining certain principles
that should be taken into consideration. By 1985, the ISBT had disseminated guidelines
requiring AIDS testing of blood and blood products for transfusion.[10]

In 1989, another revision of the Blood Banking Guidelines was made. The DOH issued
Administrative Order No. 57, Series of 1989, which classified banks into primary,
secondary and tertiary depending on the services they provided. The standards were
adjusted according to this classification. For instance, floor area requirements varied
according to classification level. The new guidelines likewise required Hepatitis B and
HIV testing, and that the blood bank be headed by a pathologist or a hematologist.[11]

In 1992, the DOH issued Administrative Order No. 118-A institutionalizing the
National Blood Services Program (NBSP). The BRL was designated as the central office
primarily responsible for the NBSP. The program paved the way for the creation of a
committee that will implement the policies of the program and the formation of the
Regional Blood Councils.

In August 1992, Senate Bill No. 1011, entitled An Act Promoting Voluntary Blood
Donation, Providing for an Adequate Supply of Safe Blood, Regulating Blood Banks
and Providing Penalties for Violations Thereof, and for other Purposes was introduced
in the Senate.[12]
Meanwhile, in the House of Representatives, House Bills No. 384, 546, 780 and
1978 were being deliberated to address the issue of safety of the Philippine blood bank
system. Subsequently, the Senate and House Bills were referred to the appropriate
committees and subsequently consolidated.[13]
In January of 1994, the New Tropical Medicine Foundation, with the assistance of
the U.S. Agency for International Development (USAID) released its final report of a
study on the Philippine blood banking system entitled Project to Evaluate the Safety of the
Philippine Blood Banking System. It was revealed that of the blood units collected in 1992,
64.4 % were supplied by commercial blood banks, 14.5% by the PNRC, 13.7% by
government hospital-based blood banks, and 7.4% by private hospital-based blood
banks. During the time the study was made, there were only twenty-four (24) registered
or licensed free-standing or commercial blood banks in the country. Hence, with these
numbers in mind, the study deduced that each commercial blood bank produces five
times more blood than the Red Cross and fifteen times more than the government-run
blood banks. The study, therefore, showed that the Philippines heavily relied on
commercial sources of blood. The study likewise revealed that 99.6% of the donors of
commercial blood banks and 77.0% of the donors of private-hospital based blood banks
are paid donors. Paid donors are those who receive remuneration for donating their
blood. Blood donors of the PNRC and government-run hospitals, on the other hand, are
mostly voluntary.[14]

It was further found, among other things, that blood sold by persons to blood
commercial banks are three times more likely to have any of the four (4) tested
infections or blood transfusion transmissible diseases, namely, malaria, syphilis,
Hepatitis B and Acquired Immune Deficiency Syndrome (AIDS) than those donated to
PNRC.[15]
Commercial blood banks give paid donors varying rates around P50 to P150, and
because of this arrangement, many of these donors are poor, and often they are
students, who need cash immediately. Since they need the money, these donors are not
usually honest about their medical or social history. Thus, blood from healthy,
voluntary donors who give their true medical and social history are about three times
much safer than blood from paid donors.[16]

What the study also found alarming is that many Filipino doctors are not yet fully
trained on the specific indications for blood component transfusion. They are not aware
of the lack of blood supply and do not feel the need to adjust their practices and use of
blood and blood products. It also does not matter to them where the blood comes
from.[17]
On August 23, 1994, the National Blood Services Act providing for the phase out of
commercial blood banks took effect. On April 28, 1995, Administrative Order No. 9,
Series of 1995, constituting the Implementing Rules and Regulations of said law was
promulgated by DOH.

The phase-out period was extended for two years by the DOH pursuant to Section 7 of
Republic Act No. 7719 and Section 23 of its Implementing Rules and Regulations.
Pursuant to said Act, all commercial blood banks should have been phased out by May
28, 1998. Hence, petitioners were granted by the Secretary of Health their licenses to
open and operate a blood bank only until May 27, 1998.

On May 20, 1998, prior to the expiration of the licenses granted to petitioners,
they filed a petition for certiorari with application for the issuance of a writ of
preliminary injunction or temporary restraining order under Rule 65 of the Rules of
Court assailing the constitutionality and validity of the aforementioned Act and its
Implementing Rules and Regulations. The case was entitled Rodolfo S. Beltran, doing
business under the name and style, Our Lady of Fatima Blood Bank, docketed as G.R.
No. 133640.
 On June 1, 1998, petitioners filed an Amended Petition for Certiorari with Prayer
for Issuance of a Temporary Restraining Order, writ of preliminary mandatory
injunction and/or status quo ante order.[18]
In the aforementioned petition, petitioners assail the constitutionality of the
questioned legal provisions, namely, Section 7 of Republic Act No. 7719 and Section 23
of Administrative Order No. 9, Series of 1995, on the following grounds: [19]

1. The questioned legal provisions of the National Blood Services Act and
its Implementing Rules violate the equal protection clause for
irrationally discriminating against free standing blood banks in a
manner which is not germane to the purpose of the law;
2. The questioned provisions of the National Blood Services Act
and its Implementing Rules represent undue delegation if not
outright abdication of the police power of the state; and,

3. The questioned provisions of the National Blood Services Act

and its Implementing Rules are unwarranted deprivation of personal
liberty.

On May 22, 1998, the Doctors Blood Center filed a similar petition for mandamus
with a prayer for the issuance of a temporary restraining order, preliminary prohibitory
and mandatory injunction before this Court entitled Doctors Blood Center vs.
Department of Health, docketed as G.R. No. 133661. [20] This was consolidated with G.R.
No. 133640.[21]

Similarly, the petition attacked the constitutionality of Republic Act No. 7719 and
its implementing rules and regulations, thus, praying for the issuance of a license to
operate commercial blood banks beyond May 27, 1998. Specifically, with regard to
Republic Act No. 7719, the petition submitted the following questions[22] for resolution:

1. Was it passed in the exercise of police power,

and was it a valid exercise of such power?

2. Does it not amount to deprivation of property

without due process?

3. Does it not unlawfully impair the obligation of

contracts?

4. With the commercial blood banks being abolished and with no ready
machinery to deliver the same supply and services, does R.A. 7719
truly serve the public welfare?

On June 2, 1998, this Court issued a Resolution directing respondent DOH to file a
consolidated comment. In the same Resolution, the Court issued a temporary
restraining order (TRO) for respondent to cease and desist from implementing and
enforcing Section 7 of Republic Act No. 7719 and its implementing rules and regulations
until further orders from the Court.[23]
On August 26, 1998, respondent Secretary of Health filed a Consolidated Comment on
the petitions for certiorari and mandamus in G.R. Nos. 133640 and 133661, with
opposition to the issuance of a temporary restraining order.[24]

In the Consolidated Comment, respondent Secretary of Health submitted that blood

from commercial blood banks is unsafe and therefore the State, in the exercise of its
police power, can close down commercial blood banks to protect the public. He cited
the record of deliberations on Senate Bill No. 1101 which later became Republic Act No.
7719, and the sponsorship speech of Senator Orlando Mercado.

The rationale for the closure of these commercial blood banks can be found in the
deliberations of Senate Bill No. 1011, excerpts of which are quoted below:

Senator Mercado: I am providing over a period of two years to phase out

all commercial blood banks. So that in the end, the new section would
have a provision that states:

ALL COMMERCIAL BLOOD BANKS SHALL BE PHASED OUT

OVER A PERIOD OF TWO YEARS AFTER THE EFFECTIVITY OF THIS
ACT. BLOOD SHALL BE COLLECTED FROM VOLUNTARY DONORS
ONLY AND THE SERVICE FEE TO BE CHARGED FOR EVERY BLOOD
PRODUCT ISSUED SHALL BE LIMITED TO THE NECESSARY
EXPENSES ENTAILED IN COLLECTING AND PROCESSING OF
BLOOD. THE SERVICE FEE SHALL BE MADE UNIFORM THROUGH
GUIDELINES TO BE SET BY THE DEPARTMENTOF HEALTH.
I am supporting Mr. President, the finding of a study called Project
to Evaluate the Safety of the Philippine Blood Banking System. This has
been taken note of. This is a study done with the assistance of the USAID
by doctors under the New Tropical Medicine Foundation in Alabang.
Part of the long-term measures proposed by this particular study is
to improve laws, outlaw buying and selling of blood and legally define
good manufacturing processes for blood. This goes to the very heart of my
amendment which seeks to put into law the principle that blood should
not be subject of commerce of man.
The Presiding Officer Senator Aquino: What does the sponsor say?
Senator Webb: Mr. President, just for clarity, I would like to find
out how the Gentleman defines a commercial blood bank. I am at a loss at
times what a commercial blood bank really is.
Senator Mercado: We have a definition, I believe, in the measure,
Mr. President.
The Presiding Officer [Senator Aquino]: It is a business where
profit is considered.

Senator Mercado: If the Chairman of the Committee would accept it, we

can put a provision on Section 3, a definition of a commercial blood bank,
which, as defined in this law, exists for profit and engages in the buying
and selling of blood or its components.

Senator Webb: That is a good description, Mr. President.

Senator Mercado: I refer, Mr. President, to a letter written by Dr.

Jaime Galvez-Tan, the Chief of Staff, Undersecretary of Health, to the
good Chairperson of the Committee on Health.
 In recommendation No. 4, he says:
The need to phase out all commercial blood banks within a two-
year period will give the Department of Health enough time to build up
governments capability to provide an adequate supply of blood for the
needs of the nation...the use of blood for transfusion is a medical service
and not a sale of commodity.
Taking into consideration the experience of the National Kidney
Institute, which has succeeded in making the hospital 100 percent
dependent on voluntary blood donation, here is a success story of a
hospital that does not buy blood. All those who are operated on and need
blood have to convince their relatives or have to get volunteers who
would donate blood
If we give the responsibility of the testing of blood to those
commercial blood banks, they will cut corners because it will protect their
profit.
In the first place, the people who sell their blood are the people
who are normally in the high-risk category. So we should stop the system
of selling and buying blood so that we can go into a national voluntary
blood program.
It has been said here in this report, and I quote:
Why is buying and selling of blood not safe? This is not safe
because a donor who expects payment for his blood will not tell the truth
about his illnesses and will deny any risky social behavior such as sexual
promiscuity which increases the risk of having syphilis or AIDS or abuse
of intravenous addictive drugs. Laboratory tests are of limited value and
will not detect early infections. Laboratory tests are required only for four
diseases in the Philippines. There are other blood transmissible diseases
we do not yet screen for and there could be others where there are no tests
available yet.
A blood bank owner expecting to gain profit from selling blood will
also try his best to limit his expenses. Usually he tries to increase his profit
by buying cheaper reagents or test kits, hiring cheaper manpower or
skipping some tests altogether. He may also try to sell blood even though
these have infections in them. Because there is no existing system of
counterchecking these, the blood bank owner can usually get away with
many unethical practices.
The experience of Germany, Mr. President is illustrative of this
issue. The reason why contaminated blood was sold was that there were
corners cut by commercial blood banks in the testing process. They were
protecting their profits.[25]

The sponsorship speech of Senator Mercado further elucidated his stand on the issue:

Senator Mercado: Today, across the country, hundreds of poverty-

stricken, sickly and weak Filipinos, who, unemployed, without hope and
without money to buy the next meal, will walk into a commercial blood
bank, extend their arms and plead that their blood be bought. They will lie
about their age, their medical history. They will lie about when they last
sold their blood. For doing this, they will receive close to a hundred pesos.
This may tide them over for the next few days. Of course, until the next
bloodletting.
 This same blood will travel to the posh city hospitals and urbane medical
centers. This same blood will now be bought by the rich at a price over
500% of the value for which it was sold. Between this buying and selling,
obviously, someone has made a very fast buck.

Every doctor has handled at least one transfusion-related disease in an

otherwise normal patient. Patients come in for minor surgery of the hand
or whatever and they leave with hepatitis B. A patient comes in for an
appendectomy and he leaves with malaria. The worst nightmare: A
patient comes in for a Caesarian section and leaves with AIDS.

We do not expect good blood from donors who sell their blood because of
poverty. The humane dimension of blood transfusion is not in the act of
receiving blood, but in the act of giving it

For years, our people have been at the mercy of commercial blood banks
that lobby their interests among medical technologists, hospital
administrators and sometimes even physicians so that a proactive system
for collection of blood from healthy donors becomes difficult, tedious and
unrewarding.

The Department of Health has never institutionalized a comprehensive

national program for safe blood and for voluntary blood donation even if
this is a serious public health concern and has fallen for the linen of
commercial blood bankers, hook, line and sinker because it is more
convenient to tell the patient to buy blood.

Commercial blood banks hold us hostage to their threat that if we are to

close them down, there will be no blood supply. This is true if the
Government does not step in to ensure that safe supply of blood. We
cannot allow commercial interest groups to dictate policy on what is and
what should be a humanitarian effort. This cannot and will never work
because their interest in blood donation is merely monetary. We cannot
expect commercial blood banks to take the lead in voluntary blood
donation. Only the Government can do it, and the Government must do
it.[26]
On May 5, 1999, petitioners filed a Motion for Issuance of Expanded Temporary
Restraining Order for the Court to order respondent Secretary of Health to cease and
desist from announcing the closure of commercial blood banks, compelling the public to
source the needed blood from voluntary donors only, and committing similar acts that
will ultimately cause the shutdown of petitioners blood banks.[27]
On July 8, 1999, respondent Secretary filed his Comment and/or Opposition to
the above motion stating that he has not ordered the closure of commercial blood banks
on account of the Temporary Restraining Order (TRO) issued on June 2, 1998 by the
Court. In compliance with the TRO, DOH had likewise ceased to distribute the health
advisory leaflets, posters and flyers to the public which state that blood banks are
closed or will be closed. According to respondent Secretary, the same were printed and
circulated in anticipation of the closure of the commercial blood banks in accordance
with R.A. No. 7719, and were printed and circulated prior to the issuance of the TRO.[28]

On July 15, 1999, petitioners in G.R. No. 133640 filed a Petition to Show Cause
Why Public Respondent Should Not be Held in Contempt of Court, docketed as G.R.
No. 139147, citing public respondents willful disobedience of or resistance to the
restraining order issued by the Court in the said case. Petitioners alleged that
respondents act constitutes circumvention of the temporary restraining order and a
mockery of the authority of the Court and the orderly administration of
justice.[29] Petitioners added that despite the issuance of the temporary restraining order
in G.R. No. 133640, respondent, in his effort to strike down the existence of commercial
blood banks, disseminated misleading information under the guise of health advisories,
press releases, leaflets, brochures and flyers stating, among others, that this year [1998]
all commercial blood banks will be closed by 27 May. Those who need blood will have
to rely on government blood banks.[30] Petitioners further claimed that respondent
Secretary of Health announced in a press conference during the Blood Donors Week
that commercial blood banks are illegal and dangerous and that they are at the moment
protected by a restraining order on the basis that their commercial interest is more
important than the lives of the people. These were all posted in bulletin boards and
other conspicuous places in all government hospitals as well as other medical and
health centers.[31]

In respondent Secretarys Comment to the Petition to Show Cause Why Public

Respondent Should Not Be Held in Contempt of Court, dated January 3, 2000, it was
explained that nothing was issued by the department ordering the closure of
commercial blood banks. The subject health advisory leaflets pertaining to said closure
pursuant to Republic Act No. 7719 were printed and circulated prior to the Courts
issuance of a temporary restraining order on June 21, 1998.[32]
Public respondent further claimed that the primary purpose of the information
campaign was to promote the importance and safety of voluntary blood donation and
to educate the public about the hazards of patronizing blood supplies from commercial
blood banks.[33] In doing so, he was merely performing his regular functions and duties
as the Secretary of Health to protect the health and welfare of the public. Moreover, the
DOH is the main proponent of the voluntary blood donation program espoused by
Republic Act No. 7719, particularly Section 4 thereof which provides that, in order to
ensure the adequate supply of human blood, voluntary blood donation shall be
promoted through public education, promotion in schools, professional education,
establishment of blood services network, and walking blood donors.
Hence, by authority of the law, respondent Secretary contends that he has the
duty to promote the program of voluntary blood donation. Certainly, his act of
encouraging the public to donate blood voluntarily and educating the people on the
risks associated with blood coming from a paid donor promotes general health and
welfare and which should be given more importance than the commercial businesses of
petitioners.[34]

On July 29, 1999, interposing personal and substantial interest in the case as taxpayers
and citizens, a Petition-in-Intervention was filed interjecting the same arguments and
issues as laid down by petitioners in G.R. No. 133640 and 133661, namely, the
unconstitutionality of the Acts, and, the issuance of a writ of prohibitory injunction. The
intervenors are the immediate relatives of individuals who had died allegedly because
of shortage of blood supply at a critical time.[35]
The intervenors contended that Republic Act No. 7719 constitutes undue
delegation of legislative powers and unwarranted deprivation of personal liberty.[36]
In a resolution, dated September 7, 1999, and without giving due course to the
aforementioned petition, the Court granted the Motion for Intervention that was filed
by the above intervenors on August 9, 1999.

In his Comment to the petition-in-intervention, respondent Secretary of Health

stated that the sale of blood is contrary to the spirit and letter of the Act that blood
donation is a humanitarian act and blood transfusion is a professional medical service
and not a sale of commodity (Section 2[a] and [b] of Republic Act No. 7719). The act of
selling blood or charging fees other than those allowed by law is even penalized under
Section 12.[37]

Thus, in view of these, the Court is now tasked to pass upon the constitutionality of
Section 7 of Republic Act No. 7719 or the National Blood Services Act of 1994 and its
Implementing Rules and Regulations.
In resolving the controversy, this Court deems it necessary to address the issues
and/or questions raised by petitioners concerning the constitutionality of the aforesaid
Act in G.R. No. 133640 and 133661 as summarized hereunder:

I
WHETHER OR NOT SECTION 7 OF R.A. 7719 CONSTITUTES
UNDUE DELEGATION OF LEGISLATIVE POWER;

II
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE EQUAL
PROTECTION CLAUSE;

III
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE NON-
IMPAIRMENT CLAUSE;

IV
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS
IMPLEMENTING RULES AND REGULATIONS CONSTITUTE
DEPRIVATION OF PERSONAL LIBERTY AND PROPERTY;

V
WHETHER OR NOT R.A. 7719 IS A VALID EXERCISE OF POLICE
POWER; and,

VI
WHETHER OR NOT SECTION 7 OF R.A. 7719 AND ITS
IMPLEMENTING RULES AND REGULATIONS TRULY SERVE PUBLIC
WELFARE.

As to the first ground upon which the constitutionality of the Act is being challenged, it
is the contention of petitioners that the phase out of commercial or free standing blood
banks is unconstitutional because it is an improper and unwarranted delegation of
legislative power. According to petitioners, the Act was incomplete when it was passed
by the Legislature, and the latter failed to fix a standard to which the Secretary of
Health must conform in the performance of his functions. Petitioners also contend that
the two-year extension period that may be granted by the Secretary of Health for the
phasing out of commercial blood banks pursuant to Section 7 of the Act constrained the
Secretary to legislate, thus constituting undue delegation of legislative power.
In testing whether a statute constitutes an undue delegation of legislative power
or not, it is usual to inquire whether the statute was complete in all its terms and
provisions when it left the hands of the Legislature so that nothing was left to the
judgment of the administrative body or any other appointee or delegate of the
Legislature.[38] Except as to matters of detail that may be left to be filled in by rules and
regulations to be adopted or promulgated by executive officers and administrative
boards, an act of the Legislature, as a general rule, is incomplete and hence invalid if it
does not lay down any rule or definite standard by which the administrative board may
be guided in the exercise of the discretionary powers delegated to it.[39]
Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in
itself. It is clear from the provisions of the Act that the Legislature intended primarily to
safeguard the health of the people and has mandated several measures to attain this
objective. One of these is the phase out of commercial blood banks in the country. The
law has sufficiently provided a definite standard for the guidance of the Secretary of
Health in carrying out its provisions, that is, the promotion of public health by
providing a safe and adequate supply of blood through voluntary blood donation. By
its provisions, it has conferred the power and authority to the Secretary of Health as to
its execution, to be exercised under and in pursuance of the law.
Congress may validly delegate to administrative agencies the authority to
promulgate rules and regulations to implement a given legislation and effectuate its
policies.[40] The Secretary of Health has been given, under Republic Act No. 7719, broad
powers to execute the provisions of said Act. Section 11 of the Act states:

SEC. 11. Rules and Regulations. The implementation of the provisions of

the Act shall be in accordance with the rules and regulations to be
promulgated by the Secretary, within sixty (60) days from the approval
hereof

This is what respondent Secretary exactly did when DOH, by virtue of the
administrative bodys authority and expertise in the matter, came out with
Administrative Order No.9, series of 1995 or the Rules and Regulations Implementing
Republic Act No. 7719. Administrative Order. No. 9 effectively filled in the details of the
law for its proper implementation.

Specifically, Section 23 of Administrative Order No. 9 provides that the phase-

out period for commercial blood banks shall be extended for another two years until
May 28, 1998 based on the result of a careful study and review of the blood supply and
demand and public safety. This power to ascertain the existence of facts and conditions
upon which the Secretary may effect a period of extension for said phase-out can be
delegated by Congress. The true distinction between the power to make laws and
discretion as to its execution is illustrated by the fact that the delegation of power to
make the law, which necessarily involves a discretion as to what it shall be, and
conferring an authority or discretion as to its execution, to be exercised under and in
pursuance of the law. The first cannot be done; to the latter no valid objection can be
made.[41]

In this regard, the Secretary did not go beyond the powers granted to him by the
Act when said phase-out period was extended in accordance with the Act as laid out in
Section 2 thereof:
SECTION 2. Declaration of Policy In order to promote public
health, it is hereby declared the policy of the state:

a) to promote and encourage voluntary blood donation by

the citizenry and to instill public consciousness of the principle
that blood donation is a humanitarian act;
 b) to lay down the legal principle that the provision of blood
for transfusion is a medical service and not a sale of commodity;
c) to provide for adequate, safe, affordable and equitable
distribution of blood supply and blood products;

d) to inform the public of the need for voluntary blood

donation to curb the hazards caused by the commercial sale of
blood;

e) to teach the benefits and rationale of voluntary blood

donation in the existing health subjects of the formal education
system in all public and private schools as well as the non-
formal system;

f) to mobilize all sectors of the community to participate in

mechanisms for voluntary and non-profit collection of blood;

g) to mandate the Department of Health to establish and

organize a National Blood Transfusion Service Network in
order to rationalize and improve the provision of adequate and
safe supply of blood;

h) to provide for adequate assistance to institutions

promoting voluntary blood donation and providing non-profit
blood services, either through a system of reimbursement for
costs from patients who can afford to pay, or donations from
governmental and non-governmental entities;

i) to require all blood collection units and blood

banks/centers to operate on a non-profit basis;

j) to establish scientific and professional standards for the

operation of blood collection units and blood banks/centers in
the Philippines;

k) to regulate and ensure the safety of all activities related to

the collection, storage and banking of blood; and,

l) to require upgrading of blood banks/centers to include

preventive services and education to control spread of blood
transfusion transmissible diseases.

Petitioners also assert that the law and its implementing rules and regulations
violate the equal protection clause enshrined in the Constitution because it unduly
discriminates against commercial or free standing blood banks in a manner that is not
germane to the purpose of the law.[42]

What may be regarded as a denial of the equal protection of the laws is a question not
always easily determined. No rule that will cover every case can be formulated. Class
legislation, discriminating against some and favoring others is prohibited but
classification on a reasonable basis and not made arbitrarily or capriciously is
permitted. The classification, however, to be reasonable: (a) must be based on
substantial distinctions which make real differences; (b) must be germane to the
purpose of the law; (c) must not be limited to existing conditions only; and, (d) must
apply equally to each member of the class.[43]
Republic Act No. 7719 or The National Blood Services Act of 1994, was enacted
for the promotion of public health and welfare. In the aforementioned study conducted
by the New Tropical Medicine Foundation, it was revealed that the Philippine blood
banking system is disturbingly primitive and unsafe, and with its current condition, the
spread of infectious diseases such as malaria, AIDS, Hepatitis B and syphilis chiefly
from blood transfusion is unavoidable. The situation becomes more distressing as the
study showed that almost 70% of the blood supply in the country is sourced from paid
blood donors who are three times riskier than voluntary blood donors because they are
unlikely to disclose their medical or social history during the blood screening.[44]
The above study led to the passage of Republic Act No. 7719, to instill public
consciousness of the importance and benefits of voluntary blood donation, safe blood
supply and proper blood collection from healthy donors. To do this, the Legislature
decided to order the phase out of commercial blood banks to improve the Philippine
blood banking system, to regulate the supply and proper collection of safe blood, and so
as not to derail the implementation of the voluntary blood donation program of the
government. In lieu of commercial blood banks, non-profit blood banks or blood
centers, in strict adherence to professional and scientific standards to be established by
the DOH, shall be set in place.[45]
Based on the foregoing, the Legislature never intended for the law to create a
situation in which unjustifiable discrimination and inequality shall be allowed. To
effectuate its policy, a classification was made between nonprofit blood banks/centers
and commercial blood banks.

We deem the classification to be valid and reasonable for the following reasons:
One, it was based on substantial distinctions. The former operates for purely
humanitarian reasons and as a medical service while the latter is motivated by profit.
Also, while the former wholly encourages voluntary blood donation, the latter treats
blood as a sale of commodity.
Two, the classification, and the consequent phase out of commercial blood banks
is germane to the purpose of the law, that is, to provide the nation with an adequate
supply of safe blood by promoting voluntary blood donation and treating blood
transfusion as a humanitarian or medical service rather than a commodity. This
necessarily involves the phase out of commercial blood banks based on the fact that
they operate as a business enterprise, and they source their blood supply from paid
blood donors who are considered unsafe compared to voluntary blood donors as shown
by the USAID-sponsored study on the Philippine blood banking system.
Three, the Legislature intended for the general application of the law. Its
enactment was not solely to address the peculiar circumstances of the situation nor was
it intended to apply only to the existing conditions.
Lastly, the law applies equally to all commercial blood banks without exception.
Having said that, this Court comes to the inquiry as to whether or not Republic
Act No. 7719 constitutes a valid exercise of police power.
The promotion of public health is a fundamental obligation of the State. The health of
the people is a primordial governmental concern. Basically, the National Blood Services
Act was enacted in the exercise of the States police power in order to promote and
preserve public health and safety.
Police power of the state is validly exercised if (a) the interest of the public
generally, as distinguished from those of a particular class, requires the interference of
the State; and, (b) the means employed are reasonably necessary to the attainment of the
objective sought to be accomplished and not unduly oppressive upon individuals.[46]
 In the earlier discussion, the Court has mentioned of the avowed policy of the
law for the protection of public health by ensuring an adequate supply of safe blood in
the country through voluntary blood donation. Attaining this objective requires the
interference of the State given the disturbing condition of the Philippine blood banking
system.
In serving the interest of the public, and to give meaning to the purpose of the
law, the Legislature deemed it necessary to phase out commercial blood banks. This
action may seriously affect the owners and operators, as well as the employees, of
commercial blood banks but their interests must give way to serve a higher end for the
interest of the public.

The Court finds that the National Blood Services Act is a valid exercise of the
States police power. Therefore, the Legislature, under the circumstances, adopted a
course of action that is both necessary and reasonable for the common good. Police
power is the State authority to enact legislation that may interfere with personal liberty
or property in order to promote the general welfare.[47]
It is in this regard that the Court finds the related grounds and/or issues raised by
petitioners, namely, deprivation of personal liberty and property, and violation of the
non-impairment clause, to be unmeritorious.
Petitioners are of the opinion that the Act is unconstitutional and void because it
infringes on the freedom of choice of an individual in connection to what he wants to do
with his blood which should be outside the domain of State intervention. Additionally,
and in relation to the issue of classification, petitioners asseverate that, indeed, under
the Civil Code, the human body and its organs like the heart, the kidney and the liver
are outside the commerce of man but this cannot be made to apply to human blood
because the latter can be replenished by the body. To treat human blood equally as the
human organs would constitute invalid classification. [48]
Petitioners likewise claim that the phase out of the commercial blood banks will
be disadvantageous to them as it will affect their businesses and existing contracts with
hospitals and other health institutions, hence Section 7 of the Act should be struck
down because it violates the non-impairment clause provided by the Constitution.
As stated above, the State, in order to promote the general welfare, may interfere
with personal liberty, with property, and with business and occupations. Thus, persons
may be subjected to certain kinds of restraints and burdens in order to secure the
general welfare of the State and to this fundamental aim of government, the rights of
the individual may be subordinated.[49]

Moreover, in the case of Philippine Association of Service Exporters, Inc. v. Drilon,[50] settled
is the rule that the non-impairment clause of the Constitution must yield to the loftier
purposes targeted by the government. The right granted by this provision must submit
to the demands and necessities of the States power of regulation. While the Court
understands the grave implications of Section 7 of the law in question, the concern of
the Government in this case, however, is not necessarily to maintain profits of business
firms. In the ordinary sequence of events, it is profits that suffer as a result of
government regulation.
Furthermore, the freedom to contract is not absolute; all contracts and all rights
are subject to the police power of the State and not only may regulations which affect
them be established by the State, but all such regulations must be subject to change
from time to time, as the general well-being of the community may require, or as the
circumstances may change, or as experience may demonstrate the necessity. [51] This
doctrine was reiterated in the case of Vda. de Genuino v. Court of Agrarian
Relations[52] where the Court held that individual rights to contract and to property have
to give way to police power exercised for public welfare.
As for determining whether or not the shutdown of commercial blood banks will truly
serve the general public considering the shortage of blood supply in the country as
proffered by petitioners, we maintain that the wisdom of the Legislature in the lawful
exercise of its power to enact laws cannot be inquired into by the Court. Doing so
would be in derogation of the principle of separation of powers.[53]

That, under the circumstances, proper regulation of all blood banks without distinction
in order to achieve the objective of the law as contended by petitioners is, of course,
possible; but, this would be arguing on what the law may be or should be and not what
the law is. Between is and ought there is a far cry. The wisdom and propriety of
legislation is not for this Court to pass upon.[54]

Finally, with regard to the petition for contempt in G.R. No. 139147, on the other hand,
the Court finds respondent Secretary of Healths explanation satisfactory. The
statements in the flyers and posters were not aimed at influencing or threatening the
Court in deciding in favor of the constitutionality of the law.

