Cases

1. G.R. No.
185128
Republic of the Philippines
Supreme Court
Manila
THIRD DIVISION
RUBEN DEL CASTILLO @ BOY G.R. No. 185128

CASTILLO, [Formerly UDK No. 13980]
Petitioner,
Present:
VELASCO, JR., J., Chairperson,

- versus - PERALTA,
MENDOZA,
REYES,* and
PERLAS-BERNABE, JJ.
PEOPLE OF THE PHILIPPINES,
Respondent. Promulgated:
January 30, 2012
x-----------------------------------------------------------------------------------------x
DECISION
PERALTA, J.:
For this Court's consideration is the Petition for

[1]
Review on Certiorari under Rule 45 of Ruben del Castillo assailing the
Decision[2] dated July 31, 2006 and Resolution[3] dated December 13, 2007 of
the Court of Appeals (CA) in CA-G.R. CR No. 27819, which affirmed the
Decision[4] dated March 14, 2003 of the Regional Trial Court (RTC), Branch 12,
Cebu, in Criminal Case No. CBU-46291, finding petitioner guilty beyond
reasonable doubt of violation of Section 16, Article III of Republic Act (R.A.)
6425.
The facts, as culled from the records, are the following:
Pursuant to a confidential information that petitioner was engaged in

selling shabu, police officers headed by SPO3 Bienvenido Masnayon, after
conducting surveillance and test-buy operation at the house of petitioner,
secured a search warrant from the RTC and around 3 o'clock in the afternoon
of September 13, 1997, the same police operatives went to Gil Tudtud St.,
Mabolo, Cebu City to serve the search warrant to petitioner.
Upon arrival, somebody shouted raid, which prompted them to immediately
disembark from the jeep they were riding and went directly to petitioner's
house and cordoned it. The structure of the petitioner's residence is a two-
storey house and the petitioner was staying in the second floor. When they
went upstairs, they met petitioner's wife and informed her that they will
implement the search warrant. But before they can search the area, SPO3
Masnayon claimed that he saw petitioner run towards a small structure, a
nipa hut, in front of his house. Masnayon chased him but to no avail, because
he and his men were not familiar with the entrances and exits of the place.
They all went back to the residence of the petitioner and closely guarded the
place where the subject ran for cover. SPO3 Masnayon requested his men to
get abarangay tanod and a few minutes thereafter, his men returned with
two barangay tanods.
In the presence of the barangay tanod, Nelson Gonzalado, and the elder sister
of petitioner named Dolly del Castillo, searched the house of petitioner
including the nipa hut where the petitioner allegedly ran for cover. His men
who searched the residence of the petitioner found nothing, but one of
the barangay tanods was able to confiscate from the nipa hut several articles,
including four (4) plastic packs containing white crystalline
substance. Consequently, the articles that were confiscated were sent to the
PNP Crime Laboratory for examination. The contents of the four (4) heat-
sealed transparent plastic packs were subjected to laboratory examination,
the result of which proved positive for the presence of methamphetamine
hydrochloride, or shabu.
Thus, an Information was filed before the RTC against petitioner, charging him
with violation of Section 16, Article III of R.A. 6425, as amended. The
Information[5]reads:
That on or about the 13th day of September 1997, at about 3:00

p.m. in the City of Cebu, Philippines and within the jurisdiction of
this Honorable Court, the said accused, with deliberate intent,
did then and there have in his possession and control four (4)
packs of white crystalline powder, having a total weight of 0.31
gram, locally known as shabu, all containing methamphetamine
hydrochloride, a regulated drug, without license or prescription
from any competent authority.
CONTRARY TO LAW.[6]
During arraignment, petitioner, with the assistance of his counsel, pleaded

not guilty.[7] Subsequently, trial on the merits ensued.
To prove the earlier mentioned incident, the prosecution presented the

testimonies of SPO3 Bienvenido Masnayon, PO2 Milo Arriola, and Forensic
Analyst, Police Inspector Mutchit Salinas.
The defense, on the other hand, presented the testimonies of petitioner,

Jesusa del Castillo, Dalisay del Castillo and Herbert Aclan, which can be
summarized as follows:
On September 13, 1997, around 3 o'clock in the afternoon, petitioner was

installing the electrical wirings and airconditioning units of the Four Seasons
Canteen and Beauty Parlor at Wacky Bldg., Cabancalan, Cebu. He was able to
finish his job around 6 o'clock in the evening, but he was engaged by the
owner of the establishment in a conversation. He was able to go home around
8:30-9 o'clock in the evening. It was then that he learned from his wife that
police operatives searched his house and found nothing. According to him,
the small structure, 20 meters away from his house where they found the
confiscated items, was owned by his older brother and was used as a storage
place by his father.
After trial, the RTC found petitioner guilty beyond reasonable of the charge
against him in the Information. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, this Court finds the accused

Ruben del Castillo alyas Boy Castillo, GUILTY of violating Section
16, Article III, Republic Act No. 6425, as amended. There being no
mitigating nor aggravating circumstances proven before this
Court, and applying the Indeterminate Sentence Law, he is
sentenced to suffer the penalty of Six (6) Months and One (1) Day
as Minimum and Four (4) Years and Two (2) Months as Maximum
of Prision Correccional.
The four (4) small plastic packets of white crystalline substance

having a total weight of 0.31 gram, positive for the presence of
methamphetamine hydrochloride, are ordered confiscated and
shall be destroyed in accordance with the law.
SO ORDERED.[8]
Aggrieved, petitioner appealed his case with the CA, but the latter affirmed
the decision of the RTC, thus:
WHEREFORE, the challenged Decision is AFFIRMED in toto and the

appeal is DISMISSED, with costs against accused-appellant.
SO ORDERED.[9]
After the motion for reconsideration of petitioner was denied by the CA,
petitioner filed with this Court the present petition for certiorari under Rule
45 of the Rules of Court with the following arguments raised:
1. THE COURT OF APPEALS ERRED IN ITS APPLICATION

OF THE PROVISIONS OF THE CONSTITUTION, THE RULES OF
COURT AND ESTABLISHED JURISPRUDENCE VIS-A-VIS VALIDITY
OF SEARCH WARRANT NO. 570-9-1197-24;
2. THE COURT OF APPEALS ERRED IN RULING THAT THE

FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER ALLEGEDLY
FOUND ON THE FLOOR OF THE NIPA HUT OR STRUCTURE ARE
ADMISSIBLE IN EVIDENCE AGAINST THE PETITIONER, NOT ONLY
BECAUSE THE SAID COURT SIMPLY PRESUMED THAT IT WAS
USED BY THE PETITIONER OR THAT THE PETITIONER RAN TO IT
FOR COVER WHEN THE SEARCHING TEAM ARRIVED AT HIS
RESIDENCE, BUT ALSO, PRESUMING THAT THE SAID NIPA HUT OR
STRUCTURE WAS INDEED USED BY THE PETITIONER AND THE
FOUR (4) PACKS OF WHITE CRYSTALLINE POWDER WERE FOUND
THEREAT. THE SUBJECT FOUR (4) PACKS OF WHITE CRYSTALLINE
POWDER ARE FRUITS OF THE POISONOUS TREE; and
3. THE COURT OF APPEALS ERRED IN ITS APPLICATION

OF THE ELEMENT OF POSSESSION AS AGAINST THE PETITIONER,
AS IT WAS IN VIOLATION OF THE ESTABLISHED JURISPRUDENCE
ON THE MATTER. HAD THE SAID COURT PROPERLY APPLIED THE
ELEMENT IN QUESTION, IT COULD HAVE BEEN ASSAYED THAT
THE SAME HAD NOT BEEN PROVEN.[10]
The Office of the Solicitor General (OSG), in its Comment

dated February 10, 2009, enumerated the following counter-arguments:
I
SEARCH WARRANT No. 570-9-11-97-24 issued by Executive Judge
Priscilla S. Agana of Branch 24, Regional Trial Court of Cebu City is
valid.
II
The four (4) packs of shabu seized inside the shop of petitioner
are admissible in evidence against him.
III
The Court of Appeals did not err in finding him guilty of illegal
possession of prohibited drugs.[11]
Petitioner insists that there was no probable cause to issue the search
warrant, considering that SPO1 Reynaldo Matillano, the police officer who
applied for it, had no personal knowledge of the alleged illegal sale of drugs
during a test-buy operation conducted prior to the application of the same
search warrant. The OSG, however, maintains that the petitioner, aside from
failing to file the necessary motion to quash the search warrant pursuant to
Section 14, Rule 127 of the Revised Rules on Criminal Procedure, did not
introduce clear and convincing evidence to show that Masnayon was
conscious of the falsity of his assertion or representation.
Anent the second argument, petitioner asserts that the nipa hut located
about 20 meters away from his house is no longer within the permissible area
that may be searched by the police officers due to the distance and that the
search warrant did not include the same nipa hut as one of the places to be
searched. The OSG, on the other hand, argues that the constitutional
guaranty against unreasonable searches and seizure is applicable only against
government authorities and not to private individuals such as the barangay
tanod who found the folded paper containing packs of shabu inside the nipa
hut.
As to the third argument raised, petitioner claims that the CA erred in finding
him guilty beyond reasonable doubt of illegal possession of prohibited drugs,
because he could not be presumed to be in possession of the same just
because they were found inside the nipa hut. Nevertheless, the OSG
dismissed the argument of the petitioner, stating that, when prohibited and
regulated drugs are found in a house or other building belonging to and
occupied by a particular person, the presumption arises that such person is
in possession of such drugs in violation of law, and the fact of finding the
same is sufficient to convict.
This Court finds no merit on the first argument of petitioner.
The requisites for the issuance of a search warrant are: (1) probable cause is
present; (2) such probable cause must be determined personally by the judge;
(3) the judge must examine, in writing and under oath or affirmation, the
complainant and the witnesses he or she may produce; (4) the applicant and
the witnesses testify on the facts personally known to them; and (5) the
warrant specifically describes the place to be searched and the things to be
seized.[12] According to petitioner, there was no probable cause. Probable
cause for a search warrant is defined as such facts and circumstances which
would lead a reasonably discreet and prudent man to believe that an offense
has been committed and that the objects sought in connection with the
offense are in the place sought to be searched.[13] A finding of probable cause
needs only to rest on evidence showing that, more likely than not, a crime has
been committed and that it was committed by the accused. Probable cause
demands more than bare suspicion; it requires less than evidence which
would justify conviction.[14] The judge, in determining probable cause, is to
consider the totality of the circumstances made known to him and not by a
fixed and rigid formula,[15] and must employ a flexible, totality of the
circumstances standard.[16] The existence depends to a large degree upon the
finding or opinion of the judge conducting the examination. This Court,
therefore, is in no position to disturb the factual findings of the judge which
led to the issuance of the search warrant. A magistrate's determination of
probable cause for the issuance of a search warrant is paid great deference
by a reviewing court, as long as there was substantial basis for that
determination.[17] Substantial basis means that the questions of the
examining judge brought out such facts and circumstances as would lead a
reasonably discreet and prudent man to believe that an offense has been
committed, and the objects in connection with the offense sought to be
seized are in the place sought to be searched.[18] A review of the records shows
that in the present case, a substantial basis exists.
With regard to the second argument of petitioner, it must be remembered

that the warrant issued must particularly describe the place to be searched
and persons or things to be seized in order for it to be valid. A designation or
description that points out the place to be searched to the exclusion of all
others, and on inquiry unerringly leads the peace officers to it, satisfies the
constitutional requirement of definiteness.[19] In the present case, Search
Warrant No. 570-9-1197-24[20]specifically designates or describes the
residence of the petitioner as the place to be searched. Incidentally, the items
were seized by a barangay tanod in a nipa hut, 20 meters away from the
residence of the petitioner. The confiscated items, having been found in a
place other than the one described in the search warrant, can be considered
as fruits of an invalid warrantless search, the presentation of which as an
evidence is a violation of petitioner's constitutional guaranty against
unreasonable searches and seizure. The OSG argues that, assuming that the
items seized were found in another place not designated in the search
warrant, the same items should still be admissible as evidence because the
one who discovered them was a barangay tanod who is a private individual,
the constitutional guaranty against unreasonable searches and seizure being
applicable only against government authorities. The contention is devoid of
merit.
It was testified to during trial by the police officers who effected the search
warrant that they asked the assistance of the barangay tanods, thus, in the
testimony of SPO3 Masnayon:
Fiscal Centino:
Q For how long did the chase take place?

A Just a very few moments.
Q After that, what did you [do] when you were not able to reach
him?
A I watched his shop and then I requested my men to get a
barangay tanod.
Q Were you able to get a barangay tanod?

A Yes.
Q Can you tell us what is the name of the barangay tanod?

A Nelson Gonzalado.
Q For point of clarification, how many barangay tanod [did] your

driver get?
A Two.
Q What happened after that?

A We searched the house, but we found negative.
Q Who proceeded to the second floor of the house?

A SPO1 Cirilo Pogoso and Milo Areola went upstairs and found
nothing.
Q What about you, where were you?

