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Republic of the Philippines


SUPREME COURT

Manila

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 and CHAIRMAN OF THE COMMISSION ON AUDIT, respondents.

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 intrumentalities 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:

Sec. 1. Establishment of a National Compoterized 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 among concerned 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 ESTABLISNMENT 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.

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
Petitioner’s contention
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 Presidents. 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 structure 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 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 guideline 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.D. No. 308 is not a law because it confers no right,
imposes no duty, affords no proctection, 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: ". . . Many
regulations however, bear directly on the public. It is here that administrative legislation must he
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 . . . 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 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 xxx xxx

The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal
offence 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 expressly recognized 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 protectad 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.

xxx xxx xxx

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.

xxx xxx xxx

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, 38the 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 Deposits 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 provides 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 applicatin of statistical methods to biological facts; a
mathematical analysis of biological data." 45 The term "biometrics" has 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 idenfication systems use a card or personal identificatin
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 banquest 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 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 undarplayed 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 formidable informatin 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 infomation 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 he 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
Application to BOR:
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 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 date 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. 66Once 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 Natioal 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 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. gives the IACC virtually infettered discretion
to determine the metes and bounds of the ID System.

Nor do your present laws prvide 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 cocludes 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 hod that when the integrity of a fundamental right is at stake, this court will
give the challenged law, administrative order, rule or regulation a stricter scrutiny. It will not do for the
authorities to invoke the presumption of regularity in the performance of official duties. Nor is it enough
for the authorities to prove that their act is not irrational for a basic right can be diminished, if not
defeated, even when the government does not act irrationally. They must satisfactorily show the presence
of compelling state interests and that the law, rule or regulation is narrowly drawn to preclude abuses.
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 Constitutions.

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 Substance Act of 1972 required
physicians to identify parties 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 disclosuer of personal matter 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 recommmendation 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 informatin. It ebumerated 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 agains the use of
computers to accumulate, store, process, retvieve and transmit data to improve our bureaucracy.
Computers work wonders to achieve the efficiency which both government and private industry seek.
Many information system in different countries make use of the computer to facilitate important social
objective, 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 has revolutionized 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 disctinctions
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 th 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 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 Adminisrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" declared null and void for being
unconstitutional.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 181881               October 18, 2011

BRICCIO "Ricky" A. POLLO, Petitioner, 



vs.

CHAIRPERSON KARINA CONSTANTINO-DAVID, DIRECTOR IV RACQUEL DE GUZMAN BUENSALIDA,
DIRECTOR IV LYDIA A. CASTILLO, DIRECTOR III ENGELBERT ANTHONY D. UNITE AND THE CIVIL
SERVICE COMMISSION, Respondents.

D E C I S I O N

VILLARAMA, JR., J.:

This case involves a search of office computer assigned to a government employee who was charged
administratively and eventually dismissed from the service. The employee’s personal files stored in the computer
were used by the government employer as evidence of misconduct.

Before us is a petition for review on certiorari under  Rule 45  which seeks to reverse and set aside the
Decision1dated October 11, 2007 and Resolution2 dated February 29, 2008 of the Court of Appeals (CA). The CA
dismissed the petition for certiorari (CA-G.R. SP No. 98224) filed by petitioner Briccio "Ricky" A. Pollo to nullify
the proceedings conducted by the Civil Service Commission (CSC) which found him guilty of dishonesty, grave
misconduct, conduct prejudicial to the best interest of the service, and violation of Republic Act (R.A.) No. 6713
and penalized him with dismissal.

The factual antecedents:

Petitioner is a former Supervising Personnel Specialist of the CSC Regional Office No. IV and also the Officer-in-
Charge of the Public Assistance and Liaison Division (PALD) under the "Mamamayan Muna Hindi Mamaya Na"
program of the CSC.

On January 3, 2007 at around 2:30 p.m., an unsigned letter-complaint addressed to respondent CSC
Chairperson Karina Constantino-David which was marked "Confidential" and sent through a courier service
(LBC) from a certain "Alan San Pascual" of Bagong Silang, Caloocan City, was received by the Integrated
Records Management Office (IRMO) at the CSC Central Office. Following office practice in which documents
marked "Confidential" are left unopened and instead sent to the addressee, the aforesaid letter was given
directly to Chairperson David.

The letter-complaint reads:

The Chairwoman

Civil Service Commission

Batasan Hills, Quezon City

Dear Madam Chairwoman,

Belated Merry Christmas and Advance Happy New Year!

As a concerned citizen of my beloved country, I would like to ask from you personally if it is just alright for an
employee of your agency to be a lawyer of an accused gov’t employee having a pending case in the csc. I
honestly think this is a violation of law and unfair to others and your office.

I have known that a person have been lawyered by one of your attorny in the region 4 office. He is the chief of
the Mamamayan muna hindi mamaya na division. He have been helping many who have pending cases in the
Csc. The justice in our govt system will not be served if this will continue. Please investigate this anomaly
because our perception of your clean and good office is being tainted.

Concerned Govt employee3 



Chairperson David immediately formed a team of four personnel with background in information technology (IT),
and issued a memo directing them to conduct an investigation and specifically "to back up all the files in the
computers found in the Mamamayan Muna (PALD) and Legal divisions."4  After some briefing, the team
proceeded at once to the CSC-ROIV office at Panay Avenue, Quezon City. Upon their arrival thereat around 5:30
p.m., the team informed the officials of the CSC-ROIV, respondents Director IV Lydia Castillo (Director Castillo)
and Director III Engelbert Unite (Director Unite) of Chairperson David’s directive.

The backing-up of all files in the hard disk of computers at the PALD and Legal Services Division (LSD) was
witnessed by several employees, together with Directors Castillo and Unite who closely monitored said activity.
At around 6:00 p.m., Director Unite sent text messages to petitioner and the head of LSD, who were both out of
the office at the time, informing them of the ongoing copying of computer files in their divisions upon orders of
the CSC Chair. The text messages received by petitioner read:

"Gud p.m. This is Atty. Unite FYI: Co people are going over the PCs of PALD and LSD per instruction of the
Chairman. If you can make it here now it would be better."

"All PCs Of PALD and LSD are being backed up per memo of the chair."

"CO IT people arrived just now for this purpose. We were not also informed about this.

"We can’t do anything about … it … it’s a directive from chair."

"Memo of the chair was referring to an anonymous complaint"; "ill send a copy of the memo via mms"5

Petitioner replied also thru text message that he was leaving the matter to Director Unite and that he will just get
a lawyer. Another text message received by petitioner from PALD staff also reported the presence of the team
from CSC main office: "Sir may mga taga C.O. daw sa kuarto natin."6 At around 10:00 p.m. of the same day, the
investigating team finished their task. The next day, all the computers in the PALD were sealed and secured for
the purpose of preserving all the files stored therein. Several diskettes containing the back-up files sourced from
the hard disk of PALD and LSD computers were turned over to Chairperson David. The contents of the diskettes
were examined by the CSC’s Office for Legal Affairs (OLA). It was found that most of the files in the 17 diskettes
containing files copied from the computer assigned to and being used by the petitioner, numbering about 40 to
42 documents, were draft pleadings or letters7  in connection with administrative cases in the CSC and other
tribunals. On the basis of this finding, Chairperson David issued the Show-Cause Order8 dated January 11, 2007,
requiring the petitioner, who had gone on extended leave, to submit his explanation or counter-affidavit within
five days from notice.

Evaluating the subject documents obtained from petitioner’s personal files, Chairperson David made the
following observations:

Contents of the PC
Most of the foregoing files are drafts of legal pleadings or documents that are related to or connected with
administrative cases that may broadly be lumped as pending either in the CSCRO No. IV, the CSC-NCR, the
CSC-Central Office or other tribunals. It is also of note that most of these draft pleadings are for and on behalves
of parties, who are facing charges as respondents in administrative cases. This gives rise to the inference that
the one who prepared them was knowingly, deliberately and willfully aiding and advancing interests adverse and
inimical to the interest of the CSC as the central personnel agency of the government tasked to discipline
misfeasance and malfeasance in the government service. The number of pleadings so prepared further
demonstrates that such person is not merely engaged in an isolated practice but pursues it with seeming
regularity. It would also be the height of naivete or credulity, and certainly against common human experience, to
believe that the person concerned had engaged in this customary practice without any consideration, and in
fact, one of the retrieved files (item 13 above) appears to insinuate the collection of fees. That these draft
pleadings were obtained from the computer assigned to Pollo invariably raises the presumption that he was the
one responsible or had a hand in their drafting or preparation since the computer of origin was within his direct
control and disposition.9

Petitioner’s COntenrtion
Petitioner filed his Comment, denying that he is the person referred to in the anonymous letter-complaint which
had no attachments to it, because he is not a lawyer and neither is he "lawyering" for people with cases in the
CSC. He accused CSC officials of conducting a "fishing expedition" when they unlawfully copied and printed
personal files in his computer, and subsequently asking him to submit his comment which violated his right
against self-incrimination. He asserted that he had protested the unlawful taking of his computer done while he
was on leave, citing the letter dated January 8, 2007 in which he informed Director Castillo that the files in his
computer were his personal files and those of his sister, relatives, friends and some associates and that he is not
authorizing their sealing, copying, duplicating and printing as these would violate his constitutional right to
privacy and protection against self-incrimination and warrantless search and seizure. He pointed out that though
government property, the temporary use and ownership of the computer issued under a Memorandum of
Receipt (MR) is ceded to the employee who may exercise all attributes of ownership, including its use for
personal purposes. As to the anonymous letter, petitioner argued that it is not actionable as it failed to comply
with the requirements of a formal complaint under the Uniform Rules on Administrative Cases in the Civil Service
(URACC). In view of the illegal search, the files/documents copied from his computer without his consent is thus
inadmissible as evidence, being "fruits of a poisonous tree."10

On February 26, 2007, the CSC issued Resolution No. 07038211 finding prima facie case against the petitioner
and charging him with Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of R.A. No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). Petitioner
was directed to submit his answer under oath within five days from notice and indicate whether he elects a
formal investigation. Since the charges fall under Section 19 of the URACC, petitioner was likewise placed under
90 days preventive suspension effective immediately upon receipt of the resolution. Petitioner received a copy of
Resolution No. 070382 on March 1, 2007.

Petitioner filed an Omnibus Motion (For Reconsideration, to Dismiss and/or to Defer) assailing the formal charge
as without basis having proceeded from an illegal search which is beyond the authority of the CSC Chairman,
such power pertaining solely to the court. Petitioner reiterated that he never aided any people with pending
cases at the CSC and alleged that those files found in his computer were prepared not by him but by certain
persons whom he permitted, at one time or another, to make use of his computer out of close association or
friendship. Attached to the motion were the affidavit of Atty. Ponciano R. Solosa who entrusted his own files to
be kept at petitioner’s CPU and Atty. Eric N. Estrellado, the latter being Atty. Solosa’s client who attested that
petitioner had nothing to do with the pleadings or bill for legal fees because in truth he owed legal fees to Atty.
Solosa and not to petitioner. Petitioner contended that the case should be deferred in view of the prejudicial
question raised in the criminal complaint he filed before the Ombudsman against Director Buensalida, whom
petitioner believes had instigated this administrative case. He also prayed for the lifting of the preventive
suspension imposed on him. In its Resolution No. 07051912 dated March 19, 2007, the CSC denied the omnibus
motion. The CSC resolved to treat the said motion as petitioner’s answer.

On March 14, 2007, petitioner filed an Urgent Petition13 under Rule 65 of the Rules of Court, docketed as CA-
G.R. SP No. 98224, assailing both the January 11, 2007 Show-Cause Order and Resolution No. 070382 dated
February 26, 2007 as having been issued with grave abuse of discretion amounting to excess or total absence of
jurisdiction. Prior to this, however, petitioner lodged an administrative/criminal complaint against respondents
Directors Racquel D.G. Buensalida (Chief of Staff, Office of the CSC Chairman) and Lydia A. Castillo (CSC-RO IV)
before the Office of the Ombudsman, and a separate complaint for disbarment against Director Buensalida.14

On April 17, 2007, petitioner received a notice of hearing from the CSC setting the formal investigation of the
case on April 30, 2007. On April 25, 2007, he filed in the CA an Urgent Motion for the issuance of TRO and
preliminary injunction.15  Since he failed to attend the pre-hearing conference scheduled on April 30, 2007, the
CSC reset the same to May 17, 2007 with warning that the failure of petitioner and/or his counsel to appear in
the said pre-hearing conference shall entitle the prosecution to proceed with the formal investigation ex-parte.
16 Petitioner moved to defer or to reset the pre-hearing conference, claiming that the investigation proceedings

should be held in abeyance pending the resolution of his petition by the CA. The CSC denied his request and
again scheduled the pre-hearing conference on May 18, 2007 with similar warning on the consequences of
petitioner and/or his counsel’s non-appearance.17  This prompted petitioner to file another motion in the CA, to
cite the respondents, including the hearing officer, in indirect contempt.18

On June 12, 2007, the CSC issued Resolution No. 07113419 denying petitioner’s motion to set aside the denial of
his motion to defer the proceedings and to inhibit the designated hearing officer, Atty. Bernard G. Jimenez. The
hearing officer was directed to proceed with the investigation proper with dispatch.

In view of the absence of petitioner and his counsel, and upon the motion of the prosecution, petitioner was
deemed to have waived his right to the formal investigation which then proceeded ex parte.

On July 24, 2007, the CSC issued Resolution No. 071420,20 the dispositive part of which reads:

CSC’s Decision
WHEREFORE, foregoing premises considered, the Commission hereby finds Briccio A. Pollo,  a.k.a. Ricky A.
Pollo GUILTY of Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and
Violation of Republic Act 6713. He is meted the penalty of DISMISSAL FROM THE SERVICE with all its
accessory penalties, namely, disqualification to hold public office, forfeiture of retirement benefits, cancellation of
civil service eligibilities and bar from taking future civil service examinations.21

Issue
On the paramount issue of the legality of the search conducted on petitioner’s computer, the CSC noted the
dearth of jurisprudence relevant to the factual milieu of this case where the government as employer invades the
private files of an employee stored in the computer assigned to him for his official use, in the course of initial
investigation of possible misconduct committed by said employee and without the latter’s consent or
participation. The CSC thus turned to relevant rulings of the United States Supreme Court, and cited the leading
Respondent’s Contention
case of O’Connor v. Ortega22as authority for the view that government agencies, in their capacity as employers,
rather than law enforcers, could validly conduct search and seizure in the governmental workplace without
meeting the "probable cause" or warrant requirement for search and seizure. Another ruling cited by the CSC is
the more recent case of United States v. Mark L. Simons23 which declared that the federal agency’s computer
use policy foreclosed any inference of reasonable expectation of privacy on the part of its employees. Though
the Court therein recognized that such policy did not, at the same time, erode the respondent’s legitimate
expectation of privacy in the office in which the computer was installed, still, the warrantless search of the
employee’s office was upheld as valid because a government employer is entitled to conduct a warrantless
search pursuant to an investigation of work-related misconduct provided the search is reasonable in its inception
and scope.

With the foregoing American jurisprudence as benchmark, the CSC held that petitioner has no reasonable
expectation of privacy with regard to the computer he was using in the regional office in view of the CSC
computer use policy which unequivocally declared that a CSC employee cannot assert any privacy right to a
computer assigned to him. Even assuming that there was no such administrative policy, the CSC was of the view
that the search of petitioner’s computer successfully passed the test of reasonableness for warrantless searches
in the workplace as enunciated in the aforecited authorities. The CSC stressed that it pursued the search in its
capacity as government employer and that it was undertaken in connection with an investigation involving work-
related misconduct, which exempts it from the warrant requirement under the Constitution. With the matter of
admissibility of the evidence having been resolved, the CSC then ruled that the totality of evidence adequately
supports the charges of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service and
violation of R.A. No. 6713 against the petitioner. These grave infractions justified petitioner’s dismissal from the
service with all its accessory penalties.

In his Memorandum24 filed in the CA, petitioner moved to incorporate the above resolution dismissing him from
the service in his main petition, in lieu of the filing of an appeal via a Rule 43 petition. In a subsequent motion, he
likewise prayed for the inclusion of Resolution No. 07180025 which denied his motion for reconsideration.

CA’s Decision
By Decision dated October 11, 2007, the CA dismissed the petition for certiorari after finding no grave abuse of
discretion committed by respondents CSC officials. The CA held that: (1) petitioner was not charged on the basis
of the anonymous letter but from the initiative of the CSC after a fact-finding investigation was conducted and
the results thereof yielded a prima facie case against him; (2) it could not be said that in ordering the back-up of
files in petitioner’s computer and later confiscating the same, Chairperson David had encroached on the
authority of a judge in view of the CSC computer policy declaring the computers as government property and
that employee-users thereof have no reasonable expectation of privacy in anything they create, store, send, or
receive on the computer system; and (3) there is nothing contemptuous in CSC’s act of proceeding with the
formal investigation as there was no restraining order or injunction issued by the CA.

His motion for reconsideration having been denied by the CA, petitioner brought this appeal arguing that –

THE HONORABLE COURT OF APPEALS GRIEVOUSLY ERRED AND COMMITTED SERIOUS IRREGULARITY
AND BLATANT ERRORS IN LAW AMOUNTING TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT
ANONYMOUS COMPLAINT IS ACTIONABLE UNDER E.O. 292 WHEN IN TRUTH AND IN FACT THE CONTRARY
IS EXPLICITLY PROVIDED UNDER 2nd PARAGRAPH OF SECTION 8 OF CSC RESOLUTION NO. 99-1936,
WHICH IS AN [AMENDMENT] TO THE ORIGINAL RULES PER CSC RESOLUTION NO. 94-0521;

II

THE HONORABLE COURT GRIEVOUSLY ERRED AND COMMITTED PALPABLE ERRORS IN LAW AMOUNTING
TO GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PETITIONER CANNOT INVOKE HIS RIGHT TO
PRIVACY, TO UNREASONABLE SEARCH AND SEIZURE, AGAINST SELF-INCRIMINATION, BY VIRTUE OF
OFFICE MEMORANDUM NO. 10 S. 2002,  A MERE INTERNAL MEMORANDUM SIGNED SOLELY AND
EXCLUSIVELY BY RESPONDENT DAVID  AND NOT BY THE COLLEGIAL COMMISSION CONSIDERING
THAT  POLICY MATTERS INVOLVING SUB[S]TANTIAL RIGHTS CANNOT BE COVERED BY AN OFFICE
MEMORANDUM WHICH IS LIMITED TO PROCEDURAL AND ROUTINARY INSTRUCTION;

III

THE HONORABLE COURT GRAVELY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT
RULED THAT MEMO SEARCH DATED JANUARY 3, 2007 AND THE TAKING OF DOCUMENTS IN THE EVENING
THEREOF FROM 7:00 TO 10:00 P.M. IS NOT GRAVE ABUSE OF DISCRETION LIMITING THE DEFINITION [OF]
GRAVE ABUSE OF DISCRETION TO ONE INVOLVING AND TAINTED WITH PERSONAL HOSTILITY. IT
LIKEWISE ERRED IN HOLDING THAT DATA STORED IN THE GOVERNMENT COMPUTERS ARE GOVERNMENT
PROPERTIES INCLUDING THE PERSONAL FILES WHEN THE CONTRARY IS PROVIDED UNDER SECTION 14
OF OM. 10 s. 2002. AND GRIEVOUSLY ERRED STILL WHEN IT RULED THAT RESPONDENT DAVID BY VIRTUE
OF O.M. 10 DID NOT ENCROACH ON THE DUTIES AND FUNCTIONS OF A JUDGE PURSUANT TO ARTICLE III,
SECTION 2 OF THE 1987 PHILIPPINE CONSTITUTION;

IV

THE HONORABLE COURT ERRED WHEN IT FAILED TO CONSIDER ALL OTHER NEW ARGUMENTS,
ADDITIONAL EVIDENCE HEREUNTO SUBMITTED AS WELL AS ITS FAILURE TO EVALUATE AND TAKE ACTION
ON THE 2 MOTIONS TO ADMIT AND INCORPORATE CSC RESOLUTION NOS. 07-1420 DATED JULY 24, 2007
AND CSC RESOLUTION 07-1800 DATED SEPTEMBER 10, 2007. IT DID NOT RULE LIKEWISE ON THE FOUR
URGENT MOTION TO RESOLVE ANCILLARY PRAYER FOR TRO.26

Issue
Squarely raised by the petitioner is the legality of the search conducted on his office computer and the copying
of his personal files without his knowledge and consent, alleged as a transgression on his constitutional right to
privacy.

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure under Section 2, Article III of the 1987 Constitution,27 which
provides:

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.

The constitutional guarantee is not a prohibition of all searches and seizures but only of "unreasonable" searches
and seizures.28  But to fully understand this concept and application for the purpose of resolving the issue at
hand, it is essential that we examine the doctrine in the light of pronouncements in another jurisdiction. As the
Court declared in People v. Marti29 :

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in
the 1935 Charter which, worded as follows:

"The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches
and seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched, and the persons or things to be seized." (Sec. 1[3], Article III)

was in turn derived almost verbatim from the Fourth Amendment to the United States Constitution. As such, the
Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts
which are considered doctrinal in this jurisdiction.30

In the 1967 case of Katz v. United States,31  the US Supreme Court held that the act of FBI agents in
electronically recording a conversation made by petitioner in an enclosed public telephone booth violated his
right to privacy and constituted a "search and seizure". Because the petitioner had a reasonable expectation of
privacy in using the enclosed booth to make a personal telephone call, the protection of the Fourth Amendment
extends to such area. In the concurring opinion of Mr. Justice Harlan, it was further noted that the existence of
privacy right under prior decisions involved a two-fold requirement: first, that a person has exhibited an actual
(subjective) expectation of privacy; and second, that the expectation be one that society is prepared to recognize
as reasonable (objective).32

In Mancusi v. DeForte33 which addressed the reasonable expectations of private employees in the workplace, the
US Supreme Court held that a union employee had Fourth Amendment rights with regard to an office at union
headquarters that he shared with other union officials, even as the latter or their guests could enter the office.
The Court thus "recognized that employees may have a reasonable expectation of privacy against intrusions by
police."

That the Fourth Amendment equally applies to a government workplace was addressed in the 1987 case of
O’Connor v. Ortega34  where a physician, Dr. Magno Ortega, who was employed by a state hospital, claimed a
violation of his Fourth Amendment rights when hospital officials investigating charges of mismanagement of the
psychiatric residency program, sexual harassment of female hospital employees and other irregularities involving
his private patients under the state medical aid program, searched his office and seized personal items from his
desk and filing cabinets. In that case, the Court categorically declared that "[i]ndividuals do not lose Fourth
Amendment rights merely because they work for the government instead of a private employer."35 A plurality of
four Justices concurred that the correct analysis has two steps: first, because "some government offices may be
so open to fellow employees or the public that no expectation of privacy is reasonable", a court must consider
"[t]he operational realities of the workplace" in order to determine whether an employee’s Fourth Amendment
rights are implicated; and next, where an employee has a legitimate privacy expectation, an employer’s intrusion
on that expectation "for noninvestigatory, work-related purposes, as well as for investigations of work-related
misconduct, should be judged by the standard of reasonableness under all the circumstances."36

On the matter of government employees’ reasonable expectations of privacy in their workplace, O’Connor
teaches:

x x x Public employees’ expectations of privacy in their offices, desks, and file cabinets, like similar expectations
of employees in the private sector, may be reduced by virtue of actual office practices and procedures, or by
legitimate regulation. x x x The employee’s expectation of privacy must be assessed in the context of the
employment relation. An office is seldom a private enclave free from entry by supervisors, other employees, and
business and personal invitees. Instead, in many cases offices are continually entered by fellow employees and
other visitors during the workday for conferences, consultations, and other work-related visits. Simply put, it is
the nature of government offices that others – such as fellow employees, supervisors, consensual visitors, and
the general public – may have frequent access to an individual’s office. We agree with JUSTICE SCALIA that
"[c]onstitutional protection against unreasonable searches by the government does not disappear merely
because the government has the right to make reasonable intrusions in its capacity as employer," x x x but some
government offices may be so open to fellow employees or the public that no expectation of privacy is
reasonable. x x x  Given the great variety of work environments in the public sector, the question of
whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case
basis.37 (Citations omitted; emphasis supplied.)

On the basis of the established rule in previous cases, the US Supreme Court declared that Dr. Ortega’s Fourth
Amendment rights are implicated only if the conduct of the hospital officials infringed "an expectation of privacy
that society is prepared to consider as reasonable." Given the undisputed evidence that respondent Dr. Ortega
did not share his desk or file cabinets with any other employees, kept personal correspondence and other private
items in his own office while those work-related files (on physicians in residency training) were stored outside his
office, and there being no evidence that the hospital had established any reasonable regulation or policy
discouraging employees from storing personal papers and effects in their desks or file cabinets (although the
absence of such a policy does not create any expectation of privacy where it would not otherwise exist), the
Court concluded that Dr. Ortega has a reasonable expectation of privacy at least in his desk and file cabinets.38

Proceeding to the next inquiry as to whether the search conducted by hospital officials was reasonable, the
O’Connor plurality decision discussed the following principles:

Having determined that Dr. Ortega had a reasonable expectation of privacy in his office, the Court of Appeals
simply concluded without discussion that the "search…was not a reasonable search under the fourth
amendment." x x x "[t]o hold that the Fourth Amendment applies to searches conducted by [public employers] is
only to begin the inquiry into the standards governing such searches…[W]hat is reasonable depends on the
context within which a search takes place. x x x Thus, we must determine the appropriate standard of
reasonableness applicable to the search. A determination of the standard of reasonableness applicable to a
particular class of searches requires "balanc[ing] the nature and quality of the intrusion on the individual’s Fourth
Amendment interests against the importance of the governmental interests alleged to justify the intrusion." x x
x  In the case of searches conducted by a public employer, we must balance the invasion of the
employees’ legitimate expectations of privacy against the government’s need for supervision, control, and
the efficient operation of the workplace.

x x x x

In our view, requiring an employer to obtain a warrant whenever the employer wished to enter an employee’s
office, desk, or file cabinets for a work-related purpose would seriously disrupt the routine conduct of business
and would be unduly burdensome. Imposing unwieldy warrant procedures in such cases upon supervisors, who
would otherwise have no reason to be familiar with such procedures, is simply unreasonable. In contrast to other
circumstances in which we have required warrants, supervisors in offices such as at the Hospital are hardly in the
business of investigating the violation of criminal laws. Rather, work-related searches are merely incident to the
primary business of the agency. Under these circumstances, the imposition of a warrant requirement would
conflict with the "common-sense realization that government offices could not function if every employment
decision became a constitutional matter." x x x

x x x x

The governmental interest justifying work-related intrusions by public employers is the efficient and proper
operation of the workplace. Government agencies provide myriad services to the public, and the work of these
agencies would suffer if employers were required to have probable cause before they entered an employee’s
desk for the purpose of finding a file or piece of office correspondence. Indeed, it is difficult to give the concept
of probable cause, rooted as it is in the criminal investigatory context, much meaning when the purpose of a
search is to retrieve a file for work-related reasons. Similarly, the concept of probable cause has little meaning for
a routine inventory conducted by public employers for the purpose of securing state property. x x x To ensure the
efficient and proper operation of the agency, therefore, public employers must be given wide latitude to enter
employee offices for work-related, noninvestigatory reasons.

We come to a similar conclusion for searches conducted pursuant to an investigation of work-related employee
misconduct. Even when employers conduct an investigation, they have an interest substantially different from
"the normal need for law enforcement." x x x Public employers have an interest in ensuring that their agencies
operate in an effective and efficient manner, and the work of these agencies inevitably suffers from the
inefficiency, incompetence, mismanagement, or other work-related misfeasance of its employees. Indeed, in
many cases, public employees are entrusted with tremendous responsibility, and the consequences of their
misconduct or incompetence to both the agency and the public interest can be severe. In contrast to law
enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers
have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and
efficient manner. In our view, therefore, a probable cause requirement for searches of the type at issue here
would impose intolerable burdens on public employers. The delay in correcting the employee misconduct
caused by the need for probable cause rather than reasonable suspicion will be translated into tangible
and often irreparable damage to the agency’s work, and ultimately to the public interest. x x x

x x x x

In sum, we conclude  that the "special needs, beyond the normal need for law enforcement make the…
probable-cause requirement impracticable," x x x for legitimate, work-related noninvestigatory intrusions
as well as investigations of work-related misconduct. A standard of reasonableness will neither unduly
burden the efforts of government employers to ensure the efficient and proper operation of the workplace, nor
authorize arbitrary intrusions upon the privacy of public employees. We hold, therefore, that  public employer
intrusions on the constitutionally protected privacy interests of government employees for
noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should
be judged by the  standard of reasonableness under all the circumstances. Under this reasonableness
standard, both the inception and the scope of the intrusion must be reasonable:

"Determining the reasonableness of any search involves a twofold inquiry: first, one must consider ‘whether
the…action was justified at its inception,’ x x x ; second, one must determine whether the search as actually
conducted ‘was reasonably related in scope to the circumstances which justified the interference in the first
place,’" x x x

Ordinarily, a search of an employee’s office by a supervisor will be "justified at its inception" when there
are reasonable grounds for suspecting that the search will turn up evidence that the employee is guilty of
work-related misconduct, or that the search is necessary for a noninvestigatory work-related
purpose  such as to retrieve a needed file. x x x  The search will be permissible in its scope when "the
measures adopted are reasonably related to the objectives of the search and not excessively intrusive in
light of …the nature of the [misconduct]." x x x39 (Citations omitted; emphasis supplied.)

Since the District Court granted summary judgment without a hearing on the factual dispute as to the character
of the search and neither was there any finding made as to the scope of the search that was undertaken, the
case was remanded to said court for the determination of the justification for the search and seizure, and
evaluation of the reasonableness of both the inception of the search and its scope.

In O’Connor the Court recognized that "special needs" authorize warrantless searches involving public
employees for work-related reasons. The Court thus laid down a balancing test under which government
interests are weighed against the employee’s reasonable expectation of privacy. This reasonableness test
implicates neither probable cause nor the warrant requirement, which are related to law enforcement.40

O’Connor was applied in subsequent cases raising issues on employees’ privacy rights in the workplace. One of
these cases involved a government employer’s search of an office computer, United States v. Mark L.
Simons41where the defendant Simons, an employee of a division of the Central Intelligence Agency (CIA), was
convicted of receiving and possessing materials containing child pornography. Simons was provided with an
office which he did not share with anyone, and a computer with Internet access. The agency had instituted a
policy on computer use stating that employees were to use the Internet for official government business only and
that accessing unlawful material was specifically prohibited. The policy also stated that users shall understand
that the agency will periodically audit, inspect, and/or monitor the user’s Internet access as deemed appropriate.
CIA agents instructed its contractor for the management of the agency’s computer network, upon initial
discovery of prohibited internet activity originating from Simons’ computer, to conduct a remote monitoring and
examination of Simons’ computer. After confirming that Simons had indeed downloaded pictures that were
pornographic in nature, all the files on the hard drive of Simon’s computer were copied from a remote work
station. Days later, the contractor’s representative finally entered Simon’s office, removed the original hard drive
on Simon’s computer, replaced it with a copy, and gave the original to the agency security officer. Thereafter, the
agency secured warrants and searched Simons’ office in the evening when Simons was not around. The search
team copied the contents of Simons’ computer; computer diskettes found in Simons’ desk drawer; computer
files stored on the zip drive or on zip drive diskettes; videotapes; and various documents, including personal
correspondence. At his trial, Simons moved to suppress these evidence, arguing that the searches of his office
and computer violated his Fourth Amendment rights. After a hearing, the district court denied the motion and
Simons was found guilty as charged.

Simons appealed his convictions. The US Supreme Court ruled that the searches of Simons’ computer and
office did not violate his Fourth Amendment rights and the first search warrant was valid. It held that the search
remains valid under the O’Connor exception to the warrant requirement because evidence of the crime was
discovered in the course of an otherwise proper administrative inspection. Simons’ violation of the agency’s
Internet policy happened also to be a violation of criminal law; this does not mean that said employer lost the
capacity and interests of an employer. The warrantless entry into Simons’ office was reasonable under the Fourth
Amendment standard announced in O’Connor because at the inception of the search, the employer had
"reasonable grounds for suspecting" that the hard drive would yield evidence of misconduct, as the employer
was already aware that Simons had misused his Internet access to download over a thousand pornographic
images. The retrieval of the hard drive was reasonably related to the objective of the search, and the search was
not excessively intrusive. Thus, while Simons had a reasonable expectation of privacy in his office, he did not
have such legitimate expectation of privacy with regard to the files in his computer.

x x x To establish a violation of his rights under the Fourth Amendment, Simons must first prove that he had a
legitimate expectation of privacy in the place searched or the item seized. x x x And, in order to prove a
legitimate expectation of privacy, Simons must show that his subjective expectation of privacy is one that society
is prepared to accept as objectively reasonable. x x x

x x x x

x x x We conclude that the remote searches of Simons’ computer did not violate his Fourth Amendment rights
because, in light of the Internet policy, Simons lacked a legitimate expectation of privacy in the files downloaded
from the Internet. Additionally, we conclude that Simons’ Fourth Amendment rights were not violated by FBIS’
retrieval of Simons’ hard drive from his office.

Simons did not have a legitimate expectation of privacy with regard to the record or fruits of his Internet
use in light of the FBIS Internet policy. The policy clearly stated that FBIS would "audit, inspect, and/or
monitor" employees’ use of the Internet, including all file transfers, all websites visited, and all e-mail
messages, "as deemed appropriate."  x x x This policy placed employees on notice that they could not
reasonably expect that their Internet activity would be private. Therefore, regardless of whether Simons
subjectively believed that the files he transferred from the Internet were private, such a belief was not objectively
reasonable after FBIS notified him that it would be overseeing his Internet use. x x x Accordingly, FBIS’ actions in
remotely searching and seizing the computer files Simons downloaded from the Internet did not violate the
Fourth Amendment.

x x x x

The burden is on Simons to prove that he had a legitimate expectation of privacy in his office. x x x Here,
Simons has shown that he had an office that he did not share. As noted above, the operational realities of
Simons’ workplace may have diminished his legitimate privacy expectations. However, there is no evidence in
the record of any workplace practices, procedures, or regulations that had such an effect. We therefore conclude
that, on this record, Simons possessed a legitimate expectation of privacy in his office.

x x x x

In the final analysis, this case involves an employee’s supervisor entering the employee’s government office and
retrieving a piece of government equipment in which the employee had absolutely no expectation of privacy –
equipment that the employer knew contained evidence of crimes committed by the employee in the employee’s
office. This situation may be contrasted with one in which the criminal acts of a government employee were
unrelated to his employment. Here, there was a conjunction of the conduct that violated the employer’s policy
and the conduct that violated the criminal law. We consider that FBIS’ intrusion into Simons’ office to retrieve the
hard drive is one in which a reasonable employer might engage. x x x42 (Citations omitted; emphasis supplied.)

This Court, in Social Justice Society (SJS) v. Dangerous Drugs Board43 which involved the constitutionality of a
provision in R.A. No. 9165 requiring mandatory drug testing of candidates for public office, students of
secondary and tertiary schools, officers and employees of public and private offices, and persons charged
before the prosecutor’s office with certain offenses, have also recognized the fact that there may be such
legitimate intrusion of privacy in the workplace.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the
drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this
case, the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees
and the reasonableness of drug testing requirement. The employees’ privacy interest in an office is to a large
extent circumscribed by the company’s work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency
in the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld. (Emphasis supplied.)

Applying the analysis and principles announced in O’Connor and Simons to the case at bar, we now address the
following questions: (1) Did petitioner have a reasonable expectation of privacy in his office and computer files?;
and (2) Was the search authorized by the CSC Chair, the copying of the contents of the hard drive on petitioner’s
computer reasonable in its inception and scope?

In this inquiry, the relevant surrounding circumstances to consider include "(1) the employee’s relationship to the
item seized; (2) whether the item was in the immediate control of the employee when it was seized; and (3)
whether the employee took actions to maintain his privacy in the item." These factors are relevant to both the
subjective and objective prongs of the reasonableness inquiry, and we consider the two questions together.
44  Thus, where the employee used a password on his computer, did not share his office with co-workers and

kept the same locked, he had a legitimate expectation of privacy and any search of that space and items located
therein must comply with the Fourth Amendment.45

Application
We answer the first in the negative. Petitioner failed to prove that he had an actual (subjective) expectation of
privacy either in his office or government-issued computer which contained his personal files. Petitioner did not
allege that he had a separate enclosed office which he did not share with anyone, or that his office was always
locked and not open to other employees or visitors. Neither did he allege that he used passwords or adopted
any means to prevent other employees from accessing his computer files. On the contrary, he submits that being
in the public assistance office of the CSC-ROIV, he normally would have visitors in his office like friends,
associates and even unknown people, whom he even allowed to use his computer which to him seemed a trivial
request. He described his office as "full of people, his friends, unknown people" and that in the past 22 years he
had been discharging his functions at the PALD, he is "personally assisting incoming clients, receiving
documents, drafting cases on appeals, in charge of accomplishment report, Mamamayan Muna Program, Public
Sector Unionism, Correction of name, accreditation of service, and hardly had anytime for himself alone, that in
fact he stays in the office as a paying customer."46 Under this scenario, it can hardly be deduced that petitioner
had such expectation of privacy that society would recognize as reasonable.

Moreover, even assuming arguendo, in the absence of allegation or proof of the aforementioned factual
circumstances, that petitioner had at least a subjective expectation of privacy in his computer as he claims, such
is negated by the presence of policy regulating the use of office computers, as in Simons.

Office Memorandum No. 10, S. 2002 "Computer Use Policy (CUP)" explicitly provides:

POLICY

1. The Computer Resources are the property of the Civil Service Commission and  may be used only for
legitimate business purposes.

2. Users shall be permitted access to Computer Resources to assist them in the performance of their respective
jobs.

3. Use of the Computer Resources is a privilege that may be revoked at any given time.

x x x x

No Expectation of Privacy

4. No expectation of privacy. Users except the Members of the Commission shall not have an expectation of
privacy in anything they create, store, send, or receive on the computer system.

The Head of the Office for Recruitment, Examination and Placement shall select and assign Users to handle the
confidential examination data and processes.

5. Waiver of privacy rights. Users expressly waive any right to privacy in  anything they create, store, send, or
receive on the computer through the Internet or any other computer network.  Users understand that the  CSC
may use human or automated means to monitor the use of its Computer Resources.

6. Non-exclusivity of Computer Resources. A computer resource is not a personal property or for the exclusive
use of a User to whom a memorandum of receipt (MR) has been issued. It can be shared or operated by other
users. However, he is accountable therefor and must insure its care and maintenance.

x x x x

Passwords

12. Responsibility for passwords. Users shall be responsible for safeguarding their passwords for access to the
computer system. Individual passwords shall not be printed, stored online, or given to others. Users shall be
responsible for all transactions made using their passwords. No User may access the computer system with
another User’s password or account.

13. Passwords do not imply privacy.  Use of passwords to gain access to the computer system or to encode
particular files or messages does not imply that Users have an expectation of privacy in the material they create
or receive on the computer system. The Civil Service Commission has global passwords that permit access to all
materials stored on its networked computer system regardless of whether those materials have been encoded
with a particular User’s password. Only members of the Commission shall authorize the application of the said
global passwords.

x x x x47 (Emphasis supplied.)

The CSC in this case had implemented a policy that put its employees on notice that they have no expectation of
privacy in anything they create, store, send or receive on the office computers, and that the CSC may monitor
the use of the computer resources using both automated or human means. This implies that on-the-spot
inspections may be done to ensure that the computer resources were used only for such legitimate business
purposes.

One of the factors stated in O’Connor which are relevant in determining whether an employee’s expectation of
privacy in the workplace is reasonable is the existence of a workplace privacy policy.48 In one case, the US Court
of Appeals Eighth Circuit held that a state university employee has not shown that he had a reasonable
expectation of privacy in his computer files where the university’s computer policy, the computer user is informed
not to expect privacy if the university has a legitimate reason to conduct a search. The user is specifically told
that computer files, including e-mail, can be searched when the university is responding to a discovery request in
the course of litigation. Petitioner employee thus cannot claim a violation of Fourth Amendment rights when
university officials conducted a warrantless search of his computer for work-related materials.49

As to the second point of inquiry on the reasonableness of the search conducted on petitioner’s computer, we
answer in the affirmative.

The search of petitioner’s computer files was conducted in connection with investigation of work-related
misconduct prompted by an anonymous letter-complaint addressed to Chairperson David regarding anomalies
in the CSC-ROIV where the head of the Mamamayan Muna Hindi Mamaya Na division is supposedly "lawyering"
for individuals with pending cases in the CSC. Chairperson David stated in her sworn affidavit:

8. That prior to this, as early as 2006, the undersigned has received several text messages from unknown
sources adverting to certain anomalies in Civil Service Commission Regional Office IV (CSCRO IV) such as, staff
working in another government agency, "selling" cases and aiding parties with pending cases, all done during
office hours and involved the use of government properties;

9. That said text messages were not investigated for lack of any verifiable leads and details sufficient to warrant
an investigation;

10. That the anonymous letter provided the lead and details as it pinpointed the persons and divisions involved in
the alleged irregularities happening in CSCRO IV;

11. That in view of the seriousness of the allegations of irregularities happening in CSCRO IV and its effect on the
integrity of the Commission, I decided to form a team of Central Office staff to back up the files in the computers
of the Public Assistance and Liaison Division (PALD) and Legal Division;

x x x x50

A search by a government employer of an employee’s office is justified at inception when there are reasonable
grounds for suspecting that it will turn up evidence that the employee is guilty of work-related misconduct.
51  Thus, in the 2004 case decided by the US Court of Appeals Eighth Circuit, it was held that where a
government agency’s computer use policy prohibited electronic messages with pornographic content and in
addition expressly provided that employees do not have any personal privacy rights regarding their use of the
agency information systems and technology, the government employee had no legitimate expectation of privacy
as to the use and contents of his office computer, and therefore evidence found during warrantless search of the
computer was admissible in prosecution for child pornography. In that case, the defendant employee’s computer
hard drive was first remotely examined by a computer information technician after his supervisor received
complaints that he was inaccessible and had copied and distributed non-work-related e-mail messages
throughout the office. When the supervisor confirmed that defendant had used his computer to access the
prohibited websites, in contravention of the express policy of the agency, his computer tower and floppy disks
were taken and examined. A formal administrative investigation ensued and later search warrants were secured
by the police department. The initial remote search of the hard drive of petitioner’s computer, as well as the
subsequent warrantless searches was held as valid under the O’Connor ruling that a public employer can
investigate work-related misconduct so long as any search is justified at inception and is reasonably related in
scope to the circumstances that justified it in the first place.52

Under the facts obtaining, the search conducted on petitioner’s computer was justified at its inception and
scope. We quote with approval the CSC’s discussion on the reasonableness of its actions, consistent as it were
with the guidelines established by O’Connor:

Even conceding for a moment that there is no such administrative policy, there is no doubt in the mind of the
Commission that the search of Pollo’s computer has successfully passed the test of reasonableness for
warrantless searches in the workplace as enunciated in the above-discussed American authorities. It bears
emphasis that the Commission pursued the search in its capacity as a government employer and that it
was undertaken in connection with an investigation involving a work-related misconduct, one of the
circumstances exempted from the warrant requirement. At the inception of the search, a complaint was received
recounting that a certain division chief in the CSCRO No. IV was "lawyering" for parties having pending cases
with the said regional office or in the Commission.  The nature of the imputation was serious, as it was
grievously disturbing.  If, indeed, a CSC employee was found to be furtively engaged in the practice of
"lawyering" for parties with pending cases before the Commission would be a highly repugnant scenario, then
such a case would have shattering repercussions. It would undeniably cast clouds of doubt upon the institutional
integrity of the Commission as a quasi-judicial agency, and in the process, render it less effective in fulfilling its
mandate as an impartial and objective dispenser of administrative justice. It is settled that a court or an
administrative tribunal must not only be actually impartial but must be seen to be so, otherwise the general
public would not have any trust and confidence in it.

Considering the damaging nature of the accusation, the Commission had to act fast, if only to arrest or limit
any possible adverse consequence or fall-out. Thus, on the same date that the complaint was received, a search
was forthwith conducted involving the computer resources in the concerned regional office.  That it was the
computers that were subjected to the search was justified since these furnished the easiest means for an
employee to encode and store documents. Indeed, the computers would be a likely starting point in
ferreting out incriminating evidence. Concomitantly, the ephemeral nature of computer files, that is, they
could easily be destroyed at a click of a button, necessitated drastic and immediate action. Pointedly, to
impose the need to comply with the probable cause requirement would invariably defeat the purpose of the wok-
related investigation.

Worthy to mention, too, is the fact that the Commission effected the warrantless search in an open and
transparent manner. Officials and some employees of the regional office, who happened to be in the vicinity,
were on hand to observe the process until its completion. In addition, the respondent himself was duly notified,
through text messaging, of the search and the concomitant retrieval of files from his computer.

All in all, the Commission is convinced that the warrantless search done on computer assigned to Pollo was not,
in any way, vitiated with unconstitutionality. It was a reasonable exercise of the managerial prerogative of the
Commission as an employer aimed at ensuring its operational effectiveness and efficiency by going after the
work-related misfeasance of its employees. Consequently, the evidence derived from the questioned search are
deemed admissible.53

Petitioner’s claim of violation of his constitutional right to privacy must necessarily fail. His other argument
invoking the privacy of communication and correspondence under Section 3(1), Article III of the  1987
Constitution  is also untenable considering the recognition accorded to certain legitimate intrusions into the
privacy of employees in the government workplace under the aforecited authorities. We likewise find no merit in
his contention that O’Connor and Simons are not relevant because the present case does not involve a criminal
offense like child pornography. As already mentioned, the search of petitioner’s computer was justified there
being reasonable ground for suspecting that the files stored therein would yield incriminating evidence relevant
to the investigation being conducted by CSC as government employer of such misconduct subject of the
anonymous complaint. This situation clearly falls under the exception to the warrantless requirement in
administrative searches defined in O’Connor.

The Court is not unaware of our decision in Anonymous Letter-Complaint against Atty. Miguel Morales, Clerk of
Court, Metropolitan Trial Court of Manila54 involving a branch clerk (Atty. Morales) who was investigated on the
basis of an anonymous letter alleging that he was consuming his working hours filing and attending to personal
cases, using office supplies, equipment and utilities. The OCA conducted a spot investigation aided by NBI
agents. The team was able to access Atty. Morales’ personal computer and print two documents stored in its
hard drive, which turned out to be two pleadings, one filed in the CA and another in the RTC of Manila, both in
the name of another lawyer. Atty. Morales’ computer was seized and taken in custody of the OCA but was later
ordered released on his motion, but with order to the MISO to first retrieve the files stored therein. The OCA
disagreed with the report of the Investigating Judge that there was no evidence to support the charge against
Atty. Morales as no one from the OCC personnel who were interviewed would give a categorical and positive
statement affirming the charges against Atty. Morales, along with other court personnel also charged in the same
case. The OCA recommended that Atty. Morales should be found guilty of gross misconduct. The Court En Banc
held that while Atty. Morales may have fallen short of the exacting standards required of every court employee,
the Court cannot use the evidence obtained from his personal computer against him for it violated his
constitutional right against unreasonable searches and seizures. The Court found no evidence to support the
claim of OCA that they were able to obtain the subject pleadings with the consent of Atty. Morales, as in fact the
latter immediately filed an administrative case against the persons who conducted the spot investigation,
questioning the validity of the investigation and specifically invoking his constitutional right against unreasonable
search and seizure. And as there is no other evidence, apart from the pleadings, retrieved from the unduly
confiscated personal computer of Atty. Morales, to hold him administratively liable, the Court had no choice but
to dismiss the charges against him for insufficiency of evidence.

The above case is to be distinguished from the case at bar because, unlike the former which involved a personal
computer of a court employee, the computer from which the personal files of herein petitioner were retrieved is a
government-issued computer, hence government property the use of which the CSC has absolute right to
regulate and monitor. Such relationship of the petitioner with the item seized (office computer) and other relevant
factors and circumstances under American Fourth Amendment jurisprudence, notably the existence of CSC MO
10, S. 2007 on Computer Use Policy, failed to establish that petitioner had a reasonable expectation of privacy in
the office computer assigned to him.

Having determined that the personal files copied from the office computer of petitioner are admissible in the
administrative case against him, we now proceed to the issue of whether the CSC was correct in finding the
petitioner guilty of the charges and dismissing him from the service.

Well-settled is the rule that the findings of fact of quasi-judicial agencies, like the CSC, are accorded not only
respect but even finality if such findings are supported by substantial evidence. Substantial evidence is such
amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if
other equally reasonable minds might conceivably opine otherwise.55

The CSC based its findings on evidence consisting of a substantial number of drafts of legal pleadings and
documents stored in his office computer, as well as the sworn affidavits and testimonies of the witnesses it
presented during the formal investigation. According to the CSC, these documents were confirmed to be similar
or exactly the same content-wise with those on the case records of some cases pending either with CSCRO No.
IV, CSC-NCR or the Commission Proper. There were also substantially similar copies of those pleadings filed
with the CA and duly furnished the Commission. Further, the CSC found the explanation given by petitioner, to
the effect that those files retrieved from his computer hard drive actually belonged to his lawyer friends Estrellado
and Solosa whom he allowed the use of his computer for drafting their pleadings in the cases they handle, as
implausible and doubtful under the circumstances. We hold that the CSC’s factual finding regarding the
authorship of the subject pleadings and misuse of the office computer is well-supported by the evidence on
record, thus:

It is also striking to note that some of these documents were in the nature of pleadings responding to the orders,
decisions or resolutions of these offices or directly in opposition to them such as a petition for certiorari or a
motion for reconsideration of CSC Resolution. This indicates that the author thereof knowingly and willingly
participated in the promotion or advancement of the interests of parties contrary or antagonistic to the
Commission. Worse, the appearance in one of the retrieved documents the phrase, "Eric N. Estr[e]llado, Epal
kulang ang bayad mo," lends plausibility to an inference that the preparation or drafting of the legal pleadings
was pursued with less than a laudable motivation. Whoever was responsible for these documents was simply
doing the same for the money – a "legal mercenary" selling or purveying his expertise to the highest bidder, so to
speak.

Inevitably, the fact that these documents were retrieved from the computer of Pollo raises the presumption that
he was the author thereof. This is because he had a control of the said computer. More significantly, one of the
witnesses, Margarita Reyes, categorically testified seeing a written copy of one of the pleadings found in the
case records lying on the table of the respondent. This was the Petition for Review in the case of Estrellado
addressed to the Court of Appeals. The said circumstances indubitably demonstrate that Pollo was secretly
undermining the interest of the Commission, his very own employer.

To deflect any culpability, Pollo would, however, want the Commission to believe that the documents were the
personal files of some of his friends, including one Attorney Ponciano Solosa, who incidentally served as his
counsel of record during the formal investigation of this case. In fact, Atty. Solosa himself executed a sworn
affidavit to this effect. Unfortunately, this contention of the respondent was directly rebutted by the prosecution
witness, Reyes, who testified that during her entire stay in the PALD, she never saw Atty. Solosa using the
computer assigned to the respondent. Reyes more particularly stated that she worked in close proximity with
Pollo and would have known if Atty. Solosa, whom she personally knows, was using the computer in question.
Further, Atty. Solosa himself was never presented during the formal investigation to confirm his sworn statement
such that the same constitutes self-serving evidence unworthy of weight and credence. The same is true with the
other supporting affidavits, which Pollo submitted.

At any rate, even admitting for a moment the said contention of the respondent, it evinces the fact that he was
unlawfully authorizing private persons to use the computer assigned to him for official purpose, not only once but
several times gauging by the number of pleadings, for ends not in conformity with the interests of the
Commission. He was, in effect, acting as a principal by indispensable cooperation…Or at the very least, he
should be responsible for serious misconduct for repeatedly allowing CSC resources, that is, the computer and
the electricity, to be utilized for purposes other than what they were officially intended.

Further, the Commission cannot lend credence to the posturing of the appellant that the line appearing in one of
the documents, "Eric N. Estrellado, Epal kulang ang bayad mo," was a private joke between the person alluded
to therein, Eric N. Estrellado, and his counsel, Atty. Solosa, and not indicative of anything more sinister. The same
is too preposterous to be believed. Why would such a statement appear in a legal pleading stored in the
computer assigned to the respondent, unless he had something to do with it?56

Petitioner assails the CA in not ruling that the CSC should not have entertained an anonymous complaint since
Section 8 of CSC Resolution No. 99-1936 (URACC) requires a verified complaint:

Rule II – Disciplinary Cases

SEC. 8. Complaint. - A complaint against a civil service official or employee shall not be given due course unless
it is in writing and subscribed and sworn to by the complainant. However,  in cases initiated by the proper
disciplining authority, the complaint need not be under oath.