Contempt of court presupposes a contumacious attitude, a flouting or arrogant

belligerence in defiance of the court.[55] There is nothing contemptuous about the
statements and information contained in the health advisory that were distributed by
DOH before the TRO was issued by this Court ordering the former to cease and desist
from distributing the same.

In sum, the Court has been unable to find any constitutional infirmity in the
questioned provisions of the National Blood Services Act of 1994 and its Implementing
Rules and Regulations.
The fundamental criterion is that all reasonable doubts should be resolved in
favor of the constitutionality of a statute. Every law has in its favor the presumption of
constitutionality. For a law to be nullified, it must be shown that there is a clear and
unequivocal breach of the Constitution. The ground for nullity must be clear and
beyond reasonable doubt.[56] Those who petition this Court to declare a law, or parts
thereof, unconstitutional must clearly establish the basis therefor. Otherwise, the
petition must fail.

Based on the grounds raised by petitioners to challenge the constitutionality of

the National Blood Services Act of 1994 and its Implementing Rules and Regulations,
the Court finds that petitioners have failed to overcome the presumption of
constitutionality of the law. As to whether the Act constitutes a wise legislation,
considering the issues being raised by petitioners, is for Congress to determine.[57]

WHEREFORE, premises considered, the Court renders judgment as follows:

1. In G.R. Nos. 133640 and 133661, the Court UPHOLDS

THE VALIDITY of Section 7 of Republic Act No. 7719, otherwise known
as the National Blood Services Act of 1994, and Administrative Order No.
9, Series of 1995 or the Rules and Regulations Implementing Republic Act
No. 7719. The petitions are DISMISSED. Consequently, the Temporary
Restraining Order issued by this Court on June 2, 1998, is LIFTED.

2. In G.R. No. 139147, the petition seeking to cite the

Secretary of Health in contempt of court is DENIED for lack of merit.
 No costs.

SO ORDERED.

ADOLFO S. AZCUNA
Associate Justice

WE CONCUR:

HILARIO G. DAVIDE JR.

Chief Justice

REYNATO S. PUNO ARTEMIO V. PANGANIBAN

Associate Justice Associate Justice

LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO

Associate Justice Associate Justice

ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA

Associate Justice Associate Justice

CONCHITA CARPIO MORALES ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice
 (On Leave)
DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice

CANCIO C. GARCIA
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the cases were
assigned to the writer of the opinion of the Court.

HILARIO G. DAVIDE, JR. Chief Justice

HILARIO G. DAVIDE JR.
Chief Justice

* On Leave.
[1] Petition for Certiorari with Prayer for the Issuance of Writ of Preliminary Prohibitory
Injunction or Temporary Restraining Order, dated May 20, 1998, and later an
Amended Petition, dated June 1, 1998 under Rule 65 of the Rules of Court.
[2] Petition for Mandamus with Prayer for the Issuance of Temporary Restraining Order,

Preliminary Prohibitory and Mandatory Injunction, dated May 22, 1998.

[3] Rollo (G.R. No. 133640), p. 106; Rollo (G.R. No. 133661), p. 69.
[4] Petition, dated July 15, 1999.
[5] Rollo (G.R. No. 139147), p. 34.
[6] Rollo (G.R. No. 133640), pp. 7-8.
[7] Annex G of Petition, Rollo (G.R. No. 133640), p. 79.
[8] Annex H of Petition, Rollo (G.R. No. 133640), p. 86.
[9] Rollo (G.R. No. 133640), pp. 42-43.
[10] Id. at 46-47.
[11] Id. at 43.
[12] Rollo (G.R. No. 133661), p. 99.
[13] Id. at 100.
[14] Id. at 49-51.
[15] Rollo (G.R. No. 133640), p. 59.
[16] Id.
[17] Id.
[18] Rollo (G.R. No. 133640), p. 112.
[19] Rollo (G.R. No. 133640), p. 120.
[20] Rollo (G.R. No.133661), p. 3
[21] Rollo (G.R. No. 133640), p. 106.
[22] Rollo (G.R. No.133661), pp. 7-8.
[23] Rollo (G.R. No. 133640), pp. 107-108.
[24] Rollo (G.R. No. 133661), p. 98.
[25] Record of the Senate, Vol. IV, No. 59, pp. 286-287; rollo (G.R. No 133661), pp.115-120.
[26] Record of the Senate, Volume 1, No. 13, pp. 434-436; rollo (G.R. No. 133661), pp. 121-

123.
[27] Rollo (G.R. No. 133640), pp. 227-232.
[28] Id. at pp. 406-408.
[29] Rollo (G.R. No. 139147), p. 9.
[30] Rollo (G.R. No. 139147), pp. 5-6; Annexes A to C-3, pp. 14-33.
[31] Rollo (G.R. No. 139147), p. 6.
[32] Id. at 49-50.
[33] Id. at 50.
[34] Id. at 50-51.
[35] Id. at 435-495.
[36] Rollo (G.R. No. 133640), pp. 467-468.
[37] Rollo (G.R. No. 133640), pp. 685-686.
[38] See United States v. Ang Tang Ho, 43 Phil. 1 (1922).
[39] People v. Vera, 65 Phil 56 (1937).
[40] Vda. de Pineda v. Pea, G.R. No. 57665, July 2, 1990, 187 SCRA 22.
[41] Id. citing Cincinnati, W. & Z.R. Co. v. Clinton County Comrs, 1 Ohio St., 77, 88

(1852).; Cruz v. Youngberg, 56 Phil. 234 (1931).

[42] Rollo (G.R. No. 133640), p. 120; Rollo (G.R. No.133661), p. 105.
[43] People v. Vera, supra.
[44] A Final Report on the Project to Evaluate the Safety of the Philippine Blood Banking

System conducted on September 28, 1993 January 15, 1994, Rollo (G.R. No.
133640), Annex A, p. 41.
[45] Rollo (G.R. No.133661), pp. 115-124.
[46] Department of Education, Culture and Sports (DECS) and Director of Center for

Educational Measurement v. Roberto Rey C. San Diego and Judge Teresita Dizon-
Capulong, G.R. No. 89572, December 21, 1989, 180 SCRA 533.
[47] Pita v. Court of Appeals, G.R. No. 80806, October 5, 1989, 178 SCRA 362.
[48] Rollo (G.R. No.133661), p. 12.
[49] Patalinghug v. Court of Appeals, G.R. No. 104786, January 27, 1994, 229 SCRA 554.
[50] No. L-81958, June 30, 1988, 163 SCRA 386.
[51] Ongsiako v. Gamboa, 86 Phil. 50 (1950).
[52] No. L-25035, February 26, 1968, 22 SCRA 792.
[53] Misolas v. Panga, G.R. No. 83341, January 30, 1990, 181 SCRA 648.
[54] People v. Vera, supra.
[55] People v. Maceda, G.R. Nos. 89591-96, August 13, 1990, 188 SCRA 532.
[56] Basco v. Philippine Amusements and Gaming Corporation (PAGCOR), G.R. No. 91649,

May 14, 1991, 197 SCRA 52, citing Peralta v. Comelec, 82 SCRA 30.; Yu Cong Eng v.
Trinidad, 47 Phil 387.
[57] Basco v. PAGCOR, supra.
Facts: In January of 1994, the New Tropical Medicine Foundation, with the assistance
of the U.S. Agency for International Development (USAID) released its final report of a
study on the Philippine blood banking system entitled “Project to Evaluate the Safety of
the Philippine Blood Banking System.” It was revealed that of the blood units collected
in 1992, 64.4 % were supplied by commercial blood banks, 14.5% by the PNRC, 13.7%
by government hospital-based blood banks, and 7.4% by private hospital-based blood
banks ; showing that the Philippines heavily relied on commercial sources of blood. It
was further found, among other things, that blood sold by persons to blood commercial
banks are three times more likely to have any of the four (4) tested infections or blood
transfusion transmissible diseases, namely, malaria, syphilis, Hepatitis B and Acquired
Immune Deficiency Syndrome (AIDS) than those donated to PNRC.
Republic Act No. 7719 or the National Blood Services Act of 1994 was then enacted
into law on April 2, 1994. The Act seeks to provide an adequate supply of safe blood by
promoting voluntary blood donation and by regulating blood banks in the country. One
of the provisions of the said act was the phasing out of commercial blood banks within 2
years from its effectivity.

Petitioners, comprising the majority of the Board of Directors of the Philippine

Association of Blood Banks assail the constitutionality of RA 7719 on the ground among
others that it is an improper and unwarranted delegation of legislative power. According
to petitioners, the Act was incomplete when it was passed by the Legislature, and the
latter failed to fix a standard to which the Secretary of Health must conform in the
performance of his functions. Petitioners also contend that the two-year extension
period that may be granted by the Secretary of Health for the phasing out of commercial
blood banks pursuant to Section 7 of the Act constrained the Secretary to legislate, thus
constituting undue delegation of legislative power.

Issue: WHETHER OR NOT SECTION 7 OF R.A. 7719 CONSTITUTES UNDUE

DELEGATION OF LEGISLATIVE POWER

Held: In testing whether a statute constitutes an undue delegation of legislative power or

not, it is usual to inquire whether the statute was complete in all its terms and provisions
when it left the hands of the Legislature so that nothing was left to the judgment of the
administrative body or any other appointee or delegate of the Legislature. Except as to
matters of detail that may be left to be filled in by rules and regulations to be adopted or
promulgated by executive officers and administrative boards, an act of the Legislature,
as a general rule, is incomplete and hence invalid if it does not lay down any rule or
definite standard by which the administrative board may be guided in the exercise of the
discretionary powers delegated to it.

Republic Act No. 7719 or the National Blood Services Act of 1994 is complete in itself. It
is clear from the provisions of the Act that the Legislature intended primarily to
safeguard the health of the people and has mandated several measures to attain this
objective. One of these is the phase out of commercial blood banks in the country. The
law has sufficiently provided a definite standard for the guidance of the Secretary of
Health in carrying out its provisions, that is, the promotion of public health by providing a
safe and adequate supply of blood through voluntary blood donation. By its provisions, it
has conferred the power and authority to the Secretary of Health as to its execution, to
be exercised under and in pursuance of the law.
The Secretary of Health has been given, under Republic Act No. 7719, broad powers to
execute the provisions of said Act. Specifically, Section 23 of Administrative Order No. 9
provides that the phase-out period for commercial blood banks shall be extended for
another two years until May 28, 1998 “based on the result of a careful study and review
of the blood supply and demand and public safety.” This power to ascertain the
existence of facts and conditions upon which the Secretary may effect a period of
extension for said phase-out can be delegated by Congress. The true distinction
between the power to make laws and discretion as to its execution is illustrated by the
fact that the delegation of power to make the law, which necessarily involves a
discretion as to what it shall be, and conferring an authority or discretion as to its
execution, to be exercised under and in pursuance of the law. The first cannot be done;
to the latter no valid objection can be made.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 74457 March 20, 1987
RESTITUTO YNOT, petitioner,
vs.
INTERMEDIATE APPELLATE COURT, THE STATION COMMANDER, INTEGRATED
NATIONAL POLICE, BAROTAC NUEVO, ILOILO and THE REGIONAL DIRECTOR,
BUREAU OF ANIMAL INDUSTRY, REGION IV, ILOILO CITY, respondents.
Ramon A. Gonzales for petitioner.

DECISION

CRUZ, J.:
The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades
“Strike — but hear me first!” It is this cry that the petitioner in effect repeats here as he
challenges the constitutionality of Executive Order No. 626-A.
The said executive order reads in full as follows:
WHEREAS, the President has given orders prohibiting the interprovincial movement of
carabaos and the slaughtering of carabaos not complying with the requirements of
Executive Order No. 626 particularly with respect to age;
WHEREAS, it has been observed that despite such orders the violators still manage to
circumvent the prohibition against inter-provincial movement of carabaos by
transporting carabeef instead; and
WHEREAS, in order to achieve the purposes and objectives of Executive Order No. 626
and the prohibition against interprovincial movement of carabaos, it is necessary to
strengthen the said Executive Order and provide for the disposition of the carabaos and
carabeef subject of the violation;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by
virtue of the powers vested in me by the Constitution, do hereby promulgate the
following:
SECTION 1. Executive Order No. 626 is hereby amended such that henceforth, no
carabao regardless of age, sex, physical condition or purpose and no carabeef shall be
transported from one province to another. The carabao or carabeef transported in
violation of this Executive Order as amended shall be subject to confiscation and
forfeiture by the government, to be distributed to charitable institutions and other similar
institutions as the Chairman of the National Meat Inspection Commission may ay see fit,
in the case of carabeef, and to deserving farmers through dispersal as the Director of
Animal Industry may see fit, in the case of carabaos.
SECTION 2. This Executive Order shall take effect immediately.
Done in the City of Manila, this 25th day of October, in the year of Our Lord, nineteen
hundred and eighty.
(SGD.) FERDINAND E. MARCOS
President
Republic of the Philippines
The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on
January 13, 1984, when they were confiscated by the police station commander of
Barotac Nuevo, Iloilo, for violation of the above measure. 1 The petitioner sued for
recovery, and the Regional Trial Court of Iloilo City issued a writ of replevin upon his
filing of a supersedeas bond of P12,000.00. After considering the merits of the case, the
court sustained the confiscation of the carabaos and, since they could no longer be
produced, ordered the confiscation of the bond. The court also declined to rule on the
constitutionality of the executive order, as raise by the petitioner, for lack of authority
and also for its presumed validity. 2
The petitioner appealed the decision to the Intermediate Appellate Court,* 3 which
upheld the trial court, ** and he has now come before us in this petition for review
on certiorari.
The thrust of his petition is that the executive order is unconstitutional insofar as it
authorizes outright confiscation of the carabao or carabeef being transported across
provincial boundaries. His claim is that the penalty is invalid because it is imposed
without according the owner a right to be heard before a competent and impartial court
as guaranteed by due process. He complains that the measure should not have been
presumed, and so sustained, as constitutional. There is also a challenge to the improper
exercise of the legislative power by the former President under Amendment No. 6 of the
1973 Constitution. 4
While also involving the same executive order, the case of Pesigan v. Angeles 5 is not
applicable here. The question raised there was the necessity of the previous publication
of the measure in the Official Gazette before it could be considered enforceable. We
imposed the requirement then on the basis of due process of law. In doing so, however,
this Court did not, as contended by the Solicitor General, impliedly affirm the
constitutionality of Executive Order No. 626-A. That is an entirely different matter.
This Court has declared that while lower courts should observe a becoming modesty in
examining constitutional questions, they are nonetheless not prevented from resolving
the same whenever warranted, subject only to review by the highest tribunal. 6We have
jurisdiction under the Constitution to “review, revise, reverse, modify or affirm on appeal
or certiorari, as the law or rules of court may provide,” final judgments and orders of
lower courts in, among others, all cases involving the constitutionality of certain
measures. 7 This simply means that the resolution of such cases may be made in the
first instance by these lower courts.
And while it is true that laws are presumed to be constitutional, that presumption is not
by any means conclusive and in fact may be rebutted. Indeed, if there be a clear
showing of their invalidity, and of the need to declare them so, then “will be the time to
make the hammer fall, and heavily,” 8 to recall Justice Laurel’s trenchant warning.
Stated otherwise, courts should not follow the path of least resistance by simply
presuming the constitutionality of a law when it is questioned. On the contrary, they
should probe the issue more deeply, to relieve the abscess, paraphrasing another
distinguished jurist, 9 and so heal the wound or excise the affliction.
Judicial power authorizes this; and when the exercise is demanded, there should be no
shirking of the task for fear of retaliation, or loss of favor, or popular censure, or any
other similar inhibition unworthy of the bench, especially this Court.
The challenged measure is denominated an executive order but it is really presidential
decree, promulgating a new rule instead of merely implementing an existing law. It was
issued by President Marcos not for the purpose of taking care that the laws were
faithfully executed but in the exercise of his legislative authority under Amendment No.
6. It was provided thereunder that whenever in his judgment there existed a grave
emergency or a threat or imminence thereof or whenever the legislature failed or was
unable to act adequately on any matter that in his judgment required immediate action,
he could, in order to meet the exigency, issue decrees, orders or letters of instruction
that were to have the force and effect of law. As there is no showing of any exigency to
justify the exercise of that extraordinary power then, the petitioner has reason, indeed,
to question the validity of the executive order. Nevertheless, since the determination of
the grounds was supposed to have been made by the President “in his judgment, ” a
phrase that will lead to protracted discussion not really necessary at this time, we
reserve resolution of this matter until a more appropriate occasion. For the nonce, we
confine ourselves to the more fundamental question of due process.
It is part of the art of constitution-making that the provisions of the charter be cast in
precise and unmistakable language to avoid controversies that might arise on their
correct interpretation. That is the Ideal. In the case of the due process clause, however,
this rule was deliberately not followed and the wording was purposely kept ambiguous.
In fact, a proposal to delineate it more clearly was submitted in the Constitutional
Convention of 1934, but it was rejected by Delegate Jose P. Laurel, Chairman of the
Committee on the Bill of Rights, who forcefully argued against it. He was sustained by
the body. 10
The due process clause was kept intentionally vague so it would remain also
conveniently resilient. This was felt necessary because due process is not, like some
provisions of the fundamental law, an “iron rule” laying down an implacable and
immutable command for all seasons and all persons. Flexibility must be the best virtue
of the guaranty. The very elasticity of the due process clause was meant to make it
adapt easily to every situation, enlarging or constricting its protection as the changing
times and circumstances may require.
Aware of this, the courts have also hesitated to adopt their own specific description of
due process lest they confine themselves in a legal straitjacket that will deprive them of
the elbow room they may need to vary the meaning of the clause whenever indicated.
Instead, they have preferred to leave the import of the protection open-ended, as it
were, to be “gradually ascertained by the process of inclusion and exclusion in the
course of the decision of cases as they arise.” 11 Thus, Justice Felix Frankfurter of the
U.S. Supreme Court, for example, would go no farther than to define due process —
and in so doing sums it all up — as nothing more and nothing less than “the
embodiment of the sporting Idea of fair play.” 12
When the barons of England extracted from their sovereign liege the reluctant promise
that that Crown would thenceforth not proceed against the life liberty or property of any
of its subjects except by the lawful judgment of his peers or the law of the land, they
thereby won for themselves and their progeny that splendid guaranty of fairness that is
now the hallmark of the free society. The solemn vow that King John made at
Runnymede in 1215 has since then resounded through the ages, as a ringing reminder
to all rulers, benevolent or base, that every person, when confronted by the stern visage
of the law, is entitled to have his say in a fair and open hearing of his cause.
The closed mind has no place in the open society. It is part of the sporting Idea of fair
play to hear “the other side” before an opinion is formed or a decision is made by those
who sit in judgment. Obviously, one side is only one-half of the question; the other half
must also be considered if an impartial verdict is to be reached based on an informed
appreciation of the issues in contention. It is indispensable that the two sides
complement each other, as unto the bow the arrow, in leading to the correct ruling after
examination of the problem not from one or the other perspective only but in its totality.
A judgment based on less that this full appraisal, on the pretext that a hearing is
unnecessary or useless, is tainted with the vice of bias or intolerance or ignorance, or
worst of all, in repressive regimes, the insolence of power.
The minimum requirements of due process are notice and hearing 13 which, generally
speaking, may not be dispensed with because they are intended as a safeguard against
official arbitrariness. It is a gratifying commentary on our judicial system that the
jurisprudence of this country is rich with applications of this guaranty as proof of our
fealty to the rule of law and the ancient rudiments of fair play. We have consistently
declared that every person, faced by the awesome power of the State, is entitled to “the
law of the land,” which Daniel Webster described almost two hundred years ago in the
famous Dartmouth College Case, 14 as “the law which hears before it condemns, which
proceeds upon inquiry and renders judgment only after trial.” It has to be so if the rights
of every person are to be secured beyond the reach of officials who, out of mistaken
zeal or plain arrogance, would degrade the due process clause into a worn and empty
catchword.
This is not to say that notice and hearing are imperative in every case for, to be sure,
there are a number of admitted exceptions. The conclusive presumption, for example,
bars the admission of contrary evidence as long as such presumption is based on
human experience or there is a rational connection between the fact proved and the fact
ultimately presumed therefrom. 15 There are instances when the need for expeditions
action will justify omission of these requisites, as in the summary abatement of a
nuisance per se, like a mad dog on the loose, which may be killed on sight because of
the immediate danger it poses to the safety and lives of the people. Pornographic
materials, contaminated meat and narcotic drugs are inherently pernicious and may be
summarily destroyed. The passport of a person sought for a criminal offense may be
cancelled without hearing, to compel his return to the country he has fled. 16 Filthy
restaurants may be summarily padlocked in the interest of the public health and bawdy
houses to protect the public morals. 17 In such instances, previous judicial hearing may
be omitted without violation of due process in view of the nature of the property involved
or the urgency of the need to protect the general welfare from a clear and present
danger.
The protection of the general welfare is the particular function of the police power which
both restraints and is restrained by due process. The police power is simply defined as
the power inherent in the State to regulate liberty and property for the promotion of the
general welfare. 18 By reason of its function, it extends to all the great public needs and
is described as the most pervasive, the least limitable and the most demanding of the
three inherent powers of the State, far outpacing taxation and eminent domain. The
individual, as a member of society, is hemmed in by the police power, which affects him
even before he is born and follows him still after he is dead — from the womb to beyond
the tomb — in practically everything he does or owns. Its reach is virtually limitless. It is
a ubiquitous and often unwelcome intrusion. Even so, as long as the activity or the
property has some relevance to the public welfare, its regulation under the police power
is not only proper but necessary. And the justification is found in the venerable Latin
maxims, Salus populi est suprema lex and Sic utere tuo ut alienum non laedas, which
call for the subordination of individual interests to the benefit of the greater number.
It is this power that is now invoked by the government to justify Executive Order No.
626-A, amending the basic rule in Executive Order No. 626, prohibiting the slaughter of
carabaos except under certain conditions. The original measure was issued for the
reason, as expressed in one of its Whereases, that “present conditions demand that the
carabaos and the buffaloes be conserved for the benefit of the small farmers who rely
on them for energy needs.” We affirm at the outset the need for such a measure. In the
face of the worsening energy crisis and the increased dependence of our farms on
these traditional beasts of burden, the government would have been remiss, indeed, if it
had not taken steps to protect and preserve them.
A similar prohibition was challenged in United States v. Toribio, 19 where a law
regulating the registration, branding and slaughter of large cattle was claimed to be a
deprivation of property without due process of law. The defendant had been convicted
thereunder for having slaughtered his own carabao without the required permit, and he
appealed to the Supreme Court. The conviction was affirmed. The law was sustained as
a valid police measure to prevent the indiscriminate killing of carabaos, which were then
badly needed by farmers. An epidemic had stricken many of these animals and the
reduction of their number had resulted in an acute decline in agricultural output, which in
turn had caused an incipient famine. Furthermore, because of the scarcity of the
animals and the consequent increase in their price, cattle-rustling had spread
alarmingly, necessitating more effective measures for the registration and branding of
these animals. The Court held that the questioned statute was a valid exercise of the
police power and declared in part as follows:
To justify the State in thus interposing its authority in behalf of the public, it must appear,
first, that the interests of the public generally, as distinguished from those of a particular
class, require such interference; and second, that the means are reasonably necessary
for the accomplishment of the purpose, and not unduly oppressive upon individuals. …
From what has been said, we think it is clear that the enactment of the provisions of the
statute under consideration was required by “the interests of the public generally, as
distinguished from those of a particular class” and that the prohibition of the slaughter of
carabaos for human consumption, so long as these animals are fit for agricultural work
or draft purposes was a “reasonably necessary” limitation on private ownership, to
protect the community from the loss of the services of such animals by their slaughter
by improvident owners, tempted either by greed of momentary gain, or by a desire to
enjoy the luxury of animal food, even when by so doing the productive power of the
community may be measurably and dangerously affected.
In the light of the tests mentioned above, we hold with the Toribio Case that the
carabao, as the poor man’s tractor, so to speak, has a direct relevance to the public
welfare and so is a lawful subject of Executive Order No. 626. The method chosen in
the basic measure is also reasonably necessary for the purpose sought to be achieved
and not unduly oppressive upon individuals, again following the above-cited doctrine.
There is no doubt that by banning the slaughter of these animals except where they are
at least seven years old if male and eleven years old if female upon issuance of the
necessary permit, the executive order will be conserving those still fit for farm work or
breeding and preventing their improvident depletion.
But while conceding that the amendatory measure has the same lawful subject as the
original executive order, we cannot say with equal certainty that it complies with the
second requirement, viz., that there be a lawful method. We note that to strengthen the
original measure, Executive Order No. 626-A imposes an absolute ban not on
the slaughter of the carabaos but on their movement, providing that “no carabao
regardless of age, sex, physical condition or purpose (sic) and no carabeef shall be
transported from one province to another.” The object of the prohibition escapes us. The
reasonable connection between the means employed and the purpose sought to be
achieved by the questioned measure is missing
We do not see how the prohibition of the inter-provincial transport of carabaos can
prevent their indiscriminate slaughter, considering that they can be killed anywhere, with
no less difficulty in one province than in another. Obviously, retaining the carabaos in
one province will not prevent their slaughter there, any more than moving them to
another province will make it easier to kill them there. As for the carabeef, the
prohibition is made to apply to it as otherwise, so says executive order, it could be easily
circumvented by simply killing the animal. Perhaps so. However, if the movement of the
live animals for the purpose of preventing their slaughter cannot be prohibited, it should
follow that there is no reason either to prohibit their transfer as, not to be flippant dead
meat.
Even if a reasonable relation between the means and the end were to be assumed, we
would still have to reckon with the sanction that the measure applies for violation of the
prohibition. The penalty is outright confiscation of the carabao or carabeef being
transported, to be meted out by the executive authorities, usually the police only. In the
Toribio Case, the statute was sustained because the penalty prescribed was fine and
imprisonment, to be imposed by the court after trial and conviction of the accused.
Under the challenged measure, significantly, no such trial is prescribed, and the
property being transported is immediately impounded by the police and declared, by the
measure itself, as forfeited to the government.
In the instant case, the carabaos were arbitrarily confiscated by the police station
commander, were returned to the petitioner only after he had filed a complaint for
recovery and given a supersedeas bond of P12,000.00, which was ordered confiscated
upon his failure to produce the carabaos when ordered by the trial court. The executive
order defined the prohibition, convicted the petitioner and immediately imposed
punishment, which was carried out forthright. The measure struck at once and pounced
upon the petitioner without giving him a chance to be heard, thus denying him the
centuries-old guaranty of elementary fair play.
It has already been remarked that there are occasions when notice and hearing may be
validly dispensed with notwithstanding the usual requirement for these minimum
guarantees of due process. It is also conceded that summary action may be validly
taken in administrative proceedings as procedural due process is not necessarily
judicial only. 20 In the exceptional cases accepted, however. there is a justification for
the omission of the right to a previous hearing, to wit, the immediacy of the problem
sought to be corrected and the urgency of the need to correct it.
In the case before us, there was no such pressure of time or action calling for the
petitioner’s peremptory treatment. The properties involved were not even inimical per
se as to require their instant destruction. There certainly was no reason why the offense
prohibited by the executive order should not have been proved first in a court of justice,
with the accused being accorded all the rights safeguarded to him under the
Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No.
626-A is penal in nature, the violation thereof should have been pronounced not by the
police only but by a court of justice, which alone would have had the authority to impose
the prescribed penalty, and only after trial and conviction of the accused.
We also mark, on top of all this, the questionable manner of the disposition of the
confiscated property as prescribed in the questioned executive order. It is there
authorized that the seized property shall “be distributed to charitable institutions and
other similar institutions as the Chairman of the National Meat Inspection
Commission may see fit, in the case of carabeef, and to deserving farmers through
dispersal as the Director of Animal Industry may see fit, in the case of carabaos.”
(Emphasis supplied.) The phrase “may see fit” is an extremely generous and dangerous
condition, if condition it is. It is laden with perilous opportunities for partiality and abuse,
and even corruption. One searches in vain for the usual standard and the reasonable
guidelines, or better still, the limitations that the said officers must observe when they
make their distribution. There is none. Their options are apparently boundless. Who
shall be the fortunate beneficiaries of their generosity and by what criteria shall they be
chosen? Only the officers named can supply the answer, they and they alone may
choose the grantee as they see fit, and in their own exclusive discretion. Definitely,
there is here a “roving commission,” a wide and sweeping authority that is not
“canalized within banks that keep it from overflowing,” in short, a clearly profligate and
therefore invalid delegation of legislative powers.
To sum up then, we find that the challenged measure is an invalid exercise of the police
power because the method employed to conserve the carabaos is not reasonably
necessary to the purpose of the law and, worse, is unduly oppressive. Due process is
violated because the owner of the property confiscated is denied the right to be heard in
his defense and is immediately condemned and punished. The conferment on the
administrative authorities of the power to adjudge the guilt of the supposed offender is a
clear encroachment on judicial functions and militates against the doctrine of separation
of powers. There is, finally, also an invalid delegation of legislative powers to the officers
mentioned therein who are granted unlimited discretion in the distribution of the
properties arbitrarily taken. For these reasons, we hereby declare Executive Order No.
626-A unconstitutional.
We agree with the respondent court, however, that the police station commander who
confiscated the petitioner’s carabaos is not liable in damages for enforcing the executive
order in accordance with its mandate. The law was at that time presumptively valid, and
it was his obligation, as a member of the police, to enforce it. It would have been
impertinent of him, being a mere subordinate of the President, to declare the executive
order unconstitutional and, on his own responsibility alone, refuse to execute it. Even
the trial court, in fact, and the Court of Appeals itself did not feel they had the
competence, for all their superior authority, to question the order we now annul.
The Court notes that if the petitioner had not seen fit to assert and protect his rights as
he saw them, this case would never have reached us and the taking of his property
under the challenged measure would have become a fait accompli despite its invalidity.
We commend him for his spirit. Without the present challenge, the matter would have
ended in that pump boat in Masbate and another violation of the Constitution, for all its
obviousness, would have been perpetrated, allowed without protest, and soon forgotten
in the limbo of relinquished rights.
The strength of democracy lies not in the rights it guarantees but in the courage of the
people to invoke them whenever they are ignored or violated. Rights are but weapons
on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as
weapons, must be a promise of protection. They become truly meaningful, and fulfill the
role assigned to them in the free society, if they are kept bright and sharp with use by
those who are not afraid to assert them.
WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except
as affirmed above, the decision of the Court of Appeals is reversed.
The supersedeas bond is cancelled and the amount thereof is ordered restored to the
petitioner. No costs.
SO ORDERED.
Teehankee, C.J., Yap, Fernan, Narvasa, Gutierrez, Jr., Paras, Gancayco, Padilla Bidin
Sarmiento and Cortes, JJ., concur.
Melencio-Herrera and Feliciano, JJ., are on leave.
READ CASE DIGEST HERE.
Footnotes
1 Rollo, pp. 7, 28, 29, 34.
2 Ibid, pp. 6-7; Annex B.
* Justices Coquia, Bartolome and Ejercito.
3 Rollo, pp. 6, 27, 33.
** Judge Bethel Katalbas-Moscardon.
4 Ibid., pp. 10; 11, 14-16, 76.
5 129 SCRA 174.
6 Espiritu vs. Fugoso, 81 Phil. 637.
7 Sec. 5[2(a)], Art. X, 1973 Constitution; Sec. 5[2(a)], Art.VIII, 1987 Constitution.
8 J. Laurel, concurring opinion, Zandueta v. dela Costa, 66 Phil. 615, 627.
9 US v. Bustos, 37 Phil. 731.
10 I Aruego, The Framing of the Constitution (1936), pp. 153-159.
11 Twinning vs. New Jersey, 211 U.S. 78.
12 Frankfurter, Mr. Justice Holmes and the Supreme Court, pp. 32-33.
13 David vs. Aquilizan, 94 SCRA 707; Montemayor vs. Araneta Univ. Foundation, 77
SCRA 321; Lentelera vs. Amores, 70 SCRA 37; Flores vs. Buencamino, 74 SCRA 332;
DBP vs. Bautista, 26 SCRA 366; Ong Su Han vs. Gutierrez David, 76 Phil. 546; Banco-
Espanol Filipino vs. Palanca, 37 Phil. 921.
14 Dartmouth College vs. Woodward, 4 Wheaton 518.
15 Manley v. Georgia, 279 U.S. 1; 1 Cooley 639.
16 Suntay vs. People, 101 Phil. 833.
17 12 C.J. 1224.
18 People v. Vera Reyes, 67 Phil. 190; Ermita-Malate Hotel & Motel Operators Ass. v.
City Mayor, 20 SCRA 849; Primicias v. Fugoso 80 Phil. 75; U.S. v. Ling Su Tan, 10 Phil.
114; Collins v. Wolfe 5 Phil. 297; U.S. v. Gomez Jesus, 31 Phil. 225; Churchill v.
Rafferty 32 Phil. 603.
19 15 Phil. 85.
20 New Filipino Maritime Agencies, Inc. vs. Rivera, 83 SCRA 602; Gas Corp. of the
Phil. vs. Inciong 93 SCRA 653.
21 supra.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 67125 August 24 1990