A I [was] watching his shop and I was with Matillano.
Q What about the barangay tanod?

A Together with Milo and Pogoso.
Q When the search at the second floor of the house yielded

negative what did you do?
A They went downstairs because I was suspicious of his shop
because he ran from his shop, so we searched his shop.
Q Who were with you when you searched the shop?
A The barangay tanod Nilo Gonzalado, the elder sister of Ruben
del Castillo named Dolly del Castillo.
Q You mean to say, that when (sic) SPO1 Reynaldo Matillano,

Barangay Tanod Nilo Gonzalado and the elder sister of Ruben
del Castillo were together in the shop?
A Yes.
Q What happened at the shop?

A One of the barangay tanods was able to pick up white folded
paper.
Q What [were] the contents of that white folded paper?

A A plastic pack containing white crystalline.
Q Was that the only item?

A There are others like the foil, scissor.
Q Were you present when those persons found those tin foil and
others inside the electric shop?
A Yes.[21]
The fact that no items were seized in the residence of petitioner and that the
items that were actually seized were found in another structure by
a barangay tanod, was corroborated by PO2 Arriola, thus:
FISCAL:
Q So, upon arriving at the house of Ruben del Castillo alias Boy,
can you still recall what took place?
A We cordoned the area.
Q And after you cordoned the area, did anything happen?

A We waited for the barangay tanod.
Q And did the barangay tanod eventually appear?

A Yes. And then we started our search in the presence of Ruben
del Castillo's wife.
Q What is the name of the wife of Ruben del Castillo?

A I cannot recall her name, but if I see her I can recall [her] face.
Q What about Ruben del Castillo, was she around when [you]
conducted the search?
A No. Ruben was not in the house. But our team leader, team
mate Bienvenido Masnayon saw that Ruben ran away from his
adjacent electronic shop near his house, in front of his house.
Q Did you find anything during the search in the house of Ruben
del Castillo?
A After our search in the house, we did not see anything. The
house was clean.
Q What did you do afterwards, if any?

A We left (sic) out of the house and proceeded to his electronic
shop.
Q Do you know the reason why you proceeded to his electronic

shop?
A Yes. Because our team leader Bienvenido Masnayon saw that
(sic) Ruben run from that store and furthermore the door was
open.
Q How far is the electronic shop from the house of Ruben del
Castillo?
A More or less, 5 to 6 meters in front of his house.
xxxx
Q So, who entered inside the electronic shop?
A The one who first entered the electronic shop is our team
leader Bienvenido Masnayon.
Q You mentioned that Masnayon entered first. Do you mean to

say that there were other persons or other person that followed
after Masnayon?
A Then we followed suit.
Q All of your police officers and the barangay tanod followed

suit?
A I led Otadoy and the barangay tanod.
Q What about you?

A I also followed suit.
Q And did anything happen inside the shop of Ruben del

Castillo?
A It was the barangay tanod who saw the folded paper and I
saw him open the folded paper which contained four shabu
deck.
Q How far were you when you saw the folded paper and the
tanod open the folded paper?
A We were side by side because the shop was very small.[22]
SPO1 Pogoso also testified on the same matter, thus:
FISCAL CENTINO:
Q And where did you conduct the search, Mr. Witness?

A At his residence, the two-storey house.
Q Among the three policemen, who were with you in conducting
the search at the residence of the accused?
A I, Bienvenido Masnayon.
Q And what transpired after you searched the house of Ruben

del Castillo?
A Negative, no shabu.
Q And what happened afterwards, if any?

A We went downstairs and proceeded to the small house.
Q Can you please describe to this Honorable Court, what was that
small house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of
Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut
supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa

hut?
A I was just outside the nipa hut.
Q And who among the team went inside?

A PO2 Milo Areola and the Barangay Tanod.[23]
Having been established that the assistance of the barangay tanods was
sought by the police authorities who effected the searched warrant, the
same barangay tanodstherefore acted as agents of persons in
authority. Article 152 of the Revised Penal Code defines persons in authority
and agents of persons in authority as:
x x x any person directly vested with jurisdiction, whether as an

individual or as a member of some court or governmental
corporation, board or commission, shall be deemed a person in
authority. A barangay captain and a barangay chairman shall also
be deemed a person in authority.
A person who, by direct provision of law or by election or by
appointment by competent authority, is charged with the
maintenance of public order and the protection and security of
life and property, such as barrio councilman, barrio policeman
and barangay leader, and any person who comes to the aid of
persons in authority, shall be deemed an agent of a person in
authority.
The Local Government Code also contains a provision which describes the
function of a barangay tanod as an agent of persons in authority. Section 388
of the Local Government Code reads:
SEC. 388. Persons in Authority. - For purposes of the Revised

Penal Code, the punong barangay, sangguniang barangay
members, and members of the lupong tagapamayapa in each
barangay shall be deemed as persons in authority in their
jurisdictions, while other barangay officials and members who
may be designated by law or ordinance and charged with the
maintenance of public order, protection and security of life and
property, or the maintenance of a desirable and balanced
environment, and any barangay member who comes to the aid
of persons in authority, shall be deemed agents of persons in
authority.
By virtue of the above provisions, the police officers, as well as the barangay
tanods were acting as agents of a person in authority during the conduct of
the search.Thus, the search conducted was unreasonable and the confiscated
items are inadmissible in evidence. Assuming ex gratia argumenti that
the barangay tanod who found the confiscated items is considered a private
individual, thus, making the same items admissible in evidence, petitioner's
third argument that the prosecution failed to establish constructive
possession of the regulated drugs seized, would still be meritorious.
Appellate courts will generally not disturb the factual findings of the trial court
since the latter has the unique opportunity to weigh conflicting testimonies,
having heard the witnesses themselves and observed their deportment and
manner of testifying,[24] unless attended with arbitrariness or plain disregard
of pertinent facts or circumstances, the factual findings are accorded the
highest degree of respect on appeal[25] as in the present case.
It must be put into emphasis that this present case is about the violation of
Section 16 of R.A. 6425. In every prosecution for the illegal possession
of shabu, the following essential elements must be established: (a) the
accused is found in possession of a regulated drug; (b) the person is not
authorized by law or by duly constituted authorities; and (c) the accused has
knowledge that the said drug is a regulated drug.[26]
In People v. Tira,[27] this Court explained the concept of possession of

regulated drugs, to wit:
This crime is mala prohibita, and, as such, criminal intent is not an

essential element. However, the prosecution must prove that the
accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession,
but also constructive possession. Actual possession exists when
the drug is in the immediate physical possession or control of the
accused. On the other hand, constructive possession exists when
the drug is under the dominion and control of the accused or
when he has the right to exercise dominion and control over the
place where it is found. Exclusive possession or control is not
necessary. The accused cannot avoid conviction if his right to
exercise control and dominion over the place where the
contraband is located, is shared with another.[28]
While it is not necessary that the property to be searched or seized should be

owned by the person against whom the search warrant is issued, there must
be sufficient showing that the property is under appellants control or
possession.[29] The CA, in its Decision, referred to the possession of regulated
drugs by the petitioner as a constructive one. Constructive possession exists
when the drug is under the dominion and control of the accused or when he
has the right to exercise dominion and control over the place where it is
found.[30] The records are void of any evidence to show that petitioner owns
the nipa hut in question nor was it established that he used the said structure
as a shop. The RTC, as well as the CA, merely presumed that petitioner used
the said structure due to the presence of electrical materials, the petitioner
being an electrician by profession. The CA, in its Decision, noted a resolution
by the investigating prosecutor, thus:
x x x As admitted by respondent's wife, her husband is an

electrician by occupation. As such, conclusion could be arrived at
that the structure, which housed the electrical equipments is
actually used by the respondent. Being the case, he has control of
the things found in said structure.[31]
In addition, the testimonies of the witnesses for the prosecution do not also
provide proof as to the ownership of the structure where the seized articles
were found.During their direct testimonies, they just said, without stating
their basis, that the same structure was the shop of petitioner. [32] During the
direct testimony of SPO1 Pogoso, he even outrightly concluded that the
electrical shop/nipa hut was owned by petitioner, thus:
FISCAL CENTINO:
Q Can you please describe to this Honorable Court, what was that
small house which you proceeded to?
A It is a nipa hut.
Q And more or less, how far or near was it from the house of
Ruben del Castillo?
A 5 to 10 meters.
Q And could you tell Mr. Witness, what was that nipa hut
supposed to be?
A That was the electronic shop of Ruben del Castillo.
Q And what happened when your team proceeded to the nipa

hut?
A I was just outside the nipa hut.[33]
However, during cross-examination, SPO3 Masnayon admitted that there was

an electrical shop but denied what he said in his earlier testimony that it was
owned by petitioner, thus:
ATTY. DAYANDAYAN:
Q You testified that Ruben del Castillo has an electrical shop, is
that correct?
A He came out of an electrical shop. I did not say that he owns
the shop.
Q Now, this shop is within a structure?

A Yes.
Q How big is the structure?

A It is quite a big structure, because at the other side is a mahjong
den and at the other side is a structure rented by a couple.[34]
The prosecution must prove that the petitioner had knowledge of the
existence and presence of the drugs in the place under his control and
dominion and the character of the drugs.[35] With the prosecution's failure to
prove that the nipa hut was under petitioner's control and dominion, there
casts a reasonable doubt as to his guilt. In considering a criminal case, it is
critical to start with the law's own starting perspective on the status of the
accused - in all criminal prosecutions, he is presumed innocent of the charge
laid unless the contrary is proven beyond reasonable
[36]
doubt. Proof beyond reasonable doubt, or that quantum of proof sufficient
to produce a moral certainty that would convince and satisfy the conscience
of those who act in judgment, is indispensable to overcome the constitutional
presumption of innocence.[37]
WHEREFORE, the Decision dated July 31, 2006 of the Court of Appeals in CA-
G. R. No. 27819, which affirmed the Decision dated March 14, 2003 of the
Regional Trial Court, Branch 12, Cebu, in Criminal Case No. CBU-46291 is
hereby REVERSED and SET ASIDE. Petitioner Ruben del
Castillo is ACQUITTEDon reasonable doubt.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson
JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

Associate Justice
Third Division, Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
*
Designated as an additional member in lieu of Associate Justice Roberto A.
Abad, per Special Order No. 1178 dated January 26, 2012.
[1]
Dated August 23, 2008, rollo, pp. 32-44.
[2]
Penned by Associate Justice Marlene Gonzales-Sison, with Associate
Justices Pampio A. Abarintos and Priscilla Baltazar-Padilla, concurring; id. at
54-70.
[3]
Dated August 23, 2008, id. at 71-72.
[4]
Penned by Presiding Judge Aproniano B. Taypin; id. at 45-53.
[5]
Records, pp. 1-2.
[6]
Id. at 1.
[7]
Id. at 57.
[8]
Id. at 254.
[9]
Rollo, p. 70.
[10]
Id. at 37.
[11]
Id. at 98-103.
[12]
Abuan v. People, G.R. No. 168773, October 27, 2006, 505 SCRA 799, 822,
citing People v. Francisco, G.R. No. 129035, August 22, 2002, 387 SCRA 569,
575.
[13]
Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23, 2007, 538 SCRA
474, 484, citing Columbia Pictures, Inc. v. Court of Appeals, 329 Phil. 875, 903
(1996).
[14]
Id., citing Sarigumba v. Sandiganbayan, G.R. Nos. 154239-41, February 16,
2005, 451 SCRA 533, 550.
[15]
Abuan v. People, supra note 12, citing People v. Tampis, 467 Phil. 582, 590
(2003); Massachusetts v. Upton, 466 US 727, 104 S.Ct. 2085 (1984).
[16]
Id., citing US v. Canan, 48 F.3d 954 (1995).
[17]
People v. Estela Tuan, G.R. No. 176066, August 11, 2011.
[18]
Id. citing People v. Tee, 443 Phil. 521, 540 (2003).
[19]
People v. Tee, supra.
[20]
Records, p. 114.
[21]
TSN, July 16, 1998, pp. 8-9. (Emphasis supplied.)
[22]
TSN, February 4, 1999, pp. 4-6. (Emphasis supplied.)
[23]
TSN, May 12, 1999, pp. 3-4. (Emphasis supplied.)
[24]
People v. Baygar, 376 Phil. 466, 473 (1999).
[25]
People v. Matito, 468 Phil. 14, 24 (2004).
[26]
Quelnan v. People, G.R. No. 166061, July 6, 2007, 526 SCRA 653, 662,
citing Abuan v. People, supra note 12, and People v. Torres, G.R. No. 170837,
September 12, 2006, 501 SCRA 591, 610.
[27]
G.R. No. 139615, May 28, 2004, 430 SCRA 134.
[28]
Id. at 151-152.
[29]
People v. Del Castillo, G.R. No. 153254, September 30, 2004, 439 SCRA 601,
613-614, citing People v. Dichoso, G.R. Nos. 101216-18, June 4, 1993, 223
SCRA 174, 191, citing Burgos v. Chief of Staff, 133 SCRA 800 (1984).
[30]
People v. Tira, supra note 27.
[31]
Rollo, p. 65.
[32]
TSN, July 16, 1998, pp. 7-9; TSN, February 4, 1999, pp. 5-6.
[33]
TSN, May 12, 1999, pp. 3-4.
[34]
TSN, July 16, 1998, p. 15.
[35]
See People v. Tira, supra note 27.
[36]
People v. Sanchez, G.R. No. 175832, October 15, 2008, 569 SCRA 194, 207,
citing Article III (Bill of Rights), Section 14(2) of the 1987 Constitution which
reads: In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face
to face, and to have compulsory process to secure the attendance of
witnesses and production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is
unjustifiable.
[37]
People v. Villanueva, G.R. No. 131773, February 13, 2002, 376 SCRA 615,
637, citing People v. Gomez, G.R. No. 101817, March 26, 1997, 270 SCRA 432,
444.
2. G.R. No. 158467
FIRST DIVISION
SPOUSES JOEL AND G.R. No. 158467