No anonymous complaint shall be entertained unless  there is obvious truth or merit to the allegation
therein  or supported by documentary or direct evidence, in which case the person complained of may be
required to comment.

x x x x

We need not belabor this point raised by petitioner. The administrative complaint is deemed to have been
initiated by the CSC itself when Chairperson David, after a spot inspection and search of the files stored in the
hard drive of computers in the two divisions adverted to in the anonymous letter -- as part of the disciplining
authority’s own fact-finding investigation and information-gathering -- found a prima facie case against the
petitioner who was then directed to file his comment. As this Court held in Civil Service Commission v. Court of
Appeals57 --

Under Sections 46 and 48 (1), Chapter 6, Subtitle A, Book V of E.O. No. 292 and Section 8, Rule II of Uniform
Rules on Administrative Cases in the Civil Service, a complaint may be initiated against a civil service officer or
employee by the appropriate disciplining authority, even without being subscribed and sworn to. Considering
that the CSC, as the disciplining authority for Dumlao, filed the complaint, jurisdiction over Dumlao was validly
acquired. (Emphasis supplied.)

As to petitioner’s challenge on the validity of CSC OM 10, S. 2002 (CUP), the same deserves scant
consideration. The alleged infirmity due to the said memorandum order having been issued solely by the CSC
Chair and not the Commission as a collegial body, upon which the dissent of Commissioner Buenaflor is partly
anchored, was already explained by Chairperson David in her Reply to the Addendum to Commissioner
Buenaflor’s previous memo expressing his dissent to the actions and disposition of the Commission in this case.
According to Chairperson David, said memorandum order was in fact exhaustively discussed, provision by
provision in the January 23, 2002 Commission Meeting, attended by her and former Commissioners Erestain, Jr.
and Valmores. Hence, the Commission En Banc at the time saw no need to issue a Resolution for the purpose
and further because the CUP being for internal use of the Commission, the practice had been to issue a
memorandum order.58 Moreover, being an administrative rule that is merely internal in nature, or which regulates
only the personnel of the CSC and not the public, the CUP need not be published prior to its effectivity.59

In fine, no error or grave abuse of discretion was committed by the CA in affirming the CSC’s ruling that
petitioner is guilty of grave misconduct, dishonesty, conduct prejudicial to the best interest of the service, and
violation of R.A. No. 6713. The gravity of these offenses justified the imposition on petitioner of the ultimate
penalty of dismissal with all its accessory penalties, pursuant to existing rules and regulations.

WHEREFORE, the petition  for review on certiorari is  DENIED. The Decision  dated October 11, 2007 and
Resolutiondated February 29, 2008 of the Court of Appeals in CA-G.R. SP No. 98224 are AFFIRMED.

With costs against the petitioner.

SO ORDERED.

CONCURRING AND DISSENTING OPINION

BERSAMIN, J.:

I render this concurring and dissenting opinion only to express my thoughts on the constitutional right to privacy
of communication and correspondence vis-à-vis an office memorandum that apparently removed an employee’s
expectation of privacy in the workplace.

Indispensable to the position I take herein is an appreciation of the development and different attributes of the
right to privacy that has come to be generally regarded today as among the valuable rights of the individual that
must be given Constitutional protection.

The 1890 publication in the Harvard Law Review of The Right to Privacy,1 an article of 28 pages co-written by
former law classmates Samuel Warren and Louis Brandeis, is often cited to have given birth to the recognition of
the constitutional right to privacy. The article was spawned by the emerging growth of media and technology,
with the co-authors particularly being concerned by the production in 1884 by the Eastman Kodak Company of a
"snap camera" that enabled people to take candid pictures. Prior to 1884, cameras had been expensive and
heavy; they had to be set up and people would have to pose to have their pictures taken. The snap camera
expectedly ignited the enthusiasm for amateur photography in thousands of people who had previously not been
able to afford a camera. This technological development moved Warren and Brandeis to search for a legal right
to protect individual privacy.2 One of the significant assertions they made in their article was the declaration that
"the common law secures to each individual the right of determining, ordinarily, to what extent his thoughts,
sentiments, and emotions shall be communicated to others,"3 said right being merely part of an individual’s right
to be let alone.4

While some quarters do not easily concede that Warren and Brandeis "invented" the right to privacy, mainly
because a robust body of confidentiality law protecting private information from disclosure existed throughout
Anglo-American common law by 1890, critics have acknowledged that The Right to Privacy charted a new path
for American privacy law.5

In 1928, Brandeis, already a Supreme Court Justice, incorporated the right to be let alone in his dissent in
Olmstead v. United States,6 viz:

"The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution
undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s
spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and
satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let
alone ̶ the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must
be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts
ascertained by such intrusion must be deemed a violation of the Fifth." [emphasis supplied]

In 1960, torts scholar William Prosser published in the California Law Review7  his article Privacy based on his
thorough review of the various decisions of the United States courts and of the privacy laws. He observed then
that the "law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which
are tied together by the common name, but otherwise have almost nothing in common except that each
represents an interference with the right of the plaintiff, in the phrase coined by Judge Cooley, ‘to be let
alone.’"8  He identified the four torts as: (a) the intrusion upon the plaintiff’s seclusion or solitude, or into his
private affairs; (b) the public disclosure of embarrassing private facts about the plaintiff; (c) the publicity that
places the plaintiff in a false light in the public eye; and (d) the appropriation, for the defendant’s advantage, of
the plaintiff’s name or likeness.9

With regard to the first tort of intrusion upon seclusion or solitude, or into private affairs, Prosser posited that
there was a remedy when a person "intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns" in a manner that was "highly offensive to a reasonable
person."10 The second and third torts established liability when the publicized matter was highly offensive to a
reasonable person and was not a legitimate concern of the public – if it involved disclosure of embarrassing
private facts – or placed another before the public in a false light.11  Lastly, the tort of appropriation afforded a
relief when a person adopted "to his own use or benefit the name or likeness of another."12

In the 1977 landmark ruling of Whalen v. Roe,13  the US Supreme Court expanded the right to privacy by
categorizing privacy claims into two, namely: informational privacy, to refer to the interest in avoiding disclosure
of personal matters; and decisional privacy, to refer to the interest in independence in making certain kinds of
important decisions.

All US Circuit Courts recognizing informational privacy have held that this right is not absolute and, therefore,
they have balanced individuals’ informational privacy interests against the State’s interest in acquiring or
disclosing the information.14 The majority of the US Circuit Courts have adopted some form of scrutiny that has
required the Government to show a "substantial" interest for invading individuals’ right to confidentiality in their
personal information, and then to balance the State’s substantial interest in the disclosure as against the
individual’s interest in confidentiality.15 This balancing test was developed in United States v. Westinghouse16 by
using the following factors, to wit: (a) the type of record requested; (b) the information it did or might contain; (c)
the potential for harm in any subsequent nonconsensual disclosure; (d) the injury from disclosure to the
relationship in which the record was generated; (e) the adequacy of safeguards to prevent unauthorized
disclosure; (f) the degree of need for access; and (g) the presence of an express statutory mandate, articulated
public policy, or other recognizable public interest militating toward access.17

Decisional privacy, on the other hand, evolved from decisions touching on matters concerning speech, religion,
personal relations, education and sexual preferences. As early as 1923, the US Supreme Court recognized
decisional privacy in its majority opinion in Meyer v. Nebraska.18 The petitioner therein was tried and convicted
by a district court, and his conviction was affirmed by the Supreme Court of the Nebraska, for teaching the
subject of reading in the German language to a ten-year old boy who had not attained and successfully passed
eighth grade.19  In reversing the judgment, Justice McReynolds of the US Supreme Court pronounced that the
liberty guaranteed by the Fourteenth Amendment "denotes not merely freedom from bodily restraint, but also the
right of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his
own conscience, and generally to enjoy those privileges long recognized at common law as essential to the
orderly pursuit of happiness by free men." Justice McReynolds elaborated thusly:

"Practically, education of the young is only possible in schools conducted by especially qualified persons who
devote themselves thereto. The calling always has been regarded as useful and honorable, essential, indeed, to
the public welfare. Mere knowledge of the German language cannot reasonably be regarded as harmful.
Heretofore it has been commonly looked upon as helpful and desirable. Plaintiff in error taught this language in
school as part of his occupation. His right thus to teach and the right of parents to engage him so to instruct their
children, we think, are within the liberty of the Amendment."

In Griswold v. Connecticut,20 the US Supreme Court resolved another decisional privacy claim by striking down a
statute that prohibited the use of contraceptives by married couples. Justice Douglas, delivering the opinion,
declared:

"By Pierce v. Society of Sisters, supra, the right to educate one’s children as one chooses is made applicable to
the States by the force of the First and Fourteenth Amendments. By Meyer v. Nebraska, supra, the same dignity
is given the right to study the German language in a private school. In other words, the State may not,
consistently with the spirit of the First Amendment, contract the spectrum of available knowledge. The right of
freedom of speech and press includes not only the right to utter or to print, but the right to distribute, the right to
receive, the right to read (Martin v. Struthers, 319 U.S. 141, 143) and freedom of inquiry, freedom of thought, and
freedom to teach (see Wiemann v. Updegraff, 344 U.S. 183, 195) -- indeed, the freedom of the entire university
community. (Sweezy v. New Hampshire, 354 U.S. 234, 249-250, 261-263; Barenblatt v. United States, 360 U.S.
109, 112; Baggett v. Bullitt,377 U.S. 360, 369). Without those peripheral rights, the specific rights would be less
secure. And so we reaffirm the principle of the Pierce and the Meyer cases.

x x x x

"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental
constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives, rather than
regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact
upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court,
that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not
be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.
(NAACP v. Alabama, 377 U.S. 288, 307). Would we allow the police to search the sacred precincts of marital
bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy
surrounding the marriage relationship."

One of the most controversial decisional privacy claims was dealt with in Roe v. Wade,21  by which the US
Supreme Court justified abortion in the United States on the premise that:

"This right of privacy xxx is broad enough to encompass a woman’s decision whether or not to terminate her
pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice
altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved.
Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm
may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all
concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already
unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and
continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible
physician necessarily will consider in consultation.

x x x x

"Although the results are divided, most of these courts have agreed that the right of privacy, however based, is
broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some
limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal
life, become dominant."

In the Philippines, we have upheld decisional privacy claims. For instance, in the 2003 case of Estrada v. Escritor,
22although the majority opinion dealt extensively with the claim of religious freedom, a right explicitly provided by

the Constitution, Justice Bellosillo’s separate opinion was informative with regard to the privacy aspect of the
issue involved and, hence, stated:

"More than religious freedom, I look with partiality to the rights of due process and privacy. Law in general
reflects a particular morality or ideology, and so I would rather not foist upon the populace such criteria as
"compelling state interest," but more, the reasonably foreseeable specific connection between an employee’s
potentially embarrassing conduct and the efficiency of the service. This is a fairly objective standard than the
compelling interest standard involved in religious freedom.

"Verily, if we are to remand the instant case to the Office of the Court Administrator, we must also configure the
rights of due process and privacy into the equation. By doing so, we can make a difference not only for those
who object out of religious scruples but also for those who choose to live a meaningful life even if it means
sometimes breaking "oppressive" and "antiquated" application of laws but are otherwise efficient and effective
workers. As is often said, when we have learned to reverence each individual’s liberty as we do our tangible
wealth, we then shall have our renaissance."

Relevantly, Article III, Section 3 of the 1987 Constitution embodies the protection of the privacy of
communication and correspondence, to wit:

Section 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.

x x x x

Yet, the guarantee in favor of the privacy of communication and correspondence is not absolute, for it expressly
allows intrusion either upon lawful order of a court or when public safety and order so demands (even without a
court order).23

In its 1965 ruling in Griswold v. Connecticut,24  the US Supreme Court declared that the right to privacy was a
fundamental personal right; and that the enumeration in the Constitution of certain rights should not be
construed as a denial or disparagement of others that have been retained by the people,25 considering that the
"specific guarantees in the Bill of Rights had penumbras, formed by emanations from those guarantees that
helped give them life and substance." Accordingly, an individual’s right to privacy of communication and
correspondence cannot, as a general rule, be denied without violating the basic principles of liberty and justice.

The constitutional right to privacy in its Philippine context was first recognized in the 1968 ruling of Morfe v.
Mutuc,26where the Court affirmed that:

"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."

Morfe v. Mutuc emphasized the significance of privacy by declaring that "[t]he right to be let alone is indeed the
beginning of all freedom."27  The description hewed very closely to that earlier made by Justice Brandeis in
Olmstead v. United States that the right to be let alone was "the most comprehensive of rights and the right most
valued by civilized men."28

It is elementary that before this constitutional right may be invoked a reasonable or objective expectation of
privacy should exist, a concept that was introduced in the concurring opinion of Justice Harlan in the 1967 case
Katz v. United States,29 no doubt inspired by the oral argument30 of Judge Harvey Schneider, then co-counsel for
petitioner Charles Katz. Since the idea was never discussed in the briefs, Judge Schneider boldly articulated
during his oral argument that "expectations of privacy should be based on an objective standard, one that could
be formulated using the reasonable man standard from tort law."31  Realizing the significance of this new
standard in its Fourth Amendment jurisprudence, Justice Harlan, in his own way, characterized the reasonable
expectation of privacy test as "the rule that has emerged from prior decisions."32

Justice Harlan expanded the test into its subjective and objective component, however, by stressing that the
protection of the Fourth Amendment has a two-fold requirement: "first, that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize
as ‘reasonable’."33 Although the majority opinion in Katz v. United States made no reference to this reasonable
expectation of privacy test, it instituted the doctrine that "the Fourth Amendment protects people, not places.
What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may
be constitutionally protected."34

In the 1968 case Mancusi v. DeForte,35  the US Supreme Court started to apply the reasonable expectation of
privacy test pioneered by Katz v. United States and declared that the "capacity to claim the protection of the
Amendment depends not upon a property right in the invaded place, but upon whether the area was one in
which there was a reasonable expectation of freedom from governmental intrusion."36

Republic of the Philippines



SUPREME COURT

Manila

EN BANC

G.R. No. 157870 November 3, 2008 Partially granted


c&d - constitutional
SOCIAL JUSTICE SOCIETY (SJS), petitioner 

vs.

DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY (PDEA), respondents.

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

G.R. No. 158633 November 3, 2008

ATTY. MANUEL J. LASERNA, JR., petitioner 



vs.

DANGEROUS DRUGS BOARD and PHILIPPINE DRUG ENFORCEMENT AGENCY, respondents.

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

G.R. No. 161658 November 3, 2008

AQUILINO Q. PIMENTEL, JR., petitioner 



vs.

COMMISSION ON ELECTIONS, respondents.

DECISION

VELASCO, JR., J.:

In these kindred petitions, the constitutionality of Section 36 of Republic Act No. (RA) 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002, insofar as it requires mandatory drug testing of candidates for
public office, students of secondary and tertiary schools, officers and employees of public and private offices, and
persons charged before the prosecutor's office with certain offenses, among other personalities, is put in issue.

As far as pertinent, the challenged section reads as follows:

SEC. 36. Authorized Drug Testing. - Authorized drug testing shall be done by any government forensic
laboratories or by any of the drug testing laboratories accredited and monitored by the DOH to safeguard the
quality of the test results. x x x The drug testing shall employ, among others, two (2) testing methods, the
screening test which will determine the positive result as well as the type of drug used and the confirmatory test
which will confirm a positive screening test. x x x The following shall be subjected to undergo drug testing:

xxxx

(c) Students of secondary and tertiary schools. - Students of secondary and tertiary schools shall, pursuant to the
related rules and regulations as contained in the school's student handbook and with notice to the parents,
undergo a random drug testing x x x;

(d) Officers and employees of public and private offices. - Officers and employees of public and private offices,
whether domestic or overseas, shall be subjected to undergo a random drug test as contained in the company's
work rules and regulations, x x x for purposes of reducing the risk in the workplace. Any officer or employee found
positive for use of dangerous drugs shall be dealt with administratively which shall be a ground for suspension or
termination, subject to the provisions of Article 282 of the Labor Code and pertinent provisions of the Civil Service
Law;

xxxx

(f) All persons charged before the prosecutor's office with a criminal offense having an imposable penalty of
imprisonment of not less than six (6) years and one (1) day shall undergo a mandatory drug test;

(g) All candidates for public office whether appointed or elected both in the national or local government shall
undergo a mandatory drug test.

In addition to the above stated penalties in this Section, those found to be positive for dangerous drugs use shall
be subject to the provisions of Section 15 of this Act.
G.R. No. 161658 (Aquilino Q. Pimentel, Jr. v. Commission on Elections)

On December 23, 2003, the Commission on Elections (COMELEC) issued Resolution No. 6486, prescribing the
rules and regulations on the mandatory drug testing of candidates for public office in connection with the May 10,
2004 synchronized national and local elections. The pertinent portions of the said resolution read as follows:

WHEREAS, Section 36 (g) of Republic Act No. 9165 provides:

SEC. 36. Authorized Drug Testing. - x x x

xxxx

(g) All candidates for public office x x x both in the national or local government shall undergo a mandatory drug
test.

WHEREAS, Section 1, Article XI of the 1987 Constitution provides that public officers and employees must at all
times be accountable to the people, serve them with utmost responsibility, integrity, loyalty and efficiency;

WHEREAS, by requiring candidates to undergo mandatory drug test, the public will know the quality of candidates
they are electing and they will be assured that only those who can serve with utmost responsibility, integrity,
loyalty, and efficiency would be elected x x x.

NOW THEREFORE, The [COMELEC], pursuant to the authority vested in it under the Constitution, Batas
Pambansa Blg. 881 (Omnibus Election Code), [RA] 9165 and other election laws, RESOLVED to promulgate, as it
hereby promulgates, the following rules and regulations on the conduct of mandatory drug testing to candidates
for public office[:]

SECTION 1. Coverage. - All candidates for public office, both national and local, in the May 10, 2004
Synchronized National and Local Elections shall undergo mandatory drug test in government forensic
laboratories or any drug testing laboratories monitored and accredited by the Department of Health.

SEC. 3. x x x

On March 25, 2004, in addition to the drug certificates filed with their respective offices, the Comelec Offices and
employees concerned shall submit to the Law Department two (2) separate lists of candidates. The first list shall
consist of those candidates who complied with the mandatory drug test while the second list shall consist of those
candidates who failed to comply x x x.

SEC. 4. Preparation and publication of names of candidates. - Before the start of the campaign period, the
[COMELEC] shall prepare two separate lists of candidates. The first list shall consist of those candidates who
complied with the mandatory drug test while the second list shall consist of those candidates who failed to comply
with said drug test. x x x

SEC. 5. Effect of failure to undergo mandatory drug test and file drug test certificate. - No person elected to any
public office shall enter upon the duties of his office until he has undergone mandatory drug test and filed with the
offices enumerated under Section 2 hereof the drug test certificate herein required. (Emphasis supplied.)

Petitioner Aquilino Q. Pimentel, Jr., a senator of the Republic and a candidate for re - election in the May 10, 2004
elections,1filed a Petition for Certiorari and Prohibition under Rule 65. In it, he seeks (1) to nullify Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 dated December 23, 2003 for being unconstitutional in that they
impose a qualification for candidates for senators in addition to those already provided for in the 1987
Constitution; and (2) to enjoin the COMELEC from implementing Resolution No. 6486.

Pimentel invokes as legal basis for his petition Sec. 3, Article VI of the Constitution, which states:

SECTION 3. No person shall be a Senator unless he is a natural - born citizen of the Philippines, and, on the day
of the election, is at least thirty - five years of age, able to read and write, a registered voter, and a resident of the
Philippines for not less than two years immediately preceding the day of the election.

According to Pimentel, the Constitution only prescribes a maximum of five (5) qualifications for one to be a
candidate for, elected to, and be a member of the Senate. He says that both the Congress and COMELEC, by
requiring, via RA 9165 and Resolution No. 6486, a senatorial aspirant, among other candidates, to undergo a
mandatory drug test, create an additional qualification that all candidates for senator must first be certified as drug
free. He adds that there is no provision in the Constitution authorizing the Congress or COMELEC to expand the
qualification requirements of candidates for senator.

G.R. No. 157870 (Social Justice Society v. Dangerous



Drugs Board and Philippine Drug Enforcement Agency)

In its Petition for Prohibition under Rule 65, petitioner Social Justice Society (SJS), a registered political party,
seeks to prohibit the Dangerous Drugs Board (DDB) and the Philippine Drug Enforcement Agency (PDEA) from
enforcing paragraphs (c), (d), (f), and (g) of Sec. 36 of RA 9165 on the ground that they are constitutionally infirm.
For one, the provisions constitute undue delegation of legislative power when they give unbridled discretion to
schools and employers to determine the manner of drug testing. For another, the provisions trench in the equal
protection clause inasmuch as they can be used to harass a student or an employee deemed undesirable. And for
a third, a person's constitutional right against unreasonable searches is also breached by said provisions.

G.R. No. 158633 (Atty. Manuel J. Laserna, Jr. v. Dangerous



Drugs Board and Philippine Drug Enforcement Agency)

Petitioner Atty. Manuel J. Laserna, Jr., as citizen and taxpayer, also seeks in his Petition for Certiorari and
Prohibition under Rule 65 that Sec. 36(c), (d), (f), and (g) of RA 9165 be struck down as unconstitutional for
infringing on the constitutional right to privacy, the right against unreasonable search and seizure, and the right
against self - incrimination, and for being contrary to the due process and equal protection guarantees.

The Issue on Locus Standi

First off, we shall address the justiciability of the cases at bench and the matter of the standing of petitioners SJS
and Laserna to sue. As respondents DDB and PDEA assert, SJS and Laserna failed to allege any incident
amounting to a violation of the constitutional rights mentioned in their separate petitions.2

It is basic that the power of judicial review can only be exercised in connection with a bona fide controversy which
involves the statute sought to be reviewed.3 But even with the presence of an actual case or controversy, the
Court may refuse to exercise judicial review unless the constitutional question is brought before it by a party
having the requisite standing to challenge it.4 To have standing, one must establish that he or she has suffered
some actual or threatened injury as a result of the allegedly illegal conduct of the government; the injury is fairly
traceable to the challenged action; and the injury is likely to be redressed by a favorable action.5

The rule on standing, however, is a matter of procedure; hence, it can be relaxed for non - traditional plaintiffs, like
ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overarching significance to society, or of paramount public interest.6 There is no
doubt that Pimentel, as senator of the Philippines and candidate for the May 10, 2004 elections, possesses the
requisite standing since he has substantial interests in the subject matter of the petition, among other preliminary
considerations. Regarding SJS and Laserna, this Court is wont to relax the rule on locus standi owing primarily to
the transcendental importance and the paramount public interest involved in the enforcement of Sec. 36 of RA
9165.

The Consolidated Issues

The principal issues before us are as follows:

(1) Do Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 impose an additional qualification for
candidates for senator? Corollarily, can Congress enact a law prescribing qualifications for candidates for senator
in addition to those laid down by the Constitution? and
Issue
(2) Are paragraphs (c), (d), (f), and (g) of Sec. 36, RA 9165 unconstitutional? Specifically, do these paragraphs
violate the right to privacy, the right against unreasonable searches and seizure, and the equal protection clause?
Or do they constitute undue delegation of legislative power?

Pimentel Petition

(Constitutionality of Sec. 36[g] of RA 9165 and

COMELEC Resolution No. 6486)

In essence, Pimentel claims that Sec. 36(g) of RA 9165 and COMELEC Resolution No. 6486 illegally impose an
additional qualification on candidates for senator. He points out that, subject to the provisions on nuisance
candidates, a candidate for senator needs only to meet the qualifications laid down in Sec. 3, Art. VI of the
Constitution, to wit: (1) citizenship, (2) voter registration, (3) literacy, (4) age, and (5) residency. Beyond these
stated qualification requirements, candidates for senator need not possess any other qualification to run for
senator and be voted upon and elected as member of the Senate. The Congress cannot validly amend or
otherwise modify these qualification standards, as it cannot disregard, evade, or weaken the force of a
constitutional mandate,7 or alter or enlarge the Constitution.

Pimentel's contention is well - taken. Accordingly, Sec. 36(g) of RA 9165 should be, as it is hereby declared as,
unconstitutional. It is basic that if a law or an administrative rule violates any norm of the Constitution, that
issuance is null and void and has no effect. The Constitution is the basic law to which all laws must conform; no
act shall be valid if it conflicts with the Constitution.8 In the discharge of their defined functions, the three
departments of government have no choice but to yield obedience to the commands of the Constitution. Whatever
limits it imposes must be observed.9
Congress' inherent legislative powers, broad as they may be, are subject to certain limitations. As early as 1927,
in Government v. Springer, the Court has defined, in the abstract, the limits on legislative power in the following
wise:

Someone has said that the powers of the legislative department of the Government, like the boundaries of the
ocean, are unlimited. In constitutional governments, however, as well as governments acting under delegated
authority, the powers of each of the departments x x x are limited and confined within the four walls of the
constitution or the charter, and each department can only exercise such powers as are necessarily implied from
the given powers. The Constitution is the shore of legislative authority against which the waves of legislative
enactment may dash, but over which it cannot leap.10

Thus, legislative power remains limited in the sense that it is subject to substantive and constitutional limitations
which circumscribe both the exercise of the power itself and the allowable subjects of legislation.11 The
substantive constitutional limitations are chiefly found in the Bill of Rights12 and other provisions, such as Sec. 3,
Art. VI of the Constitution prescribing the qualifications of candidates for senators.

In the same vein, the COMELEC cannot, in the guise of enforcing and administering election laws or promulgating
rules and regulations to implement Sec. 36(g), validly impose qualifications on candidates for senator in addition
to what the Constitution prescribes. If Congress cannot require a candidate for senator to meet such additional
qualification, the COMELEC, to be sure, is also without such power. The right of a citizen in the democratic
process of election should not be defeated by unwarranted impositions of requirement not otherwise specified in
the Constitution.13

Sec. 36(g) of RA 9165, as sought to be implemented by the assailed COMELEC resolution, effectively enlarges
the qualification requirements enumerated in the Sec. 3, Art. VI of the Constitution. As couched, said Sec. 36(g)
unmistakably requires a candidate for senator to be certified illegal - drug clean, obviously as a pre - condition to
the validity of a certificate of candidacy for senator or, with like effect, a condition sine qua non to be voted upon
and, if proper, be proclaimed as senator - elect. The COMELEC resolution completes the chain with the proviso
that "[n]o person elected to any public office shall enter upon the duties of his office until he has undergone
mandatory drug test." Viewed, therefore, in its proper context, Sec. 36(g) of RA 9165 and the implementing
COMELEC Resolution add another qualification layer to what the 1987 Constitution, at the minimum, requires for
membership in the Senate. Whether or not the drug - free bar set up under the challenged provision is to be
hurdled before or after election is really of no moment, as getting elected would be of little value if one cannot
assume office for non - compliance with the drug - testing requirement.

It may of course be argued, in defense of the validity of Sec. 36(g) of RA 9165, that the provision does not
expressly state that non - compliance with the drug test imposition is a disqualifying factor or would work to nullify
a certificate of candidacy. This argument may be accorded plausibility if the drug test requirement is optional. But
the particular section of the law, without exception, made drug - testing on those covered mandatory, necessarily
suggesting that the obstinate ones shall have to suffer the adverse consequences for not adhering to the statutory
command. And since the provision deals with candidates for public office, it stands to reason that the adverse
consequence adverted to can only refer to and revolve around the election and the assumption of public office of
the candidates. Any other construal would reduce the mandatory nature of Sec. 36(g) of RA 9165 into a pure
jargon without meaning and effect whatsoever.

While it is anti - climactic to state it at this juncture, COMELEC Resolution No. 6486 is no longer enforceable, for
by its terms, it was intended to cover only the May 10, 2004 synchronized elections and the candidates running in
that electoral event. Nonetheless, to obviate repetition, the Court deems it appropriate to review and rule, as it
hereby rules, on its validity as an implementing issuance.

It ought to be made abundantly clear, however, that the unconstitutionality of Sec. 36(g) of RA 9165 is rooted on
its having infringed the constitutional provision defining the qualification or eligibility requirements for one aspiring
to run for and serve as senator.

SJS Petition

(Constitutionality of Sec. 36[c], [d], [f], and [g] of RA 9165)

The drug test prescribed under Sec. 36(c), (d), and (f) of RA 9165 for secondary and tertiary level students and
public and private employees, while mandatory, is a random and suspicionless arrangement. The objective is to
stamp out illegal drug and safeguard in the process "the well being of [the] citizenry, particularly the youth, from
the harmful effects of dangerous drugs." This statutory purpose, per the policy - declaration portion of the law, can
be achieved via the pursuit by the state of "an intensive and unrelenting campaign against the trafficking and use
of dangerous drugs x x x through an integrated system of planning, implementation and enforcement of anti - drug
abuse policies, programs and projects."14 The primary legislative intent is not criminal prosecution, as those found
positive for illegal drug use as a result of this random testing are not necessarily treated as criminals. They may
even be exempt from criminal liability should the illegal drug user consent to undergo rehabilitation. Secs. 54 and
55 of RA 9165 are clear on this point:

Sec. 54. Voluntary Submission of a Drug Dependent to Confinement, Treatment and Rehabilitation. - A drug
dependent or any person who violates Section 15 of this Act may, by himself/herself or through his/her parent,
[close relatives] x x x apply to the Board x x x for treatment and rehabilitation of the drug dependency. Upon such
application, the Board shall bring forth the matter to the Court which shall order that the applicant be examined for
drug dependency. If the examination x x x results in the certification that the applicant is a drug dependent, he/she
shall be ordered by the Court to undergo treatment and rehabilitation in a Center designated by the Board x x x.

xxxx

Sec. 55. Exemption from the Criminal Liability Under the Voluntary Submission Program. - A drug dependent
under the voluntary submission program, who is finally discharged from confinement, shall be exempt from the
criminal liability under Section 15 of this Act subject to the following conditions:

xxxx

School children, the US Supreme Court noted, are most vulnerable to the physical, psychological, and addictive
effects of drugs. Maturing nervous systems of the young are more critically impaired by intoxicants and are more
inclined to drug dependency. Their recovery is also at a depressingly low rate.15

The right to privacy has been accorded recognition in this jurisdiction as a facet of the right protected by the
guarantee against unreasonable search and seizure16 under Sec. 2, Art. III17 of the Constitution. But while the
right to privacy has long come into its own, this case appears to be the first time that the validity of a state -
decreed search or intrusion through the medium of mandatory random drug testing among students and
employees is, in this jurisdiction, made the focal point. Thus, the issue tendered in these proceedings is veritably
one of first impression.

US jurisprudence is, however, a rich source of persuasive jurisprudence. With respect to random drug testing
among school children, we turn to the teachings of Vernonia School District 47J v. Acton (Vernonia) and Board of
Education of Independent School District No. 92 of Pottawatomie County, et al. v. Earls, et al. (Board of
Education),18 both fairly pertinent US Supreme Court - decided cases involving the constitutionality of
governmental search.

In Vernonia, school administrators in Vernonia, Oregon wanted to address the drug menace in their respective
institutions following the discovery of frequent drug use by school athletes. After consultation with the parents,
they required random urinalysis drug testing for the school's athletes. James Acton, a high school student, was
denied participation in the football program after he refused to undertake the urinalysis drug testing. Acton
forthwith sued, claiming that the school's drug testing policy violated, inter alia, the Fourth Amendment19 of the US
Constitution.

The US Supreme Court, in fashioning a solution to the issues raised in Vernonia, considered the following: (1)
schools stand in loco parentis over their students; (2) school children, while not shedding their constitutional rights
at the school gate, have less privacy rights; (3) athletes have less privacy rights than non - athletes since the
former observe communal undress before and after sports events; (4) by joining the sports activity, the athletes
voluntarily subjected themselves to a higher degree of school supervision and regulation; (5) requiring urine
samples does not invade a student's privacy since a student need not undress for this kind of drug testing; and (6)
there is need for the drug testing because of the dangerous effects of illegal drugs on the young. The US
Supreme Court held that the policy constituted reasonable search under the Fourth20 and 14th Amendments and
declared the random drug - testing policy constitutional.

In Board of Education, the Board of Education of a school in Tecumseh, Oklahoma required a drug test for high
school students desiring to join extra - curricular activities. Lindsay Earls, a member of the show choir, marching
band, and academic team declined to undergo a drug test and averred that the drug - testing policy made to apply
to non - athletes violated the Fourth and 14th Amendments. As Earls argued, unlike athletes who routinely
undergo physical examinations and undress before their peers in locker rooms, non - athletes are entitled to more
privacy.

The US Supreme Court, citing Vernonia, upheld the constitutionality of drug testing even among non - athletes on
the basis of the school's custodial responsibility and authority. In so ruling, said court made no distinction between
a non - athlete and an athlete. It ratiocinated that schools and teachers act in place of the parents with a similar
interest and duty of safeguarding the health of the students. And in holding that the school could implement its
random drug - testing policy, the Court hinted that such a test was a kind of search in which even a reasonable
parent might need to engage.

In sum, what can reasonably be deduced from the above two cases and applied to this jurisdiction are: (1) schools
and their administrators stand in loco parentis with respect to their students; (2) minor students have contextually
fewer rights than an adult, and are subject to the custody and supervision of their parents, guardians, and schools;
(3) schools, acting in loco parentis, have a duty to safeguard the health and well - being of their students and may
adopt such measures as may reasonably be necessary to discharge such duty; and (4) schools have the right to
impose conditions on applicants for admission that are fair, just, and non-discriminatory.
As to students
Guided by Vernonia and Board of Education, the Court is of the view and so holds that the provisions of RA 9165
requiring mandatory, random, and suspicionless drug testing of students are constitutional. Indeed, it is within the
prerogative of educational institutions to require, as a condition for admission, compliance with reasonable school
rules and regulations and policies. To be sure, the right to enroll is not absolute; it is subject to fair, reasonable,
and equitable requirements.
The Court can take judicial notice of the proliferation of prohibited drugs in the country that threatens the well -
being of the people,21 particularly the youth and school children who usually end up as victims. Accordingly, and
until a more effective method is conceptualized and put in motion, a random drug testing of students in secondary
and tertiary schools is not only acceptable but may even be necessary if the safety and interest of the student
population, doubtless a legitimate concern of the government, are to be promoted and protected. To borrow
from Vernonia, "[d]eterring drug use by our Nation's schoolchildren is as important as enhancing efficient
enforcement of the Nation's laws against the importation of drugs"; the necessity for the State to act is magnified
by the fact that the effects of a drug - infested school are visited not just upon the users, but upon the entire
student body and faculty.22 Needless to stress, the random testing scheme provided under the law argues against
the idea that the testing aims to incriminate unsuspecting individual students.

Just as in the case of secondary and tertiary level students, the mandatory but random drug test prescribed by
Sec. 36 of RA 9165 for officers and employees of public and private offices is justifiable, albeit not exactly for the
same reason. The Court notes in this regard that petitioner SJS, other than saying that "subjecting almost
everybody to drug testing, without probable cause, is unreasonable, an unwarranted intrusion of the individual
right to privacy,"23 has failed to show how the mandatory, random, and suspicionless drug testing under Sec. 36(c)
and (d) of RA 9165 violates the right to privacy and constitutes unlawful and/or unconsented search under Art. III,
Secs. 1 and 2 of the Constitution.24 Petitioner Laserna's lament is just as simplistic, sweeping, and gratuitous and
does not merit serious consideration. Consider what he wrote without elaboration:

The US Supreme Court and US Circuit Courts of Appeals have made various rulings on the constitutionality of
mandatory drug tests in the school and the workplaces. The US courts have been consistent in their rulings that
the mandatory drug tests violate a citizen's constitutional right to privacy and right against unreasonable search
and seizure. They are quoted extensively hereinbelow.25

The essence of privacy is the right to be left alone.26 In context, the right to privacy means the right to be free from
unwarranted exploitation of one's person or from intrusion into one's private activities in such a way as to cause
humiliation to a person's ordinary sensibilities. 27 And while there has been general agreement as to the basic
function of the guarantee against unwarranted search, "translation of the abstract prohibition against
‘unreasonable searches and seizures' into workable broad guidelines for the decision of particular cases is a
difficult task," to borrow from C. Camara v. Municipal Court.28Authorities are agreed though that the right to privacy
yields to certain paramount rights of the public and defers to the state's exercise of police power.29

As the warrantless clause of Sec. 2, Art III of the Constitution is couched and as has been held, "reasonableness"
is the touchstone of the validity of a government search or intrusion.30 And whether a search at issue hews to the
reasonableness standard is judged by the balancing of the government - mandated intrusion on the individual's
privacy interest against the promotion of some compelling state interest.31 In the criminal context, reasonableness
requires showing of probable cause to be personally determined by a judge. Given that the drug - testing policy for
employees--and students for that matter--under RA 9165 is in the nature of administrative search needing what
was referred to in Vernonia as "swift and informal disciplinary procedures," the probable - cause standard is not
required or even practicable. Be that as it may, the review should focus on the reasonableness of the challenged
administrative search in question.

The first factor to consider in the matter of reasonableness is the nature of the privacy interest upon which the
drug testing, which effects a search within the meaning of Sec. 2, Art. III of the Constitution, intrudes. In this case,
the office or workplace serves as the backdrop for the analysis of the privacy expectation of the employees and
the reasonableness of drug testing requirement. The employees' privacy interest in an office is to a large extent
circumscribed by the company's work policies, the collective bargaining agreement, if any, entered into by
management and the bargaining unit, and the inherent right of the employer to maintain discipline and efficiency in
the workplace. Their privacy expectation in a regulated office environment is, in fine, reduced; and a degree of
impingement upon such privacy has been upheld.

Just as defining as the first factor is the character of the intrusion authorized by the challenged law. Reduced to a
question form, is the scope of the search or intrusion clearly set forth, or, as formulated in Ople v. Torres, is the
enabling law authorizing a search "narrowly drawn" or "narrowly focused"?32

The poser should be answered in the affirmative. For one, Sec. 36 of RA 9165 and its implementing rules and
regulations (IRR), as couched, contain provisions specifically directed towards preventing a situation that would
unduly embarrass the employees or place them under a humiliating experience. While every officer and employee
in a private establishment is under the law deemed forewarned that he or she may be a possible subject of a drug
test, nobody is really singled out in advance for drug testing. The goal is to discourage drug use by not telling in
advance anyone when and who is to be tested. And as may be observed, Sec. 36(d) of RA 9165 itself prescribes
what, in Ople, is a narrowing ingredient by providing that the employees concerned shall be subjected to "random
drug test as contained in the company's work rules and regulations x x x for purposes of reducing the risk in the
work place."

For another, the random drug testing shall be undertaken under conditions calculated to protect as much as
possible the employee's privacy and dignity. As to the mechanics of the test, the law specifies that the procedure
shall employ two testing methods, i.e., the screening test and the confirmatory test, doubtless to ensure as much
as possible the trustworthiness of the results. But the more important consideration lies in the fact that the test
shall be conducted by trained professionals in access - controlled laboratories monitored by the Department of
Health (DOH) to safeguard against results tampering and to ensure an accurate chain of custody.33 In addition,
the IRR issued by the DOH provides that access to the drug results shall be on the "need to know" basis;34 that
the "drug test result and the records shall be [kept] confidential subject to the usual accepted practices to protect
the confidentiality of the test results."35 Notably, RA 9165 does not oblige the employer concerned to report to the
prosecuting agencies any information or evidence relating to the violation of the Comprehensive Dangerous Drugs
Actreceived as a result of the operation of the drug testing. All told, therefore, the intrusion into the employees'
privacy, under RA 9165, is accompanied by proper safeguards, particularly against embarrassing leakages of test
results, and is relatively minimal.

To reiterate, RA 9165 was enacted as a measure to stamp out illegal drug in the country and thus protect the well
- being of the citizens, especially the youth, from the deleterious effects of dangerous drugs. The law intends to
achieve this through the medium, among others, of promoting and resolutely pursuing a national drug abuse
policy in the workplace via a mandatory random drug test.36 To the Court, the need for drug testing to at least
minimize illegal drug use is substantial enough to override the individual's privacy interest under the premises.
The Court can consider that the illegal drug menace cuts across gender, age group, and social - economic lines.
And it may not be amiss to state that the sale, manufacture, or trafficking of illegal drugs, with their ready market,
would be an investor's dream were it not for the illegal and immoral components of any of such activities. The drug
problem has hardly abated since the martial law public execution of a notorious drug trafficker. The state can no
longer assume a laid back stance with respect to this modern - day scourge. Drug enforcement agencies perceive
a mandatory random drug test to be an effective way of preventing and deterring drug use among employees in
private offices, the threat of detection by random testing being higher than other modes. The Court holds that the
chosen method is a reasonable and enough means to lick the problem.

Taking into account the foregoing factors, i.e., the reduced expectation of privacy on the part of the employees,
the compelling state concern likely to be met by the search, and the well - defined limits set forth in the law to
properly guide authorities in the conduct of the random testing, we hold that the challenged drug test requirement
is, under the limited context of the case, reasonable and, ergo, constitutional.

Like their counterparts in the private sector, government officials and employees also labor under reasonable
supervision and restrictions imposed by the Civil Service law and other laws on public officers, all enacted to
promote a high standard of ethics in the public service.37 And if RA 9165 passes the norm of reasonableness for
private employees, the more reason that it should pass the test for civil servants, who, by constitutional command,
are required to be accountable at all times to the people and to serve them with utmost responsibility and
efficiency.38
XXX Undue Delegation
Petitioner SJS' next posture that Sec. 36 of RA 9165 is objectionable on the ground of undue delegation of power
hardly commends itself for concurrence. Contrary to its position, the provision in question is not so extensively
drawn as to give unbridled options to schools and employers to determine the manner of drug testing. Sec. 36
expressly provides how drug testing for students of secondary and tertiary schools and officers/employees of
public/private offices should be conducted. It enumerates the persons who shall undergo drug testing. In the case
of students, the testing shall be in accordance with the school rules as contained in the student handbook and
with notice to parents. On the part of officers/employees, the testing shall take into account the company's work
rules. In either case, the random procedure shall be observed, meaning that the persons to be subjected to drug
test shall be picked by chance or in an unplanned way. And in all cases, safeguards against misusing and
compromising the confidentiality of the test results are established.

Lest it be overlooked, Sec. 94 of RA 9165 charges the DDB to issue, in consultation with the DOH, Department of
the Interior and Local Government, Department of Education, and Department of Labor and Employment, among
other agencies, the IRR necessary to enforce the law. In net effect then, the participation of schools and offices in
the drug testing scheme shall always be subject to the IRR of RA 9165. It is, therefore, incorrect to say that
schools and employers have unchecked discretion to determine how often, under what conditions, and where the
drug tests shall be conducted.

The validity of delegating legislative power is now a quiet area in the constitutional landscape.39 In the face of the
increasing complexity of the task of the government and the increasing inability of the legislature to cope directly
with the many problems demanding its attention, resort to delegation of power, or entrusting to administrative
agencies the power of subordinate legislation, has become imperative, as here.

Laserna Petition (Constitutionality of Sec. 36[c], [d], 



[f], and [g] of RA 9165)

Unlike the situation covered by Sec. 36(c) and (d) of RA 9165, the Court finds no valid justification for mandatory
drug testing for persons accused of crimes. In the case of students, the constitutional viability of the mandatory,
random, and suspicionless drug testing for students emanates primarily from the waiver by the students of their
right to privacy when they seek entry to the school, and from their voluntarily submitting their persons to the
parental authority of school authorities. In the case of private and public employees, the constitutional soundness
of the mandatory, random, and suspicionless drug testing proceeds from the reasonableness of the drug test
policy and requirement.

We find the situation entirely different in the case of persons charged before the public prosecutor's office with
criminal offenses punishable with six (6) years and one (1) day imprisonment. The operative concepts in the
mandatory drug testing are "randomness" and "suspicionless." In the case of persons charged with a crime before
the prosecutor's office, a mandatory drug testing can never be random or suspicionless. The ideas of randomness
and being suspicionless are antithetical to their being made defendants in a criminal complaint. They are not
randomly picked; neither are they beyond suspicion. When persons suspected of committing a crime are charged,
they are singled out and are impleaded against their will. The persons thus charged, by the bare fact of being
haled before the prosecutor's office and peaceably submitting themselves to drug testing, if that be the case, do
not necessarily consent to the procedure, let alone waive their right to privacy.40 To impose mandatory drug testing
on the accused is a blatant attempt to harness a medical test as a tool for criminal prosecution, contrary to the
stated objectives of RA 9165. Drug testing in this case would violate a persons' right to privacy guaranteed under
Sec. 2, Art. III of the Constitution. Worse still, the accused persons are veritably forced to incriminate themselves.

WHEREFORE, the Court resolves to GRANT the petition in G.R. No. 161658 and declares Sec. 36(g) of RA
9165 and COMELEC Resolution No. 6486 as UNCONSTITUTIONAL; and to PARTIALLY GRANT the petition in
G.R. Nos. 157870 and 158633 by declaring Sec. 36(c) and (d) of RA 9165 CONSTITUTIONAL, but declaring its
Sec. 36(f) UNCONSTITUTIONAL. All concerned agencies are, accordingly, permanently enjoined from
implementing Sec. 36(f) and (g) of RA 9165. No costs.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 202666 September 29, 2014

RHONDA AVE S. VIVARES and SPS. MARGARITA and DAVID SUZARA, Petitioners, 

vs.

ST. THERESA'S COLLEGE, MYLENE RHEZA T. ESCUDERO, and JOHN DOES, Respondents.

DECISION

VELASCO, JR., J.:

The individual's desire for privacy is never absolute, since participation in society is an equally powerful desire.
Thus each individual is continually engaged in a personal adjustment process in which he balances the desire for
privacy with the desire for disclosure and communication of himself to others, in light of the environmental
conditions and social norms set by the society in which he lives.

- Alan Westin, Privacy and Freedom (1967)

The Case

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, in relation to Section 19 of
A.M. No. 08-1-16-SC,1 otherwise known as the "Rule on the Writ of Habeas Data." Petitioners herein assail the
July 27, 2012 Decision2 of the Regional Trial Court, Branch 14 in Cebu City (RTC) in SP. Proc. No. 19251-CEB,
which dismissed their habeas data petition.

The Facts

Nenita Julia V. Daluz (Julia) and Julienne Vida Suzara (Julienne), both minors, were, during the period material,
graduating high school students at St. Theresa's College (STC), Cebu City. Sometime in January 2012, while
changing into their swimsuits for a beach party they were about to attend, Julia and Julienne, along with several
others, took digital pictures of themselves clad only in their undergarments. These pictures were then uploaded by
Angela Lindsay Tan (Angela) on her Facebook3 profile.

Back at the school, Mylene Rheza T. Escudero (Escudero), a computer teacher at STC’s high school department,
learned from her students that some seniors at STC posted pictures online, depicting themselves from the waist
up, dressed only in brassieres. Escudero then asked her students if they knew who the girls in the photos are. In
turn, they readily identified Julia, Julienne, and Chloe Lourdes Taboada (Chloe), among others.

Using STC’s computers, Escudero’s students logged in to their respective personal Facebook accounts and
showed her photos of the identified students, which include: (a) Julia and Julienne drinking hard liquor and
smoking cigarettes inside a bar; and (b) Julia and Julienne along the streets of Cebu wearing articles of clothing
that show virtually the entirety of their black brassieres. What is more, Escudero’s students claimed that there
were times when access to or the availability of the identified students’ photos was not confined to the girls’
Facebook friends,4but were, in fact, viewable by any Facebook user.5

Upon discovery, Escudero reported the matter and, through one of her student’s Facebook page, showed the
photosto Kristine Rose Tigol (Tigol), STC’s Discipline-in-Charge, for appropriate action. Thereafter, following an
investigation, STC found the identified students to have deported themselves in a manner proscribed by the
school’s Student Handbook, to wit:

1. Possession of alcoholic drinks outside the school campus;

2. Engaging in immoral, indecent, obscene or lewd acts;

3. Smoking and drinking alcoholicbeverages in public places;

4. Apparel that exposes the underwear;

5. Clothing that advocates unhealthy behaviour; depicts obscenity; contains sexually suggestive messages,
language or symbols; and 6. Posing and uploading pictures on the Internet that entail ample body exposure.

On March 1, 2012, Julia, Julienne, Angela, and the other students in the pictures in question, reported, as
required, to the office of Sr. Celeste Ma. Purisima Pe (Sr. Purisima), STC’s high school principal and
ICM6 Directress. They claimed that during the meeting, they were castigated and verbally abused by the STC
officials present in the conference, including Assistant Principal Mussolini S. Yap (Yap), Roswinda Jumiller, and
Tigol. What is more, Sr. Purisima informed their parents the following day that, as part of their penalty, they are
barred from joining the commencement exercises scheduled on March 30, 2012.
A week before graduation, or on March 23, 2012, Angela’s mother, Dr. Armenia M. Tan (Tan), filed a Petition for
Injunction and Damages before the RTC of Cebu City against STC, et al., docketed as Civil Case No.
CEB-38594.7In it, Tan prayed that defendants therein be enjoined from implementing the sanction that precluded
Angela from joining the commencement exercises.

On March 25, 2012,petitioner Rhonda Ave Vivares (Vivares), the mother of Julia, joined the fray as an intervenor.
On March 28, 2012, defendants inCivil Case No. CEB-38594 filed their memorandum, containing printed copies of
the photographs in issue as annexes. That same day, the RTC issued a temporary restraining order (TRO)
allowing the students to attend the graduation ceremony, to which STC filed a motion for reconsideration.

Despite the issuance of the TRO,STC, nevertheless, barred the sanctioned students from participating in the
graduation rites, arguing that, on the date of the commencement exercises, its adverted motion for
reconsideration on the issuance ofthe TRO remained unresolved.

Thereafter, petitioners filed before the RTC a Petition for the Issuance of a Writ of Habeas Data, docketed as SP.
Proc. No. 19251-CEB8 on the basis of the following considerations:
Petitioner’s Contention The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful
act of any official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information.

1. The photos of their children in their undergarments (e.g., bra) were taken for posterity before they changed into
their swimsuits on the occasion of a birthday beach party;

2. The privacy setting of their children’s Facebook accounts was set at "Friends Only." They, thus, have a
reasonable expectation of privacy which must be respected.

3. Respondents, being involved in the field of education, knew or ought to have known of laws that safeguard the
right to privacy. Corollarily, respondents knew or ought to have known that the girls, whose privacy has been
invaded, are the victims in this case, and not the offenders. Worse, after viewing the photos, the minors were
called "immoral" and were punished outright;

4. The photos accessed belong to the girls and, thus, cannot be used and reproduced without their consent.
Escudero, however, violated their rights by saving digital copies of the photos and by subsequently showing them
to STC’s officials. Thus, the Facebook accounts of petitioners’ children were intruded upon;

5. The intrusion into the Facebook accounts, as well as the copying of information, data, and digital images
happened at STC’s Computer Laboratory; and

6. All the data and digital images that were extracted were boldly broadcasted by respondents through their
memorandum submitted to the RTC in connection with Civil Case No. CEB-38594. To petitioners, the interplay of
the foregoing constitutes an invasion of their children’s privacy and, thus, prayed that: (a) a writ of habeas databe
issued; (b) respondents be ordered to surrender and deposit with the court all soft and printed copies of the
subjectdata before or at the preliminary hearing; and (c) after trial, judgment be rendered declaring all information,
data, and digital images accessed, saved or stored, reproduced, spread and used, to have been illegally obtained
inviolation of the children’s right to privacy.

Finding the petition sufficient in form and substance, the RTC, through an Order dated July 5, 2012, issued the
writ of habeas data. Through the same Order, herein respondents were directed to file their verified written return,
together with the supporting affidavits, within five (5) working days from service of the writ.

In time, respondents complied with the RTC’s directive and filed their verified written return, laying down the
following grounds for the denial of the petition, viz: (a) petitioners are not the proper parties to file the petition; (b)
petitioners are engaging in forum shopping; (c) the instant case is not one where a writ of habeas data may
issue;and (d) there can be no violation of their right to privacy as there is no reasonable expectation of privacy on
Facebook.

Ruling of the Regional Trial Court

On July 27, 2012, the RTC rendered a Decision dismissing the petition for habeas data. The dispositive portion of
the Decision pertinently states:

WHEREFORE, in view of the foregoing premises, the Petition is hereby DISMISSED.

The parties and media must observe the aforestated confidentiality.

xxxx

SO ORDERED.9

To the trial court, petitioners failed to prove the existence of an actual or threatened violation of the minors’ right to
privacy, one of the preconditions for the issuance of the writ of habeas data. Moreover, the court a quoheld that
the photos, having been uploaded on Facebook without restrictions as to who may view them, lost their privacy in
some way. Besides, the RTC noted, STC gathered the photographs through legal means and for a legal purpose,
that is, the implementation of the school’s policies and rules on discipline.
Not satisfied with the outcome, petitioners now come before this Court pursuant to Section 19 of the Rule on
Habeas Data.10

The Issues

The main issue to be threshed out inthis case is whether or not a writ of habeas datashould be issued given the
factual milieu. Crucial in resolving the controversy, however, is the pivotal point of whether or not there was indeed
an actual or threatened violation of the right to privacy in the life, liberty, or security of the minors involved in this
case.

Our Ruling

We find no merit in the petition.