PHILIPPINE VETERANS BANK EMPLOYEES UNION-NUBE, DOMINGO C. LOPEZ,

HERMAN B. PASILIAO FELIZARDO B. SARAPAT, LADY LYDIA B. CORNISTA,
ELIZABETH S. KARASIG, EDUARDO C. NIEVERA, NORMAN T. BAYODA, REGINO
V. TAGUIAM, ROMULO G. GARCIA, MANUEL A. LAMAN, EDUARDO SJ.
BELMONTE, HERNANI B. LIWANAG, EDUARDO P. CRUZ, DANILO N. MENDOZA,
ELSA J. SILVERIO, REGINO V. TAGUIAM, JR., ALBERT G. MALAPIT, MANUEL B.
GARCIA, and the Bank Employees listed in Annex "A" of this Petition, petitioners,
vs.
THE PHILIPPINE VETERANS BANK Now renamed PHILIPPINE MILITARY AND
VETERANS BANK, GENERAL FABIAN VER in his capacity as Chairman of the
Board of Directors of the Philippine Veterans Bank, and of the Board of Trustees
of the Armed Forces of the Philippines Retirement and Separation Benefits
System, and RAFAEL ARNALDO in his capacity as President of the Philippine
Veterans Bank, respondents.

G.R. No. 82337 August 24,1990

SIMEON C. MEDALLA, GREGORIO VENTURANZA, JOSE P. JUANILLO, RAMON P.

MIRANDA, ENRIQUE H.R. ABILA, PEDRO ACIERTO, SILVINO AGUDO, SANTIAGO
FERNANDEZ, JUAN P. ROSETE, MAXIMO G. AQUINO, GREGORIO C. DARROLES,
ISMAEL T. ESPIRITU, ERNESTO Y. GUEVARRA, MARIANO F. INFANTE,
VENERANDO E. MANZO, VICENTE G. VILLADOLID, GUILLERMO A. CRUZ, JORGE
MARIANO, PASCUAL SARMIENTO, RAMON P. MENDOZA, PEDRO GABRIEL,
ANTONIO A. LIM, MIGUEL T. MARCOS, TOMAS T. NUFABLE, MARIANO ORTIZ,
DOMINGO C. OCTAVO, MANUEL R. RAMOS, LEONCIO MANALO, DAYAN S.
MAMACO, CORNELIO D. CAUNAR, MAURO DE LA CRUZ, FIDEL T. VIZMANOS,
FELIPE L. VICENCIO, DAMIAN S. VITO CRUZ, JUAN LOMBREDAS, MARINA
BAUTISTA, SEGUNDO M. ROSALES, CECLONDO CIEGO, CECILIO MIRANDA,
FERNANDO APOSTOL, ANICETO R. NARCA, CARLOS B. LASMARIAS, RICARTE
G. REYES, P.D. DELLOSON, LORETO BANTONIO ERNESTO D. LLAGUNO,
CONSTANCIO SEBASTIAN, ELEUTERIO R. VALENZUELA, ISIDRO A. BATHAN,
LEON G. NOLLIDO, in representation of the remainder of the 510,000 veterans or
their heirs, as defined in R.A. 3518, and the PHILIPPINE VETERANS BANK,
petitioners,
vs.
CENTRAL BANK OF THE PHILIPPINES, LIQUIDATOR OF THE PHILIPPINE
VETERANS BANK, THE LIQUIDATION COURT (RTC, BRANCH 39, MANILA),
SECRETARY OF THE BUDGET and THE NATIONAL TREASURER, respondents.

CRUZ, J.:

The Philippine Veterans Bank was created in 1963 with the hope that it would
ensure the economic future and perhaps even prosperity of the hundreds of
thousands of war veterans who were to be its stockholders. For a while the vision
grew, but in time it dimmed and finally faded as the Bank found itself enmeshed
in financial difficulties that threatened its very survival. Now the dream is in
tatters. Efforts are at present being taken to piece together its severed sinews but
it is doubtful if the Bank will ever be whole again.

The trouble began when on April 10, 1983, the Bank was placed under
receivership by virtue of Resolution No. 334 of the Monetary Board of the Central
Bank. The reason was the precarious condition of the Bank. A year later, on April
26, 1984, the Philippine Veterans Bank Employees Union questioned the
retrenchment and reorganization program of the Bank and, on the ground of
security of tenure, prayed that the said program be prohibited. In its petition,
which was docketed as G.R. No. 67125, the Union also asked for a temporary
restraining order, which was issued on May 9, 1984. Subsequently, while the case
was pending, the Monetary Board ordered the liquidation of the Bank by
Resolution No. 612 dated June 7, 1985, after finding that the Bank had incurred an
outstanding liability of P540,835,860.79. This order was opposed by the Union in a
supplemental petition for prohibition with preliminary injunction filed on
September 25, 1985. On November 26,1985, the Veterans Federation of the
Philippines entered the picture and filed with leave of court a petition in
intervention which, besides echoing the original petition in opposing the
liquidation, asserted the additional claim that it was in the process of formulating
plans for the rehabilitation and eventual expansion of the Bank. This was followed
by an ancillary petition for the immediate payment of the wage or salary increase
ordered by the NLRC in its resolution dated September 17,1985. On March
26,1987, a writ of preliminary injunction was issued by this Court reading as
follows:

NOW THEREFORE, effective immediately and until further orders from this Court,
you (Respondent Central Bank of the Philippines, and PVB Liquidator), your
agents, representatives, and/or any person or persons acting upon your orders or
in your place or stead, are hereby ENJOINED from liquidating the Phil. Veterans
Bank and from taking or pursuing any act or transaction in pursuance of such
liquidation, including sales or other disposal of properties of whatever kind, or
disbursing PVB funds, except those incurred in the course of ordinary
administration of the affairs of the bank, including payment of accrued and
unpaid claims of PVB Employees under the 1982-1985 CBA, all of which should
be subject to the prior approval of the respondent liquidation court.

On March 18,1988, an original petition for restitution and for extraordinary and
equitable writs was filed by Simeon Medalla et al. in their own right and "on behalf
of the remaining 510,000 World War II veterans or their heirs." It sought inter
alia a judicial declaration that the petitioners were entitled to the ownership,
possession and control of the Bank and an order restraining the Central Bank
from disposing of the assets of the Bank or making any disbursements therefrom
except for ordinary administrative expenses and for the payment of accrued
wages and other benefits of personnel as approved by the liquidator court. This
petition was docketed as G.R. No. 82337 and consolidated with G.R. No. 67125.

Earlier, on June 11, 1987, then Judge Abelardo M. Dayrit of the Regional Trial
Court of Manila had ordered the payment of the claims of the employees
amounting to P37,920,310.82. This was followed on October 21, 1988, by another
order issued by the same court for the payment of retirement benefits to two
former board members of the Bank, namely, Agustin Marking and Jaime S. Mejia.
Upon the representations of the petitioners, however, we prevented enforcement
of this order with our temporary restraining order dated January 12, 1989.

On December 15, 1988, the writ of preliminary injunction dated March 26,1987,
was amended "to exclude from its coverage the sale or disposal by the Central
Bank or the Bank Liquidator of the acquired assets of the PVB." This was done in
response to petitions filed by several persons seeking to redeem or repurchase
the properties which had earlier been purchased by the Bank through foreclosure
sales.1

On August 25, 1989, another ancillary petition was filed for the immediate payment of
backwages of the Bank personnel on the regular payroll as of June 1985 equivalent to
five months' gross salary. On May 25, 1990, the City Government of Davao filed a
motion to lift the preliminary injunction dated March 26, 1987, with respect to its deposit
of P3,700,000, which it wanted to withdraw to finance several programs and projects.
And on June 11, 1990, Dolores V. Molina filed her own motion to withdraw her deposit
of P1,l00,000.00.

II

The Court has purposely delayed resolution of these cases in the hope that it would not
be necessary to do so in view of the efforts being taken by the Executive Department for
the rehabilitation of the Bank. The agency in charge of this matter is the Special
Presidential Committee on the Philippine Veterans Bank, which was created by Adm.
Order No. 29 dated July 10, 1987, and renewed by Adm. Order No. 62 dated February
23, 1988 and by Adm. Order No. 90 dated September 2, 1988, to study the financial
condition of the Bank and determine the feasibility of its rehabilitation. However,
although we may assume that the Committee has been assiduously pursuing its
objectives and while there are optimistic statements every now and then that the Bank
will be reopening soon, that prospect does not really seem to be in sight yet. We have
therefore decided to finally resolve these cases, applying a judicial solution which, when
all is said and done, will still be less acceptable than a practical administrative
settlement.
 III

The basic issue in these petitions is whether the Central Bank has the power to liquidate
the Philippine Veterans Bank.

The petitioners dispute this authority. In G.R. No. 67125, they claim that as the Bank
was created by a special law, a contractual relationship now exists between the
Government and the stockholders of the Bank that cannot be disturbed without violation
of the impairment clause. The acceptance of the benefits of that law by the petitioners
had conferred a vested right on them that cannot now be withdrawn without their
consent as this would constitute a deprivation of their property without due process of
law. Assuming that such benefits could be validly revoked, this cannot be done by the
Central Bank only but by the legislature itself which conferred the franchise on the Bank
in the first place. Moreover, the Central Bank cannot exercise any authority over the
Bank because the latter is itself also a government bank with the same status as the
Development Bank of the Philippines, the Land Bank of the Philippines, and the
Philippine National Bank. The Central Bank has no control over these government
lending institutions.

We sustain the position of the respondents that these arguments are not well-taken.

The mere fact that the Bank was created by special law does not confer upon it
extraordinary privileges over and above those granted similar charters like the
Development Bank of the Philippines and the Land Bank of the Philippines. As a lending
institution, it is part of the banking system and therefore covered by the regulatory
power exercised over such entities by the Central Bank. Such authority is expressly
provided for in the Central Bank Act, as follows:

Sec. 25. Creation of the appropriate departments. — In order to assure

the observance of this Act and of other pertinent laws, and of the rules and
regulations of the Monetary Board, the Central Bank shall have
appropriate supervising and examining departments which shall be
charged with the supervision and periodic or special examinations of
banking institutions operating in the Philippines, including all Government
credit institutions, including their subsidiaries and affiliates of non-bank
financial intermediaries, and subsidiaries and affiliates of non-bank
financial intermediaries performing quasi-banking functions: . . . The
supervising and/or examining departments shall discharge their
responsibilities in accordance with the instructions of the Monetary Board.

The department heads and the examiners of the supervising and/or

examining departments are hereby authorized to administer oaths to any
director, officer, or employee of any institution under their respective
supervision or subject to their examination and to compel the presentation
of all books, documents, papers or records necessary in their judgment to
ascertain the facts relative to the true condition of any institution as well as
the books and records of persons and entities relative to or in connection
with the operations, activities or transactions of the institution under
examination.

No restraining order or injunction shall be issued by the court enjoining the

Central Bank from examining any institution subject to supervision or
examination by the Central Bank, unless there is convincing proof that the
action of the Central Bank is plainly arbitrary and made in bad faith and
the petitioner or plaintiff files with the clerk or judge of the court in which
the action is pending a bond executed, in favor of the Central Bank, in an
amount to be fixed by the court. The restraining order or injunction shall be
refused or, if granted, shall be dissolved upon filing by the Central Bank of
a bond, which shall be in the form of cash or Central Bank cashier's check,
in an amount twice the amount of the bond of the petitioner or plaintiff
conditioned that it will pay the damages which the petitioner or plaintiff
may suffer by the refusal or the dissolution of the injunction. The
provisions of Rule 58 of the New Rules of Court insofar as they are
applicable and not inconsistent with the provisions of this Section shall
govern the issuance and dissolution of the restraining order or injunction
contemplated in this Section.

SEC. 25-A. — The department heads and the examiners of the

supervising and examining departments, in the conduct of the periodic or
special examination of banking institutions may be specifically authorized
by the Monetary Board to examine, inquire or look into all deposits of
whatever nature with banking institutions in the Philippines including
investments in debt instruments issued by the Government of the
Philippines, its political subdivisions and its instrumentalities, after being
satisfied that there is reasonable ground to believe that a bank fraud or
serious irregularity has been or is being committed and that it is necessary
to look into the deposit to establish such fraud or irregularity.

SEC. 28. Examination and fees. — It shall be the duty of the head of the
appropriate supervising and examining department, personally or by
deputy, at least once in every twelve months, and at such other times as
either he or the Monetary Board may deem expedient, to make an
examination of the books of every banking institution within the purview of
this Act and make a report on the same to the Monetary Board.

Every such institution shall afford to the head of the appropriate

supervising and examining departments and to his authorized deputies full
opportunity to examine its books, cash and available assets and general
condition at any time when requested so to do by the Central
Bank: Provided, however, That none of the reports and other papers
relative to such examinations shall be open to inspection by the public
except insofar as such publicity is incidental to the proceeding hereinafter
authorized or is necessary for the prosecution of violations n connection
with the business of such institutions. . . .

SEC. 28-A. Appointment of conservator. — Whenever, on the basis of a

report submitted by the appropriate supervising or examining department,
the Monetary Board finds that a bank or a non-bank financial intermediary
performing quasi-banking functions is in a state of continuing inability or
unwillingness to maintain a condition of liquidity deemed adequate to
protect the interest of depositors and creditors, the Monetary Board may
appoint a conservator to take charge of the assets, liabilities, and the
management of that institution, collect all monies and debts due said
institution and exercise all powers necessary to preserve the assets of the
institution, reorganize the management thereof, and restore its viability. He
shall have the power to overrule or revoke the actions of the previous
management and board of directors of the bank or non-bank financial
intermediary performing quasi-banking functions, any provision of law to
the contrary notwithstanding, and such other powers as the Monetary
Board shall deem necessary.

As much as practicable, the conservator should not be connected with the

Central Bank but should be competent and knowledgeable in bank
operations and management. . . . He shall report and be responsible to the
Monetary Board until such time as the Monetary Board is satisfied that the
institution can continue to operate on its own and the conservatorship is
no longer necessary. The conservatorship shall likewise be terminated
should the Monetary Board, on the basis of the report of the conservator
or of its own findings, determine that the continuance in business of the
institution would involve probable loss to its depositors or creditors, in
which case the provision of Section 29 shall apply.

SEC. 29. Proceedings upon insolvency. — Whenever, upon examination

by the head of the appropriate supervising or examining department or his
examiners or agents into the condition of any bank or non-bank financial
intermediary performing quasi-banking functions, it shall be disclosed that
the condition of the same is one of insolvency, or that its continuance in
business would involve probable loss to its depositors or creditors, it shall
be the duty of the department head concerned forthwith, in writing, to
inform the Monetary Board of the facts. The Board may, upon finding the
statements of the department head to be true, forbid the institution to do
business in the Philippines and designate an official of the Central Bank or
a person of recognized competence in banking or finance as receiver to
immediately take charge of its assets and liabilities, as expeditiously as
possible collect and gather all the assets and administer the same for the
benefit of its creditors, and represent the bank personally or through
counsel as he may retain in all actions or proceedings for or against the
institution, exercising all the powers necessary for these purposes
including, but not limited to, bringing and foreclosing mortgages in the
name of the bank or non-bank financial intermediary performing quasi-
banking functions.

The Monetary Board shall thereupon determine within sixty days whether
the institution may be recognized or otherwise placed in such a condition
so that it may be permitted to resume business with safety to its
depositors and creditors and the general public and shall prescribe the
conditions under which such resumption of business shall take place as
well as the time for fulfillment of such conditions. In such case, the
expenses and fees in the collection and administration of the assets of the
institution shall be determined by the Board and shall be paid to the
Central Bank out of the assets of such institution.

If the Monetary Board shall determine and confirm within the said period
that the bank or non-bank financial intermediary performing quasi-banking
functions is insolvent or cannot resume business with safety to its
depositors, creditors and the general public, it shall, if the public interest
requires, order its liquidation, indicate the manner of its liquidation and
approve a liquidation plan which may, when warranted, involve disposition
of any or all assets in consideration for the assumption of equivalent
liabilities. The liquidator designated as hereunder provided shall, by the
Solicitor General, file a petition in the regional trial court reciting the
proceedings which have been taken and praying the assistance of the
court in the liquidation of such institution. The court shall have jurisdiction
in the same proceedings to assist in the adjudication of the disputed
claims against the bank or non-bank financial intermediary performing
quasi-banking functions and in the enforcement of individual liabilities of
the stockholders and do all that is necessary to preserve the assets of
such institution and to implement the liquidation plan approved by the
Monetary Board. The Monetary Board shall designate an official of the
Central Bank or a person of recognized competence in banking or finance,
as liquidator who shall take over and continue the functions of the receiver
previously appointed by the Monetary Board under this Section. The
liquidator shall, with all convenient speed, convert the assets of the
banking institution or non-bank financial intermediary performing quasi-
banking functions to money or sell, assign or otherwise dispose of the
same to creditors and other parties for the purpose of paying the debts of
such institution and he may, in the name of the bank or non-bank financial
intermediary performing quasi- banking functions and with the assistance
of counsel as he may retain, institute such actions as may be necessary in
the appropriate court to collect and recover accounts and assets of such
institution or defend any action filed against the institution: Provided,
however, That after having reasonably established all claims against the
institution, the liquidator may, with the approval of the court, effect partial
payments of such claims for assets of the institution in accordance with
their legal priority.

The assets of an institution under receivership or liquidation shall be

deemed in custodia legis in the hands of the receiver or liquidator and
shall, from the moment of such receivership or liquidation, be exempt from
any order of garnishment, levy, attachment, or execution.

The provisions of any law to the contrary notwithstanding, the actions of

the Monetary Board under this Section, Section 28-A, and the second
paragraph of Section 34 of this Act shall be final and executory, and can
be set aside by a court only if there is convincing proof, after hearing, that
the action is plainly arbitrary and made in bad faith: Provided, That the
same is raised in an appropriate pleading filed by the stockholders of
record representing the majority of the capital stock within ten (10) days
from the date the receiver takes charge of the assets and liabilities of the
bank or non-bank financial intermediary performing quasi-banking
functions or, in case of conservatorship or liquidation, within ten (10) days
from receipt of notice by the said majority stockholders of said bank or
non-bank financial intermediary of the order of its placement under
conservatorship or liquidation. No restraining order or injunction shall be
issued by any court enjoining the Central Bank from implementing its
actions under this Section and the second paragraph of Section 34 of this
Act in the absence of any convincing proof that the action of the Monetary
Board is plainly arbitrary and made in bad faith and the petitioner or
plaintiff files a bond, executed in favor of the Central Bank, in an amount
to be fixed by the court. The restraining order or injunction shall be refused
or, if granted, shall be dissolved upon filing by the Central Bank of a bond,
which shall be in the form of cash or Central Bank cashier's check, in an
amount twice the amount of the bond of the petitioner or plaintiff
conditioned that it will pay the damages which the petitioner or plaintiff
may suffer by the refusal or the dissolution of the injunction. The
provisions of Rule 58 of the New Rules of Court insofar as they are
applicable and not inconsistent with the provisions of this Section shall
govern the issuance and dissolution of the restraining order or injunction
contemplated in this Section.

Insolvency, under this Act, shall be understood to mean that the realizable
assets of a bank or a non-bank financial intermediary performing quasi-
banking functions as determined by the Central Bank are insufficient to
meet its liabilities.

The appointment of a conservator under Section 28-A of this Act or the

appointment of a receiver or liquidator under this Section shall be vested
 exclusively with the Monetary Board, the provision of any law, general or
special, to the contrary notwithstanding.

It is stressed that in Section 25 of the said Act, the Department of Supervision and
Examination is charged with the supervision and periodic examination of all banking
institutions operating in the Philippines, including all government credit institutions.
Assuming for the moment that the Bank is owned or controlled by the government, it is
nevertheless not exempt from but in fact expressly placed under the jurisdiction of the
Central Bank.

More to the point, R.A. No. 3518 itself, which created the Philippine Veterans Bank,
provides in its Section 14 that the Bank shall be subject to the authority of the
Department of Supervision and Examination.

The said Section 14 reads as follows:

Sec. 14. Inspection by Department of Supervision and Examination of the

Central Bank. — The Veterans Bank shall be subject to inspection by the
Department of Supervision and Examination of the Central Bank in
accordance with Republic Act Numbered Two hundred sixty-five and
Republic Act Numbered Three hundred thirty-seven.

The purpose of these provisions is to enable the Central Bank, as the entity charged
with the responsibility of maintaining the stability of the banking and monetary systems
of the country, to take the necessary steps against any banking institution whose
continued operation may cause prejudice to its depositors and creditors, and the
general public as well.

Even if it be conceded that the charter of the Rank constitutes a contract between the
Government and the stockholders of the Bank, it would not follow that the relationship
cannot be altered without violating the impairment clause. This is a too simplistic
conclusion that loses sight of the vulnerability of this "precious little clause," as it is
called, to the inherent powers of the State when the public interest demands their
exercise. The clause, according to Corwin, "is lately of negligible importance, and might
well be stricken from the Constitution. For most practical purposes, in fact, it has
been." 2

The undeniable fact is that the notion of public interest has made such considerable
inroads into the constitutional guaranty that one could validly say now that it has
become the exception rather than the rule. The impact of the modern society upon
hitherto private agreements has left the clause in a shambles, as it were, making
practically every contract susceptible to change on behalf of the public. The modern
understanding is that the contract is protected by the guaranty only if it does not affect
public interest, but there is hardly any contract now that does not somehow or other
affect public interest as not to come under the powers of the State. Part of that
understanding therefore is that, conversely, the contract may be altered validly if it
involves the public interest, to which private interests must "yield as a postulate of the
existing social order."

In the landmark case of Norman v. Baltimore, 3 the U.S. Supreme Court stressed that
every contract involving the public interest suffers a congenital infirmity, and that is its
susceptibility to change whenever required by the public interest. The police power can
be validly asserted to make that change to meet any one of the several great public
needs, such as, in that case, regulation of the value of money. In upholding a legislative
enactment providing for the payment of existing debts dollar for dollar in the current
legal tender, as against contracts calling for such payment in gold coin of specified
weight and fineness the decision stressed:
 Contracts, however express, cannot fetter the constitutional authority of
the Congress. Contracts may create rights of property, but when contracts
deal with a subject matter which lies within the control of the Congress,
they have a congenital infirmity. Parties cannot remove their transactions
from the reach of dominant constitutional power by making contracts
about them.

The need in the case at bar is no less compelling, to wit, the preservation of the integrity
and stability of our banking system. Unless adequate and determined efforts are taken
by the government against distressed and mismanaged banks, public faith in the
banking system is certain to deteriorate to the prejudice of the national economy itself,
not to mention the losses suffered by the bank depositors, creditors, and stockholders,
who all deserve the protection of the government. The government cannot simply cross
its arms while the assets of a bank are being depleted through mismanagement or
irregularities. It is the duty of the Central Bank in such an event to step in and salvage
the remaining resources of the bank so that they may not continue to be dissipated or
plundered by those entrusted with their management.

The petitioners' argument that by accepting the stocks granted to them by the law, the
same have become their inalienable and irrevocable property is clearly untenable.
These stockholdings do not enjoy any special immunity over and above shares of stock
in any other corporation, which are always subject to the vicissitudes of business. Their
value may appreciate or decline or the stocks may become worthless altogether. Like
any other property, they do not have a fixed but a fluctuating price. Certainly, the mere
acceptance of these shares of stock by the petitioners did not create any legal
assurance from the Government that their original value would be preserved and that
the owners could not be deprived of such property under any circumstance no matter
how justified.