MARIETTA MARIMLA,
Petitioners, Present:
NACHURA,* J.,
- versus - LEONARDO-DE CASTRO,**
BRION,***
PERALTA,**** and
BERSAMIN, JJ.
PEOPLE OF THE PHILIPPINESAND
HON. OMAR T. VIOLA, RTC Judge,
Branch 57, Angeles City,
Respondents. Promulgated:
October 16, 2009

x------------------------------------------------------------------------------------------x
DECISION
LEONARDO-DE CASTRO, J.:

Before the Court is a petition for certiorari under Rule 65 of the Rules
of Court. It seeks to annul the Order[1] dated September 6, 2002 of the
Regional Trial Court (RTC) of Angeles City, Branch 57, denying petitioner
spouses Joel and Marietta Marimlas Motion to Quash Search Warrant and to
Suppress Evidence Illegally Seized, and the Order[2] dated April 21, 2003
denying the Motion for Reconsideration thereof.
The facts, as culled from the records, are as follows:
On February 15, 2002, Special Investigator (SI) Ray C. Lagasca of the NBI
Anti-Organized Crime Division filed two (2) applications for search warrant
with the RTC of Manila seeking permission to search: (1) petitioners house
located on RD Reyes St., Brgy. Sta. Trinidad, Angeles City[3] and (2) the
premises on Maria Aquino St., Purok V, Brgy. Sta. Cruz, Porac,
Pampanga,[4] both for Violation of Section 16, Article III of Republic Act (R.A.)
No. 6425, as amended. The said applications uniformly alleged that SI
Lagascas request for the issuance of the search warrants was founded on his
personal knowledge as well as that of witness Roland D. Fernandez
(Fernandez), obtained after a series of surveillance operations and a test buy
made at petitioners house. The purpose of the application for search warrants
was to seize the following articles/items:
Undetermined amount of Methamphetamine Hydrochloride,

popularly known as SHABU, MARIJUANA, weighing scale, plastic
sachets, tooters, burner, rolling papers, and paraphernalia, all of
which articles/items are being used or intended to be used in
Violation of Republic Act 6425 as amended, and are hidden or
being kept in said house/premises.[5]
Executive Judge Mario Guaria III (Judge Guaria III) examined in writing
and under oath SI Lagasca and Fernandez, in the form of searching questions
and answers, and found that based on facts personally known to SI Lagasca
and Fernandez, petitioners had in their possession and control, inside their
house located on RD Reyes St., Brgy. Sta. Trinidad, Angeles City, an
undetermined amount of methamphetamine hydrochloride known
as shabu and marijuana. Pursuant these findings, Judge Guaria III issued a
search warrant docketed as Search Warrant No. 02-2677, which commanded
any peace officer to make immediate search, at any time of the day or night,
not beyond 10 days from date hereof, of the premises above-mentioned and
forthwith seize and take possession of the properties subject of the offense
and bring to his court said properties to be dealt with as the law directs.[6]
On the strength of this warrant, members of the NBI Anti-Organized

Crime Division, namely, SI Lagasca, Primitivo M. Najera, Jr., Jesusa D. Jamasali,
Horten Hernaez, and Ritche N. Oblanca, in coordination with the Philippine
National Police of Angeles City, searched petitioners house on February 19,
2002 at around 5:00 in the morning.[7] They were able to seize cash in the
amount of P15,200.00[8] and the following items:
1. One (1) brick of dried flowering tops wrapped in a packing tape

marked RCL-1-2677, (net weight - 915.7 grams);
2. One (1) small brick of dried flowering tape wrapped in a newsprint
marked RCL-2-2677 (net weight - 491.5 grams);
3. Dried flowering tops separately contained in sixteen (16)
transparent plastic bags, altogether wrapped in a newsprint marked
RCL-3-2677 (net weight - 127.9 grams); and
4. Dried flowering tops separately contained in nine (9) plastic tea
bags, altogether placed in a yellow plastic bag marked RCL-4-2677
(net weight - 18.2736 grams).[9]
On February 20, 2002, an Information[10] for Violation of Section 8,

Article II of R.A. No. 6425, as amended by R.A. No. 7659, was filed against
petitioners before the RTC of Angeles City, Branch 57, presided by herein
respondent Judge Omar T. Viola.
On March 25, 2002, petitioners filed a Motion to Quash Search Warrant
and to Suppress Evidence Illegally Seized[11] on the following grounds: (1) the
application for search warrant was filed outside the territorial jurisdiction and
judicial region of the court where the alleged crime was committed; (2) the
court which issued the questioned search warrant committed grave abuse of
discretion when it issued the same because under the law it cannot issue a
search warrant outside its territorial jurisdiction; (3) the questioned search
warrant is void ab initio; and (4) the evidence illegally seized by virtue of the
questioned search warrant is therefore inadmissible in evidence.
In support of the above motion, petitioners filed a Motion to Admit

Documentary Evidence,[12] asking the court to admit the following
documents: (1) application for Search Warrant No. 02-2677; (2) authorization
letter dated February 12, 2002 with the signature of NBI Director Reynaldo G.
Wycoco (Director Wycoco); (3) NBI ID No. 5370 of Agent Victor Emmanuel G.
Lansang with the Signature of Director Wycoco; and (4) Administrative Matter
(A.M.) No. 00-5-03-SC (Re: Proposed Revised Rules of Criminal Procedure
[Rules 110-127, Revised Rules of Court]). Petitioners claim that the issuance
of Search Warrant No. 02-2677 was defective considering the application was
not personally endorsed by [Dir.] Wycoco, and that the latters signature in
the authorization letter is different from that as appearing in the
identification card, and therefore it is not the true and genuine signature of
[Dir.] Wycoco.[13]
In its Comment/Opposition to the Motion to Quash,[14] the Office of the City
Prosecutor, Angeles City claims that the questioned search warrant does not
fall within the coverage of Sec. 2 of Rule 126 of the Revised Rules on Criminal
Procedure, but under A.M. No. 99-10-09-SC,[15] which authorizes the
Executive Judges and Vice Executive Judges of the RTCs of Manila and Quezon
City to act on all applications for search warrants involving dangerous drugs,
among others, filed by the NBI, and provides that said warrants may be served
in places outside the territorial jurisdiction of the RTCs of Manila and Quezon
City.
On August 14, 2009, SI Lagasca filed his Opposition and/or Answer to the
Motion to Quash Search Warrant and to Suppress Evidence Illegally
Seized.[16] He avers that Judge Guaria III issued Search Warrant No. 02-2677
by virtue of Administrative Order No. 20-97[17] issued on February 12,
1997. He also claims that it was NBI Deputy Director for Special Investigation
Fermin Nasol who signed the authorization letter in behalf of Director
Wycoco, for him to apply for a search warrant in the house/premises of
petitioners on RD Reyes St., Brgy. Sta. Trinidad, Angeles City and Maria Aquino
St., Purok V, Brgy. Sta. Cruz, Porac, Pampanga for violation of R.A. No. 6425.
In an Order[18] dated September 6, 2002, Judge Omar T. Viola denied

petitioners Motion to Quash Search Warrant and to Suppress Evidence
Illegally Seized for lack of merit, ratiocinating as follows:
The public prosecutor was able to point out that the search
warrant issued by Judge Mario Guaria III, the Executive Judge of
the Manila Regional Trial Court, is in order considering that AM
99-10-09-SC allows or authorizes executive judges and vice
executive judges of the Regional Trial Court of Manila and Quezon
City to issue warrants which may be served in places outside their
territorial jurisdiction in cases where the same was filed and,
among others, by the NBI.
The NBI also was able to explain that the authority to apply
search warrant was personally signed by Deputy Director for
Special Investigation Fermin Nasol who is authorized to sign and
that he was delegated the authority to sign for and in behalf of
the NBI Director on documents of this like. Deputy Director
Fermin Nasol having that authority to sign for and in behalf of the
NBI Director, Reynaldo Wycoco, there is, therefore, compliance
with the law regarding the issuance of authority to apply search
warrant.
WHEREFORE, in view of the revelation, the Court has no

other recourse but to agree with the views of the prosecution as
well as the NBI. And this being so, the Court finds not enough
ground to quash the search warrant issued against Spouses Joel
and Marietta Marilma.
The motion filed by them and their supplement, is therefore

denied, for lack of merit.
SO ORDERED.[19]
On September 23, 2002, petitioners filed a Motion for

Reconsideration[20] on the ground that the denial of their Motion to Quash
Search Warrant and to Suppress Evidence Illegally Seized is not in accordance
with the law and existing jurisprudence. They claim that no evidence was
presented by Deputy Director Nasol that he was authorized to sign for and in
behalf of Director Wycoco.
Said Motion for Reconsideration was likewise denied by respondent

court on the ground that the issues raised therein were mere reiterations of
petitioners arguments that had already been considered and passed upon in
the Motion to Quash Search Warrant and to Suppress Evidence Illegally
Seized. Respondent court added:
To elaborate, this Court believes and is of the opinion that

the Deputy Director of the NBI possesses the authority to sign for
and in behalf of the NBI Director requesting for the issuance of a
search warrant and nothing in the Administrative Matter 99-10-
09 prohibits the delegation of such ministerial act to the Deputy
Director who is an alter ego of the NBI Director. It is also quite
clear that the NBI Director approved said authorization for SI Ray
Lagasca to apply for a search warrant because said document was
never recalled or amended by the Office of the Bureau Director
up to the present.
The Court is also of the view that A.M. 99-10-09 is still valid,
binding and legal by virtue of the fact that not even the Supreme
Court (sic) did not make any pronouncement withdrawing and or
declaring the same ineffective, hence, until such order is issued,
this Court must interpret and rule for its continued validity and
applicability.[21]
Hence, this petition.
Petitioners claim that the search warrant was issued in violation of A.M.
No. 99-10-09-SC and Section 2 of Rule 126 of the Revised Rules on Criminal
Procedure.
The pivotal issue to be resolved in this petition is whether or not the

respondent court acted with grave abuse of discretion amounting to lack or
in excess of jurisdiction in issuing the assailed Orders dated September 6,
2002 and April 21, 2003, denying petitioners Motion to Quash Search Warrant
and to Suppress Evidence Illegally Seized and their Motion for
Reconsideration, respectively.
At the onset, the Office of the Solicitor General (OSG) prays for the
dismissal of this petition on the ground that the filing of the said petition
directly with this Court runs afoul of the doctrine of hierarchy of courts. The
OSG argues that while this Court has concurrent jurisdiction with the Court of
Appeals (CA) over petitions for certiorari, this petition should have been filed
with the CA. The OSG contends that the petitioners have not shown any
compelling reason to justify the filing of the petition directly with this Court.
The general rule is that a party is mandated to follow the hierarchy of

courts. However, in exceptional cases, the Court, for compelling reasons or if
warranted by the nature of the issues raised, may take cognizance of petitions
filed directly before it.[22] In this case, the Court opts to take cognizance of the
petition, as it involves the application of the rules promulgated by this Court
in the exercise of its rule-making power under the Constitution.[23]
At the heart of the present controversy are A.M. No. 99-10-09-SC, Clarifying
the Guidelines on the Application for the Enforceability of Search
Warrants, which was enacted on January 25, 2000; and A.M. No. 00-5-03-SC,
the Revised Rules on Criminal Procedure, which took effect on December 1,
2000, specifically, Section 2, Rule 126 thereof. We quote the pertinent
portions of the two issuances below:
Administrative Matter No. 99-10-09-SC
Resolution Clarifying the Guidelines on the Application for the

Enforceability of Search Warrants
In the interest of an effective administration of justice and

pursuant to the powers vested in the Supreme Court by the
Constitution, the following are authorized to act on all
applications for search warrants involving heinous crimes, illegal
gambling, dangerous drugs and illegal possession of firearms.
The Executive Judge and Vice Executive Judges of Regional Trial

Courts, Manila and Quezon City filed by the Philippine National
Police (PNP), the National Bureau of Investigation (NBI), the
Presidential Anti-Organized Crime Task Force (PAOC-TF) and the
Reaction Against Crime Task Force (REACT-TF) with the Regional
Trial Courts of Manila and Quezon City.
The applications shall be personally endorsed by the Heads of the

said agencies, for the search of places to be particularly described
therein, and the seizure of property of things as prescribed in the
Rules of Court, and to issue the warrants of arrest, if justified,
which may be served in places outside the territorial jurisdiction
of said courts.
The authorized judges shall keep a special docket book listing the
details of the applications and the result of the searches and
seizures made pursuant to the warrants issued.
This Resolution is effective immediately and shall continue until

further orders from this Court and shall be an exemption to the
provisions of Circular No. 13 dated 1 October 1985 and Circular
No. 19 dated 4 August 1987. x x x
A.M. No. 00-5-03-SC
Revised Rules on Criminal Procedure
Rule 126
SEARCH AND SEIZURE
Sec. 2. Court where application for search warrant shall be filed.