Procedural issues concerning the availability of the Writ of Habeas Data

The writ of habeas datais a remedy available to any person whose right to privacy in life, liberty or security is
violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or
entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and
correspondence of the aggrieved party.11 It is an independent and summary remedy designed to protect the
image, privacy, honor, information, and freedom of information of an individual, and to provide a forum to enforce
one’s right to the truth and to informational privacy. It seeks to protect a person’s right to control information
regarding oneself, particularly in instances in which such information is being collected through unlawful means in
order to achieve unlawful ends.12

In developing the writ of habeas data, the Court aimed to protect an individual’s right to informational privacy,
among others. A comparative law scholar has, in fact, defined habeas dataas "a procedure designed to safeguard
individual freedom from abuse in the information age."13 The writ, however, will not issue on the basis merely of an
alleged unauthorized access to information about a person.Availment of the writ requires the existence of a nexus
between the right to privacy on the one hand, and the right to life, liberty or security on the other.14 Thus, the
existence of a person’s right to informational privacy and a showing, at least by substantial evidence, of an actual
or threatened violation of the right to privacy in life, liberty or security of the victim are indispensable before the
privilege of the writ may be extended.15

Without an actionable entitlement in the first place to the right to informational privacy, a habeas datapetition will
not prosper. Viewed from the perspective of the case at bar,this requisite begs this question: given the nature of
an online social network (OSN)––(1) that it facilitates and promotes real-time interaction among millions, if not
billions, of users, sans the spatial barriers,16 bridging the gap created by physical space; and (2) that any
information uploaded in OSNs leavesan indelible trace in the provider’s databases, which are outside the control
of the end-users––is there a right to informational privacy in OSN activities of its users? Before addressing this
point, We must first resolve the procedural issues in this case.

a. The writ of habeas data is not only confined to cases of extralegal killings and enforced disappearances

Contrary to respondents’ submission, the Writ of Habeas Datawas not enacted solely for the purpose of
complementing the Writ of Amparoin cases of extralegal killings and enforced disappearances.

Section 2 of the Rule on the Writ of Habeas Data provides:

Sec. 2. Who May File. – Any aggrieved party may file a petition for the writ of habeas data. However, in cases of
extralegal killings and enforced disappearances, the petition may be filed by:

(a) Any member of the immediate family of the aggrieved party, namely: the spouse, children and parents; or

(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degreeof
consanguinity or affinity, in default of those mentioned in the preceding paragraph. (emphasis supplied)

Had the framers of the Rule intended to narrow the operation of the writ only to cases of extralegal killings or
enforced disappearances, the above underscored portion of Section 2, reflecting a variance of habeas data
situations, would not have been made.

Habeas data, to stress, was designed "to safeguard individual freedom from abuse in the information age."17 As
such, it is erroneous to limit its applicability to extralegal killings and enforced disappearances only. In fact, the
annotations to the Rule preparedby the Committee on the Revision of the Rules of Court, after explaining that the
Writ of Habeas Data complements the Writ of Amparo, pointed out that:

The writ of habeas data, however, can be availed of as an independent remedy to enforce one’s right to privacy,
more specifically the right to informational privacy. The remedies against the violation of such right can include the
updating, rectification, suppression or destruction of the database or information or files in possession or in control
of respondents.18 (emphasis Ours) Clearly then, the privilege of the Writ of Habeas Datamay also be availed of in
cases outside of extralegal killings and enforced disappearances.

b. Meaning of "engaged" in the gathering, collecting or storing of data or information


Respondents’ contention that the habeas data writ may not issue against STC, it not being an entity engaged in
the gathering, collecting or storing of data or information regarding the person, family, home and correspondence
of the aggrieved party, while valid to a point, is, nonetheless, erroneous.

To be sure, nothing in the Rule would suggest that the habeas data protection shall be available only against
abuses of a person or entity engaged in the businessof gathering, storing, and collecting of data. As provided
under Section 1 of the Rule:

Section 1. Habeas Data. – The writ of habeas datais a remedy available to any person whose right to privacy in
life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of
a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the
person, family, home and correspondence of the aggrieved party. (emphasis Ours)

The provision, when taken in its proper context, as a whole, irresistibly conveys the idea that habeas data is a
protection against unlawful acts or omissions of public officials and of private individuals or entities engaged in
gathering, collecting, or storing data about the aggrieved party and his or her correspondences, or about his or her
family. Such individual or entity need not be in the business of collecting or storing data.

To "engage" in something is different from undertaking a business endeavour. To "engage" means "to do or take
part in something."19 It does not necessarily mean that the activity must be done in pursuit of a business. What
matters is that the person or entity must be gathering, collecting or storing said data or information about the
aggrieved party or his or her family. Whether such undertaking carries the element of regularity, as when one
pursues a business, and is in the nature of a personal endeavour, for any other reason or even for no reason at
all, is immaterial and such will not prevent the writ from getting to said person or entity.

To agree with respondents’ above argument, would mean unduly limiting the reach of the writ to a very small
group, i.e., private persons and entities whose business is data gathering and storage, and in the process
decreasing the effectiveness of the writ asan instrument designed to protect a right which is easily violated in view
of rapid advancements in the information and communications technology––a right which a great majority of the
users of technology themselves are not capable of protecting.

Having resolved the procedural aspect of the case, We now proceed to the core of the controversy.

The right to informational privacy on Facebook

a. The Right to Informational Privacy

The concept of privacyhas, through time, greatly evolved, with technological advancements having an influential
part therein. This evolution was briefly recounted in former Chief Justice Reynato S. Puno’s speech, The Common
Right to Privacy,20 where he explained the three strands of the right to privacy, viz: (1) locational or situational
privacy;21(2) informational privacy; and (3) decisional privacy.22 Of the three, what is relevant to the case at bar is
the right to informational privacy––usually defined as the right of individuals to control information about
themselves.23

With the availability of numerous avenues for information gathering and data sharing nowadays, not to mention
each system’s inherent vulnerability to attacks and intrusions, there is more reason that every individual’s right to
control said flow of information should be protected and that each individual should have at least a reasonable
expectation of privacy in cyberspace. Several commentators regarding privacy and social networking sites,
however, all agree that given the millions of OSN users, "[i]n this [Social Networking] environment, privacy is no
longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful
thinking."24

It is due to this notion that the Court saw the pressing need to provide for judicial remedies that would allow a
summary hearing of the unlawful use of data or information and to remedy possible violations of the right to
privacy.25 In the same vein, the South African High Court, in its Decision in the landmark case, H v. W,
26promulgated on January30, 2013, recognized that "[t]he law has to take into account the changing realities not

only technologically but also socially or else it will lose credibility in the eyes of the people. x x x It is imperative
that the courts respond appropriately to changing times, acting cautiously and with wisdom." Consistent with this,
the Court, by developing what may be viewed as the Philippine model of the writ of habeas data, in effect,
recognized that, generally speaking, having an expectation of informational privacy is not necessarily incompatible
with engaging in cyberspace activities, including those that occur in OSNs.

The question now though is up to whatextent is the right to privacy protected in OSNs? Bear in mind that
informational privacy involves personal information. At the same time, the very purpose of OSNs is socializing––
sharing a myriad of information,27 some of which would have otherwise remained personal.

b. Facebook’s Privacy Tools: a response to the clamor for privacy in OSN activities

Briefly, the purpose of an OSN is precisely to give users the ability to interact and to stay connected to other
members of the same or different social media platform through the sharing of statuses, photos, videos, among
others, depending on the services provided by the site. It is akin to having a room filled with millions of personal
bulletin boards or "walls," the contents of which are under the control of each and every user. In his or her bulletin
board, a user/owner can post anything––from text, to pictures, to music and videos––access to which would
depend on whether he or she allows one, some or all of the other users to see his or her posts. Since gaining
Petitioner’s Contention: Violation of Privacy
popularity, the OSN phenomenon has paved the way to the creation of various social networking sites,
includingthe one involved in the case at bar, www.facebook.com (Facebook), which, according to its developers,
people use "to stay connected with friends and family, to discover what’s going on in the world, and to share and
express what matters to them."28

Facebook connections are established through the process of "friending" another user. By sending a "friend
request," the user invites another to connect their accounts so that they can view any and all "Public" and "Friends
Only" posts of the other.Once the request is accepted, the link is established and both users are permitted to view
the other user’s "Public" or "Friends Only" posts, among others. "Friending," therefore, allows the user to form or
maintain one-to-one relationships with other users, whereby the user gives his or her "Facebook friend" access to
his or her profile and shares certain information to the latter.29

To address concerns about privacy,30 but without defeating its purpose, Facebook was armed with different
privacy tools designed to regulate the accessibility of a user’s profile31 as well as information uploaded by the
user. In H v. W,32 the South Gauteng High Court recognized this ability of the users to "customize their privacy
settings," but did so with this caveat: "Facebook states in its policies that, although it makes every effort to protect
a user’s information, these privacy settings are not foolproof."33

For instance, a Facebook user canregulate the visibility and accessibility of digital images(photos), posted on his
or her personal bulletin or "wall," except for the user’sprofile picture and ID, by selecting his or her desired privacy
setting:

(a) Public - the default setting; every Facebook user can view the photo;

(b) Friends of Friends - only the user’s Facebook friends and their friends can view the photo;

(b) Friends - only the user’s Facebook friends can view the photo;

(c) Custom - the photo is made visible only to particular friends and/or networks of the Facebook user; and

(d) Only Me - the digital image can be viewed only by the user.

The foregoing are privacy tools, available to Facebook users, designed to set up barriers to broaden or limit the
visibility of his or her specific profile content, statuses, and photos, among others, from another user’s point of
view. In other words, Facebook extends its users an avenue to make the availability of their Facebook activities
reflect their choice as to "when and to what extent to disclose facts about [themselves] – and to put others in the
position of receiving such confidences."34 Ideally, the selected setting will be based on one’s desire to interact with
others, coupled with the opposing need to withhold certain information as well as to regulate the spreading of his
or her personal information. Needless to say, as the privacy setting becomes more limiting, fewer Facebook users
can view that user’s particular post.

STC did not violate petitioners’ daughters’ right to privacy

Without these privacy settings, respondents’ contention that there is no reasonable expectation of privacy in
Facebook would, in context, be correct. However, such is not the case. It is through the availability of said privacy
tools that many OSN users are said to have a subjective expectation that only those to whomthey grant access to
their profile will view the information they post or upload thereto.35

This, however, does not mean thatany Facebook user automatically has a protected expectation of privacy inall of
his or her Facebook activities.

Before one can have an expectation of privacy in his or her OSN activity, it is first necessary that said user, in this
case the children of petitioners,manifest the intention to keepcertain posts private, through the employment of
measures to prevent access thereto or to limit its visibility.36 And this intention can materialize in cyberspace
through the utilization of the OSN’s privacy tools. In other words, utilization of these privacy tools is the
manifestation,in cyber world, of the user’s invocation of his or her right to informational privacy.37

Therefore, a Facebook user who opts to make use of a privacy tool to grant or deny access to his or her post
orprofile detail should not be denied the informational privacy right which necessarily accompanies said choice.
38Otherwise, using these privacy tools would be a feckless exercise, such that if, for instance, a user uploads a

photo or any personal information to his or her Facebook page and sets its privacy level at "Only Me" or a custom
list so that only the user or a chosen few can view it, said photo would still be deemed public by the courts as if
the user never chose to limit the photo’s visibility and accessibility. Such position, if adopted, will not only strip
these privacy tools of their function but it would also disregard the very intention of the user to keep said photo or
information within the confines of his or her private space.

We must now determine the extent that the images in question were visible to other Facebook users and whether
the disclosure was confidential in nature. In other words, did the minors limit the disclosure of the photos such that
the images were kept within their zones of privacy? This determination is necessary in resolving the issue of
whether the minors carved out a zone of privacy when the photos were uploaded to Facebook so that the images
will be protected against unauthorized access and disclosure.

Petitioners, in support of their thesis about their children’s privacy right being violated, insist that Escudero
intruded upon their children’s Facebook accounts, downloaded copies ofthe pictures and showed said photos to
Tigol. To them, this was a breach of the minors’ privacy since their Facebook accounts, allegedly, were under
"very private" or "Only Friends" setting safeguarded with a password.39 Ultimately, they posit that their children’s
disclosure was only limited since their profiles were not open to public viewing. Therefore, according to them,
people who are not their Facebook friends, including respondents, are barred from accessing said post without
their knowledge and consent. Aspetitioner’s children testified, it was Angelawho uploaded the subjectphotos which
were only viewable by the five of them,40 although who these five are do not appear on the records.

Escudero, on the other hand, stated in her affidavit41 that "my students showed me some pictures of girls cladin
brassieres. This student [sic] of mine informed me that these are senior high school [students] of STC, who are
their friends in [F]acebook. x x x They then said [that] there are still many other photos posted on the Facebook
accounts of these girls. At the computer lab, these students then logged into their Facebook account [sic], and
accessed from there the various photographs x x x. They even told me that there had been times when these
photos were ‘public’ i.e., not confined to their friends in Facebook."

In this regard, We cannot give muchweight to the minors’ testimonies for one key reason: failure to question the
students’ act of showing the photos to Tigol disproves their allegation that the photos were viewable only by the
five of them. Without any evidence to corroborate their statement that the images were visible only to the five of
them, and without their challenging Escudero’s claim that the other students were able to view the photos, their
statements are, at best, self-serving, thus deserving scant consideration.42

It is well to note that not one of petitioners disputed Escudero’s sworn account that her students, who are the
minors’ Facebook "friends," showed her the photos using their own Facebook accounts. This only goes to show
that no special means to be able to viewthe allegedly private posts were ever resorted to by Escudero’s students,
43 and that it is reasonable to assume, therefore, that the photos were, in reality, viewable either by (1) their

Facebook friends, or (2) by the public at large.

Considering that the default setting for Facebook posts is"Public," it can be surmised that the photographs in
question were viewable to everyone on Facebook, absent any proof that petitioners’ children positively limited the
disclosure of the photograph. If suchwere the case, they cannot invoke the protection attached to the right to
informational privacy. The ensuing pronouncement in US v. Gines-Perez44 is most instructive:

[A] person who places a photograph on the Internet precisely intends to forsake and renounce all privacy rights to
such imagery, particularly under circumstances suchas here, where the Defendant did not employ protective
measures or devices that would have controlled access to the Web page or the photograph itself.45

Also, United States v. Maxwell46 held that "[t]he more open the method of transmission is, the less privacy one can
reasonably expect. Messages sent to the public at large inthe chat room or e-mail that is forwarded from
correspondent to correspondent loses any semblance of privacy."

That the photos are viewable by "friends only" does not necessarily bolster the petitioners’ contention. In this
regard, the cyber community is agreed that the digital images under this setting still remain to be outside the
confines of the zones of privacy in view of the following:

(1) Facebook "allows the world to be more open and connected by giving its users the tools to interact and share
in any conceivable way;"47

(2) A good number of Facebook users "befriend" other users who are total strangers;48

(3) The sheer number of "Friends" one user has, usually by the hundreds; and

(4) A user’s Facebook friend can "share"49 the former’s post, or "tag"50 others who are not Facebook friends with
the former, despite its being visible only tohis or her own Facebook friends.

It is well to emphasize at this point that setting a post’s or profile detail’s privacy to "Friends" is no assurance that it
can no longer be viewed by another user who is not Facebook friends with the source of the content. The user’s
own Facebook friend can share said content or tag his or her own Facebook friend thereto, regardless of whether
the user tagged by the latter is Facebook friends or not with the former. Also, when the post is shared or when a
person is tagged, the respective Facebook friends of the person who shared the post or who was tagged can view
the post, the privacy setting of which was set at "Friends."

To illustrate, suppose A has 100 Facebook friends and B has 200. A and B are not Facebook friends. If C, A’s
Facebook friend, tags B in A’s post, which is set at "Friends," the initial audience of 100 (A’s own Facebook
friends) is dramatically increased to 300 (A’s 100 friends plus B’s 200 friends or the public, depending upon B’s
privacy setting). As a result, the audience who can view the post is effectively expanded––and to a very large
extent.

This, along with its other features and uses, is confirmation of Facebook’s proclivity towards user interaction and
socialization rather than seclusion or privacy, as it encourages broadcasting of individual user posts. In fact, it has
been said that OSNs have facilitated their users’ self-tribute, thereby resulting into the "democratization of
fame."51Thus, it is suggested, that a profile, or even a post, with visibility set at "Friends Only" cannot easily, more
so automatically, be said to be "very private," contrary to petitioners’ argument.

As applied, even assuming that the photos in issue are visible only to the sanctioned students’ Facebook friends,
respondent STC can hardly be taken to task for the perceived privacy invasion since it was the minors’ Facebook
friends who showed the pictures to Tigol. Respondents were mere recipients of what were posted. They did not
resort to any unlawful means of gathering the information as it was voluntarily given to them by persons who had
legitimate access to the said posts. Clearly, the fault, if any, lies with the friends of the minors. Curiously enough,
however, neither the minors nor their parents imputed any violation of privacy against the students who showed
the images to Escudero.

Furthermore, petitioners failed to prove their contention that respondents reproduced and broadcasted the
photographs. In fact, what petitioners attributed to respondents as an act of offensive disclosure was no more than
the actuality that respondents appended said photographs in their memorandum submitted to the trial court in
connection with Civil Case No. CEB-38594.52 These are not tantamount to a violation of the minor’s informational
privacy rights, contrary to petitioners’ assertion.

In sum, there can be no quibbling that the images in question, or to be more precise, the photos of minor students
scantily clad, are personal in nature, likely to affect, if indiscriminately circulated, the reputation of the minors
enrolled in a conservative institution. However, the records are bereft of any evidence, other than bare assertions
that they utilized Facebook’s privacy settings to make the photos visible only to them or to a select few. Without
proof that they placed the photographs subject of this case within the ambit of their protected zone of privacy, they
cannot now insist that they have an expectation of privacy with respect to the photographs in question.

Had it been proved that the access tothe pictures posted were limited to the original uploader, through the "Me
Only" privacy setting, or that the user’s contact list has been screened to limit access to a select few, through the
"Custom" setting, the result may have been different, for in such instances, the intention to limit access to the
particular post, instead of being broadcasted to the public at large or all the user’s friends en masse, becomes
more manifest and palpable.

On Cyber Responsibility

It has been said that "the best filter is the one between your children’s ears."53 This means that self-regulation on
the part of OSN users and internet consumers ingeneral is the best means of avoiding privacy rights violations.
54 As a cyberspace communitymember, one has to be proactive in protecting his or her own privacy.55 It is in this

regard that many OSN users, especially minors, fail.Responsible social networking or observance of the
"netiquettes"56 on the part of teenagers has been the concern of many due to the widespreadnotion that
teenagers can sometimes go too far since they generally lack the people skills or general wisdom to conduct
themselves sensibly in a public forum.57

Respondent STC is clearly aware of this and incorporating lessons on good cyber citizenship in its curriculum to
educate its students on proper online conduct may be mosttimely. Too, it is not only STC but a number of schools
and organizations have already deemed it important to include digital literacy and good cyber citizenshipin their
respective programs and curricula in view of the risks that the children are exposed to every time they participate
in online activities.58 Furthermore, considering the complexity of the cyber world and its pervasiveness,as well as
the dangers that these children are wittingly or unwittingly exposed to in view of their unsupervised activities in
cyberspace, the participation of the parents in disciplining and educating their children about being a good digital
citizen is encouraged by these institutions and organizations. In fact, it is believed that "to limit such risks, there’s
no substitute for parental involvement and supervision."59

As such, STC cannot be faulted for being steadfast in its duty of teaching its students to beresponsible in their
dealings and activities in cyberspace, particularly in OSNs, whenit enforced the disciplinary actions specified in
the Student Handbook, absenta showing that, in the process, it violated the students’ rights.

OSN users should be aware of the risks that they expose themselves to whenever they engage incyberspace
activities.1âwphi1 Accordingly, they should be cautious enough to control their privacy and to exercise sound
discretion regarding how much information about themselves they are willing to give up. Internet consumers ought
to be aware that, by entering or uploading any kind of data or information online, they are automatically and
inevitably making it permanently available online, the perpetuation of which is outside the ambit of their control.
Furthermore, and more importantly, information, otherwise private, voluntarily surrendered by them can be
opened, read, or copied by third parties who may or may not be allowed access to such.

It is, thus, incumbent upon internet users to exercise due diligence in their online dealings and activities and must
not be negligent in protecting their rights. Equity serves the vigilant. Demanding relief from the courts, as here,
requires that claimants themselves take utmost care in safeguarding a right which they allege to have been
violated. These are indispensable. We cannot afford protection to persons if they themselves did nothing to place
the matter within the confines of their private zone. OSN users must be mindful enough to learn the use of privacy
tools, to use them if they desire to keep the information private, and to keep track of changes in the available
privacy settings, such as those of Facebook, especially because Facebook is notorious for changing these
settings and the site's layout often.

In finding that respondent STC and its officials did not violate the minors' privacy rights, We find no cogent reason
to disturb the findings and case disposition of the court a quo.

In light of the foregoing, the Court need not belabor the other assigned errors.

WHEREFORE, premises considered, the petition is hereby DENIED. The Decision dated July 27, 2012 of the
Regional Trial Court, Branch 14 in Cebu City in SP. Proc. No. 19251-CEB is hereby AFFIRMED.No
pronouncement as to costs. SO ORDERED.
! 

SECOND DIVISION

G.R. No. 162994 September 17, 2004

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON, petitioners, 



vs.

GLAXO WELLCOME PHILIPPINES, INC., Respondent.

RESOLUTION

TINGA, J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involving the validity of the
policy of a pharmaceutical company prohibiting its employees from marrying employees of any competitor
company.

This is a Petition for Review on Certiorari assailing the Decision1 dated May 19, 2003 and the Resolution dated
March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.2

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc. (Glaxo) as
medical representative on October 24, 1995, after Tecson had undergone training and orientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agrees to study and
abide by existing company rules; to disclose to management any existing or future relationship by consanguinity
or affinity with co-employees or employees of competing drug companies and should management find that such
relationship poses a possible conflict of interest, to resign from the company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to inform management
of any existing or future relationship by consanguinity or affinity with co-employees or employees of competing
drug companies. If management perceives a conflict of interest or a potential conflict between such relationship
and the employee’s employment with the company, the management and the employee will explore the possibility
of a "transfer to another department in a non-counterchecking position" or preparation for employment outside the
company after six months.

Tecson was initially assigned to market Glaxo’s products in the Camarines Sur-Camarines Norte sales area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of Astra
Pharmaceuticals3(Astra), a competitor of Glaxo. Bettsy was Astra’s Branch Coordinator in Albay. She supervised
the district managers and medical representatives of her company and prepared marketing strategies for Astra in
that area.

Even before they got married, Tecson received several reminders from his District Manager regarding the conflict
of interest which his relationship with Bettsy might engender. Still, love prevailed, and Tecson married Bettsy in
September 1998.

In January 1999, Tecson’s superiors informed him that his marriage to Bettsy gave rise to a conflict of interest.
Tecson’s superiors reminded him that he and Bettsy should decide which one of them would resign from their
jobs, although they told him that they wanted to retain him as much as possible because he was performing his
job well.

Tecson requested for time to comply with the company policy against entering into a relationship with an
employee of a competitor company. He explained that Astra, Bettsy’s employer, was planning to merge with
Zeneca, another drug company; and Bettsy was planning to avail of the redundancy package to be offered by
Astra. With Bettsy’s separation from her company, the potential conflict of interest would be eliminated. At the
same time, they would be able to avail of the attractive redundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999, Tecson applied
for a transfer in Glaxo’s milk division, thinking that since Astra did not have a milk division, the potential conflict of
interest would be eliminated. His application was denied in view of Glaxo’s "least-movement-possible" policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur sales area. Tecson
asked Glaxo to reconsider its decision, but his request was denied.
Tecson sought Glaxo’s reconsideration regarding his transfer and brought the matter to Glaxo’s Grievance
Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7, 2000 to comply with
the transfer order. Tecson defied the transfer order and continued acting as medical representative in the
Camarines Sur-Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issued samples of
products which were competing with similar products manufactured by Astra. He was also not included in product
conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted the matter for
voluntary arbitration. Glaxo offered Tecson a separation pay of one-half (½) month pay for every year of service,
or a total of ₱50,000.00 but he declined the offer. On November 15, 2000, the National Conciliation and Mediation
Board (NCMB) rendered its Decision declaring as valid Glaxo’s policy on relationships between its employees and
persons employed with competitor companies, and affirming Glaxo’s right to transfer Tecson to another sales
territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decision denying the Petition for Review on the ground
that the NCMB did not err in rendering its Decision. The appellate court held that Glaxo’s policy prohibiting its
employees from having personal relationships with employees of competitor companies is a valid exercise of its
management prerogatives.4

Tecson filed a Motion for Reconsideration of the appellate court’s Decision, but the motion was denied by the
appellate court in its Resolution dated March 26, 2004.5

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirming the NCMB’s
finding that the Glaxo’s policy prohibiting its employees from marrying an employee of a competitor company is
valid; and (ii) the Court of Appeals also erred in not finding that Tecson was constructively dismissed when he was
transferred to a new sales territory, and deprived of the opportunity to attend products seminars and training
sessions.6

Petitioners contend that Glaxo’s policy against employees marrying employees of competitor companies violates
the equal protection clause of the Constitution because it creates invalid distinctions among employees on
account only of marriage. They claim that the policy restricts the employees’ right to marry.7

They also argue that Tecson was constructively dismissed as shown by the following circumstances: (1) he was
transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he
suffered a diminution in pay, (3) he was excluded from attending seminars and training sessions for medical
representatives, and (4) he was prohibited from promoting respondent’s products which were competing with
Astra’s products.8

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employees from having a
relationship with and/or marrying an employee of a competitor company is a valid exercise of its management
prerogatives and does not violate the equal protection clause; and that Tecson’s reassignment from the
Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City and Agusan del Sur sales area does
not amount to constructive dismissal.9

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, it has a genuine
interest in ensuring that its employees avoid any activity, relationship or interest that may conflict with their
responsibilities to the company. Thus, it expects its employees to avoid having personal or family interests in any
competitor company which may influence their actions and decisions and consequently deprive Glaxo of
legitimate profits. The policy is also aimed at preventing a competitor company from gaining access to its secrets,
procedures and policies.10

It likewise asserts that the policy does not prohibit marriage per se but only proscribes existing or future
relationships with employees of competitor companies, and is therefore not violative of the equal protection
clause. It maintains that considering the nature of its business, the prohibition is based on valid grounds.11

According to Glaxo, Tecson’s marriage to Bettsy, an employee of Astra, posed a real and potential conflict of
interest. Astra’s products were in direct competition with 67% of the products sold by Glaxo. Hence, Glaxo’s
enforcement of the foregoing policy in Tecson’s case was a valid exercise of its management prerogatives.12 In
any case, Tecson was given several months to remedy the situation, and was even encouraged not to resign but
to ask his wife to resign form Astra instead.13

Glaxo also points out that Tecson can no longer question the assailed company policy because when he signed
his contract of employment, he was aware that such policy was stipulated therein. In said contract, he also agreed
to resign from respondent if the management finds that his relationship with an employee of a competitor
company would be detrimental to the interests of Glaxo.14

Glaxo likewise insists that Tecson’s reassignment to another sales area and his exclusion from seminars
regarding respondent’s new products did not amount to constructive dismissal.
It claims that in view of Tecson’s refusal to resign, he was relocated from the Camarines Sur-Camarines Norte
sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo asserts that in effecting the
reassignment, it also considered the welfare of Tecson’s family. Since Tecson’s hometown was in Agusan del Sur
and his wife traces her roots to Butuan City, Glaxo assumed that his transfer from the Bicol region to the Butuan
City sales area would be favorable to him and his family as he would be relocating to a familiar territory and
minimizing his travel expenses.15

In addition, Glaxo avers that Tecson’s exclusion from the seminar concerning the new anti-asthma drug was due
to the fact that said product was in direct competition with a drug which was soon to be sold by Astra, and hence,
would pose a potential conflict of interest for him. Lastly, the delay in Tecson’s receipt of his sales paraphernalia
was due to the mix-up created by his refusal to transfer to the Butuan City sales area (his paraphernalia was
delivered to his new sales area instead of Naga City because the supplier thought he already transferred to
Butuan).16

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in ruling that Glaxo’s
policy against its employees marrying employees from competitor companies is valid, and in not holding that said
policy violates the equal protection clause of the Constitution; (2) Whether Tecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecson’s contract of employment with Glaxo being questioned by petitioners provides:

10. You agree to disclose to management any existing or future relationship you may have, either by
consanguinity or affinity with co-employees or employees of competing drug companies. Should it pose a possible
conflict of interest in management discretion, you agree to resign voluntarily from the Company as a matter of
Company policy.

…17

The same contract also stipulates that Tescon agrees to abide by the existing company rules of Glaxo, and to
study and become acquainted with such policies.18 In this regard, the Employee Handbook of Glaxo expressly
informs its employees of its rules regarding conflict of interest:

1. Conflict of Interest

Employees should avoid any activity, investment relationship, or interest that may run counter to the
responsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier or other
businesses which may consciously or unconsciously influence their actions or decisions and thus deprive Glaxo
Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans to advance their outside
personal interests, that of their relatives, friends and other businesses.

c. To avoid outside employment or other interests for income which would impair their effective job performance.

d. To consult with Management on such activities or relationships that may lead to conflict of interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-employees of competing
drug companies are expected to disclose such relationship to the Management. If management perceives a
conflict or potential conflict of interest, every effort shall be made, together by management and the employee, to
arrive at a solution within six (6) months, either by transfer to another department in a non-counter checking
position, or by career preparation toward outside employment after Glaxo Wellcome. Employees must be
prepared for possible resignation within six (6) months, if no other solution is feasible.19

No reversible error can be ascribed to the Court of Appeals when it ruled that Glaxo’s policy prohibiting an
employee from having a relationship with an employee of a competitor company is a valid exercise of
management prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and other confidential
programs and information from competitors, especially so that it and Astra are rival companies in the highly
competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companies upon Glaxo’s
employees is reasonable under the circumstances because relationships of that nature might compromise the
interests of the company. In laying down the assailed company policy, Glaxo only aims to protect its interests
against the possibility that a competitor company will gain access to its secrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than the Constitution
recognizes the right of enterprises to adopt and enforce such a policy to protect its right to reasonable returns on
investments and to expansion and growth.20 Indeed, while our laws endeavor to give life to the constitutional
policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in
favor of the workers. The law also recognizes that management has rights which are also entitled to respect and
enforcement in the interest of fair play.21

As held in a Georgia, U.S.A case,22 it is a legitimate business practice to guard business confidentiality and
protect a competitive position by even-handedly disqualifying from jobs male and female applicants or employees
who are married to a competitor. Consequently, the court ruled than an employer that discharged an employee
who was married to an employee of an active competitor did not violate Title VII of the Civil Rights Act of
1964.23 The Court pointed out that the policy was applied to men and women equally, and noted that the
employer’s business was highly competitive and that gaining inside information would constitute a competitive
advantage.

The challenged company policy does not violate the equal protection clause of the Constitution as petitioners
erroneously suggest. It is a settled principle that the commands of the equal protection clause are addressed only
to the state or those acting under color of its authority.24 Corollarily, it has been held in a long array of U.S.
Supreme Court decisions that the equal protection clause erects no shield against merely private conduct,
however, discriminatory or wrongful.25 The only exception occurs when the state29 in any of its manifestations or
actions has been found to have become entwined or involved in the wrongful private conduct.27 Obviously,
however, the exception is not present in this case. Significantly, the company actually enforced the policy after
repeated requests to the employee to comply with the policy. Indeed, the application of the policy was made in an
impartial and even-handed manner, with due regard for the lot of the employee.

In any event, from the wordings of the contractual provision and the policy in its employee handbook, it is clear
that Glaxo does not impose an absolute prohibition against relationships between its employees and those of
competitor companies. Its employees are free to cultivate relationships with and marry persons of their own
choosing. What the company merely seeks to avoid is a conflict of interest between the employee and the
company that may arise out of such relationships. As succinctly explained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company remains free to marry
anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative that belongs only to the
individual. However, an employee’s personal decision does not detract the employer from exercising management
prerogatives to ensure maximum profit and business success. . .28

The Court of Appeals also correctly noted that the assailed company policy which forms part of respondent’s
Employee Code of Conduct and of its contracts with its employees, such as that signed by Tescon, was made
known to him prior to his employment. Tecson, therefore, was aware of that restriction when he signed his
employment contract and when he entered into a relationship with Bettsy. Since Tecson knowingly and voluntarily
entered into a contract of employment with Glaxo, the stipulations therein have the force of law between them
and, thus, should be complied with in good faith."29 He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners’ contention that Tescon was constructively dismissed when he was
transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur
sales area, and when he was excluded from attending the company’s seminar on new products which were
directly competing with similar products manufactured by Astra. Constructive dismissal is defined as a quitting, an
involuntary resignation resorted to when continued employment becomes impossible, unreasonable, or unlikely;
when there is a demotion in rank or diminution in pay; or when a clear discrimination, insensibility or disdain by an
employer becomes unbearable to the employee.30 None of these conditions are present in the instant case. The
record does not show that Tescon was demoted or unduly discriminated upon by reason of such transfer. As found
by the appellate court, Glaxo properly exercised its management prerogative in reassigning Tecson to the Butuan
City sales area:

. . . In this case, petitioner’s transfer to another place of assignment was merely in keeping with the policy of the
company in avoidance of conflict of interest, and thus valid…Note that [Tecson’s] wife holds a sensitive
supervisory position as Branch Coordinator in her employer-company which requires her to work in close
coordination with District Managers and Medical Representatives. Her duties include monitoring sales of Astra
products, conducting sales drives, establishing and furthering relationship with customers, collection, monitoring
and managing Astra’s inventory…she therefore takes an active participation in the market war characterized as it
is by stiff competition among pharmaceutical companies. Moreover, and this is significant, petitioner’s sales
territory covers Camarines Sur and Camarines Norte while his wife is supervising a branch of her employer in
Albay. The proximity of their areas of responsibility, all in the same Bicol Region, renders the conflict of interest not
only possible, but actual, as learning by one spouse of the other’s market strategies in the region would be
inevitable. [Management’s] appreciation of a conflict of interest is therefore not merely illusory and wanting in
factual basis…31

In Abbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,32 which involved a complaint filed by
a medical representative against his employer drug company for illegal dismissal for allegedly terminating his
employment when he refused to accept his reassignment to a new area, the Court upheld the right of the drug
company to transfer or reassign its employee in accordance with its operational demands and requirements. The
ruling of the Court therein, quoted hereunder, also finds application in the instant case:
By the very nature of his employment, a drug salesman or medical representative is expected to travel. He should
anticipate reassignment according to the demands of their business. It would be a poor drug corporation which
cannot even assign its representatives or detail men to new markets calling for opening or expansion or to areas
where the need for pushing its products is great. More so if such reassignments are part of the employment
contract.33

As noted earlier, the challenged policy has been implemented by Glaxo impartially and disinterestedly for a long
period of time. In the case at bar, the record shows that Glaxo gave Tecson several chances to eliminate the
conflict of interest brought about by his relationship with Bettsy. When their relationship was still in its initial stage,
Tecson’s supervisors at Glaxo constantly reminded him about its effects on his employment with the company and
on the company’s interests. After Tecson married Bettsy, Glaxo gave him time to resolve the conflict by either
resigning from the company or asking his wife to resign from Astra. Glaxo even expressed its desire to retain
Tecson in its employ because of his satisfactory performance and suggested that he ask Bettsy to resign from her
company instead. Glaxo likewise acceded to his repeated requests for more time to resolve the conflict of interest.
When the problem could not be resolved after several years of waiting, Glaxo was constrained to reassign Tecson
to a sales area different from that handled by his wife for Astra. Notably, the Court did not terminate Tecson from
employment but only reassigned him to another area where his home province, Agusan del Sur, was included. In
effecting Tecson’s transfer, Glaxo even considered the welfare of Tecson’s family. Clearly, the foregoing dispels
any suspicion of unfairness and bad faith on the part of Glaxo.34

WHEREFORE, the Petition is DENIED for lack of merit. Costs against petitioners.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. L-46496 February 27, 1940

ANG TIBAY, represented by TORIBIO TEODORO, manager and propietor, and 



NATIONAL WORKERS BROTHERHOOD, petitioners, 

vs.

THE COURT OF INDUSTRIAL RELATIONS and NATIONAL LABOR UNION, INC., respondents.

Office of the Solicitor-General Ozaeta and Assistant Attorney Barcelona for the Court of Industrial Relations.

Antonio D. Paguia for National Labor Unon.

Claro M. Recto for petitioner "Ang Tibay".

Jose M. Casal for National Workers' Brotherhood.

LAUREL, J.:

The Solicitor-General in behalf of the respondent Court of Industrial Relations in the above-entitled case has filed
a motion for reconsideration and moves that, for the reasons stated in his motion, we reconsider the following
legal conclusions of the majority opinion of this Court:

1. Que un contrato de trabajo, asi individual como colectivo, sin termino fijo de duracion o que no sea para una
determinada, termina o bien por voluntad de cualquiera de las partes o cada vez que ilega el plazo fijado para el
pago de los salarios segun costumbre en la localidad o cunado se termine la obra;

2. Que los obreros de una empresa fabril, que han celebrado contrato, ya individual ya colectivamente, con ell,
sin tiempo fijo, y que se han visto obligados a cesar en sus tarbajos por haberse declarando paro forzoso en la
fabrica en la cual tarbajan, dejan de ser empleados u obreros de la misma;

3. Que un patrono o sociedad que ha celebrado un contrato colectivo de trabajo con sus osbreros sin tiempo fijo
de duracion y sin ser para una obra determiminada y que se niega a readmitir a dichos obreros que cesaron
como consecuencia de un paro forzoso, no es culpable de practica injusta in incurre en la sancion penal del
articulo 5 de la Ley No. 213 del Commonwealth, aunque su negativa a readmitir se deba a que dichos obreros
pertenecen a un determinado organismo obrero, puesto que tales ya han dejado deser empleados suyos por
terminacion del contrato en virtud del paro.

The respondent National Labor Union, Inc., on the other hand, prays for the vacation of the judgement rendered
by the majority of this Court and the remanding of the case to the Court of Industrial Relations for a new trial, and
avers:

1. That Toribio Teodoro's claim that on September 26, 1938, there was shortage of leather soles in ANG TIBAY
making it necessary for him to temporarily lay off the members of the National Labor Union Inc., is entirely false
and unsupported by the records of the Bureau of Customs and the Books of Accounts of native dealers in leather.

2. That the supposed lack of leather materials claimed by Toribio Teodoro was but a scheme to systematically
prevent the forfeiture of this bond despite the breach of his CONTRACT with the Philippine Army.

3. That Toribio Teodoro's letter to the Philippine Army dated September 29, 1938, (re supposed delay of leather
soles from the States) was but a scheme to systematically prevent the forfeiture of this bond despite the breach of
his CONTRACT with the Philippine Army.

4. That the National Worker's Brotherhood of ANG TIBAY is a company or employer union dominated by Toribio
Teodoro, the existence and functions of which are illegal. (281 U.S., 548, petitioner's printed memorandum, p. 25.)

5. That in the exercise by the laborers of their rights to collective bargaining, majority rule and elective
representation are highly essential and indispensable. (Sections 2 and 5, Commonwealth Act No. 213.)

6. That the century provisions of the Civil Code which had been (the) principal source of dissensions and
continuous civil war in Spain cannot and should not be made applicable in interpreting and applying the salutary
provisions of a modern labor legislation of American origin where the industrial peace has always been the rule.

7. That the employer Toribio Teodoro was guilty of unfair labor practice for discriminating against the National
Labor Union, Inc., and unjustly favoring the National Workers' Brotherhood.

8. That the exhibits hereto attached are so inaccessible to the respondents that even with the exercise of due
diligence they could not be expected to have obtained them and offered as evidence in the Court of Industrial
Relations.

9. That the attached documents and exhibits are of such far-reaching importance and effect that their admission
would necessarily mean the modification and reversal of the judgment rendered herein.
The petitioner, Ang Tibay, has filed an opposition both to the motion for reconsideration of the respondent National
Labor Union, Inc.

In view of the conclusion reached by us and to be herein after stead with reference to the motion for a new trial of
the respondent National Labor Union, Inc., we are of the opinion that it is not necessary to pass upon the motion
for reconsideration of the Solicitor-General. We shall proceed to dispose of the motion for new trial of the
respondent labor union. Before doing this, however, we deem it necessary, in the interest of orderly procedure in
cases of this nature, in interest of orderly procedure in cases of this nature, to make several observations
regarding the nature of the powers of the Court of Industrial Relations and emphasize certain guiding principles
which should be observed in the trial of cases brought before it. We have re-examined the entire record of the
proceedings had before the Court of Industrial Relations in this case, and we have found no substantial evidence
that the exclusion of the 89 laborers here was due to their union affiliation or activity. The whole transcript taken
contains what transpired during the hearing and is more of a record of contradictory and conflicting statements of
opposing counsel, with sporadic conclusion drawn to suit their own views. It is evident that these statements and
expressions of views of counsel have no evidentiary value.

The Court of Industrial Relations is a special court whose functions are specifically stated in the law of its creation
(Commonwealth Act No. 103). It is more an administrative than a part of the integrated judicial system of the
nation. It is not intended to be a mere receptive organ of the Government. Unlike a court of justice which is
essentially passive, acting only when its jurisdiction is invoked and deciding only cases that are presented to it by
the parties litigant, the function of the Court of Industrial Relations, as will appear from perusal of its organic law, is
more active, affirmative and dynamic. It not only exercises judicial or quasi-judicial functions in the determination
of disputes between employers and employees but its functions in the determination of disputes between
employers and employees but its functions are far more comprehensive and expensive. It has jurisdiction over the
entire Philippines, to consider, investigate, decide, and settle any question, matter controversy or dispute arising
between, and/or affecting employers and employees or laborers, and regulate the relations between them, subject
to, and in accordance with, the provisions of Commonwealth Act No. 103 (section 1). It shall take cognizance or
purposes of prevention, arbitration, decision and settlement, of any industrial or agricultural dispute causing or
likely to cause a strike or lockout, arising from differences as regards wages, shares or compensation, hours of
labor or conditions of tenancy or employment, between landlords and tenants or farm-laborers, provided that the
number of employees, laborers or tenants of farm-laborers involved exceeds thirty, and such industrial or
agricultural dispute is submitted to the Court by the Secretary of Labor or by any or both of the parties to the
controversy and certified by the Secretary of labor as existing and proper to be by the Secretary of Labor as
existing and proper to be dealth with by the Court for the sake of public interest. (Section 4, ibid.) It shall, before
hearing the dispute and in the course of such hearing, endeavor to reconcile the parties and induce them to settle
the dispute by amicable agreement. (Paragraph 2, section 4, ibid.) When directed by the President of the
Philippines, it shall investigate and study all industries established in a designated locality, with a view to
determinating the necessity and fairness of fixing and adopting for such industry or locality a minimum wage or
share of laborers or tenants, or a maximum "canon" or rental to be paid by the "inquilinos" or tenants or less to
landowners. (Section 5, ibid.) In fine, it may appeal to voluntary arbitration in the settlement of industrial disputes;
may employ mediation or conciliation for that purpose, or recur to the more effective system of official
investigation and compulsory arbitration in order to determine specific controversies between labor and capital
industry and in agriculture. There is in reality here a mingling of executive and judicial functions, which is a
departure from the rigid doctrine of the separation of governmental powers.

In the case of Goseco vs. Court of Industrial Relations et al., G.R. No. 46673, promulgated September 13, 1939,
we had occasion to joint out that the Court of Industrial Relations et al., G. R. No. 46673, promulgated September
13, 1939, we had occasion to point out that the Court of Industrial Relations is not narrowly constrained by
technical rules of procedure, and the Act requires it to "act according to justice and equity and substantial merits of
the case, without regard to technicalities or legal forms and shall not be bound by any technicalities or legal forms
and shall not be bound by any technical rules of legal evidence but may inform its mind in such manner as it may
deem just and equitable." (Section 20, Commonwealth Act No. 103.) It shall not be restricted to the specific relief
claimed or demands made by the parties to the industrial or agricultural dispute, but may include in the award,
order or decision any matter or determination which may be deemed necessary or expedient for the purpose of
settling the dispute or of preventing further industrial or agricultural disputes. (section 13, ibid.) And in the light of
this legislative policy, appeals to this Court have been especially regulated by the rules recently promulgated by
the rules recently promulgated by this Court to carry into the effect the avowed legislative purpose. The fact,
however, that the Court of Industrial Relations may be said to be free from the rigidity of certain procedural
requirements does not mean that it can, in justifiable cases before it, entirely ignore or disregard the fundamental
and essential requirements of due process in trials and investigations of an administrative character. There are
primary rights which must be respected even in proceedings of this character:

(1) The first of these rights is the right to a hearing, which includes the right of the party interested or affected to
present his own case and submit evidence in support thereof. In the language of Chief Hughes, in Morgan v. U.S.,
304 U.S. 1, 58 S. Ct. 773, 999, 82 Law. ed. 1129, "the liberty and property of the citizen shall be protected by the
rudimentary requirements of fair play.

(2) Not only must the party be given an opportunity to present his case and to adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. (Chief Justice Hughes
in Morgan v. U.S. 298 U.S. 468, 56 S. Ct. 906, 80 law. ed. 1288.) In the language of this court in Edwards vs.
McCoy, 22 Phil., 598, "the right to adduce evidence, without the corresponding duty on the part of the board to
consider it, is vain. Such right is conspicuously futile if the person or persons to whom the evidence is presented
can thrust it aside without notice or consideration."
(3) "While the duty to deliberate does not impose the obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to support it is a nullity, a place when directly
attached." (Edwards vs. McCoy, supra.) This principle emanates from the more fundamental is contrary to the
vesting of unlimited power anywhere. Law is both a grant and a limitation upon power.

(4) Not only must there be some evidence to support a finding or conclusion (City of Manila vs. Agustin, G.R. No.
45844, promulgated November 29, 1937, XXXVI O. G. 1335), but the evidence must be
"substantial." (Washington, Virginia and Maryland Coach Co. v. national labor Relations Board, 301 U.S. 142, 147,
57 S. Ct. 648, 650, 81 Law. ed. 965.) It means such relevant evidence as a reasonable mind accept as adequate
to support a conclusion." (Appalachian Electric Power v. National Labor Relations Board, 4 Cir., 93 F. 2d 985, 989;
National Labor Relations Board v. Thompson Products, 6 Cir., 97 F. 2d 13, 15; Ballston-Stillwater Knitting Co. v.
National Labor Relations Board, 2 Cir., 98 F. 2d 758, 760.) . . . The statute provides that "the rules of evidence
prevailing in courts of law and equity shall not be controlling.' The obvious purpose of this and similar provisions is
to free administrative boards from the compulsion of technical rules so that the mere admission of matter which
would be deemed incompetent inn judicial proceedings would not invalidate the administrative order. (Interstate
Commerce Commission v. Baird, 194 U.S. 25, 44, 24 S. Ct. 563, 568, 48 Law. ed. 860; Interstate Commerce
Commission v. Louisville and Nashville R. Co., 227 U.S. 88, 93 33 S. Ct. 185, 187, 57 Law. ed. 431; United States
v. Abilene and Southern Ry. Co. S. Ct. 220, 225, 74 Law. ed. 624.) But this assurance of a desirable flexibility in
administrative procedure does not go far as to justify orders without a basis in evidence having rational probative
force. Mere uncorroborated hearsay or rumor does not constitute substantial evidence. (Consolidated Edison Co.
v. National Labor Relations Board, 59 S. Ct. 206, 83 Law. ed. No. 4, Adv. Op., p. 131.)"

(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record
and disclosed to the parties affected. (Interstate Commence Commission vs. L. & N. R. Co., 227 U.S. 88, 33 S.
Ct. 185, 57 Law. ed. 431.) Only by confining the administrative tribunal to the evidence disclosed to the parties,
can the latter be protected in their right to know and meet the case against them. It should not, however, detract
from their duty actively to see that the law is enforced, and for that purpose, to use the authorized legal methods
of securing evidence and informing itself of facts material and relevant to the controversy. Boards of inquiry may
be appointed for the purpose of investigating and determining the facts in any given case, but their report and
decision are only advisory. (Section 9, Commonwealth Act No. 103.) The Court of Industrial Relations may refer
any industrial or agricultural dispute or any matter under its consideration or advisement to a local board of inquiry,
a provincial fiscal. a justice of the peace or any public official in any part of the Philippines for investigation, report
and recommendation, and may delegate to such board or public official such powers and functions as the said
Court of Industrial Relations may deem necessary, but such delegation shall not affect the exercise of the Court
itself of any of its powers. (Section 10, ibid.)

(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in arriving
at a decision. It may be that the volume of work is such that it is literally Relations personally to decide all
controversies coming before them. In the United States the difficulty is solved with the enactment of statutory
authority authorizing examiners or other subordinates to render final decision, with the right to appeal to board or
commission, but in our case there is no such statutory authority.

(7) The Court of Industrial Relations should, in all controversial questions, render its decision in such a manner
that the parties to the proceeding can know the various issues involved, and the reasons for the decision
rendered. The performance of this duty is inseparable from the authority conferred upon it.

In the right of the foregoing fundamental principles, it is sufficient to observe here that, except as to the alleged
agreement between the Ang Tibay and the National Worker's Brotherhood (appendix A), the record is barren and
does not satisfy the thirst for a factual basis upon which to predicate, in a national way, a conclusion of law.

This result, however, does not now preclude the concession of a new trial prayed for the by respondent National
Labor Union, Inc., it is alleged that "the supposed lack of material claimed by Toribio Teodoro was but a scheme
adopted to systematically discharged all the members of the National Labor Union Inc., from work" and this
avernment is desired to be proved by the petitioner with the "records of the Bureau of Customs and the Books of
Accounts of native dealers in leather"; that "the National Workers Brotherhood Union of Ang Tibay is a company
or employer union dominated by Toribio Teodoro, the existence and functions of which are illegal." Petitioner
further alleges under oath that the exhibits attached to the petition to prove his substantial avernments" are so
inaccessible to the respondents that even within the exercise of due diligence they could not be expected to
have obtained them and offered as evidence in the Court of Industrial Relations", and that the documents
attached to the petition "are of such far reaching importance and effect that their admission would necessarily
mean the modification and reversal of the judgment rendered herein." We have considered the reply of Ang Tibay
and its arguments against the petition. By and large, after considerable discussions, we have come to the
conclusion that the interest of justice would be better served if the movant is given opportunity to present at the
hearing the documents referred to in his motion and such other evidence as may be relevant to the main issue
involved. The legislation which created the Court of Industrial Relations and under which it acts is new. The
failure to grasp the fundamental issue involved is not entirely attributable to the parties adversely affected by the
result. Accordingly, the motion for a new trial should be and the same is hereby granted, and the entire record of
this case shall be remanded to the Court of Industrial Relations, with instruction that it reopen the case, receive
all such evidence as may be relevant and otherwise proceed in accordance with the requirements set forth
hereinabove. So ordered.

! 

EN BANC

G.R. No. 148571 September 24, 2002

GOVERNMENT OF THE UNITED STATES OF AMERICA, 



Represented by the Philippine Department of Justice, petitioner, 

vs.

HON. GUILLERMO PURGANAN, Presiding Judge Regional Trial Court of Manila and 

MARC JIMENEZ a.k.a. MARCIO BATACAN CRESPO, respondent

Davide Jr., CJ, Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Corona, Morales and Callejo, Sr.

DECISION

PANGANIBAN, J.:

In extradition proceedings, are prospective extraditees entitled to notice and hearing before warrants for their
arrest can be issued? Equally important, are they entitled to the right to bail and provisional liberty while the
extradition proceedings are pending? In general, the answer to these two novel questions is "No." The explanation
of and the reasons for, as well as the exceptions to, this rule are laid out in this Decision.

The Case

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court, seeking to void and set aside the Orders
dated May 23, 2001 1 and July 3, 2001 2 issued by the Regional Trial Court (RTC) of Manila, Branch 42. 3 The first
assailed Order set for hearing petitioner’s application for the issuance of a warrant for the arrest of Respondent
Mark B. Jimenez.

The second challenged Order, on the other hand, directed the issuance of a warrant, but at the same time granted
bail to Jimenez. The dispositive portion of the Order reads as follows:

WHEREFORE, in the light of the foregoing, the [Court] finds probable cause against respondent Mark Jimenez.
Accordingly let a Warrant for the arrest of the respondent be issued. Consequently and taking into consideration
Section 9, Rule 114 of the Revised Rules of Criminal Procedure, this Court fixes the reasonable amount of bail for
respondent’s temporary liberty at ONE MILLION PESOS (Php 1,000,000.00), the same to be paid in cash.

Furthermore respondent is directed to immediately surrender to this Court his passport and the Bureau of
Immigration and Deportation is likewise directed to include the name of the respondent in its Hold Departure
List." 4

Essentially, the Petition prays for the lifting of the bail Order, the cancellation of the bond, and the taking of
Jimenez into legal custody.