Nor is the charter subject to revocation only by the legislature, as the petitioners also
erroneously contend. The mere circumstance that the charter was granted directly by
Congress does not signify that only Congress can modify or abrogate it by another
enactment. In fact, the charter itself says that the Bank shall be subject to regulation by
the Central Bank which is empowered inter alia, by express provision of law, to order its
liquidation. Also, by its own terms, the charter will automatically become functus
officio after fifty years and the Bank itself will cease to exist unless its life is extended by
positive act of the legislature. It may also be noted that quo warrantoproceedings may
be filed against the Bank by the Solicitor General on behalf of the Republic of the
Philippines pursuant to the Rules of Court on any of the grounds enumerated in Rule 66
thereof. All these can be done without the necessity of direct legislative action and, no
less importantly, without violation of the legislative will.

There is also the practical difficulty of Congress itself decreeing liquidation, presumably
to be made after examination of the financial condition of the Bank. In effect, the
legislature, through its corresponding appropriate committees, will be undertaking the
function purposely assigned by law to the Department of Examination and Supervision
of the Central Bank. This is an intricate administrative function wisely entrusted by
Congress to the said body, from which the petitioners would now recall it for its direct
exercise by the lawmaking body. Such a procedure would bring us back to square one,
so to speak, and revoke the authority confided by Congress to the Central Bank in
recognition of its established expertise in the regulation of banks.

Coming now to the ownership of the Bank, we find it is not a government bank, as
claimed by the petitioners. The fact is that under Section 3(b) of its charter, while 51% of
the capital stock of the Bank was initially fully subscribed by the Republic of the
Philippines for and in behalf of the veterans, their widows, orphans or compulsory heirs,
the corresponding shares of stock were to be turned over within 5 years from the
organization by the Bank to the said beneficiaries who would thereafter have the right to
vote such common shares. The balance of about 49% was to be divided into preferred
shares which would be opened for subscription by any recognized veteran, widow,
orphans or compulsory heirs of said veteran at the rate of one preferred share per
veteran, on the condition that in case of failure of any particular veteran to subscribe for
any preferred share of stock so offered to him within thirty (30) days from the date of
receipt of notice, said share of stock shall be available for subscription to other veterans
in accordance with such rules or regulations as may be promulgated by the Board of
Directors. Moreover, under Sec. 6(a), the affairs of the Bank are managed by a board of
directors composed of eleven members, three of whom are ex officio members, with the
other eight being elected annually by the stockholders in the manner prescribed by the
Corporation Law. Significantly, Sec. 28 also provides as follows:

Sec. 28. Articles of incorporation. — This Act, upon its approval, shall be
deemed and accepted to all legal intents and purposes as the statutory
articles of incorporation or Charter of the Philippine Veterans' Bank; and
that, notwithstanding the provisions of any existing law to the contrary,
said Bank shall be deemed registered and duly authorized to do business
and operate as a commercial bank as of the date of approval of this Act.

This point is important because the Constitution provides in its Article IX-B, Section 2(1)
that "the Civil Service embraces all branches, subdivisions, instrumentalities, and
agencies of the Government, including government-owned or controlled corporations
with original charters." As the Bank is not owned or controlled by the Government
although it does have an original charter in the form of R.A. No. 3518, it clearly does not
fall under the Civil Service and should be regarded as an ordinary commercial
corporation. Section 28 of the said law so provides. The consequence is that the
relations of the Bank with its employees should be governed by the labor laws, under
which in fact they have already been paid some of their claims.

Applying the Labor Code, the Court rules that the petitioners' claim for back wages must
be rejected. The reason is that the employees making this claim have not been illegally
dismissed but lawfully separated as a result of the liquidation of the Bank on orders of
higher authority. This move was not the decision of the Bank; it was forced upon it by
the resolution of the Monetary Board of the Central Bank. Back pay is awarded for work
that could have been performed by the employee except that he was prevented from
doing so because of his illegal dismissal by the employer. It is clearly not due in the
case at bar to the employees whose services were terminated as a result of the forcible
closure of the Bank.

As regards the claims of Marking and Mejia for the payment of their retirement benefits,
which we restrained temporarily on January 12, 1989, we find with the public
respondents that such payment is in order. We so hold, considering that although the
said retirees are members of the board of directors, they are nevertheless covered by
the Retirement Plan of the Bank per the following pertinent provisions:

Article II, Section 1. — The following words and phrases, as used herein
shall have the meaning indicated, unless a different meaning is plainly
required by the text:

...

c) "Employee" means any person who is employed by the Bank on a

regular and permanent basis, including officers; and such members of the
Board of Director and other hired workers not employed on a regular and
permanent basis but who, because of their extended service, would
 qualify under the retirement categories under Article IV hereof and who for
purposes of this Plan, shall be deemed employees.

Article III, Section 1 — Eligibility at Effective Date

All employees as herein defined shall automatically be eligible to

participate in the Plan, as of its effective date. (Emphasis supplied)

However, for purposes of the application of Article 110 of the Labor Code, the said
directors must be considered managerial employees, or officers, and so not entitled to
the preference of claims granted thereunder to workers in general or the rank-and-file
employees. The claims of these workers must be accorded priority over all other claims,
including those of the said directors, and indeed even of the Government itself." This
provision, as amended by Republic Act No. 6715, reads as follows:

Article 110. Worker preference in case of bankruptcy. In the event of

bankruptcy or liquidation of an employer's business, his workers shall
enjoy first preference as regards their unpaid wages and other monetary
claims, any provision of law to the contrary notwithstanding. Such unpaid
wages and monetary claims shall be paid in full before the claims of the
Government and other creditors may be paid. (Amendments italicized).

Focusing now on G.R. No. 82337, the Court notes that the petitioners therein are asking
that the ownership and management of the Bank be turned over to them in accordance
with R.A. No. 3518. They point out that the deficit incurred by the Bank when its
liquidation was ordered by the Central Bank in 1985 is not imputable to them and
suggest they can do better in rehabilitating the Bank, given the proper support from the
Government. For this reason, they ask the Court to order inter alia the Central Bank to
grant them the necessary loans and other facilities, the Secretary of the Budget to
certify as appropriated the amount needed to fully pay all common and preferred shares
of the Bank, and the National Treasurer to release such amounts to the Bank.

We agree with the Solicitor General that there is a procedural flaw in the petition, in that-

The Rules of Court, the Judiciary Reorganization Act of 1980 and the
Interim Rules of Court quite clearly delineate the jurisdiction of the
Supreme Court in civil cases as encompassing a review on appeal only on
questions of law as well as original petitions in certain special civil actions
like certiorari, prohibition and mandamus.

The present petition does not come under any of the above. Obviously,
the petition is not an appeal from the decision of any lower court or quasi-
judicial body, as in fact, the same is indeed an original petition for
restitution. Also, the present petition is certainly not one for certiorari,
prohibition or mandamus because there is no tribunal, board or officer that
has acted without or in excess of jurisdiction or with grave abuse of
discretion, or has neglected the performance of an act which the law
enjoins as a duty, and from-whose acts or negligence the petitioners were
supposed to have been aggrieved thereby. On the basis alone of
jurisdiction, the petition at bar should be dismissed.

A reading of the instant petition would show, however, that the same
partakes of the nature of mandamus because it seeks judgment directing
and commanding the Secretary of Budget, the National Treasurer, the CB,
the Monetary Board and the PVB Liquidator to do certain specific acts.
Unfortunately, the facts hereof do not present a case where such offices
 and officials are, by law, mandated to do the adverted acts, even less, that
they have neglected to perform them.

Moreover, from what has already been said of the power of the Central Bank to regulate
commercial banks, and to order their liquidation whenever warranted, it would seem that
the affairs of the Bank are best entrusted to the liquidator court at this time rather than
managed directly by the petitioners. This is no reflection on their competence and
sincerity, not to mention their genuine concern for the Bank, of which they are the
intended beneficiaries and owners. It is only that, considering the expertise of the
Central Bank oh this matter, and the familiarity of the liquidator court with the
ramifications of the problem at hand, we feel it is advisable that they be allowed, as long
as the administration has not yet adopted its own plans, to devise the proper steps to
relieve the Bank of its present difficulties.

III

The Court reiterates its hope that the administrative authorities may still find a way to
rehabilitate the Bank even at this late hour. This is still possible even with this decision,
for all we are saying here is that the Central Bank has the power to liquidate the Bank
under existing laws and that, in the present circumstances, its liquidation may be
undertaken under the control of the liquidator court in accordance with the procedure
prescribed by R.A. No. 265 and the guidelines herein laid down. Such rehabilitation may
still be ordered by the President of the Philippines if she sees fit, without violation of the
import of this decision or of the pertinent laws here interpreted and applied.

WHEREFORE, judgment is hereby rendered: (a) DISMISSING the petitions in G.R.

Nos. 67125 and 82337; and (b) LIFTING the writ of preliminary injunction dated March
26, 1987, and the temporary restraining order dated January 21, 1989. Costs against
the petitioners.

SO ORDERED.

Fernan (C.J.), Narvasa, Melencio-Herrera, Gancayco, Pacalla, Bidin, Cortes, Griño-

Aquino, Medialdea and Regalado, concur.

Gutierrez, Jr., J., in the results.

Paras, J., took no part.

Feliciano J., took no part.

Sarmiento, J., is on leave.

Footnotes

1 Estrella F. Javier. Plaridel and Jorja S. Pasis, Isidro and Virgina

Holgado, Maximo Cotoner, and Lockwell Builders, Inc.

2 Edward B. Corwin, the Constitution and What It Means Today, 1st

Atheneun Ed., p. 85.

3 294 U.S. 240.

** Subject to DBP v. NLRC, G.R. Nos. 82763-64, March 19,1990.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-57841 July 30, 1982

BERNARDO GALLEGO and FELIX AGOCILLO, petitioner,

vs.
SANDIGABAYAN, respondent.

Antonio R. Bautista for petitioners.

Solicitor General Estelito P. Mendoza, Asst. Solicitor General Romeo C.De la Cruz and
Solicitor Antonio L. Villamor for respondent.

RELOVA, J.:

In this petition for certiorari, prohibition and mandamus, petitioners seek to set aside in
toto the Sandiganbayan's resolution promulgated on August 27, 1981 in Criminal Case
No. 2940, entitled: People of the Philippines vs. Ramon Deseo, et al.; to restrain the
Sandiganbayan from further proceeding with said Criminal Case No. 2940; and to
quash the information in said case. The antecedent facts are as follows:

An information was filed in the Sandiganbayan by Tanodbayan Special Prosecutor

Mariflor Punzalan-Castillo against Ramon Deseo, Bernardo Gallego, Herminio Erorita
and Felix Agoncillo, for violation of Section 3(e) of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act, which reads:

That on or about the period from May to September, 1979, in Metro

Manila, Philippines, and within the jurisdiction of this Honorable Court, the
following accused. RAMON DESEO, Chairman of the Board for Marine
Engine Officers in the May 28-30,1979 examinations, in checking Test
Paper No. 839 in the subject Steam Boiler, Engines, Turbines, Internal
Combustion and Machine Shop, gave a rating of 18% out of a total of 20%
to Test II thereof, the answer of the examinee being a recital of the prayer
'Hail Mary' and in Test III of the same Test Paper, gave a rating of 18%
out of 20%, the answer of the examinee being the prayer 'Our Father',
BERNARDO GALLEGO, Member of the Board for Marine Engine Officers,
acting as Second Corrector to Ramon Deseo affirmed the ratings given by
the latter to Test Paper No. 839; FELIX AGONCILLO, Member of the
Board for Marine Deck Officers in the May 28-30, 1979 examinations, in
checking Test Paper No. 144, in the subject Meteorology and Electronics,
gave a rating of 19% out of 20% to Test I A and B thereof, the answer of
the examinee to Test I A being a long love letter; and HERMINIO
ERORITA, Member of the Board for Marine Deck Offices acting as
Second Corrector to Felix Agoncillo, affirmed the ratings given by the latter
to Test Paper No. 144, the above acts of all the accused resulting in the
passing of Examinee No. 839 in the Board for Marine Engine Officers and
Examinee No. 144 in the Board for Marine Deck Officers, thereby giving
 unwarranted benefits to the said examinees in the discharge of their
official and/or administrative functions through manifest partiality, evident
bad faith or gross inexcusable negligence.

Petitioners Bernardo Gallego and Felix Agoncillo filed a motion to quash the information
against them on the following grounds:

1. the facts alleged do not constitute an offense; or, in the alternative,

2. The information charges more than one offense.

Petitioners claim that the information concludes that the ratings given by the accused to
particular examinees constituted the giving to them of "unwarranted benefits"; that the
statutory provision defines as a corrupt practice of the public officer "the giving to any
private party any unwarranted benefits in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross inexcusable
negligence"; that Section 3(e) of the Anti-Graft and Corrupt Practices Act is null and void
because it is unconstitutionally vague and therefore cannot be a basis of any criminal
prosecution; that even if said Section 3(e) of the Anti-Graft and Corrupt Practices Act
were to be sustained as definite, "still the allegations of the information are not
sufficiently definite to charge an offense to which the accused may be required to
plead." Further, petitioners allege that the term "unwarranted" is a "highly imprecise and
elastic term which has no common law meaning or settled definition by prior judicial or
administrative precedents"; that for its vagueness, said Section 3(e) violates due
process in that it does not give fair warning or sufficient notice of what it seeks to
penalize.

Finally, petitioners claim that the information charges the accused with three (3) distinct
offenses, to wit: "(a) the giving of 'unwarranted' benefits through manifest partiality; (b)
the giving of 'unwarranted' benefits through evident bad faith; and (c) the giving of
'unwarranted' benefits through gross inexcusable negligence" while in the discharge of
their official and/or administrative functions; that the right of the accused to be informed
of the nature and cause of the accusation against them is violated because they are left
to guess which of the three, if not all, offenses they are being prosecuted.

The motion to quash was opposed by the prosecution alleging that the term
"unwarranted" in Section 3(e) of Republic Act 3019 is clear, unambiguous and
unequivocal and is presumed to have been used in its primary arid general acceptation;
that the objection by petitioners on the clarity of the term "unwarranted" does not suffice
for the courts to declare said section unconstitutional; that said Section 3(e) of Republic
Act 3019 is valid unless otherwise held by final judgment of a competent court.

With respect to petitioners' allegation that the information charge more than one
offense, the prosecution avers that what is charged in the information "is the giving of
unwarranted benefits to the owners of Test Booklets Nos. 839 and 144, while manifest
partiality, evident bad faith or gross inexcusable negligence are only the means of
commission."

Respondent Sandiganbayan sustained the prosecution and denied the motion to quash.

We hold that Section 3(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 inexcusable negligence merely describe the different modes by
which the offense penalized in Section 3(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 distinct offenses.
The information definitely states the names of the parties, the tune, place, manner of
commission and designation of the offense. The argument that failure in the information
to state the reasons why the benefits bestowed are unwarranted renders it defective is
without merit informations need only state the ultimate facts; the reasons therefor could
be proved during the trial. As aptly observed by respondent Sandiganbayan in its
resolution dated August 27, 1981:

The word unwarranted is not uncertain. It seems lacking adequate or

official support; unjustified; unauthorized Webster, Third New International
Dictionary, p. 2514); or without justification or adequate reason.
(Philadelphia Newspapers, Inc. vs. U.S. Dept. of justice, C. D. Pa., 405 F.
Supp. 8, 12, cited in Words and Phrases, Permanent Edition, Vol. 3-A
1978, Cumulative Annual Pocket Part, P. 19.)

The assailed provisions of the Anti-Graft and Corrupt Practices Act

considers a corrupt practice and makes unlawful the act of a public officer
in:

... 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, ...
(Section 3[e], Rep. Act 3019, as amended.)

It is not all difficult to comprehend that what the afore-quoted penal

provisions penalizes 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 are unjustified, unauthorized or
without justification or adequate reason, through manifest partiality,
evident bad faith or gross inexcusable negligence.

Neither is the information defective. As held in the case of People vs. Buenviaje, 47
Phil.536, where the defendant was charged with violation of the Medical Law and the
information charged both illegal practice of medicine and illegally advertising oneself as
a doctor, it was held that "the information was not bad for duplicity inasmuch as the acts
charged were merely different means of committing the same offense, notwithstanding
the fact that they are prohibited by separate sections of the statute."

ACCORDINGLY, for lack of merit, instant petition is hereby dismissed.

SO ORDERED.

Fernando, C.J., Teehankee, Barredo, Makasiar, Concepcion, Jr., Guerrero, Abad

Santos, De Castro, Melencio-Herrera, Plana, Escolin, Vasquez and Gutierrez, Jr.,
concur.

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, ormalversation 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 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 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 Aseries 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
usestatutory 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
suchinstance, 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 notprove 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.
 Buena, and De Leon, Jr., JJ., concur.
Davide, Jr. C.J., Melo, Quisumbing, JJ., join concurring opinion of J. Mendoza.
Puno, Vitug, JJ., concurred and joins J. Mendoza's concurring opinion.
Kapunan, Pardo, Sandoval-Gutierrez, Ynares-Santiago, JJ., see dissenting opinion.
Mendoza, J., please see concurring opinion.
Panganiban J., please see separate concurring opinion.
Carpio, J., no part. Was one of the complainants before Ombudsman.

[1]
Approved 12 July 1991 and took effect 8 October 1991.
[2]
Approved 13 December 1993 and took effect 31 December 1993.
[3]
Lim v. Pacquing, et al., G.R. No. 115044, 27 January 1995, 240 SCRA 644.
[4]
G.R. No. 87001, 4 December 1989, 179 SCRA 828.
[5]
Yu Cong Eng v. Trinidad, 47 Phil. 385, 414 (1925).
[6]
82 C.J.S. 68, p. 113; People v. Ring, 70 P.2d 281, 26 Cal. App. 2d Supp. 768.
[7]
Mustang Lumber, Inc. v. Court of Appeals, G.R. No. 104988, 18 June 1996, 257 SCRA 430,
448.
[8]
PLDT v. Eastern Telecommunications Phil., Inc., G.R. No. 943774, 27 August 1992, 213
SCRA 16, 26.
[9]
Resolution of 9 July 2001.
[10]
See People v. Nazario, No. L-44143, 31 August 1988, 165 SCRA 186, 195-196.
[11]
Ibid.
[12]
State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR2d 750.
[13]
Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 (1926) cited in Ermita-
Malate Hotel and Motel Operators Ass'n. v. City Mayor, 20 SCRA 849, 867 (1967).
[14]
NAACP v. Alabama, 377 U.S. 288, 307, 12, 2 L. Ed 325, 338 (1958); Shelton v. Tucker 364
U.S. 479, 5 L. Ed. 2d 231 (1960).
[15]
Gooding v. Wilson, 405 U.S. 518, 521, 31 L. Ed. 2d 408, 413 (1972) (internal quotation
marks omitted).
[16]
United States v. Salerno, 481 U.S. 739, 745 95 L. Ed 2d 697, 707 (1987); see also
People v. De la Piedra, G.R. No. 121777, 24 January 2001.
[17]
413 U.S. 601, 612-613, 37 L. Ed 2d 830, 840-841 (1973).
[18]
United States v. Salerno, supra.
[19]
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 71 L.
Ed. 2d 362, 369 (1982).
[20]
United States v. Raines, 362 U.S. 17, 21, 4 L. Ed. 2d 524, 529 (1960). The paradigmatic case
is Yazoo & Mississippi Valley RR. v. Jackson Vinegar Co., 226 U.S. 217, 57 L. Ed. 193 (1912).
[21]
G. Gunther & K. Sullivan, Constitutional Law 1299 (2001).
[22]
Id. at 1328. See also Richard H. Fallon, Jr., As Applied and Facial Challenges, 113 Harv. L.
Rev. 1321 (2000) arguing that, in an important sense, as applied challenges are the basic building
blocks of constitutional adjudication and that determinations that statutes are facially invalid
properly occur only as logical outgrowths of ruling on whether statutes may be applied to
particular litigants on particular facts.
[23]
Constitution, Art. VIII, 1 and 5. Compare Angara v. Electoral Commission, 63 Phil. 139, 158
(1936); "[T]he power of judicial review is limited to actual cases and controversies to be
exercised after full opportunity of argument by the parties, and limited further to be
constitutional question raised or the very lis mota presented. Any attempt at abstraction could
only lead to dialectics and barren legal questions and to sterile conclusions unrelated to
actualities."
[24]
401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971). Accord, United States v. Raines, 362 U.S.
17, 4 L. Ed. 2d 524 (1960); Board of Trustees, State Univ. of N.Y. v. Fox, 492 U.S. 469, 106 L.
Ed. 2d 388 (1989).
[25]
Broadrick v. Oklahoma, 413 U.S. at 613, 37 L. Ed. 2d at 841; National Endowment for the
Arts v. Finley, 524 U.S. 569, 580 (1998).
[26]
FW/PBS, Inc. v. City of Dallas, 493 U.S. 223, 107 L. Ed. 2d 603 (1990); Cruz v. Secretary of
Environment and Natural Resources, G.R. No. 135385, 6 December 2000 (Mendoza, J., Separate
Opinion).
[27]
United States v. National Dairy Prod. Corp., 372 U.S. 29, 32-33, 9 L. Ed. 2d 561, 565-6
(1963).
[28]
G.R. No. 57841, 30 July 1982, 115 SCRA 793.
[29]
People v. Ganguso, G.R. No. 115430, 23 November 1995, 250 SCRA 268, 274-275.
[30]
People v. Garcia, G.R. No. 94187, 4 November 1992, 215 SCRA 349, 360.
[31]
Then Senate President Jovito R. Salonga construed in brief the provision, thuswise: If there
are lets say 150 crimes all in all, criminal acts, whether bribery, misappropriation, malversation,
extortion, you need not prove all those beyond reasonable doubt. If you can prove by pattern, lets
say 10, but each must be proved beyond reasonable doubt, you do not have to prove 150 crimes.
Thats the meaning of this (Deliberations of Committee on Constitutional Amendments and
Revision of Laws, 15 November 1988, cited in the Sandiganbayan Resolution of 9 July 2001).
[32]
TSN, 18 September 2001, pp. 115-121.
[33]
4 Record of the Senate 1316, 5 June 1989.
[34]
Ibid.
[35]
Roschen v. Ward, 279 U.S. 337, 339, 73 L.Ed. 722, 728 (1929).
[36]
267 SCRA 682, 721-2 (1997) (emphasis added).
[37]
Black's Law Dictionary 959 (1990); Lozano v. Martinez, 146 SCRA 324, 338 (1986).
[38]
G.R. No. 117472, 7 February 1997, 267 SCRA 682.

ROMUALDEZ V. SANDIGANBAYAN (435 SCRA 371)

EN BANC

[G.R. No. 152259. July 29, 2004]

ALFREDO T. ROMUALDEZ, petitioner, vs. The Honorable

SANDIGANBAYAN (Fifth Division) and the PEOPLE of the
PHILIPPINES, respondents.
 DECISION
PANGANIBAN, J.:

Repetitive motions to invalidate or summarily terminate a criminal indictment prior to

plea and trial, however they may be named or identified -- whether as a motion to quash
or motion to dismiss or by any other nomenclature -- delay the administration of justice
and unduly burden the court system. Grounds not included in the first of such repetitive
motions are generally deemed waived and can no longer be used as bases of similar
motions subsequently filed.
Section 5 of the Anti-Graft Law is constitutional. It penalizes certain presidential
relatives who intervene, directly or indirectly, in any business, transaction, contract or
application with the Government. This provision is not vague or impermissibly broad,
because it can easily be understood with the use of simple statutory construction.
Neither may the constitutionality of a criminal statute such as this be challenged on the
basis of the overbreadth and the void-for-vagueness doctrines, which apply only to free-
speech cases.

The Case

Before us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court, seeking to
set aside the November 20, 2001[2] and the March 1, 2002[3] Resolutions of the
Sandiganbayan in Criminal Case No. 13736. The first Resolution disposed thus:

WHEREFORE, for lack of merit, the Motion to Dismiss is hereby DENIED. The
arraignment of the accused and the pre-trial of the case shall proceed as scheduled. [4]

The second Resolution denied reconsideration.

The Facts

The facts of the case are narrated by the Sandiganbayan as follows:

[The People of the Philippines], through the Presidential Commission on Good

Government (PCGG), filed on July 12, 1989 an information before [the anti-graft
court] charging the accused [with] violation of Section 5, Republic Act No. 3019, as [5]

amended. The Information reads:

That on or about and during the period from July 16, 1975 to July 29, 1975, in Metro
Manila, Philippines, and within the jurisdiction of [the Sandiganbayan], said
[petitioner], brother-in-law of Ferdinand E. Marcos, former President of the
Philippines, and therefore, related to the latter by affinity within the third civil degree,
did then and there wil[l]fully and unlawfully, and with evident bad faith, for the
purpose of promoting his self-interested [sic] and/or that of others, intervene directly
or indirectly, in a contract between the National Shipyard and Steel Corporation
(NASSCO), a government-owned and controlled corporation and the Bataan Shipyard
and Engineering Company (BASECO), a private corporation, the majority stocks of
which is owned by former President Ferdinand E. Marcos, whereby the NASSCO
sold, transferred and conveyed to the BASECO its ownership and all its titles and
interests over all equipment and facilities including structures, buildings, shops,
quarters, houses, plants and expendable and semi-expendable assets, located at the
Engineer Island known as the Engineer Island Shops including some of its equipment
and machineries from Jose Panganiban, Camarines Norte needed by BASECO in its
shipbuilding and ship repair program for the amount of P5,000,000.00.

Contrary to law.

On December 27, 1996, the accused filed his first MOTION TO DISMISS AND TO
DEFER ARRAIGNMENT claiming that no valid preliminary investigation was
conducted in the instant case. He asserts that if a preliminary investigation could be
said to have been conducted, the same was null and void having been undertaken by a
biased and partial investigative body.

On January 9, 1997, [the Sandiganbayan], through the First Division, issued an order
giving the accused fifteen days to file a Motion for Reinvestigation with the Office of
the Special Prosecutor.

[Petitioner] questioned said order before the Supreme Court via a petition for
Certiorari and Prohibition with prayer for temporary restraining order. On January 21,
1998, the Supreme Court dismissed the petition for failure to show that [the
Sandiganbayan] committed grave abuse of discretion in issuing the assailed order.

On November 9, 1998, the [petitioner] filed with the Office of the Special Prosecutor
a Motion to Quash.

On September 22, 1999, x x x Special Prosecution Officer (SPO) III Victorio U.

Tabanguil, manifested that the prosecution had already concluded the reinvestigation
of the case. He recommended the dismissal of the instant case. Both the Deputy
Special Prosecutor and the Special Prosecutor approved the recommendation.
However, Ombudsman Aniano A. Desierto disagreed and directed the prosecutors to
let the [petitioner] present his evidence in Court.

Subsequently, [petitioner] filed on October 8, 1999 his second MOTION TO QUASH

AND TO DEFER ARRAIGNMENT.

On February 9, 2000, the [Sandiganbayan] denied the motion for lack of merit.

On June 19, 2001, [the] accused filed a MOTION FOR LEAVE TO FILE MOTION
TO DISMISS. On June 29, 2001, the [Sandiganbayan] admitted the motion and
admitted the attached (third) Motion to Dismiss.

The [Motion to Dismiss] raise[d] the following grounds:

I. THE CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW OF

[PETITIONER] WAS VIOLATED DURING THE PRELIMINARY
INVESTIGATION STAGE IN THE FOLLOWING WAYS:

A. NO VALID PRELIMINARY INVESTIGATION WAS CONDUCTED IN THE

INSTANT CASE; AND

B. THE PRELIMINARY INVESTIGATION WAS CONDUCTED BY A BIASED

AND PARTIAL INVESTIGATOR
II. THE CONSTITUTIONAL RIGHT OF [PETITIONER] TO BE INFORMED OF
THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HIM WAS
VIOLATED

III. PURSUANT TO ARTICLE VII, SECTION 17 OF THE 1973 CONSTITUTION,

[PETITIONER] IS IMMUNE FROM CRIMINAL PROSECUTION

IV. THE CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED BY

PRESCRIPTION [6]

Ruling of the Sandiganbayan

The Sandiganbayan explained that all the grounds invoked by petitioner, except the
third one, had already been raised by him and passed upon in its previous
Resolutions.[7] In resolving the third ground, the anti-graft court pointed out that Section
17 of the 1973 Constitution became effective only in 1981 when the basic law was
amended. Since his alleged illegal intervention had been committed on or about 1975,
the amended provision was inapplicable to him.[8]
In denying the Motion for Reconsideration filed by petitioner, the Sandiganbayan
passed upon the other grounds he had raised. It ruled that his right to a preliminary
investigation was not violated, because he had been granted a reinvestigation. [9] It
further held that his right to be informed of the nature and cause of the accusation was
not trampled upon, either, inasmuch as the Information had set forth the essential
elements of the offense charged.[10]
Hence, this Petition.[11]

The Issues

In his Memorandum, petitioner assigns the following errors for our consideration:

Whether or not the Honorable Sandiganbayan erred and gravely abused its discretion
amounting to lack of, or in excess of jurisdiction

I. In not dismissing and/or quashing Criminal Case No. 13736 despite clear
and incontrovertible evidence that:

A. Section 5 of Republic Act No. 3019 is unconstitutional because its

vagueness violates the due process right of an individual to be
informed of the nature and the cause of the accusation against
him;

B. Section 5 of Republic Act No. 3019 is unconstitutional because it

violates the due process right of an individual to be presumed
innocent until the contrary is proved;

C. The constitutional right of petitioner x x x to be informed of the

nature and the cause of the accusation against him was violated;
 D. The constitutional right to due process of law of petitioner x x x was
violated during the preliminary investigation stage in the
following ways:

[i] No valid preliminary investigation was con-ducted for

Criminal Case No. 13736; and

[ii] The preliminary investigation was conducted by a biased and

partial investigator.