An application for search warrant shall be filed with the following:
(a) Any court within whose territorial jurisdiction a

crime was committed.
(b) For compelling reasons stated in the application,
any court within the judicial region where the crime was
committed if the place of the commission of the crime is known,
or any court within the judicial region where the warrant shall be
enforced.
However, if the criminal action has already been filed, the

application shall only be made in the court where the criminal
action is pending.
From the above, it may be seen that A.M. No. 99-10-09-SC authorizes the
Executive Judge and Vice Executive Judges of the RTCs of Manila and Quezon
City to act on all applications for search warrants involving heinous crimes,
illegal gambling, dangerous drugs and illegal possession of firearms on
application filed by the PNP, NBI, PAOC-TF, and REACT-TF. On the other hand,
Rule 126 of the Revised Rules on Criminal Procedure provides that the
application for search warrant shall be filed with: (a) any court within whose
territorial jurisdiction a crime was committed, and (b) for compelling reasons,
any court within the judicial region where the crime was committed if the
place of the commission of the crime is known, or any court within the judicial
region where the warrant shall be enforced.
Petitioners contend that the application for search warrant was

defective. They aver that the application for search warrant filed by SI Lagasca
was not personally endorsed by the NBI Head, Director Wycoco, but instead
endorsed only by Deputy Director Nasol and that while SI Lagasca declared
that Deputy Director Nasol was commissioned to sign the authorization letter
in behalf of Director Wycoco, the same was not duly
substantiated. Petitioners conclude that the absence of the signature of
Director Wycoco was a fatal defect that rendered the application on the
questioned search warrant void per se, and the issued search warrant null and
void because the spring cannot rise above its source. [24]
We disagree. Nothing in A.M. No. 99-10-09-SC prohibits the heads of the PNP,
NBI, PAOC-TF and REACT-TF from delegating their ministerial duty of
endorsing the application for search warrant to their assistant heads. Under
Section 31, Chapter 6, Book IV of the Administrative Code of 1987, an
assistant head or other subordinate in every bureau may perform such duties
as may be specified by their superior or head, as long as it is not inconsistent
with law. The said provision reads:
Chapter 6 POWERS AND DUTIES OF HEADS OF

BUREAUS AND OFFICES
Sec. 31. Duties of Assistant Heads and Subordinates. (1) Assistant

heads and other subordinates in every bureau or office shall
perform such duties as may be required by law or regulations, or
as may be specified by their superiors not otherwise inconsistent
with law.
(2) The head of bureau or office may, in the interest of economy,

designate the assistant head to act as chief of any division or unit
within the organization, in addition to his duties, without
additional compensation, and
(3) In the absence of special restriction prescribed by law, nothing

shall prevent a subordinate officer or employee from being
assigned additional duties by proper authority, when not
inconsistent with the performance of the duties imposed by law.
Director Wycocos act of delegating his task of endorsing the application for
search warrant to Deputy Director Nasol is allowed by the above quoted
provision of law unless it is shown to be inconsistent with any law. Thus,
Deputy Director Nasols endorsement had the same force and effect as an
endorsement issued by Director Wycoco himself. The finding of the RTC in the
questioned Orders that Deputy Director Nasol possessed the authority to sign
for and in behalf of Director Wycoco is unassailable.
Petitioners also assert that the questioned Search Warrant was void ab
initio. They maintain that A.M. No. 99-10-09-SC, which was enacted on
January 25, 2000, was no longer in effect when the application for search
warrant was filed on February 15, 2002. They argue that the Revised Rules on
Criminal Procedure, which took effect on December 1, 2000, should have
been applied, being the later law. Hence, the enforcement of the search
warrant in Angeles City, which was outside the territorial jurisdiction of RTC
Manila, was in violation of the law.
The petitioners contention lacks merit.
A.M. No. 99-10-09-SC provides that the guidelines on the enforceability of

search warrants provided therein shall continue until further orders from this
Court. In fact, the guidelines in A.M. No. 99-10-09-SC are reiterated in A.M.
No. 03-8-02-SC entitled Guidelines On The Selection And Designation Of
Executive Judges And Defining Their Powers, Prerogatives And Duties, which
explicitly stated that the guidelines in the issuance of search warrants in
special criminal cases by the RTCs of Manila and Quezon City shall be an
exception to Section 2 of Rule 126 of the Rules of Court, to wit:[25]
Chapter V. Specific Powers, Prerogatives and Duties of

Executive Judges in Judicial Supervision
Sec. 12. Issuance of search warrants in special criminal cases

by the Regional Trial Courts of Manila and Quezon City. The
Executive Judges and, whenever they are on official leave of
absence or are not physically present in the station, the Vice-
Executive Judges of the RTCs of Manila and Quezon City shall have
authority to act on applications filed by the National Bureau of
Investigation (NBI), the Philippine National Police (PNP) and the
Anti-Crime Task Force (ACTAF), for search warrants involving
heinous crimes, illegal gambling, illegal possession of firearms and
ammunitions as well as violations of the Comprehensive
Dangerous Drugs Act of 2002, the Intellectual Property Code, the
Anti-Money Laundering Act of 2001, the Tariff and Customs Code,
as amended, and other relevant laws that may hereafter be
enacted by Congress, and included herein by the Supreme Court.
The applications shall be personally endorsed by the heads
of such agencies and shall particularly describe therein the places
to be searched and/or the property or things to be seized as
prescribed in the Rules of Court. The Executive Judges and Vice-
Executive Judges concerned shall issue the warrants, if justified,
which may be served in places outside the territorial jurisdiction
of the said courts.
The Executive Judges and the authorized Judges shall keep
a special docket book listing names of Judges to whom the
applications are assigned, the details of the applications and the
results of the searches and seizures made pursuant to the
warrants issued.
This Section shall be an exception to Section 2 of Rule 126 of
the Rules of Court. (italics ours)
In sum, we cannot find any irregularity or abuse of discretion on the

part of Judge Omar T. Viola for denying petitioners Motion to Quash Search
Warrant and to Suppress Evidence Illegally Seized. On the contrary, Judge
Guaria III had complied with the procedural and substantive requirements for
issuing the questioned search warrant.
WHEREFORE, the petition for certiorari is hereby DISMISSED. The

Orders dated September 6, 2002 and April 21, 2003, both issued by
respondent Judge Omar T. Viola of the RTC of Angeles City, Branch 57, are
hereby AFFIRMED.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO

Associate Justice
Acting Chairperson
WE CONCUR:
ANTONIO EDUARDO B. NACHURA

Associate Justice
ARTURO D. BRION DIOSDADO M. PERALTA

LUCAS P. BERSAMIN
Associate Justice
ATTESTATION
Courts Division.

Associate Justice
Acting Chairperson, First Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Acting Division
Chairpersons Attestation, I certify that the conclusions in the above decision
LEONARDO A. QUISUMBING
Acting Chief Justice
*
Additional member as per Special Order No. 740.
**
Acting Chairperson as per Special Order No. 739.
***
****
[1]
Rollo, pp. 29-32.
[2]
Id. at 33-34.
[3]
Id. at 51.
[4]
RTC Record, p. 61.
[5]
See Notes 3 and 4.
[6]
RTC Record, p. 11.
[7]
Id. at. 12-13.
[8]
Believed as proceeds from the earlier sale of prohibited drugs.
[9]
RTC Record, p. 14.
[10]
Id. at 1.
[11]
Rollo, p. 35.
[12]
Id. at 53-58.
[13]
Id. at 53-54.
[14]
Id. at 39
[15]
Promulgated on January 25, 2000.
[16]
Rollo, pp. 59-60.
[17]
Administrative Order No. 20-97
In the interest of an effective administration of justice and pursuant

to the powers vested in the Supreme Court by the Constitution, the Hon.
Roberto A. Barrios, Executive Judge of the Regional Trial Court of Manila
and in his absence the Hon. Rebecca de Guia Salvador, Presiding Judge,
Regional Trial Court, Branch 1, Manila, the Hon. Maximo A. Savellano, Jr.,
Presiding Judge, Regional Trial Court, Branch 53, Manila and the Hon.
Edgardo P. Cruz, Presiding Judge Regional Trial Court, Branch 27, Manila
are hereby authorized to act on all applications for search warrants filed
by the National Bureau of Investigation (NBI) by the Presidential Anti-
Crime Commission (PACC) and by the Public Assistance and Reaction
Against Crime (PARAC), duly certified by the legal officers and personally
endorsed by the Heads of the said agencies, with the Regional Trial Court
of Manila, for the search of places to be particularly described therein, and
the seizure of property or things as prescribed in the Rules of Court, and to
issue the warrants, if justified, which may be served in places even outside
the territorial jurisdiction of said courts. This order is effective immediately
and shall continue until further orders from this Court and shall be an
exception to the provisions of Circular 13 dated October 1, 1985 and
Circular No. 19 dated August 4, 1987. The authorization herein granted
shall cover applications for search warrants involving illegal gambling,
dangerous drugs, illegal possession of firearms and other major
crimes. The authorized Judges shall keep a special docket book listing the
details of the applications and the result of the searches and seizures made
pursuant to the warrants issued.
[18]
Rollo, pp. 29-32.
[19]
Id. at 31-32.
[20]
Id. at 46-49.
[21]
Id. at 33-34.
[22]
United Laboratories, Inc. v. Isip, G.R. No. 163858, June 28, 2005, 461 SCRA
574, 593.
[23]
Sec. 5, Art. VIII of the Constitution.
[24]
Rollo, p. 14.
[25]
Effectivity date is February 15, 2004.
3. G. R. No. 197788

Supreme Court
Manila
SECOND DIVISION
RODEL LUZ y ONG,

Petitioner,
- versus -
PEOPLE OF THE PHILIPPINES,[1]

Respondent.
G. R. No. 197788
Present:
CARPIO, J., Chairperson,

BRION,
PEREZ,
SERENO, and
REYES, JJ.
Promulgated:
February 29, 2012

x--------------------------------------------------x
DECISION
SERENO, J.:
This is a Petition for Review on Certiorari under Rule 45 seeking to set aside
the Court of Appeals (CA) Decision in CA-G.R. CR No. 32516 dated 18 February
2011[2] and Resolution dated 8 July 2011.
Statement of the Facts and of the Case
The facts, as found by the Regional Trial Court (RTC), which sustained the
version of the prosecution, are as follows:
PO2 Emmanuel L. Alteza, who was then assigned at the Sub-Station 1 of the
Naga City Police Station as a traffic enforcer, substantially testified that on
March 10, 2003 at around 3:00 oclock in the morning, he saw the accused,
who was coming from the direction of Panganiban Drive and going to
Diversion Road, Naga City, driving a motorcycle without a helmet; that this
prompted him to flag down the accused for violating a municipal ordinance
which requires all motorcycle drivers to wear helmet (sic) while driving said
motor vehicle; that he invited the accused to come inside their sub-station
since the place where he flagged down the accused is almost in front of the
said sub-station; that while he and SPO1 Rayford Brillante were issuing a
citation ticket for violation of municipal ordinance, he noticed that the
accused was uneasy and kept on getting something from his jacket; that he
was alerted and so, he told the accused to take out the contents of the pocket
of his jacket as the latter may have a weapon inside it; that the accused
obliged and slowly put out the contents of the pocket of his jacket which was
a nickel-like tin or metal container about two (2) to three (3) inches in size,
including two (2) cellphones, one (1) pair of scissors and one (1) Swiss knife;
that upon seeing the said container, he asked the accused to open it; that
after the accused opened the container, he noticed a cartoon cover and
something beneath it; and that upon his instruction, the accused spilled out
the contents of the container on the table which turned out to be four (4)
plastic sachets, the two (2) of which were empty while the other two (2)
contained suspected shabu.[3]
Arraigned on 2 July 2003, petitioner, assisted by counsel, entered a plea of