The Facts

This Petition is really a sequel to GR No. 139465 entitled Secretary of Justice v. Ralph C. Lantion. 5

Pursuant to the existing RP-US Extradition Treaty, 6 the United States Government, through diplomatic channels,
sent to the Philippine Government Note Verbale No. 0522 dated June 16, 1999, supplemented by Note Nos.
0597, 0720 and 0809 and accompanied by duly authenticated documents requesting the extradition of Mark B.
Jimenez, also known as Mario Batacan Crespo. Upon receipt of the Notes and documents, the secretary of
foreign affairs (SFA) transmitted them to the secretary of justice (SOJ) for appropriate action, pursuant to Section
5 of Presidential Decree (PD) No. 1069, also known as the Extradition Law.

Upon learning of the request for his extradition, Jimenez sought and was granted a Temporary Restraining Order
(TRO) by the RTC of Manila, Branch 25. 7 The TRO prohibited the Department of Justice (DOJ) from filing with the
RTC a petition for his extradition. The validity of the TRO was, however, assailed by the SOJ in a Petition before
this Court in the said GR No. 139465. Initially, the Court -- by a vote of 9-6 -- dismissed the Petition. The SOJ was
ordered to furnish private respondent copies of the extradition request and its supporting papers and to grant the
latter a reasonable period within which to file a comment and supporting evidence. 8

Acting on the Motion for Reconsideration filed by the SOJ, this Court issued its October 17, 2000 Resolution. 9 By
an identical vote of 9-6 -- after three justices changed their votes -- it reconsidered and reversed its earlier
Decision. It held that private respondent was bereft of the right to notice and hearing during the evaluation stage
of the extradition process. This Resolution has become final and executory.

Finding no more legal obstacle, the Government of the United States of America, represented by the Philippine
DOJ, filed with the RTC on May 18, 2001, the appropriate Petition for Extradition which was docketed as
Extradition Case No. 01192061. The Petition alleged, inter alia, that Jimenez was the subject of an arrest warrant
issued by the United States District Court for the Southern District of Florida on April 15, 1999. The warrant had
been issued in connection with the following charges in Indictment No. 99-00281 CR-SEITZ: (1) conspiracy to
defraud the United States and to commit certain offenses in violation of Title 18 US Code Section 371; (2) tax
evasion, in violation of Title 26 US Code Section 7201; (3) wire fraud, in violation of Title 18 US Code Sections
1343 and 2; (4) false statements, in violation of Title 18 US Code Sections 1001 and 2; and (5) illegal campaign
contributions, in violation of Title 2 US Code Sections 441b, 441f and 437g(d) and Title 18 US Code Section 2. In
order to prevent the flight of Jimenez, the Petition prayed for the issuance of an order for his "immediate arrest"
pursuant to Section 6 of PD No. 1069.

Before the RTC could act on the Petition, Respondent Jimenez filed before it an "Urgent Manifestation/Ex-Parte
Motion," 10 which prayed that petitioner’s application for an arrest warrant be set for hearing.

In its assailed May 23, 2001 Order, the RTC granted the Motion of Jimenez and set the case for hearing on June
5, 2001. In that hearing, petitioner manifested its reservations on the procedure adopted by the trial court allowing
the accused in an extradition case to be heard prior to the issuance of a warrant of arrest.

After the hearing, the court a quo required the parties to submit their respective memoranda. In his Memorandum,
Jimenez sought an alternative prayer: that in case a warrant should issue, he be allowed to post bail in the
amount of P100,000.

The alternative prayer of Jimenez was also set for hearing on June 15, 2001. Thereafter, the court below issued
its questioned July 3, 2001 Order, directing the issuance of a warrant for his arrest and fixing bail for his temporary
liberty at one million pesos in cash. 11 After he had surrendered his passport and posted the required cash bond,
Jimenez was granted provisional liberty via the challenged Order dated July 4, 2001. 12

Hence, this Petition. 13

Issues

Petitioner presents the following issues for the consideration of this Court:

I.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in adopting a procedure of first hearing a potential extraditee before issuing an arrest
warrant under Section 6 of PD No. 1069.

II.

The public respondent acted without or in excess of jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction in granting the prayer for bail and in allowing Jimenez to go on provisional liberty
because:

‘1. An extradition court has no power to authorize bail, in the absence of any law that provides for such power.

‘2. Section 13, Article III (right to bail clause) of the 1987 Philippine Constitution and Section 4, Rule 114 (Bail) of
the Rules of Court, as amended, which [were] relied upon, cannot be used as bases for allowing bail in extradition
proceedings.

‘3. The presumption is against bail in extradition proceedings or proceedings leading to extradition.

‘4. On the assumption that bail is available in extradition proceedings or proceedings leading to extradition, bail is
not a matter of right but only of discretion upon clear showing by the applicant of the existence of special
circumstances.

‘5. Assuming that bail is a matter of discretion in extradition proceedings, the public respondent received no
evidence of ‘special circumstances’ which may justify release on bail.

‘6. The risk that Jimenez will flee is high, and no special circumstance exists that will engender a well-founded
belief that he will not flee.
‘7. The conditions attached to the grant of bail are ineffectual and do not ensure compliance by the Philippines
with its obligations under the RP-US Extradition Treaty.

‘8. The Court of Appeals Resolution promulgated on May 10, 2001 in the case entitled ‘Eduardo T. Rodriguez et
al. vs. The Hon. Presiding Judge, RTC, Branch 17, Manila,’ CA-G.R. SP No. 64589, relied upon by the public
respondent in granting bail, had been recalled before the issuance of the subject bail orders.’" 14
Issues
In sum, the substantive questions that this Court will address are: (1) whether Jimenez is entitled to notice and
hearing before a warrant for his arrest can be issued, and (2) whether he is entitled to bail and to provisional
liberty while the extradition proceedings are pending. Preliminarily, we shall take up the alleged prematurity of the
Petition for Certiorari arising from petitioner’s failure to file a Motion for Reconsideration in the RTC and to seek
relief in the Court of Appeals (CA), instead of in this Court. 15 We shall also preliminarily discuss five extradition
postulates that will guide us in disposing of the substantive issues.

The Court’s Ruling

The Petition is meritorious.

Preliminary Matters

Alleged Prematurity of Present Petition

Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court:
"(1) the issues were fully considered by such court after requiring the parties to submit their respective
memoranda and position papers on the matter and thus, the filing of a reconsideration motion would serve no
useful purpose; (2) the assailed orders are a patent nullity, absent factual and legal basis therefor; and (3) the
need for relief is extremely urgent, as the passage of sufficient time would give Jimenez ample opportunity to
escape and avoid extradition; and (4) the issues raised are purely of law." 16

For resorting directly to this Court instead of the CA, petitioner submits the following reasons: "(1) even if the
petition is lodged with the Court of Appeals and such appellate court takes cognizance of the issues and decides
them, the parties would still bring the matter to this Honorable Court to have the issues resolved once and for all
[and] to have a binding precedent that all lower courts ought to follow; (2) the Honorable Court of Appeals had in
one case 17 ruled on the issue by disallowing bail but the court below refused to recognize the decision as a
judicial guide and all other courts might likewise adopt the same attitude of refusal; and (3) there are pending
issues on bail both in the extradition courts and the Court of Appeals, which, unless guided by the decision that
this Honorable Court will render in this case, would resolve to grant bail in favor of the potential extraditees and
would give them opportunity to flee and thus, cause adverse effect on the ability of the Philippines to comply with
its obligations under existing extradition treaties." 18

As a general rule, a petition for certiorari before a higher court will not prosper unless the inferior court has been
given, through a motion for reconsideration, a chance to correct the errors imputed to it. This rule, though, has
certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in case of
urgency. 19 As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before
availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that
have already been squarely argued and exhaustively passed upon by the lower court. 20 Aside from being of this
nature, the issues in the present case also involve pure questions of law that are of public interest. Hence, a
motion for reconsideration may be dispensed with.

Likewise, this Court has allowed a direct invocation of its original jurisdiction to issue writs of certiorari when there
are special and important reasons therefor. 21 In Fortich v. Corona 22 we stated:

[T]he Supreme Court has the full discretionary power to take cognizance of the petition filed directly [before] it if
compelling reasons, or the nature and importance of the issues raised, warrant. This has been the judicial policy
to be observed and which has been reiterated in subsequent cases, namely: Uy vs. Contreras, et. al., Torres vs.
Arranz, Bercero vs. De Guzman, and, Advincula vs. Legaspi, et. al. As we have further stated in Cuaresma:

‘x x x. A direct invocation of the Supreme Court’s original jurisdiction to issue these writs should be allowed only
when there are special and important reasons therefor, clearly and specifically set out in the petition. This is
established policy. x x x.’

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the interest of
speedy justice and to avoid future litigations so as to promptly put an end to the present controversy which, as
correctly observed by petitioners, has sparked national interest because of the magnitude of the problem created
by the issuance of the assailed resolution. Moreover, x x x requiring the petitioners to file their petition first with the
Court of Appeals would only result in a waste of time and money.

That the Court has the power to set aside its own rules in the higher interests of justice is well-entrenched in our
jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 23

‘Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial
justice, must always be avoided. Time and again, this Court has suspended its own rules and excepted a
particular case from their operation whenever the higher interests of justice so require. In the instant petition, we
forego a lengthy disquisition of the proper procedure that should have been taken by the parties involved and
proceed directly to the merits of the case.’

In a number of other exceptional cases, 24 we held as follows:

This Court has original jurisdiction, concurrent with that of Regional Trial Courts and the Court of Appeals, over
petitions for certiorari, prohibition, mandamus, quo warranto and habeas corpus, and we entertain direct resort to
us in cases where special and important reasons or exceptional and compelling circumstances justify the same."

In the interest of justice and to settle once and for all the important issue of bail in extradition proceedings, we
deem it best to take cognizance of the present case. Such proceedings constitute a matter of first impression over
which there is, as yet, no local jurisprudence to guide lower courts.

Five Postulates of Extradition

The substantive issues raised in this case require an interpretation or construction of the treaty and the law on
extradition. A cardinal rule in the interpretation of a treaty or a law is to ascertain and give effect to its
intent. 25 Since PD 1069 is intended as a guide for the implementation of extradition treaties to which the
Philippines is a signatory, 26 understanding certain postulates of extradition will aid us in properly deciding the
issues raised here.

1. Extradition Is a Major Instrument for the Suppression of Crime.

First, extradition treaties are entered into for the purpose of suppressing crime 27 by facilitating the arrest and the
custodial transfer 28 of a fugitive 29 from one state to the other.

With the advent of easier and faster means of international travel, the flight of affluent criminals from one country
to another for the purpose of committing crime and evading prosecution has become more frequent. Accordingly,
governments are adjusting their methods of dealing with criminals and crimes that transcend international
boundaries.

Today, "a majority of nations in the world community have come to look upon extradition as the major effective
instrument of international co-operation in the suppression of crime." 30 It is the only regular system that has been
devised to return fugitives to the jurisdiction of a court competent to try them in accordance with municipal and
international law. 31

An important practical effect x x x of the recognition of the principle that criminals should be restored to a
jurisdiction competent to try and punish them is that the number of criminals seeking refuge abroad will be
reduced. For to the extent that efficient means of detection and the threat of punishment play a significant role in
the deterrence of crime within the territorial limits of a State, so the existence of effective extradition arrangements
and the consequent certainty of return to the locus delicti commissi play a corresponding role in the deterrence of
flight abroad in order to escape the consequence of crime. x x x. From an absence of extradition arrangements
flight abroad by the ingenious criminal receives direct encouragement and thus indirectly does the commission of
crime itself." 32

In Secretary v. Lantion 33 we explained:

The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered [into] by our government. More and more, crimes are
becoming the concern of one world. Laws involving crimes and crime prevention are undergoing universalization.
One manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities
threaten the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this
irreversible movement in light of its vulnerability to crimes, especially transnational crimes."

Indeed, in this era of globalization, easier and faster international travel, and an expanding ring of international
crimes and criminals, we cannot afford to be an isolationist state. We need to cooperate with other states in order
to improve our chances of suppressing crime in our own country.

2. The Requesting State Will Accord Due Process to the Accused

Second, an extradition treaty presupposes that both parties thereto have examined, and that both accept and
trust, each other’s legal system and judicial process. 34 More pointedly, our duly authorized representative’s
signature on an extradition treaty signifies our confidence in the capacity and the willingness of the other state to
protect the basic rights of the person sought to be extradited. 35 That signature signifies our full faith that the
accused will be given, upon extradition to the requesting state, all relevant and basic rights in the criminal
proceedings that will take place therein; otherwise, the treaty would not have been signed, or would have been
directly attacked for its unconstitutionality.

3. The Proceedings Are Sui Generis

Third, as pointed out in Secretary of Justice v. Lantion, 36 extradition proceedings are not criminal in nature. In
criminal proceedings, the constitutional rights of the accused are at fore; in extradition which is sui generis -- in a
class by itself -- they are not.
An extradition [proceeding] is sui generis. It is not a criminal proceeding which will call into operation all the rights
of an accused as guaranteed by the Bill of Rights. To begin with, the process of extradition does not involve the
determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the
state where he will be extradited. Hence, as a rule, constitutional rights that are only relevant to determine the guilt
or innocence of an accused cannot be invoked by an extraditee x x x.

xxxxxxxxx

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial. In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards. In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction while a fugitive may be ordered extradited ‘upon showing of the existence of a
prima facie case.’ Finally, unlike in a criminal case where judgment becomes executory upon being rendered final,
in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final
discretion to extradite him. The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the nation’s foreign relations
before making the ultimate decision to extradite."

Given the foregoing, it is evident that the extradition court is not called upon to ascertain the guilt or the innocence
of the person sought to be extradited. 37 Such determination during the extradition proceedings will only result in
needless duplication and delay. Extradition is merely a measure of international judicial assistance through which
a person charged with or convicted of a crime is restored to a jurisdiction with the best claim to try that person. It is
not part of the function of the assisting authorities to enter into questions that are the prerogative of that
jurisdiction. 38 The ultimate purpose of extradition proceedings in court is only to determine whether the extradition
request complies with the Extradition Treaty, and whether the person sought is extraditable. 39

4. Compliance Shall Be in Good Faith.

Fourth, our executive branch of government voluntarily entered into the Extradition Treaty, and our legislative
branch ratified it. Hence, the Treaty carries the presumption that its implementation will serve the national
interest.

Fulfilling our obligations under the Extradition Treaty promotes comity 40 with the requesting state. On the other
hand, failure to fulfill our obligations thereunder paints a bad image of our country before the world community.
Such failure would discourage other states from entering into treaties with us, particularly an extradition treaty that
hinges on reciprocity. 41

Verily, we are bound by pacta sunt servanda to comply in good faith with our obligations under the Treaty. 42 This
principle requires that we deliver the accused to the requesting country if the conditions precedent to extradition,
as set forth in the Treaty, are satisfied. In other words, "[t]he demanding government, when it has done all that the
treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and
the other government is under obligation to make the surrender." 43 Accordingly, the Philippines must be ready and
in a position to deliver the accused, should it be found proper.

5. There Is an Underlying Risk of Flight

Fifth, persons to be extradited are presumed to be flight risks. This prima facie presumption finds reinforcement in
the experience 44 of the executive branch: nothing short of confinement can ensure that the accused will not flee
the jurisdiction of the requested state in order to thwart their extradition to the requesting state.

The present extradition case further validates the premise that persons sought to be extradited have a propensity
to flee. Indeed,

extradition hearings would not even begin, if only the accused were willing to submit to trial in the requesting
country. 45 Prior acts of herein respondent -- (1) leaving the requesting state right before the conclusion of his
indictment proceedings there; and (2) remaining in the requested state despite learning that the requesting state is
seeking his return and that the crimes he is charged with are bailable -- eloquently speak of his aversion to the
processes in the requesting state, as well as his predisposition to avoid them at all cost. These circumstances
point to an ever-present, underlying high risk of flight. He has demonstrated that he has the capacity and the will
to flee. Having fled once, what is there to stop him, given sufficient opportunity, from fleeing a second time?

First Substantive Issue:

Is Respondent Entitled to Notice and Hearing 



Before the Issuance of a Warrant of Arrest?
Petitioner’s Contention
Petitioner contends that the procedure adopted by the RTC --informing the accused, a fugitive from justice, that an
Extradition Petition has been filed against him, and that petitioner is seeking his arrest -- gives him notice to
escape and to avoid extradition. Moreover, petitioner pleads that such procedure may set a dangerous precedent,
in that those sought to be extradited -- including terrorists, mass murderers and war criminals -- may invoke it in
future extradition cases.
Respondent’s
On the other hand, Respondent Jimenez argues that he should not be hurriedly and arbitrarily deprived of his
constitutional right to liberty without due process. He further asserts that there is as yet no specific law or rule
setting forth the procedure prior to the issuance of a warrant of arrest, after the petition for extradition has been
filed in court; ergo, the formulation of that procedure is within the discretion of the presiding judge.

Both parties cite Section 6 of PD 1069 in support of their arguments. It states:

SEC. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of the
accused which may be served any where within the Philippines if it appears to the presiding judge that the
immediate arrest and temporary detention of the accused will best serve the ends of justice. Upon receipt of the
answer, or should the accused after having received the summons fail to answer within the time fixed, the
presiding judge shall hear the case or set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon
the accused and the attorney having charge of the case." (Emphasis ours)

Does this provision sanction RTC Judge Purganan’s act of immediately setting for hearing the issuance of a
warrant of arrest? We rule in the negative.

1. On the Basis of the Extradition Law

It is significant to note that Section 6 of PD 1069, our Extradition Law, uses the word "immediate" to qualify the
arrest of the accused. This qualification would be rendered nugatory by setting for hearing the issuance of the
arrest warrant. Hearing entails sending notices to the opposing parties, 46 receiving facts and arguments 47 from
them, 48 and giving them time to prepare and present such facts and arguments. Arrest subsequent to a hearing
can no longer be considered "immediate." The law could not have intended the word as a mere superfluity but, on
the whole, as a means of imparting a sense of urgency and swiftness in the determination of whether a warrant of
arrest should be issued.

By using the phrase "if it appears," the law further conveys that accuracy is not as important as speed at such
early stage. The trial court is not expected to make an exhaustive determination to ferret out the true and actual
situation, immediately upon the filing of the petition. From the knowledge and the material then available to it, the
court is expected merely to get a good first impression -- a prima facie finding -- sufficient to make a speedy initial
determination as regards the arrest and detention of the accused.

Attached to the Petition for Extradition, with a Certificate of Authentication among others, were the following: (1)
Annex H, the Affidavit executed on May 26, 1999 by Mr. Michael E. Savage -- trial attorney in the Campaign
Financing Task Force of the Criminal Division of the US Department of Justice; (2) Annexes H to G, evidentiary
Appendices of various exhibits that constituted evidence of the crimes charged in the Indictment, with Exhibits 1 to
120 (duly authenticated exhibits that constituted evidence of the crimes charged in the Indictment); (3) Annex BB,
the Exhibit I "Appendix of Witness [excerpts] Statements Referenced in the Affidavit of Angela Byers" and
enclosed Statements in two volumes; (4) Annex GG, the Exhibit J "Table of Contents for Supplemental Evidentiary
Appendix" with enclosed Exhibits 121 to 132; and (5) Annex MM, the Exhibit L "Appendix of Witness [excerpts]
Statements Referenced in the Affidavit of Betty Steward" and enclosed Statements in two volumes. 49

It is evident that respondent judge could have already gotten an impression from these records adequate for him
to make an initial determination of whether the accused was someone who should immediately be arrested in
order to "best serve the ends of justice." He could have determined whether such facts and circumstances existed
as would lead a reasonably discreet and prudent person to believe that the extradition request was prima facie
meritorious. In point of fact, he actually concluded from these supporting documents that "probable cause" did
exist. In the second questioned Order, he stated:

In the instant petition, the documents sent by the US Government in support of [its] request for extradition of
herein respondent are enough to convince the Court of the existence of probable cause to proceed with the
hearing against the extraditee." 50

We stress that the prima facie existence of probable cause for hearing the petition and, a priori, for issuing an
arrest warrant was already evident from the Petition itself and its supporting documents. Hence, after having
already determined therefrom that a prima facie finding did exist, respondent judge gravely abused his discretion
when he set the matter for hearing upon motion of Jimenez. 51

Moreover, the law specifies that the court sets a hearing upon receipt of the answer or upon failure of the accused
to answer after receiving the summons. In connection with the matter of immediate arrest, however, the word
"hearing" is notably absent from the provision. Evidently, had the holding of a hearing at that stage been intended,
the law could have easily so provided. It also bears emphasizing at this point that extradition proceedings are
summary 52 in nature. Hence, the silence of the Law and the Treaty leans to the more reasonable interpretation
that there is no intention to punctuate with a hearing every little step in the entire proceedings.
It is taken for granted that the contracting parties intend something reasonable and something not inconsistent
with generally recognized principles of International Law, nor with previous treaty obligations towards third States.
If, therefore, the meaning of a treaty is ambiguous, the reasonable meaning is to be preferred to the
unreasonable, the more reasonable to the less reasonable x x x ." 53

Verily, as argued by petitioner, sending to persons sought to be extradited a notice of the request for their arrest
and setting it for hearing at some future date would give them ample opportunity to prepare and execute an
escape. Neither the Treaty nor the Law could have

intended that consequence, for the very purpose of both would have been defeated by the escape of the accused
from the requested state.

2. On the Basis of the Constitution

Even Section 2 of Article III of our Constitution, which is invoked by Jimenez, does not require a notice or a
hearing before the issuance of a warrant of arrest. It provides:

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."

To determine probable cause for the issuance of arrest warrants, the Constitution itself requires only the
examination -- under oath or affirmation -- of complainants and the witnesses they may produce. There is no
requirement to notify and hear the accused before the issuance of warrants of arrest.

In Ho v. People 54 and in all the cases cited therein, never was a judge required to go to the extent of conducting a
hearing just for the purpose of personally determining probable cause for the issuance of a warrant of arrest. All
we required was that the "judge must have sufficient supporting documents upon which to make his independent
judgment, or at the very least, upon which to verify the findings of the prosecutor as to the existence of probable
cause." 55

In Webb v. De Leon, 56 the Court categorically stated that a judge was not supposed to conduct a hearing before
issuing a warrant of arrest:

Again, we stress that before issuing warrants of arrest, judges merely determine personally the probability, not the
certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence
of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause
to see if it is supported by substantial evidence."

At most, in cases of clear insufficiency of evidence on record, judges merely further examine complainants and
their witnesses. 57 In the present case, validating the act of respondent judge and instituting the practice of hearing
the accused and his witnesses at this early stage would be discordant with the rationale for the entire system. If
the accused were allowed to be heard and necessarily to present evidence during the prima facie determination
for the issuance of a warrant of arrest,

what would stop him from presenting his entire plethora of defenses at this stage -- if he so desires -- in his effort
to negate a prima facie finding? Such a procedure could convert the determination of a prima facie case into a full-
blown trial of the entire proceedings and possibly make trial of the main case superfluous. This scenario is also
anathema to the summary nature of extraditions.

That the case under consideration is an extradition and not a criminal action is not sufficient to justify the adoption
of a set of procedures more protective of the accused. If a different procedure were called for at all, a more
restrictive one -- not the opposite -- would be justified in view of respondent’s demonstrated predisposition to flee.

Since this is a matter of first impression, we deem it wise to restate the proper procedure:

Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make, as
soon as possible, a prima facie finding whether (a) they are sufficient in form and substance, (b) they show
compliance with the Extradition Treaty and Law, and (c) the person sought is extraditable. At his discretion, the
judge may

require the submission of further documentation or may personally examine the affiants and witnesses of the
petitioner. If, in spite of this study and examination, no prima facie finding 58 is possible, the petition may be
dismissed at the discretion of the judge.

On the other hand, if the presence of a prima facie case is determined, then the magistrate must immediately
issue a warrant for the arrest of the extraditee, who is at the same time summoned to answer the petition and to
appear at scheduled summary hearings. Prior to the issuance of the warrant, the judge must not inform or notify
the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and
frustrate the proceedings. In our opinion, the foregoing procedure will "best serve the ends of justice" in extradition
cases.
Second Substantive Issue:

Is Respondent Entitled to Bail?

Article III, Section 13 of the Constitution, is worded as follows:

Art. III, Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence
of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as
may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not be required."

Respondent Mark B. Jimenez maintains that this constitutional provision secures the right to bail of all persons,
including those sought to be extradited. Supposedly, the only exceptions are the ones charged with offenses
punishable with reclusion perpetua, when evidence of guilt is strong. He also alleges the relevance to the present
case of Section 4 59 of Rule 114 of the Rules of Court which, insofar as practicable and consistent with the
summary nature of extradition proceedings, shall also apply according to Section 9 of PD 1069.

On the other hand, petitioner claims that there is no provision in the Philippine Constitution granting the right to
bail to a person who is the subject of an extradition request and arrest warrant.

Extradition Different from Ordinary Criminal Proceedings

We agree with petitioner. As suggested by the use of the word "conviction," the constitutional provision on bail
quoted above, as well as Section 4 of Rule 114 of the Rules of Court, applies only when a person has been
arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings,
because extradition courts do not render judgments of conviction or acquittal.

Moreover, the constitutional right to bail "flows from the presumption of innocence in favor of every accused who
should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be
proved beyond reasonable doubt." 60 It follows that the constitutional provision on bail will not apply to a case like
extradition, where the presumption of innocence is not at issue.

The provision in the Constitution stating that the "right to bail shall not be impaired even when the privilege of the
writ of habeas corpus is suspended" does not detract from the rule that the constitutional right to bail is available
only in criminal proceedings. It must be noted that the suspension of the privilege of the writ of habeas corpus
finds application "only to persons judicially charged for rebellion or offenses inherent in or directly connected with
invasion." 61 Hence, the second sentence in the constitutional provision on bail merely emphasizes the right to bail
in criminal proceedings for the aforementioned offenses. It cannot be taken to mean that the right is available
even in extradition proceedings that are not criminal in nature.

That the offenses for which Jimenez is sought to be extradited are bailable in the United States is not an argument
to grant him one in the present case. To stress, extradition proceedings are separate and distinct from the trial for
the offenses for which he is charged. He should apply for bail before the courts trying the criminal cases against
him, not before the extradition court.

No Violation of Due Process

Respondent Jimenez cites the foreign case Paretti 62 in arguing that, constitutionally, "[n]o one shall be deprived of
x x x liberty x x x without due process of law."

Contrary to his contention, his detention prior to the conclusion of the extradition proceedings does not amount to
a violation of his right to due process. We iterate the familiar doctrine that the essence of due process is the
opportunity to be heard 63 but, at the same time, point out that the doctrine does not always call for a prior
opportunity to be heard. 64 Where the circumstances -- such as those present in an extradition case -- call for it, a
subsequent opportunity to be heard is enough. 65 In the present case, respondent will be given full opportunity to
be heard subsequently, when the extradition court hears the Petition for Extradition. Hence, there is no violation of
his right to due process and fundamental fairness.

Contrary to the contention of Jimenez, we find no arbitrariness, either, in the immediate deprivation of his liberty
prior to his being heard. That his arrest and detention will not be arbitrary is sufficiently ensured by (1) the DOJ’s
filing in court the Petition with its supporting documents after a determination that the extradition request meets
the requirements of the law and the relevant treaty; (2) the extradition judge’s independent prima facie
determination that his arrest will best serve the ends of justice before the issuance of a warrant for his arrest; and
(3) his opportunity, once he is under the court’s custody, to apply for bail as an exception to the no-initial-bail rule.

It is also worth noting that before the US government requested the extradition of respondent, proceedings had
already been conducted in that country. But because he left the jurisdiction of the requesting state before those
proceedings could be completed, it was hindered from continuing with the due processes prescribed under its
laws. His invocation of due process now has thus become hollow. He already had that opportunity in the
requesting state; yet, instead of taking it, he ran away.
In this light, would it be proper and just for the government to increase the risk of violating its treaty obligations in
order to accord Respondent Jimenez his personal liberty in the span of time that it takes to resolve the Petition for
Extradition? His supposed immediate deprivation of liberty without the due process that he had previously
shunned pales against the government’s interest in fulfilling its Extradition Treaty obligations and in cooperating
with the world community in the suppression of crime. Indeed, "[c]onstitutional liberties do not exist in a vacuum;
the due process rights accorded to individuals must be carefully balanced against exigent and palpable
government interests." 66

Too, we cannot allow our country to be a haven for fugitives, cowards and weaklings who, instead of facing the
consequences of their actions, choose to run and hide. Hence, it would not be good policy to increase the risk of
violating our treaty obligations if, through overprotection or excessively liberal treatment, persons sought to be
extradited are able to evade arrest or escape from our custody. In the absence of any provision -- in the
Constitution, the law or the treaty -- expressly guaranteeing the right to bail in extradition proceedings, adopting
the practice of not granting them bail, as a general rule, would be a step towards deterring fugitives from coming
to the Philippines to hide from or evade their prosecutors.1âwphi1.nêt

The denial of bail as a matter of course in extradition cases falls into place with and gives life to Article 14 67 of the
Treaty, since this practice would encourage the accused to voluntarily surrender to the requesting state to cut
short their detention here. Likewise, their detention pending the resolution of extradition proceedings would fall
into place with the emphasis of the Extradition Law on the summary nature of extradition cases and the need for
their speedy disposition.

Exceptions to the No Bail Rule

The rule, we repeat, is that bail is not a matter of right in extradition cases. However, the judiciary has the
constitutional duty to curb grave abuse of discretion 68 and tyranny, as well as the power to promulgate rules to
protect and enforce constitutional rights. 69 Furthermore, we believe that the right to due process is broad enough
to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or
property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application." 70

Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has
been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only
upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger
to the community; and (2) that there exist special, humanitarian and compelling circumstances 71 including, as a
matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in
extradition cases therein.

Since this exception has no express or specific statutory basis, and since it is derived essentially from general
principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with
clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a
judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it
partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence,
any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital
international and bilateral interests of our country will not be unreasonably impeded or compromised. In short,
while this Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own
prerogatives and the need to fulfill international obligations.

Along this line, Jimenez contends that there are special circumstances that are compelling enough for the Court to
grant his request for provisional release on bail. We have carefully examined these circumstances and shall now
discuss them.

1. Alleged Disenfranchisement

While his extradition was pending, Respondent Jimenez was elected as a member of the House of
Representatives. On that basis, he claims that his detention will disenfranchise his Manila district of 600,000
residents. We are not persuaded. In People v. Jalosjos, 72 the Court has already debunked the disenfranchisement
argument when it ruled thus:

When the voters of his district elected the accused-appellant to Congress, they did so with full awareness of the
limitations on his freedom of action. They did so with the knowledge that he could achieve only such legislative
results which he could accomplish within the confines of prison. To give a more drastic illustration, if voters elect a
person with full knowledge that he is suffering from a terminal illness, they do so knowing that at any time, he may
no longer serve his full term in office.

In the ultimate analysis, the issue before us boils down to a question of constitutional equal protection.

The Constitution guarantees: ‘x x x nor shall any person be denied the equal protection of laws.’ This simply
means that all persons similarly situated shall be treated alike both in rights enjoyed and responsibilities imposed.
The organs of government may not show any undue favoritism or hostility to any person. Neither partiality nor
prejudice shall be displayed.

Does being an elective official result in a substantial distinction that allows different treatment? Is being a
Congressman a substantial differentiation which removes the accused-appellant as a prisoner from the same
class as all persons validly confined under law?
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly [from] prison. The duties imposed by the ‘mandate of the people’ are multifarious. The accused-
appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is
only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few
of its members. Depending on the exigency of Government that has to be addressed, the President or the
Supreme Court can also be deemed the highest for that particular duty. The importance of a function depends on
the need for its exercise. The duty of a mother to nurse her infant is most compelling under the law of nature. A
doctor with unique skills has the duty to save the lives of those with a particular affliction. An elective governor has
to serve provincial constituents. A police officer must maintain peace and order. Never has the call of a particular
duty lifted a prisoner into a different classification from those others who are validly restrained by law.

A strict scrutiny of classifications is essential lest[,] wittingly or otherwise, insidious discriminations are made in
favor of or against groups or types of individuals.

The Court cannot validate badges of inequality. The necessities imposed by public welfare may justify exercise of
government authority to regulate even if thereby certain groups may plausibly assert that their interests are
disregarded.

We, therefore, find that election to the position of Congressman is not a reasonable classification in criminal law
enforcement. The functions and duties of the office are not substantial distinctions which lift him from the class of
prisoners interrupted in their freedom and restricted in liberty of movement. Lawful arrest and confinement are
germane to the purposes of the law and apply to all those belonging to the same class." 73

It must be noted that even before private respondent ran for and won a congressional seat in Manila, it was
already of public knowledge that the United States was requesting his extradition. Hence, his constituents were or
should have been prepared for the consequences of the extradition case against their representative, including his
detention pending the final resolution of the case. Premises considered and in line with Jalosjos, we are
constrained to rule against his claim that his election to public office is by itself a compelling reason to grant him
bail.

2. Anticipated Delay

Respondent Jimenez further contends that because the extradition proceedings are lengthy, it would be unfair to
confine him during the pendency of the case. Again we are not convinced. We must emphasize that extradition
cases are summary in nature. They are resorted to merely to determine whether the extradition petition and its
annexes conform to the Extradition Treaty, not to determine guilt or innocence. Neither is it, as a rule, intended to
address issues relevant to the constitutional rights available to the accused in a criminal action.

We are not overruling the possibility that petitioner may, in bad faith, unduly delay the proceedings. This is quite
another matter that is not at issue here. Thus, any further discussion of this point would be merely anticipatory and
academic.

However, if the delay is due to maneuverings of respondent, with all the more reason would the grant of bail not
be justified. Giving premium to delay by considering it as a special circumstance for the grant of bail would be
tantamount to giving him the power to grant bail to himself. It would also encourage him to stretch out and
unreasonably delay the extradition proceedings even more. This we cannot allow.

3. Not a Flight Risk?

Jimenez further claims that he is not a flight risk. To support this claim, he stresses that he learned of the
extradition request in June 1999; yet, he has not fled the country. True, he has not actually fled during the
preliminary stages of the request for his extradition. Yet, this fact cannot be taken to mean that he will not flee as
the process moves forward to its conclusion, as he hears the footsteps of the requesting government inching
closer and closer. That he has not yet fled from the Philippines cannot be taken to mean that he will stand his
ground and still be within reach of our government if and when it matters; that is, upon the resolution of the
Petition for Extradition.

In any event, it is settled that bail may be applied for and granted by the trial court at anytime after the applicant
has been taken into custody and prior to judgment, even after bail has been previously denied. In the present
case, the extradition court may continue hearing evidence on the application for bail, which may be granted in
accordance with the guidelines in this Decision.

Brief Refutation of Dissents

The proposal to remand this case to the extradition court, we believe, is totally unnecessary; in fact, it is a cop-out.
The parties -- in particular, Respondent Jimenez -- have been given more than sufficient opportunity both by the
trial court and this Court to discuss fully and exhaustively private respondent’s claim to bail. As already stated, the
RTC set for hearing not only petitioner’s application for an arrest warrant, but also private respondent’s prayer for
temporary liberty. Thereafter required by the RTC were memoranda on the arrest, then position papers on the
application for bail, both of which were separately filed by the parties.

This Court has meticulously pored over the Petition, the Comment, the Reply, the lengthy Memoranda and the
Position Papers of both parties. Additionally, it has patiently heard them in Oral Arguments, a procedure not
normally observed in the great majority of cases in this Tribunal. Moreover, after the Memos had been submitted,
the parties -- particularly the potential extraditee -- have bombarded this Court with additional pleadings -- entitled
"Manifestations" by both parties and "Counter-Manifestation" by private respondent -- in which the main topic was
Mr. Jimenez’s plea for bail.

A remand would mean that this long, tedious process would be repeated in its entirety. The trial court would again
hear factual and evidentiary matters. Be it noted, however, that, in all his voluminous pleadings and verbal
propositions, private respondent has not asked for a remand. Evidently, even he realizes that there is absolutely
no need to rehear factual matters. Indeed, the inadequacy lies not in the factual presentation of Mr. Jimenez.
Rather, it lies in his legal arguments. Remanding the case will not solve this utter lack of persuasion and strength
in his legal reasoning.

In short, this Court -- as shown by this Decision and the spirited Concurring, Separate and Dissenting Opinions
written by the learned justices themselves -- has exhaustively deliberated and carefully passed upon all relevant
questions in this case. Thus, a remand will not serve any useful purpose; it will only further delay these already
very delayed proceedings, 74 which our Extradition Law requires to be summary in character. What we need now is
prudent and deliberate speed, not unnecessary and convoluted delay. What is needed is a firm decision on the
merits, not a circuitous cop-out.

Then, there is also the suggestion that this Court is allegedly "disregarding basic freedoms when a case is one of
extradition." We believe that this charge is not only baseless, but also unfair. Suffice it to say that, in its length and
breath, this Decision has taken special cognizance of the rights to due process and fundamental fairness of
potential extraditees.

Summation

As we draw to a close, it is now time to summarize and stress these ten points:

1. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition,
supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with
the Extradition Treaty and Law; and whether the person sought is extraditable. The proceedings are intended
merely to assist the requesting state in bringing the accused -- or the fugitive who has illegally escaped -- back to
its territory, so that the criminal process may proceed therein.

2. By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or
soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the
latter to grant basic rights to the accused in the pending criminal case therein.

3. By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is
determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are
necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused
who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting
state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.

4. Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a
prima facie finding whether the petition is sufficient in form and substance, whether it complies with the Extradition
Treaty and Law, and whether the person sought is extraditable. The magistrate has discretion to require the
petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a
prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and
summons him or her to answer and to appear at scheduled hearings on the petition.

5. After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of
absconding, they have the burden of showing that (a) there is no flight risk and no danger to the community; and
(b) there exist special, humanitarian or compelling circumstances. The grounds used by the highest court in the
requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special
circumstance. In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of
the peculiar facts of each case.

6. Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does
not always call for a prior opportunity to be heard. A subsequent opportunity is sufficient due to the flight risk
involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to
enjoy fundamental fairness that is compatible with the summary nature of extradition.

7. This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the
conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the
prerogatives of the other co-equal and co-independent organs of government.

8. We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential
power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has
broad discretion in its duty and power of implementation.

9. On the other hand, courts merely perform oversight functions and exercise review authority to prevent or excise
grave abuse and tyranny. They should not allow contortions, delays and "over-due process" every little step of the
way, lest these summary extradition proceedings become not only inutile but also sources of international
embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a
fugitive. Worse, our country should not be converted into a dubious haven where fugitives and escapees can
unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and
international cooperation.

10. At bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance
with the Extradition Treaty and Law; and, while safeguarding basic individual rights, to avoid the legalistic
contortions, delays and technicalities that may negate that purpose.

WHEREFORE, the Petition is GRANTED. The assailed RTC Order dated May 23, 2001 is hereby declared NULL
and VOID, while the challenged Order dated July 3, 2001 is SET ASIDE insofar as it granted bail to Respondent
Mark Jimenez. The bail bond posted by private respondent is CANCELLED. The Regional Trial Court of Manila is
directed to conduct the extradition proceedings before it, with all deliberate speed pursuant to the spirit and the
letter of our Extradition Treaty with the United States as well as our Extradition Law. No costs.

SO ORDERED.

! 

EN BANC

G.R. No. 157977 February 27, 2006

EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, Petitioners, 



vs.

THE HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA – BRANCH 17,
GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of
Justice, and DIRECTOR OF NATIONAL BUREAU OF INVESTIGATION, Respondents.

DECISION

QUISUMBING, J.:

Before us is a special civil action for certiorari and prohibition directed against the Orders dated May 7, 20031and
May 9, 20032 of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375, which cancelled the bail of
petitioners and denied their motion for reconsideration, respectively.

The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the United
States of America (US government) through the Department of Justice (DOJ) against the petitioners.

After their arrest, petitioners applied for bail which the trial court granted on September 25, 2001. The bail was set
for one million pesos for each. Petitioners then posted cash bonds. The US government moved for
reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US government
filed a petition for certiorari with this Court, entitled Government of the United States of America, represented by
the Philippine Department of Justice v. Hon. Rodolfo A. Ponferrada, etc., et al., and docketed as G.R. No. 151456.

Thereafter, we directed the trial court to resolve the matter of bail which, according to its November 28, 2001
Order,3 shall be subject to whatever ruling that this Court may have in the similar case of Mark Jimenez
entitled Government of the United States of America v. Purganan,4 docketed as G.R No. 148571. In compliance
with our directive, the trial court, without prior notice and hearing, cancelled the cash bond of the petitioners and
ordered the issuance of a warrant of arrest,5 to wit:

Accordingly, following the En Banc Decision of the Supreme Court in G.R. No. 148571 dated September 24, 2002
to the effect that extraditees are not entitled to bail… while the extradition proceedings are pending…’ (page 1, En
Banc Decision in G.R. No. 148571), let a warrant of arrest issue against the herein respondents sans any bail, for
implementation by the Sheriff or any member of any law enforcement agency in line with Section 19 of
Presidential Decree No. 1069.

IT IS SO ORDERED.

Petitioners filed a very urgent motion for the reconsideration of the cancellation of their bail. The motion was heard
and denied on May 9, 2003.6

Having no alternative remedy, petitioners filed the present petition on the following grounds:

…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF HEREIN
PETITIONERS WITHOUT PRIOR NOTICE AND HEARING OF ITS CANCELLATION.

II

…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING CERTAIN SPECIAL
CIRCUMSTANCES ATTENDANT TO THE PRESENT CASE, AS AN EXCEPTION TO THE GENERAL RULE OF
"NO-BAIL" IN EXTRADITION CASES WHEN PETITIONERS’ CASH BAIL WAS UNILATERALLY CANCELLED.

III
…THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE WARRANT OF ARREST WITHOUT
CONSIDERING THE HEREIN PETITIONERS’ SPECIAL CIRCUMSTANCE OF VOLUNTARY EXTRADITION
PRIOR TO CANCELLING THEIR CASH BAIL.7

Once again we face the controversial matter of bail in extradition cases. We are asked to resolve twin issues:
First, in an extradition case, is prior notice and hearing required before bail is cancelled? Second, what constitutes
a "special circumstance" to be exempt from the no-bail rule in extradition cases?

Petitioners assert that their bail cannot be cancelled without due process of law. By way of analogy, they point to
Rule 114, Section 218 of the Rules of Court where the surety or bonding company is required to be notified and
allowed to show cause why the bail bond should not be cancelled. They say that if the rules grant this opportunity
to surety and bonding companies, the more reason then that in an extradition case the same should be afforded.

Petitioners also contend that this Court’s directive in G.R. No. 151456 did not in any way authorize the respondent
court to cancel their bail. Petitioners aver that respondent court should have first determined the facts to evaluate
if petitioners were entitled to continuance of their bail, e.g. their willingness to go on voluntary extradition, which
respondent court should have considered a special circumstance.

Respondents, for their part, argue that prior notice and hearing are not required to cancel petitioners’ bail, and the
issuance of a warrant of arrest ex parte against an extraditee is not a violation of the due process clause. Further,
respondents maintain that prior notice and hearing would defeat the purpose of the arrest warrant since it could
give warning that respondents would be arrested and even encourage them to flee.

Besides, even granting that prior notice and hearing are indeed required, respondents contend that petitioners
had been effectively given prior notice and opportunity to be heard, because the trial court’s order clearly stated
that the matter of bail shall be subject to whatever ruling the Supreme Court may render in the similar extradition
case of Government of the United States of America v. Purganan.9 Petitioners did not contest the aforementioned
order. Respondents declare that petitioners were likewise notified of this Court’s directives to the trial court to
resolve the matter of their bail.
Petitioner’s contention
More significantly, petitioners claim that their bail should not have been cancelled since their situation falls within
the exception to the general rule of no-bail. They allege that their continuous offer for voluntary extradition is a
special circumstance that should be considered in determining that their temporary liberty while on bail be allowed
to continue. They cite that petitioner Eduardo is in fact already in the United States attending the trial. They also
have not taken flight as fugitives. Besides, according to petitioners, the State is more than assured they would not
flee because their passports were already confiscated and there is an existing hold-departure order against them.
Moreover, petitioners assert, they are not a danger to the community.
REspondent’s
Respondents counter that petitioner Imelda Gener Rodriguez did not show her good faith by her continued refusal
to appear before the respondent court. Further, the reasons of petitioners do not qualify as compelling or special
circumstances. Moreover, the special circumstance of voluntary surrender of petitioner Eduardo is separate and
distinct from petitioner Imelda’s.

Additionally, respondents maintain that the ruling in the case of Atong Ang10 has no applicability in the instant
case. Ang’s bail was allowed because the English translation of a testimony needed to determine probable cause
in Ang’s case would take time. This special circumstance is not attendant in this case.

The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion,11 by a vote
of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a possible
extradition is still being evaluated.12 The Court, deliberating on a motion for reconsideration also by a vote of nine
to six, qualified and declared that prospective extraditees are entitled to notice and hearing only when the case is
filed in court and not during the process of evaluation.13

In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and
hearing before the issuance of a warrant of arrest while six others dissented.
ISSUE
Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and
hearing before the cancellation of his or her bail.

The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now in
the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a
different footing. We agree that her bail should be restored.

In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance of a
warrant of arrest,14 because notifying him before his arrest only tips him of his pending arrest. But this is for cases
pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued after determination
that the extraditee is a no-flight risk. The policy is that a prospective extraditee is arrested and detained to avoid
his flight from justice.15 On the extraditee lies the burden of showing that he will not flee once bail is granted.16 If
after his arrest and if the trial court finds that he is no flight risk, it grants him bail. The grant of the bail,
presupposes that the co-petitioner has already presented evidence to prove her right to be on bail, that she is no
flight risk, and the trial court had already exercised its sound discretion and had already determined that under the
Constitution and laws in force, co-petitioner is entitled to provisional release.
Under these premises, and with the trial court’s knowledge that in this case, co-petitioner has offered to go on
voluntary extradition; that she and her husband had posted a cash bond of ₱1 million each; that her husband had
already gone on voluntary extradition and is presently in the USA undergoing trial; that the passport of co-
petitioner is already in the possession of the authorities; that she never attempted to flee; that there is an existing
hold-departure order against her; and that she is now in her sixties, sickly and under medical treatment, we
believe that the benefits of continued temporary liberty on bail should not be revoked and their grant of bail should
not be cancelled, without the co-petitioner being given notice and without her being heard why her temporary
liberty should not be discontinued.

We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing (1) that
he will not be a flight risk or a danger to the community, and (2) that there exist special, humanitarian and
compelling circumstances.17

The trial court’s immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it had
misread and misapplied our directive therein.

Now, was the order to issue warrant of arrest against petitioners and to cancel the bail of extraditees a grave
abuse of discretion of the trial court?

Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to amount to
an evasion of positive duty or a virtual refusal to perform a duty enjoined by law.18 In our view, the cancellation of
co-petitioner’s bail, without prior notice and hearing, could be considered a violation of co-petitioner’s right to due
process tantamount to grave abuse of discretion.

Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case as in
all probability it would only end up with us again,19 we will decide if Imelda’s bail was validly cancelled.

In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of bail
may be considered, under the principle of reciprocity.20

Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to notice
and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice and hearing,
the bail’s cancellation was in violation of her right to due process.

WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7, 2003 and May 9, 2003 of the
Regional Trial Court of Manila, Branch 17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far as
petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ
entitled to bail, (2) order her cancelled bail restored, and (3) order the warrant for her arrest revoked.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

EN BANC

G.R. No. 84818 December 18, 1989

PHILIPPINE COMMUNICATIONS SATELLITE CORPORATION, petitioner, 



vs.

JOSE LUIS A. ALCUAZ, as NTC Commissioner, and NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.

Rilloraza, Africa, De Ocampo & Africa for petitioner.

Victor de la Serna for respondent Alcuaz.

REGALADO, J.:

This case is posed as one of first impression in the sense that it involves the public utility services of the petitioner
Philippine Communications Satellite Corporation (PHILCOMSAT, for short) which is the only one rendering such
services in the Philippines.
Facts (Last sentence)
The petition before us seeks to annul and set aside an Order 1 issued by respondent Commissioner Jose Luis
Alcuaz of the National Telecommunications Commission (hereafter, NTC), dated September 2, 1988, which
directs the provisional reduction of the rates which may be charged by petitioner for certain specified lines of its
services by fifteen percent (15%) with the reservation to make further reductions later, for being violative of the
constitutional prohibition against undue delegation of legislative power and a denial of procedural, as well as
substantive, due process of law.

The antecedental facts as summarized by petitioner 2 are not in dispute. By virtue of Republic Act No. 5514,
PHILCOMSAT was granted "a franchise to establish, construct, maintain and operate in the Philippines, at such
places as the grantee may select, station or stations and associated equipment and facilities for international
satellite communications." Under this franchise, it was likewise granted the authority to "construct and operate
such ground facilities as needed to deliver telecommunications services from the communications satellite system
and ground terminal or terminals."

Pursuant to said franchise, petitioner puts on record that it undertook the following activities and established the
following installations:

1. In 1967, PHILCOMSAT established its provisional earth station in Pinugay, Rizal.

2. In 1968, earth station standard "A" antenna (Pinugay I) was established. Pinugay I provided direct satellite
communication links with the Pacific Ocean Region (the United States, Australia, Canada, Hawaii, Guam, Korea,
Thailand, China [PROC], New Zealand and Brunei) thru the Pacific Ocean INTELSAT satellite.

3. In 1971, a second earth station standard "A" antenna(Pinugay III) was established. Pinugay II provided links
with the Indian Ocean Region (major cities in Europe, Middle East, Africa, and other Asia Pacific countries
operating within the region) thru the Indian Ocean INTELSAT satellite.

4. In 1983, a third earth station standard "B" antenna (Pinugay III) was established to temporarily assume the
functions of Pinugay I and then Pinugay II while they were being refurbished. Pinugay III now serves as spare or
reserved antenna for possible contingencies.

5. In 1983, PHILCOMSAT constructed and installed a standard "B" antenna at Clark Air Field, Pampanga as a
television receive-only earth station which provides the U.S. Military bases with a 24-hour television service.

6. In 1989, petitioner completed the installation of a third standard "A" earth station (Pinugay IV) to take over the
links in Pinugay I due to obsolescence. 3

By designation of the Republic of the Philippines, the petitioner is also the sole signatory for the Philippines in the
Agreement and the Operating Agreement relating to the International Telecommunications Satellite Organization
(INTELSAT) of 115 member nations, as well as in the Convention and the Operating Agreement of the
International Maritime Satellite Organization (INMARSAT) of 53 member nations, which two global commercial
telecommunications satellite corporations were collectively established by various states in line with the principles
set forth in Resolution 1721 (XVI) of the General Assembly of the United Nations.
Since 1968, the petitioner has been leasing its satellite circuits to:

1. Philippine Long Distance Telephone Company;

2. Philippine Global Communications, Inc.;

3. Eastern Telecommunications Phils., Inc.;

4. Globe Mackay Cable and Radio Corp. ITT; and

5. Capitol Wireless, Inc.

or their predecessors-in-interest. The satellite services thus provided by petitioner enable said international
carriers to serve the public with indispensable communication services, such as overseas telephone, telex,
facsimile, telegrams, high speed data, live television in full color, and television standard conversion from
European to American or vice versa.

Under Section 5 of Republic Act No. 5514, petitioner was exempt from the jurisdiction of the then Public Service
Commission, now respondent NTC. However, pursuant to Executive Order No. 196 issued on June 17, 1987,
petitioner was placed under the jurisdiction, control and regulation of respondent NTC, including all its facilities
and services and the fixing of rates. Implementing said Executive Order No. 196, respondents required petitioner
to apply for the requisite certificate of public convenience and necessity covering its facilities and the services it
renders, as well as the corresponding authority to charge rates therefor.

Consequently, under date of September 9, 1987, petitioner filed with respondent NTC an application 4 for authority
to continue operating and maintaining the same facilities it has been continuously operating and maintaining since
1967, to continue providing the international satellite communications services it has likewise been providing since
1967, and to charge the current rates applied for in rendering such services. Pending hearing, it also applied for a
provisional authority so that it can continue to operate and maintain the above mentioned facilities, provide the
services and charge therefor the aforesaid rates therein applied for.

On September 16, 1987, petitioner was granted a provisional authority to continue operating its existing facilities,
to render the services it was then offering, and to charge the rates it was then charging. This authority was valid
for six (6) months from the date of said order. 5 When said provisional authority expired on March 17, 1988, it was
extended for another six (6) months, or up to September 16, 1988.

The NTC order now in controversy had further extended the provisional authority of the petitioner for another six
(6) months, counted from September 16, 1988, but it directed the petitioner to charge modified reduced rates
through a reduction of fifteen percent (15%) on the present authorized rates. Respondent Commissioner ordered
said reduction on the following ground:

The Commission in its on-going review of present service rates takes note that after an initial evaluation by the
Rates Regulation Division of the Common Carriers Authorization Department of the financial statements of
applicant, there is merit in a REDUCTION in some of applicant's rates, subject to further reductions, should the
Commission finds (sic) in its further evaluation that more reduction should be effected either on the basis of a
provisional authorization or in the final consideration of the case. 6

PHILCOMSAT assails the above-quoted order for the following reasons:

1. The enabling act (Executive Order No. 546) of respondent NTC empowering it to fix rates for public service
communications does not provide the necessary standards constitutionally required, hence there is an undue
delegation of legislative power, particularly the adjudicatory powers of NTC;

2. Assuming arguendo that the rate-fixing power was properly and constitutionally conferred, the same was
exercised in an unconstitutional manner, hence it is ultra vires, in that (a) the questioned order violates procedural
due process for having been issued without prior notice and hearing; and (b) the rate reduction it imposes is
unjust, unreasonable and confiscatory, thus constitutive of a violation of substantive due process.