E. The criminal action or liability has been extinguished by prescription;

and

F. Pursuant to Article VII, Section 17 of the 1973 Constitution, petitioner

x x x is immune from criminal prosecution.

And

II. In light of the foregoing, in denying petitioner[s] x x x right to equal

protection of the laws. [12]

Simply stated, the issues are as follows: (1) whether Section 5 of Republic Act 3019
is unconstitutional; (2) whether the Information is vague; (3) whether there was a valid
preliminary investigation; (4) whether the criminal action or liability has been
extinguished by prescription; and (5) whether petitioner is immune from criminal
prosecution under then Section 17 of Article VII of the 1973 Constitution.

The Courts Ruling

The Petition has no merit.

First Issue:
Constitutionality of Section 5,
Republic Act 3019

Petitioner challenged the constitutionality of Section 5 of RA 3019 for the first time in
the Sandiganbayan through a Supplemental Motion to Dismiss. Attached to his
December 7, 2001 Motion for Reconsideration of the Order denying his Motion to
Dismiss was this Supplemental Motion which was, in effect, his third motion to
quash.[13] We note that the Petition for Certiorari before us challenges the denial of his
original, not his Supplemental, Motion to Dismiss.
Upon the denial of his original Motion to Quash on February 9, 2000, petitioner
could have filed a motion for reconsideration of the denial. Had reconsideration been
turned down, the next proper remedy would have been either (1) a petition for
certiorari[14] -- if there was grave abuse of discretion -- which should be filed within 60
days from notice of the assailed order;[15] or (2) to proceed to trial without prejudice to his
right, if final judgment is rendered against him, to raise the same questions before the
proper appellate court.[16] But instead of availing himself of these remedies, he filed a
Motion to Dismiss on June 19, 2001.
Impropriety of
Repetitive Motions

There is no substantial distinction between a motion to quash and a motion to

dismiss. Both pray for an identical relief, which is the dismissal of the case. Such
motions are employed to raise preliminary objections, so as to avoid the necessity of
proceeding to trial. A motion to quash is generally used in criminal proceedings to annul
a defective indictment. A motion to dismiss, the nomenclature ordinarily used in civil
proceedings, is aimed at summarily defeating a complaint. Thus, our Rules of Court use
the term motion to quash in criminal,[17] and motion to dismiss in civil, proceedings.[18]
In the present case, however, both the Motion to Quash and the Motion to Dismiss
are anchored on basically the same grounds and pray for the same relief. The
hairsplitting distinction posited by petitioner does not really make a difference.
By filing a Motion to Dismiss, petitioner submitted in effect a prohibited second
motion to quash. A party is not permitted to raise issues, whether similar or different, by
installment. The Rules abhor repetitive motions. Otherwise, there would be no end to
preliminary objections, and trial would never commence. A second motion to quash
delays the administration of justice and unduly burdens the courts. Moreover, Rule 117
provides that grounds not raised in the first motion to quash are generally deemed
waived.[19]Petitioners Motion to Dismiss violates this rule.

Constitutionality of
the Challenged Provision

If only for the foregoing procedural lapses, the Petition deserves to be dismissed
outright. However, given the importance of this case in curtailing graft and corruption,
the Court will nevertheless address the other issues on their merit. Petitioner challenges
the validity of Section 5 of Republic Act 3019, a penal statute, on the ground that the act
constituting the offense is allegedly vague and impermissibly broad.
It is best to stress at the outset that the overbreadth[20] and the
vagueness[21] doctrines have special application only to free-speech cases. They are not
appropriate for testing the validity of penal statutes. Mr. Justice Vicente V. Mendoza
explained the reason as follows:

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. 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.
 xxxxxxxxx

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. 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. (underscoring supplied)
[22]

To this date, the Court has not declared any penal law unconstitutional on the
ground of ambiguity.[23] While mentioned in passing in some cases, the void-for-
vagueness concept has yet to find direct application in our jurisdiction. In Yu Cong Eng
v. Trinidad,[24] the Bookkeeping Act was found unconstitutional because it violated the
equal protection clause, not because it was vague. Adiong v. Comelec[25] decreed as
void a mere Comelec Resolution, not a statute. Finally, Santiago v. Comelec[26] held that
a portion of RA 6735 was unconstitutional because of undue delegation of legislative
powers, not because of vagueness.
Indeed, an on-its-face invalidation of criminal statutes would result in a mass
acquittal of parties whose cases may not have even reached the courts. Such
invalidation would constitute a departure from the usual requirement of actual case and
controversy and permit decisions to be made in a sterile abstract context having no
factual concreteness. In Younger v. Harris, this evil was aptly pointed out by the U.S.
Supreme Court in these words:[27]

[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, x x x ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.

For this reason, generally disfavored is an on-its-face invalidation of statutes,

described as a manifestly strong medicine to be employed sparingly and only as a last
resort. In determining the constitutionality of a statute, therefore, its provisions that have
allegedly been violated must be examined in the light of the conduct with which the
defendant has been charged.[28]
As conduct -- not speech -- is its object, the challenged provision must be examined
only as applied to the defendant, herein petitioner, and should not be declared
unconstitutional for overbreadth or vagueness.
The questioned provision reads as follows:

Section 5. Prohibition on certain relatives. It shall be unlawful for the spouse or for
any relative, by consanguinity or affinity, within the third civil degree, of the
President of the Philippines, the Vice-President of the Philippines, the President of the
Senate, or the Speaker of the House of Representatives, to intervene, directly or
indirectly, in any business, transaction, contract or application with the Government:
Provided, That this section shall not apply to any person who, prior to the assumption
of office of any of the above officials to whom he is related, has been already dealing
with the Government along the same line of business, nor to any transaction, contract
or application already existing or pending at the time of such assumption of public
office, nor to any application filed by him the approval of which is not discretionary
on the part of the official or officials concerned but depends upon compliance with
requisites provided by law, or rules or regulations issued pursuant to law, nor to any
act lawfully performed in an official capacity or in the exercise of a profession.

Petitioner also claims that the phrase to intervene directly or indirectly, in any
business, transaction, contract or application with the Government is vague and violates
his right to be informed of the cause and nature of the accusation against him. [29] He
further complains that the provision does not specify what acts are punishable under the
term intervene, and thus transgresses his right to be presumed innocent.[30] We disagree.
Every statute is presumed valid.[31] On the party challenging its validity weighs
heavily the onerous task of rebutting this presumption.[32] Any reasonable doubt about
the validity of the law should be resolved in favor of its constitutionality. [33] To doubt is to
sustain, as tersely put by Justice George Malcolm. In Garcia v. Executive
Secretary,[34] the rationale for the presumption of constitutionality was explained by this
Court thus:

The policy of the courts is to avoid ruling on constitutional questions and to presume
that the acts of the political departments are valid in the absence of a clear and
unmistakable showing to the contrary. To doubt is to sustain. This presumption is
based on the doctrine of separation of powers which enjoins upon each department a
becoming respect for the acts of the other departments. The theory is that as the joint
act of Congress and the President of the Philippines, a law has been carefully studied
and determined to be in accordance with the fundamental law before it was finally
enacted. [35]

In the instant case, petitioner has miserably failed to overcome such presumption.
This Court has previously laid down the test for determining whether a statute is vague,
as follows:

x x x [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 species 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. But the doctrine does not apply as against legislations that
[36]

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. With more reason, the doctrine cannot be invoked where the assailed
[37]

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. It must be stressed,
[38]

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.
[39]

A simpler test was decreed in Dans v. People,[40] in which the Court said that there
was nothing vague about a penal law that adequately answered the basic query What is
the violation?[41] Anything beyond -- the hows and the whys -- are evidentiary matters
that the law itself cannot possibly disclose, in view of the uniqueness of every case. [42]
The question What is the violation? is sufficiently answered by Section 5 of RA
3019, as follows:

1. The offender is a spouse or any relative by consanguinity or affinity within the

third civil degree of the President of the Philippines, the Vice-President of the
Philippines, the President of the Senate, or the Speaker of the House of
Representatives; and

2. The offender intervened directly or indirectly in any business, transaction,

contract or application with the government.

Applicability of
Statutory Construction

As to petitioners claim that the term intervene is vague, this Court agrees with the
Office of the Solicitor General that the word can easily be understood through simple
statutory construction. The absence of a statutory definition of a term used in a statute
will not render the law void for vagueness, if the meaning can be determined through
the judicial function of construction.[43] Elementary is the principle that words should be
construed in their ordinary and usual meaning.

x x x. 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; much [44]

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 x x x.

x x x [I]t 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, unless it is evident that the legislature intended a technical or special
[45]

legal meaning to those words. The intention of the lawmakers - who are, ordinarily,
[46]

untrained philologists and lexicographers - to use statutory phraseology in such a

manner is always presumed. [47]

The term intervene should therefore be understood in its ordinary acceptation,

which is to to come between.[48] Criminally liable is anyone covered in the enumeration of
Section 5 of RA 3019 -- any person who intervenes in any manner in any business,
transaction, contract or application with the government. As we have explained, it is
impossible for the law to provide in advance details of how such acts of intervention
could be performed. But the courts may pass upon those details once trial is concluded.
Thus, the alleged vagueness of intervene is not a ground to quash the information prior
to the commencement of the trial.
In sum, the Court holds that the challenged provision is not vague, and that in any
event, the overbreath and void for vagueness doctrines are not applicable to this case.

Second Issue:
Allegedly Vague Information

Other than arguing on the alleged intrinsic vagueness of intervene, petitioner further
contends that the Information itself is also unconstitutionally vague, because it does not
specify the acts of intervention that he supposedly performed.[49] Again, we disagree.
When allegations in the information are vague or indefinite, the remedy of the
accused is not a motion to quash, but a motion for a bill of particulars. [50] The pertinent
provision in the Rules of Court is Section 9 of Rule 116, which we quote:

Section 9. Bill of particulars. -- The accused may, before arraignment, move for a bill
of particulars to enable him properly to plead and prepare for trial. The motion shall
specify the alleged defects of the complaint or information and the details desired.

The rule merely requires the information to describe the offense with sufficient
particularity as to apprise the accused of what they are being charged with and to
enable the court to pronounce judgment. [51] The particularity must be such that persons
of ordinary intelligence may immediately know what is meant by the information. [52]
While it is fundamental that every element of the offense must be alleged in the
information,[53] matters of evidence -- as distinguished from the facts essential to the
nature of the offense -- need not be averred.[54] Whatever facts and circumstances must
necessarily be alleged are to be determined by reference to the definition and the
essential elements of the specific crimes.[55]
In the instant case, a cursory reading of the Information shows that the elements of
a violation of Section 5 of RA 3019 have been stated sufficiently. Likewise, the
allegations describe the offense committed by petitioner with such particularity as to
enable him to prepare an intelligent defense. Details of the acts he committed are
evidentiary matters that need not be alleged in the Information.

Third Issue:
Preliminary Investigation

Clearly, petitioner already brought the issue of lack of preliminary investigation

when he questioned before this Court in GR No. 128317 the Sandiganbayans Order
giving him 15 days to file a Motion for Reinvestigation with the Office of the Special
Prosecutor.[56] Citing Cojuangco v. Presidential Commission on Good Government,[57] he
undauntedly averred that he was deprived of his right to a preliminary investigation,
because the PCGG acted both as complainant and as investigator.[58]
In the case cited above, this Court declared that while PCGG had the power to
conduct a preliminary investigation, the latter could not do so with the cold neutrality of
an impartial judge in cases in which it was the agency that had gathered evidence and
subsequently filed the complaint.[59] On that basis, this Court nullified the preliminary
investigation conducted by PCGG and directed the transmittal of the records to the
Ombudsman for appropriate action.
It is readily apparent that Cojuangco does not support the quashal of the
Information against herein petitioner. True, the PCGG initiated the present Complaint
against him; hence, it could not properly conduct the preliminary investigation. However,
he was accorded his rights -- the Sandiganbayan suspended the trial and afforded him
a reinvestigation by the Ombudsman. The procedure outlined in Cojuangco was thus
followed.
The Sandiganbayans actions are in accord also with Raro v.
Sandiganbayan, which held that the failure to conduct a valid preliminary investigation
[60]

would not warrant the quashal of an information. If the information has already been
filed, the proper procedure is for the Sandiganbayan to hold the trial in abeyance while
the preliminary investigation is being conducted or completed.[61]

Fourth Issue:
Prescription

The issue of prescription was the principal basis of the Motion to Quash filed by
petitioner with the Sandiganbayan on October 8, 1999. [62] Such issue should be
disregarded at this stage, since he failed to challenge its ruling debunking his Motion
within the 60-day period for the filing of a petition for certiorari. A party may not
circumvent this rule by filing a subsequent motion that raises the same issue and the
same arguments.
Furthermore, it is easy to see why this argument being raised by petitioner is utterly
unmeritorious. He points out that according to the Information, the offense was
committed during the period from July 16, 1975 to July 29, 1975. He argues that when
the Information was filed on July 12, 1989,[63] prescription had already set in, because
the prescriptive period for a violation of Republic Act No. 3019 is only ten (10) years
from the time the offense was allegedly committed. The increase of this prescriptive
period to fifteen (15) years took effect only on March 16, 1982, upon the enactment of
Batas Pambansa Blg. 195.[64]
Act No. 3326, as amended,[65] governs the prescription of offenses penalized by
special laws. Its pertinent provision reads:

Sec. 2. Prescription shall begin to run from the day of the commission of the violation
of the law, and if the same not be known at the time, from the discovery thereof and
the institution of judicial proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty
person, and shall begin to run again if the proceedings are dismissed for reasons not
constituting jeopardy.

Consistent with the provision quoted above, this Court has previously reckoned the
prescriptive period of cases involving RA 3019 (committed prior to the February 1986
EDSA Revolution) from the discovery of the violation.[66] In Republic v. Desierto, the
Court explained:

This issue confronted this Court anew, albeit in a larger scale, in Presidential Ad Hoc
Fact-Finding Committee on Behest Loans v. Desierto. In the said recent case, the
Board of Directors of the Philippine Seeds, Inc. and Development Bank of the
Philippines were charged with violation of paragraphs (e) and (g) of Section 3 of RA
No. 3019, by the Presidential Ad Hoc Fact-Finding Committee on Behest Loans,
created by then President Fidel V. Ramos to investigate and to recover the so-called
Behest Loans, where the Philippine Government guaranteed several foreign loans to
corporations and entities connected with the former President Marcos. x x x In
holding that the case had not yet prescribed, this Court ruled that:

In the present case, it was well-nigh impossible for the State, the aggrieved party, to
have known the violations of RA No. 3019 at the time the questioned transactions
were made because, as alleged, the public officials concerned connived or conspired
with the beneficiaries of the loans. Thus, we agree with the COMMITTEE that the
prescriptive period for the offenses with which the respondents in OMB-0-96-0968
were charged should be computed from the discovery of the commission thereof and
not from the day of such commission.

xxxxxxxxx

People v. Duque is more in point, and what was stated there stands reiteration: In the
nature of things, acts made criminal by special laws are frequently not immoral or
obviously criminal in themselves; for this reason, the applicable statute requires that if
the violation of the special law is not known at the time, the prescription begins to run
only from the discovery thereof, i.e., discovery of the unlawful nature of the
constitutive act or acts. (Italics supplied)

There are striking parallelisms between the said Behest Loans Case and the present
one which lead us to apply the ruling of the former to the latter. First, both cases arose
out of seemingly innocent business transactions; second, both were discovered only
after the government created bodies to investigate these anomalous
transactions; third, both involve prosecutions for violations of RA No. 3019;
and, fourth, in both cases, it was sufficiently raised in the pleadings that the
respondents conspired and connived with one another in order to keep the alleged
violations hidden from public scrutiny.

This Courts pronouncement in the case of Domingo v. Sandiganbayan is quite

relevant and instructive as to the date when the discovery of the offense should be
reckoned, thus:

In the present case, it was well-nigh impossible for the government, the aggrieved
party, to have known the violations committed at the time the questioned transactions
were made because both parties to the transactions were allegedly in conspiracy to
perpetuate fraud against the government. The alleged anomalous transactions could
only have been discovered after the February 1986 Revolution when one of the
original respondents, then President Ferdinand Marcos, was ousted from office. Prior
to said date, no person would have dared to question the legality or propriety of those
transactions. Hence, the counting of the prescriptive period would commence from the
date of discovery of the offense, which could have been between February 1986 after
the EDSA Revolution and 26 May 1987 when the initiatory complaint was filed. [67]

The above pronouncement is squarely applicable to the present case. The general
rule that prescription shall begin to run from the day of the commission of the crime
cannot apply to the present case. It is not legally prudent to charge the State, the
aggrieved party, with knowledge of the violation of RA 3019 at the time the alleged
intervention was made. The accused is the late President Ferdinand E. Marcos brother-
in-law. He was charged with intervening in a sale involving a private corporation, the
majority stocks of which was allegedly owned by President Marcos.
Prior to February 1986, no person was expected to have seriously dared question
the legality of the sale or would even have thought of investigating petitioners alleged
involvement in the transaction. It was only after the creation [68] of PCGG[69] and its
exhaustive investigations that the alleged crime was discovered. This led to the initiation
on November 29, 1988 of a Complaint against former President Marcos and petitioner
for violation of the Anti-Graft and Corrupt Practices Act. Consequently, the filing of the
Information on July 12, 1989 was well within the prescriptive period of ten years from
the discovery of the offense.

Fifth Issue
Immunity from Prosecution

Petitioner argues that he enjoys derivative immunity, because he allegedly served

as a high-ranking naval officer -- specifically, as naval aide-de-camp -- of former
President Marcos.[70] He relies on Section 17 of Article VII of the 1973 Constitution, as
amended, which we quote:

The President shall be immune from suit during his tenure. Thereafter, no suit
whatsoever shall lie for official acts done by him or by others pursuant to his specific
orders during his tenure.

xxxxxxxxx

As the Sandiganbayan aptly pointed out, the above provision is not applicable to
petitioner because the immunity amendment became effective only in 1981 while the
alleged crime happened in 1975.
In Estrada v. Desierto,[71] this Court exhaustively traced the origin of executive
immunity in order to determine the extent of its applicability. We explained therein that
executive immunity applied only during the incumbency of a President. It could not be
used to shield a non-sitting President from prosecution for alleged criminal acts done
while sitting in office. The reasoning of petitioner must therefore fail, since he derives his
immunity from one who is no longer sitting as President. Verily, the felonious acts of
public officials and their close relatives are not acts of the State, and the officer who
acts illegally is not acting as such but stands on the same footing as any other
trespasser.
In sum, petitioner utterly fails to show that the Sandiganbayan gravely abused its
discretion in issuing the assailed Resolutions.[72] On the contrary, it acted prudently, in
accordance with law and jurisprudence.
WHEREFORE, the Petition is DISMISSED, and the questioned Resolutions of the
Sandiganbayan AFFIRMED. Costs against petitioner.
SO ORDERED.
 Davide, Jr., C.J., Quisumbing, Carpio, Austria-Martinez, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ., concur.
Puno, Ynares-Santiago, and Sandoval-Gutierrez, JJ., in the result.
Corona, J., on leave.
Tinga, J., in the result. Please see separate opinion.
Chico-Nazario, J., no part. Ponente of assailed SB Resolutions.

[1]
Rollo, pp. 3-55.
[2]
Id., pp. 56-62.
[3]
Id., pp. 63-68. Fifth Division. Penned by Justice Minita V. Chico-Nazario (chairman), with the
concurrence of Justices Ma. Cristina G. Cortez-Estrada and Francisco H. Villaruz Jr. (members).
[4]
Sandiganbayan Resolution, p. 5; rollo, p. 62.
[5]
Anti-Graft and Corrupt Practices Act.
[6]
Sandiganbayan Resolution, pp. 1-3; rollo, pp. 56-60.
[7]
Id., p. 60.
[8]
Ibid.
[9]
Id., p. 64.
[10]
Id., p. 66.
[11]
This case was deemed submitted for resolution on March 6, 2003, upon this Courts receipt of
petitioners Memorandum, signed by Atty. Enrico Q. Fernando. The Memorandum of the Office of
the Ombudsman, signed by Deputy Special Prosecutor Robert E. Kallos, Director Rodrigo V.
Coquia, and Special Prosecution Officer Elvira C. Chua, was received by this Court on January
30, 2003. The Memorandum of the Office of the Solicitor General, signed by Solicitor General
Alfredo L. Benipayo, Assistant Solicitor General Alexander G. Gesmundo, and Associate Solicitor
Raymond C. de Lemos, was received on February 19, 2003.
[12]
Petitioners Memorandum, p. 6.
[13]
On October 8, 1999, petitioner had already filed a Motion to Quash, which was denied by the
Sandiganbayan on February 9, 2000. Then on June 19, 2001, he filed a Motion to Dismiss.
[14]
A motion for reconsideration is generally required prior to the filing of a petition for certiorari to allow the
tribunal an opportunity to correct its assigned errors (Lasco v. United Nations Revolving Fund for
Natural Resources Exploration, 241 SCRA 681, 684, February 23, 1995; Butuan Bay Wood
Export Corp. v. CA, 297 SCRA 297, 305, April 28, 1980). Being interlocutory, the order denying a
motion to quash is not appealable. The Order may, however, be reviewed in the ordinary course
of law by an appeal from the judgment after trial. (Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470,
July 10, 1998; Cruz v. CA, 194 SCRA 145, 152, February 18, 1991; Bulaong v. CA, 181 SCRA
618, 622, January 30, 1990; Gamboa v. Cruz, 162 Phil. 642, 652, June 27, 1988.)
[15]
4, Rule 65 of the Rules of Court.
[16]
Tan Jr. v. Sandiganbayan, 354 Phil. 463, 470, July 10, 1998; Cruz v. CA, 194 SCRA 145, 152, February 18,
1991; Bulaong v. CA, 181 SCRA 618, 622, January 30, 1990.
[17]
Governed by Rule 117.
[18]
Under Rule 16.
[19]
9, Rule 117 of the Rules of Court, states: The failure of the accused to assert any ground of a motion to
quash before he pleads to the complaint or information, either because he did not file a motion to
quash or failed to allege the same in said motion, shall be deemed a waiver of any objections
except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of section 3 of
this Rule. The exceptions refer to the following grounds: the facts do not constitute an offense,
lack of jurisdiction over the offense charged, extinction of the offense or penalty, and double
jeopardy.
[20]
The overbreadth doctrine x x x decrees that a governmental purpose may not be achieved by means
which sweep unnecessarily broadly and thereby invade the area of protected freedoms. Separate
 Opinion of Mr. Justice Vicente V. Mendoza in Estrada v. Sandiganbayan, 421 Phil. 290, 430,
November 19, 2001 (citing NAACP v. Alabama, 377 U.S. 288, 307, 12 L. Ed. 2d 325, 338
[1958]; Shelton v. Tucker, 364 U.S. 479, 5 L. Ed. 2d 231 [1960]).
[21]
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. Separate Opinion
of Mr. Justice Mendoza in Estrada v. Sandiganbayan 421 Phil. 290, 429-430, November 19, 2001
(citing Connally v. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 328 [1926]; in turn cited
in Ermita-Malate Hotel and Motel Operators Assn v. City Mayor, 20 SCRA 849, 867 [1967]).
[22]
Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan, supra.
[23]
Separate Opinion of Mr. Justice Panganiban in Estrada v. Sandiganbayan, supra.
[24]
271 US 500, June 7, 1926.
[25]
207 SCRA 712, March 31, 1992.
[26]
270 SCRA 106, March 19, 1997.
[27]
401 U.S. 37, 52-53, 27 L. Ed. 2d 669, 680 (1971), per Black, J.
[28]
Separate Opinion of Mr. Justice Mendoza in Estrada v. Sandiganbayan, supra.
[29]
Petitioners Memorandum, p. 9.
[30]
Id., p. 11.
[31]
Heirs of Juancho Ardona v. Reyes, 210 Phil. 187, 207, October 26, 1983; Peralta v. Commission on
Elections, 82 SCRA 30, 55, March 11, 1978; Ermita-Malate Hotel & Motel Operations
Association, Inc. v. Hon. City Mayor of Manila, 127 Phil. 306, 314, July 31, 1967.
[32]
Estrada v. Sandiganbayan, supra; Heirs of Juancho Ardona v. Reyes, supra; Peralta v. Commission on
Elections, supra.
[33]
Heirs of Juancho Ardona v. Reyes, supra; Peralta v. Commission on Elections, supra.
[34]
204 SCRA 516, December 2, 1991.
[35]
Id., p. 523, per Cruz, J.
[36]
Citing People v. Nazario, 165 SCRA 186, 195-196, August 31, 1988.
[37]
Ibid.
[38]
Citing State v. Hill, 189 Kan 403, 369 P2d 365, 91 ALR 2d 750.
[39]
Estrada v. Sandiganbayan, supra, p. 352, per Bellosillo, J.
[40]
349 Phil. 434, January 29, 1998.
[41]
Id., p. 462, per Romero, J.
[42]
Ibid.
[43]
Caltex v. Palomar, 18 SCRA 247, September 29, 1966, Estrada v. Sandiganbayan, supra, p. 443.
[44]
Citing 82 CJS 68, p. 113; People v. Ring, 70 P. 2d 281, 26 Cal. App 2d Supp. 768.
[45]
Citing Mustang Lumber, Inc. v. Court of Appeals, 257 SCRA 430, 448, June 18, 1996.
[46]
Citing PLDT v. Eastern Telecommunications Phil., Inc., 213 SCRA 16, 26, August 27, 1992.
[47]
Estrada v. Sandiganbayan, supra, pp. 347-348.
[48]
Websters Third New International Dictionary, 1993 ed., p. 11.
[49]
Petitioners Memorandum, p. 14.
[50]
Dans v. People, supra, p. 461.
[51]
Estrada v. Sandiganbayan, 427 Phil. 820, 858, February 26, 2002; People v. Arcillas, 348 SCRA 729,
733, December 27, 2000; U.S. v. Go Chanco, 23 Phil. 641, 645, December 28, 1912.
[52]
People v. Arcillas, supra.
[53]
Naya v. Abing, 398 SCRA 364, 369, February 27, 2003; Estrada v. Sandiganbayan, supra; Balitaan v.
CFI of Batangas, Branch II, 201 Phil. 311, 322, July 30, 1982.
[54]
Balitaan v. CFI of Batangas, Branch II, supra, p. 323; People v. Arbois, 138 SCRA 24, 32, August 5,
1985.
[55]
Naya v. Abing, supra, p. 369; Estrada v. Sandiganbayan, supra, p. 859; Balitaan v. CFI of Batangas,
Branch II, supra, p. 322.
[56]
Sandiganbayan Resolution, dated November 20, 2001, p. 2 (supra, p. 59); Office of the Special
Prosecutors Comment, p. 5 (rollo, p. 201); Comment of the Office of the Solicitor General, p. 8
(rollo, p. 224).
[57]
190 SCRA 226, October 2, 1990.
[58]
Petitioners Memorandum, pp. 21-22.
[59]
Cojuangco v. Presidential Commission on Good Government, supra, p. 255; See also Republic v.
Desierto, 416 Phil. 59, 65, August 23, 2001.
[60]
390 Phil. 917, July 14, 2000.
[61]
Id., p. 941.
[62]
Sandiganbayan Resolution dated February 9, 2000; rollo, p. 158.
[63]
Petitioners Memorandum, p. 24.
[64]
Ibid.
[65]
An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin to Run.
[66]
Salvador v. Desierto, GR No. 135249, January 16, 2004; Presidential Ad Hoc Fact-Finding Committee
on Behest Loans v. Desierto, 415 Phil. 723, August 22, 2001.
[67]
Republic v. Desierto, supra, pp. 76-78, per De Leon Jr., J.
[68]
On February 28, 1986, by virtue of Executive Order No. 1.
[69]
This Commission was tasked with the recovery of all ill-gotten wealth accumulated by former President
Ferdinand E. Marcos, his immediate family, relatives, subordinates and close associates, during
his administration; the investigation of cases of graft and corruption; and adoption of safeguards
and institution of adequate measures to prevent the occurrence of corruption.
[70]
Petitioners Memorandum, p. 31.
[71]
353 SCRA 452, 516-524, March 2, 2001, per Puno, J.
[72]
Land Bank of the Philippines v. Court of Appeals, supra; De Baron v. Court of Appeals, 368 SCRA 407,
415, October 26, 2001; Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, 170
SCRA 246, 254, February 13, 1989; Butuan Bay Wood Export Corp. v. Court of Appeals, 97
SCRA 297, 303, April 28, 1980.