Not guilty to the charge of illegal possession of dangerous drugs. Pretrial was
terminated on 24 September 2003, after which, trial ensued.
During trial, Police Officer 3 (PO3) Emmanuel Alteza and a forensic chemist
testified for the prosecution. On the other hand, petitioner testified for
himself and raised the defense of planting of evidence and extortion.
In its 19 February 2009 Decision,[4] the RTC convicted petitioner of illegal

possession of dangerous drugs[5] committed on 10 March 2003. It found the
prosecution evidence sufficient to show that he had been lawfully arrested
for a traffic violation and then subjected to a valid search, which led to the
discovery on his person of two plastic sachets later found to contain shabu.
The RTC also found his defense of frame-up and extortion to be weak, self-
serving and unsubstantiated. The dispositive portion of its Decision held:
WHEREFORE, judgment is hereby rendered, finding accused RODEL LUZ y

ONG GUILTY beyond reasonable doubt for the crime of violation of Section
11, Article II of Republic Act No. 9165 and sentencing him to suffer the
indeterminate penalty of imprisonment ranging from twelve (12) years and
(1) day, as minimum, to thirteen (13) years, as maximum, and to pay a fine of
Three Hundred Thousand Pesos (300,000.00).
The subject shabu is hereby confiscated for turn over to the Philippine Drug
Enforcement Agency for its proper disposition and destruction in accordance
with law.
SO ORDERED.[6]
Upon review, the CA affirmed the RTCs Decision.
On 12 September 2011, petitioner filed under Rule 45 the instant Petition for
Review on Certiorari dated 1 September 2011. In a Resolution dated 12
October 2011, this Court required respondent to file a comment on the
Petition. On 4 January 2012, the latter filed its Comment dated 3 January
2012.
Petitioner raised the following grounds in support of his Petition:
(i) THE SEARCH AND SEIZURE OF THE ALLEGED SUBJECT SHABU IS

INVALID.
(ii) THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF

DUTY OF THE POLICE OFFICER CANNOT BE RELIED UPON IN THIS CASE.
(iii) THE INTEGRITY AND EVIDENTIARY VALUE OF THE ALLEGED SUBJECT

SPECIMEN HAS BEEN COMPROMISED.
(iv) THE GUILT OF THE ACCUSED-PETITIONER WAS NOT PROVEN BEYOND
THE REASONABLE DOUBT (sic).[7]
Petitioner claims that there was no lawful search and seizure, because there
was no lawful arrest. He claims that the finding that there was a lawful arrest
was erroneous, since he was not even issued a citation ticket or charged with
violation of the city ordinance. Even assuming there was a valid arrest, he
claims that he had never consented to the search conducted upon him.
On the other hand, finding that petitioner had been lawfully arrested, the RTC
held thus:
It is beyond dispute that the accused was flagged down and apprehended in
this case by Police Officers Alteza and Brillante for violation of City Ordinance
No. 98-012, an ordinance requiring the use of crash helmet by motorcycle
drivers and riders thereon in the City of Naga and prescribing penalties for
violation thereof. The accused himself admitted that he was not wearing a
helmet at the time when he was flagged down by the said police officers,
albeit he had a helmet in his possession. Obviously, there is legal basis on the
part of the apprehending officers to flag down and arrest the accused because
the latter was actually committing a crime in their presence, that is, a violation
of City Ordinance No. 98-012. In other words, the accused, being caught in
flagrante delicto violating the said Ordinance, he could therefore be lawfully
stopped or arrested by the apprehending officers. x x x.[8]
We find the Petition to be impressed with merit, but not for the particular
reasons alleged. In criminal cases, an appeal throws the entire case wide open
for review and the reviewing tribunal can correct errors, though unassigned
in the appealed judgment, or even reverse the trial courts decision based on
grounds other than those that the parties raised as errors.[9]
First, there was no valid arrest of petitioner. When he was flagged down for
committing a traffic violation, he was not, ipso facto and solely for this reason,
arrested.
Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense.[10] It is effected by an
actual restraint of the person to be arrested or by that persons voluntary
submission to the custody of the one making the arrest. Neither the
application of actual force, manual touching of the body, or physical restraint,
nor a formal declaration of arrest, is required. It is enough that there be an
intention on the part of one of the parties to arrest the other, and that there
be an intent on the part of the other to submit, under the belief and
impression that submission is necessary.[11]
Under R.A. 4136, or the Land Transportation and Traffic Code, the general
procedure for dealing with a traffic violation is not the arrest of the offender,
but the confiscation of the drivers license of the latter:
SECTION 29. Confiscation of Driver's License. Law enforcement and peace

officers of other agencies duly deputized by the Director shall, in
apprehending a driver for any violation of this Act or any regulations issued
pursuant thereto, or of local traffic rules and regulations not contrary to any
provisions of this Act, confiscate the license of the driver concerned and issue
a receipt prescribed and issued by the Bureau therefor which shall authorize
the driver to operate a motor vehicle for a period not exceeding seventy-two
hours from the time and date of issue of said receipt. The period so fixed in
the receipt shall not be extended, and shall become invalid thereafter. Failure
of the driver to settle his case within fifteen days from the date of
apprehension will be a ground for the suspension and/or revocation of his
license.
Similarly, the Philippine National Police (PNP) Operations Manual[12]

provides the following procedure for flagging down vehicles during the
conduct of checkpoints:
SECTION 7. Procedure in Flagging Down or Accosting Vehicles While in Mobile

Car. This rule is a general concept and will not apply in hot pursuit operations.
The mobile car crew shall undertake the following, when applicable: x x x
m. If it concerns traffic violations, immediately issue a Traffic Citation Ticket

(TCT) or Traffic Violation Report (TVR). Never indulge in prolonged,
unnecessary conversation or argument with the driver or any of the vehicles
occupants;
At the time that he was waiting for PO3 Alteza to write his citation ticket,
petitioner could not be said to have been under arrest. There was no intention
on the part of PO3 Alteza to arrest him, deprive him of his liberty, or take him
into custody. Prior to the issuance of the ticket, the period during which
petitioner was at the police station may be characterized merely as waiting
time. In fact, as found by the trial court, PO3 Alteza himself testified that the
only reason they went to the police sub-station was that petitioner had been
flagged down almost in front of that place. Hence, it was only for the sake of
convenience that they were waiting there. There was no intention to take
petitioner into custody.
In Berkemer v. McCarty,[13] the United States (U.S.) Supreme Court discussed

at length whether the roadside questioning of a motorist detained pursuant
to a routine traffic stop should be considered custodial interrogation. The
Court held that, such questioning does not fall under custodial interrogation,
nor can it be considered a formal arrest, by virtue of the nature of the
questioning, the expectations of the motorist and the officer, and the length
of time the procedure is conducted. It ruled as follows:
It must be acknowledged at the outset that a traffic stop significantly curtails

the freedom of action of the driver and the passengers, if any, of the detained
vehicle. Under the law of most States, it is a crime either to ignore a
policemans signal to stop ones car or, once having stopped, to drive away
without permission. x x x
However, we decline to accord talismanic power to the phrase in the Miranda

opinion emphasized by respondent. Fidelity to the doctrine announced in
Miranda requires that it be enforced strictly, but only in those types of
situations in which the concerns that powered the decision are implicated.
Thus, we must decide whether a traffic stop exerts upon a detained person
pressures that sufficiently impair his free exercise of his privilege against self-
incrimination to require that he be warned of his constitutional rights.
Two features of an ordinary traffic stop mitigate the danger that a person
questioned will be induced to speak where he would not otherwise do so
freely, Miranda v. Arizona, 384 U. S., at 467. First, detention of a motorist
pursuant to a traffic stop is presumptively temporary and brief. The vast
majority of roadside detentions last only a few minutes. A motorists
expectations, when he sees a policemans light flashing behind him, are that
he will be obliged to spend a short period of time answering questions and
waiting while the officer checks his license and registration, that he may then
be given a citation, but that in the end he most likely will be allowed to
continue on his way. In this respect, questioning incident to an ordinary traffic
stop is quite different from stationhouse interrogation, which frequently is
prolonged, and in which the detainee often is aware that questioning will
continue until he provides his interrogators the answers they seek. See id., at
451.
Second, circumstances associated with the typical traffic stop are not such
that the motorist feels completely at the mercy of the police. To be sure, the
aura of authority surrounding an armed, uniformed officer and the
knowledge that the officer has some discretion in deciding whether to issue
a citation, in combination, exert some pressure on the detainee to respond to
questions. But other aspects of the situation substantially offset these forces.
Perhaps most importantly, the typical traffic stop is public, at least to some
degree. x x x
In both of these respects, the usual traffic stop is more analogous to a so-
called Terry stop, see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest.
x x x The comparatively nonthreatening character of detentions of this sort
explains the absence of any suggestion in our opinions that Terry stops are
subject to the dictates of Miranda. The similarly noncoercive aspect of
ordinary traffic stops prompts us to hold that persons temporarily detained
pursuant to such stops are not in custody for the purposes of Miranda.
xxxxxxxxx
We are confident that the state of affairs projected by respondent will not
come to pass. It is settled that the safeguards prescribed by Miranda become
applicable as soon as a suspects freedom of action is curtailed to a degree
associated with formal arrest. California v. Beheler, 463 U. S. 1121, 1125
(1983) (per curiam). If a motorist who has been detained pursuant to a traffic
stop thereafter is subjected to treatment that renders him in custody for
practical purposes, he will be entitled to the full panoply of protections
prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492, 495 (1977)
(per curiam). (Emphasis supplied.)
The U.S. Court in Berkemer thus ruled that, since the motorist therein was
only subjected to modest questions while still at the scene of the traffic stop,
he was not at that moment placed under custody (such that he should have
been apprised of his Miranda rights), and neither can treatment of this sort
be fairly characterized as the functional equivalent of a formal arrest.
Similarly, neither can petitioner here be considered under arrest at the time
that his traffic citation was being made.
It also appears that, according to City Ordinance No. 98-012, which was
violated by petitioner, the failure to wear a crash helmet while riding a
motorcycle is penalized by a fine only. Under the Rules of Court, a warrant of
arrest need not be issued if the information or charge was filed for an offense
penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense.
This ruling does not imply that there can be no arrest for a traffic violation.
Certainly, when there is an intent on the part of the police officer to deprive
the motorist of liberty, or to take the latter into custody, the former may be
deemed to have arrested the motorist. In this case, however, the officers
issuance (or intent to issue) a traffic citation ticket negates the possibility of
an arrest for the same violation.
Even if one were to work under the assumption that petitioner was deemed
arrested upon being flagged down for a traffic violation and while awaiting
the issuance of his ticket, then the requirements for a valid arrest were not
complied with.
This Court has held that at the time a person is arrested, it shall be the duty
of the arresting officer to inform the latter of the reason for the arrest and
must show that person the warrant of arrest, if any. Persons shall be informed
of their constitutional rights to remain silent and to counsel, and that any
statement they might make could be used against them.[14] It may also be
noted that in this case, these constitutional requirements were complied with
by the police officers only after petitioner had been arrested for illegal
possession of dangerous drugs.
In Berkemer, the U.S. Court also noted that the Miranda warnings must also
be given to a person apprehended due to a traffic violation:
The purposes of the safeguards prescribed by Miranda are to ensure that the
police do not coerce or trick captive suspects into confessing, to relieve the
inherently compelling pressures generated by the custodial setting itself,
which work to undermine the individuals will to resist, and as much as
possible to free courts from the task of scrutinizing individual cases to try to
determine, after the fact, whether particular confessions were voluntary.
Those purposes are implicated as much by in-custody questioning of persons
suspected of misdemeanors as they are by questioning of persons suspected
of felonies.
If it were true that petitioner was already deemed arrested when he was
flagged down for a traffic violation and while he waiting for his ticket, then
there would have been no need for him to be arrested for a second timeafter
the police officers allegedly discovered the drugsas he was already in their
custody.
Second, there being no valid arrest, the warrantless search that resulted from
it was likewise illegal.
The following are the instances when a warrantless search is allowed: (i) a
warrantless search incidental to a lawful arrest; (ii) search of evidence in plain
view; (iii) search of a moving vehicle; (iv) consented warrantless search; (v)
customs search; (vi) a stop and frisk search; and (vii) exigent and emergency
circumstances.[15] None of the above-mentioned instances, especially a
search incident to a lawful arrest, are applicable to this case.
It must be noted that the evidence seized, although alleged to be
inadvertently discovered, was not in plain view. It was actually concealed
inside a metal container inside petitioners pocket. Clearly, the evidence was
not immediately apparent.[16]
Neither was there a consented warrantless search. Consent to a search is not
to be lightly inferred, but shown by clear and convincing evidence.[17] It must
be voluntary in order to validate an otherwise illegal search; that is, the
consent must be unequivocal, specific, intelligently given and
uncontaminated by any duress or coercion. While the prosecution claims that
petitioner acceded to the instruction of PO3 Alteza, this alleged accession
does not suffice to prove valid and intelligent consent. In fact, the RTC found
that petitioner was merely told to take out the contents of his pocket.[18]
Whether consent to the search was in fact voluntary is a question of fact to
be determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent
and the environment in which consent is given: (1) the age of the defendant;
(2) whether the defendant was in a public or a secluded location; (3) whether
the defendant objected to the search or passively looked on; (4) the
education and intelligence of the defendant; (5) the presence of coercive
police procedures; (6) the defendants belief that no incriminating evidence
would be found; (7) the nature of the police questioning; (8) the environment
in which the questioning took place; and (9) the possibly vulnerable subjective
state of the person consenting. It is the State that has the burden of proving,
by clear and positive testimony, that the necessary consent was obtained, and
was freely and voluntarily given.[19] In this case, all that was alleged was that
petitioner was alone at the police station at three in the morning,
accompanied by several police officers. These circumstances weigh heavily
against a finding of valid consent to a warrantless search.
Neither does the search qualify under the stop and frisk rule. While the rule
normally applies when a police officer observes suspicious or unusual
conduct, which may lead him to believe that a criminal act may be afoot, the
stop and frisk is merely a limited protective search of outer clothing for
weapons.[20]
In Knowles v. Iowa,[21] the U.S. Supreme Court held that when a police officer
stops a person for speeding and correspondingly issues a citation instead of
arresting the latter, this procedure does not authorize the officer to conduct
a full search of the car. The Court therein held that there was no justification
for a full-blown search when the officer does not arrest the motorist. Instead,
police officers may only conduct minimal intrusions, such as ordering the
motorist to alight from the car or doing a patdown:
In Robinson, supra, we noted the two historical rationales for the search
incident to arrest exception: (1) the need to disarm the suspect in order to
take him into custody, and (2) the need to preserve evidence for later use at
trial. x x x But neither of these underlying rationales for the search incident to
arrest exception is sufficient to justify the search in the present case.
We have recognized that the first rationaleofficer safetyis both legitimate and
weighty, x x x The threat to officer safety from issuing a traffic citation,
however, is a good deal less than in the case of a custodial arrest. In Robinson,
we stated that a custodial arrest involves danger to an officer because of the
extended exposure which follows the taking of a suspect into custody and
transporting him to the police station. 414 U. S., at 234-235. We recognized
that [t]he danger to the police officer flows from the fact of the arrest, and its
attendant proximity, stress, and uncertainty, and not from the grounds for
arrest. Id., at 234, n. 5. A routine traffic stop, on the other hand, is a relatively
brief encounter and is more analogous to a so-called Terry stop . . . than to a
formal arrest. Berkemer v. McCarty, 468 U. S. 420, 439 (1984). See also Cupp
v. Murphy, 412 U. S. 291, 296 (1973) (Where there is no formal arrest . . . a
person might well be less hostile to the police and less likely to take
conspicuous, immediate steps to destroy incriminating evidence).
This is not to say that the concern for officer safety is absent in the case of a
routine traffic stop. It plainly is not. See Mimms, supra, at 110; Wilson, supra,
at 413-414. But while the concern for officer safety in this context may justify
the minimal additional intrusion of ordering a driver and passengers out of
the car, it does not by itself justify the often considerably greater intrusion
attending a full fieldtype search. Even without the search authority Iowa
urges, officers have other, independent bases to search for weapons and
protect themselves from danger. For example, they may order out of a vehicle
both the driver, Mimms, supra, at 111, and any passengers, Wilson, supra, at
414; perform a patdown of a driver and any passengers upon reasonable
suspicion that they may be armed and dangerous, Terry v. Ohio, 392 U. S. 1
(1968); conduct a Terry patdown of the passenger compartment of a vehicle
upon reasonable suspicion that an occupant is dangerous and may gain
immediate control of a weapon, Michigan v. Long, 463 U. S. 1032, 1049
(1983); and even conduct a full search of the passenger compartment,
including any containers therein, pursuant to a custodial arrest, New York v.
Belton, 453 U. S. 454, 460 (1981).
Nor has Iowa shown the second justification for the authority to search
incident to arrestthe need to discover and preserve evidence. Once Knowles
was stopped for speeding and issued a citation, all the evidence necessary to
prosecute that offense had been obtained. No further evidence of excessive
speed was going to be found either on the person of the offender or in the
passenger compartment of the car. (Emphasis supplied.)
The foregoing considered, petitioner must be acquitted. While he may have
failed to object to the illegality of his arrest at the earliest opportunity, a
waiver of an illegal warrantless arrest does not, however, mean a waiver of
the inadmissibility of evidence seized during the illegal warrantless arrest.[22]
The Constitution guarantees the right of the people to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures.[23] Any evidence obtained in violation of said right shall be
inadmissible for any purpose in any proceeding. While the power to search
and seize may at times be necessary to the public welfare, still it must be
exercised and the law implemented without contravening the constitutional
rights of citizens, for the enforcement of no statute is of sufficient importance
to justify indifference to the basic principles of government.[24]
The subject items seized during the illegal arrest are inadmissible.[25] The
drugs are the very corpus delicti of the crime of illegal possession of
dangerous drugs. Thus, their inadmissibility precludes conviction and calls for
the acquittal of the accused.[26]
WHEREFORE, the Petition is GRANTED. The 18 February 2011 Decision of the
Court of Appeals in CA-G.R. CR No. 32516 affirming the judgment of
conviction dated 19 February 2009 of the Regional Trial Court, 5th Judicial
Region, Naga City, Branch 21, in Criminal Case No. RTC 2003-0087, is hereby
REVERSED and SET ASIDE. Petitioner Rodel Luz y Ong is hereby ACQUITTED
and ordered immediately released from detention, unless his continued
confinement is warranted by some other cause or ground.
SO ORDERED.
MARIA LOURDES P. A. SERENO

Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
ARTURO D. BRION JOSE PORTUGAL PEREZ

BIENVENIDO L. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in

Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson
CERTIFICATION
RENATO C. CORONA
Chief Justice
[1] The Petition was originally captioned as Rodel Luz y Ong v. Hon. Court of
Appeals, Hon. Presiding Judge, Regional Trial Court, Branch 21, Naga City.
However, under Section 4, Rule 45 of the Rules of Court, the petition must
state the full name of the appealing party as the petitioner and the adverse
party as respondent, without impleading the lower courts or judges thereof
either as petitioners or respondents.
[2]Penned by Associate Justice Ricardo R. Rosario and concurred in by
Associate Justices Hakim S. Abdulwahid and Samuel H. Gaerlan.
[3] Rollo, p. 91.
[4] Docketed as Criminal Case No. RTC 2003-0087; rollo, pp. 90-102.
[5] See Section 11, Republic Act No. (R.A.) 9165, or the Comprehensive
Dangerous Drugs Act of 2002.
[6] Rollo, p. 101.
[7] Rollo, p. 23.
[8] Id. at 96.
[9] People v. Saludes, 452 Phil. 719, 728 (2003).
[10] RULES OF COURT, Rule 113, Sec. 1.
[11] People v. Milado, 462 Phil. 411 (2003).
[12] PNPM-DO-DS-3-1 dated March 2010.
[13] 468 U.S. 420 (1984).
[14] Morales v. Enrile, 206 Phil. 466 (1983).
[15] People v. Bolasa, 378 Phil. 1073, 1078-1079 (1999).
[16] See People v. Macalaba, 443 Phil. 565 (2003).
[17] Caballes v. Court of Appeals, 424 Phil. 263 (2002).
[18] RTC Decision, rollo, p. 91.
[19] Caballes v. Court of Appeals, 424 Phil. 263 (2002).
[20] People v. Sy Chua, 444 Phil. 757 (2003).
[21] 525 U.S. 113 (1998).
[22] People v. Lapitaje, 445 Phil. 729 (2003).
[23] 1987 CONST., Art. III, Sec. 2.
[24] Valdez v. People, G.R. No. 170180, 23 November 2007, 538 SCRA 611.
[25] People v. Martinez, G.R. No. 191366, 13 December 2010.
[26] Id.
4. G.R. No. 170180
SECOND DIVISION
ARSENIO VERGARA VALDEZ, G.R. No. 170180
Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JJ.

November 23, 2007
x------------------------------------------------------------------------------------x
DECISION
TINGA, J.:
The sacred right against an arrest, search or seizure without valid warrant is
not only ancient. It is also zealously safeguarded. The Constitution guarantees
the right of the people to be secure in their persons, houses, papers and
effects against unreasonable searches and seizures.[1] Any evidence obtained
in violation of said right shall be inadmissible for any purpose in any
proceeding. Indeed, while the power to search and seize may at times be
necessary to the public welfare, still it must be exercised and the law
implemented without contravening the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient importance to justify
indifference to the basic principles of government.[2]
On appeal is the Decision[3] of the Court of Appeals dated 28 July 2005,

affirming the Judgment[4] of the Regional Trial Court (RTC), Branch 31, Agoo,
La Union dated 31 March 2004 finding petitioner Arsenio Vergara Valdez
guilty beyond reasonable doubt of violating Section 11 of Republic Act No.
9165 (R.A. No. 9165)[5] and sentencing him to suffer the penalty of
imprisonment ranging from eight (8) years and one (1) day of prision mayor
medium as minimum to fifteen (15) years of reclusion temporal medium as
maximum and ordering him to pay a fine of P350,000.00.[6]
I.
On 26 June 2003, petitioner was charged with violation of Section 11, par. 2(2)
of R.A. No. 9165 in an Information[7] which reads:
That on or about the 17th day of March 2003, in the Municipality of Aringay,
Province of La Union, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody dried marijuana leaves
wrapped in a cellophane and newspaper page, weighing more or less twenty-
five (25) grams, without first securing the necessary permit, license or
prescription from the proper government agency.
CONTRARY TO LAW.[8]
On arraignment, petitioner pleaded not guilty. Thereafter, trial on the merits

ensued with the prosecution presenting the three (3) barangay tanods of San
Benito Norte, Aringay, La Union namely, Rogelio Bautista (Bautista), Nestor
Aratas (Aratas) and Eduardo Ordoo (Ordoo), who arrested petitioner.
Bautista testified that at around 8:00 to 8:30 p.m. of 17 March 2003, he was
conducting the routine patrol along the National Highway in Barangay San
Benito Norte, Aringay, La Union together with Aratas and Ordoo when they
noticed petitioner, lugging a bag, alight from a mini-bus. The tanods observed
that petitioner, who appeared suspicious to them, seemed to be looking for
something. They thus approached him but the latter purportedly attempted
to run away. They chased him, put him under arrest and thereafter brought
him to the house of Barangay Captain Orencio Mercado (Mercado) where he,
as averred by Bautista, was ordered by Mercado to open his bag. Petitioners
bag allegedly contained a pair of denim pants, eighteen pieces of eggplant
and dried marijuana leaves wrapped in newspaper and cellophane. It was
then that petitioner was taken to the police station for further
investigation.[9]
Aratas and Ordoo corroborated Bautistas testimony on most material points.
On cross-examination, however, Aratas admitted that he himself brought out
the contents of petitioners bag before petitioner was taken to the house of
Mercado.[10] Nonetheless, he claimed that at Mercados house, it was
petitioner himself who brought out the contents of his bag upon orders from
Mercado. For his part, Ordoo testified that it was he who was ordered by
Mercado to open petitioners bag and that it was then that they saw the
purported contents thereof.[11]
The prosecution likewise presented Police Inspector Valeriano Laya II (Laya),

the forensic chemist who conducted the examination of the marijuana
allegedly confiscated from petitioner. Laya maintained that the specimen
submitted to him for analysis, a sachet of the substance weighing 23.10 grams
and contained in a plastic bag, tested positive of marijuana. He disclosed on
cross-examination, however, that he had knowledge neither of how the
marijuana was taken from petitioner nor of how the said substance reached
the police officers. Moreover, he could not identify whose marking was on
the inside of the cellophane wrapping the marijuana leaves.[12]
The charges were denied by petitioner. As the defenses sole witness, he

testified that at around 8:30 p.m. on 17 March 2003, he arrived in Aringay
from his place in Curro-oy, Santol, La Union. After alighting from the bus,
petitioner claimed that he went to the house of a friend to drink water and
then proceeded to walk to his brothers house. As he was walking, prosecution
witness Ordoo, a cousin of his brothers wife, allegedly approached him and
asked where he was going. Petitioner replied that he was going to his brothers
house. Ordoo then purportedly requested to see the contents of his bag and
appellant acceded. It was at this point that Bautista and Aratas joined them.
After inspecting all the contents of his bag, petitioner testified that he was
restrained by the tanod and taken to the house of Mercado. It was Aratas who
carried the bag until they reached their destination.[13]
Petitioner maintained that at Mercados house, his bag was opened by the
tanod and Mercado himself. They took out an item wrapped in newspaper,
which later turned out to be marijuana leaves. Petitioner denied ownership
thereof. He claimed to have been threatened with imprisonment by his
arrestors if he did not give the prohibited drugs to someone from the east in
order for them to apprehend such person. As petitioner declined, he was
brought to the police station and charged with the instant offense. Although
petitioner divulged that it was he who opened and took out the contents of
his bag at his friends house, he averred that it was one of the tanod who did
so at Mercados house and that it was only there that they saw the marijuana
for the first time.[14]
Finding that the prosecution had proven petitioners guilt beyond reasonable
doubt, the RTC rendered judgment against him and sentenced him to suffer
indeterminate imprisonment ranging from eight (8) years and one (1) day of
prision mayor medium as minimum to fifteen (15) years of reclusion temporal
medium as maximum and ordered him to pay a fine of P350,000.00.[15]
Aggrieved, petitioner appealed the decision of the RTC to the Court of