I. Petitioner asseverates that nowhere in the provisions of Executive Order No. 546, providing for the creation of
respondent NTC and granting its rate-fixing powers, nor of Executive Order No. 196, placing petitioner under the
jurisdiction of respondent NTC, can it be inferred that respondent NTC is guided by any standard in the exercise
of its rate-fixing and adjudicatory powers. While petitioner in its petition-in-chief raised the issue of undue
delegation of legislative power, it subsequently clarified its said submission to mean that the order mandating a
reduction of certain rates is undue delegation not of legislative but of quasi-judicial power to respondent NTC, the
exercise of which allegedly requires an express conferment by the legislative body.

Whichever way it is presented, petitioner is in effect questioning the constitutionality of Executive Orders Nos. 546
and 196 on the ground that the same do not fix a standard for the exercise of the power therein conferred.

We hold otherwise.
Fundamental is the rule that delegation of legislative power may be sustained only upon the ground that some
standard for its exercise is provided and that the legislature in making the delegation has prescribed the manner
of the exercise of the delegated power. Therefore, when the administrative agency concerned, respondent NTC in
this case, establishes a rate, its act must both be non- confiscatory and must have been established in the
manner prescribed by the legislature; otherwise, in the absence of a fixed standard, the delegation of power
becomes unconstitutional. In case of a delegation of rate-fixing power, the only standard which the legislature is
required to prescribe for the guidance of the administrative authority is that the rate be reasonable and just.
However, it has been held that even in the absence of an express requirement as to reasonableness, this
standard may be implied. 7

It becomes important then to ascertain the nature of the power delegated to respondent NTC and the manner
required by the statute for the lawful exercise thereof.

Pursuant to Executive Orders Nos. 546 and 196, respondent NTC is empowered, among others, to determine and
prescribe rates pertinent to the operation of public service communications which necessarily include the power to
promulgate rules and regulations in connection therewith. And, under Section 15(g) of Executive Order No. 546,
respondent NTC should be guided by the requirements of public safety, public interest and reasonable feasibility
of maintaining effective competition of private entities in communications and broadcasting facilities. Likewise, in
Section 6(d) thereof, which provides for the creation of the Ministry of Transportation and Communications with
control and supervision over respondent NTC, it is specifically provided that the national economic viability of the
entire network or components of the communications systems contemplated therein should be maintained at
reasonable rates. We need not go into an in-depth analysis of the pertinent provisions of the law in order to
conclude that respondent NTC, in the exercise of its rate-fixing power, is limited by the requirements of public
safety, public interest, reasonable feasibility and reasonable rates, which conjointly more than satisfy the
requirements of a valid delegation of legislative power.
Petitioner’s Contention
II. On another tack, petitioner submits that the questioned order violates procedural due process because it was
issued motu proprio, without notice to petitioner and without the benefit of a hearing. Petitioner laments that said
order was based merely on an "initial evaluation," which is a unilateral evaluation, but had petitioner been given
an opportunity to present its side before the order in question was issued, the confiscatory nature of the rate
reduction and the consequent deterioration of the public service could have been shown and demonstrated to
respondents. Petitioner argues that the function involved in the rate fixing-power of NTC is adjudicatory and hence
quasi-judicial, not quasi- legislative; thus, notice and hearing are necessary and the absence thereof results in a
violation of due process.
Respondent’s Contention
Respondents admit that the application of a policy like the fixing of rates as exercised by administrative bodies is
quasi-judicial rather than quasi-legislative: that where the function of the administrative agency is legislative,
notice and hearing are not required, but where an order applies to a named person, as in the instant case, the
function involved is adjudicatory. 8 Nonetheless, they insist that under the facts obtaining the order in question
need not be preceded by a hearing, not because it was issued pursuant to respondent NTC's legislative function
but because the assailed order is merely interlocutory, it being an incident in the ongoing proceedings on
petitioner's application for a certificate of public convenience; and that petitioner is not the only primary source of
data or information since respondent is currently engaged in a continuing review of the rates charged.

We find merit in petitioner's contention.

In Vigan Electric Light Co., Inc. vs. Public Service Commission,9 we made a categorical classification as to when
the rate-filing power of administrative bodies is quasi-judicial and when it is legislative, thus:

Moreover, although the rule-making power and even the power to fix rates- when such rules and/or rates are
meant to apply to all enterprises of a given kind throughout the Philippines-may partake of a legislative character,
such is not the nature of the order complained of. Indeed, the same applies exclusively to petitioner herein. What
is more, it is predicated upon the finding of fact-based upon a report submitted by the General Auditing Office-that
petitioner is making a profit of more than 12% of its invested capital, which is denied by petitioner. Obviously, the
latter is entitled to cross-examine the maker of said report, and to introduce evidence to disprove the contents
thereof and/or explain or complement the same, as well as to refute the conclusion drawn therefrom by the
respondent. In other words, in making said finding of fact, respondent performed a function partaking of a quasi-
judicial character, the valid exercise of which demands previous notice and hearing.

This rule was further explained in the subsequent case of The Central Bank of the Philippines vs. Cloribel, et al.
10 to wit:
PROCEDURAL DUE PROCESS
It is also clear from the authorities that where the function of the administrative body is legislative, notice of
hearing is not required by due process of law (See Oppenheimer, Administrative Law, 2 Md. L.R. 185, 204, supra,
where it is said: 'If the nature of the administrative agency is essentially legislative, the requirements of notice and
hearing are not necessary. The validity of a rule of future action which affects a group, if vested rights of liberty or
property are not involved, is not determined according to the same rules which apply in the case of the direct
application of a policy to a specific individual) ... It is said in 73 C.J.S. Public Administrative Bodies and Procedure,
sec. 130, pages 452 and 453: 'Aside from statute, the necessity of notice and hearing in an administrative
proceeding depends on the character of the proceeding and the circumstances involved. In so far as
generalization is possible in view of the great variety of administrative proceedings, it may be stated as a general
rule that notice and hearing are not essential to the validity of administrative action where the administrative body
acts in the exercise of executive, administrative, or legislative functions; but where a public administrative body
acts in a judicial or quasi-judicial matter, and its acts are particular and immediate rather than general and
prospective, the person whose rights or property may be affected by the action is entitled to notice and hearing. 11

The order in question which was issued by respondent Alcuaz no doubt contains all the attributes of a quasi-
judicial adjudication. Foremost is the fact that said order pertains exclusively to petitioner and to no other. Further,
it is premised on a finding of fact, although patently superficial, that there is merit in a reduction of some of the
rates charged- based on an initial evaluation of petitioner's financial statements-without affording petitioner the
benefit of an explanation as to what particular aspect or aspects of the financial statements warranted a
corresponding rate reduction. No rationalization was offered nor were the attending contingencies, if any,
discussed, which prompted respondents to impose as much as a fifteen percent (15%) rate reduction. It is not far-
fetched to assume that petitioner could be in a better position to rationalize its rates vis-a-vis the viability of its
business requirements. The rates it charges result from an exhaustive and detailed study it conducts of the multi-
faceted intricacies attendant to a public service undertaking of such nature and magnitude. We are, therefore,
inclined to lend greater credence to petitioner's ratiocination that an immediate reduction in its rates would
adversely affect its operations and the quality of its service to the public considering the maintenance
requirements, the projects it still has to undertake and the financial outlay involved. Notably, petitioner was not
even afforded the opportunity to cross-examine the inspector who issued the report on which respondent NTC
based its questioned order.

At any rate, there remains the categorical admission made by respondent NTC that the questioned order was
issued pursuant to its quasi-judicial functions. It, however, insists that notice and hearing are not necessary since
the assailed order is merely incidental to the entire proceedings and, therefore, temporary in nature. This
postulate is bereft of merit.

While respondents may fix a temporary rate pending final determination of the application of petitioner, such rate-
fixing order, temporary though it may be, is not exempt from the statutory procedural requirements of notice and
hearing, as well as the requirement of reasonableness. Assuming that such power is vested in NTC, it may not
exercise the same in an arbitrary and confiscatory manner. Categorizing such an order as temporary in nature
does not perforce entail the applicability of a different rule of statutory procedure than would otherwise be applied
to any other order on the same matter unless otherwise provided by the applicable law. In the case at bar, the
applicable statutory provision is Section 16(c) of the Public Service Act which provides:

Section 16. Proceedings of the Commission, upon notice and hearing the Commission shall have power, upon
proper notice and hearing in accordance with the rules and provisions of this Act, subject to the limitations and
exceptions mentioned and saving provisions to the contrary:

xxx xxx xxx

(c) To fix and determine individual or joint rates, ... which shall be imposed, observed and followed thereafter by
any public service; ...

There is no reason to assume that the aforesaid provision does not apply to respondent NTC, there being no
limiting, excepting, or saving provisions to the contrary in Executive Orders Nos. 546 and 196.

It is thus clear that with regard to rate-fixing, respondent has no authority to make such order without first giving
petitioner a hearing, whether the order be temporary or permanent, and it is immaterial whether the same is made
upon a complaint, a summary investigation, or upon the commission's own motion as in the present case. That
such a hearing is required is evident in respondents' order of September 16, 1987 in NTC Case No. 87-94 which
granted PHILCOMSAT a provisional authority "to continue operating its existing facilities, to render the services it
presently offers, and to charge the rates as reduced by them "under the condition that "(s)ubject to hearing and
the final consideration of the merit of this application, the Commission may modify, revise or amend the rates ..." 12

While it may be true that for purposes of rate-fixing respondents may have other sources of information or data,
still, since a hearing is essential, respondent NTC should act solely on the basis of the evidence before it and not
on knowledge or information otherwise acquired by it but which is not offered in evidence or, even if so adduced,
petitioner was given no opportunity to controvert.

Again, the order requires the new reduced rates to be made effective on a specified date. It becomes a final
legislative act as to the period during which it has to remain in force pending the final determination of the
case. 13 An order of respondent NTC prescribing reduced rates, even for a temporary period, could be unjust,
unreasonable or even confiscatory, especially if the rates are unreasonably low, since the utility permanently loses
its just revenue during the prescribed period. In fact, such order is in effect final insofar as the revenue during the
period covered by the order is concerned. Upon a showing, therefore, that the order requiring a reduced rate is
confiscatory, and will unduly deprive petitioner of a reasonable return upon its property, a declaration of its nullity
becomes inductible, which brings us to the issue on substantive due process.

III. Petitioner contends that the rate reduction is confiscatory in that its implementation would virtually result in a
cessation of its operations and eventual closure of business. On the other hand, respondents assert that since
petitioner is operating its communications satellite facilities through a legislative franchise, as such grantee it has
no vested right therein. What it has is merely a privilege or license which may be revoked at will by the State at
any time without necessarily violating any vested property right of herein petitioner. While petitioner concedes this
thesis of respondent, it counters that the withdrawal of such privilege should nevertheless be neither whimsical
nor arbitrary, but it must be fair and reasonable.

There is no question that petitioner is a mere grantee of a legislative franchise which is subject to amendment,
alteration, or repeal by Congress when the common good so requires. 14 Apparently, therefore, such grant cannot
be unilaterally revoked absent a showing that the termination of the operation of said utility is required by the
common good.

The rule is that the power of the State to regulate the conduct and business of public utilities is limited by the
consideration that it is not the owner of the property of the utility, or clothed with the general power of
management incident to ownership, since the private right of ownership to such property remains and is not to be
destroyed by the regulatory power. The power to regulate is not the power to destroy useful and harmless
enterprises, but is the power to protect, foster, promote, preserve, and control with due regard for the interest, first
and foremost, of the public, then of the utility and of its patrons. Any regulation, therefore, which operates as an
effective confiscation of private property or constitutes an arbitrary or unreasonable infringement of property rights
is void, because it is repugnant to the constitutional guaranties of due process and equal protection of the laws. 15

Hence, the inherent power and authority of the State, or its authorized agent, to regulate the rates charged by
public utilities should be subject always to the requirement that the rates so fixed shall be reasonable and just. A
commission has no power to fix rates which are unreasonable or to regulate them arbitrarily. This basic
requirement of reasonableness comprehends such rates which must not be so low as to be confiscatory, or too
high as to be oppressive. 16

What is a just and reasonable rate is not a question of formula but of sound business judgment based upon the
evidence 17 it is a question of fact calling for the exercise of discretion, good sense, and a fair, enlightened and
independent judgment. 18 In determining whether a rate is confiscatory, it is essential also to consider the given
situation, requirements and opportunities of the utility. A method often employed in determining reasonableness is
the fair return upon the value of the property to the public utility. Competition is also a very important factor in
determining the reasonableness of rates since a carrier is allowed to make such rates as are necessary to meet
competition. 19

A cursory perusal of the assailed order reveals that the rate reduction is solely and primarily based on the initial
evaluation made on the financial statements of petitioner, contrary to respondent NTC's allegation that it has
several other sources of information without, however, divulging such sources. Furthermore, it did not as much as
make an attempt to elaborate on how it arrived at the prescribed rates. It just perfunctorily declared that based on
the financial statements, there is merit for a rate reduction without any elucidation on what implications and
conclusions were necessarily inferred by it from said statements. Nor did it deign to explain how the data reflected
in the financial statements influenced its decision to impose a rate reduction.

On the other hand, petitioner may likely suffer a severe drawback, with the consequent detriment to the public
service, should the order of respondent NTC turn out to be unreasonable and improvident. The business in which
petitioner is engaged is unique in that its machinery and equipment have always to be taken in relation to the
equipment on the other end of the transmission arrangement. Any lack, aging, acquisition, rehabilitation, or
refurbishment of machinery and equipment necessarily entails a major adjustment or innovation on the business
of petitioner. As pointed out by petitioner, any change in the sending end abroad has to be matched with the
corresponding change in the receiving end in the Philippines. Conversely, any in the receiving end abroad has to
be matched with the corresponding change in the sending end in the Philippines. An inability on the part of
petitioner to meet the variegations demanded be technology could result in a deterioration or total failure of the
service of satellite communications.

At present, petitioner is engaged in several projects aimed at refurbishing, rehabilitating, and renewing its
machinery and equipment in order to keep up with the continuing charges of the times and to maintain its facilities
at a competitive level with the technological advances abroad. There projected undertakings were formulated on
the premise that rates are maintained at their present or at reasonable levels. Hence, an undue reduction thereof
may practically lead to a cessation of its business. While we concede the primacy of the public interest in an
adequate and efficient service, the same is not necessarily to be equated with reduced rates. Reasonableness in
the rates assumes that the same is fair to both the public utility and the consumer.

Consequently, we hold that the challenged order, particularly on the issue of rates provided therein, being violative
of the due process clause is void and should be nullified. Respondents should now proceed, as they should
heretofore have done, with the hearing and determination of petitioner's pending application for a certificate of
public convenience and necessity and in which proceeding the subject of rates involved in the present
controversy, as well as other matter involved in said application, be duly adjudicated with reasonable dispatch and
with due observance of our pronouncements herein.

WHEREFORE, the writ prayed for is GRANTED and the order of respondents, dated September 2, 1988, in NTC
Case No. 87-94 is hereby SET ASIDE. The temporary restraining order issued under our resolution of September
13, 1988, as specifically directed against the aforesaid order of respondents on the matter of existing rates on
petitioner's present authorized services, is hereby made permanent.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network (SSN)
for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR., Petitioners, 

vs.

ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE
PHILIPPINE NATIONAL POLICE, Respondents.

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

G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL FEDERATION OF
LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its National President Joselito V.
Ustarez and Secretary General Antonio C. Pascual, and CENTER FOR TRADE UNION AND HUMAN
RIGHTS, represented by its Executive Director Daisy Arago, Petitioners, 

vs.

HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in his capacity
as Acting Secretary of National Defense, HON. RAUL GONZALES, in his capacity as Secretary of Justice,
HON. RONALDO PUNO, in his capacity as Secretary of the Interior and Local Government, GEN.
HERMOGENES ESPERON, in his capacity as AFP Chief of Staff, and DIRECTOR GENERAL OSCAR
CALDERON, in his capacity as PNP Chief of Staff, Respondents.

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

G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL), CONFEDERATION FOR
UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES (COURAGE), KALIPUNAN
NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS, LEAGUE OF FILIPINO
STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG MAMAMALAKAYA
(PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH ALLIANCE FOR
DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO LUMBERA, RENATO
CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ, ATTY. JOSEFINA
LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR. CAROLINA PAGADUAN-
ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA BAUA, REY CLARO
CASAMBRE, Petitioners, 

vs.

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.

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

G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by Dr.
Edelina de la Paz, and representing the following organizations: HUSTISYA, represented by Evangeline
Hernandez and also on her own behalf; DESAPARECIDOS, represented by Mary Guy Portajada and also
on her own behalf, SAMAHAN NG MGA EX-DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA
(SELDA), represented by Donato Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR
JUSTICE AND PEACE (EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF
CHURCH PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM,Petitioners, 

vs.

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.

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

G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M. Bautista,
COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S. MADRIGAL and
FORMER SENATORS SERGIO OSMEÑA III and WIGBERTO E. TAÑADA, Petitioners, 

vs.

EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.

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

G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG


MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS), BAYAN
MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS AT
LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOSÑOS
RURAL POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NIÑO LAJARA, TEODORO
REYES, FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners, 

vs.

GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief, EXECUTIVE
SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED FORCES
OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE PHILIPPINE
CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE GEN. OSCAR
CALDERON, THE PNP, including its intelligence and investigative elements, AFP CHIEF GEN.
HERMOGENES ESPERON, Respondents.

DECISION

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA 9372), "An Act to
Secure the State and Protect our People from Terrorism," otherwise known as the Human Security Act of
2007,1signed into law on March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere Engagement Network,
Inc., a non-government organization, and Atty. Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed
a petition for certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even date, petitioners
Kilusang Mayo Uno (KMU), National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center
for Trade Union and Human Rights (CTUHR), represented by their respective officers3 who are also bringing the
action in their capacity as citizens, filed a petition for certiorari and prohibition docketed as G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN), General Alliance Binding
Women for Reforms, Integrity, Equality, Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas
(KMP), Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY),
Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health Alliance for
Democracy (HEAD), and Agham, represented by their respective officers,4 and joined by concerned citizens and
taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John Manansan,
OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr.
Carolina Pagaduan-Araullo, Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro
Casambre filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos, Samahan ng mga
Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical Movement for Justice and Peace
(EMJP), and Promotion of Church People’s Response (PCPR), which were represented by their respective
officers5 who are also bringing action on their own behalf, filed a petition for certiorari and prohibition docketed as
G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of Liberty (CODAL),
6Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E. Tañada filed a petition for

certiorari and prohibition docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and organizations mostly
based in the Southern Tagalog Region,7 and individuals8 followed suit by filing on September 19, 2007 a petition
for certiorari and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in the BAYAN
petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of, at the time of the
filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as
Vice Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National Security
Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo Puno, and Finance Secretary
Margarito Teves as members. All the petitions, except that of the IBP, also impleaded Armed Forces of the
Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen.
Oscar Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria Macapagal-Arroyo and the
support agencies for the Anti-Terrorism Council like the National Intelligence Coordinating Agency, National
Bureau of Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-
Money Laundering Center, Philippine Center on Transnational Crime, and the PNP intelligence and investigative
elements.

The petitions fail.

Petitioners’ resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-judicial functions.
Section 1, Rule 65 of the Rules of Court is clear:

Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-judicial
functionshas acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to
lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary
course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity how respondents acted without or
in excess of their respective jurisdictions, or with grave abuse of discretion amounting to lack or excess of
jurisdiction.

The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz: (a) there must be
an actual case or controversy; (b) petitioners must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case.10

In the present case, the dismal absence of the first two requisites, which are the most essential, renders the
discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the controversy as to assure that
concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result of the governmental act that is being challenged. The
gist of the question on standing is whether a party alleges such personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the presentation of issues upon which the court depends
for illumination of difficult constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and personal interest. It must show not
only that the law or any governmental act is invalid, but also that it sustained or is in immediate danger of
sustaining some direct injury as a result of its enforcement, and not merely that it suffers thereby in some
indefinite way. It must show that it has been or is about to be denied some right or privilege to which it is lawfully
entitled or that it is about to be subjected to some burdens or penalties by reason of the statute or act complained
of.

For a concerned party to be allowed to raise a constitutional question, it must show that (1) it has personally
suffered some actual or threatened injury as a result of the allegedly illegal conduct of the government, (2) the
injury is fairly traceable to the challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts" by the
government, especially the military; whereas individual petitioners invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with the requirement that
petitioner has experienced or is in actual danger of suffering direct and personal injury, cases involving the
constitutionality of penal legislation belong to an altogether different genus of constitutional litigation. Compelling
State and societal interests in the proscription of harmful conduct, as will later be elucidated, necessitate a closer
judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the controversy. None of them faces any
charge under RA 9372.

KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No. 178890, allege that they
have been subjected to "close security surveillance by state security forces," their members followed by
"suspicious persons" and "vehicles with dark windshields," and their offices monitored by "men with military build."
They likewise claim that they have been branded as "enemies of the [S]tate."14

Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly points out that
petitioners have yet to show any connection between the purported "surveillance" and the implementation of RA
9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA, ACT,
Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would like the Court to take judicial
notice of respondents’ alleged action of tagging them as militant organizations fronting for the Communist Party of
the Philippines (CPP) and its armed wing, the National People’s Army (NPA). The tagging, according to
petitioners, is tantamount to the effects of proscription without following the procedure under the law.15 The
petition of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and
(3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited
to facts evidenced by public records and facts of general notoriety. Moreover, a judicially noticed fact must be one
not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable.

Things of "common knowledge," of which courts take judicial matters coming to the knowledge of men generally in
the course of the ordinary experiences of life, or they may be matters which are generally accepted by mankind as
true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known, and
which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are
of such universal notoriety and so generally understood that they may be regarded as forming part of the common
knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of particular
facts have been judicially noticed as being matters of common knowledge. But a court cannot take judicial notice
of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court has no
constructive knowledge.16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial notice. Petitioners’ apprehension is
insufficient to substantiate their plea. That no specific charge or proscription under RA 9372 has been filed against
them, three years after its effectivity, belies any claim of imminence of their perceived threat emanating from the
so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp as well on their
supposed "link" to the CPP and NPA. They fail to particularize how the implementation of specific provisions of RA
9372 would result in direct injury to their organization and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States of
America17(US) and the European Union18 (EU) have both classified the CPP, NPA and Abu Sayyaf Group as
foreign terrorist organizations. The Court takes note of the joint statement of Executive Secretary Eduardo Ermita
and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the US and EU classification of
the CPP and NPA as terrorist organizations.19 Such statement notwithstanding, there is yet to be filed before the
courts an application to declare the CPP and NPA organizations as domestic terrorist or outlawed organizations
under RA 9372. Again, RA 9372 has been in effect for three years now. From July 2007 up to the present,
petitioner-organizations have conducted their activities fully and freely without any threat of, much less an actual,
prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives Saturnino


Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan,20 urged the government to resume peace
negotiations with the NDF by removing the impediments thereto, one of which is the adoption of designation of the
CPP and NPA by the US and EU as foreign terrorist organizations. Considering the policy statement of the Aquino
Administration21 of resuming peace talks with the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and specific interests in the questions
being raised.22 Of recent development is the filing of the first case for proscription under Section 1723 of RA 9372
by the Department of Justice before the Basilan Regional Trial Court against the Abu Sayyaf Group.24 Petitioner-
organizations do not in the least allege any link to the Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372 by alluding to
past rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against then Party-List
Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of GABRIELA, and Joel Virador,
Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and
Danilo Ramos; and accused of being front organizations for the Communist movement were petitioner-
organizations KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26

The dismissed rebellion charges, however, do not save the day for petitioners. For one, those charges were filed
in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For another, rebellion is defined and
punished under the Revised Penal Code. Prosecution for rebellion is not made more imminent by the enactment
of RA 9372, nor does the enactment thereof make it easier to charge a person with rebellion, its elements not
having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to prospective charges under RA
9372. It cannot be overemphasized that three years after the enactment of RA 9372, none of petitioners has been
charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn duty to uphold the
Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render assistance to those arrested or
detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe the IBP or any of
its members with standing.27 The IBP failed to sufficiently demonstrate how its mandate under the assailed statute
revolts against its constitutional rights and duties. Moreover, both the IBP and CODAL have not pointed to even a
single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political surveillance," also
lacks locus standi. Prescinding from the veracity, let alone legal basis, of the claim of "political surveillance," the
Court finds that she has not shown even the slightest threat of being charged under RA 9372. Similarly lacking in
locus standi are former Senator Wigberto Tañada and Senator Sergio Osmeña III, who cite their being
respectively a human rights advocate and an oppositor to the passage of RA 9372. Outside these gratuitous
statements, no concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No. 178552 also
conveniently state that the issues they raise are of transcendental importance, "which must be settled early" and
are of "far-reaching implications," without mention of any specific provision of RA 9372 under which they have
been charged, or may be charged. Mere invocation of human rights advocacy has nowhere been held sufficient to
clothe litigants with locus standi. Petitioners must show an actual, or immediate danger of sustaining, direct injury
as a result of the law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as
every worthy cause is an interest shared by the general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A taxpayer suit is
proper only when there is an exercise of the spending or taxing power of Congress,28 whereas citizen standing
must rest on direct and personal interest in the proceeding.29

RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its implementation,
while none of the individual petitioner-citizens has alleged any direct and personal interest in the implementation
of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right, do not establish
locus standi. Evidence of a direct and personal interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.
30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is limited to actual
cases or controversies to be exercised after full opportunity of argument by the parties. Any attempt at abstraction
could only lead to dialectics and barren legal questions and to sterile conclusions unrelated to actualities.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination,
not conjectural or anticipatory, lest the decision of the court would amount to an advisory opinion.32

Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however intellectually
challenging. The controversy must be justiciable—definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active antagonistic assertion of a legal
right, on the one hand, and a denial thereof on the other hand; that is, it must concern a real and not merely a
theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly Urbanized City
was held to be premature as it was tacked on uncertain, contingent events.34 Similarly, a petition that fails to
allege that an application for a license to operate a radio or television station has been denied or granted by the
authorities does not present a justiciable controversy, and merely wheedles the Court to rule on a hypothetical
problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on Elections36 for failure to cite any
specific affirmative action of the Commission on Elections to implement the assailed resolution. It refused, in
Abbas v. Commission on Elections,37 to rule on the religious freedom claim of the therein petitioners based merely
on a perceived potential conflict between the provisions of the Muslim Code and those of the national law, there
being no actual controversy between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to any constitutional
interest suffices to provide a basis for mounting a constitutional challenge. This, however, is qualified by the
requirement that there must be sufficient facts to enable the Court to intelligently adjudicate the issues.38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced a "credible threat of
prosecution" and "should not be required to await and undergo a criminal prosecution as the sole means of
seeking relief."40 The plaintiffs therein filed an action before a federal court to assail the constitutionality of the
material support statute, 18 U.S.C. §2339B (a) (1),41 proscribing the provision of material support to organizations
declared by the Secretary of State as foreign terrorist organizations. They claimed that they intended to provide
support for the humanitarian and political activities of two such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory petition clearly shows
that the challenged prohibition forbids the conduct or activity that a petitioner seeks to do, as there would then be
a justiciable controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged provisions of RA
9372 forbid constitutionally protected conduct or activity that they seek to do. No demonstrable threat has been
established, much less a real and existing one.

Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as "communist fronts" in
no way approximate a credible threat of prosecution. From these allegations, the Court is being lured to render an
advisory opinion, which is not its function.43

Without any justiciable controversy, the petitions have become pleas for declaratory relief, over which the Court
has no original jurisdiction. Then again, declaratory actions characterized by "double contingency," where both the
activity the petitioners intend to undertake and the anticipated reaction to it of a public official are merely
theorized, lie beyond judicial review for lack of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present petitions out of the
realm of the surreal and merely imagined. Such possibility is not peculiar to RA 9372 since the exercise of any
power granted by law may be abused.45 Allegations of abuse must be anchored on real events before courts may
step in to settle actual controversies involving rights which are legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules of
constitutional litigation are rightly excepted
Petitioner’s contention
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime of
terrorism46under RA 9372 in that terms like "widespread and extraordinary fear and panic among the populace"
and "coerce the government to give in to an unlawful demand" are nebulous, leaving law enforcement agencies
with no standard to measure the prohibited acts.
Respondent’s
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth find no
application in the present case since these doctrines apply only to free speech cases; and that RA 9372 regulates
conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the schools of thought on
whether the void-for-vagueness and overbreadth doctrines are equally applicable grounds to assail a penal
statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application of the two
doctrines to free speech cases. They particularly cite Romualdez v. Hon. Sandiganbayan47 and Estrada v.
Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the Anti-Graft and
Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court stated that "the overbreadth and
the vagueness doctrines have special application only to free-speech cases," and are "not appropriate for testing
the validity of penal statutes."50 It added that, at any rate, the challenged provision, under which the therein
petitioner was charged, is not vague.51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that a facial
invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a vagueness analysis, and
concluded that the therein subject election offense53 under the Voter’s Registration Act of 1996, with which the
therein petitioners were charged, is couched in precise language.54

The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza in
the Estradacase, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear and free from
ambiguity respecting the definition of the crime of plunder.

The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a "facial"
invalidation as opposed to an "as-applied" challenge. He basically postulated that allegations that a penal statute
is vague and overbroad do not justify a facial review of its validity. The pertinent portion of the Concurring Opinion
of Justice Mendoza, which was quoted at length in the main Estrada decision, reads:

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.

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."
In Broadrick v. Oklahoma, 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." 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."
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." 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. 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. But, as the U.S. Supreme Court pointed out in Younger v. Harris

[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," and is generally disfavored. 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.56 (Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth and vagueness doctrines as
grounds for a facial or as-applied challenge against a penal statute (under a claim of violation of due process of
law) or a speech regulation (under a claim of abridgement of the freedom of speech and cognate rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of
common intelligence must necessarily guess at its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying out
its provisions and becomes an arbitrary flexing of the Government muscle.57 The overbreadth doctrine,
meanwhile, decrees that a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of
protected freedoms.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals will understand
what a statute prohibits and will accordingly refrain from that behavior, even though some of it is protected.59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts affecting real litigants,
a facialinvalidation is an examination of the entire law, pinpointing its flaws and defects, not only on the basis of its
actual operation to the parties, but also on the assumption or prediction that its very existence may cause others
not before the court to refrain from constitutionally protected speech or activities.60

Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness and overbreadth
doctrines, as grounds for a facial challenge, are not applicable to penal laws. A litigant cannot thus successfully
mount a facial challenge against a criminal statute on either vagueness or overbreadth grounds.

The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling effect" on
protected speech, the exercise of which should not at all times be abridged.62 As reflected earlier, this rationale is
inapplicable to plain penal statutes that generally bear an "in terrorem effect" in deterring socially harmful conduct.
In fact, the legislature may even forbid and penalize acts formerly considered innocent and lawful, so long as it
refrains from diminishing or dissuading the exercise of constitutionally protected rights.63

The Court reiterated that there are "critical limitations by which a criminal statute may be challenged" and
"underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be allowed."64

[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and other fundamental
rights may be facially challenged. Under no case may ordinary penal statutes be subjected to a facial challenge.
The rationale is obvious. If a facial challenge to a penal statute is permitted, the prosecution of crimes may be
hampered. No prosecution would be possible. A strong criticism against employing a facial challenge in the case
of penal statutes, if the same is allowed, would effectively go against the grain of the doctrinal requirement of an
existing and concrete controversy before judicial power may be appropriately exercised. A facial challenge against
a penal statute is, at best, amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of a facial challenge to attack penal
statutes, such a test will impair the State’s ability to deal with crime. If warranted, there would be nothing that can
hinder an accused from defeating the State’s power to prosecute on a mere showing that, as applied to third
parties, the penal statute is vague or overbroad, notwithstanding that the law is clear as applied to him.
65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a facial kind of
challenge and, owing to the given rationale of a facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in order to plot areas of
protected speech, inevitably almost always under situations not before the court, that are impermissibly swept by
the substantially overbroad regulation. Otherwise stated, a statute cannot be properly analyzed for being
substantially overbroad if the court confines itself only to facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the usual rules
of constitutional litigation. Ordinarily, a particular litigant claims that a statute is unconstitutional as applied to him
or her; if the litigant prevails, the courts carve away the unconstitutional aspects of the law by invalidating its
improper applications on a case to case basis. Moreover, challengers to a law are not permitted to raise the rights
of third parties and can only assert their own interests. In overbreadth analysis, those rules give way; challenges
are permitted to raise the rights of third parties; and the court invalidates the entire statute "on its face," not
merely "as applied for" so that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not courageous enough to
bring suit. The Court assumes that an overbroad law’s "very existence may cause others not before the court to
refrain from constitutionally protected speech or expression." An overbreadth ruling is designed to remove that
deterrent effect on the speech of those third parties.66 (Emphasis in the original omitted; underscoring supplied.)

In restricting the overbreadth doctrine to free speech claims, the Court, in at least two cases,67 observed that the
US Supreme Court has not recognized an overbreadth doctrine outside the limited context of the First
Amendment,68 and that claims of facial overbreadth have been entertained in cases involving statutes which, by
their terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an
overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression."71

Since a penal statute may only be assailed for being vague as applied to petitioners, a limited vagueness
analysis of the definition of "terrorism" in RA 9372 is legally impermissible absent an actual or imminent
chargeagainst them

While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the vagueness test on
the Anti-Plunder Law as applied to the therein petitioner, finding, however, that there was no basis to review the
law "on its face and in its entirety."72 It stressed that "statutes found vague as a matter of due process typically are
invalidated only 'as applied' to a particular defendant."73

American jurisprudence74 instructs that "vagueness challenges that do not involve the First Amendment must be
examined in light of the specific facts of the case at hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal statutes are
unconstitutionally vague, developing a doctrine hailed as "among the most important guarantees of liberty under
law."75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has been utilized in
examining the constitutionality of criminal statutes. In at least three cases,76 the Court brought the doctrine into
play in analyzing an ordinance penalizing the non-payment of municipal tax on fishponds, the crime of illegal
recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy provision under Article 202 (2) of
the Revised Penal Code. Notably, the petitioners in these three cases, similar to those in the
two Romualdez and Estrada cases, were actually charged with the therein assailed penal statute, unlike in the
present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following elements may
be culled: (1) the offender commits an act punishable under any of the cited provisions of the Revised Penal
Code, or under any of the enumerated special penal laws; (2) the commission of the predicate crime sows and
creates a condition of widespread and extraordinary fear and panic among the populace; and (3) the offender is
actuated by the desire to coerce the government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners contend that the
element of "unlawful demand" in the definition of terrorism77 must necessarily be transmitted through some form of
expression protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime actually committed
to trigger the operation of the key qualifying phrases in the other elements of the crime, including the coercion of
the government to accede to an "unlawful demand." Given the presence of the first element, any attempt at
singling out or highlighting the communicative component of the prohibition cannot recategorize the unprotected
conduct into a protected speech.

Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on just one particle
of an element of the crime. Almost every commission of a crime entails some mincing of words on the part of the
offender like in declaring to launch overt criminal acts against a victim, in haggling on the amount of ransom or
conditions, or in negotiating a deceitful transaction. An analogy in one U.S. case78 illustrated that the fact that the
prohibition on discrimination in hiring on the basis of race will require an employer to take down a sign reading
"White Applicants Only" hardly means that the law should be analyzed as one regulating speech rather than
conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither the intent of the
law to punish socially harmful conduct nor the essence of the whole act as conduct and not speech. This holds
true a fortiori in the present case where the expression figures only as an inevitable incident of making the
element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most instances brought about through
speaking or writing. But it has never been deemed an abridgement of freedom of speech or press to make a
course of conduct illegal merely because the conduct was, in part, initiated, evidenced, or carried out by means of
language, either spoken, written, or printed. Such an expansive interpretation of the constitutional guaranties of
speech and press would make it practically impossible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring
supplied)

Certain kinds of speech have been treated as unprotected conduct, because they merely evidence a prohibited
conduct.80 Since speech is not involved here, the Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein subject penal
statute as applied to the therein petitioners inasmuch as they were actually charged with the pertinent crimes
challenged on vagueness grounds. The Court in said cases, however, found no basis to review the assailed penal
statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a criminal statute,
challenged on vagueness grounds, since the therein plaintiffs faced a "credible threat of prosecution" and
"should not be required to await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecutionunder RA 9372. Even a limited vagueness analysis of the assailed definition of "terrorism" is thus
legally impermissible. The Court reminds litigants that judicial power neither contemplates speculative counseling
on a statute’s future effect on hypothetical scenarios nor allows the courts to be used as an extension of a failed
legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.
Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 169999 July 26, 2010

NEW PUERTO COMMERCIAL AND RICHARD LIM, Petitioners, 



vs.

RODEL LOPEZ AND FELIX GAVAN, Respondents.

DECISION

DEL CASTILLO, J.:

In order to validly dismiss an employee, he must be accorded both substantive and procedural due process by the
employer. Procedural due process requires that the employee be given a notice of the charge against him, an
ample opportunity to be heard, and a notice of termination. Even if the aforesaid procedure is conducted after the
filing of the illegal dismissal case, the legality of the dismissal, as to its procedural aspect, will be upheld provided
that the employer is able to show that compliance with these requirements was not a mere afterthought.

This Petition for Review on Certiorari seeks to reverse and set aside the Court of Appeal’s (CA’s) June 2, 2005
Decision1 in CA-G.R. SP. No. 83577, which affirmed with modification the October 28, 2003 Decision2 of the
National Labor Relations Commission (NLRC) in NCR CA No. 034421-03, and the September 23, 2005
Resolution3 denying petitioners’ motion for partial reconsideration.

Factual Antecedents

Petitioner New Puerto Commercial hired respondent Felix Gavan (Gavan) as a delivery panel driver on February
1, 1999 and respondent Rodel Lopez (Lopez) as roving salesman on October 12, 1999. Petitioner Richard Lim is
the operations manager of New Puerto Commercial.

Under a rolling store scheme, petitioners assigned respondents to sell goods stocked in a van on cash or credit to
the sari-sari stores of far-flung barangays and municipalities outside Puerto Princesa City, Palawan. Respondents
were duty-bound to collect the accounts receivables and remit the same upon their return to petitioners’ store on a
weekly basis.

On November 3, 2000, respondents filed a Complaint4 for illegal dismissal and non-payment of monetary benefits
against petitioners with the Regional Office of the Department of Labor and Employment in Puerto Princesa City.
On November 20, 2000, a conciliation conference was held but the parties failed to reach an amicable settlement.
As a result, the complaint was endorsed for compulsory arbitration at the Regional Arbitration Branch of the NLRC
on February 13, 2001.

Previously or on November 28, 2000, petitioners sent respondents notices to explain why they should not be
dismissed for gross misconduct based on (1) the alleged misappropriation of their sales collections, and (2) their
absence without leave for more than a month. The notice also required respondents to appear before petitioners’
lawyer on December 2, 2000 to give their side with regard to the foregoing charges. Respondents refused to
attend said hearing.

On December 6, 2000, petitioners filed a complaint for three counts of estafa before the prosecutor’s office
against respondents in connection with the alleged misappropriation of sales collections.

Thereafter, petitioners sent another set of notices to respondents on December 7, 2000 to attend a hearing on
December 15, 2000 but respondents again refused to attend. On December 18, 2000, petitioners served notices
of termination on respondents on the grounds of gross misconduct and absence without leave for more than one
month.

On February 5, 2001, an information for the crime of estafa was filed by the city prosecutor against respondents
with the Municipal Trial Court in Puerto Princesa City.

In due time, the parties submitted their respective position papers.

Labor Arbiter’s Ruling

On August 29, 2002, Labor Arbiter Cresencio G. Ramos, Jr. rendered a Decision5 dismissing the complaint for
illegal dismissal but ordering petitioners to pay respondents’ proportionate 13th month pay:

WHEREFORE, in the light of the foregoing premises, the above case for illegal dismissal is hereby DISMISSED
for being devoid of legal merit. Respondents, however, are directed to pay herein complainants their proportionate
13th month pay for the year 20026 [sic] as follows:

(1.) Rodel Lopez - ₱2,998.67


(2.) Felix Gavan - ₱2,998.67

SO ORDERED.7

The Labor Arbiter ruled that there is substantial evidence tending to establish that respondents committed the
misappropriation of their sales collections from the rolling store business. These acts constituted serious
misconduct and formed sufficient bases for loss of confidence which are just causes for termination. The records
also showed that respondents were given opportunities to explain their side. Both substantive and procedural due
processes were complied with, hence, the dismissal is valid. Petitioners, however, failed to prove that they paid
the proportionate amount of 13th month pay due to respondents at the time of their dismissal. Thus, the Labor
Arbiter ordered petitioners to pay respondents the same.

National Labor Relations Commission’s Ruling

On October 28, 2003, the NLRC rendered a Decision affirming the ruling of the Labor Arbiter, viz:

WHEREFORE, the appeal is DENIED. The Decision of the Labor Arbiter dated August 29, 2002 is AFFIRMED en
toto.

SO ORDERED.8

The NLRC agreed with the Labor Arbiter that respondents’ act of misappropriating company funds constitutes
gross misconduct resulting in loss of confidence. It noted that respondents never denied that (1) they failed to
surrender their collections to petitioners, and (2) they stopped reporting for work during the last week of October
2000. Further, respondents admitted misappropriating the subject collections before the hearing officer of the
Palawan labor office during the

conciliation conference on November 20, 2000. The NLRC also observed that the investigation on the
misappropriation of company funds was not a mere afterthought and complied with the twin-notice rule. Last, it
ruled that damages cannot be awarded in favor of respondents because their dismissal was for just causes.

Court of Appeal’s Ruling

The CA, in its June 2, 2005 Decision, affirmed with modification the ruling of the NLRC, viz:

WHEREFORE, in view of the foregoing, the Decision of the NLRC dated 29 August 20029 is hereby MODIFIEDin
that private respondents are ordered to pay petitioners nominal damages of ₱30,000.00 each. The decision is
affirmed in all other respect.

SO ORDERED.10

The appellate court held that it was bound by the factual findings of the NLRC because a petition for certiorari is
limited to issues of want or excess of jurisdiction, or grave abuse of discretion. Thus, the failure of respondents to
report for work and their misappropriation of company funds have become settled. These acts constitute grave
misconduct which is a valid cause for termination under Article 282 of the Labor Code.

While the dismissal was for just cause, the appellate court found, however, that respondents were denied
procedural due process. It held that the formal investigation of respondents for misappropriation of company funds
was a mere afterthought because it was conducted after petitioners had notice of the complaint filed before the
labor office in Palawan. In consonance with the ruling in Agabon v. National Labor Relations Commission,
11respondents are entitled to an award of

₱30,000.00 each as nominal damages for failure of petitioners to comply with the twin requirements of notice and
hearing before dismissing the respondents.

From this decision, only petitioners appealed.

Issues

Petitioners raise the following issues for our resolution:

1. Whether x x x the Court of Appeals erred in construing that the investigation held by petitioners is an
afterthought; and

2. Whether x x x the Court of Appeals erred in awarding the sum of ₱30,000.00 each to the respondents as
nominal damages.12

Petitioners’ Arguments

Petitioners contend that the investigation of respondents was not an afterthought. They stress the following
peculiar circumstances of this case: First, when the labor complaint was filed on November 3, 2000, respondents
had not yet been dismissed by petitioners. Rather, it was respondents who were guilty of not reporting for work;
Lopez starting on October 23, 2000 and Gavan on October 28, 2000. Second, at this time also, petitioners were
still in the process of collecting evidence on the alleged misappropriation of company funds after they received
reports of respondents’ fraudulent acts. Considering the distance between the towns serviced by respondents and
Puerto Princesa City, it took a couple of weeks for petitioners’ representative, Armel Bagasala (Bagasala), to
unearth the anomalies committed by respondents. Thus, it was only on November 18, 2000 when Bagasala
finished the investigation and submitted to petitioners the evidence establishing that respondents indeed
misappropriated company funds. Naturally, this was the only time when they could begin the formal investigation
of respondents wherein they followed the twin-notice rule and which led to the termination of respondents on
December 18, 2000 for gross misconduct and absence without leave for more than a month.

Petitioners lament that the filing of the labor complaint on November 3, 2000 was purposely sought by
respondents to pre-empt the results of the then ongoing investigation after respondents got wind that petitioners
were conducting said investigation because respondents were reassigned to a different sales area during the
period of investigation.

Respondents’ Arguments

Respondents counter that their abandonment of employment was a concocted story. No evidence was presented,
like the daily time record, to establish this claim. Further, the filing of the illegal dismissal complaint negates
abandonment. Assuming arguendo that respondents abandoned their work, no proof was presented that
petitioners’ served a notice of abandonment at respondents’ last known addresses as required by Section 2, Rule
XVI, Book V of the Omnibus Rules Implementing the Labor Code. According to respondents, on November 3,
2000, petitioners verbally advised them to look for another job because the company was allegedly suffering from
heavy losses. For this reason, they sought help from the Palawan labor office which recommended that they file a
labor complaint.

Respondents also contest the finding that they misappropriated company funds. They claim that the evidence is
insufficient to prove that they did not remit their sales collections to petitioners. Neither were the minutes of the
proceedings before the labor officer presented to prove that they admitted misappropriating the company funds.
Respondents add that they did not hold a position of trust and confidence. They claim that the criminal cases for
estafa against respondents were belatedly filed in order to further justify their dismissal from employment and act
as leverage relative to the subject labor case they filed against petitioners.

Our Ruling

The petition is meritorious.

When the requirements of procedural due process are satisfied, the award of nominal damages is improper.

At the outset, we note that respondents did not appeal from the decision of the CA which found that, as to the
issue of substantive due process, the dismissal was valid because it was based on just causes (i.e., grave
misconduct and loss of trust and confidence) due to respondents’ misappropriation of their sales collections. Thus,
the only proper issue for our determination, as raised in the instant petition, is whether respondents were denied
procedural due process justifying the award of nominal damages in accordance with the ruling in Agabon v.
National Labor Relations Commission.13

In termination proceedings of employees, procedural due process consists of the twin requirements of notice and
hearing. The employer must furnish the employee with two written notices before the termination of employment
can be effected: (1) the first apprises the employee of the particular acts or omissions for which his dismissal is
sought; and (2) the second informs the employee of the employer’s decision to dismiss him. The requirement of a
hearing is complied with as long as there was an opportunity to be heard, and not necessarily that an actual
hearing was conducted.14 As we explained in Perez v. Philippine Telegraph and Telephone Company:151avvphi1

An employee’s right to be heard in termination cases under Article 277 (b) as implemented by Section 2 (d), Rule I
of the Implementing Rules of Book VI of the Labor Code should be interpreted in broad strokes. It is satisfied not
only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against
him and to submit evidence in support thereof.

A hearing means that a party should be given a chance to adduce his evidence to support his side of the case and
that the evidence should be taken into account in the adjudication of the controversy. "To be heard" does not
mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations,
submissions or pleadings. Therefore, while the phrase "ample opportunity to be heard" [in Article 277 of the Labor
Code] may in fact include an actual hearing, it is not limited to a formal hearing only. In other words, the existence
of an actual, formal "trial-type" hearing, although preferred, is not absolutely necessary to satisfy the employee's
right to be heard.16

In the instant case, the appellate court ruled that there are two conflicting versions of the events and that, in a
petition for certiorari under Rule 65 of the Rules of Court, the courts are precluded from resolving factual issues.
Consequently, the factual findings of the Labor Arbiter, as affirmed by the NLRC, that petitioners stopped reporting
from work and misappropriated their sales collection are binding on the courts. However, the CA found that
respondents were denied their right to procedural due process because the investigation held by petitioners was
an afterthought considering that it was called after they had notice of the complaint filed before the labor office in
Palawan.17
Indeed, appellate courts accord the factual findings of the Labor Arbiter and the NLRC not only respect but also
finality when supported by substantial evidence.18 The Court does not substitute its own judgment for that of the
tribunal in determining where the weight of evidence lies or what evidence is credible. It is not for the Court to re-
examine conflicting evidence, re-evaluate the credibility of the witnesses nor substitute the findings of fact of an
administrative tribunal which has gained expertise in its specialized field.19

However, while we agree with the CA that the labor tribunal’s factual determinations can no longer be disturbed for
failure of respondents to show grave abuse of discretion on the part of the Labor Arbiter and NLRC, as in fact
respondents effectively accepted these findings by their failure to appeal from the decision of the CA, we find that
the appellate court misapprehended the import of these factual findings. For if it was duly established, as affirmed
by the appellate court itself, that respondents failed to report for work starting from October 22, 2000 for
respondent Lopez and October 28, 2000 for respondent Gavan,20 then at the time of the filing of the complaint
with the labor office on November 3, 2000, respondents were not yet dismissed from employment. Prior to this
point in time, there was, thus, no necessity to comply with the twin requirements of notice and hearing.

The mere fact that the notices were sent to respondents after the filing of the labor complaint does not, by itself,
establish that the same was a mere afterthought. The surrounding circumstances of this case adequately explain
why the requirements of procedural due process were satisfied only after the filing of the labor complaint.
Sometime in the third week of October 2000, petitioners received information that respondents were not remitting
their sales collections to the company. Thereafter, petitioners initiated an investigation by sending one of their
trusted salesmen, Bagasala, in the route being serviced by respondents. To prevent a possible cover up,
respondents were temporarily reassigned to a new route to service. Subsequently, respondents stopped reporting
for work (i.e., starting from October 22, 2000 for respondent Lopez and October 28, 2000 for respondent Gavan)
after they got wind of the fact that they were being investigated for misappropriation of their sales collection, and,
on November 3, 2000, respondents filed the subject illegal dismissal case to pre-empt the outcome of the ongoing
investigation. On November 18, 2000, Bagasala returned from his month-long investigation in the far-flung areas
previously serviced by respondents and reported that respondents indeed failed to remit ₱2,257.03 in sales
collections. As a result, on November 28, 2000, termination proceedings were commenced against respondents
by sending notices to explain with a notice of hearing scheduled on December 2, 2000. As narrated earlier,
respondents failed to give their side despite receipt of said notices. Petitioners sent another set of notices to
respondents on December 7, 2000 to attend a hearing on December 15, 2000 but respondents again refused to
attend. Thus, on December 18, 2000, petitioners served notices of termination on respondents for gross
misconduct in misappropriating their sales collections and absence without leave for more than a month.

As can be seen, under the peculiar circumstances of this case, it cannot be concluded that the sending of the
notices and setting of hearings were a mere afterthought because petitioners were still awaiting the report from
Bagasala when respondents pre-empted the results of the ongoing investigation by filing the subject labor
complaint. For this reason, there was sufficient compliance with the twin requirements of notice and hearing even
if the notices were sent and the hearing conducted after the filing of the labor complaint. Thus, the award of
nominal damages by the appellate court is improper.

WHEREFORE, the petition is GRANTED. The June 2, 2005 Decision and September 23, 2005 Resolution in CA-
G.R. SP. No. 83577 are REVERSED and SET ASIDE. The October 28, 2003 Decision of the National Labor
Relations Commission in NCR CA No. 034421-03 is REINSTATED and AFFIRMED.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 134625 August 31, 1999

UNIVERSITY OF THE PHILIPPINES BOARD OF REGENTS, CHANCELLOR ROGER POSADAS, DR.


EMERLINDA ROMAN, DEAN CONSUELO PAZ, DR. ISAGANI MEDINA, DR. MARIA SERENA DIOKNO, DR.
OLIVIA CAOILI, DR. FRANCISCO NEMENZO II, DEAN PACIFICO AGABIN, CARMELITA GUNO, and
MARICHU LAMBINO, petitioners, 

vs.

HON. COURT OF APPEALS and AROKIASWAMY WILLIAM MARGARET CELINE, respondents.

MENDOZA, J.:

For review before the Court is the decision of the Court of Appeals1 in CA-G.R. SP No. 42788, dated December
16, 1997, which granted private respondent's application for a writ of mandatory injunction, and its resolution,
dated July 13, 1998, denying petitioners' motion for reconsideration.

The antecedent facts are as follows:

Private respondent Arokiaswamy William Margaret Celine is a citizen of India and holder of a Philippine visitor's
visa. Sometime in April 1988, she enrolled in the doctoral program in Anthropology of the University of the
Philippines College of Social Sciences and Philosophy (CSSP) in Diliman, Quezon City.

After completing the units of course work required in her doctoral program, private respondent went on a two-year
leave of absence to work as Tamil Programme Producer of the Vatican Radio in the Vatican and as General Office
Assistant at the International Right to Life Federation in Rome. She returned to the Philippines in July 1991 to
work on her dissertation entitled, "Tamil Influences in Malaysia, Indonesia and the Philippines."