ONG V. SANDIGANBAYAN (470 SCRA 7)

SECOND DIVISION

JOSE U. ONG and G.R. No. 126858

NELLY M. ONG,

Petitioners, Present:
PUNO, J.,

Chairman,

- versus - AUSTRIA-MARTINEZ ,

CALLEJO, SR.,

TINGA, and

SANDIGANBAYAN (THIRD CHICO-NAZARIO, JJ.

DIVISION) and OFFICE OF

THE OMBUDSMAN,

Respondents. Promulgated:

September 16, 2005

x --------------------------------------------------------------------x

DECISION

TINGA, J.:

This Petition for Certiorari,[1] dated December 13, 1996 seeks

the nullification of the Resolutions of the Sandiganbayan dated
August 18, 1994[2] and October 22, 1996.[3] The first
assailed Resolution denied petitioners motion to dismiss the petition
for forfeiture filed against them, while the second
questioned Resolution denied their motion for reconsideration.

The antecedents are as follows:

Congressman Bonifacio H. Gillego executed a Complaint-
Affidavit[4] on February 4, 1992, claiming that petitioner Jose U.
Ong, then Commissioner of the Bureau of Internal Revenue (BIR),
has amassed properties worth disproportionately more than his
lawful income. The complaint pertinently states:

In his Statement of Assets and Liabilities as of December 31, 1989

(Annex A), Commissioner Jose U. Ong declared P750,000.00 as his cash
on hand and in banks. Within a short period thereafter, he was able to
acquire prime real estate properties mostly in the millionaires choice
areas in Alabang, Muntinglupa, Metro Manila costing millions of pesos as
follows:

1. A house and lot in Alabang bought on October 9, 1990

for P5,500,000.00, now titled in the name of Jose U. Ong under
Transfer Certificate of Title No. 172168, Registry of Deeds for Makati
(Annexes B & C);

2. Another lot in Alabang bought for P5,700,000.00, now titled in the

name of Jose U. Ong and Nelly M. Ong under Transfer Certificate of
Title No. 173901. Registered on January 25, 1991 in the Registry of
Deeds for Makati (Annex D);

3. Still another lot in Alabang bought for P4,675,000.00 on January 16,

1991, now titled in the name of spouses Jose U. Ong and Nelly
Mercado Ong under Transfer Certificate of Title No. 173760 in the
Registry of Deeds for Makati (Annexes E and F);

4. Again, another lot in Alabang bought on December 3, 1990

for P5,055,000.00, now titled in the name of the Children of
Commissioner Ong and his son-in-law under transfer Certificate of
Title No. 173386 in the Registry of Deeds for Makati (Annex G and H);

5. Again, a lot in Makati bought for P832,000.00 on July 1, 1990, now

titled in the name of the Daughter of Commissioner Ong and his son-
in-law under transfer certificate of title No. 171210 in the Registry of
Deeds of Makati (Annex I & J).
 The above documented purchases of Commissioner Ong alone
which are worth millions of pesos are obviously disproportionate to his
income of just a little more than P200,000.00 per annum.[5]

Ong submitted an explanation and analysis of fund sourcing,

reporting his net worth covering the calendar years 1989 to 1991
and showing his sources and uses of funds, the sources of the
increase in his net worth and his net worth as of December 13,
1991.[6]

The Director of the Fact-Finding and Intelligence Bureau of

the Office of the Ombudsman (Ombudsman) ordered the conduct of
a pre-charge investigation on the matter. A Fact-Finding
Report[7] was promptly submitted with the following
recommendation:

1. Forfeiture Proceedings be instituted against the properties of Jose U.

Ong which he illegitimately acquired in just a span of two (2) years as
Commissioner of the Bureau of Internal Revenue. Such properties are
briefly specified as follows:

a) House and lot in Ayala Alabang bought on October 9, 1990

for P5.5 million under TCT No. 172168 of the Registry of Deeds
for Makati, Metro Manila;

b) Lot in Ayala Alabang bought on January 23, 1991 for P5.5

million under TCT No. 173901;

c) Lot in Ayala Alabang bought on January 16, 1991

for P4,675,000.00 under TCT No. 173760;

d) Lot in Ayala Alabang bought on December 3, 1990

for P5,055,000.00 under TCT No. 173386; and

e) Condominium Unit 804, located at the eight floor of the Asian

Mansion, bought for P744,585.00 under CCT No. 20735 of the
Registry of Deeds for Makati, Metro Manila.[8]
 Finding that a preliminary inquiry under Sec. 2 of Republic
Act No. 1379 (RA 1379) should be conducted, Ong was directed to
submit his counter-affidavit and other controverting evidence in
the Order[9] dated November 18, 1992. For this purpose, Ong was
furnished copies of Gillegos Complaint-Affidavit and the Fact-Finding
Report, with annexes and supporting documents.

Ong filed a Counter-Affidavit[10] dated December 21, 1992,

submitting his Statement of Assets and Liabilities for the years
1988-1990, income tax return for 1988, bank certificate showing
that he obtained a loan from Allied Banking Corporation (Allied
Bank), certificate from SGV & Co. (SGV) showing that he received
retirement benefits from the latter, a document entitled
Acknowledgement of Trust showing that he acquired one of the
questioned assets for his brother-in-law, and other documents
explaining the sources of funds with which he acquired the
questioned assets.

In view of Ongs arguments, the Ombudsman issued

another Order[11] dated February 11, 1993, the pertinent portions of
which state:

Results of the subpoena duces tecum ad testificandum

issued to Allied Banking Corporation, Sycip, Gorres, Velayo & Co.,
including the BIR insofar as it pertains to the production of the
documents that respondents claimed in justification of the sources
of his funding/income, proved negative since Allied Bank could not
produce documents that would show availment of the loan, nor
could SGV itemize the documents/vouchers that would, indeed
signify the grant and receipt of the claimed retirement benefits, as
well as the BIR insofar as it pertains on respondents filed income
tax returns for the years 1987, 1988, 1989, 1990 and 1991.

Such being the case, and in line with respondents defense as

claimed in his counter-affidavit that all his acquisitions were from
legitimate and valid sources based from his (respondents) salary and
 other sources of income, and he being the recipient thereof, copies of
which he is entitled as a matter of right and party recipient on the
claimed loan and retirement benefits, respondent Jose U. Ong, is hereby
directed to submit in writing within a period of fifteen (15) days from
receipt of this ORDER, the following, namely:--

a) all documents in his possession relevant to the approval by the

Allied Banking Corporation on the P6.5 million term loan including
documents in availment of the loan such as the execution of promissory
note/s, execution of real/chattel mortgage/s and the fact of its
registration with the Register of Deeds, credit agreements, receipt of
payment on amortization of the loan, if any, and such other pertinent
documents that will show existence and availment of the loan granted;

b) All documents in his possession that he was indeed granted by

SGV and Co. P7.8 million as retirement benefits including such
additional benefits as claimed as evidenced by vouchers, accounting
records, computation of benefits, that would signify fact of receipt of the
claimed retirement benefits;

c) All documents showing the money market placements such as but

not limited to the (a) confirmation sale on the placements and (b)
confirmation of the purchase on the placements;

d) Income tax returns as filed in the Bureau of Internal Revenue for

the years, 1987, 1988, 1989, 1990 and 1991.

Failure of the respondent to comply with this ORDER within the

period hereinabove prescribed shall be deemed a waiver on his part to
submit the required controverting evidence and that he has no evidence
on hand to show proof on the existence of the claimed defenses as above
set forth and that this case shall be considered for resolution without
further notice.[12]

Instead of complying with the Order, Ong filed

a Motion, dated February 17, 1993 for its recall, the voluntary
[13]

inhibition of the handling investigators, and reassignment of the

case. Ong objected to the proceedings taken thus far, claiming that
he was not notified of the subpoenas issued to SGV and Allied Bank
requiring them to substantiate Ongs claims. The Order allegedly
violates his right to due process and to be presumed innocent
because it requires him to produce evidence to exculpate himself.

A Resolution[14] dated May 31, 1993 was thereafter issued

finding that Ong miserably failed to substantiate his claim that the
sources of financing his said acquisition came from his other lawful
income, taking into account his annual salary of P200,000.00 more
or less and his cash standing at the time, even without considering
his normal expenses befitting his stature and position in the
Government, as well as his acquisition of movable properties for the
calendar year[s] 1989 to 1991, totaling P930,000.00, and
concluding that the properties acquired by him in a matter of
ELEVEN (11) MONTHS from October, 1990 to September, 1991,
during his incumbency as Commissioner of the Bureau of Internal
Revenue, are manifestly and grossly disproportionate to his salary
as a public official and his other lawful income.[15]

The Resolution directed the filing by the Ombudsman, in

collaboration with the Office of the Solicitor General (OSG), of a
petition for recovery of ill-gotten/unexplained wealth under RA
1379, in relation to RAs 3019 and 6770, against Ong and all other
persons concerned.
The Resolution was reviewed by the Office of the Special
Prosecutor (Special Prosecutor) which concurred with the findings
and recommendation of the Ombudsman.[16]

A Petition[17] dated November 15, 1993 for forfeiture of

unlawfully acquired property was accordingly filed before the
Sandiganbayan by the Republic, through the Special Prosecutor
and the Deputy Ombudsman for Luzon,[18] against Ong and his
wife, petitioner Nelly Ong, and docketed as Civil Case No. 0160.

The Petition alleged that the total value of the questioned

assets is P21,474,585.00 which is grossly disproportionate to Ongs
lawful income from his public employment and other sources
amounting to P1,060,412.50, considering that Nelly Ong has no
visible means of income. This circumstance allegedly gave rise to
the presumption under Sec. 2 of RA 1379 that the questioned
properties were unlawfully acquired.

In its Order[19] dated November 17, 1993, the Sandiganbayan

directed the issuance of a writ of preliminary attachment against
the properties of petitioners. The writ, issued on November 18,
1993, was duly served and implemented as shown in the Sheriffs
Return dated December 1, 1993.[20]

Petitioners Jose and Nelly Ong filed an Answer[21] dated

January 27, 1994, denying that their lawful income is grossly
disproportionate to the cost of the real properties they acquired
during the incumbency of Ong as BIR Commissioner. According to
them, the Special Prosecutor and the Ombudsman intentionally
failed to consider the retirement and separation pay Ong received
from SGV and other lawful sources of funds used in the acquisition
of the questioned properties.

They presented several affirmative defenses, such as the

alleged deprivation of their right to due process considering that no
preliminary investigation was conducted as regards Nelly Ong, and
the nullity of the proceedings before the Ombudsman because the
latter, who acted both as investigator and adjudicator in the
determination of the existence of probable cause for the filing of the
case, will also prosecute the same. Moreover, the Petition also
allegedly failed to state a cause of action because RA 1379 is
unconstitutional as it is vague and does not sufficiently define ill-
gotten wealth and how it can be determined in violation of the non-
delegation of legislative power provision, and insofar as it disregards
the presumption of innocence by requiring them to show cause why
the properties in question should not be declared property of the
state. They also objected to the fact that they were not notified of
the Resolution directing the filing of the case and were thereby
prevented from filing a motion for reconsideration.

A hearing of petitioners affirmative defenses was conducted as

in a motion to dismiss, after which the Sandiganbayan issued the
assailed Resolution dated August 18, 1994. The Sandiganbayan
ruled that a petition for forfeiture is an action in rem, civil in
character. As such, the participation of Nelly Ong in the inquiry to
determine whether the properties acquired by her husband are
manifestly disproportionate to his salary and other lawful income is
not a mandatory requirement. Neither is the conduct of a
preliminary investigation as regards Nelly Ong required. Further,
Nelly Ong was only impleaded in the petition as a formal party.

The court held that the power of the Ombudsman to

investigate and prosecute unexplained wealth cases is founded on
RAs 1379, 3019 and 6770. The Sandiganbayan, moreover, declared
that the Petition sufficiently states a cause of action.

Petitioners filed a Motion for Reconsideration[22] dated

September 11, 1994, averring that although a forfeiture proceeding
is technically a civil action, it is in substance a criminal proceeding
as forfeiture is deemed a penalty for the violation of RA 1379.
Hence, Nelly Ong is entitled to a preliminary investigation. To
proceed against her conjugal share of the questioned assets without
giving her the opportunity to present her side in a preliminary
investigation violates her right to due process.

Petitioners reiterated their argument that they were not

notified of the Resolution directing the filing of the petition for
forfeiture and were consequently deprived of their right to file a
motion for reconsideration under RA 6770 and pertinent rules.

The Sandiganbayan issued the second

assailed Resolution dated October 22, 1996, directing the
Ombudsman to furnish petitioners with a copy of the Resolution to
file the forfeiture case and giving them a period of five (5) days from
receipt of the Resolution within which to file a motion for
reconsideration. The Ombudsman was given a period of sixty (60)
days to resolve the motion for reconsideration and to report to the
court the action it has taken thereon.
 Instead of awaiting the Ombudsmans compliance with
the Resolution, petitioners filed the instant Petition for
Certiorari contending that the Sandiganbayan gravely abused its
discretion in ruling that Nelly Ong is not entitled to preliminary
investigation; failing to annul the proceedings taken before the
Ombudsman despite the alleged bias and prejudice exhibited by the
latter and the disqualification of the Ombudsman from acting both
as prosecutor and judge in the determination of probable cause
against petitioners; and failing to declare RA 1379 unconstitutional.

The OSG filed a Comment[23] dated December 10, 1997,

averring that the reason why Nelly Ong was not made a party to the
proceedings before the Ombudsman is because her husband never
mentioned any specific property acquired solely and exclusively by
her. What he stated was that all the acquisitions were through his
own efforts. Hence, the Sandiganbayan correctly held that Nelly
Ong is a mere formal party.

Furthermore, the presumption of innocence clause of the

Constitution refers to criminal prosecutions and not to forfeiture
proceedings which are civil actions in rem. The Constitution is
likewise not violated by RA 1379 because statutes which declare
that as a matter of law a particular inference follows from the proof
of a particular fact, one fact becoming prima facie evidence of
another, are not necessarily invalid, the effect of the presumption
being merely to shift the burden of proof upon the adverse party.

Neither is the constitutional authority of the Supreme Court to

promulgate rules concerning the protection and enforcement of
constitutional rights, pleading, practice and procedure in all courts
violated by RA 1379 merely by authorizing the OSG to grant
immunity from criminal prosecution to any person who testifies to
the unlawful manner in which a respondent has acquired any
property. There is no showing that the OSG or the Ombudsman is
about to grant immunity to anybody under RA 1379. At any rate,
the power to grant immunity in exchange for testimony has
allegedly been upheld by the Court.

The OSG further argued that the Ombudsman did not exhibit
any bias and partiality against Ong. It considered his claim that he
received retirement benefits from SGV, obtained a loan from Allied
Bank, and had high yielding money market placements, although it
found that these claims were unsubstantiated based on its
investigation. Moreover, the sending of subpoenas to SGV and
Allied Bank was in accordance with the powers of the Ombudsman
under RA 6770.

The OSG likewise alleged that RA 1379 is not vague as it

defines legitimately acquired property and specifies that the
acquisition of property out of proportion to the legitimate income of
a public officer is proscribed.

Petitioners filed a Reply to Comment[24] dated April 1, 1998,

reiterating their arguments.

In the Resolution[25] dated April 14, 1999, the Court gave due
course to the petition and required the parties to submit their
respective memoranda. Accordingly, petitioners filed
their Memorandum[26] dated June 29, 1999,
while the OSG submitted its Memorandum[27] dated September 27,
1999. The Special Prosecutor submitted its
own Memorandum[28]dated June 20, 1999.

We deny the petition.

 Petitioners contend that Nelly Ong was denied due process
inasmuch as no separate notices or subpoena were sent to her
during the preliminary investigation conducted by the Ombudsman.
They aver that Nelly Ong is entitled to a preliminary investigation
because a forfeiture proceeding is criminal in nature.

On the other hand, the OSG and the Ombudsman contend

that Nelly Ong is not entitled to preliminary
investigation, first, because forfeiture proceedings under RA 1379
are in the nature of civil actions in rem and preliminary
investigation is not required; second,because even assuming that
the proceeding is penal in character, the right to a preliminary
investigation is a mere statutory privilege which may be, and was in
this case, withheld by law; and third, because a preliminary
investigation would serve no useful purpose considering that none
of the questioned assets are claimed to have been acquired through
Nelly Ongs funds.

In Republic v. Sandiganbayan,[29] we ruled that forfeiture

proceedings under RA 1379 are civil in nature and not penal or
criminal in character, as they do not terminate in the imposition of
a penalty but merely in the forfeiture of the properties illegally
acquired in favor of the State. Moreover, the procedure outlined in
the law is that provided for in a civil action, viz:

Sec. 3. The petition.The petition shall contain the following

information:

(a) The name and address of the respondent.

(b) The public office or employment he holds and such other public
officer or employment which he has previously held.

(c) The approximate amount of property he has acquired during his

incumbency in his past and present offices and employments.

(d) A description of said property, or such thereof as has been identified

by the Solicitor General.
 (e) The total amount of his government salary and other proper earnings
and incomes from legitimately acquired property, and

(f) Such other information as may enable the court to determine whether
or not the respondent has unlawfully acquired property during his
incumbency.

Sec. 4. Period for the answer.The respondent shall have a period of

fifteen days within which to present his answer.

Sec. 5. Hearing.The court shall set a date for a hearing which may be
open to the public, and during which the respondent shall be given
ample opportunity to explain, to the satisfaction of the court, how he has
acquired the property in question.

Sec. 6. Judgment.If the respondent is unable to show to the

satisfaction of the court that he has lawfully acquired the property in
question, then the court shall declare such property, forfeited in favor of
the State, and by virtue of such judgment the property aforesaid shall
become property of the State: Provided, that no judgment shall be
rendered within six months before any general election or within three
months before any special election. The court may, in addition, refer
this case to the corresponding Executive Department for
administrative or criminal action, or both. [Emphasis supplied.]

Hence, unlike in a criminal proceeding, there is to be no reading of

the information, arraignment, trial and reading of the judgment in
the presence of the accused.[30]

In the earlier case of Cabal v. Kapunan,[31] however, we

declared that forfeiture to the State of property of a public official or
employee partakes of the nature of a penalty and proceedings for
forfeiture of property, although technically civil in form, are deemed
criminal or penal. We clarified therein that the doctrine laid down
in Almeda v. Perez[32] that forfeiture proceedings are civil in nature
applies purely to the procedural aspect of such proceedings and has
no bearing on the substantial rights of the respondents therein.
This ruling was reiterated in Katigbak v. Solicitor General,[33] where
we held that the forfeiture of property provided for in RA 1379 is in
the nature of a penalty.
 It is in recognition of the fact that forfeiture partakes the
nature of a penalty that RA 1379 affords the respondent therein the
right to a previous inquiry similar to a preliminary investigation in
criminal cases.

Preliminary investigation is an inquiry or proceeding to

determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial. Although the
right to a preliminary investigation is not a fundamental right
guaranteed by the Constitution but a mere statutory privilege, it is
nonetheless considered a component part of due process in criminal
justice.[34]

It is argued, however, that even if RA 1379 is considered a

criminal proceeding, Nelly Ong is still not entitled to a preliminary
investigation because the law itself withholds such right from a
respondent who is not himself or herself a public officer or
employee, such as Nelly Ong.

RA 1379, entitled An Act Declaring Forfeiture in Favor of the

State of Any Property Found to Have Been Unlawfully Acquired by
Any Public Officer or Employee and Providing for the Procedure
Therefor, expressly affords a respondent public officer or employee
the right to a previous inquiry similar to preliminary investigation in
criminal cases, but is silent as to whether the same right is enjoyed
by a co-respondent who is not a public officer or employee. Sec. 2
thereof provides:

Sec. 2. Filing of petition.Whenever any public officer or

employee has acquired during his incumbency an amount of property
which is manifestly out of proportion to his salary as such public officer
or employee and to his other lawful income and the income from
legitimately acquired property, said property shall be presumed prima
facie to have been unlawfully acquired. The Solicitor General, upon
complaint by any taxpayer to the city or provincial fiscal who
shall conduct a previous inquiry similar to preliminary
investigations in criminal cases and shall certify to the Solicitor
General that there is reasonable ground to believe that there has been
 committed a violation of this Act and the respondentis probably guilty
thereof, shall file, in the name and on behalf of the Republic of the
Philippines, in the Court of First Instance of the city or province where
said public officer or employee resides or holds office, a petition for a writ
commanding said officer or employee to show cause why the property
aforesaid, or any part thereof, should not be declared property of the
State: Provided, That no such petition shall be filed within one year
before any general election or within three months before any special
election.[Emphasis supplied.]

Is this silence to be construed to mean that the right to a

preliminary investigation is withheld by RA 1379 from a co-
respondent, such as Nelly Ong, who is not herself a public officer or
employee?

The answer is no.

It is a significant fact in this case that the questioned assets

are invariably registered under the names of both Jose and Nelly
Ong owing to their conjugal partnership. Thus, even as RA 1379
appears to be directed only against the public officer or employee
who has acquired during his incumbency an amount of property
which is manifestly out of proportion to his salary as such public
officer or employee and his other lawful income and the income
from legitimately acquired property, the reality that the application
of the law is such that the conjugal share of Nelly Ong stands to be
subjected to the penalty of forfeiture grants her the right, in line
with the due process clause of the Constitution, to a preliminary
investigation.

There is in this case, however, another legal complexion which

we have to deal with. As the OSG noted, there is nothing in the
affidavits and pleadings filed by petitioners which attributes the
acquisition of any of the questioned assets to Nelly Ong.

In his Counter-Affidavit, Ong explained that the questioned

assets were purchased using his retirement benefits from SGV
amounting to P7.8 Million, various money market placements, and
loan from Allied Bank in the amount of P6.5 Million. He averred:
 6. To fully explain the valid and legal acquisition of the foregoing
listed property pointing out the sources of funding, circumstances and
details of acquisition, the following information is related:

A. As to the acquisition of the lot covered by TCT No.

172168, located at Ayala Alabang, Muntinlupa, Metro
Manila, for P5,500,000.00 on October 9, 1990.

Respondents sources for the P5,500,000.00 were:

a. Interest from his money market placements up to September

30, 1990 --------------P2,404,643

b. Partial liquidation of money market placements -------------------

------------------------------P3,095,357

Total -----------------------------------------P5,500,000

A brief historical narration of the money placements made by

Respondent is included in the Report on the Statement of Net
Worth of Com. Jose U. Ong Calendar Year 1989 to 1991,
submitted by him to the Office of the Ombudsman, on or about
March 24, 1992.

After the acquisition of the above property, Respondents money

market placements were reduced to P4,365,834 (inclusive of interest
which was not used to finance the above acquisition, and which
remaining balance was rolled over as part of the placements.

B. As to the acquisition of the lot covered by TCT No.

173386, located at Ayala Alabang, Muntinlupa, Metro
Manila, on December 3, 1990, for P5,055,000.00.

Respondent was offered this lot, and finding the same to be a good
investment, he obtained a loan from the Allied Banking Corporation
for P6,500,000.00. P5,500,000 was used by him in the purchase of the
above property. Respondents credit worthiness is self evident from his
Statement of Assets and Liabilities as of end of December, 1989 where
his net worth is duly reflected to be P10.9 Million.

Xerox copy of the Certification executed by the Corporate

Secretary of Allied Banking Corporation attesting to the grant of a five (5)
year Term Loan of P6.5 Million pesos to Respondent on October 24,
1990, is attached and incorporated as Annex 3.

C. As to the acquisition of the lot covered by TCT No.

173760, located at Ayala Alabang, Muntinlupa, Metro
Manila, on January 16, 1991, for P4,675,000.00.

After the acquisition of the property described in the next

preceding sub-paragraph B, Respondent had available investible funds,
money market placements, in the total sum of P5,894,815.00, the details
of which are as follows:

Balance of Money Market placements after acquisition of the property

covered by TCT No. 173386 ------------ 4,365,834.00

Interest earned in the above money market placements up to December

31, 1990 ------------------------ 83,981.00

Unused portion of the loan of P6.5 Million ---- .P1,445,000.00

Total --------------------------- ..P5,894,815.00

From the foregoing balance of P5,894,815.00, came the P4,375,000.00

with which Respondent purchased the real property covered by TCT No.
173760. There remained a balance of P1,219,815.00.

D. As to the acquisition in Respondents name of the lot at

Ayala Alabang, Muntinlupa, Metro Manila, covered by
TCT No. 173901, on July 1, 1990.
 This is an acquisition that had to be made in Respondents name
for the benefit of Hamplish D. Mercado (respondents brother-in-law) and
Florentina S. Mercado, Filipino/Americans, both residents of Persippany,
New Jersey, U.S.A. The funding of this purchase came from Hamplish D.
Mercado who previously left funds with Respondent for the purpose of
acquiring suitable property where the Mercado spouses could stay when
they return to the Philippines upon retirement. Due to circumstances
prevailing at the time when the sale was executed, it was done in the
name of Respondent and his wife. Respondent immediately thereafter
executed an Acknowledgment of Trust stating the aforementioned fact,
duly notarized under date of 5 February 1991. Respondent has likewise
executed and signed a Deed of Absolute Sale, confirming the truth of all
the foregoing. Xerox copy of the said Acknowledgment of Trust dated
February 5, 1991, and the duly signed Deed of Absolute Sale still
undated, are hereto attached as Annexes 4 and 4-A, respectively.

E. As to the alleged acquisition of the lot at Makati, Metro Manila, covered by

TCT No. 171210 on July 1, 1990 for P832,000.00.

Regarding the aforementioned alleged acquisition, there was

even an acknowledgment of error in the very making of the charge.
Suffice it just to say that the Fact-Finding Report itself stated,
Hence, the accusation that it was Com. Ong who provided funds
for such acquisition is DEVOID of merit.

F. As to the acquisition of Condominium Unit covered by

CCT No. 20785.

Though not included in the Complaint-Affidavit, this was added by

Investigator Soguilon, and who unilaterally and arbitrarily declared its
acquisition by Respondent as coming from illegal means without
affording Respondent his constitutional right to due process. Had
respondent been afforded the opportunity to comment on the acquisition
of subject Condominium Unit, he could have readily explained the
purchase price of P744,585.00. Under No. 6-C of this statement, it
appears that there still remained an unused balance of P1,219,815.60.
Thus, even Respondents remaining investible funds easily covered the
purchase price.
 He acknowledges the unintentional omission of the Condominium
Unit in the listing of the same in his Statements of Assets and Liabilities.
However, as explained in the preceding paragraph the acquisition cost
of P744,585.00 is well within his readily available balance for investment
after the acquisition of the property covered by TCT No. 173760, which
is P1,219,815.60.[35]

Even as petitioners denied the allegation in the petition for

forfeiture that Nelly Ong has no visible means of income with which
she could have purchased the questioned assets, there is neither
indication nor pretense that Nelly Ong had a hand in the
acquisition of the properties. Jose Ong clearly declared
that he purchased the properties with his retirement funds, money
market placements, and proceeds from a bank loan. Whatever
defenses which Nelly Ong could have raised relative to the sources
of funds used in the purchase of the questioned assets are deemed
waived owing to the fact that they are subsumed in the submissions
of her husband. Hence, even if she is entitled to a preliminary
investigation, such an inquiry would be an empty ceremony.

We now consider Ongs allegations of bias and prejudice

exhibited by the Ombudsman during the preliminary investigation.

A perusal of the records reveals that the Graft Investigation

Officer duly considered Ongs explanation as to the sources of funds
with which he acquired the questioned assets. His averment that he
received retirement benefits from the SGV was understandably
disregarded because the only supporting document he presented
then was the certification of the controller of SGV to the effect that
he received such benefits. Ong was likewise unable to substantiate
his claim that he had money market placements as he did not
present any document evidencing such placements. Further, apart
from a certification from the corporate secretary of Allied Bank to
the effect that he obtained a loan from the said bank, no other
document, e.g., loan application, credit investigation report, loan
approval, schedule of loan releases, real estate mortgage document,
promissory notes, cancelled checks, receipts for amortization
payments, and statement of account, was presented to support the
claim.

Ong was even given the opportunity to present the documents

in his possession relevant to the approval of the Allied Bank loan,
his receipt of retirement benefits from SGV, and money market
placements which would have validated his assertion that all the
questioned acquisitions were from legitimate sources.[36] Up to this
point, therefore, we find that the Ombudsman did not make any
unwarranted conclusions or proceed with arbitrariness in the
conduct of the preliminary inquiry.

However, Ong calls the Courts attention to the fact that he was
not notified of the subpoenas duces tecum ad
testificandum apparently issued to SGV, Allied Bank and the BIR
and the proceedings taken thereon. This objection was raised in
his Motion[37] dated February 17, 1993, which was, unfortunately,
perfunctorily denied.

The Rules of Procedure of the Office of the

Ombudsman [38] provides that the preliminary investigation of cases
falling under the jurisdiction of the Sandiganbayan and Regional
Trial Court shall be conducted in the manner prescribed in Section
3, Rule 112 of the Rules of Court, subject to the following
provisions:

(f) If, after the filing of the requisite affidavits and their supporting
evidences, there are facts material to the case which the investigating
officer may need to be clarified on, he may conduct a clarificatory hearing
during which the parties shall be afforded the opportunity to be present
but without the right to examine or cross-examine the witness being
questioned. Where the appearance of the parties or witness is
impracticable, the clarificatory questioning may be conducted in writing,
whereby the questions desired to be asked by the investigating officer or
 a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and
under oath.