Appeals. On 28 July 2005, the appellate court affirmed the challenged
decision. The Court of Appeals, finding no cogent reason to overturn the
presumption of regularity in favor of the barangay tanod in the absence of
evidence of ill-motive on their part, agreed with the trial court that there was
probable cause to arrest petitioner. It observed further:
That the prosecution failed to establish the chain of custody of the seized
marijuana is of no moment. Such circumstance finds prominence only when
the existence of the seized prohibited drugs is denied. In this case, accused-
appellant himself testified that the marijuana wrapped in a newspaper was
taken from his bag. The corpus delicti of the crime, i.e.[,] the existence of the
marijuana and his possession thereof, was amply proven by accused-
appellant Valdezs own testimony.[16]
In this appeal, petitioner prays for his acquittal and asserts that his guilt of the
crime charged had not been proven beyond reasonable doubt. He argues,
albeit for the first time on appeal, that the warrantless arrest effected against
him by the barangay tanod was unlawful and that the warrantless search of
his bag that followed was likewise contrary to law. Consequently, he
maintains, the marijuana leaves purportedly seized from him are inadmissible
in evidence for being the fruit of a poisonous tree.
Well-settled is the rule that the findings of the trial court on the credibility of
witnesses and their testimonies are accorded great respect and weight, in the
absence of any clear showing that some facts and circumstances of weight or
substance which could have affected the result of the case have been
overlooked, misunderstood or misapplied.[17]
After meticulous examination of the records and evidence on hand, however,

the Court finds and so holds that a reversal of the decision a quo under review
is in order.
II.
At the outset, we observe that nowhere in the records can we find any
objection by petitioner to the irregularity of his arrest before his arraignment.
Considering this and his active participation in the trial of the case,
jurisprudence dictates that petitioner is deemed to have submitted to the
jurisdiction of the trial court, thereby curing any defect in his arrest. The
legality of an arrest affects only the jurisdiction of the court over his
person.[18] Petitioners warrantless arrest therefore cannot, in itself, be the
basis of his acquittal.
However, to determine the admissibility of the seized drugs in evidence, it is

indispensable to ascertain whether or not the search which yielded the
alleged contraband was lawful. The search, conducted as it was without a
warrant, is justified only if it were incidental to a lawful arrest.[19] Evaluating
the evidence on record in its totality, as earlier intimated, the reasonable
conclusion is that the arrest of petitioner without a warrant is not lawful as
well.
Petitioner maintains, in a nutshell, that after he was approached by the tanod

and asked to show the contents of his bag, he was simply herded without
explanation and taken to the house of the barangay captain. On their way
there, it was Aratas who carried his bag. He denies ownership over the
contraband allegedly found in his bag and asserts that he saw it for the first
time at the barangay captains house.
Even casting aside petitioners version and basing the resolution of this case
on the general thrust of the prosecution evidence, the unlawfulness of
petitioners arrest stands out just the same.
Section 5, Rule 113 of the Rules on Criminal Procedure provides the only
occasions on which a person may be arrested without a warrant, to wit:
Section 5. Arrest without warrant; when lawful.A peace officer or a private

person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause
to believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
xxx
It is obvious that based on the testimonies of the arresting barangay tanod,

not one of these circumstances was obtaining at the time petitioner was
arrested. By their own admission, petitioner was not committing an offense
at the time he alighted from the bus, nor did he appear to be then committing
an offense.[20] The tanod did not have probable cause either to justify
petitioners warrantless arrest.
For the exception in Section 5(a), Rule 113 to operate, this Court has ruled
that two (2) elements must be present: (1) the person to be arrested must
execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and (2) such overt act is done
in the presence or within the view of the arresting officer.[21] Here,
petitioners act of looking around after getting off the bus was but natural as
he was finding his way to his destination. That he purportedly attempted to
run away as the tanod approached him is irrelevant and cannot by itself be
construed as adequate to charge the tanod with personal knowledge that
petitioner had just engaged in, was actually engaging in or was attempting to
engage in criminal activity. More importantly, petitioner testified that he did
not run away but in fact spoke with the barangay tanod when they
approached him.
Even taking the prosecutions version generally as the truth, in line with our
assumption from the start, the conclusion will not be any different. It is not
unreasonable to expect that petitioner, walking the street at night, after being
closely observed and then later tailed by three unknown persons, would
attempt to flee at their approach. Flight per se is not synonymous with guilt
and must not always be attributed to ones consciousness of guilt.[22] Of
persuasion was the Michigan Supreme Court when it ruled in People v.
Shabaz[23] that [f]light alone is not a reliable indicator of guilt without other
circumstances because flight alone is inherently ambiguous. Alone, and under
the circumstances of this case, petitioners flight lends itself just as easily to
an innocent explanation as it does to a nefarious one.
Moreover, as we pointed out in People v. Tudtud,[24] [t]he phrase in his

presence therein, connot[es] penal knowledge on the part of the arresting
officer. The right of the accused to be secure against any unreasonable
searches on and seizure of his own body and any deprivation of his liberty
being a most basic and fundamental one, the statute or rule that allows
exception to the requirement of a warrant of arrest is strictly construed. Its
application cannot be extended beyond the cases specifically provided by
law.[25]
Indeed, the supposed acts of petitioner, even assuming that they appeared
dubious, cannot be viewed as sufficient to incite suspicion of criminal activity
enough to validate his warrantless arrest.[26] If at all, the search most
permissible for the tanod to conduct under the prevailing backdrop of the
case was a stop-and-frisk to allay any suspicion they have been harboring
based on petitioners behavior. However, a stop-and-frisk situation, following
Terry v. Ohio,[27] must precede a warrantless arrest, be limited to the
persons outer clothing, and should be grounded upon a genuine reason, in
light of the police officers experience and surrounding conditions, to warrant
the belief that the person detained has weapons concealed about him.[28]
Accordingly, petitioners waiver of his right to question his arrest

notwithstanding, the marijuana leaves allegedly taken during the search
cannot be admitted in evidence against him as they were seized during a
warrantless search which was not lawful.[29] As we pronounced in People v.
Bacla-an
A waiver of an illegal warrantless arrest does not also mean a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest. The
following searches and seizures are deemed permissible by jurisprudence: (1)
search of moving vehicles (2) seizure in plain view (3) customs searches (4)
waiver or consent searches (5) stop and frisk situations (Terry Search) and (6)
search incidental to a lawful arrest. The last includes a valid warrantless
search and seizure pursuant to an equally valid warrantless arrest, for, while
as a rule, an arrest is considered legitimate if effected with a valid warrant of
arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1)
arrests in flagrante delicto, (2) arrests effected in hot pursuit, and, (3) arrests
of escaped prisoners.[30]
When petitioner was arrested without a warrant, he was neither caught in

flagrante delicto committing a crime nor was the arrest effected in hot
pursuit. Verily, it cannot therefore be reasonably argued that the warrantless
search conducted on petitioner was incidental to a lawful arrest.
In its Comment, the Office of the Solicitor General posits that apart from the
warrantless search being incidental to his lawful arrest, petitioner had
consented to the search. We are not convinced. As we explained in Caballes
v. Court of Appeals[31]
Doubtless, the constitutional immunity against unreasonable searches and

seizures is a personal right which may be waived. The consent must be
voluntary in order to validate an otherwise illegal detention and search, i.e.,
the consent is unequivocal, specific, and intelligently given, uncontaminated
by any duress or coercion. Hence, consent to a search is not to be lightly
inferred, but must be shown by clear and convincing evidence. The question
whether a consent to a search was in fact voluntary is a question of fact to be
determined from the totality of all the circumstances. Relevant to this
determination are the following characteristics of the person giving consent
and the environment in which consent is given: (1) the age of the defendant;
(2) whether he was in a public or secluded location; (3) whether he objected
to the search or passively looked on; (4) the education and intelligence of the
defendant; (5) the presence of coercive police procedures; (6) the defendant's
belief that no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9)
the possibly vulnerable subjective state of the person consenting. It is the
State which has the burden of proving, by clear and positive testimony, that
the necessary consent was obtained and that it was freely and voluntarily
given.[32]
In the case at bar, following the theory of the prosecution albeit based on
conflicting testimonies on when petitioners bag was actually opened, it is
apparent that petitioner was already under the coercive control of the public
officials who had custody of him when the search of his bag was demanded.
Moreover, the prosecution failed to prove any specific statement as to how
the consent was asked and how it was given, nor the specific words spoken
by petitioner indicating his alleged "consent." Even granting that petitioner
admitted to opening his bag when Ordoo asked to see its contents, his implied
acquiescence, if at all, could not have been more than mere passive
conformity given under coercive or intimidating circumstances and hence, is
considered no consent at all within the contemplation of the constitutional
guarantee.[33] As a result, petitioners lack of objection to the search and
seizure is not tantamount to a waiver of his constitutional right or a voluntary
submission to the warrantless search and seizure.[34]
III.
Notably, the inadmissibility in evidence of the seized marijuana leaves for

being the fruit of an unlawful search is not the lone cause that militates
against the case of the prosecution. We likewise find that it has failed to
convincingly establish the identity of the marijuana leaves purportedly taken
from petitioners bag.
In all prosecutions for violation of the Dangerous Drugs Act, the following
elements must concur: (1) proof that the transaction took place; and (2)
presentation in court of the corpus delicti or the illicit drug as evidence.[35]
The existence of dangerous drugs is a condition sine qua non for conviction
for the illegal sale of dangerous drugs, it being the very corpus delicti of the
crime.[36]
In a line of cases, we have ruled as fatal to the prosecutions case its failure to
prove that the specimen submitted for laboratory examination was the same
one allegedly seized from the accused.[37] There can be no crime of illegal
possession of a prohibited drug when nagging doubts persist on whether the
item confiscated was the same specimen examined and established to be the
prohibited drug.[38] As we discussed in People v. Orteza[39], where we
deemed the prosecution to have failed in establishing all the elements
necessary for conviction of appellant for illegal sale of shabu
First, there appears nothing in the record showing that police officers
complied with the proper procedure in the custody of seized drugs as
specified in People v. Lim, i.e., any apprehending team having initial control
of said drugs and/or paraphernalia should, immediately after seizure or
confiscation, have the same physically inventoried and photographed in the
presence of the accused, if there be any, and or his representative, who shall
be required to sign the copies of the inventory and be given a copy thereof.
The failure of the agents to comply with the requirement raises doubt
whether what was submitted for laboratory examination and presented in
court was actually recovered from appellant. It negates the presumption that
official duties have been regularly performed by the police officers.
In People v. Laxa, where the buy-bust team failed to mark the confiscated
marijuana immediately after the apprehension of the accused, the Court held
that the deviation from the standard procedure in anti-narcotics operations
produced doubts as to the origins of the marijuana. Consequently, the Court
concluded that the prosecution failed to establish the identity of the corpus
delicti.
The Court made a similar ruling in People v. Kimura, where the Narcom
operatives failed to place markings on the seized marijuana at the time the
accused was arrested and to observe the procedure and take custody of the
drug.
More recently, in Zarraga v. People, the Court held that the material
inconsistencies with regard to when and where the markings on the shabu
were made and the lack of inventory on the seized drugs created reasonable
doubt as to the identity of the corpus delicti. The Court thus acquitted the
accused due to the prosecutions failure to indubitably show the identity of
the shabu.
In the case at bar, after the arrest of petitioner by the barangay tanod, the
records only show that he was taken to the house of the barangay captain
and thereafter to the police station. The Joint Affidavit[40] executed by the
tanod merely states that they confiscated the marijuana leaves which they
brought to the police station together with petitioner. Likewise, the
Receipt[41] issued by the Aringay Police Station merely acknowledged receipt
of the suspected drugs supposedly confiscated from petitioner.
Not only did the three tanod contradict each other on the matter of when
petitioners bag was opened, they also gave conflicting testimony on who
actually opened the same. The prosecution, despite these material
inconsistencies, neglected to explain the discrepancies. Even more damning
to its cause was the admission by Laya, the forensic chemist, that he did not
know how the specimen was taken from petitioner, how it reached the police
authorities or whose marking was on the cellophane wrapping of the
marijuana. The non-presentation, without justifiable reason, of the police
officers who conducted the inquest proceedings and marked the seized drugs,
if such was the case, is fatal to the case. Plainly, the prosecution neglected to
establish the crucial link in the chain of custody of the seized marijuana leaves
from the time they were first allegedly discovered until they were brought for
examination by Laya.
The Court of Appeals found as irrelevant the failure of the prosecution to

establish the chain of custody over the seized marijuana as such [f]inds
prominence only when the existence of the seized prohibited drug is
denied.[42] We cannot agree.
To buttress its ratiocination, the appellate court narrowed on petitioners

testimony that the marijuana was taken from his bag, without taking the
statement in full context.[43] Contrary to the Court of Appeals findings,
although petitioner testified that the marijuana was taken from his bag, he
consistently denied ownership thereof.[44] Furthermore, it defies logic to
require a denial of ownership of the seized drugs before the principle of chain
of custody comes into play.
The onus of proving culpability in criminal indictment falls upon the State. In
conjunction with this, law enforcers and public officers alike have the
corollary duty to preserve the chain of custody over the seized drugs. The
chain of evidence is constructed by proper exhibit handling, storage, labeling
and recording, and must exist from the time the evidence is found until the
time it is offered in evidence. Each person who takes possession of the
specimen is duty-bound to detail how it was cared for, safeguarded and
preserved while in his or her control to prevent alteration or replacement
while in custody. This guarantee of the integrity of the evidence to be used
against an accused goes to the very heart of his fundamental rights.
The presumption of regularity in the performance of official duty invoked by
the prosecution and relied upon by the courts a quo cannot by itself overcome
the presumption of innocence nor constitute proof of guilt beyond
reasonable doubt.[45] Among the constitutional rights enjoyed by an
accused, the most primordial yet often disregarded is the presumption of
innocence. This elementary principle accords every accused the right to be
presumed innocent until the contrary is proven beyond reasonable doubt.
Thus, the burden of proving the guilt of the accused rests upon the
prosecution.
Concededly, the evidence of the defense is weak and uncorroborated.