On December 22, 1992, Dr. Realidad S. Rolda, chairperson of the U.P. Department of Anthropology, wrote a letter
to Dr. Maria Serena Diokno, CSSP Associate Dean and Graduate Program Director, certifying that private
respondent had finished her dissertation and was ready for her oral defense. Dr. Rolda suggested that the oral
defense be held on January 6, 1993 but, in a letter, dated February 2, 1993, Dr. Serena Diokno rescheduled it on
February 5, 1993. Named as members of the dissertation panel were Drs. E. Arsenio Manuel, Serafin Quiason,
Sri Skandarajah, Noel Teodoro, and Isagani Medina, the last included as the dean's representative.1âwphi1.nêt

After going over private respondent's dissertation, Dr. Medina informed CSSP Dean Consuelo Joaquin-Paz that
there was a portion in private respondent's dissertation that was lifted, without proper acknowledgment, from
Balfour's Cyclopaedia of India and Eastern and Southern Asia (1967), volume I, pp. 392-401 (3 v., Edward Balfour
1885 reprint) and from John Edye's article entitled "Description of the Various Classes of Vessels Constructed and
Employed by the Natives of the Coasts of Coromandel, Malabar, and the Island of Ceylon for their Coasting
Navigation" in the Royal Asiatic Society of Great Britain and Ireland Journal, volume I, pp. 1-14 (1833).2

Nonetheless, private respondent was allowed to defend her dissertation on February 5, 1993. Four (4) out of the
five (5) panelists gave private respondent a passing mark for her oral defense by affixing their signatures on the
approval form. These were Drs. Manuel, Quiason, Skandarajah, and Teodoro. Dr. Quiason added the following
qualification to his signature:

Ms. Arokiaswamy must incorporate the suggestions I made during the successful defense of her P.D. thesis.3

Dr. Medina did not sign the approval form but added the following comment:

Pipirmahan ko ang pagsang-ayon/di pagsang-ayon kapag nakita ko na ang mga revisions ng dissertation.4

Dr. Teodoro added the following note to his signature:

Kailangang isagawa ang mga mahahalagang pagbabago at ipakita sa panel and bound copies.5

In a letter, dated March 5, 1993 and addressed to her thesis adviser, Dr. Manuel, private respondent requested a
meeting with the panel members, especially Dr. Medina, to discuss the amendments suggested by the panel
members during the oral defense. The meeting was held at the dean's office with Dean Paz, private respondent,
and a majority of the defense panel present.6 During the meeting, Dean Paz remarked that a majority vote of the
panel members was sufficient for a student to pass, notwithstanding the failure to obtain the consent of the Dean's
representative.

On March 24, 1993, the CSSP College Faculty Assembly approved private respondent's graduation pending
submission of final copies of her dissertation.

In April 1993, private respondent submitted copies of her supposedly revised dissertation to Drs. Manuel,
Skandarajah, and Quiason, who expressed their assent to the dissertation. Petitioners maintain, however, that
private respondent did not incorporate the revisions suggested by the panel members in the final copies of her
dissertation.

Private respondent left a copy of her dissertation in Dr. Teodoro's office April 15, 1993 and proceeded to submit
her dissertation to the CSSP without the approvals of Dr. Medina and Dr. Teodoro, relying on Dean Paz's March 5,
1993 statement.

Dr. Teodoro later indicated his disapproval, while Dr. Medina did not sign the approval form.7

Dean Paz then accepted private respondent's dissertation in partial fulfillment of the course requirements for the
doctorate degree in Anthropology.

In a letter to Dean Paz, dated April 17, 1993, private respondent expressed concern over matters related to her
dissertation. She sought to explain why the signature of Dr. Medina was not affixed to the revision approval form.
Private respondent said that since she already had the approval of a majority of the panel members, she no
longer showed her dissertation to Dr. Medina nor tried to obtain the latter's signature on the revision approval
form. She likewise expressed her disappointment over the CSSP administration and charged Drs. Diokno and
Medina with maliciously working for the disapproval of her dissertation, and further warned Dean Paz against
encouraging perfidious acts against her.

On April 17, 1993, the University Council met to approve the list of candidates for graduation for the second
semester of school year 1992-1993. The list, which was endorsed to the Board of Regents for final approval,
included private respondent's name.

On April 21, 1993, Dean Paz sent a letter to Dr. Milagros Ibe, Vice Chancellor for Academic Affairs, requesting the
exclusion of private respondent's name from the list of candidates for graduation, pending clarification of the
problems regarding her dissertation. Her letter reads:8

Abril 21, 1993

Dr. Milagros Ibe



Vice Chancellor for Academic Affairs

Unibersidad ng Pilipinas

Quezon Hall, Diliman, Q.C.

Mahal na Dr. Ibe,

Mahigpit ko pong hinihiling na huwag munang isama ang pangalan ni Ms. Arokiaswam[y] William Margaret Celine
sa listahan ng mga bibigyan ng degri na Ph.D. (Anthropology) ngayon[g] semester, dahil sa mga malubhang
bintang nya sa ilang myembro ng panel para sa oral defense ng disertasyon nya at sa mga akusasyon ng ilan sa
mga ito sa kanya.

Naniniwala po kami na dapat mailinaw muna ang ilang bagay bago makonfer ang degri kay Ms. Arokiaswam[y].
Kelangan po ito para mapangalagaan ang istandard ng pinakamataas na degree ng Unibersidad.

(Sgd.)

CONSUELO JOAQUIN-PAZ, Ph.D.



Dekano

Apparently, however, Dean Paz's letter did not reach the Board of Regents on time, because the next day, April
22, 1993, the Board approved the University Council's recommendation for the graduation of qualified students,
including private respondent. Two days later, April 24, 1993, private respondent graduated with the degree of
Doctor of Philosophy in Anthropology.

On the other hand, Dean Paz also wrote a letter to private respondent, dated April 21, 1993, that she would not be
granted an academic clearance unless she substantiated the accusations contained in her letter dated April 17,
1993.

In her letter, dated April 27, 1993, private respondent claimed that Dr. Medina's unfavorable attitude towards her
dissertation was a reaction to her failure to include him and Dr. Francisco in the list of panel members; that she
made the revisions proposed by Drs. Medina and Teodoro in the revised draft of her dissertation; and that Dr.
Diokno was guilty of harassment.

In a letter addressed to Dean Paz, dated May 1, 1993, Dr. Medina formally charged private respondent with
plagiarism and recommended that the doctorate granted to her be withdrawn.9

On May 13, 1993, Dean Paz formed an ad hoc committee, composed of faculty members from various disciplines
and chaired by Eva Duka-Ventura, to investigate the plagiarism charge against private respondent. Meanwhile,
she recommended to U.P. Diliman Chancellor, Dr. Emerlinda Roman, that the Ph.D. degree conferred on private
respondent be withdrawn.10

In a letter, dated June 7, 1993, Dean Paz informed private respondent of the charges against her.11
On June 15, 1993, the Ventura Committee submitted a report to Dean Paz, finding at least ninety (90) instances
or portions in private respondent's thesis which were lifted from sources without proper or due acknowledgment.

On July 28, 1993, the CSSP College Assembly unanimously approved the recommendation to withdraw private
respondent's doctorate degree and forwarded its recommendation to the University Council. The University
Council, in turn, approved and endorsed the same recommendation to the Board of Regents on August 16, 1993.

On September 6, 1993, the Board of Regents deferred action on the recommendation to study the legal
implications of its approval.12

Meanwhile, in a letter, dated September 23, 1993, U.P. Diliman Chancellor Emerlinda Roman summoned private
respondent to a meeting on the same day and asked her to submit her written explanation to the charges against
her.

During the meeting, Chancellor Roman informed private respondent of the charges and provided her a copy of the
findings of the investigating committee.13 Private respondent, on the other hand, submitted her written explanation
in a letter dated September 25, 1993.

Another meeting was held on October 8, 1993 between Chancellor Roman and private respondent to discuss her
answer to the charges. A third meeting was scheduled on October 27, 1993 but private respondent did not attend
it, alleging that the Board of Regents had already decided her case before she could be fully heard.

On October 11, 1993, private respondent wrote to Dr. Emil Q. Javier, U.P. President, alleging that some members
of the U.P. administration were playing politics in her case.14 She sent another letter, dated December 14, 1993, to
Dr. Armand Fabella, Chairman of the Board of Regents, complaining that she had not been afforded due process
and claiming that U.P. could no longer withdraw her degree since her dissertation had already been accepted by
the CSSP.15

Meanwhile, the U.P. Office of Legal Services justified the position of the University Council in its report to the
Board of Regents. The Board of Regents, in its February 1, 1994 and March 24, 1994 meetings, further deferred
action thereon.

On July 11, 1994, private respondent sent a letter to the Board of Regents requesting a re-investigation of her
case. She stressed that under the Rules and Regulations on Student Conduct and Discipline, it was the student
disciplinary tribunal which had jurisdiction to decide cases of dishonesty and that the withdrawal of a degree
already conferred was not one of the authorized penalties which the student disciplinary tribunal could impose.

On July 28, 1994, the Board of Regents decided to release private respondent's transcript of grades without
annotation although it showed that private respondent passed her dissertation with 12 units of credit.

On August 17, 1994, Chancellor Roger Posadas issued Administrative Order No. 94-94 constituting a special
committee composed of senior faculty members from the U.P. units outside Diliman to review the University
Council's recommendation to withdraw private respondent's degree. With the approval of the Board of Regents
and the U.P. Diliman Executive Committee, Posadas created a five-man committee, chaired by Dr. Paulino B.
Zafaralla, with members selected from a list of nominees screened by Dr. Emerenciana Arcellana, then a member
of the Board of Regents. On August 13, 1994, the members of the Zafaralla committee and private respondent
met at U.P. Los Baños.

Meanwhile, on August 23, 1994, the U.P. Diliman Registrar released to private respondent a copy of her transcript
of grades and certificate of graduation.

In a letter to Chancellor Posadas, dated September 1, 1994, private respondent requested that the Zafaralla
committee be provided with copies of the U.P. Charter (Act No. 1870), the U.P. Rules and Regulations on Student
Conduct and Discipline, her letter-response to Chancellor Roman, dated September 25, 1993, as well as all her
other communications.

On September 19, 1994, Chancellor Posadas obtained the Zafaralla Committee's report, signed by its chairman,
recommending the withdrawal of private respondent's doctorate degree. The report stated:16

After going through all the pertinent documents of the case and interviewing Ms. Arokiaswamy William, the
following facts were established:

1. There is overwhelming evidence of massive lifting from a published source word for word and, at times,
paragraph by paragraph without any acknowledgment of the source, even by a mere quotation mark. At least 22
counts of such documented liftings were identified by the Committee. These form part of the approximately ninety
(90) instances found by the Committee created by the Dean of the College and subsequently verified as correct
by the Special Committee. These instances involved the following forms of intellectual dishonesty: direct lifting/
copying without acknowledgment, full/partial lifting with improper documentation and substitution of terms or
words (e.g., Tamil in place of Sanskrit, Tamilization in place of Indianization) from an acknowledged source in
support of her thesis (attached herewith is a copy of the documents for reference); and

2. Ms. Arokiaswamy William herself admits of being guilty of the allegation of plagiarism. Fact is, she informed the
Special Committee that she had been admitting having lifted several portions in her dissertation from various
sources since the beginning.
In view of the overwhelming proof of massive lifting and also on the admission of Ms. Arokiaswamy William that
she indeed plagiarized, the Committee strongly supports the recommendation of the U.P. Diliman Council to
withdraw the doctoral degree of Ms. Margaret Celine Arokiaswamy William.

On the basis of the report, the University Council, on September 24, 1994, recommended to the Board of Regents
that private respondent be barred in the future from admission to the University either as a student or as an
employee.

On January 4, 1995, the secretary of the Board of Regents sent private respondent the following letter:17

4 January 1995

Ms. Margaret Celine Arokiaswamy William



Department of Anthropology

College of Social Sciences and Philosophy

U.P. Diliman, Quezon City

Dear Ms. Arokiaswamy William:

This is to officially inform you about the action taken by the Board of Regents at its 1081st and 1082nd meetings
held last 17 November and 16 December 1994 regarding your case, the excerpts from the minutes of which are
attached herewith.

Please be informed that the members present at the 1081st BOR meeting on 17 November 1994 resolved, by a
majority decision, to withdraw your Ph.D. degree as recommended by the U.P. Diliman University Council and as
concurred with by the External Review Panel composed of senior faculty from U.P. Los Baños and U.P. Manila.
These faculty members were chosen by lot from names submitted by the University Councils of U.P. Los Baños
and U.P. Manila.

In reply to your 14 December 1994 letter requesting that you be given a good lawyer by the Board, the Board, at
its 1082nd meeting on 16 December 1994, suggested that you direct your request to the Office of Legal Aid,
College of Law, U.P. Diliman.

Sincerely yours,

(Sgd.)

VIVENCIO R. JOSE

Secretary of the University

and of the Board of Regents

On January 18, 1995, private respondent wrote a letter to Commissioner Sedfrey Ordoñez, Chairman of the
Commission on Human Rights, asking the commission's intervention.18 In a letter, dated February 14, 1995, to
Secretary Ricardo Gloria, Chairman of the Board of Regents, she asked for a reinvestigation of her case. She also
sought an audience with the Board of Regents and/or the U.P. President, which request was denied by President
Javier, in a letter dated June 2, 1995.

On August 10, 1995, private respondent then filed a petition for mandamus with a prayer for a writ of preliminary
mandatory injunction and damages, which was docketed as Civil Case No. Q-95-24690 and assigned to Branch
81 of the Regional Trial Court of Quezon City.19 She alleged that petitioners had unlawfully withdrawn her degree
without justification and without affording her procedural due process. She prayed that petitioners be ordered to
restore her degree and to pay her P500,000.00 as moral and exemplary damages and P1,500,000.00 as
compensation for lost of earnings.

On August 6, 1996, the trial court, Branch 227, rendered a decision dismissing the petition for mandamus for lack
of merit.20 Private respondent appealed to the Court of Appeals, which on December 16, 1997, reversed the lower
court. The dispositive portion of the appellate court's decision reads:21

WHEREFORE, the decision of the court a quo is hereby reversed and set aside. Respondents are ordered to
restore to petitioner her degree of Ph.D. in Anthropology.

No pronouncement as to costs.

SO ORDERED.

Hence, this petition. Petitioners contend:

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN GRANTING THE WRIT OF MANDAMUS AND
ORDERING PETITIONERS TO RESTORE RESPONDENT'S DOCTORAL DEGREE.

II
THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN HOLDING THAT THE DOCTORAL DEGREE
GIVEN RESPONDENT BY U.P. CANNOT BE RECALLED WITHOUT VIOLATING HER RIGHT TO ENJOYMENT
OF INTELLECTUAL PROPERTY AND TO JUSTICE AND EQUITY.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW IN DEPRIVING PETITIONERS OF THEIR


RIGHT TO SUBSTANTIVE DUE PROCESS.22

Petitioners argue that private respondent failed to show that she had been unlawfully excluded from the use and
enjoyment of a right or office to which she is entitled so as to justify the issuance of the writ of mandamus. They
also contend that she failed to prove that the restoration of her degree is a ministerial duty of U.P. or that the
withdrawal of the degree violated her right to the enjoyment of intellectual property.

On the other hand, private respondent, unassisted by counsel, argue that petitioners acted arbitrarily and with
grave abuse of discretion in withdrawing her degree even prior to verifying the truth of the plagiarism charge
against her; and that as her answer to the charges had not been forwarded to the members of the investigating
committees, she was deprived of the opportunity to comment or refute their findings.

In addition, private respondent maintains that petitioners are estopped from, withdrawing her doctorate degree;
that petitioners acted contrary to §9 of the U.P. Charter and the U.P. Rules and Regulations of Student Conduct
and Discipline of the University, which according to her, does not authorize the withdrawal of a degree as a
penalty for erring students; and that only the college committee or the student disciplinary tribunal may decide
disciplinary cases, whose report must be signed by a majority of its members.

We find petitioners' contention to be meritorious.

Mandamus is a writ commanding a tribunal, corporation, board or person to do the act required to be done when it
or he unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which
such other is entitled, there being no other plain, speedy, and adequate remedy in the ordinary course of law.
23In University of the Philippines Board of Regents v. Ligot-Telan,24 this Court ruled that the writ was not available

to restrain U.P. from the exercise of its academic freedom. In that case, a student who was found guilty of
dishonesty and ordered suspended for one year by the Board of Regents, filed a petition for mandamus and
obtained from the lower court a temporary restraining order stopping U.P. from carrying out the order of
suspension. In setting aside the TRO and ordering the lower court to dismiss the student's petition, this Court said:

[T]he lower court gravely abused its discretion in issuing the writ of preliminary injunction of May 29, 1993. The
issuance of the said writ was based on the lower court's finding that the implementation of the disciplinary
sanction of suspension on Nadal "would work injustice to the petitioner as it would delay him in finishing his
course, and consequently, in getting a decent and good paying job." Sadly, such a ruling considers only the
situation of Nadal without taking into account the circumstances, clearly of his own making, which led him into
such a predicament. More importantly, it has completely disregarded the overriding issue of academic freedom
which provides more than ample justification for the imposition of a disciplinary sanction upon an erring student of
an institution of higher learning.

From the foregoing arguments, it is clear that the lower court should have restrained itself from assuming
jurisdiction over the petition filed by Nadal. Mandamus is never issued in doubtful cases, a showing of a clear and
certain right on the part of the petitioner being required. It is of no avail against an official or government agency
whose duty requires the exercise of discretion or judgment.25

In this case, the trial court dismissed private respondent's petition precisely on grounds of academic freedom but
the Court of Appeals reversed holding that private respondent was denied due process. It said:

It is worthy to note that during the proceedings taken by the College Assembly culminating in its recommendation
to the University Council for the withdrawal of petitioner's Ph.D. degree, petitioner was not given the chance to be
heard until after the withdrawal of the degree was consummated. Petitioner's subsequent letters to the U.P.
President proved unavailing.26

As the foregoing narration of facts in this case shows, however, various committees had been formed to
investigate the charge that private respondent had committed plagiarism and, in all the investigations held, she
was heard in her defense. Indeed, if any criticism may be made of the university proceedings before private
respondent was finally stripped of her degree, it is that there were too many committee and individual
investigations conducted, although all resulted in a finding that private respondent committed dishonesty in
submitting her doctoral dissertation on the basis of which she was conferred the Ph.D. degree.

Indeed, in administrative proceedings, the essence of due process is simply the opportunity to explain one's side
of a controversy or a chance seek reconsideration of the action or ruling complained of.27 A party who has availed
of the opportunity to present his position cannot tenably claim to have been denied due process.28

In this case, private respondent was informed in writing of the charges against her29 and afforded opportunities to
refute them. She was asked to submit her written explanation, which she forwarded on September 25,
1993.30Private respondent then met with the U.P. chancellor and the members of the Zafaralla committee to
discuss her case. In addition, she sent several letters to the U.P. authorities explaining her position.31
It is not tenable for private respondent to argue that she was entitled to have an audience before the Board of
Regents. Due process in an administrative context does not require trial-type proceedings similar to those in the
courts of justice.32 It is noteworthy that the U.P. Rules do not require the attendance of persons whose cases are
included as items on the agenda of the Board of Regents.33

Nor indeed was private respondent entitled to be furnished a copy of the report of the Zafaralla committee as part
of her right to due process. In Ateneo de Manila University v. Capulong,34 we held:

Respondent students may not use the argument that since they were not accorded the opportunity to see and
examine the written statements which became the basis of petitioners' February 14, 1991 order, they were denied
procedural due process. Granting that they were denied such opportunity, the same may not be said to detract
from the observance of due process, for disciplinary cases involving students need not necessarily include the
right to cross examination. An administrative proceeding conducted to investigate students' participation in a
hazing activity need not be clothed with the attributes of a judicial proceeding. . .

In this case, in granting the writ of mandamus, the Court of Appeals held:

First. Petitioner graduated from the U.P. with a doctorate degree in Anthropology. After graduation, the contact
between U.P. and petitioner ceased. Petitioner is no longer within the ambit of the disciplinary powers of the U.P.
As a graduate, she is entitled to the right and enjoyment of the degree she has earned. To recall the degree, after
conferment, is not only arbitrary, unreasonable, and an act of abuse, but a flagrant violation of petitioner's right of
enjoyment to intellectual property.

Second. Respondents aver that petitioner's graduation was a mistake.

Unfortunately this "mistake" was arrived at after almost a year after graduation. Considering that the members of
the thesis panel, the College Faculty Assembly, and the U.P. Council are all men and women of the highest
intellectual acumen and integrity, as respondents themselves aver, suspicion is aroused that the alleged "mistake"
might not be the cause of withdrawal but some other hidden agenda which respondents do not wish to reveal.

At any rate, We cannot countenance the plight the petitioner finds herself enmeshed in as a consequence of the
acts complained of. Justice and equity demand that this be rectified by restoring the degree conferred to her after
her compliance with the academic and other related requirements.

Art. XIV, §5 (2) of the Constitution provides that "[a]cademic freedom shall be enjoyed in all institutions of higher
learning." This is nothing new. The 1935 Constitution35 and the 1973 Constitution36 likewise provided for the
academic freedom or, more precisely, for the institutional autonomy of universities and institutions of higher
learning. As pointed out by this Court in Garcia vs. Faculty Admission Committee, Loyola School of Theology,37it
is a freedom granted to "institutions of higher learning" which is thus given "a wide sphere of authority certainly
extending to the choice of the students." If such institution of higher learning can decide who can and who cannot
study in it, it certainly can also determine on whom it can confer the honor and distinction of being its graduates.

Where it is shown that the conferment of an honor or distinction was obtained through fraud, a university has the
right to revoke or withdraw the honor or distinction it has thus conferred. This freedom of a university does not
terminate upon the "graduation" of a student, as the Court of Appeals held. For it is precisely the "graduation" of
such a student that is in question. It is noteworthy that the investigation of private respondent's case began before
her graduation. If she was able to join the graduation ceremonies on April 24, 1993, it was because of too many
investigations conducted before the Board of Regents finally decided she should not have been allowed to
graduate.

Wide indeed is the sphere of autonomy granted to institutions of higher learning, for the constitutional grant of
academic freedom, to quote again from Garcia v. Faculty Admission Committee, Loyola School of Theology, "is
not to be construed in a niggardly manner or in a grudging fashion."

Under the U.P. Charter, the Board of Regents is the highest governing body of the University of the Philippines.38It
has the power confer degrees upon the recommendation of the University Council.39 If follows that if the
conferment of a degree is founded on error or fraud, the Board of Regents is also empowered, subject to the
observance of due process, to withdraw what it has granted without violating a student's rights. An institution of
higher learning cannot be powerless if it discovers that an academic degree it has conferred is not rightfully
deserved. Nothing can be more objectionable than bestowing a university's highest academic degree upon an
individual who has obtained the same through fraud or deceit. The pursuit of academic excellence is the
university's concern. It should be empowered, as an act of self-defense, to take measures to protect itself from
serious threats to its integrity.

While it is true that the students are entitled to the right to pursue their educaiton, the USC as an educational
institution is also entitled to pursue its academic freedom and in the process has the concomitant right to see to it
that this freedom is not jeopardized.40

In the case at bar, the Board of Regents determined, after due investigation conducted by a committee composed
of faculty members from different U.P. units, that private respondent committed no less than ninety (90) instances
of intellectual dishonesty in her dissertation. The Board of Regents' decision to withdraw private respondent's
doctorate was based on documents on record including her admission that she committed the offense.41
On the other hand, private respondent was afforded the opportunity to be heard and explain her side but failed to
refute the charges of plagiarism against her. Her only claim is that her responses to the charges against her were
not considered by the Board of Regents before it rendered its decision. However, this claim was not proven.
Accordingly, we must presume regularity in the performance of official duties in the absence of proof to the
contrary.42

Very much the opposite of the position of the Court of Appeals that, since private respondent was no longer a
student of the U.P., the latter was no longer within the "ambit of disciplinary powers of the U.P.," is private
respondent's contention that it is the Student Disciplinary Tribunal which had jurisdiction over her case because
the charge is dishonesty. Private respondent invoke §5 of the U.P. Rules and Regulations on Student Conduct
and Discipline which provides:

Jurisdiction. — All cases involving discipline of students under these rules shall be subject to the jurisdiction of the
student disciplinary tribunal, except the following cases which shall fall under the jurisdiction of the appropriate
college or unit;

(a) Violation of college or unit rules and regulations by students of the college, or

(b) Misconduct committed by students of the college or unit within its classrooms or premises or in the course of
an official activity;

Provided, that regional units of the University shall have original jurisdiction over all cases involving students of
such units.

Private respondent argues that under §25 (a) of the said Rules and Regulations, dishonesty in relation to one's
studies (i.e., plagiarism) may be punished only with suspension for at least one (1) year.

As the above-quoted provision of §5 of the Rules and Regulations indicates, the jurisdiction of the student
disciplinary tribunal extend only to disciplinary actions. In this case, U.P. does not seek to discipline private
respondent. Indeed, as the appellate court observed, private respondent is no longer within "the ambit of
disciplinary powers of the U.P." Private respondent cannot even be punished since, as she claims, the penalty for
acts of dishonesty in administrative disciplinary proceedings is suspension from the University for at least one
year. What U.P., through the Board of Regents, seeks to do is to protect its academic integrity by withdrawing from
private respondent an academic degree she obtained through fraud.

WHEREFORE, the decision of the Court of Appeals is hereby REVERSED and the petition for mandamus is
hereby DISMISSED.1âwphi1.nêt

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 169391 October 10, 2012

GO, and Minor EMERSON CHESTER KIM B. GO, Petitioners, 



vs.

COLEGIO DE SAN JUAN DE LETRAN, REV. FR. EDWIN LAO, REV. FR. JOSE RHOMMEL HERNANDEZ,
ALBERT ROSARDA and MA. TERESA SURATOS, Respondents.

DECISION

BRION, J.:

Before the Court is a petition for review on certiorari1 assailing the Decision2 dated May 27, 2005 and the
resolution3 dated August 18, 2005 of the Court of Appeals (CA) in CA-G.R. CV No. 80349. The CA decision
reversed and set aside the decision4 of the Regional Trial Court (RTC') of Caloocan City, Branch 131, awarding
civil damages to the petitioners. The CA resolution denied the petitioners' subsequent motion for reconsideration.

The petitioners claim that respondents Colegio de San Juan de Letran (Letran), Rev. Fr. Edwin Lao, Rev. Fr. Jose
Rhommel Hernandez, Mr. Albert Rosarda and Ma. Teresa Suratos should be held liable for moral, exemplary, and
actual damages for unlawfully dismissing petitioner Emerson Chester Kim B. Go (Kim) from the rolls of the high
school department of Letran. The respondents claim that they lawfully suspended Kim for violating the school’s
rule against fraternity membership.

Factual Background

In October 2001, Mr. George Isleta, the Head of Letran’s Auxiliary Services Department, received information that
certain fraternities were recruiting new members among Letran’s high school students. He also received a list of
the students allegedly involved. School authorities started an investigation, including the conduct of medical
examinations on the students whose names were on the list. On November 20, 2002, Dr. Emmanuel Asuncion,
the school physician, reported that six (6) students bore injuries, probable signs of blunt trauma of more than two
weeks, on the posterior portions of their thighs.5 Mr. Rosarda, the Assistant Prefect for Discipline, conferred with
the students and asked for their explanations in writing.

Four (4) students, namely: Raphael Jay Fulgencio, Nicolai Lacson, Carlos Parilla, and Isaac Gumba, admitted that
they were neophytes of the Tau Gamma Fraternity and were present in a hazing rite held on October 3, 2001 in
the house of one Dulce in Tondo, Manila. They also identified the senior members of the fraternity present at their
hazing. These included Kim, then a fourth year high school student.

In the meantime, Gerardo Manipon, Letran’s security officer, prepared an incident report6 that the Tau Gamma
Fraternity had violated its covenant with Letran by recruiting members from its high school department. Manipol
had spoken to one of the fraternity neophytes and obtained a list of eighteen (18) members of the fraternity
currently enrolled at the high school department. Kim’s name was also in the list.

At the Parents-Teachers Conference held on November 23, 2001, Mr. Rosarda informed Kim’s mother, petitioner
Mrs. Angelita Go (Mrs. Go), that students had positively identified Kim as a fraternity member. Mrs. Go expressed
disbelief as her son was supposedly under his parents’ constant supervision.

Mr. Rosarda thereafter spoke to Kim and asked him to explain his side. Kim responded through a written
statement dated December 19, 2001; he denied that he was a fraternity member. He stated that at that time, he
was at Dulce’s house to pick up a gift, and did not attend the hazing of Rafael, Nicolai, Carlos, and Isaac.

On the same day, Mr. Rosarda requested Kim’s parents (by notice) to attend a conference on January 8, 2002 to
address the issue of Kim’s fraternity membership.7 Both Mrs. Go and petitioner Mr. Eugene Go (Mr. Go) did not
attend the conference.

In time, the respondents found that twenty-nine (29) of their students, including Kim, were fraternity members. The
respondents found substantial basis in the neophytes’ statements that Kim was a senior fraternity member. Based
on their disciplinary rules, the Father Prefect for Discipline (respondent Rev. Fr. Jose Rhommel Hernandez)
recommended the fraternity members’ dismissal from the high school department rolls; incidentally, this sanction
was stated in a January 10, 2002 letter to Mr. and Mrs. Go.8 After a meeting with the Rector’s Council,9 however,
respondent Fr. Edwin Lao, Father Rector and President of Letran, rejected the recommendation to allow the fourth
year students to graduate from Letran. Students who were not in their fourth year were allowed to finish the
current school year but were barred from subsequent enrollment in Letran.

Mr. Rosarda conveyed to Mrs. Go and Kim, in their conference on January 15, 2002, the decision to suspend Kim
from January 16, 2002 to February 18, 2002.10 Incidentally, Mr. Go did not attend this conference.11

On even date, Mrs. Go submitted a request for the deferment of Kim’s suspension to January 21, 200212 so that
he could take a previously scheduled examination.13 The request was granted.14
On January 22, 2002, the respondents conferred with the parents of the sanctioned fourth year students to
discuss the extension classes the students would take (as arranged by the respondents) as make-up for classes
missed during their suspension. These extension classes would enable the students to meet all academic
requirements for graduation from high school by the summer of 2002. The respondents also proposed that the
students and their parents sign a pro-forma agreement to signify their conformity with their suspension. Mr. and
Mrs. Go refused to sign.15 They also refused to accept the respondents’ finding that Kim was a fraternity member.
They likewise insisted that due process had not been observed.

On January 28, 2002, the petitioners filed a complaint16 for damages before the RTC of Caloocan City claiming
that the respondents17 had unlawfully dismissed Kim.18 Mr. and Mrs. Go also sought compensation for the
"business opportunity losses" they suffered while personally attending to Kim’s disciplinary case.

The Ruling of the RTC

Mrs. Go19 and Mr. Go20 testified for the petitioners at the trial. Mr. Rosarda,21 Fr. Hernandez,22 and Fr.
Lao23 testified for the respondents.

The RTC24 held that the respondents had failed to observe "the basic requirement of due process" and that their
evidence was "utterly insufficient" to prove that Kim was a fraternity member.25 It also declared that Letran had no
authority to dismiss students for their fraternity membership. Accordingly, it awarded the petitioners moral and
exemplary damages. The trial court also held that Mr. Go was entitled to actual damages after finding that he had
neglected his manufacturing business when he personally attended to his son’s disciplinary case. The dispositive
portion of the decision reads:

WHEREFORE, in view of all the foregoing, the Court renders judgment in favor of plaintiffs-spouses Eugene C.
Go and Angelita B. Go, together with their minor son Emerson Chester Kim B. Go, as against defendants Colegio
De San Juan De Letran, Fr. Edwin Lao, Fr. Jose Rhommel Hernandez, Albert Rosarda and Ma. Teresa Suratos,
and they are hereby ordered the following:

1. To pay plaintiff Eugene C. Go the amount of ₱ 2,854,000.00 as actual damages;

2. To pay each plaintiff, Eugene C. Go and Angelita B. Go, the amount of ₱ 2,000,000.00 for each defendant, or a
total amount of ₱ 20,000,000.00 as moral damages; and ₱ 1,000,000.00 for each defendant, or a total amount of
₱ 10,000,000.00 as exemplary damages, or a grand total of ₱ 30,000,000.00, to be paid solidarily by all liable
defendants, plus prevailing legal interest thereon from the date of filing until the same is fully paid;

3. To pay plaintiffs 20% of the total amount awarded, as attorney’s fees, to be paid solidarily by all liable
defendants; and

4. The cost of suit.26

The Ruling of the CA

On appeal, the CA reversed and set aside the RTC decision. It held, among others, that the petitioners were not
denied due process as the petitioners had been given ample opportunity to be heard in Kim’s disciplinary case.
The CA also found that there was no bad faith, malice, fraud, nor any improper and willful motive or conduct on
the part of the respondents to justify the award of damages. Accordingly, it dismissed the petitioners’ complaint in
Civil Case No. C-19938 for lack of merit.

The petitioners moved for the reconsideration of the decision, but the CA denied the motion for lack of merit;
27 hence, the present petition for review on certiorari.

The Issue

Based on the petition’s assigned errors,28 the issue for our resolution is whether the CA had erred in setting aside
the decision of the RTC in Civil Case No. C-19938.

The Court’s Ruling

We deny the petition and affirm the CA decision.

Preliminarily, we note that the disciplinary sanction the respondents imposed on Kim was actually a suspension
and not a "dismissal" as the petitioners insist in their complaint. We agree with the CA that the petitioners were
well aware of this fact, as Mrs. Go’s letter specifically requested that Kim’s suspension be deferred. That this
request was granted and that Kim was allowed to take the examination further support the conclusion that Kim
had not been dismissed.

Further, the RTC’s statement that Letran, a private school, possesses no authority to impose a dismissal, or any
disciplinary action for that matter, on students who violate its policy against fraternity membership must be
corrected. The RTC reasoned out that Order No. 20, series of 1991, of the then Department of Education, Culture,
and Sports (DECS Order No. 20, s. 1991),29 which the respondents cite as legal basis for Letran’s policy, only
covered public high schools and not private high schools such as Letran.
We disagree with the RTC’s reasoning because it is a restrictive interpretation of DECS Order No. 20, s. 1991.
True, the fourth paragraph of the order states:

4. EFFECTIVE UPON RECEIPT OF THIS ORDER, FRATERNITIES AND SORORITIES ARE PROHIBITED IN
PUBLIC ELEMENTARY AND SECONDARY SCHOOLS. PENALTY FOR NON-COMPLIANCE IS EXPULSION OF
PUPILS/STUDENTS.

This paragraph seems to limit the scope of the order’s prohibition to public elementary and secondary schools.
However, in ascertaining the meaning of DECS Order No. 20, s. 1991, the entire order must be taken as a whole.
30 It should be read, not in isolated parts, but with reference to every other part and every word and phrase in

connection with its context.31

Even a cursory perusal of the rest of DECS Order No. 20, s. 1991 reveals the education department’s clear intent
to apply the prohibition against fraternity membership for all elementary and high school students, regardless of
their school of enrollment.

The order’s title, "Prohibition of Fraternities and Sororities in Elementary and Secondary Schools," serves to clarify
whatever ambiguity may arise from its fourth paragraph.32 It is a straightforward title. It directs the prohibition to
elementary and secondary schools in general, and does not distinguish between private and public schools. We
also look at the order’s second paragraph, whereby the department faults an earlier regulation, Department Order
No. 6, series of 1954, for failing to ban fraternities and sororities in public and private secondary schools. With the
second paragraph, it is clear that the education department sought to remedy the earlier order’s failing by way of
DECS Order No. 20, s. 1991.

Finally, we note that the order is addressed to the heads of private schools, colleges, and universities, and not just
to the public school authorities.

For this Court to sustain the RTC’s restrictive interpretation and accordingly limit the prohibition in DECS Order
No. 20, s. 1991 to students enrolled in public schools would be to impede the very purpose of the order.
33 In United Harbor Pilots’ Association of the Philippines, Inc. v. Association of International Shipping Lines, Inc.,

where the Court construed an executive order,34 we also stated that statutes are to be given such construction as
would advance the object, suppress the mischief, and secure the benefits the statute intended. There is no reason
why this principle cannot apply to the construction of DECS Order No. 20, s. 1991.

Incidentally, the penalty for non-compliance with DECS Order No. 20, s. 1991, is expulsion, a severe form of
disciplinary penalty consisting of excluding a student from admission to any public or private school in the country.
It requires the approval of the education secretary before it can be imposed.35 In contrast, the penalty prescribed
by the rules of Letran for fraternity membership among their high school students is dismissal, which is limited to
the exclusion of an erring student from the rolls of the school.

Even assuming arguendo that the education department had not issued such prohibition, private schools still have
the authority to promulgate and enforce a similar prohibition pursuant to their right to establish disciplinary rules
and regulations.36 This right has been recognized in the Manual of Regulations for Private Schools, which has the
character of law.37 Section 78 of the 1992 Manual of Regulations of Regulations for Private Schools, in particular
and with relevance to this case, provides:

Section 78. Authority to Promulgate Disciplinary Rules. Every private school shall have the right to promulgate
reasonable norms, rules and regulations it may deem necessary and consistent with the provisions of this Manual
for the maintenance of good school discipline and class attendance. Such rules and regulations shall be effective
as of promulgation and notification to students in an appropriate school issuance or publication.

The right to establish disciplinary rules is consistent with the mandate in the Constitution38 for schools to teach
discipline;39 in fact, schools have the duty to develop discipline in students.40 Corollarily, the Court has always
recognized the right of schools to impose disciplinary sanctions on students who violate disciplinary rules.41 The
penalty for violations includes dismissal or exclusion from re-enrollment.

We find Letran’s rule prohibiting its high school students from joining fraternities to be a reasonable regulation, not
only because of the reasons stated in DECS Order No. 20, s. 1991,42 but also because of the adult-oriented
activities often associated with fraternities. Expectedly, most, if not all, of its high school students are minors.
Besides, Letran’s penalty for violation of the rule is clearly stated in its enrollment contracts and in the Students
Handbooks43 it distributes at the start of every school year.44

In this case, the petitioners were notified of both rule and penalty through Kim’s enrollment contract for school
year 2001 to 2002.45 Notably, the penalty provided for fraternity membership is "summary dismissal." We also note
that Mrs. Go signified her conformé to these terms with her signature in the contract.46 No reason, therefore, exist
to justify the trial court’s position that respondent Letran cannot lawfully dismiss violating students, such as Kim.

On the issue of due process, the petitioners insist that the question be resolved under the guidelines for
administrative due process in Ang Tibay v. Court of Industrial Relations.47 They argue that the respondents
violated due process (a) by not conducting a formal inquiry into the charge against Kim; (b) by not giving them any
written notice of the charge; and (c) by not providing them with the opportunity to cross-examine the neophytes
who had positively identified Kim as a senior member of their fraternity. The petitioners also fault the respondents
for not showing them the neophytes’ written statements, which they claim to be unverified, unsworn, and hearsay.
These arguments deserve scant attention.

In Ateneo de Manila University v. Capulong,48 the Court held that Guzman v. National University,49 not Ang
Tibay, is the authority on the procedural rights of students in disciplinary cases. In Guzman, we laid down the
minimum standards in the imposition of disciplinary sanctions in academic institutions, as follows:

It bears stressing that due process in disciplinary cases involving students does not entail proceedings and
hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student
discipline cases may be summary; and crossexamination is not, contrary to petitioners’ view, an essential part
thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due
process; and these are, that (1) the students must be informed in writing of the nature and cause of any
accusation against them; (2) they shall have the right to answer the charges against them, with the assistance of
counsel, if desired; (3) they shall be informed of the evidence against them; (4) they shall have the right to adduce
evidence in their own behalf; and (5) the evidence must be duly considered by the investigating committee or
official designated by the school authorities to hear and decide the case.50

These standards render the petitioners’ arguments totally without merit.

In De La Salle University, Inc. v. Court of Appeals,51 where we affirmed the petitioning university’s right to exclude
students from the rolls of their respective schools52 for their involvement in a fraternity mauling incident, we
rejected the argument that there is a denial of due process when students are not allowed to cross-examine the
witnesses against them in school disciplinary proceedings. We reject the same argument in this case.

We are likewise not moved by the petitioners’ argument that they were not given the opportunity to examine the
neophytes’ written statements and the security officer’s incident report.53 These documents are admissible in
school disciplinary proceedings, and may amount to substantial evidence to support a decision in these
proceedings. In Ateneo de Manila University v. Capulong,54 where the private respondents were students
dismissed from their law school after participating in hazing activities, we held:

Respondent students may not use the argument that since they were not accorded the opportunity to see and
examine the written statements which became the basis of petitioners’ February 14, 1991 order, they were
denied procedural due process. Granting that they were denied such opportunity, the same may not be said to
detract from the observance of due process, for disciplinary cases involving students need not necessarily include
the right to cross examination. [Emphasis ours.]55

Since disciplinary proceedings may be summary, the insistence that a "formal inquiry" on the accusation against
Kim should have been conducted lacks legal basis. It has no factual basis as well. While the petitioners state that
Mr. and Mrs. Go were "never given an opportunity to assist Kim,"56 the records show that the respondents gave
them two (2) notices, dated December 19, 2001 and January 8, 2002, for conferences on January 8, 2002 and
January 15, 2002.57 The notices clearly state: "Dear Mr./Mrs. Go, We would like to seek your help in correcting
Kim’s problem on: Discipline & Conduct Offense: Membership in Fraternity."58 Thus, the respondents had given
them ample opportunity to assist their son in his disciplinary case.

The records also show that, without any explanation, both parents failed to attend the January 8, 2002 conference
while Mr. Go did not bother to go to the January 15, 2002 conference. "Where a party was afforded an opportunity
to participate in the proceedings but failed to do so, he cannot [thereafter] complain of deprivation of due
process."59

Through the notices, the respondents duly informed the petitioners in writing that Kim had a disciplinary charge for
fraternity membership. At the earlier November 23, 2001 Parents-Teachers Conference, Mr. Rosarda also
informed Mrs. Go that the charge stemmed from the fraternity neophytes’ positive identification of Kim as a
member; thus the petitioners fully knew of the nature of the evidence that stood against Kim.

The petitioners nevertheless argue that the respondents defectively observed the written notice rule because they
had requested, and received, Kim’s written explanation at a time when the respondents had not yet issued the
written notice of the accusation against him. The records indicate that while Kim’s denial and the first notice were
both dated December 19, 2001, Kim had not yet received the notice at the time he made the requested written
explanation.

We see no merit in this argument as the petitioners apparently hew to an erroneous view of administrative due
process. Jurisprudence has clarified that administrative due process cannot be fully equated with due process in
the strict judicial sense.60 The very nature of due process negates any concept of inflexible procedures universally
applicable to every imaginable situation.61 Thus, we are hard pressed to believe that Kim’s denial of his fraternity
membership before formal notice was given worked against his interest in the disciplinary case. What matters for
due process purpose is notice of what is to be explained, not the form in which the notice is given.

The raison d’etre of the written notice rule is to inform the student of the disciplinary charge against him and to
enable him to suitably prepare a defense. The records show that as early as November 23, 2001, it was already
made plain to the petitioners that the subject matter of the case against Kim was his alleged fraternity
membership. Thus, by the time Mr. Rosarda spoke to Kim and asked for his written explanation in December
2001, Kim has had enough time to prepare his response to this plain charge. We also note that the information in
the notice the respondents subsequently sent is no different from the information that they had earlier conveyed,
albeit orally, to the petitioners: the simple unadorned statement that Kim stood accused of fraternity membership.
Given these circumstances, we are not convinced that Kim’s right to explain his side as exercised in his written
denial had been violated or diminished. The essence of due process, it bears repeating, is simply the opportunity
to be heard.62

And Kim had been heard. His written explanation was received, indeed even solicited, by the respondents.
1âwphi1Thus, he cannot claim that he was denied the right to adduce evidence in his behalf. In fact, the
petitioners were given further opportunity to produce additional evidence with the January 8, 2002 conference that
they did not attend. We are also satisfied that the respondents had considered all the pieces of evidence and
found these to be substantial. We note especially that the petitioners never imputed any motive on Kim’s co-
students that would justify the claim that they uttered falsehood against him.

In Licup v. San Carlos University,63 the Court held that when a student commits a serious breach of discipline or
fails to maintain the required academic standard, he forfeits his contractual right, and the court should not review
the discretion of university authorities.64 In San Sebastian College v. Court of Appeals, et al.,65 we held that only
when there is marked arbitrariness should the court interfere with the academic judgment of the school faculty and
the proper authorities.66 In this case, we find that the respondents observed due process in Kim’s disciplinary
case, consistent with our pronouncements in Guzman. No reason exists why the above principles in these cited
cases cannot apply to this case. The respondents’ decision that Kim had violated a disciplinary rule and should be
sanctioned must be respected.

As a final point, the CA correctly held that there were no further bases to hold the respondents liable for moral or
exemplary damages. Our study of the records confirms that the respondents did not act with bad faith, malice,
fraud, or improper or willful motive or conduct in disciplining Kim. Moreover, we find no basis for the award of
actual damages. The petitioners claim, and the RTC agreed,67 that the respondents are liable for the business
opportunity losses the petitioners incurred after their clients had cancelled their purchases in their plastic-
manufacturing business. To prove the claim, Mr. Go testified that he neglected his business affairs because he
had his attention on Kim's unlawful dismissal, and that his clients had subsequently cancelled their purchase
orders when he could not confirm them.68 His testimony on the reason for the clients' cancellation, however, is
obviously hearsay and remains speculative. The respondents' liability for actual damages cannot be based on
speculation.

For these reasons, we find no reversible error Ill the assailed ('A decision, and accordingly, DENY the present
petition.

WHEREFORE, premises considered, we hereby AFFIRM the decision dated May 271 2005 of the Court of
Appeals in CA-G.R. CV No. 80349.

Costs against the petitioners.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

EN BANC

G.R. No. 127838 January 21, 1999

CIVIL SERVICE COMMISSION, petitioner, 



vs.

JOSE J. LUCAS, respondent.

PARDO, J.:

The petition for review on certiorari before the Court assails the decision of the Court of Appeals1 which set aside
the resolution of the Civil Service Commission2 and reinstated that of the Board of Personnel Inquiry (BOPI for
brevity), Office of the Secretary, Department of Agriculture,3 suspending respondent for one month, for simple
misconduct.

To provide a factual backdrop of the case, a recital of the facts is necessary.

On May 26, 1992, Raquel P. Linatok, an assistant information officer at the Agricultural Information Division,
Department of Agriculture (DA for brevity), filed with the office of the Secretary, DA, an affidavit-complaint against
respondent Jose J. Lucas, a photographer of the same agency, for misconduct.

Raquel described the incident in the following manner:

While standing before a mirror, near the office door of Jose J. Lucas, Raquel noticed a chair at her right side
which Mr. Jose Lucas, at that very instant used to sit upon. Thereafter, Mr. Lucas bent to reach for his shoe. At
that moment she felt Mr. Lucas' hand touching her thigh and running down his palm up to her ankle. She was
shocked and suddenly faced Mr. Lucas and admonished him not to do it again or she will kick him. But Lucas
touched her again and so she hit Mr. Lucas. Suddenly Mr. Lucas shouted at her saying "lumabas ka na at huwag
na huwag ka nang papasok dito kahit kailan" A verbal exchange then ensued and respondent Lucas grabbed
Raquel by the arm and shoved her towards the door causing her to stumble, her both hands protected her face
from smashing upon the door.

Mr. Lucas, bent on literally throwing the affiant out of the office, grabbed her the second time while she attempted
to regain her posture after being pushed the first time. . . . while doing all this, Mr. Lucas shouted at the affiant,
saying, "labas, huwag ka nang papasok dito kahit kailan".4

On June 8, 1992, the Board of Personnel Inquiry, DA, issued a summons requiring respondent to answer the
complaint, not to file a motion to dismiss, within five (5) days from receipt. On June 17, 1992, respondent Lucas
submitted a letter to Jose P. Nitullano, assistant head, BOPI, denying the charges. According to Lucas, he did not
touch the thigh of complainant Linatok, that what transpired was that he accidentally brushed Linatok's leg when
he reached for his shoes and that the same was merely accidental and he did not intend nor was there malice
when his hand got in contact with Linatok's leg.

On May 31, 1993, after a formal investigation by the BOPI, DA, the board issued a resolution finding respondent
guilty of simple misconduct5 and recommending a penalty of suspension for one (1) month and one (1) day. The
Secretary of Agriculture approved the recommendation.

In due time, respondent appealed the decision to the Civil Service Commission (CSC). On July 7, 1994, the CSC
issued a resolution finding respondent guilty of grave misconduct and imposing on him the penalty of dismissal
from the service.6 Respondent moved for reconsideration but the CSC denied the motion.

Then, respondent appealed to the Court of Appeals. On October 29, 1996, the Court of Appeals promulgated its
decision setting aside the resolution of the CSC and reinstating the resolution of the BOPI, DA, stating thus: "It is
true that the Civil Service Act does not define grave and simple misconduct. There is, however, no question that
these offenses fall under different categories. This is clear from a perusal of memorandum circular No. 49-89
dated August 3, 1989 (also known as the guidelines in the application of penalties in administrative cases) itself
which classifies administrative offenses into three: grave, less grave and light offenses. The charge of grave
misconduct falls under the classification of grave offenses while simple misconduct is classified as a less grave
offense. The former is punishable by dismissal while the latter is punishable either by suspension (one month and
one day to six months), if it is the first offense; or by dismissal, if it is the second. Thus, they should be treated as
separate and distinct offenses.7
The Court of Appeals further ruled that "a basic requirement of due process on the other hand is that a person
must be duly informed of the charges against him (Felicito Sajonas vs. National Labor Relations Commission, 183
SCRA 182). In the instant case however, Lucas came to know of the modification of the charge against him only
when he received notice of the resolution dismissing him from the service.8

Hence, this petition.

The issues are (a) whether respondent Lucas was denied due process when the CSC found him guilty of grave
misconduct on a charge of simple misconduct, and (b) whether the act complained of constitutes grave
misconduct.

Petitioner anchors its position on the view that "the formal charge against a respondent in an administrative case
need not be drafted with the precision of an information in a criminal prosecution. It is sufficient that he is apprised
of the substance of the charge against him; what is controlling is the allegation of the acts complained of, and not
the designation of the offense.9

We deny the petition.

As well stated by the Court of Appeals, there is an existing guideline of the CSC distinguishing simple and grave
misconduct. In the case of Landrito vs. Civil Service Commission, we held that "in grave misconduct as
distinguished from simple misconduct, the elements of corruption, clear intent to violate the law or flagrant
disregard of established rule, must be manifest,10 which is obviously lacking in respondent's case. Respondent
maintains that as he was charged with simple misconduct, the CSC deprived him of his right to due process by
convicting him of grave misconduct.

We sustain the ruling of the Court of Appeals11 that: (a) a basic requirement of due process is that a person must
be duly informed of the charges against him12 and that (b) a person can not be convicted of a crime with which he
was not charged.13

Administrative proceedings are not exempt from basic and fundamental procedural principles, such as the right to
due process in investigations and hearings.14

The right to substantive and procedural due process is applicable in administrative proceedings.15

Of course, we do not in any way condone respondent's act. Even in jest, he had no right to touch complainant's
leg. However, under the circumstances, such act is not constitutive of grave misconduct, in the absence of proof
that respondent was maliciously motivated. We note that respondent has been in the service for twenty (20) years
and this is his first offense.

IN VIEW WHEREOF, the Court hereby DENIES the petition for review on certiorari and AFFIRMS the decision of
the Court of Appeals in CA-G.R. SP No. 37137.1âwphi1.nêt

No cost.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

EN BANC

G.R. No. 176830 February 11, 2014

SATURNINO C. OCAMPO, Petitioner, 



vs.

HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of Hilongos,
Leyte, Branch 18, CESAR M. MERIN, in. his capacity as Approving Prosecutor and Officer-in-Charge,
ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his capacity as
Secretary of the Department of Justice, Respondents.

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

G.R. No. 185587

RANDALL B. ECHANIS, Petitioner, 



vs.

HON. THELMA BUNYl-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of
Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and Officer-in-
Charge, ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents.

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

G.R. No. 185636

RAFAEL G. BAYLOSIS, Petitioner, 



vs.

HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, HON. EPHREM S. ABANDO, in his capacity as Presiding Judge of the Regional Trial Court of
Hilongos, Leyte, Branch 18, CESAR M. MERIN, in his capacity as Approving Prosecutor and Officer-in-
Charge, ROSULO U. VIVERO, in his capacity as Investigating Prosecutor, RAUL M. GONZALEZ, in his
capacity as Secretary of the Department of Justice, Respondents.

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

G.R. No. 190005

VICENTE P. LADLAD, Petitioner, 



vs.

HON. THELMA BUNYI-MEDINA, in her capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 32, and the PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

SERENO, CJ.:

On 26 August 2006, a mass grave was discovered by elements of the 43rd Infantry Brigade of the Philippine Army
at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan, Leyte.1 The mass grave contained skeletal remains of
individuals believed to be victims of "Operation Venereal Disease" (Operation VD) launched by members of the
Communist Party of the Philippines/New People’s Army/National Democratic Front of the Philippines (CPP/NPA/
NDFP) to purge their ranks of suspected military informers.