Ong, therefore, should have been notified of the subpoenas

duces tecum ad testificandum issued to SGV, Allied Bank and the
BIR. Although there is no indication on record that clarificatory
hearings were conducted pursuant to the subpoenas, Ong is
entitled to be notified of the proceedings and to be present thereat.
The fact that he was not so notified is a denial of fundamental
fairness which taints the preliminary investigation.

So, too, did the fact that Ong was not served a copy of
the Resolution directing the filing of a petition for forfeiture deprive
him of his statutory right to be furnished with a copy of
the Resolution to file a petition for forfeiture and to file a motion for
reconsideration therefrom with the Ombudsman within five (5) days
from receipt of such Resolution pursuant to Sec. 27 of RA 6770. The
law provides:

Sec. 27. Effectivity and Finality of Decisions.(1) All provisionary

orders of the Office of the Ombudsman are immediately effective and
executory.

A motion for reconsideration of any order, directive or decision of

the Office of the Ombudsman must be filed within five (5) days after
receipt of written notice . . . .

For these reasons, we find that the Sandiganbayan, in its

second assailed Resolution, correctly ordered the Ombudsman to
immediately furnish petitioners a copy of the Resolution to file the
petition for forfeiture, and gave petitioners a period of five (5) days
from receipt of such Resolution within which to file a motion for
reconsideration. Although the second
Sandiganbayan Resolution was only intended to remedy the
Ombudsmans failure to give petitioners a copy of the Resolution to
file the petition for forfeiture, it would also have served to cure the
Ombudsmans failure to notify petitioners of the issuance
of subpoenas duces tecum ad testificandum to SGV, Allied Bank and
the BIR.

Instead of awaiting the Ombudsmans compliance with

the Resolution and filing their motion for reconsideration
therefrom, however, petitioners opted to go directly to this Court.
With this maneuver, petitioners effectively deprived themselves of
an avenue of redress with the Sandiganbayan. They are deemed to
have waived their right to avail of the remedy afforded by the
second Resolution.

The next question is whether we should direct the

Ombudsman to rectify the errors committed during the preliminary
investigation, i.e., the failure to give Ong notice of the subpoenas
issued to SGV, Allied Bank and the BIR and notice of
the Resolution directing the filing of the petition for forfeiture.

To so order the Ombudsman at this point would no longer

serve any useful purpose and would only further delay the
proceedings in this case. Verily, petitioners have been allowed to
fully plead their arguments before this Court. After all has been
said, this case should now be allowed to proceed in its course.

Nonetheless, we find this an opportune time to admonish the

Ombudsman to be more circumspect in its conduct of preliminary
investigation to the end that participants therein are accorded the
full measure of their rights under the Constitution and our laws.

The other issues raised by petitioners concern the alleged

disqualification of the Ombudsman to file a petition for forfeiture
considering that it also conducted the preliminary investigation to
determine probable cause. According to petitioners, the duality of
the functions of the Ombudsman, as investigator and prosecutor,
impairs its ability to act as a fair and impartial magistrate in the
determination of probable cause.
 Petitioners are the first to agree that the Ombudsman is vested
with jurisdiction to investigate and prosecute any act or omission of
a public officer or employee when such act or omission appears to
be illegal, unjust, improper or inefficient. They recognize that the
Ombudsman has primary jurisdiction over cases, such as the
present one, cognizable by the Sandiganbayan.

The problem with petitioners contention is their assumption

that the Ombudsman, a constitutionally-created body, will not
perform its functions faithfully. The duality of roles which the
Ombudsman exercises does not necessarily warrant a conclusion
that it will be given to making a finding of probable cause in every
case.

At any rate, [I]n the debates on this matter in the

Constitutional Commission, it was stressed by the sponsors of the
Office of the Ombudsman that, whereas the original Tanodbayan
was supposed to be limited to the function of prosecution of cases
against public functionaries, generally for graft and corruption, the
former would be considered the champion of the citizen, to
entertain complaints addressed to him and to take all necessary
action thereon.[39] This should leave no doubt as regards the
constitutionality and propriety of the functions exercised by the
Ombudsman in this case.

Verily, the Court in Republic v. Sandiganbayan,[40] reviewed the

powers of the Ombudsman and held:

At present, the powers of the Ombudsman, as defined by Republic

Act No. 6770 corollary to Section 13, Article XI of the 1987 Constitution,
include, inter alia, the authority to: (1) investigate and prosecute on its
own or on complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or omission appears
to be illegal, unjust, improper or inefficient. It has primary jurisdiction
over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of such cases; and
(2) investigate and intiate the proper action for the recovery of ill-gotten
wealth and/or unexplained wealth amassed after February 25, 1986 and
the prosecution of the parties involved there.[41]
 In the same case, we declared that the Ombudsman has the
correlative powers to investigate and initiate the proper action for
the recovery of ill-gotten and/or unexplained wealth which were
amassed after February 25, 1986. There is therefore no merit in
petitioners contention that the absence of participation of the OSG
taints the petition for forfeiture with nullity.

Finally, the attacks against the constitutionality of RA 1379

because it is vague, violates the presumption of innocence and the
right against self incrimination, and breaches the authority and
prerogative of the Supreme Court to promulgate rules concerning
the protection and enforcement of constitutional rights, are
unmeritorious.

The law is not vague as it defines with sufficient particularity

unlawfully acquired property of a public officer or employee as that
which is manifestly out of proportion to his salary as such public
officer or employee and to his other lawful income and the income
from legitimately acquired property. It also provides a definition of
what is legitimately acquired property. Based on these parameters,
the public is given fair notice of what acts are proscribed. The law,
therefore, does not offend the basic concept of fairness and the due
process clause of the Constitution.

Neither is the presumption of innocence clause violated by

Sec. 2 of RA 1379 which states that property acquired by a public
officer or employee during his incumbency in an amount which is
manifestly out of proportion to his salary as such public officer or
employee and to his other lawful income and the income from
legitimately acquired property shall be presumed prima facie to have
been unlawfully acquired. As elaborated by Fr. Joaquin Bernas,
under the principle of presumption of innocence, it is merely
required of the State to establish a prima facie case, after which the
burden of proof shifts to the accused.[42] In People v. Alicante,[43] the
Court held:
 No rule has been better established in criminal law than that
every man is presumed to be innocent until his guilt is proved
beyond a reasonable doubt. In a criminal prosecution, therefore,
the burden is upon the State to prove every fact and circumstance
constituting the crime charged, for the purpose of showing the
guilt of the accused.

While that is the rule, many of the States have established a

different rule and have provided that certain facts only shall
constitute prima facie evidence, and that then the burden is put upon the
defendant to show or to explain that such facts or acts are not criminal.

It has been frequently decided, in case of statutory crimes, that no

constitutional provision is violated by a statute providing that proof by
the State of some material fact or facts shall constitute prima
facie evidence of guilt, and that then the burden is shifted to the
defendant for the purpose of showing that such act or acts are innocent
and are committed without unlawful intention.

. . . The State having the right to declare what acts are criminal,
within certain well defined limitations, has a right to specify what act or
acts shall constitute a crime, as well as what proof shall constitute prima
facie evidence of guilt, and then to put upon the defendant the burden of
showing that such act or acts are innocent and are not committed with
any criminal intent or intention.[44]

The constitutional assurance of the right against self

incrimination likewise cannot be invoked by petitioners. The right is
a prohibition against the use of physical or moral compulsion to
extort communications from the accused. It is simply a prohibition
against legal process to extract from the accuseds own lips, against
his will, admission of his guilt.[45] In this case, petitioners are not
compelled to present themselves as witnesses in rebutting the
presumption established by law. They may present documents
evidencing the purported bank loans, money market placements
and other fund sources in their defense.

As regards the alleged infringement of the Courts authority to

promulgate rules concerning the protection and enforcement of
constitutional rights, suffice it to state that there is no showing that
the Ombudsman or the OSG is about to grant immunity to anyone
under RA 1379. The question, therefore, is not ripe for adjudication.
 WHEREFORE, the petition is hereby DISMISSED. Costs
against petitioners.

SO ORDERED.

DANTE O. TINGA Associate

Justice

WE CONCUR:

REYNATO S. PUNO
Associate Justice
Chairman

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were

reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

REYNATO S. PUNO
Associate Justice
Chairman, Second Division

CERTIFICATION
 Pursuant to Section 13, Article VIII of the Constitution, and
the Division Chairmans Attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the
Courts Division.

HILARIO G. DAVIDE, JR.

Chief Justice

[1]Rollo, pp. 9-36.

[2] Id.
at 249-258; Penned by Associate Justice Sabino R. de Leon, Jr., (later Associate
Justice of the Supreme Court) and concurred in by Associate Justices Cipriano A. del Rosario
and Augusto M. Amores; Promulgated on August 22, 1994.

[3] Id. at 295-302; Promulgated on October 24, 1996.

[4] Id. at 38-41.

[5] Id. at 38.

[6] Id. at 42-51.


Director Agapito B. Rosales

[7] Id. at 52-93.


By Graft Investigation Officer II, Christopher S. Soguilon

[8] Id. at 91-92.

[9] Id. at 100-101.

[10]Id. at 103-111.

[11]Id. at 121-123.

[12]Id. at 122-123.

[13]Id. at 124-135.

[14]Id. at 136-150.

[15]Id. at 149.

[16]Id. at 152-156; Memorandum dated July 7, 1993.

[17]Sandiganbayan Records, pp. 1-6. Rollo, pp. 157-162.

[18]Ombudsman Conrado M. Vasquez inhibited himself in this case. Rollo, p. 162.

[19]Sandiganbayan Records, pp. 39-40.

 [20]Id. at 51-52.

[21]Id. at 76-96.

[22]Id. at 201-221.

[23]Rollo, pp. 365-389.

[24]Id. at 397-408.

[25]Id. at 414.

[26]Id. at 427-449.

[27]Id. at 476-500.

[28]Id. at 450-470.

[29]G.R. No. 152154, November 18, 2003, 416 SCRA 133.

[30]Ibid.

[31]116 Phil. 1361 (1962).

[32]116 Phil. 120 (1962).

[33]G.R. Nos. 19328 and 19329, December 22, 1989, 180 SCRA 540.

[34]Villaflor v. Vivar, G.R. No. 134744, January 16, 2001, 349 SCRA 194.

[35]Rollo, pp. 105-108.

[36]Id. at 121-123.

[37]Id. at 124-135.

[38]Administrative Order No. 07, Series of 1990.

[39]I. CRUZ, PHILIPPINE POLITICAL LAW, (2002) Ed., p. 366, citing Record of the

Constitutional Commission, Vol. II, p. 270.

[40]G.R. No. 90529, August 16, 1991, 200 SCRA 667.

[41]Id. at 679-680.

[42]People
v. Alicante, G.R. Nos. 127026-27, May 31, 2000, 332 SCRA 440, citing THE
1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES, A COMMENTARY, (1996), p.
447.

[43]Ibid, citing U.S. v. Luling, 34 Phil. 725 (1916).

[44]Id. at 457-458.

[45]People v. Malimit, G.R. No. 109775, November 14, 1996, 264 SCRA 467, citing Holt v.

United States, 218 U.S. 245.

13. OPLE V. TORRES (293 SCRA 141)

EN BANC

[G.R. No. 127685. July 23, 1998]

BLAS F. OPLE, petitioner, vs. RUBEN D. TORRES, ALEXANDER
AGUIRRE, HECTOR VILLANUEVA, CIELITO HABITO, ROBERT
BARBERS, CARMENCITA REODICA, CESAR SARINO, RENATO
VALENCIA, TOMAS P. AFRICA, HEAD OF THE NATIONAL
COMPUTER CENTER andCHAIRMAN OF THE COMMISSION ON
AUDIT, respondents.

DECISION
PUNO, J.:

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to
prevent the shrinking of the right to privacy, which the revered Mr. Justice Brandeis
considered as "the most comprehensive of rights and the right most valued by civilized
men."[1] Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled
"Adoption of a National Computerized Identification Reference System" on two
important constitutional grounds, viz: one, it is a usurpation of the power of Congress to
legislate, and two, it impermissibly intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights sought to be vindicated by the petitioner
need stronger barriers against further erosion.
A.O. No. 308 was issued by President Fidel V. Ramos on December 12, 1996 and
reads as follows:

"ADOPTION OF A NATIONAL COMPUTERIZED IDENTIFICATION

REFERENCE SYSTEM

WHEREAS, there is a need to provide Filipino citizens and foreign residents

with the facility to conveniently transact business with basic service and social
security providers and other government instrumentalities;

WHEREAS, this will require a computerized system to properly and efficiently

identify persons seeking basic services on social security and reduce, if not
totally eradicate, fraudulent transactions and misrepresentations;

WHEREAS, a concerted and collaborative effort among the various basic

services and social security providing agencies and other government
instrumentalities is required to achieve such a system;

NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

Philippines, by virtue of the powers vested in me by law, do hereby direct the
following:

SECTION 1. Establishment of a National Computerized Identification

Reference System. A decentralized Identification Reference System among
the key basic services and social security providers is hereby established.

SEC. 2 Inter-Agency Coordinating Committee. An Inter-Agency Coordinating

Committee (IACC) to draw-up the implementing guidelines and oversee the
implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:

Head, Presidential Management Staff

 Secretary, National Economic Development Authority
Secretary, Department of the Interior and
Local Government
Secretary, Department of Health
Administrator, Government Service Insurance
System,
Administrator, Social Security System, Administrator,
National Statistics Office Managing Director, National
Computer Center.

SEC. 3. Secretariat. The National Computer Center (NCC) is hereby

designated as secretariat to the IACC and as such shall provide administrative
and technical support to the IACC.

SEC. 4. Linkage Among Agencies. The Population Reference Number (PRN)

generated by the NSO shall serve as the common reference number to
establish a linkage amongconcerned agencies. The IACC Secretariat shall
coordinate with the different Social Security and Services Agencies to
establish the standards in the use of Biometrics Technology and in computer
application designs of their respective systems.

SEC. 5. Conduct of Information Dissemination Campaign. The Office of the

Press Secretary, in coordination with the National Statistics Office, the GSIS
and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise
public awareness on the importance and use of the PRN and the Social
Security Identification Reference.

SEC. 6. Funding. The funds necessary for the implementation of the system
shall be sourced from the respective budgets of the concerned agencies.

SEC. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall
submit regular reports to the Office of the President, through the IACC, on the
status of implementation of this undertaking.

SEC. 8. Effectivity. This Administrative Order shall take effect immediately.

DONE in the City of Manila, this 12th day of December in the year of Our
Lord, Nineteen Hundred and Ninety-Six.

(SGD.) FIDEL V. RAMOS"

A.O. No. 308 was published in four newspapers of general circulation on January
22, 1997 and January 23, 1997. On January 24, 1997, petitioner filed the instant petition
against respondents, then Executive Secretary Ruben Torres and the heads of the
government agencies, who as members of the Inter-Agency Coordinating Committee,
are charged with the implementation of A.O. No. 308. On April 8, 1997, we issued a
temporary restraining order enjoining its implementation.
Petitioner contends:

"A. THE ESTABLISHMENT OF A NATIONAL COMPUTERIZED

IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE ACT.
THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC
OF THE PHILIPPINES IS, THEREFORE, AN UNCONSTITUTIONAL
USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF
THE REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR

THE IMPLEMENTATION OF A.O. NO. 308 IS AN UNCONSTITUTIONAL
USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO
APPROPRIATE PUBLIC FUNDS FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE

GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE BILL OF RIGHTS
ENSHRINED IN THE CONSTITUTION."[2]

Respondents counter-argue:

A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD

WARRANT A JUDICIAL REVIEW;

B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND
ADMINISTRATIVE POWERS OF THE PRESIDENT WITHOUT
ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;

C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE

IDENTIFICATION REFERENCE SYSTEM MAY BE SOURCED FROM THE
BUDGETS OF THE CONCERNED AGENCIES;

D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. [3]

We now resolve.
I

As is usual in constitutional litigation, respondents raise the threshold issues relating

to the standing to sue of the petitioner and the justiciability of the case at bar. More
specifically, respondents aver that petitioner has no legal interest to uphold and that the
implementing rules of A.O. No. 308 have yet to be promulgated.
These submissions do not deserve our sympathetic ear. Petitioner Ople is a
distinguished member of our Senate. As a Senator, petitioner is possessed of the
requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is a
usurpation of legislative power.[4] As taxpayer and member of the Government Service
Insurance System (GSIS), petitioner can also impugn the legality of the misalignment of
public funds and the misuse of GSIS funds to implement A.O. No. 308.[5]
The ripeness for adjudication of the petition at bar is not affected by the fact that the
implementing rules of A.O. No. 308 have yet to be promulgated. Petitioner Ople assails
A.O. No. 308 as invalid per se and as infirmed on its face. His action is not premature
for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the
respondents themselves have started the implementation of A.O. No. 308 without
waiting for the rules. As early as January 19, 1997, respondent Social Security System
(SSS) caused the publication of a notice to bid for the manufacture of the National
Identification (ID) card.[6] Respondent Executive Secretary Torres has publicly
announced that representatives from the GSIS and the SSS have completed the
guidelines for the national identification system.[7] All signals from the respondents show
their unswerving will to implement A.O. No. 308 and we need not wait for the formality
of the rules to pass judgment on its constitutionality. In this light, the dissenters
insistence that we tighten the rule on standing is not a commendable stance as its result
would be to throttle an important constitutional principle and a fundamental right.
II

We now come to the core issues. Petitioner claims that A.O. No. 308 is not a
mere administrative order but a law and hence, beyond the power of the
President to issue. He alleges that A.O. No. 308 establishes a system of identification
that is all-encompassing in scope, affects the life and liberty of every Filipino citizen and
foreign resident, and more particularly, violates their right to privacy.
Petitioner's sedulous concern for the Executive not to trespass on the lawmaking
domain of Congress is understandable. The blurring of the demarcation line between
the power of the Legislature to make laws and the power of the Executive to execute
laws will disturb their delicate balance of power and cannot be allowed. Hence, the
exercise by one branch of government of power belonging to another will be given
a stricter scrutiny by this Court.
The line that delineates Legislative and Executive power is not
indistinct. Legislative power is "the authority, under the Constitution, to make laws, and
to alter and repeal them."[8] The Constitution, as the will of the people in their original,
sovereign and unlimited capacity, has vested this power in the Congress of the
Philippines.[9] The grant of legislative power to Congress is broad, general and
comprehensive.[10] The legislative body possesses plenary power for all purposes of civil
government.[11] Any power, deemed to be legislative by usage and tradition, is
necessarily possessed by Congress, unless the Constitution has lodged it
elsewhere.[12] In fine, except as limited by the Constitution, either expressly or impliedly,
legislative power embraces all subjects and extends to matters of general concern or
common interest.[13]
While Congress is vested with the power to enact laws, the President executes
the laws.[14] The executive power is vested in the President. [15] It is generally defined as
the power to enforce and administer the laws.[16] It is the power of carrying the laws into
practical operation and enforcing their due observance.[17]
As head of the Executive Department, the President is the Chief Executive. He
represents the government as a whole and sees to it that all laws are enforced by the
officials and employees of his department.[18] He has control over the executive
department, bureaus and offices. This means that he has the authority to assume
directly the functions of the executive department, bureau and office, or interfere with
the discretion of its officials.[19] Corollary to the power of control, the President also has
the duty of supervising the enforcement of laws for the maintenance of general peace
and public order. Thus, he is granted administrative power over bureaus and offices
under his control to enable him to discharge his duties effectively.[20]
Administrative power is concerned with the work of applying policies and
enforcing orders as determined by proper governmental organs.[21] It enables the
President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents.[22] To this end, he can issue administrative orders,
rules and regulations.
Prescinding from these precepts, we hold that A.O. No. 308 involves a subject
that is not appropriate to be covered by an administrative order. An administrative
order is:

"Sec. 3. Administrative Orders.-- Acts of the President which relate to particular aspects
of governmental operation in pursuance of his duties as administrative head shall be
promulgated in administrative orders."[23]
An administrative order is an ordinance issued by the President which relates to specific
aspects in the administrative operation of government. It must be in harmony with the
law and should be for the sole purpose of implementing the law and carrying out
the legislative policy.[24] We reject the argument that A.O. No. 308 implements the
legislative policy of the Administrative Code of 1987. The Code is a general law and
"incorporates in a unified document the major structural, functional and procedural
principles of governance"[25] and "embodies changes in administrative structures and
procedures designed to serve the people."[26] The Code is divided into seven (7)
Books:Book I deals with Sovereignty and General Administration, Book II with the
Distribution of Powers of the three branches of Government, Book III on the Office of
the President, Book IV on the Executive Branch, Book V on the Constitutional
Commissions, Book VI on National Government Budgeting, and Book VII on
Administrative Procedure. These Books contain provisions on the organization, powers
and general administration of the executive, legislative and judicial branches of
government, the organization and administration of departments, bureaus and offices
under the executive branch, the organization and functions of the Constitutional
Commissions and other constitutional bodies, the rules on the national government
budget, as well as guidelines for the exercise by administrative agencies of quasi-
legislative and quasi-judicial powers. The Code covers both the internal administration
of government, i.e, internal organization, personnel and recruitment, supervision and
discipline, and the effects of the functions performed by administrative officials on
private individuals or parties outside government.[27]
It cannot be simplistically argued that A.O. No. 308 merely implements the
Administrative Code of 1987. It establishes for the first time a National Computerized
Identification Reference System. Such a System requires a delicate adjustment of
various contending state policies-- the primacy of national security, the extent of privacy
interest against dossier-gathering by government, the choice of policies, etc. Indeed, the
dissent of Mr. Justice Mendoza states that the A.O. No. 308 involves the all-important
freedom of thought. As said administrative order redefines the parameters of some
basic rights of our citizenry vis-a-vis the State as well as the line that separates the
administrative power of the President to make rules and the legislative power of
Congress, it ought to be evident that it deals with a subject that should be covered by
law.
Nor is it correct to argue as the dissenters do that A.O. No. 308 is not a law
because it confers no right, imposes no duty, affords no protection, and creates no
office. Under A.O. No. 308, a citizen cannot transact business with government
agencies delivering basic services to the people without the contemplated identification
card. No citizen will refuse to get this identification card for no one can avoid dealing
with government. It is thus clear as daylight that without the ID, a citizen will have
difficulty exercising his rights and enjoying his privileges. Given this reality, the
contention that A.O. No. 308 gives no right and imposes no duty cannot stand.
Again, with due respect, the dissenting opinions unduly expand the limits of
administrative legislation and consequently erodes the plenary power of Congress to
make laws. This is contrary to the established approach defining the traditional limits of
administrative legislation. As well stated by Fisher: "x x x Many regulations however,
bear directly on the public. It is here that administrative legislation must be
restricted in its scope and application. Regulations are not supposed to be a
substitute for the general policy-making that Congress enacts in the form of a
public law. Although administrative regulations are entitled to respect, the
authority to prescribe rules and regulations is not an independent source of
power to make laws."[28]
III

Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it
cannot pass constitutional muster as an administrative legislation because
facially it violates the right to privacy. The essence of privacy is the "right to be let
alone."[29] In the 1965 case of Griswold v. Connecticut,[30] the United States Supreme
Court gave more substance to the right of privacy when it ruled that the right has a
constitutional foundation. It held that there is a right of privacy which can be found within
the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, [31] viz:

"Specific guarantees in the Bill of Rights have penumbras formed by

emanations from these guarantees that help give them life and substance x x
x. Various guarantees create zones of privacy. The right of association
contained in the penumbra of the First Amendment is one, as we have seen.
The Third Amendment in its prohibition against the quartering of soldiers `in
any house' in time of peace without the consent of the owner is another facet
of that privacy. The Fourth Amendment explicitly affirms the `right of the
people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.' The Fifth Amendment in its Self-
Incrimination Clause enables the citizen to create a zone of privacy which
government may not force him to surrender to his detriment. The Ninth
Amendment provides: `The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the people.'"

In the 1968 case of Morfe v. Mutuc,[32] we adopted the Griswold ruling that there is a
constitutional right to privacy. Speaking thru Mr. Justice, later Chief Justice, Enrique
Fernando, we held:
"xxx

The Griswold case invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several
fundamental constitutional guarantees." It has wider implications though. The
constitutional right to privacy has come into its own.

So it is likewise in our jurisdiction. The right to privacy as such is accorded

recognition independently of its identification with liberty; in itself, it is fully
deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: 'The concept of limited government has always included the
idea that governmental powers stop short of certain intrusions into the
personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the
individual, in all aspects of his life, is the hallmark of the absolute state. In
contrast, a system of limited government safeguards a private sector, which
belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector-- protection, in other
words, of the dignity and integrity of the individual--has become increasingly
important as modern society has developed. All the forces of a technological
age --industrialization, urbanization, and organization-- operate to narrow the
area of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference between
a democratic and a totalitarian society.'"
 Indeed, if we extend our judicial gaze we will find that the right of privacy is
recognized and enshrined in several provisions of our Constitution.[33] It is
expresslyrecognized in Section 3(1) of the Bill of Rights:

"Sec. 3. (1) The privacy of communication and correspondence shall be

inviolable except upon lawful order of the court, or when public safety or order
requires otherwise as prescribed by law."

Other facets of the right to privacy are protected in various provisions of the Bill of
Rights, viz:[34]

"Sec. 1. No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the
laws.

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

x x x.

Sec. 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except in the interest of national
security, public safety, or public health, as may be provided by law.

x x x.

Sec. 8. The right of the people, including those employed in the public and
private sectors, to form unions, associations, or societies for purposes not
contrary to law shall not be abridged.

Sec. 17. No person shall be compelled to be a witness against himself."