While the doctrine of hierarchy of courts normally precludes a direct invocation of this Court’s jurisdiction, we take
cognizance of these petitions considering that petitioners have chosen to take recourse directly before us and that
the cases are of significant national interest.

Petitioners have raised several issues, but most are too insubstantial to require consideration. Accordingly, in the
exercise of sound judicial discretion and economy, this Court will pass primarily upon the following:

1. Whether petitioners were denied due process during preliminary investigation and in the issuance of the
warrants of arrest.

2. Whether the murder charges against petitioners should be dismissed under the political offense doctrine.

ANTECEDENT FACTS
These are petitions for certiorari and prohibition2 seeking the annulment of the orders and resolutions of public
respondents with regard to the indictment and issuance of warrants of arrest against petitioners for the crime of
multiple murder.

Police Chief Inspector George L. Almaden (P C/Insp. Almaden) of the Philippine National Police (PNP) Regional
Office 8 and Staff Judge Advocate Captain Allan Tiu (Army Captain Tiu) of the 8th Infantry Division of the
Philippine Army sent 12 undated letters to the Provincial Prosecutor of Leyte through Assistant Provincial
Prosecutor Rosulo U. Vivero (Prosecutor Vivero).3 The letters requested appropriate legal action on 12 complaint-
affidavits attached therewith accusing 71 named members of the Communist Party of the Philippines/New
People’s Army/National Democratic Front of the Philippines (CPP/NPA/NDFP) of murder, including petitioners
herein along with several other unnamed members.

The letters narrated that on 26 August 2006, elements of the 43rd Infantry Brigade of the Philippine Army
discovered a mass grave site of the CPP/NPA/NDFP at Sitio Sapang Daco, Barangay Kaulisihan, Inopacan,
Leyte.4 Recovered from the grave site were 67 severely deteriorated skeletal remains believed to be victims of
Operation VD.5

The PNP Scene of the Crime Operation (SOCO) Team based in Regional Office 8 was immediately dispatched to
the mass grave site to conduct crime investigation, and to collect, preserve and analyze the skeletal remains.
6Also, from 11-17 September 2006, an investigation team composed of intelligence officers, and medico-legal and

DNA experts, conducted forensic crime analysis and collected from alleged relatives of the victims DNA samples
for matching.7

The Initial Specialist Report8 dated 18 September 2006 issued by the PNP Crime Laboratory in Camp Crame,
Quezon City, was inconclusive with regard to the identities of the skeletal remains and even the length of time that
they had been buried. The report recommended the conduct of further tests to confirm the identities of the
remains and the time window of death.9

However, in a Special Report10 dated 2 October 2006, the Case Secretariat of the Regional and National Inter-
Agency Legal Action Group (IALAG) came up with the names of ten (10) possible victims after comparison and
examination based on testimonies of relatives and witnesses.11

The 12 complaint-affidavits were from relatives of the alleged victims of Operation VD. All of them swore that their
relatives had been abducted or last seen with members of the CPP/NPA/NDFP and were never seen again.

They also expressed belief that their relatives’ remains were among those discovered at the mass grave site.

Also attached to the letters were the affidavits of Zacarias Piedad,12 Leonardo C. Tanaid, Floro M. Tanaid,
Numeriano Beringuel, Glecerio Roluna and Veronica P. Tabara. They narrated that they were former members of
the CPP/NPA/NDFP.13 According to them, Operation VD was ordered in 1985 by the CPP/NPA/NDFP Central
Committee.14 Allegedly, petitioners Saturnino C. Ocampo (Ocampo),15 Randall B. Echanis (Echanis),16 Rafael G.
Baylosis (Baylosis),17 and Vicente P. Ladlad (Ladlad)18 were then members of the Central Committee.

According to these former members, four sub-groups were formed to implement Operation VD, namely, (1) the
Intel Group responsible for gathering information on suspected military spies and civilians who would not support
the movement; (2) the Arresting Group charged with their arrests; (3) the Investigation Group which would subject
those arrested to questioning; and (4) the Execution Group or the "cleaners" of those confirmed to be military
spies and civilians who would not support the movement.19

From 1985 to 1992, at least 100 people had been abducted, hog-tied, tortured and executed by members of the
CPP/NPA/NDF20 pursuant to Operation VD.21

On the basis of the 12 letters and their attachments, Prosecutor Vivero issued a subpoena requiring, among
others, petitioners to submit their counter-affidavits and those of their witnesses.22 Petitioner Ocampo submitted
his counter-affidavit.23 Petitioners Echanis24 and Baylosis25 did not file counter-affidavits because they were
allegedly not served the copy of the complaint and the attached documents or evidence. Counsel of petitioner
Ladlad made a formal entry of appearance on 8 December 2006 during the preliminary investigation.26 However,
petitioner Ladlad did not file a counter-affidavit because he was allegedly not served a subpoena.27

In a Resolution28 dated 16 February 2007, Prosecutor Vivero recommended the filing of an Information for 15
counts of multiple murder against 54 named members of the CPP/NPA/NDFP, including petitioners herein, for the
death of the following: 1) Juanita Aviola, 2) Concepcion Aragon, 3) Gregorio Eras, 4) Teodoro Recones, Jr., 5)
Restituto Ejoc, 6) Rolando Vasquez, 7) Junior Milyapis, 8) Crispin Dalmacio, 9) Zacarias Casil, 10) Pablo Daniel,
11) Romeo Tayabas, 12) Domingo Napoles, 13) Ciriaco Daniel, 14) Crispin Prado, and 15) Ereberto Prado.29

Prosecutor Vivero also recommended that Zacarias Piedad, Leonardo Tanaid, Numeriano Beringuel and Glecerio
Roluna be dropped as respondents and utilized as state witnesses, as their testimonies were vital to the success
of the prosecution.30 The Resolution was silent with regard to Veronica Tabara.

The Information was filed before the Regional Trial Court (RTC) Hilongos, Leyte, Branch 18 (RTC Hilongos,
Leyte) presided by Judge Ephrem S. Abando (Judge Abando) on 28 February 2007, and docketed as Criminal
Case No. H-1581.31 Petitioner Ocampo filed an Ex Parte Motion to Set Case for Clarificatory Hearing dated 5
March 2007 prior to receiving a copy of the Resolution recommending the filing of the Information.32
On 6 March 2007, Judge Abando issued an Order finding probable cause "in the commission by all mentioned
accused of the crime charged."33 He ordered the issuance of warrants of arrest against them with no
recommended bail for their temporary liberty.34

On 16 March 2007, petitioner Ocampo filed before us this special civil action for certiorari and prohibition under
Rule 65 of the Rules of Court and docketed as G.R. No. 176830 seeking the annulment of the 6 March 2007
Order of Judge Abando and the 16 February 2007 Resolution of Prosecutor Vivero.35 The petition prayed for the
unconditional release of petitioner Ocampo from PNP custody, as well as the issuance of a temporary restraining
order/ writ of preliminary injunction to restrain the conduct of further proceedings during the pendency of the
petition.36

Petitioner Ocampo argued that a case for rebellion against him and 44 others (including petitioners Echanis and
Baylosis37 and Ladlad38) docketed as Criminal Case No. 06-944 was then pending before the RTC Makati, Branch
150 (RTC Makati).39 Putting forward the political offense doctrine, petitioner Ocampo argues that common crimes,
such as murder in this case, are already absorbed by the crime of rebellion when committed as a necessary
means, in connection with and in furtherance of rebellion.40

We required41 the Office of the Solicitor General (OSG) to comment on the petition and the prayer for the issuance
of a temporary restraining order/ writ of preliminary injunction, and set42 the case for oral arguments on 30 March
2007. The OSG filed its Comment on 27 March 2007.43

The following were the legal issues discussed by the parties during the oral arguments:

1. Whether the present petition for certiorari and prohibition is the proper remedy of petitioner Ocampo;

2. Assuming it is the proper remedy, whether he was denied due process during preliminary investigation and in
the issuance of the warrant of arrest;

3. Whether the murder charges against him are already included in the rebellion charge against him in the RTC.44

Afterwards, the parties were ordered to submit their memoranda within 10 days.45 On 3 April 2007, the Court
ordered the provisional release of petitioner Ocampo under a ₱100,000 cash bond.46 

Acting on the observation of the Court during the oral arguments that the single Information filed before the RTC
Hilongos, Leyte was defective for charging 15 counts of murder, the prosecution filed a Motion to Admit Amended
Information and New Informations on 11 April 2007.47 In an Order dated 27 July 2007, Judge Abando held in
abeyance the resolution thereof and effectively suspended the proceedings during the pendency of G.R. No.
176830 before this Court.48

While the proceedings were suspended, petitioner Echanis was arrested on 28 January 2008 by virtue of the
warrant of arrest issued by Judge Abando on 6 March 2007.49 On 1 February 2008, petitioners Echanis and
Baylosis filed a Motion for Judicial Reinvestigation/ Determination of Probable Cause with Prayer to Dismiss the
Case Outright and Alternative Prayer to Recall/ Suspend Service of Warrant.50

On 30 April 2008, Judge Abando issued an Order denying the motion.51 Petitioners Echanis and Baylosis filed a
Motion for Reconsideration52 dated 30 May 2008, but before being able to rule thereon, Judge Abando issued an
Order dated 12 June 2008 transmitting the records of Criminal Case No. H-1581 to the Office of the Clerk of
Court, RTC Manila.53 The Order was issued in compliance with the Resolution dated 23 April 2008 of this Court
granting the request of then Secretary of Justice Raul Gonzales to transfer the venue of the case.

The case was re-raffled to RTC Manila, Branch 32 (RTC Manila) presided by Judge Thelma Bunyi-Medina (Judge
Medina) and re-docketed as Criminal Case No. 08-262163.54 Petitioner Echanis was transferred to the PNP
Custodial Center in Camp Crame, Quezon City. On 12 August 2008, petitioners Echanis and Baylosis filed their
Supplemental Arguments to Motion for Reconsideration.55

In an Order56 dated 27 October 2008, Judge Medina suspended the proceedings of the case pending the
resolution of G.R. No. 176830 by this Court.

On 18 December 2008, petitioner Ladlad filed with the RTC Manila a Motion to Quash and/or Dismiss.57

On 23 December 2008, petitioner Echanis filed before us a special civil action for certiorari and prohibition under
Rule 65 of the Rules of Court seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27
October 2008 Order of Judge Medina.58 The petition, docketed as G.R. No. 185587, prayed for the unconditional
and immediate release of petitioner Echanis, as well as the issuance of a temporary restraining order/writ of
preliminary injunction to restrain his further incarceration.59

On 5 January 2009, petitioner Baylosis filed before us a special civil action for certiorari and prohibition under Rule
65 of the Rules of Court also seeking the annulment of the 30 April 2008 Order of Judge Abando and the 27
October 2008 Order of Judge Medina.60 The petition, docketed as G.R. No. 185636, prayed for the issuance of a
temporary restraining order/ writ of preliminary injunction to restrain the implementation of the warrant of arrest
against petitioner Baylosis.61

The Court consolidated G.R. Nos. 185587 and 185636 on 12 January 2009.62
On 3 March 2009, the Court ordered the further consolidation of these two cases with G.R. No. 176830.63 We
required64 the OSG to comment on the prayer for petitioner Echanis’s immediate release, to which the OSG did
not interpose any objection on these conditions: that the temporary release shall only be for the purpose of his
attendance and participation in the formal peace negotiations between the Government of the Republic of the
Philippines (GRP) and the CPP/NPA/NDFP, set to begin in August 2009; and that his temporary release shall not
exceed six (6) months.65 The latter condition was later modified, such that his temporary liberty shall continue for
the duration of his actual participation in the peace negotiations.66

On 11 August 2009, the Court ordered the provisional release of petitioner Echanis under a ₱100,000 cash bond,
for the purpose of his participation in the formal peace negotiations.67

Meanwhile, the Department of Justice (DOJ) filed its Opposition68 to petitioner Ladlad’s motion to quash before
the RTC Manila. The trial court conducted a hearing on the motion on 13 February 2009.69

On 6 May 2009, Judge Medina issued an Order70 denying the motion to quash. The motion for reconsideration
filed by petitioner Ladlad was also denied on 27 August 2009.71

On 9 November 2009, petitioner Ladlad filed before us a special civil action for certiorari under Rule 65 of the
Rules of Court seeking the annulment of the 6 May 2009 and 27 August 2009 Orders of Judge Medina.72 The
petition was docketed as G.R. No. 190005.

On 11 January 2010, we ordered the consolidation of G.R. No. 190005 with G.R. Nos. 176830, 185587 and
185636.73 We also required the OSG to file its comment thereon. The OSG submitted its Comment74 on 7 May
2010.

On 27 July 2010, we likewise required the OSG to file its Comment in G.R. Nos. 185636 and 185587.75 These
Comments were filed by the OSG on 13 December 201076 and on 21 January 2011,77 respectively. Petitioners
Echanis and Baylosis filed their Consolidated Reply78 on 7 June 2011.

On 2 May 2011, petitioner Ladlad filed an Urgent Motion to Fix Bail.79 On 21 July 2011, petitioner Baylosis filed A
Motion to Allow Petitioner to Post Bail.80 The OSG interposed no objection to the grant of a ₱100,000 cash bail to
them considering that they were consultants of the NDFP negotiating team, which was then holding negotiations
with the GRP peace panel for the signing of a peace accord.81

On 17 January 2012, we granted the motions of petitioners Ladlad and Baylosis and fixed their bail in the amount
of ₱100,000, subject to the condition that their temporary release shall be limited to the period of their actual
participation in the peace negotiations.82

Petitioner Ladlad filed his Reply83 to the OSG Comment on 18 January 2013.

OUR RULING

Petitioners were accorded due



process during preliminary

investigation and in the issuance of

the warrants of arrest.

A. Preliminary Investigation

A preliminary investigation is "not a casual affair."84 It is conducted to protect the innocent from the
embarrassment, expense and anxiety of a public trial.85 While the right to have a preliminary investigation before
trial is statutory rather than constitutional, it is a substantive right and a component of due process in the
administration of criminal justice.86

In the context of a preliminary investigation, the right to due process of law entails the opportunity to be heard.87It
serves to accord an opportunity for the presentation of the respondent’s side with regard to the accusation.
Afterwards, the investigating officer shall decide whether the allegations and defenses lead to a reasonable belief
that a crime has been committed, and that it was the respondent who committed it. Otherwise, the investigating
officer is bound to dismiss the complaint.

"The essence of due process is reasonable opportunity to be heard and submit evidence in support of one's
defense."88 What is proscribed is lack of opportunity to be heard.89 Thus, one who has been afforded a chance to
present one’s own side of the story cannot claim denial of due process.90

Petitioners Echanis and Baylosis allege that they did not receive a copy of the complaint and the attached
documents or evidence.91 Petitioner Ladlad claims that he was not served a subpoena due to the false address
indicated in the 12 undated letters of P C/Insp. Almaden and Army Captain Tiu to Prosecutor Vivero.
92Furthermore, even though his counsels filed their formal entry of appearance before the Office of the Prosecutor,

petitioner Ladlad was still not sent a subpoena through his counsels’ addresses.93 Thus, they were deprived of the
right to file counter-affidavits.

Petitioner Ocampo claims that Prosecutor Vivero, in collusion with P C/Insp. Almaden and Army Captain Tiu,
surreptitiously inserted the Supplemental Affidavit of Zacarias Piedad in the records of the case without furnishing
petitioner Ocampo a copy.94 The original affidavit of Zacarias Piedad dated 14 September 2006 stated that a
meeting presided by petitioner Ocampo was held in 1984, when the launching of Operation VD was agreed upon.
95 Petitioner Ocampo refuted this claim in his Counter-affidavit dated 22 December 2006 stating that he was in

military custody from October 1976 until his escape in May 1985.96 Thereafter, the Supplemental Affidavit of
Zacarias Piedad dated 12 January 2007 admitted that he made a mistake in his original affidavit, and that the
meeting actually took place in June 1985.97 Petitioner Ocampo argues that he was denied the opportunity to reply
to the Supplemental Affidavit by not being furnished a copy thereof.

Petitioner Ocampo also claims that he was denied the right to file a motion for reconsideration or to appeal the
Resolution of Prosecutor Vivero, because the latter deliberately delayed the service of the Resolution by 19 days,
effectively denying petitioner Ocampo his right to due process.98

As to the claim of petitioners Echanis and Baylosis, we quote the pertinent portion of Prosecutor Vivero’s
Resolution, which states:

In connection with the foregoing and pursuant to the Revised Rules of Criminal Procedure[,] the respondents were
issued and served with Subpoena at their last known address for them to submit their counter-affidavits and that
of their witnesses.

Majority of the respondents did not submit their counter-affidavits because they could no longer be found in their
last known address, per return of the subpoenas. On the other hand, Saturnino Ocampo @ Satur, Fides Lim,
Maureen Palejaro and Ruben Manatad submitted their Counter-Affidavits. However, Vicente Ladlad and Jasmin
Jerusalem failed to submit the required Counter Affidavits in spite entry of appearance by their respective
counsels.99

Section 3(d), Rule 112 of the Rules of Court, allows Prosecutor Vivero to resolve the complaint based on the
evidence before him if a respondent could not be subpoenaed. As long as efforts to reach a respondent were
made, and he was given an opportunity to present countervailing evidence, the preliminary investigation remains
valid.100 The rule was put in place in order to foil underhanded attempts of a respondent to delay the prosecution
of offenses.101

In this case, the Resolution stated that efforts were undertaken to serve subpoenas on the named respondents at
their last known addresses. This is sufficient for due process. It was only because a majority of them could no
longer be found at their last known addresses that they were not served copies of the complaint and the attached
documents or evidence.

Petitioner Ladlad claims that his subpoena was sent to the nonexistent address "53 Sct. Rallos St., QC,"102 which
had never been his address at any time.103 In connection with this claim, we take note of the fact that the
subpoena to Fides Lim, petitioner Ladlad’s wife,104 was sent to the same address, and that she was among those
mentioned in the Resolution as having timely submitted their counter-affidavits.

Despite supposedly never receiving a subpoena, petitioner Ladlad’s counsel filed a formal entry of appearance on
8 December 2006.105 Prosecutor Vivero had a reason to believe that petitioner Ladlad had received the subpoena
and accordingly instructed his counsel to prepare his defense.

Petitioner Ladlad, through his counsel, had every opportunity to secure copies of the complaint after his counsel’s
formal entry of appearance and, thereafter, to participate fully in the preliminary investigation. Instead, he refused
to participate.

We have previously cautioned that "litigants represented by counsel should not expect that all they need to do is
sit back, relax and await the outcome of their case."106 Having opted to remain passive during the preliminary
investigation, petitioner Ladlad and his counsel cannot now claim a denial of due process, since their failure to file
a counter-affidavit was of their own doing.

Neither do we find any merit in petitioner Ocampo’s allegation of collusion to surreptitiously insert the
Supplemental Affidavit of Zacarias Piedad in the records. There was nothing surreptitious about the Supplemental
Affidavit since it clearly alludes to an earlier affidavit and admits the mistake committed regarding the date of the
alleged meeting. The date of the execution of the Supplemental Affidavit was also clearly stated. Thus, it was clear
that it was executed after petitioner Ocampo had submitted his counter-affidavit. Should the case go to trial, that
will provide petitioner Ocampo with the opportunity to question the execution of Zacarias Piedad’s Supplemental
Affidavit.

Neither can we uphold petitioner Ocampo’s contention that he was denied the right to be heard. For him to claim
that he was denied due process by not being furnished a copy of the Supplemental Affidavit of Zacarias Piedad
would imply that the entire case of the prosecution rested on the Supplemental Affidavit. The OSG has asserted
that the indictment of petitioner Ocampo was based on the collective affidavits of several other
witnesses107attesting to the allegation that he was a member of the CPP/NPA/NDFP Central Committee, which
had ordered the launch of Operation VD.

As to his claim that he was denied the right to file a motion for reconsideration or to appeal the Resolution of
Prosecutor Vivero due to the 19-day delay in the service of the Resolution, it must be pointed out that the period
for filing a motion for reconsideration or an appeal to the Secretary of Justice is reckoned from the date of receipt
of the resolution of the prosecutor, not from the date of the resolution. This is clear from Section 3 of the 2000
National Prosecution Service Rule on Appeal:
Sec. 3. Period to appeal. – The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of
the denial of the motion for reconsideration/ reinvestigation if one has been filed within fifteen (15) days from
receipt of the assailed resolution. Only one motion for reconsideration shall be allowed. (Emphasis supplied)

Thus, when petitioner Ocampo received the Resolution of Prosecutor Vivero on 12 March 2007,108 the former had
until 27 March 2007 within which to file either a motion for reconsideration before the latter or an appeal before the
Secretary of Justice. Instead, petitioner Ocampo chose to file the instant petition for certiorari directly before this
Court on 16 March 2007.

B. Issuance of the Warrants of Arrest

Article III, Section 2 of the Constitution provides that "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."

Petitioner Ocampo alleges that Judge Abando did not comply with the requirements of the Constitution in finding
the existence of probable cause for the issuance of warrants of arrest against petitioners.109

Probable cause for the issuance of a warrant of arrest has been defined as "such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person
sought to be arrested."110 Although the Constitution provides that probable cause shall be determined by the judge
after an examination under oath or an affirmation of the complainant and the witnesses, we have ruled that a
hearing is not necessary for the determination thereof.111 In fact, the judge’s personal examination of the
complainant and the witnesses is not mandatory and indispensable for determining the aptness of issuing a
warrant of arrest.112

It is enough that the judge personally evaluates the prosecutor’s report and supporting documents showing the
existence of probable cause for the indictment and, on the basis thereof, issue a warrant of arrest; or if, on the
basis of his evaluation, he finds no probable cause, to disregard the prosecutor's resolution and require the
submission of additional affidavits of witnesses to aid him in determining its existence.113

Petitioners Echanis and Baylosis claim that, had Judge Abando painstakingly examined the records submitted by
Prosecutor Vivero, the judge would have inevitably dismissed the charge against them.114 Additionally, petitioner
Ocampo alleges that Judge Abando did not point out facts and evidence in the record that were used as bases for
his finding of probable cause to issue a warrant of arrest.115

The determination of probable cause for the issuance of warrants of arrest against petitioners is addressed to the
sound discretion of Judge Abando as the trial judge.116 Further elucidating on the wide latitude given to trial judges
in the issuance of warrants of arrest, this Court stated in Sarigumba v. Sandiganbayan117 as follows:

x x x. The trial court's exercise of its judicial discretion should not, as a general rule, be interfered with in the
absence of grave abuse of discretion. Indeed, certiorari will not lie to cure errors in the trial court's appreciation of
the evidence of the parties, the conclusion of facts it reached based on the said findings, as well as the
conclusions of law. x x x.

Whether or not there is probable cause for the issuance of warrants for the arrest of the accused is a question of
fact based on the allegations in the Informations, the Resolution of the Investigating Prosecutor, including other
documents and/or evidence appended to the Information.

Here, the allegations of petitioners point to factual matters indicated in the affidavits of the complainants and
witnesses as bases for the contention that there was no probable cause for petitioners’ indictment for multiple
murder or for the issuance of warrants for their arrest. As stated above, the trial judge’s appreciation of the
evidence and conclusion of facts based thereon are not interfered with in the absence of grave abuse of
discretion. Again, "he sufficiently complies with the requirement of personal determination if he reviews the
[I]nformation and the documents attached thereto, and on the basis thereof forms a belief that the accused is
probably guilty of the crime with which he is being charged."118

Judge Abando’s review of the Information and the supporting documents is shown by the following portion of the
judge’s 6 March 2007 Order:

On the evaluation of the Resolution and its Information as submitted and filed by the Provincial Prosecution of
Leyte Province supported by the following documents: Affidavits of Complainants, Sworn Statements of Witnesses
and other pertinent documents issued by the Regional Crime Laboratory Office, PNP, Region VIII and Camp
Crame, Quezon City, pictures of the grave site and skeletal remains, this court has the findings [sic] of probable
cause in the commission by all mentioned accused of the crime charged.119

At bottom, issues involving the finding of probable cause for an indictment and issuance of a warrant of arrest, as
petitioners are doubtless aware, are primarily questions of fact that are normally not within the purview of a
petition for certiorari,120 such as the petitions filed in the instant consolidated cases.

The political offense doctrine is not a



ground to dismiss the charge against

petitioners prior to a determination

by the trial court that the murders

were committed in furtherance of

rebellion.

Under the political offense doctrine, "common crimes, perpetrated in furtherance of a political offense, are
divested of their character as "common" offenses and assume the political complexion of the main crime of which
they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or
complexed with the same, to justify the imposition of a graver penalty."121

Any ordinary act assumes a different nature by being absorbed in the crime of rebellion.122 Thus, when a killing is
committed in furtherance of rebellion, the killing is not homicide or murder. Rather, the killing assumes the political
complexion of rebellion as its mere ingredient and must be prosecuted and punished as rebellion alone.

However, this is not to say that public prosecutors are obliged to consistently charge respondents with simple
rebellion instead of common crimes. No one disputes the well-entrenched principle in criminal procedure that the
institution of criminal charges, including whom and what to charge, is addressed to the sound discretion of the
public prosecutor.123

But when the political offense doctrine is asserted as a defense in the trial court, it becomes crucial for the court to
determine whether the act of killing was done in furtherance of a political end, and for the political motive of the act
to be conclusively demonstrated.124

Petitioners aver that the records show that the alleged murders were committed in furtherance of the CPP/NPA/
NDFP rebellion, and that the political motivation behind the alleged murders can be clearly seen from the charge
against the alleged top leaders of the CPP/NPA/NDFP as co-conspirators.

We had already ruled that the burden of demonstrating political motivation must be discharged by the defense,
since motive is a state of mind which only the accused knows.125 The proof showing political motivation is
adduced during trial where the accused is assured an opportunity to present evidence supporting his defense. It is
not for this Court to determine this factual matter in the instant petitions.

As held in the case of Office of the Provincial Prosecutor of Zamboanga Del Norte v. CA,126 if during trial,
petitioners are able to show that the alleged murders were indeed committed in furtherance of rebellion, Section
14, Rule 110 of the Rules of Court provides the remedy, to wit:

SECTION 14. Amendment or substitution. — A complaint or information may be amended, in form or in


substance, without leave of court, at any time before the accused enters his plea. After the plea and during the
trial, a formal amendment may only be made with leave of court and when it can be done without causing
prejudice to the rights of the accused.

However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any
accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its
order shall be furnished all parties, especially the offended party. (n)

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court
shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court
may require the witnesses to give bail for their appearance at the trial. (Emphasis supplied)

Thus, if it is shown that the proper charge against petitioners should have been simple rebellion, the trial court
shall dismiss the murder charges upon the filing of the Information for simple rebellion, as long as petitioners
would not be placed in double jeopardy.

Section 7, Rule 117 of the Rules of Court, states:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or
the case against him dismissed or otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or
the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to
commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in
the offense charged in the former complaint or information.

Based on the above provision, double jeopardy only applies when: (1) a first jeopardy attached; (2) it has been
validly terminated; and (3) a second jeopardy is for the same offense as in the first.127

A first jeopardy attaches only after the accused has been acquitted or convicted, or the case has been dismissed
or otherwise terminated without his express consent, by a competent court in a valid indictment for which the
accused has entered a valid plea during arraignment.128

To recall, on 12 May 2006, an Information for the crime of rebellion, as defined and penalized under Article 134 in
relation to Article 135 of the Revised Penal Code, docketed as Criminal Case No. 06-944 was filed before the
RTC Makati against petitioners and several others.129
However, petitioners were never arraigned in Criminal Case No. 06-944.1awp++i1 Even before the indictment for
rebellion was filed before the RTC Makati, petitioners Ocampo, Echanis and Ladlad had already filed a petition
before this Court to seek the nullification of the Orders of the DOJ denying their motion for the inhibition of the
members of the prosecution panel due to lack of impartiality and independence.130 When the indictment was filed,
petitioners Ocampo, Echanis and Ladlad filed supplemental petitions to enjoin the prosecution of Criminal Case
No. 06-944.131 We eventually ordered the dismissal of the rebellion case. It is clear then that a first jeopardy never
had a chance to attach.

Petitioner Ocampo shall remain on provisional liberty under the ₱100,000 cash bond posted before the Office of
the Clerk of Court. He shall remain on provisional liberty until the termination of the proceedings before the RTC
Manila.1âwphi1

The OSG has given its conformity to the provisional liberty of petitioners Echanis, Baylosis and Ladlad in view of
the ongoing peace negotiations. Their provisional release from detention under the cash bond of ₱100,000 each
shall continue under the condition that their temporary release shall be limited to the period of their actual
participation as CPP-NDF consultants in the peace negotiations with the government or until the termination of the
proceedings before the RTC Manila, whichever is sooner. It shall be the duty of the government to inform this
Court the moment that peace negotiations are concluded.

WHEREFORE, the instant consolidated petitions are DISMISSED. The RTC of Manila, Branch 32, is hereby
ORDERED to proceed with dispatch with the hearing of Criminal Case No. 08-262163. Petitioner Saturnino C.
Ocampo shall remain on temporary liberty under the same bail granted by this Court until the termination of the
proceedings before the RTC Manila. Petitioners Randall B. Echanis, Rafael G. Baylosis and Vicente P. Ladlad
shall remain on temporary liberty under the same bail granted by this Court until their actual participation as CPP-
NDF consultants in the peace negotiations with the government are concluded or terminated, or until the
termination of the proceedings before the RTC Manila, whichever is sooner.

SO ORDERED.

Republic of the Philippines



SUPREME COURT

Manila

EN BANC

G.R. No. 213181 August 19, 2014

FRANCIS H. JARDELEZA Petitioner, 



vs.

CHIEF JUSTICE MARIA LOURDES P. A. SERENO, THE JUDICIAL AND BAR COUNCIL AND EXECUTIVE
SECRETARY PAQUITO N. OCHOA, JR., Respondents.

DECISION

MENDOZA, J.:

Once again, the Couii is faced with a controversy involving the acts of an independent body, which is considered
as a constitutional innovation the Judicial and Bar Council (JBC). It is not the first time that the Court is called
upon to settle legal questions surrounding the JBC's exercise of its constitutional mandate. In De Castro v. JBC,
1the Court laid to rest issues such as the duty of the JBC to recommend prospective nominees for the position of

Chief Justice vis-à-vis the appointing power of the President, the period within which the same may be exercised,
and the ban on midnight appointments as set forth in the Constitution. In Chavez v. JBC,2 the Court provided an
extensive discourse on constitutional intent as to the JBC’s composition and membership.

This time, however, the selection and nomination process actually undertaken by the JBC is being challenged for
being constitutionally infirm. The heart of the debate lies not only on the very soundness and validity of the
application of JBC rules but also the extent of its discretionary power. More significantly, this case of first
impression impugns the end-result of its acts - the shortlistfrom which the President appoints a deserving addition
to the Highest Tribunal of the land.

To add yet another feature of noveltyto this case, a member of the Court, no less than the Chief Justice herself,
was being impleaded as party respondent.

The Facts

The present case finds its genesis from the compulsory retirement of Associate Justice Roberto Abad (Associate
Justice Abad) last May 22, 2014. Before his retirement, on March 6, 2014, in accordance with its rules,3 the JBC
announced the opening for application or recommendation for the said vacated position.

On March 14, 2014, the JBC received a letter from Dean Danilo Concepcion of the University of the Philippines
nominating petitioner Francis H. Jardeleza (Jardeleza), incumbent Solicitor General of the Republic, for the said
position. Upon acceptance of the nomination, Jardeleza was included in the names of candidates, as well as in
the schedule of public interviews. On May 29, 2014, Jardeleza was interviewed by the JBC.

It appears from the averments in the petition that on June 16 and 17, 2014, Jardeleza received telephone
callsfrom former Court of Appeals Associate Justice and incumbent JBC member, Aurora Santiago Lagman
(Justice Lagman), who informed him that during the meetings held on June 5 and 16, 2014, Chief Justice and JBC
ex-officioChairperson, Maria Lourdes P.A. Sereno (Chief Justice Sereno),manifested that she would be invoking
Section 2, Rule 10 of JBC-0094 against him. Jardeleza was then directed to "make himself available" before the
JBC on June 30, 2014, during which he would be informed of the objections to his integrity.

Consequently, Jardeleza filed a letter-petition (letter-petition)5 praying that the Court, in the exercise of
itsconstitutional power of supervision over the JBC, issue an order: 1) directing the JBC to give him at least five
(5) working days written notice of any hearing of the JBC to which he would be summoned; and the said notice to
contain the sworn specifications of the charges against him by his oppositors, the sworn statements of supporting
witnesses, if any, and copies of documents in support of the charges; and notice and sworn statements shall be
made part of the public record of the JBC; 2) allowing him to cross-examine his oppositors and supporting
witnesses, if any, and the cross-examination to be conducted in public, under the same conditions that attend the
publicinterviews held for all applicants; 3) directing the JBC to reset the hearing scheduled on June 30, 2014 to
another date; and 4) directing the JBC to disallow Chief Justice Sereno from participating in the voting on June
30,2014 or at any adjournment thereof where such vote would be taken for the nominees for the position vacated
by Associate Justice Abad.

During the June 30, 2014 meeting of the JBC, sansJardeleza, incumbent Associate Justice Antonio T. Carpio
(Associate Justice Carpio) appeared as a resource person to shed light on a classified legal memorandum (legal
memorandum) that would clarify the objection to Jardeleza’s integrity as posed by Chief Justice Sereno.
According to the JBC, Chief Justice Sereno questioned Jardeleza’s ability to discharge the duties of his office as
shown in a confidential legal memorandum over his handling of an international arbitration case for the
government.

Later, Jardeleza was directed to one of the Court’s ante-rooms where Department of Justice Secretary Leila M.
De Lima (Secretary De Lima) informed him that Associate Justice Carpio appeared before the JBC and disclosed
confidential information which, to Chief Justice Sereno, characterized his integrity as dubious. After the briefing,
Jardeleza was summoned by the JBC at around 2:00o’clock in the afternoon.

Jardeleza alleged that he was asked by Chief Justice Sereno if he wanted to defend himself against the integrity
issues raised against him. He answered that he would defend himself provided that due process would be
observed. Jardeleza specifically demanded that Chief Justice Sereno execute a sworn statement specifying her
objectionsand that he be afforded the right to cross-examine her in a public hearing. He requested that the same
directive should also be imposed on Associate Justice Carpio. As claimed by the JBC, Representative Niel G.
Tupas Jr. also manifested that he wanted to hear for himself Jardeleza’s explanation on the matter. Jardeleza,
however, refused as he would not be lulled intowaiving his rights. Jardeleza then put into record a written
statement6 expressing his views on the situation and requested the JBC to defer its meeting considering that the
Court en banc would meet the next day to act on his pending letter-petition. At this juncture, Jardeleza was
excused.

Later in the afternoon of the sameday, and apparently denying Jardeleza’s request for deferment of the
proceedings, the JBC continued its deliberations and proceeded to vote for the nominees to be included in the
shortlist. Thereafter, the JBC releasedthe subject shortlist of four (4) nominees which included: Apolinario D.
Bruselas, Jr. with six (6) votes, Jose C. Reyes, Jr. with six (6) votes, Maria Gracia M. Pulido Tan with five (5)
votes, and Reynaldo B. Daway with four (4) votes.7

As mentioned in the petition, a newspaper article was later published in the online portal of the Philippine Daily
Inquirer, stating that the Court’s Spokesman, Atty. Theodore Te, revealed that there were actually five (5)
nominees who made it to the JBC shortlist, but one (1) nominee could not be included because of the invocation
of Rule 10, Section 2 of the JBC rules.

In its July 8, 2014 Resolution, the Court noted Jardeleza’s letterpetition in view of the transmittal of the JBC list of
nominees to the Office of the President, "without prejudice to any remedy available in law and the rules that
petitioner may still wish to pursue."8 The said resolution was accompanied by an extensive Dissenting Opinion
penned by Associate Justice Arturo D. Brion,9 expressing his respectful disagreement as to the position taken by
the majority.

The Petition

Perceptibly based on the aforementioned resolution’s declaration as to his availment of a remedy in law,
Jardeleza filed the present petition for certiorari and mandamus under Rule 65 of the Rules of Court with prayer
for the issuance of a Temporary Restraining Order (TRO), seeking to compel the JBC to include him in the list
ofnominees for Supreme Court Associate Justice viceAssociate Justice Abad, on the grounds that the JBC and
Chief Justice Sereno acted in grave abuse of discretion amounting to lack or excess of jurisdiction in excluding
him, despite having garnered a sufficient number of votes to qualify for the position.

Notably, Jardeleza’s petition decries that despite the obvious urgency of his earlier letter-petition and its
concomitant filing on June 25, 2014, the same was raffled only on July 1, 2014 or a day after the controversial
JBC meeting. By the time that his letter-petition was scheduled for deliberation by the Court en bancon July 8,
2014, the disputedshortlist had already been transmitted to the Office of the President. He attributedthis belated
action on his letter-petition to Chief Justice Sereno, whose action on such matters, especially those impressed
withurgency, was discretionary.

An in-depth perusal of Jardeleza’s petition would reveal that his resort to judicial intervention hinges on the
alleged illegality of his exclusion from the shortlist due to: 1) the deprivation of his constitutional right to due
process; and 2) the JBC’s erroneous application, if not direct violation, of its own rules. Suffice it to say,
Jardelezadirectly ascribes the supposed violation of his constitutional rights tothe acts of Chief Justice Sereno in
raising objections against his integrity and the manner by which the JBC addressed this challenge to his
application, resulting in his arbitrary exclusion from the list of nominees.

Jardeleza’s Position

For a better understanding of the above postulates proffered in the petition, the Court hereunder
succinctlysummarizes Jardeleza’s arguments, as follows:

A. Chief Justice Sereno and the JBC violated Jardeleza’s right to due process in the events leading up to and
during the vote on the shortlist last June 30, 2014. When accusations against his integrity were made twice, ex
parte, by Chief Justice Sereno, without informing him of the nature and cause thereof and without affording him an
opportunity to be heard, Jardeleza was deprived of his right to due process. In turn, the JBC violated his right to
due process when he was simply ordered to make himself available on the June 30, 2014 meeting and was told
that the objections to his integrity would be made known to him on the same day. Apart from mere verbal notice
(by way of a telephone call) of the invocation of Section 2, Rule 10 of JBC-009 against his application and not on
the accusations against him per se, he was deprived of an opportunity to mount a proper defense against it. Not
only did the JBC fail to ventilate questions on his integrity during his public interview, he was also divested of his
rights as an applicant under Sections 3 and 4, Rule 4, JBC-009, to wit:

Section 3. Testimony of parties. – The Council may receive written opposition to an applicant on the ground of his
moral fitness and, at its discretion, the Council may receive the testimony of the oppositor at a hearing conducted
for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.
Section 4. Anonymous Complaints. – Anonymous complaints against an applicant shall not be given due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may direct a discreet investigation or require the applicant to comment thereon in
writing or during the interview.

His lack of knowledge as to the identity of his accusers (except for yet again, the verbalinformation conveyed to
him that Associate Justice Carpio testified against him) and as to the nature of the very accusations against him
caused him to suffer from the arbitrary action by the JBC and Chief Justice Sereno. The latter gravely abused her
discretion when she acted as prosecutor, witness and judge,thereby violating the very essence of fair play and the
Constitution itself. In his words: "the sui generis nature of JBC proceedings does not authorize the Chief Justice to
assume these roles, nor does it dispense with the need to honor petitioner’s right to due process."10

B. The JBC committed grave abuse of discretion in excluding Jardeleza from the shortlist of nominees, in violation
of its own rules. The "unanimity requirement" provided under Section 2, Rule10 of JBC-009 does not find
application when a member of the JBC raises an objection to an applicant’s integrity. Here, the lone objector
constituted a part of the membership of the body set to vote. The lone objector could be completely capable
oftaking hostage the entire voting process by the mere expediency of raising an objection. Chief Justice Sereno’s
interpretation of the rule would allow a situation where all thata member has to do to veto other votes, including
majority votes, would be to object to the qualification of a candidate, without need for factual basis.

C. Having secured the sufficient number of votes, it was ministerial on the part of the JBC to include Jardeleza in
the subject shortlist.Section 1, Rule 10 of JBC-009 provides that a nomination for appointment to a judicial
position requires the affirmative vote of at least a majority of all members of the JBC. The JBC cannot disregard
its own rules. Considering that Jardeleza was able to secure four (4) out of six (6) votes, the only conclusion is
that a majority of the members of the JBC found him to be qualified for the position of Associate Justice.

D. The unlawful exclusion ofthe petitioner from the subject shortlist impairs the President’s constitutional power to
appoint.Jardeleza’s exclusion from the shortlist has unlawfully narrowed the President’s choices. Simply put, the
President would be constrained to choose from among four (4) nominees, when five (5) applicants rightfully
qualified for the position. This limits the President to appoint a member of the Court from a list generated through
a process tainted with patent constitutional violations and disregard for rules of justice and fair play. Until these
constitutional infirmities are remedied, the petitioner has the right to prevent the appointment of an Associate
Justice viceAssociate Justice Abad.

Comment of the JBC

On August 11, 2014, the JBC filed its comment contending that Jardeleza’s petition lacked proceduraland
substantive bases that would warrant favorable action by the Court. For the JBC, certiorariis only available against
a tribunal, a board or an officer exercising judicial or quasijudicial functions.11 The JBC, in its exercise of its
mandate to recommend appointees to the Judiciary, does not exercise any of these functions. In a pending case,
12 Jardeleza himself, as one of the lawyers for the government, argued in this wise: Certioraricannot issue against

the JBC in the implementation of its policies.

In the same vein, the remedy of mandamusis incorrect. Mandamus does not lie to compel a discretionary act. For
it to prosper, a petition for mandamus must, among other things, show that the petitioner has a clear legal right to
the act demanded. In Jardeleza’s case, there is no legal right to be included in the list of nominees for judicial
vacancies. Possession of the constitutional and statutory qualifications for appointment to the Judiciary may not
be used to legally demand that one’s name be included in the list of candidates for a judicial vacancy. One’s
inclusion in the shortlist is strictly within the discretion of the JBC.

Anent the substantive issues, the JBC mainly denied that Jardeleza was deprived of due process. The JBC
reiterated that Justice Lagman, on behalf of the JBC en banc, called Jardeleza and informed him that Chief
Justice Sereno would be invoking Section 2, Rule 10 of JBC-009 due to a question on his integrity based on the
way he handled a very important case for the government. Jardeleza and Justice Lagman spoke briefly about the
case and his general explanation on how he handled the same. Secretary De Lima likewise informed him about
the content of the impending objection against his application. On these occasions, Jardeleza agreed to explain
himself. Come the June 30, 2014 meeting, however, Jardeleza refused to shed light on the allegations against
him,as he chose to deliver a statement, which, in essence, requested that his accuser and her witnesses file
sworn statements so that he would know of the allegations against him, that he be allowed to cross-examine the
witnesses;and that the procedure be done on record and in public.

In other words, Jardeleza was given ample opportunity to be heard and to enlighten each member of the JBC on
the issues raised against him prior to the voting process. His request for a sworn statement and opportunity to
cross-examine is not supported by a demandable right. The JBC is not a fact-finding body. Neitheris it a court nor
a quasi-judicial agency. The members are notconcerned with the determination of his guilt or innocence of the
accusations against him. Besides, Sections 3 and 4, Rule 10,JBC-009 are merely directory as shown by the use
of the word "may." Even the conduct of a hearing to determine the veracity of an opposition is discretionary on the
JBC. Ordinarily, if there are other ways of ascertaining the truth or falsity of an allegation or opposition, the JBC
would not call a hearing in order to avoid undue delay of the selection process. Each member of the JBC relies on
his or her own appreciation of the circumstances and qualifications of applicants.

The JBC then proceeded to defend adherence to its standing rules. As a general rule, an applicant is included in
the shortlist when he or she obtains an affirmative vote of at least a majority of all the members of the JBC. When
Section 2, Rule 10 of JBC-009,however, is invoked because an applicant’s integrity is challenged, a unanimous
vote is required. Thus, when Chief Justice Sereno invoked the saidprovision, Jardeleza needed the affirmative
vote of all the JBC members tobe included in the shortlist. In the process, Chief Justice Sereno’s vote against
Jardeleza was not counted. Even then, he needed the votes of the five(5) remaining members. He only got four
(4) affirmative votes. As a result,he was not included in the shortlist. Applicant Reynaldo B. Daway, who gotfour (4)
affirmative votes, was included in the shortlist because his integrity was not challenged. As to him, the "majority
rule" was considered applicable.

Lastly, the JBC rued that Jardeleza sued the respondents in his capacity as Solicitor General. Despiteclaiming a
prefatory appearance in propria persona, all pleadings filed with the Court were signed in his official capacity. In
effect, he sued the respondents to pursue a purely private interest while retaining the office of the Solicitor
General. By suing the very parties he was tasked by law to defend, Jardeleza knowingly placed himself in a
situation where his personal interests collided against his public duties, in clear violation of the Code of
Professional Responsibility and Code of Professional Ethics. Moreover, the respondents are all public officials
being sued in their official capacity. By retaining his title as Solicitor General, and suing in the said capacity,
Jardeleza filed a suit against his own clients, being the legal defender of the government and its officers. This runs
contrary to the fiduciary relationship sharedby a lawyer and his client.

In opposition to Jardeleza’s prayer for the issuance of a TRO, the JBC called to mind the constitutional period
within which a vacancy in the Court must be filled. As things now stand, the President has until August 20, 2014 to
exercise his appointment power which cannot be restrained by a TRO or an injunctive suit.

Comment of the Executive Secretary

In his Comment, Executive Secretary Paquito N. Ochoa Jr. (Executive Secretary)raised the possible
unconstitutionality of Section 2, Rule 10 of JBC-009, particularly the imposition ofa higher voting threshold in
cases where the integrity of an applicant is challenged. It is his position that the subject JBC rule impairs the
body’s collegial character, which essentially operates on the basis of majority rule. The application of Section 2,
Rule 10 of JBC-009 gives rise to a situation where all that a member needs to do, in order to disqualify an
applicant who may well have already obtained a majority vote, is to object to his integrity. In effect, a member who
invokes the said provision is given a veto powerthat undermines the equal and full participation of the other
members in the nomination process. A lone objector may then override the will ofthe majority, rendering illusory,
the collegial nature of the JBC and the very purpose for which it was created— to shield the appointment process
from political maneuvering. Further, Section 2, Rule 10 of JBC-009 may beviolative of due process for it does not
allow an applicant any meaningful opportunity to refute the challenges to his integrity. While other provisions of the
JBC rules provide mechanisms enabling an applicant to comment on an opposition filed against him, the subject
rule does not afford the same opportunity. In this case, Jardeleza’s allegations as to the events which transpired
on June 30, 2014 obviously show that he was neither informed ofthe accusations against him nor given the
chance to muster a defense thereto.

The Executive Secretary then offered a supposition: granting that the subject provision is held to be constitutional,
the "unanimity rule" would only be operative when the objector is not a member of the JBC. It is only in this
scenario where the voting ofthe body would not be rendered inconsequential. In the event that a JBC member
raised the objection, what should have been applied is the general rule of a majority vote, where any JBC member
retains their respective reservations to an application with a negative vote. Corollary thereto, the
unconstitutionality of the said rule would necessitate the inclusion of Jardeleza in the shortlist submitted to the
President.

Other pleadings

On August 12, 2014, Jardeleza was given the chance to refute the allegations of the JBC in its Comment. He
submitted his Reply thereto on August 15, 2014. A few hours thereafter, orbarely ten minutes prior to the closing of
business, the Court received the Supplemental Comment-Reply of the JBC, this time with the attached minutes of
the proceedings that led to the filing of the petition,and a detailed "Statementof the Chief Justice on the Integrity
Objection."13 Obviously, Jardeleza’s Reply consisted only of his arguments against the JBC’s original Comment,
as it was filed prior to the filing of the Supplemental Comment-Reply.

At the late stage of the case, two motions to admit comments-inintervention/oppositions-in-intervention were filed.
One was by Atty. Purificacion S. Bartolome-Bernabe, purportedly the President of the Integrated Bar of the
Philippines-Bulacan Chapter. This pleading echoed the position of the JBC.14

The other one was filed by Atty. Reynaldo A. Cortes, purportedly a former President of the IBP Baguio-Benguet
Chapter and former Governor of the IBP-Northern Luzon. It was coupled with a complaint for disbarment against
Jardeleza primarily for violations of the Code of Professional Responsibility for representing conflicting interests.15

Both motions for intervention weredenied considering that time was of the essence and their motions were merely
reiterative of the positions of the JBC and were perceived to be dilatory. The complaint for disbarment, however,
was re-docketed as a separate administrative case.

The Issues

Amidst a myriad of issues submitted by the parties, most of which are interrelated such that the resolution of one
issue would necessarily affect the conclusion as to the others, the Court opts to narrow down the questions to the
very source of the discord - the correct application of Section 2, Rule 10 JBC-009 and its effects, if any, on the
substantive rights of applicants.
The Court is not unmindful of the fact that a facial scrutiny of the petition does not directly raise the
unconstitutionality of the subject JBC rule. Instead, it bewails the unconstitutional effects of its application. It is
only from the comment of the Executive Secretary where the possible unconstitutionality of the rulewas brought to
the fore. Despite this milieu, a practical approach dictatesthat the Court must confront the source of the bleeding
from which the gaping wound presented to the Court suffers.

The issues for resolution are:

I.

WHETHER OR NOT THE COURT CAN ASSUME JURISDICTION AND GIVE DUECOURSE TO THE SUBJECT
PETITION FOR CERTIORARI AND MANDAMUS (WITH APPLICATION FOR A TEMPORARY RESTRAINING
ORDER).

II

WHETHER OR NOT THE ISSUES RAISED AGAINST JARDELEZA BEFIT "QUESTIONS OR CHALLENGES ON
INTEGRITY" AS CONTEMPLATED UNDER SECTION 2, RULE 10 OF JBC-009.

II.

WHETHER OR NOT THE RIGHT TO DUE PROCESS IS AVAILABLE IN THE COURSE OF JBC PROCEEDINGS
IN CASES WHERE AN OBJECTION OR OPPOSITION TO AN APPLICATION IS RAISED.

III.

WHETHER OR NOT PETITIONER JARDELEZA MAY BE INCLUDED IN THE SHORTLIST OF NOMINEES


SUBMITTED TO THE PRESIDENT.

The Court’s Ruling

I – Procedural Issue: The Court has constitutional bases to assume jurisdiction over the case

A - The Court’s Power of Supervision over the JBC

Section 8, Article VIII of the 1987 Constitution provides for the creation of the JBC. The Court was given
supervisory authority over it. Section 8 reads:

Section 8.

A Judicial and Bar Council is hereby created under the supervision of the Supreme Courtcomposed of the Chief
Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio
Members, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and
a representative of the private sector. [Emphasis supplied]

As a meaningful guidepost, jurisprudence provides the definition and scope of supervision. It is the power of
oversight, or the authority to see that subordinate officers perform their duties.It ensures that the laws and the
rules governing the conduct of a government entity are observed and complied with. Supervising officials see to it
that rules are followed, but they themselves do not lay down such rules, nor do they have the discretion to modify
or replace them. If the rules are not observed, they may order the work done or redone, but only to conform to
such rules. They may not prescribe their own manner of execution of the act. They have no discretion on this
matter except to see to it that the rules are followed.16

Based on this, the supervisory authority of the Court over the JBC covers the overseeing of compliance with its
rules. In this case, Jardeleza’s principal allegations in his petition merit the exercise of this supervisory authority.

B- Availability of the Remedy of Mandamus

The Court agrees with the JBC that a writ of mandamus is not available. "Mandamuslies to compel the
performance, when refused, of a ministerial duty, but not to compel the performance of a discretionary duty.
Mandamuswill not issue to control or review the exercise of discretion of a public officer where the law imposes
upon said public officer the right and duty to exercise his judgment in reference to any matter in which he is
required to act. It is his judgment that is to be exercised and not that of the court.17 There is no question that the
JBC’s duty to nominate is discretionary and it may not becompelled to do something.

C- Availability of the Remedy of Certiorari

Respondent JBC opposed the petition for certiorarion the ground that it does not exercise judicial or quasi-judicial
functions. Under Section 1 of Rule 65, a writ of certiorariis directed against a tribunal exercising judicial or quasi-
judicial function. "Judicial functions are exercised by a body or officer clothed with authority to determine what the
law is and what the legal rights of the parties are with respect to the matter in controversy. Quasijudicial function is
a term that applies to the action or discretion of public administrative officers or bodies given the authority to
investigate facts or ascertain the existence of facts, hold hearings, and draw conclusions from them as a basis for
their official action using discretion of a judicial nature."18 It asserts that in the performance of its function of
recommending appointees for the judiciary, the JBC does not exercise judicial or quasijudicial functions. Hence,
the resort tosuch remedy to question its actions is improper.

In this case, Jardeleza cries that although he earned a qualifying number of votes in the JBC, it was negated by
the invocation of the "unanimity rule" on integrity in violation of his right to due process guaranteed not only by the
Constitution but by the Council’s own rules. For said reason, the Court is of the position that it can exercise the
expanded judicial power of review vestedupon it by the 1987 Constitution. Thus:

Article VIII.

Section 1. The judicial power is vested in one Supreme Court and in such lower courts as may be established by
law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.

It has been judicially settled that a petition for certiorari is a proper remedy to question the act of any branch or
instrumentality of the government on the ground of grave abuse of discretion amounting to lack or excess of
jurisdiction by any branch orinstrumentality of the government, even if the latter does not exercise judicial, quasi-
judicial or ministerial functions.19

In a case like this, where constitutional bearings are too blatant to ignore, the Court does not find passivity as an
alternative. The impassemust be overcome.

II – Substantial Issues

Examining the Unanimity Rule of the JBC in cases where an applicant’s integrity is challenged

The purpose of the JBC’s existence is indubitably rooted in the categorical constitutional declaration that"[a]
member of the judiciary must be a person of proven competence, integrity, probity, and independence." To ensure
the fulfillment of these standards in every member of the Judiciary, the JBC has been tasked toscreen aspiring
judges and justices, among others, making certain that the nominees submitted to the President are all qualified
and suitably best for appointment. In this way, the appointing process itself is shieldedfrom the possibility of
extending judicial appointment to the undeserving and mediocre and, more importantly, to the ineligible or
disqualified.

In the performance of this sacred duty, the JBC itself admits, as stated in the "whereas clauses" of JBC-009, that
qualifications such as "competence, integrity, probity and independence are not easily determinable as they are
developed and nurtured through the years." Additionally, "it is not possible or advisable to lay down iron-clad rules
to determine the fitness of those who aspire to become a Justice, Judge, Ombudsman or Deputy Ombudsman."
Given this realistic situation, there is a need "to promote stability and uniformity in JBC’s guiding precepts and
principles." A set of uniform criteria had to be established in the ascertainment of "whether one meets the
minimum constitutional qualifications and possesses qualities of mind and heart expected of him" and his office.
Likewise for the sake oftransparency of its proceedings, the JBC had put these criteria in writing, now in the form
of JBC-009. True enough, guidelines have been set inthe determination of competence,"20 "probity and
independence,"21 "soundness of physical and mental condition,22 and "integrity."23

As disclosed by the guidelines and lists of recognized evidence of qualification laid down in JBC-009, "integrity" is
closely related to, or if not, approximately equated to an applicant’s good reputation for honesty, incorruptibility,
irreproachableconduct, and fidelity to sound moral and ethical standards. That is why proof of an applicant’s
reputation may be shown in certifications or testimonials from reputable government officials and non-
governmental organizations and clearances from the courts, National Bureau of Investigation, and the police,
among others. In fact, the JBC may even conduct a discreet background check and receive feedback from the
public on the integrity, reputation and character of the applicant, the merits of which shall be verifiedand checked.
As a qualification, the term is taken to refer to a virtue, such that, "integrity is the quality of person’s character."24

The foregoing premise then begets the question: Does Rule 2, Section 10 of JBC-009, in imposing the "unanimity
rule," contemplate a doubt on the moral character of an applicant? Section 2, Rule 10 of JBC-009 provides:

SEC. 2. Votes required when integrity of a qualified applicant is challenged. - In every case where the integrity of
an applicant who is not otherwise disqualified for nomination is raised or challenged, the affirmative vote of all the
Members of the Council must be obtained for the favorable consideration of his nomination.

A simple reading of the above provision undoubtedly elicits the rule that a higher voting requirement is absolute in
cases where the integrity of an applicant is questioned. Simply put, when an integrity question arises, the voting
requirement for his or her inclusion as a nominee to a judicial post becomes "unanimous" instead of the "majority
vote" required in the preceding section.25 Considering that JBC-009 employs the term "integrity" as an essential
qualification for appointment, and its doubtful existence in a person merits a higher hurdle to surpass, that is, the
unanimous vote of all the members of the JBC, the Court is of the safe conclusion that "integrity" as used in the
rules must be interpreted uniformly. Hence, Section 2, Rule 10 of JBC-009 envisions only a situation where an
applicant’s moral fitness is challenged. It follows then that the "unanimity rule" only comes into operation when the
moral character of a person is put in issue. It finds no application where the question is essentially unrelated to an
applicant’s moral uprightness.

Examining the "questions of integrity" made against Jardeleza

The Court will now examine the propriety of applying Section 2, Rule 10 of JBC-009 to Jardeleza’s case.

The minutes of the JBC meetings, attached to the Supplemental Comment-Reply, reveal that during the June 30,
2014 meeting, not only the question on his actuations in the handling of a case was called for explanation by the
Chief Justice, but two other grounds as well tending to show his lack of integrity: a supposed extra-marital affair in
the past and alleged acts of insider trading.26

Against this factual backdrop, the Court notes that the initial or original invocation of Section 2, Rule 10 of
JBC-009 was grounded on Jardeleza’s "inability to discharge the duties of his office" as shown in a legal
memorandum related to Jardeleza’s manner of representing the government in a legal dispute. The records bear
that the "unanimity rule" was initially invoked by Chief Justice Sereno during the JBC meeting held on June 5,
2014, where she expressed her position that Jardeleza did not possess the integrity required tobe a member of
the Court.27 In the same meeting, the Chief Justice shared withthe other JBC members the details of Jardeleza’s
chosen manner of framing the government’s position in a case and how this could have been detrimental to the
national interest.

In the JBC’s original comment, the details of the Chief Justice’s claim against Jardeleza’s integrity were couched
in general terms. The particulars thereof were only supplied to the Court in the JBC’s Supplemental Comment-
Reply. Apparently, the JBC acceded to Jardeleza’s demand to make the accusations against him public. At the
outset, the JBC declined to raise the fine points of the integrity question in its original Comment due to its
significant bearing on the country’s foreign relations and national security. At any rate, the Court restrains itself
from delving into the details thereof in this disposition. The confidential nature of the document cited therein, which
requires the observance of utmost prudence, preclude a discussion that may possibly affect the country’s position
in a pending dispute.

Be that as it may, the Court has to resolve the standing questions: Does the original invocation of Section 2, Rule
10 of JBC-009 involve a question on Jardeleza’s integrity? Doeshis adoption of a specific legal strategy in the
handling of a case bring forth a relevant and logical challenge against his moral character? Does the "unanimity
rule" apply in cases where the main point of contention is the professional judgment sans charges or implications
of immoral or corrupt behavior?

The Court answers these questions in the negative.

While Chief Justice Sereno claims that the invocation of Section 2, Rule 10 of JBC-009 was not borne out ofa
mere variance of legal opinion but by an "act of disloyalty" committed by Jardeleza in the handling of a case, the
fact remains that the basis for her invocation of the rule was the "disagreement" in legal strategy as expressed by
a group of international lawyers. The approach taken by Jardeleza in that case was opposed to that preferred by
the legal team. For said reason, criticism was hurled against his "integrity." The invocation of the "unanimity rule"
on integrity traces its roots to the exercise ofhis discretion as a lawyer and nothing else. No connection was
established linking his choice of a legal strategy to a treacherous intent to trounce upon the country’s interests or
to betray the Constitution.

Verily, disagreement in legal opinion is but a normal, if not an essential form of, interaction among members of the
legal community. A lawyer has complete discretion on whatlegal strategy to employ in a case entrusted to
him28 provided that he lives up tohis duty to serve his client with competence and diligence, and that he exert his
best efforts to protect the interests of his client within the bounds of the law. Consonantly, a lawyer is not an
insurer of victory for clients he represents. An infallible grasp of legal principles and technique by a lawyer is a
utopian ideal. Stripped of a clear showing of gross neglect, iniquity, or immoral purpose, a strategy of a legal mind
remains a legal tactic acceptable to some and deplorable to others. It has no direct bearing on his moral choices.

As shown in the minutes, the other JBC members expressed their reservations on whether the ground invoked by
Chief Justice Sereno could be classified as a "question of integrity" under Section 2, Rule 10 of JBC-009.29These
reservations were evidently sourced from the factthat there was no clear indication that the tactic was a
"brainchild" of Jardeleza, as it might have been a collective idea by the legal team which initially sought a different
manner of presenting the country’s arguments, and there was no showing either of a corrupt purpose on his part.
30 Even Chief Justice Sereno was not certain that Jardeleza’s acts were urged by politicking or lured by

extraneous promises.31 Besides, the President, who has the final say on the conduct of the country’s advocacy in
the case, has given no signs that Jardeleza’s action constituted disloyalty or a betrayal of the country’s trust and
interest. While this point does notentail that only the President may challenge Jardeleza’s doubtful integrity, itis
commonsensical to assume that he is in the best position to suspect a treacherous agenda. The records are
bereft of any information that indicatesthis suspicion. In fact, the Comment of the Executive Secretary expressly
prayed for Jardeleza’s inclusion in the disputed shortlist.

The Court notes the zeal shown by the Chief Justice regarding international cases, given her participation in the
PIATCO case and the Belgian Dredging case. Her efforts inthe determination of Jardeleza’s professional
background, while commendable, have not produced a patent demonstration of a connection betweenthe act
complained of and his integrity as a person. Nonetheless, the Court cannot consider her invocation of Section 2,
Rule 10 of JBC-009 as conformably within the contemplation of the rule. To fall under Section 2, Rule 10 of
JBC-009, there must be a showing that the act complained of is, at the least, linked to the moral character of the
person and not to his judgment as a professional. What this disposition perceives, therefore, is the inapplicability
of Section 2, Rule 10 of JBC-009 to the original ground of its invocation.

As previously mentioned, Chief Justice Sereno raised the issues of Jardeleza’s alleged extra-marital affair and
acts of insider-trading for the first time onlyduring the June 30, 2014 meeting of the JBC. As can be gleaned from
the minutes of the June 30, 2014 meeting, the inclusion of these issues had its origin from newspaper reports that
the Chief Justice might raise issues of "immorality" against Jardeleza.32 The Chief Justice then deduced that the
"immorality" issue referred to by the media might have been the incidents that could have transpired when
Jardeleza was still the General Counsel of San Miguel Corporation. She stated that inasmuch as the JBC had the
duty to "take every possible step to verify the qualification of the applicants," it might as well be clarified.33

Do these issues fall within the purview of "questions on integrity" under Section 2, Rule 10 of JBC-009? The Court
nods in assent. These are valid issues.

This acquiescence is consistent with the Court’s discussion supra. Unlike the first ground which centered
onJardeleza’s stance on the tactical approach in pursuing the case for the government, the claims of an illicit
relationship and acts of insider trading bear a candid relation to his moral character. Jurisprudence34 is replete
with cases where a lawyer’s deliberate participation in extra-marital affairs was considered as a disgraceful stain
on one’s ethical and moral principles. The bottom line is that a lawyer who engages in extra-marital affairs is
deemed to have failed to adhere to the exacting standards of morality and decency which every member of the
Judiciary is expected to observe. In fact, even relationships which have never gone physical or intimate could still
be subject to charges of immorality, when a lawyer, who is married, admits to having a relationship which was
more than professional, more than acquaintanceship, more than friendly.35 As the Court has held: Immorality has
not been confined to sexual matters, but includes conduct inconsistentwith rectitude, or indicative of corruption,
indecency, depravity and dissoluteness; or is willful, flagrant, or shameless conduct showing moral indifference to
opinions of respectable members of the communityand an inconsiderate attitude toward good order and public
welfare.36 Moral character is not a subjective term but one that corresponds to objective reality.37 To have a good
moral character, a person must have the personal characteristic ofbeing good. It is not enough that he or she has
a good reputation, that is, the opinion generally entertained about a person or the estimate in which he or she is
held by the public in the place where she is known.38 Hence, lawyers are at all times subject to the watchful public
eye and community approbation.39

The element of "willingness" to linger in indelicate relationships imputes a weakness in one’s values, self-control
and on the whole, sense of honor, not only because it is a bold disregard of the sanctity of marriage and of the
law, but because it erodes the public’s confidence in the Judiciary. This is no longer a matter of an honest lapse in
judgment but a dissolute exhibition of disrespect toward sacredvows taken before God and the law.

On the other hand, insider trading is an offense that assaults the integrity of our vital securities market.
40Manipulative devices and deceptive practices, including insider trading, throw a monkey wrench right into the

heart of the securities industry. Whensomeone trades inthe market with unfair advantage in the form of highly
valuable secret inside information, all other participants are defrauded. All of the mechanisms become worthless.
Given enough of stock marketscandals coupled with the related loss of faith in the market, such abuses could
presage a severe drain of capital. And investors would eventuallyfeel more secure with their money invested
elsewhere.41 In its barest essence, insider trading involves the trading of securities based on knowledge of
material information not disclosed to the public at the time. Clearly, an allegation of insider trading involves the
propensity of a person toengage in fraudulent activities that may speak of his moral character.

These two issues can be properly categorized as "questions on integrity" under Section 2, Rule 10 of JBC-009.
They fall within the ambit of "questions on integrity." Hence, the "unanimity rule" may come into operation as the
subject provision is worded.

The Availability of Due Process in the

Proceedings of the JBC

In advocacy of his position, Jardeleza argues that: 1] he should have been informed of the accusations against
him in writing; 2] he was not furnished the basis of the accusations, that is, "a very confidential legal memorandum
that clarifies the integrityobjection"; 3] instead of heeding his request for an opportunity to defend himself, the JBC
considered his refusal to explain, during the June 30, 2014 meeting, as a waiver of his right to answer the
unspecified allegations; 4] the voting of the JBC was railroaded; and 5] the alleged "discretionary" nature of
Sections 3 and 4 of JBC-009 is negated by the subsequent effectivity of JBC-010, Section 1(2) of which provides
for a 10-day period from the publication of the list of candidates within which any complaint or opposition against a
candidate may be filed with the JBC Secretary; 6] Section 2 of JBC-010 requires complaints and oppositions to be
in writing and under oath, copies of which shall be furnished the candidate in order for him to file his comment
within five (5) days from receipt thereof; and 7] Sections 3 to 6 of JBC-010 prescribe a logical, reasonable and
sequential series of steps in securing a candidate’s right to due process.

The JBC counters these by insisting that it is not obliged to afford Jardeleza the right to a hearing in the fulfillment
of its duty to recommend. The JBC, as a body, is not required by law to hold hearings on the qualifications of the
nominees. The process by which an objection is made based on Section 2, Rule 10 of JBC-009 is not judicial,
quasi-judicial, or fact-finding, for it does not aim to determine guilt or innocence akin to a criminal or administrative
offense but toascertain the fitness of an applicant vis-à-vis the requirements for the position. Being sui generis, the
proceedings of the JBC do not confer the rights insisted upon by Jardeleza. He may not exact the application of
rules of procedure which are, at the most, discretionary or optional. Finally, Jardeleza refused to shed light on the
objections against him. During the June 30, 2014 meeting, he did not address the issues, but instead chose
totread on his view that the Chief Justice had unjustifiably become his accuser, prosecutor and judge.

The crux of the issue is on the availability of the right to due process in JBC proceedings. After a tedious review of
the parties’ respective arguments, the Court concludes that the right to due process is available and thereby
demandable asa matter of right.

The Court does not brush aside the unique and special nature of JBC proceedings. Indeed, they are distinct from
criminal proceedings where the finding of guilt or innocence of the accused is sine qua non. The JBC’s
constitutional duty to recommend qualified nominees to the President cannot be compared to the duty of the
courts of law to determine the commission of an offense and ascribe the same to an accused, consistent with
established rules on evidence. Even the quantum ofevidence required in criminal cases is far from the discretion
accorded to the JBC.

The Court, however, could not accept, lock, stock and barrel, the argument that an applicant’s access tothe rights
afforded under the due process clause is discretionary on the part of the JBC. While the facets of criminal42 and
administrative43 due process are not strictly applicable to JBC proceedings, their peculiarity is insufficient to justify
the conclusion that due process is not demandable.

In JBC proceedings, an aspiring judge or justice justifies his qualifications for the office when he presents proof of
his scholastic records, work experience and laudable citations. His goal is to establish that he is qualified for the
office applied for. The JBC then takes every possible step to verify an applicant's trackrecord for the purpose
ofdetermining whether or not he is qualified for nomination. It ascertains the factors which entitle an applicant to
become a part of the roster from which the President appoints.

The fact that a proceeding is sui generisand is impressed with discretion, however, does not automatically
denigrate an applicant’s entitlement to due process. It is well-established in jurisprudence that disciplinary
proceedings against lawyers are sui generisin that they are neither purely civil nor purely criminal; they involve
investigations by the Court into the conduct of one of its officers, not the trial of an action or a suit.44 Hence, in the
exercise of its disciplinary powers, the Court merely calls upon a member of the Bar to accountfor his actuations
as an officer of the Court with the end in view of preserving the purity of the legal profession and the proper and
honest administration of justice by purging the profession of members who, by their misconduct, have proved
themselves no longer worthy to be entrusted with the duties and responsibilities pertaining to the office of an
attorney. In such posture, there can be no occasion to speak of a complainant or a prosecutor.45 On the whole,
disciplinary proceedings are actually aimed to verifyand finally determine, if a lawyer charged is still qualifiedto
benefit from the rights and privileges that membership in the legal profession evoke.

Notwithstanding being "a class of itsown," the right to be heard and to explain one’s self is availing. The Court
subscribes to the view that in cases where an objection to an applicant’s qualifications is raised, the observance of
due process neither negates nor renders illusory the fulfillment of the duty of JBC torecommend. This holding is
not an encroachment on its discretion in the nomination process. Actually, its adherence to the precepts of due
process supports and enriches the exercise of its discretion. When an applicant, who vehemently denies the truth
of the objections, is afforded the chance to protest, the JBC is presented with a clearer understanding of the
situation it faces, thereby guarding the body from making an unsound and capriciousassessment of information
brought before it. The JBC is not expected to strictly apply the rules of evidence in its assessment of an objection
against an applicant. Just the same, to hear the side of the person challenged complies with the dictates of
fairness for the only test that an exercise of discretion must surmount is that of soundness.

A more pragmatic take on the matter of due process in JBC proceedings also compels the Court to examine its
current rules. The pleadings of the parties mentioned two: 1] JBC-009 and 2] JBC-010. The former provides the
following provisions pertinent to this case:

SECTION 1. Evidence of integrity. - The Council shall take every possible step to verify the applicant's record of
and reputation for honesty, integrity, incorruptibility, irreproachable conduct, and fidelity to sound moral and ethical
standards. For this purpose, the applicant shall submit to the Council certifications or testimonials thereof from
reputable government officials and non-governmental organizations, and clearances from the courts, National
Bureau of Investigation, police, and from such other agencies as the Council may require.

SECTION 2. Background check. - The Council mayorder a discreet background check on the integrity, reputation
and character of the applicant, and receive feedback thereon from the public, which it shall check or verify to
validate the merits thereof.

SECTION 3. Testimony of parties.- The Council may receive written opposition to an applicant on groundof his
moral fitness and, at its discretion, the Council mayreceive the testimony of the oppositor at a hearing conducted
for the purpose, with due notice to the applicant who shall be allowed to cross-examine the oppositor and to offer
countervailing evidence.

SECTION 4. Anonymous complaints. - Anonymous complaints against an applicant shall not begiven due course,
unless there appears on its face a probable cause sufficient to engender belief that the allegations may be true. In
the latter case, the Council may either direct a discreet investigation or require the applicant to comment thereon
in writing or during the interview. [Emphases Supplied]

While the "unanimity rule" invoked against him is found in JBC-009, Jardeleza urges the Court to hold that the
subsequent rule, JBC-010,46 squarely applies to his case. Entitled asa "Rule to Further Promote Public Awareness
of and Accessibility to the Proceedings of the Judicial and Bar Council," JBC-010 recognizes the needfor
transparency and public awareness of JBC proceedings. In pursuance thereof, JBC-010 was crafted in this wise:

SECTION 1. The Judicial and Bar Council shall deliberate to determine who of the candidates meet prima facie
the qualifications for the positionunder consideration. For this purpose, it shall prepare a long list of candidates
who prima facieappear to have all the qualifications.

The Secretary of the Council shall then cause to be published in two (2) newspapers of general circulation a
notice of the long list of candidates in alphabetical order.

The notice shall inform the public that any complaint or opposition against a candidate may be filed with the
Secretary within ten (10) days thereof.

SECTION 2.The complaint or opposition shall be in writing, under oath and in ten (10) legible copies, together with
its supporting annexes. It shall strictly relate to the qualifications of the candidate or lack thereof, as provided for in
the Constitution, statutes, and the Rules of the Judicial and Bar Council, as well as resolutions or regulations
promulgated by it.

The Secretary of the Council shallfurnish the candidate a copy of the complaint or opposition against him. The
candidate shall have five (5) days from receipt thereof within which to file his comment to the complaint or
opposition, if he so desires.

SECTION 3.The Judicial and Bar Council shall fix a date when it shall meet in executive session to consider the
qualification of the long list of candidates and the complaint or opposition against them, if any. The Council may,
on its own, conduct a discreet investigation of the background of the candidates.

On the basis of its evaluationof the qualification of the candidates, the Council shall prepare the shorter list of
candidates whom it desires to interview for its further consideration.

SECTION 4.The Secretary of the Council shall again cause to be published the dates of the interview of
candidates in the shorter list in two (2) newspapers of general circulation. It shall likewise be posted in the
websites of the Supreme Court and the Judicial and Bar Council.

The candidates, as well as their oppositors, shall be separately notified of the dateand place of the interview.

SECTION 5.The interviews shall be conducted in public. During the interview, only the members ofthe Council can
ask questions to the candidate. Among other things, the candidate can be made to explain the complaint or
opposition against him.

SECTION 6. After the interviews, the Judicial and Bar Council shall again meet in executive session for the final
deliberation on the short list of candidates which shall be sent to the Office of the President as a basis for the
exercise of the Presidential power of appointment. [Emphases supplied]

Anent the interpretation of these existing rules, the JBC contends that Sections 3 and 4, Rule 10 of JBC-009 are
merely directory in nature as can be gleaned from the use of the word "may." Thus, the conduct of a hearing under
Rule 4 of JBC-009 is permissive and/or discretionary on the part of the JBC. Even the conduct of a hearing to
determine the veracity of an opposition is discretionary for there are ways, besides a hearing, to ascertain the
truth or falsity of allegations. Succinctly, this argument suggests that the JBC has the discretion to hold or not to
hold a hearing when an objection to an applicant’s integrity is raised and that it may resort to other means to
accomplish its objective. Nevertheless, JBC adds, "what is mandatory, however, is that if the JBC, in its discretion,
receives a testimony of an oppositor in a hearing, due notice shall be given to the applicant and that shall be
allowed to cross-examine the oppositor."47 Again, the Court neither intends to strip the JBC of its discretion to
recommend nominees nor proposes thatthe JBC conduct a full-blown trial when objections to an application are
submitted. Still, it is unsound to say that, all together, the observance of due process is a part of JBC’s discretion
when an opposition to an application is made of record. While it may so rely on "other means" such as character
clearances, testimonials, and discreet investigation to aid it in forming a judgment of an applicant’s qualifications,
the Court cannot accept a situation where JBC is given a full rein on the application of a fundamental right
whenever a person’s integrity is put to question. In such cases, an attack on the person of the applicant
necessitates his right to explain himself.

The JBC’s own rules convince the Court to arrive at this conclusion. The subsequent issuance of JBC-010
unmistakably projects the JBC’s deference to the grave import of the right of the applicant to be informed and
corollary thereto, the right to be heard. The provisions of JBC-010, per se, provide that: any complaint or
opposition against a candidate may be filed with the Secretary within ten (10) days thereof; the complaint or
opposition shall be in writing, under oath and in ten (10) legible copies; the Secretary of the Council shall furnish
the candidate a copy of the complaint or opposition against him; the candidate shall have five (5) days from
receipt thereof within which to file his comment to the complaint or opposition, if he so desires; and the candidate
can be made to explain the complaint or opposition against him.

The Court may not close its eyes to the existence of JBC-010 which, under the rules of statutory
construction,bears great weight in that: 1] it covers "any" complaint or opposition; 2] it employs the mandatory
term, "shall"; and 3] most importantly, it speaks of the very essence of due process. While JBC-010 does not
articulate a procedure that entails a trialtype hearing, it affords an applicant, who faces "any complaint or
opposition," the right to answer the accusations against him. This constitutes the minimum requirements of due
process.

Application to Jardeleza’s Case

Nearing the ultimate conclusion of this case, the Court is behooved to rule on whether Jardeleza was deprived of
his right to due process in the events leading up to, and during, the vote on the shortlist last June 30, 2014.

The JBC gives great weight and substance to the fact that it gave Jardeleza the opportunity to answer the
allegations against him. It underscores the fact that Jardeleza was asked to attend the June 30, 2014 meeting so
that he could shed light on the issues thrown at him. During the said meeting, Chief Justice Sereno informed him
that in connection with his candidacy for the position of Associate Justice of the Supreme Court, the Council would
like to propound questions on the following issues raised against him: 1] his actuations in handling an international
arbitration case not compatible with public interest;48 2] reports on his extra-marital affair in SMC; and 3] alleged
insider trading which led to the "show cause" order from the Philippine Stock Exchange.49

As Jardeleza himself admitted, he declined to answer or to explain his side, as he would not want to be "lulled into
waiving his rights." Instead, he manifested that his statement be put on record and informed the Council of the
then pendency of his letter-petition with the Court en banc. When Chief Justice Sereno informed Jardeleza that
the Council would want to hear from him on the three (3) issues against him,Jardeleza reasoned out that this was
precisely the issue. He found it irregular that he was not being given the opportunity to be heard per the JBC
rules.He asserted that a candidate must be given the opportunity to respond to the charges against him. He urged
the Chief Justice to step down from her pedestal and translate the objections in writing. Towards the end of the
meeting, the Chief Justice said that both Jardeleza’s written and oral statements would be made part of the
record. After Jardeleza was excused from the conference, Justice Lagman suggested that the voting be deferred,
but the Chief Justice ruled that the Council had already completed the process required for the voting to proceed.

After careful calibration of the case, the Court has reached the determination that the application of the "unanimity
rule" on integrity resulted in Jardeleza’s deprivation of his right to due process.

As threshed out beforehand, due process, as a constitutional precept, does not always and in all situations require
a trial-type proceeding. Due process is satisfied when a person is notified of the charge against him and given an
opportunity to explain or defend himself.50 Even as Jardeleza was verbally informed of the invocation of Section 2,
Rule 10 of JBC-009 against him and was later asked to explain himself during the meeting, these circumstances
still cannot expunge an immense perplexity that lingers in the mind of the Court. What is to become of the
procedure laid down in JBC-010 if the same would be treated with indifference and disregard? To repeat, as its
wording provides, any complaint or opposition against a candidate may be filed with the Secretary withinten (10)
days from the publication of the notice and a list of candidates. Surely, this notice is all the more conspicuous to
JBC members. Granting ex argumenti, that the 10-day period51 is only applicable to the public, excluding the JBC
members themselves, this does not discount the fact that the invocation of the first ground in the June 5, 2014
meeting would have raised procedural issues. To be fair, several members of the Council expressed their concern
and desire to hear out Jardeleza but the application of JBC-010 did not form part of the agenda then. It was only
during the next meeting on June 16, 2014, that the Council agreed to invite Jardeleza, by telephone, to a meeting
that would be held on the same day when a resource person would shed light on the matter.

Assuming again that the classified nature of the ground impelled the Council to resort to oral notice instead of
furnishing Jardeleza a written opposition, why did the JBC not take into account its authority to summon Jardeleza
in confidence at an earlier time? Is not the Council empowered to "take every possible step to verify the
qualification of the applicants?" It would not be amiss to state, at this point, that the confidential legal
memorandum used in the invocation ofthe "unanimity rule" was actually addressed to Jardeleza, in his capacity as
Solicitor General. Safe to assume is his knowledge of the privileged nature thereof and the consequences of its
indiscriminate release to the public. Had he been privately informed of the allegations against him based on the
document and had he been ordered to respond thereto in the same manner, Jardeleza’s right to be informed and
to explain himself would have been satisfied.

What precisely set off the protest of lack of due process was the circumstance of requiring Jardeleza to appear
before the Council and to instantaneously provide those who are willing to listen an intelligent defense. Was he
given the opportunity to do so? The answer is yes, in the context of his physical presence during the meeting.
Was he given a reasonable chance to muster a defense? No, because he was merely asked to appear in a
meeting where he would be, right then and there, subjected to an inquiry. It would all be too well to remember that
the allegations of his extra-marital affair and acts of insider trading sprung up only during the June 30, 2014
meeting. While the said issues became the object of the JBC discussion on June 16, 2014, Jardeleza was not
given the idea that he should prepare to affirm or deny his past behavior. These circumstances preclude the very
idea of due process in which the right to explain oneself is given, not to ensnare by surprise, but toprovide the
person a reasonable opportunity and sufficient time to intelligently muster his response. Otherwise, the occasion
becomes anidle and futile exercise.

Needless to state, Jardeleza’s grievance is not an imagined slight but a real rebuff of his right to be informed of
the charges against him and his right to answer the same with vigorouscontention and active participation in the
proceedings which would ultimately decide his aspiration to become a magistrate of this Court.

Consequences
To write finisto this controversy and in view of the realistic and practical fruition of the Court’s findings, the Court
now declares its position on whether or not Jardeleza may be included in the shortlist, just in time when the period
to appoint a member of the Court is about to end.

The conclusion of the Court is hinged on the following pivotal points:

1. There was a misapplication of the "unanimity rule" under Section 2, Rule 10 of JBC-009 as to Jardeleza’s legal
strategy in handling a case for the government.

2. While Jardeleza’s alleged extra-marital affair and acts of insider trading fall within the contemplation of a
"question on integrity" and would have warranted the application of the "unanimity rule," he was notafforded due
process in its application.

3. The JBC, as the sole body empowered to evaluate applications for judicial posts, exercises full discretion on its
power to recommend nomineesto the President. The sui generischaracter of JBC proceedings, however, is not a
blanket authority to disregard the due process under JBC-010.

4. Jardeleza was deprived of his right to due process when, contrary to the JBC rules, he was neither formally
informed of the questions on his integrity nor was provided a reasonable opportunity to prepare his defense.

With the foregoing, the Court is compelled to rule that Jardeleza should have been included in the shortlist
submitted to the President for the vacated position of Associate Justice Abad. This consequence arose not from
the unconstitutionality of Section 2, Rule 10 of JBC-009, per se, but from the violation by the JBC of its own rules
of procedure and the basic tenets of due process. By no means does the Court intend to strike down the
"unanimity rule" as it reflects the JBC’s policy and, therefore, wisdom in its selection of nominees. Even so, the
Court refuses to turn a blind eye on the palpable defects in its implementation and the ensuing treatment that
Jardeleza received before the Council. True, Jardeleza has no vested right to a nomination, but this does not
prescind from the fact that the JBC failed to observe the minimum requirements of due process.

In criminal and administrative cases, the violation of a party’s right to due process raises a serious jurisdictional
issue which cannot be glossed over or disregarded at will. Where the denial of the fundamental right of due
process is apparent, a decision rendered in disregard of that right is void for lack of jurisdiction.52 This rule may
well be applied to the current situation for an opposing view submits to an undue relaxation of the Bill of Rights. To
this, the Court shall not concede. Asthe branch of government tasked to guarantee that the protection of due
process is available to an individual in proper cases, the Court finds the subject shortlist as tainted with a vice that
it is assigned to guard against. Indeed, the invocation of Section 2, Rule 10 of JBC-009 must be deemed to have
never come into operation in light of its erroneous application on the original ground against Jardeleza’s integrity.
At the risk of being repetitive, the Court upholds the JBC’s discretion in the selection of nominees, but its
application of the "unanimity rule" must be applied in conjunction with Section 2, Rule 10 of JBC-010 being
invoked by Jardeleza. Having been able to secure four (4) out of six (6) votes, the only conclusion left to propound
is that a majority of the members of the JBC, nonetheless, found Jardeleza to be qualified for the position of
Associate Justice and this grants him a rightful spot in the shortlist submitted to the President. Need to Revisit
JBC’s

Internal Rules

In the Court’s study of the petition,the comments and the applicable rules of the JBC, the Court is of the view that
the rules leave much to be desired and should be reviewed and revised. It appears that the provision on the
"unanimity rule" is vagueand unfair and, therefore, can be misused or abused resulting in the deprivation of an
applicant’s right to due process.

Primarily, the invocation of the "unanimity rule" on integrity is effectively a veto power over the collective will of a
majority. This should be clarified. Any assertion by a member aftervoting seems to be unfair because it effectively
gives him or her a veto power over the collective votes of the other members in view of the unanimous
requirement. While an oppositor-member can recuse himself orherself, still the probability of annulling the majority
vote ofthe Council is quite high.

Second, integrity as a ground has not been defined. While the initial impression is that it refers to the moral fiber of
a candidate, it can be, as it has been, used to mean other things. Infact, the minutes of the JBC meetings n this
case reflect the lack of consensus among the members as to its precise definition. Not having been defined or
described, it is vague, nebulous and confusing. It must be distinctly specified and delineated.

Third, it should explicitly provide who can invoke it as a ground against a candidate. Should it be invoked only by
an outsider as construed by the respondent Executive Secretary or also by a member?

Fourth, while the JBC vetting proceedings is "sui generis" and need not be formal or trial type, they must meet the
minimum requirements of due process. As always, an applicant should be given a reasonable opportunity and
time to be heard on the charges against him or her, if there are any.

At any rate, it is up to the JBC to fine-tune the rules considering the peculiar nature of its function. It need not be
stressed that the rules to be adopted should be fair, reasonable, unambiguous and consistent with the minimum
requirements of due process.

One final note.


The Court disclaims that Jardeleza's inclusion in the shortlist is an endorsement of his appointment as a member
of the Court.1âwphi1 In deference to the Constitution and his wisdom in the exercise of his appointing power, the
President remains the ultimate judge of a candidate's worthiness.

WHEREFORE, the petition is GRANTED. Accordingly, it is hereby declared that Solicitor General Francis I-I.
Jardeleza is deemed INCLUDED in the shortlist submitted to the President for consideration as an Associate
Justice of the Supreme Court vice Associate Justice Roberto A. Abad.

The Court further DIRECTS that the Judicial and Bar Council REVIEW, and ADOPT, rules relevant to the
observance of due process in its proceedings, particularly JBC-009 and JBC-010, subject to the approval of the
Court.

This Decision is immediately EXECUTORY. Immediately notify the Office of the President of this Decision.

SO ORDERED.

! 

EN BANC

G.R. No. 139465 October 17, 2000

SECRETARY OF JUSTICE, petitioner, 



vs.

HON. RALPH C. LANTION, Presiding Judge, Regional Trial Court of Manila, Branch 25, and MARK B.
JIMENEZ, respondents.

RESOLUTION

PUNO, J.:

On January 18, 2000, by a vote of 9-6, we dismissed the petition at bar and ordered the petitioner to furnish
private respondent copies of the extradition request and its supporting papers and to grant him a reasonable
period within which to file his comment with supporting evidence.1

On February 3, 2000, the petitioner timely filed an Urgent Motion for Reconsideration. He assails the decision on
the following grounds:

"The majority decision failed to appreciate the following facts and points of substance and of value which, if
considered, would alter the result of the case, thus:

I. There is a substantial difference between an evaluation process antecedent to the filing of an extradition petition
in court and a preliminary investigation.

II. Absence of notice and hearing during the evaluation process will not result in a denial of fundamental fairness.

III. In the evaluation process, instituting a notice and hearing requirement satisfies no higher objective.

IV. The deliberate omission of the notice and hearing requirement in the Philippine Extradition Law is intended to
prevent flight.

V. There is a need to balance the interest between the discretionary powers of government and the rights of an
individual.

VI. The instances cited in the assailed majority decision when the twin rights of notice and hearing may be
dispensed with in this case results in a non sequitur conclusion.

VII. Jimenez is not placed in imminent danger of arrest by the Executive Branch necessitating notice and hearing.

VIII. By instituting a 'proceeding' not contemplated by PD No. 1069, the Supreme Court has encroached upon the
constitutional boundaries separating it from the other two co-equal branches of government.

IX. Bail is not a matter of right in proceedings leading to extradition or in extradition proceedings."2

On March 28, 2000, a 58-page Comment was filed by the private respondent Mark B. Jimenez, opposing
petitioner’s Urgent Motion for Reconsideration.

On April 5, 2000, petitioner filed an Urgent Motion to Allow Continuation and Maintenance of Action and Filing of
Reply. Thereafter, petitioner filed on June 7, 2000 a Manifestation with the attached Note 327/00 from the
Embassy of Canada and Note No. 34 from the Security Bureau of the Hongkong SAR Government Secretariat.
On August 15, 2000, private respondent filed a Manifestation and Motion for Leave to File Rejoinder in the event
that petitioner's April 5, 2000 Motion would be granted. Private respondent also filed on August 18, 2000, a Motion
to Expunge from the records petitioner's June 7, 2000 Manifestation with its attached note verbales. Except for the
Motion to Allow Continuation and Maintenance of Action, the Court denies these pending motions and hereby
resolves petitioner's Urgent Motion for Reconsideration.

The jugular issue is whether or not the private respondent is entitled to the due process right to notice and
hearing during the evaluation stage of the extradition process.
We now hold that private respondent is bereft of the right to notice and hearing during the evaluation stage of
the extradition process.

First. P.D. No. 10693 which implements the RP-US Extradition Treaty provides the time when an extraditee shall
be furnished a copy of the petition for extradition as well as its supporting papers, i.e., after the filing of the petition
for extradition in the extradition court, viz:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing; Service of Notices. - (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order . . . Upon receipt of the answer, or should the accused
after having received the summons fail to answer within the time fixed, the presiding judge shall hear the case or
set another date for the hearing thereof.

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon
the accused and the attorney having charge of the case."

It is of judicial notice that the summons includes the petition for extradition which will be answered by the
extraditee.

There is no provision in the RP-US Extradition Treaty and in P.D. No. 1069 which gives an extraditee the right to
demand from the petitioner Secretary of Justice copies of the extradition request from the US government and its
supporting documents and to comment thereon while the request is still undergoing evaluation. We cannot
write a provision in the treaty giving private respondent that right where there is none. It is well-settled that a "court
cannot alter, amend, or add to a treaty by the insertion of any clause, small or great, or dispense with any of its
conditions and requirements or take away any qualification, or integral part of any stipulation, upon any motion of
equity, or general convenience, or substantial justice."4

Second. All treaties, including the RP-US Extradition Treaty, should be interpreted in light of their intent.
Nothing less than the Vienna Convention on the Law of Treaties to which the Philippines is a signatory provides
that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of
the treaty in their context and in light of its object and purpose."5 (emphasis supplied) The preambular
paragraphs of P.D. No. 1069 define its intent, viz:

"WHEREAS, under the Constitution[,] the Philippines adopts the generally accepted principles of international law
as part of the law of the land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity
with all nations;

WHEREAS, the suppression of crime is the concern not only of the state where it is committed but also of any
other state to which the criminal may have escaped, because it saps the foundation of social life and is an outrage
upon humanity at large, and it is in the interest of civilized communities that crimes should not go unpunished;

WHEREAS, in recognition of this principle the Philippines recently concluded an extradition treaty with the
Republic of Indonesia, and intends to conclude similar treaties with other interested countries;

x x x." (emphasis supplied)

It cannot be gainsaid that today, countries like the Philippines forge extradition treaties to arrest the dramatic rise
of international and transnational crimes like terrorism and drug trafficking. Extradition treaties provide the
assurance that the punishment of these crimes will not be frustrated by the frontiers of territorial sovereignty.
Implicit in the treaties should be the unbending commitment that the perpetrators of these crimes will not be
coddled by any signatory state.

It ought to follow that the RP-US Extradition Treaty calls for an interpretation that will minimize if not prevent the
escape of extraditees from the long arm of the law and expedite their trial. The submission of the private
respondent, that as a probable extraditee under the RP-US Extradition Treaty he should be furnished a copy of
the US government request for his extradition and its supporting documents even while they are still under
evaluation by petitioner Secretary of Justice, does not meet this desideratum. The fear of the petitioner Secretary
of Justice that the demanded notice is equivalent to a notice to flee must be deeply rooted on the experience of
the executive branch of our government. As it comes from the branch of our government in charge of the faithful
execution of our laws, it deserves the careful consideration of this Court. In addition, it cannot be gainsaid that
private respondent’s demand for advance notice can delay the summary process of executive evaluation of the
extradition request and its accompanying papers. The foresight of Justice Oliver Wendell Holmes did not miss this
danger. In 1911, he held:

"It is common in extradition cases to attempt to bring to bear all the factitious niceties of a criminal trial at common
law. But it is a waste of time . . . if there is presented, even in somewhat untechnical form according to our ideas,
such reasonable ground to suppose him guilty as to make it proper that he should be tried, good faith to the
demanding government requires his surrender."6 (emphasis supplied)

We erode no right of an extraditee when we do not allow time to stand still on his prosecution. Justice is best
served when done without delay.

Third. An equally compelling factor to consider is the understanding of the parties themselves to the RP-US
Extradition Treaty as well as the general interpretation of the issue in question by other countries with
similar treaties with the Philippines. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly charged with their negotiation and
enforcement is accorded great weight.7 The reason for the rule is laid down in Santos III v. Northwest Orient
Airlines, et al.,8 where we stressed that a treaty is a joint executive-legislative act which enjoys the presumption
that "it was first carefully studied and determined to be constitutional before it was adopted and given the force of
law in the country."

Our executive department of government, thru the Department of Foreign Affairs (DFA) and the Department of
Justice (DOJ), has steadfastly maintained that the RP-US Extradition Treaty and P.D. No. 1069 do not grant the
private respondent a right to notice and hearing during the evaluation stage of an extradition process.9 This
understanding of the treaty is shared by the US government, the other party to the treaty.10 This
interpretation by the two governments cannot be given scant significance. It will be presumptuous for the Court to
assume that both governments did not understand the terms of the treaty they concluded.

Yet, this is not all. Other countries with similar extradition treaties with the Philippines have expressed the
same interpretation adopted by the Philippine and US governments. Canadian11 and Hongkong12 authorities,
thru appropriate note verbales communicated to our Department of Foreign Affairs, stated in unequivocal
language that it is not an international practice to afford a potential extraditee with a copy of the extradition papers
during the evaluation stage of the extradition process. We cannot disregard such a convergence of views unless it
is manifestly erroneous.

Fourth. Private respondent, however, peddles the postulate that he must be afforded the right to notice and
hearing as required by our Constitution. He buttresses his position by likening an extradition proceeding to a
criminal proceeding and the evaluation stage to a preliminary investigation.

We are not persuaded. An extradition proceeding is sui generis. It is not a criminal proceeding which will call
into operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused.13 His guilt or
innocence will be adjudged in the court of the state where he will be extradited. Hence, as a rule, constitutional
rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extraditee
especially by one whose extradition papers are still undergoing evaluation.14 As held by the US Supreme Court
in United States v. Galanis:

"An extradition proceeding is not a criminal prosecution, and the constitutional safeguards that accompany a
criminal trial in this country do not shield an accused from extradition pursuant to a valid treaty."15

There are other differences between an extradition proceeding and a criminal proceeding. An extradition
proceeding is summary in nature while criminal proceedings involve a full-blown trial.16 In contradistinction to a
criminal proceeding, the rules of evidence in an extradition proceeding allow admission of evidence under less
stringent standards.17 In terms of the quantum of evidence to be satisfied, a criminal case requires proof beyond
reasonable doubt for conviction18 while a fugitive may be ordered extradited "upon showing of the existence of a
prima facie case."19 Finally, unlike in a criminal case where judgment becomes executory upon being rendered
final, in an extradition proceeding, our courts may adjudge an individual extraditable but the President has the final
discretion to extradite him.20 The United States adheres to a similar practice whereby the Secretary of State
exercises wide discretion in balancing the equities of the case and the demands of the nation's foreign relations
before making the ultimate decision to extradite.21

As an extradition proceeding is not criminal in character and the evaluation stage in an extradition
proceeding is not akin to a preliminary investigation, the due process safeguards in the latter do not
necessarily apply to the former. This we hold for the procedural due process required by a given set of
circumstances "must begin with a determination of the precise nature of the government function involved as
well as the private interest that has been affected by governmental action."22 The concept of due process is
flexible for "not all situations calling for procedural safeguards call for the same kind of procedure."23

Fifth. Private respondent would also impress upon the Court the urgency of his right to notice and hearing
considering the alleged threat to his liberty "which may be more priceless than life."24 The supposed threat to
private respondent’s liberty is perceived to come from several provisions of the RP-US Extradition Treaty and P.D.
No. 1069 which allow provisional arrest and temporary detention.

We first deal with provisional arrest. The RP-US Extradition Treaty provides as follows:

"PROVISIONAL ARREST

1. In case of urgency, a Contracting Party may request the provisional arrest of the person sought pending
presentation of the request for extradition. A request for provisional arrest may be transmitted through the
diplomatic channel or directly between the Philippine Department of Justice and the United States Department of
Justice.

2. The application for provisional arrest shall contain:

a) a description of the person sought;

b) the location of the person sought, if known;


c) a brief statement of the facts of the case, including, if possible, the time and location of the offense;

d) a description of the laws violated;

e) a statement of the existence of a warrant of arrest or finding of guilt or judgment of conviction against the
person sought; and

f) a statement that a request for extradition for the person sought will follow.

3. The Requesting State shall be notified without delay of the disposition of its application and the reasons for any
denial.

4. A person who is provisionally arrested may be discharged from custody upon the expiration of sixty (60) days
from the date of arrest pursuant to this Treaty if the executive authority of the Requested State has not received
the formal request for extradition and the supporting documents required in Article 7." (emphasis supplied)

In relation to the above, Section 20 of P.D. No. 1069 provides:

"Sec. 20. Provisional Arrest.- (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or
convention and while the same remains in force, request for the provisional arrest of the accused, pending
receipt of the request for extradition made in accordance with Section 4 of this Decree.

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation, Manila,
either through the diplomatic channels or direct by post or telegraph.

(c) The Director of the National Bureau of Investigation or any official acting on his behalf shall upon receipt of the
request immediately secure a warrant for the provisional arrest of the accused from the presiding judge of the
Court of First Instance of the province or city having jurisdiction of the place, who shall issue the warrant for the
provisional arrest of the accused. The Director of the National Bureau of Investigation through the Secretary of
Foreign Affairs shall inform the requesting state of the result of its request.

(d) If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs has not received the
request for extradition and the documents mentioned in Section 4 of this Decree, the accused shall be released
from custody." (emphasis supplied)

Both the RP-US Extradition Treaty and P.D. No. 1069 clearly provide that private respondent may be
provisionally arrested only pending receipt of the request for extradition. Our DFA has long received the
extradition request from the United States and has turned it over to the DOJ. It is undisputed that until today, the
United States has not requested for private respondent’s provisional arrest. Therefore, the threat to private
respondent’s liberty has passed. It is more imagined than real.

Nor can the threat to private respondent’s liberty come from Section 6 of P.D. No. 1069, which provides:

"Sec. 6. Issuance of Summons; Temporary Arrest; Hearing, Service of Notices.- (1) Immediately upon receipt of
the petition, the presiding judge of the court shall, as soon as practicable, summon the accused to appear and to
answer the petition on the day and hour fixed in the order. [H]e may issue a warrant for the immediate arrest of
the accused which may be served anywhere within the Philippines if it appears to the presiding judge that
the immediate arrest and temporary detention of the accused will best serve the ends of justice. . .

(2) The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served each upon
the accused and the attorney having charge of the case." (emphasis supplied)

It is evident from the above provision that a warrant of arrest for the temporary detention of the accused pending
the extradition hearing may only be issued by the presiding judge of the extradition court upon filing of the
petition for extradition. As the extradition process is still in the evaluation stage of pertinent documents and
there is no certainty that a petition for extradition will be filed in the appropriate extradition court, the threat to
private respondent’s liberty is merely hypothetical.

Sixth. To be sure, private respondent’s plea for due process deserves serious consideration involving as it does
his primordial right to liberty. His plea to due process, however, collides with important state interests which
cannot also be ignored for they serve the interest of the greater majority. The clash of rights demands a
delicate balancing of interests approach which is a "fundamental postulate of constitutional law."25 The approach
requires that we "take conscious and detailed consideration of the interplay of interests observable in a given
situation or type of situation."26 These interests usually consist in the exercise by an individual of his basic
freedoms on the one hand, and the government’s promotion of fundamental public interest or policy objectives on
the other.27

In the case at bar, on one end of the balancing pole is the private respondent’s claim to due process predicated on
Section 1, Article III of the Constitution, which provides that "No person shall be deprived of life, liberty, or property
without due process of law . . ." Without a bubble of doubt, procedural due process of law lies at the foundation of
a civilized society which accords paramount importance to justice and fairness. It has to be accorded the weight it
deserves.
This brings us to the other end of the balancing pole. Petitioner avers that the Court should give more weight to
our national commitment under the RP-US Extradition Treaty to expedite the extradition to the United States of
persons charged with violation of some of its laws. Petitioner also emphasizes the need to defer to the judgment
of the Executive on matters relating to foreign affairs in order not to weaken if not violate the principle of
separation of powers.

Considering that in the case at bar, the extradition proceeding is only at its evaluation stage, the nature of
the right being claimed by the private respondent is nebulous and the degree of prejudice he will
allegedly suffer is weak, we accord greater weight to the interests espoused by the government thru the
petitioner Secretary of Justice. In Angara v. Electoral Commission, we held that the "Constitution has blocked
out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial
departments of the government."28 Under our constitutional scheme, executive power is vested in the President of
the Philippines.29 Executive power includes, among others, the power to contract or guarantee foreign loans and
the power to enter into treaties or international agreements.30 The task of safeguarding that these treaties are
duly honored devolves upon the executive department which has the competence and authority to so act in the
international arena.31 It is traditionally held that the President has power and even supremacy over the country’s
foreign relations.32 The executive department is aptly accorded deference on matters of foreign relations
considering the President’s most comprehensive and most confidential information about the international scene
of which he is regularly briefed by our diplomatic and consular officials. His access to ultra-sensitive military
intelligence data is also unlimited.33 The deference we give to the executive department is dictated by the principle
of separation of powers. This principle is one of the cornerstones of our democratic government. It cannot be
eroded without endangering our government.

The Philippines also has a national interest to help in suppressing crimes and one way to do it is to facilitate the
extradition of persons covered by treaties duly entered by our government. More and more, crimes are becoming
the concern of one world. Laws involving crimes and crime prevention are undergoing universalization. One
manifest purpose of this trend towards globalization is to deny easy refuge to a criminal whose activities threaten
the peace and progress of civilized countries. It is to the great interest of the Philippines to be part of this
irreversible movement in light of its vulnerability to crimes, especially transnational crimes.

In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all throughout the length and breadth of the
extrajudicial proceedings. Procedural due process requires a determination of what process is due, when it is
due, and the degree of what is due. Stated otherwise, a prior determination should be made as to whether
procedural protections are at all due and when they are due, which in turn depends on the extent to which
an individual will be "condemned to suffer grievous loss."34 We have explained why an extraditee has no right
to notice and hearing during the evaluation stage of the extradition process. As aforesaid, P.D. No. 1069 which
implements the RP-US Extradition Treaty affords an extraditee sufficient opportunity to meet the evidence
against him once the petition is filed in court. The time for the extraditee to know the basis of the request for
his extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee's right to
know is momentarily withheld during the evaluation stage of the extradition process to accommodate the
more compelling interest of the State to prevent escape of potential extraditees which can be precipitated by
premature information of the basis of the request for his extradition. No less compelling at that stage of the
extradition proceedings is the need to be more deferential to the judgment of a co-equal branch of the
government, the Executive, which has been endowed by our Constitution with greater power over matters
involving our foreign relations. Needless to state, this balance of interests is not a static but a moving
balancewhich can be adjusted as the extradition process moves from the administrative stage to the judicial stage
and to the execution stage depending on factors that will come into play. In sum, we rule that the temporary
hold on private respondent's privilege of notice and hearing is a soft restraint on his right to due process which
will not deprive him of fundamental fairness should he decide to resist the request for his extradition to the
United States. There is no denial of due process as long as fundamental fairness is assured a party.

We end where we began. A myopic interpretation of the due process clause would not suffice to resolve the
conflicting rights in the case at bar. With the global village shrinking at a rapid pace, propelled as it is by
technological leaps in transportation and communication, we need to push further back our horizons and work
with the rest of the civilized nations and move closer to the universal goals of "peace, equality, justice, freedom,
cooperation and amity with all nations."35 In the end, it is the individual who will reap the harvest of peace and
prosperity from these efforts.

WHEREFORE, the Urgent Motion for Reconsideration is GRANTED. The Decision in the case at bar promulgated
on January18, 2000 is REVERSED. The assailed Order issued by the public respondent judge on August 9, 1999
is SET ASIDE. The temporary restraining order issued by this Court on August 17, 1999 is made PERMANENT.
The Regional Trial Court of Manila, Branch 25 is enjoined from conducting further proceedings in Civil Case No.
99-94684.

SO ORDERED.