Zones of privacy are likewise recognized and protected in our laws. The Civil
Code provides that "[e]very person shall respect the dignity, personality, privacy and
peace of mind of his neighbors and other persons" and punishes as actionable torts
several acts by a person of meddling and prying into the privacy of another. [35] It also
holds a public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, [36] and recognizes the privacy of
letters and other private communications.[37] The Revised Penal Code makes a crime
the violation of secrets by an officer,[38] the revelation of trade and industrial
secrets,[39] and trespass to dwelling.[40] Invasion of privacy is an offense in special
laws like the Anti-Wiretapping Law,[41] the Secrecy of Bank Deposit Act[42] and the
Intellectual Property Code.[43] The Rules of Court on privileged communication likewise
recognize the privacy of certain information.[44]
Unlike the dissenters, we prescind from the premise that the right to privacy
is a fundamental right guaranteed by the Constitution, hence, it is the burden of
government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two
considerations: (1)the need to provide our citizens and foreigners with the facility to
conveniently transact business with basic service and social security providers and
other government instrumentalities and (2) the need to reduce, if not totally eradicate,
fraudulent transactions and misrepresentations by persons seeking basic services. It is
debatable whether these interests are compelling enough to warrant the issuance of
A.O. No. 308. But what is not arguable is the broadness, the vagueness, the
overbreadth of A.O. No. 308 which if implemented will put our people's right to
privacy in clear and present danger.
The heart of A.O. No. 308 lies in its Section 4 which provides for a Population
Reference Number (PRN) as a "common reference number to establish a linkage
among concerned agencies" through the use of "Biometrics Technology" and "computer
application designs."
Biometry or biometrics is "the science of the application of statistical methods to
biological facts; a mathematical analysis of biological data." [45] The term "biometrics"
has now evolved into a broad category of technologies which provide precise
confirmation of an individual's identity through the use of the individual's own
physiological and behavioral characteristics.[46] A physiological characteristic is a
relatively stable physical characteristic such as a fingerprint, retinal scan, hand
geometry or facial features. A behavioral characteristic is influenced by the
individual's personality and includes voice print, signature and keystroke. [47] Most
biometric identification systems use a card or personal identification number (PIN) for
initial identification. The biometric measurement is used to verify that the individual
holding the card or entering the PIN is the legitimate owner of the card or PIN.[48]
A most common form of biological encoding is finger-scanning where technology
scans a fingertip and turns the unique pattern therein into an individual number which is
called a biocrypt. The biocrypt is stored in computer data banks[49] and becomes a
means of identifying an individual using a service. This technology requires one's
fingertip to be scanned every time service or access is provided.[50] Another method is
the retinal scan. Retinal scan technology employs optical technology to map the
capillary pattern of the retina of the eye. This technology produces a unique print similar
to a finger print.[51] Another biometric method is known as the "artificial nose." This
device chemically analyzes the unique combination of substances excreted from the
skin of people.[52] The latest on the list of biometric achievements is
the thermogram. Scientists have found that by taking pictures of a face using infra-red
cameras, a unique heat distribution pattern is seen. The different densities of bone,
skin, fat and blood vessels all contribute to the individual's personal "heat signature." [53]
In the last few decades, technology has progressed at a galloping rate. Some
science fictions are now science facts. Today, biometrics is no longer limited to the
use of fingerprint to identify an individual. It is a new science that uses various
technologies in encoding any and all biological characteristics of an individual
for identification. It is noteworthy that A.O. No. 308 does not state what specific
biological characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage. Considering the banquet of
options available to the implementors of A.O. No. 308, the fear that it threatens
the right to privacy of our people is not groundless.
A.O. No. 308 should also raise our antennas for a further look will show that it
does not state whether encoding of data is limited to biological information alone
for identification purposes. In fact, the Solicitor General claims that the adoption of
the Identification Reference System will contribute to the "generation of population data
for development planning."[54] This is an admission that the PRN will not be used solely
for identification but for the generation of other data with remote relation to the avowed
purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the
government the roving authority to store and retrieve information for a purpose
other than the identification of the individual through his PRN.
 The potential for misuse of the data to be gathered under A.O. No. 308 cannot
be underplayed as the dissenters do. Pursuant to said administrative order, an
individual must present his PRN everytime he deals with a government agency to avail
of basic services and security. His transactions with the government agency will
necessarily be recorded-- whether it be in the computer or in the documentary file of the
agency. The individual's file may include his transactions for loan availments, income
tax returns, statement of assets and liabilities, reimbursements for medication,
hospitalization, etc. The more frequent the use of the PRN, the better the chance of
building a huge and formidable information base through the electronic linkage of
the files.[55] The data may be gathered for gainful and useful government purposes;
but the existence of this vast reservoir of personal information constitutes a
covert invitation to misuse, a temptation that may be too great for some of our
authorities to resist.[56]
We can even grant, arguendo, that the computer data file will be limited to the
name, address and other basic personal information about the individual. [57] Even that
hospitable assumption will not save A.O. No. 308 from constitutional infirmity for again
said order does not tell us in clear and categorical terms how these information
gathered shall be handled. It does not provide who shall control and access the
data, under what circumstances and for what purpose. These factors are essential
to safeguard the privacy and guaranty the integrity of the information. [58] Well to note, the
computer linkage gives other government agencies access to the information. Yet,
there are no controls to guard against leakage of information. When the access
code of the control programs of the particular computer system is broken, an intruder,
without fear of sanction or penalty, can make use of the data for whatever purpose, or
worse, manipulate the data stored within the system.[59]
It is plain and we hold that A.O. No. 308 falls short of assuring that personal
information which will be gathered about our people will only be processed
for unequivocally specified purposes.[60] The lack of proper safeguards in this regard
of A.O. No. 308 may interfere with the individual's liberty of abode and travel by
enabling authorities to track down his movement; it may also enable unscrupulous
persons to access confidential information and circumvent the right against self-
incrimination; it may pave the way for "fishing expeditions" by government authorities
and evade the right against unreasonable searches and seizures.[61] The possibilities of
abuse and misuse of the PRN, biometrics and computer technology are
accentuated when we consider that the individual lacks control over what can be
read or placed on his ID, much less verify the correctness of the data
encoded.[62] They threaten the very abuses that the Bill of Rights seeks to
prevent.[63]
The ability of a sophisticated data center to generate a comprehensive cradle-to-
grave dossier on an individual and transmit it over a national network is one of the
most graphic threats of the computer revolution.[64] The computer is capable of producing
a comprehensive dossier on individuals out of information given at different times and
for varied purposes.[65] It can continue adding to the stored data and keeping the
information up to date. Retrieval of stored data is simple. When information of a
privileged character finds its way into the computer, it can be extracted together with
other data on the subject.[66] Once extracted, the information is putty in the hands of any
person. The end of privacy begins.
Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions
would dismiss its danger to the right to privacy as speculative and hypothetical. Again,
we cannot countenance such a laidback posture. The Court will not be true to its role as
the ultimate guardian of the people's liberty if it would not immediately smother the
sparks that endanger their rights but would rather wait for the fire that could consume
them.
 We reject the argument of the Solicitor General that an individual has a
reasonable expectation of privacy with regard to the National ID and the use of
biometrics technology as it stands on quicksand. The reasonableness of a person's
expectation of privacy depends on a two-part test: (1) whether by his conduct, the
individual has exhibited an expectation of privacy; and (2) whether this expectation is
one that society recognizes as reasonable.[67] The factual circumstances of the case
determines the reasonableness of the expectation. [68] However, other factors, such as
customs, physical surroundings and practices of a particular activity, may serve to
create or diminish this expectation.[69] The use of biometrics and computer technology in
A.O. No. 308 does not assure the individual of a reasonable expectation of privacy. [70] As
technology advances, the level of reasonably expected privacy decreases.[71] The
measure of protection granted by the reasonable expectation diminishes as relevant
technology becomes more widely accepted.[72] The security of the computer data file
depends not only on the physical inaccessibility of the file but also on the advances in
hardware and software computer technology. A.O. No. 308 is so widely drawn that a
minimum standard for a reasonable expectation of privacy, regardless of
technology used, cannot be inferred from its provisions.
The rules and regulations to be drawn by the IACC cannot remedy this fatal
defect. Rules and regulations merely implement the policy of the law or order. On its
face,A.O. No. 308 gives the IACC virtually unfettered discretion to determine the metes
and bounds of the ID System.
Nor do our present laws provide adequate safeguards for
a reasonable expectation of privacy. Commonwealth Act No. 591 penalizes the
disclosure by any person of data furnished by the individual to the NSO with
imprisonment and fine.[73] Republic Act No. 1161 prohibits public disclosure of SSS
employment records and reports.[74] These laws, however, apply to records and data with
the NSO and the SSS. It is not clear whether they may be applied to data with the other
government agencies forming part of the National ID System. The need to clarify the
penal aspect of A.O. No. 308 is another reason why its enactment should be given to
Congress.
Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the
right of privacy by using the rational relationship test.[75] He stressed that the purposes
of A.O. No. 308 are: (1) to streamline and speed
up the implementation of basic government services, (2) eradicate fraud by avoiding
duplication of services, and (3) generate population data for development planning. He
concludes that these purposes justify the incursions into the right to privacy for the
means are rationally related to the end.[76]
We are not impressed by the argument. In Morfe v. Mutuc,[77] we upheld the
constitutionality of R.A. 3019, the Anti-Graft and Corrupt Practices Act, as a valid police
power measure. We declared that the law, in compelling a public officer to make an
annual report disclosing his assets and liabilities, his sources of income and expenses,
did not infringe on the individual's right to privacy. The law was enacted to promote
morality in public administration by curtailing and minimizing the opportunities for official
corruption and maintaining a standard of honesty in the public service. [78]
The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a
statute, not an administrative order. Secondly, R.A. 3019 itself is sufficiently
detailed. The law is clear on what practices were prohibited and penalized, and it was
narrowly drawn to avoid abuses. In the case at bar, A.O. No. 308 may have been
impelled by a worthy purpose, but, it cannot pass constitutional scrutiny for it is not
narrowly drawn. And we now hold that when the integrity of a fundamental right is
at stake, this court will give the challenged law, administrative order, rule or
regulation a stricter scrutiny. It will not do for the authorities to invoke the
presumption of regularity in theperformance of official duties. Nor is it enough for
the authorities to prove that their act is not irrational for a basic right can be
diminished, if not defeated, even when the government does not act
irrationally. They must satisfactorily show the presence of compelling state
interests and that the law, rule, or regulation is narrowly drawn to preclude
abuses. This approach is demanded by the 1987 Constitution whose entire matrix is
designed to protect human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in danger the rights
protected by the Constitution.
The case of Whalen v. Roe[79] cited by the Solicitor General is also off-line.
In Whalen, the United States Supreme Court was presented with the question of
whether the State of New York could keep a centralized computer record of the names
and addresses of all persons who obtained certain drugs pursuant to a doctor's
prescription. The New York State Controlled Substances Act of 1972 required
physicians to identify patients obtaining prescription drugs enumerated in the statute,
i.e., drugs with a recognized medical use but with a potential for abuse, so that the
names and addresses of the patients can be recorded in a centralized computer file of
the State Department of Health. The plaintiffs, who were patients and doctors, claimed
that some people might decline necessary medication because of their fear that the
computerized data may be readily available and open to public disclosure; and that
once disclosed, it may stigmatize them as drug addicts.[80] The plaintiffs alleged that the
statute invaded a constitutionally protected zone of privacy, i.e, the individual interest in
avoiding disclosure of personal matters, and the interest in independence in making
certain kinds of important decisions.The U.S. Supreme Court held that while an
individual's interest in avoiding disclosure of personal matters is an aspect of the right to
privacy, the statute did not pose a grievous threat to establish a constitutional
violation. The Court found that the statute was necessary to aid in the enforcement of
laws designed to minimize the misuse of dangerous drugs. The patient-identification
requirement was a product of an orderly and rational legislative decision made
upon recommendation by a specially appointed commission which held
extensive hearings on the matter. Moreover, the statute was narrowly drawn and
contained numerous safeguards against indiscriminate disclosure. The statute laid
down the procedure and requirements for the gathering, storage and retrieval of the
information. It enumerated who were authorized to access the data. It also prohibited
public disclosure of the data by imposing penalties for its violation. In view of these
safeguards, the infringement of the patients' right to privacy was justified by a valid
exercise of police power. As we discussed above, A.O. No. 308 lacks these vital
safeguards.
Even while we strike down A.O. No. 308, we spell out in neon that the Court is
not per se against the use of computers to accumulate, store, process, retrieve
and transmit data to improve our bureaucracy. Computers work wonders to achieve
the efficiency which both government and private industry seek. Many information
systems in different countries make use of the computer to facilitate important social
objectives, such as better law enforcement, faster delivery of public services, more
efficient management of credit and insurance programs, improvement of
telecommunications and streamlining of financial activities.[81] Used wisely, data stored in
the computer could help good administration by making accurate and comprehensive
information for those who have to frame policy and make key decisions. [82] The benefits
of the computer hasrevolutionized information technology. It developed the
internet,[83] introduced the concept of cyberspace[84] and the information superhighway
where the individual, armed only with his personal computer, may surf and search all
kinds and classes of information from libraries and databases connected to the net.
In no uncertain terms, we also underscore that the right to privacy does not
bar all incursions into individual privacy. The right is not intended to stifle
scientific and technological advancements that enhance public service and the
common good. It merely requires that the law be narrowly focused[85] and a compelling
interest justify such intrusions.[86] Intrusions into the right must be accompanied by proper
safeguards and well-defined standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual privacy will be subjected by this
Court to strict scrutiny. The reason for this stance was laid down in Morfe v. Mutuc, to
wit:

"The concept of limited government has always included the idea that governmental
powers stop short of certain intrusions into the personal life of the citizen. This is indeed
one of the basic distinctions between absolute and limited government. Ultimate and
pervasive control of the individual, in all aspects of his life, is the hallmark of the
absolute state. In contrast, a system of limited government safeguards a private sector,
which belongs to the individual, firmly distinguishing it from the public sector, which the
state can control. Protection of this private sector-- protection, in other words, of the
dignity and integrity of the individual-- has become increasingly important as modern
society has developed. All the forces of a technological age-- industrialization,
urbanization, and organization-- operate to narrow the area of privacy and facilitate
intrusion into it. In modern terms, the capacity to maintain and support this enclave of
private life marks the difference between a democratic and a totalitarian society." [87]

IV

The right to privacy is one of the most threatened rights of man living in a
mass society. The threats emanate from various sources-- governments, journalists,
employers, social scientists, etc.[88] In the case at bar, the threat comes from the
executive branch of government which by issuing A.O. No. 308 pressures the people to
surrender their privacy by giving information about themselves on the pretext that it will
facilitate delivery of basic services. Given the record-keeping power of the
computer, only the indifferent will fail to perceive the danger that A.O. No. 308
gives the government the power to compile a devastating dossier against
unsuspecting citizens. It is timely to take note of the well-worded warning of Kalvin,
Jr., "the disturbing result could be that everyone will live burdened by an unerasable
record of his past and his limitations. In a way, the threat is that because of its record-
keeping, the society will have lost its benign capacity to forget."[89] Oblivious to this
counsel, the dissents still say we should not be too quick in labelling the right to privacy
as a fundamental right. We close with the statement that the right to privacy was not
engraved in our Constitution for flattery.
IN VIEW WHEREOF, the petition is granted and Administrative Order No. 308
entitled "Adoption of a National Computerized Identification Reference System"
declared null and void for being unconstitutional.
SO ORDERED.

Narvasa, C.J., Melo, and Quisumbing, JJ., joins J. Kapunan and J. Mendoza in their
dissents.
Regalado, J., in the result.
Davide, Jr., in the result; joins J. Panganiban in his separate opinion.
Romero, Vitug and Panganiban, JJ., see separate opinion.
Kapunan, and Mendoza, JJ., see dissenting opinion.
Bellosillo, and Martinez, JJ., concur.
Purisima, J., joins J. Mendozas dissent.

[1]
Dissenting Opinion of Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 [1928].
[2]
Petition, p. 9, Rollo, p. 11.
[3]
Comment, pp. 6, 9, 14, 15, Rollo, pp. 65, 68, 73-74.
[4]
Philconsa v. Enriquez, 235 SCRA 506 [1994]; Guingona v. PCGG, 207 SCRA 659 [1992]; Tolentino v.
Commission on Elections, 41 SCRA 702 [1971].
[5]
Sanidad v. Commission on Elections, 73 SCRA 333 [1976]; Pascual v. Secretary of Public Works, 110
Phil. 331 [1960].
[6]
"Invitation to Bid," Annex "E" to the Petition, Rollo, p. 50.
[7]
Annex "B" to Petitioner's Reply, Rollo, p. 144.
[8]
Government of the Philippine Islands v. Springer, 50 Phil. 259, 276 [1927].
[9]
Section 1, Article VI, 1987 Constitution
[10]
Fernando, The Philippine Constitution, pp. 175-176 [1974].
[11]
Id., at 177; citing the concurring opinion of Justice Laurel in Schneckenburger v. Moran, 63 Phil. 249,
266 [1936].
[12]
Vera v. Avelino, 77 Phil. 192, 212 [1936].
[13]
See concurring opinion of Justice Laurel in Schneckenburger v. Moran, supra, at 266-267.
[14]
Government of the Philippine Islands v. Springer, 50 Phil. 259, 305 [1927].
[15]
Section 1, Article VII, 1987 Constitution.
[16]
Cruz, Philippine Political Law, p. 173 [1996].
[17]
Tanada and Carreon, Political Law of the Philippines, vol. 1, p. 275 [1961].
[18]
Section 17, Article VII of the 1987 Constitution provides:
"Sec. 17. The President shall have control of all the executive departments, bureaus and offices. He shall
ensure that the laws be faithfully executed."
[19]
Pelaez v. Auditor General, 15 SCRA 569, 583 [1965].
[20]
Sinco, Philippine Political Law, pp. 234-235 [1962].
[21]
Id., at 234.
[22]
Id., at 235.
[23]
Section 3, Chapter 2, Title I, Book III, Administrative Code of 1987.
[24]
Cruz, Philippine Administrative Law, p.18 (1991).
[25]
Third Whereas Clause, Administrative Code of 1987.
[26]
Fourth Whereas Clause, Administrative Code of 1987.
[27]
See Cortes, Philippine Administrative Law, pp. 2-5 [1984].
[28]
Fisher, Constitutional Conflicts Between Congress and the President, 4th ed., pp. 106-107.
[29]
Cooley on Torts, Sec. 135, vol. 1, 4th ed., [1932]; see also Warren and Brandeis, "The Right to
Privacy," 4 Harvard Law Review 193-220 [1890] - this article greatly influenced the enactment of privacy
statutes in the United States (Cortes, I., The Constitutional Foundations of Privacy, p. 15 [1970]).
[30]
381 U.S. 479, 14 L. ed. 2d 510 [1965].
[31]
AMENDMENT I [1791]
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
AMENDMENT III [1791]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
AMENDMENT IV [1791]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
AMENDMENT V [1791]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in
actual service in time of War or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
xxx
AMENDMENT IX [1791]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
[32]
22 SCRA 424, 444-445.
[33]
Morfe v. Mutuc, 22 SCRA 424, 444 [1968]; Cortes, The Constitutional Foundations of Privacy, p. 18
[1970].
[34]
Cortes, The Constitutional Foundations of Privacy, p. 18 [1970].
[35]
Article 26 of the Civil Code provides:
"Art. 26. Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors
and other persons. The following and similar acts, though they may not constitute a criminal offense, shall
produce a cause of action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family relations of another;
(3) Intriguing to cause another to be alienated from his friends;
(4) Vexing or humiliating another on account of his religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition."
[36]
Article 32, Civil Code.
[37]
Article 723, Civil Code.
[38]
Article 229, Revised Penal Code.
[39]
Articles 290-292, Revised Penal Code.
[40]
Article 280, Revised Penal Code.
[41]
R.A. 4200.
[42]
R.A. 1405.
[43]
R.A. 8293.
[44]
Section 24, Rule 130 [C], Revised Rules on Evidence.
[45]
"Biometry," Dorland's Illustrated Medical Dictionary, 24th ed. [1965]. "Biometry" or "biometrics" is
literally, the measurement of living things; but it is generally used to mean the application of mathematics
to biology. The term is now largely obsolete as a biological science since mathematical or statistical work
is an integral part of most biological disciplines (The Dictionary of Science [1993]).
[46]
"Biometric Identification," http://www.afmc.wpafb.af. mil/=organizations/HQ-
AFMC/LG/LSO/LOA/bio.html; see also "Biometrics Explained- Section-1,"
http://www.ncsa.com/services/consortia/cbdc/sec1.html.
[47]
Id.
[48]
Id.
[49]
Or in microchips of smart cards and magnetic strips of bank cards.
[50]
"Privacy at Risk, Finger-scanning for Ideology and Profit" [1998], file:///DI/commentary.html
[51]
"Biometric Identification," http://www.afmc.wpafb.af.mil/organizations/HQ-AFMC/LG/LSO/LOA/bio.html
[52]
"The Libertarian Library: Facing Up to Biometrics," The Mouse Monitor, The International Journal of
Bureau-Rat Control [1998], http://www.cyberhaven.com/libertarian/biomet.html.
[53]
Id. The thermogram is so accurate that it can tell identical twins apart and cannot be fooled by cosmetic
surgery or disguises, including facial hair.
[54]
"An updated national population register will provide a suitable base for all types of planning and
programming of government facilities and services" (Memorandum of the Solicitor General, p. 20, Rollo,
p. 210).
[55]
Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol.
135: 707, 717 [March 1985].
[56]
Sloan, I. Law of Privacy Rights in a Technological Society, p. 6 [1986].
[57]
Respondent GSIS, through counsel, claims that the basic information shall be limited to the individual's
full name, place of birth, date of birth, photograph, signature and thumbmark (Comment of Respondent
GSIS, p. 6, Rollo, p. 101).
[58]
Otani, K. "Information Security in the Network Age," 70 Philippine Law Journal, 1, 9 [1995].
[59]
Cortes, I., The Constitutional Foundations of Privacy, p. 12 (1970).
[60]
Simitis, "Reviewing Privacy in an Information Society," University of Pennsylvania Law Review, vol.
135: 707, 740 [March 1987].
[61]
Ibid., p. 718.
[62]
The right to control the collection, maintenance, use, and dissemination of data about oneself is called
"informational privacy" (Hancock, G., "California's Privacy Act: Controlling Government's Use of
Information? 32 Stanford Law Review no. 5, p. 1001 [May 1980]. The right to make personal decisions or
conduct personal activities without intrusion, observation or interference is called "autonomy privacy" (Hill
v. NCAA, 865 P. 2d 633, 652-654 [Cal. 1994].
[63]
Hosch, "The Interest in Limiting the Disclosure of Personal Information: A Constitutional Analysis,"
Vanderbilt Law Review vol. 36: 139, 142 [Jan. 1983].
[64]
Miller, "Personal Privacy in the Computer Age, The Challenge of a New Technology in an Information-
Oriented Society," 67 Michigan Law Review 1091, 1119 [1969]; see also Cortes, supra, at 13.
[65]
Cortes, I. The Constitutional Foundation Foundation of Privacy, p.12 [1970].
[66]
Id.
[67]
Rakas v. Illinois, 439 U.S. 128, 143-144 [1978]; see the decision and Justice Harlan's concurring
opinion in Katz v. United States, 389 U.S. 347, 353, 361, 19 L. ed. 2d 576, 583, 587-589 [1967]; see also
Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the Government's
Ability to Gather, Store, and Distribute Information" (Computer/Law Journal, vol. IX, pp. 359, 367, note 63
[1989]).
[68]
Kennedy, "Note: Emasculating a State's Constitutional Right to Privacy: The California Supreme
Court's Decision in Hill v. NCAA," Temple Law Review, vol. 68: 1497, 1517 [1995].
[69]
Id.
[70]
Southard, supra, at 369.
[71]
Id; see also Laurence H. Tribe, "The Constitution in Cyberspace: Law and Liberty Beyond the
Electronic Frontier," Keynote Address at the First Conference on Computers, Freedom and Privacy, at
Jim Warren & Computer Professionals for Social Responsibility [1991].
[72]
As one author has observed, previously, one could take steps to ensure an expectation of privacy in a
private place, e.g., locking of doors and closing of curtains. Because advances in surveillance technology
have made these precautions meaningless, the expectation of the privacy they offer is no longer
justifiable and reasonable-- Southard, supra, at 369.
[73]
Section 4, Commonwealth Act No. 591 [1940].
[74]
Sections 24 [c] and 28 [e], R.A. 1161, as amended.
[75]
Citing Morfe v. Mutuc, 22 SCRA 424, 445 [1968].
[76]
Comment of the Solicitor General, p. 16, Rollo, p. 75.
[77]
Op. cit., note 76.
[78]
Id., at 435.
[79]
429 U.S. 589, 51 L ed. 2d 64 [1977].
[80]
Some of the patients were children whose parents feared would be stigmatized by the State's central
filing system.
[81]
Sloan, Law of Privacy Rights in a Technological Society, p. 4 [1986].
[82]
Southard, "Individual Privacy and Governmental Efficiency: Technology's Effect on the Government's
Ability to Gather, Store, and Distribute Information," IX Computer/Law Journal 359, 360 [1989].
[83]
The Internet is a decentralized network interconnected by the TCP/IP protocol. The Net was started as
a military network ARPANET in 1969 by the US Department of Defense for the purpose of networking
main frame computers to prepare against missile weapons. It opened to public research organizations
and universities in 1983 and has been interconnected with commercial networks since 1990 (Kazuko
Otani, "Information Security in the Network Age," Philippine Law Journal, vol. 70: 1, 2 [1995]).
[84]
Cyberspace is a place located in no particular geographical location but available to anyone, anywhere
in the world, with access to the internet (Darrel Menthe, "Jurisdiction in Cyberspace: A Theory of
International Spaces 4 Mich. Tel. Tech. L. Rev. 3 (April 23, 1998), <http://www. law.umich.edu/
mttlr/volfour/menthe.html>.
[85]
Southard, supra, at 361-362
[86]
Id; White v. Davis, 533 P. 2d 222 [Cal. 1975]; City of Sta. Barbara v. Adamson, 610 P. 2d 436 [Cal.
1980]. In his concurring opinion in Whalen v. Roe, Justice Brennan stated that a statute that deprives an
individual of his privacy is not unconstitutional only if it was necessary to promote a compelling state
interest (429 U.S. 589, 606-607, 51 L. ed. 2d 64, 77- 78).
[87]
Morfe v. Mutuc, supra, at 444-445 citing Emerson, "Nine Justices in Search of a Doctrine," 64 Michigan
Law Review 219, 229 [1965].
[88]
See Shils, "Privacy: Its Constitution and Vicissitudes," Law and Contemporary Problems, vol. 31, pp.
301-303 [1966].
[89]
Harry Kalvin, Jr., "The Problems of Privacy in the Year 2000," Daedalus, vol. 96, pp. 876-879 [1967].

14. CHAVEZ V. COMMISSION ON ELECTIONS (437 SCRA 415)

15. LUCENA GRAND CENTRAL TERMINAL, INC. V. JAC LINER, INC. (452 SCRA
174)
16. CITY OF MANILA V. LAGUIO (455 SCRA 308)
17. TAÑADA V. TUVERA (146 SCRA 446)
18. DAVID V. AQUILIZAN (94 SCRA 707)
19. ANIAG V. COMMISSION ON ELECTIONS (237 SCRA 424)
20. BUSCAINO V. COMMISSION ON AUDIT (310 SCRA 635)
21. AMIL V. COURT OF APPEALS (316 SCRA 317)
22. VILLANUEVA V. MALAYA (330 SCRA 278)
23. IMMAM V. COMMISSION ON ELECTIONS (322 SCRA 866)
24. SEC. OF JUSTICE V. LANTION (343 SCRA 377)
25. STRONGHOLD INSURANCE CO., INC. V. COURT OF APPEALS (205 SCRA 605)
26. PEOPLE V. VERGARA (221 SCRA 560)
27. MONTEMAYOR V. ARANETA UNIV. FOUNDATION (77 SCRA 321)
28. NATIONAL POWER CO. V. DELA CRUZ (514 SCRA 56)
29. FRANCISCO V. COURT OF APPEALS (199 SCRA 595)
 30. RURAL BANK OF BUHI, INC. V. COURT OF APPEALS (162 SCRA 288)
31. POLLUTION ADJUDICATION BOARD V. COURT OF APPEALS (195 SCRA 112)
32. TELAN V. COURT OF APPEALS (202 SCRA 534)
33. ARIS (PHIL.), INC. V. NLRC (200 SCRA 246)
34. GO V. NATIONAL POLICE COMMISSION (271 SCRA 447)
35. STO. DOMINGO V. ORDOÑEZ (166 SCRA 123)
36. NATIONAL POLICE COMMISSION V. LOOD (127 SCRA 757)
37. GUZMAN V. NATIONAL UNIVERSITY (142 SCRA 699)
38. MARTINEZ V. GIRONELLA (65 SCRA 245)
39. TY V. BANCO FILIPINO SAVINGS AND MORTGAGE BANK (422 SCRA 649)
40. ZAMBALES CHROMITE MINING CO. V. COURT OF APPEALS (94 SCRA 261)
41. WEBB V. PEOPLE (276 SCRA 243)
42. REPUBLIC V. GINGOYON (478 SCRA 474)
43. PEOPLE V. RIVERA (362 SCRA 163)
44. PEREZ V. ESTRADA (360 SCRA 248)
45. PHILIPPINE JUDGES ASSN. V. PRADO (227 SCRA 703)
46. TABLARIN V. GUTIERREZ (152 SCRA 730)
47. SISON V. ANCHETA (130 SCRA 654)
48. HIMAGAN V. PEOPLE (237 SCRA 538)
49. TELECOMMUNICATIONS BROADCASTING AUTHORITY OF THE PHIL., INC.
V. COMMISSION ON ELECTIONS (289 SCRA 337)
50. VILLAREÑA V. COMMISSION ON AUDIT (408 SCRA 455)
51. FARIÑAS V. EXECUTIVE SECRETARY (417 SCRA 503)
52. PEOPLE V. JALOSJOS (324 SCRA 689)
53. CENTRAL BANK EMPLOYEES ASSN., INC. V. BANGKO SENTRAL NG
PILIPINAS (446 SCRA
299)
54. SUPERLINES TRANSPO CO., INC. V. PNCC (519 SCRA 432)
55. PEOPLE V. GONZALES (365 SCRA 17)
56. ALIH V. CASTRO (151 SCRA 279)
57. DAVID V. ARROYO (489 SCRA 160)
58. MATA V. BAYONA (128 SCRA 388)
59. LIM V. FELIX (194 SCRA 292)
60. SEC. OF JUSTICE V. MARCOS (76 SCRA 301)
 61. KHO V. MAKALINTAL (306 SCRA 70)
62. PEOPLE V. ESTRADA (296 SCRA 383)
63. PEOPLE V. LEANGSIRI (252 SCRA 213)
64. PEOPLE V. OLAES (188 SCRA 91)
65. PEOPLE V. VALDEZ 341 SCRA 25)
66. PEOPLE V. EVARISTO (216 SCRA 431)
67. VALMONTE V. DE VILLA (178 SCRA 211)
68. PEOPLE V. DAMASO (212 SCRA 547)
69. PEOPLE V. JOHNSON (348 SCRA 526)
70. PEOPLE V. ALOLOD (266 SCRA 154)
71. PEOPLE V. BURGOS (144 SCRA 1)
72. SANIDAD V. COMMISSION ON ELECTIONS (181 SCRA 529)
73. IGLESIA NI CRISTO V. COURT OF APPEALS (259 SCRA 529)
74. SOCIAL WEATHER STATION, INC. V. COMMISSION ON ELECTIONS (357
SCRA 496)
75. BORJAL V. COURT OF APPEALS (301 SCRA 1)
76. IN RE JURADO, ADM. MATTER NO. 90 – 5 – 2373, 12 JULY 1990)
77. EBRALINAG V. DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU (219
SCRA 256)
78. TOLENTINO V. SECRETARY OF FINANCE (235 SCRA 630)
79. ISLAMIC DA’WAH COUNCIL OF THE PHILIPPINES, INC. V. OFFICE OF THE
EXECUTIVE
SECRETARY (405 SCRA 497)
80. ESTRADA V. ESCRITOR (492 SCRA 1)