Nevertheless, this [c]annot be used to advance the cause of the prosecution
as its evidence must stand or fall on its own weight and cannot be allowed to
draw strength from the weakness of the defense.[46] Moreover, where the
circumstances are shown to yield two or more inferences, one inconsistent
with the presumption of innocence and the other compatible with the finding
of guilt, the court must acquit the accused for the reason that the evidence
does not satisfy the test of moral certainty and is inadequate to support a
judgment of conviction.[47]
Drug addiction has been invariably denounced as an especially vicious

crime,[48] and one of the most pernicious evils that has ever crept into our
society,[49] for those who become addicted to it not only slide into the ranks
of the living dead, what is worse, they become a grave menace to the safety
of law-abiding members of society,[50] whereas peddlers of drugs are
actually agents of destruction.[51] Indeed, the havoc created by the ruinous
effects of prohibited drugs on the moral fiber of society cannot be
underscored enough. However, in the rightfully vigorous campaign of the
government to eradicate the hazards of drug use and drug trafficking, it
cannot be permitted to run roughshod over an accuseds right to be presumed
innocent until proven to the contrary and neither can it shirk from its corollary
obligation to establish such guilt beyond reasonable doubt.
In this case, the totality of the evidence presented utterly fails to overcome
the presumption of innocence which petitioner enjoys. The failure of the
prosecution to prove all the elements of the offense beyond reasonable
doubt must perforce result in petitioners exoneration from criminal liability.
IV.
A final word. We find it fitting to take this occasion to remind the courts to
exercise the highest degree of diligence and prudence in deliberating upon
the guilt of accused persons brought before them, especially in light of the
fundamental rights at stake. Here, we note that the courts a quo neglected to
give more serious consideration to certain material issues in the
determination of the merits of the case. We are not oblivious to the fact that
in some instances, law enforcers resort to the practice of planting evidence
to extract information or even harass civilians. Accordingly, courts are duty-
bound to be [e]xtra vigilant in trying drug cases lest an innocent person be
made to suffer the unusually severe penalties for drug offenses.[52] In the
same vein, let this serve as an admonition to police officers and public officials
alike to perform their mandated duties with commitment to the highest
degree of diligence, righteousness and respect for the law.
WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. Petitioner

Arsenio Vergara Valdez is ACQUITTED on reasonable doubt. The Director of
the Bureau of Corrections is directed to cause the immediate release of
petitioner, unless the latter is being lawfully held for another cause; and to
inform the Court of
the date of his release, or the reasons for his continued confinement, within
ten (10) days from notice. No costs.
SO ORDERED.
DANTE O. TINGA
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
ANTONIO T. CARPIO CONCHITA CARPIO MORALES


Associate Justice
ATTESTATION
Courts Division.
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
[1]1987 CONST., Art. III, Sec. 2.
[2]People v. Aruta, 351 Phil. 868 (1998).
[3]Rollo, pp. 76-89. Penned by Associate Justice Remedios A. Salazar-

Fernando, and concurred in by Associate Justices Rosmari D. Carandang and
Monina Arevalo-Zenarosa.
[4]Id. at pp. 28-45. Penned by Executive Judge Clifton U. Ganaya.
[5]Entitled Dangerous Drugs Act of 2002.
[6]Id. at 44-45.
[7]Records, p. 1.
[8]Id.
[9]TSN, 24 February 2004, pp. 3-5, 7, 11-12. See also Records, p. 2.

[10]TSN, 3 March 2004, p. 11.
[11]Id. at 16.
[12]TSN, 16 March 2004, pp. 4-7.
[13]TSN, 17 March 2004, pp. 3-9.
[14]Id. at 10-12, 16-17.
[15]Rollo, pp. 44-45.
[16]Id. at 87.
[17]People v. Bacla-an, 445 Phil. 729, 746 (2003), citing People v. Mendoza,
327 SCRA 695 (2000). See also People v. Sevilla, 394 Phil. 125 (2000).
[18]See People v. Bacla-an, 445 Phil. 445 Phil. 729, 748 (2003) citing People v.
Lagarto, 326 SCRA 693 (2000) and People v. Nitcha, 240 SCRA 283 (1995). See
also People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51.
[19]People v. Sarap, 447 Phil. 642 (2003).

[20]TSN, 24 February 2004, p. 11; TSN, 3 March 2004, pp. 9, 19.
[21]People v. Tudtud, 458 Phil. 752, 775 (2003), citing People v. Chua, G.R.
Nos. 136066-67, 4 February 2003, 396 SCRA 657.
[22]People v. Lopez, 371 Phil. 852, 862 (1999), citing People v. Bawar, 262
SCRA 325.
[23]424 Mich. 42, 378 N.W.2d 451 (1985).
[24]458 Phil. 752 (2003).
[25]Id. at 777.
[26]See People v. Mengote, G.R. No. 87059, 22 June 1992, 210 SCRA 174.
[27]392 U.S. 1, 20 L. Ed. 2nd 889 [1968].
[28]See People v. Chua, 444 Phil. 757 (2003).
[29]See People v. Bacla-an, supra note 16, citing People v. Chua Ho San, 308
SCRA 42 (1999).
[30]Id. at 748-749.
[31]424 Phil. 263 (2002).
[32]Id. at 286.
[33]People v. Tudtud, 458 Phil. 752, 788 (2003), citing People v. Compacion,
414 Phil. 68 (2001).
[34]Id.
[35]People v. Hajili, 447 Phil. 283, 295 (2003).
[36]People v. Almeida, 463 Phil. 637, 648 (2003), citing People v. Mendiola,
235 SCRA 116 (1994). See also People v. Kimura, G.R. No. 130805, 27 April
2004, 428 SCRA 51, 61, citing People v. Mendiola, supra, People v. Macuto,
176 SCRA 762 (1989), People v. Vocente, 188 SCRA 100 (1990) and People v.
Mariano, 191 SCRA 136 (1990).
[37]See People v. Mapa, G.R. No. 91014, 31 March 1993, 220 SCRA 670
(1993), People v. Dismuke, G.R. No. 108453, 11 July 1994, 234 SCRA 51,
People v. Casimiro, 383 SCRA 400 (2002), People v. Pedronan, 452 Phil. 226
(2003), People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51, People
v. Ong, G.R. No. 137348, 21 June 2004, 432 SCRA 470.
[38]See People v. Ong, supra at 488.

[39]G.R. No. 173051, 31 July 2007.
[40]Records, p. 2.
[41]Id. at 5.
[42]Rollo, p. 87.
[43]Id.
[44]TSN, 17 March 2004, pp. 11-13.
[45]People v. Sevilla, 394 Phil. 125, 158 (2000), citing People v. Pagaura, 267
SCRA 17 (1997), People v. De los Santos, 314 SCRA 303 (1999).
[46]People v. Santos, G.R. No. 175593, 17 October 2007, citing People v.

Samson, 421 Phil. 104 (2001).
[47]People v. Sapal, 385 Phil. 109, 126 (2000), citing People v. Delos Santos,
G.R. No. 126998, 14 September 1999 and People v. Fider, 223 SCRA 117
(1993).
[48]Office of the Court Administrator v. Librado, 329 Phil. 432, 435 (1996),
citing People v. Nario, 224 SCRA 647 (1993).
[49]Id. citing People v. Policarpio, 158 SCRA 85 (1988).
[50]Id. at 436, citing People v. Bati, 189 SCRA 95 (1990), citing People v.
Lamug, 172 SCRA 349 (1989).
[51]Id. citing People v. Policarpio, supra.
[52]People v. Sevilla, 394 Phil. 125, 159 (2000), citing People v. Pagaura supra.
See also People v. Sapal, supra.
5. G.R. No. 188611
SECOND DIVISION

Appellee,
- versus -
BELEN MARIACOS,
Appellant.
G.R. No. 188611
Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD, and
PEREZ,* JJ.
Promulgated:
June 16, 2010
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before this Court is an appeal from the Decision[1] of the Court of Appeals
(CA) in CA-G.R. CR-HC No. 02718, which affirmed the decision[2] of the
Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal
Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II,
Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous
Drugs Act of 2002.
The facts of the case, as summarized by the CA, are as follows:
Accused-appellant Belen Mariacos was charged in an Information, dated

November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165,
allegedly committed as follows:
That on or about the 27th day of October, 2005, in the Municipality of San
Gabriel, Province of La Union, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there willfully,
unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried
marijuana fruiting tops without the necessary permit or authority from the
proper government agency or office.
CONTRARY TO LAW.
When arraigned on December 13, 2005, accused-appellant pleaded not

guilty. During the pre-trial, the following were stipulated upon:
1. Accused admits that she is the same person identified in the information as
Belen Mariacos;
2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union;

3. That at the time of the arrest of the accused, accused had just alighted from
a passenger jeepney;
4. That the marijuana allegedly taken from the possession of the accused
contained in two (2) bags were submitted for examination to the Crime Lab;
5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for
examination gave positive result for the presence of marijuana;
6. That the drugs allegedly obtained from the accused contained (sic) and
submitted for examination weighed 7,030.3 grams;
7. The Prosecutor admits the existence of a counter-affidavit executed by the

accused; and
8. The existence of the affidavits executed by the witnesses of the accused

family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino.
During the trial, the prosecution established the following evidence:
On October 26, 2005, in the evening, the San Gabriel Police Station of San
Gabriel, La Union, conducted a checkpoint near the police station at the
poblacion to intercept a suspected transportation of marijuana from
Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was
composed of PO2 Lunes B. Pallayoc (PO2 Pallayoc), the Chief of Police, and
other policemen. When the checkpoint did not yield any suspect or
marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay
Balbalayang to conduct surveillance operation (sic).
At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met

with a secret agent of the Barangay Intelligence Network who informed him
that a baggage of marijuana had been loaded on a passenger jeepney that
was about to leave for the poblacion. The agent mentioned three (3) bags and
one (1) blue plastic bag. Further, the agent described a backpack bag with an
O.K. marking. PO2 Pallayoc then boarded the said jeepney and positioned
himself on top thereof. While the vehicle was in motion, he found the black
backpack with an O.K. marking and peeked inside its contents. PO2 Pallayoc
found bricks of marijuana wrapped in newspapers. He then asked the other
passengers on top of the jeepney about the owner of the bag, but no one
knew.
When the jeepney reached the poblacion, PO2 Pallayoc alighted together
with the other passengers. Unfortunately, he did not notice who took the
black backpack from atop the jeepney. He only realized a few moments later
that the said bag and three (3) other bags, including a blue plastic bag, were
already being carried away by two (2) women. He caught up with the women
and introduced himself as a policeman. He told them that they were under
arrest, but one of the women got away.
PO2 Pallayoc brought the woman, who was later identified as herein accused-
appellant Belen Mariacos, and the bags to the police station. At the police
station, the investigators contacted the Mayor of San Gabriel to witness the
opening of the bags. When the Mayor arrived about fifteen (15) minutes later,
the bags were opened and three (3) bricks of marijuana wrapped in
newspaper, two (2) round bundles of marijuana, and two (2) bricks of
marijuana fruiting tops, all wrapped in a newspaper, were recovered.
Thereafter, the investigators marked, inventoried and forwarded the
confiscated marijuana to the crime laboratory for examination. The
laboratory examination showed that the stuff found in the bags all tested
positive for marijuana, a dangerous drug.
When it was accused-appellants turn to present evidence, she testified that:
On October 27, 2005, at around 7:00 in the morning, accused-appellant,

together with Lani Herbacio, was inside a passenger jeepney bound for the
poblacion. While the jeepney was still at the terminal waiting for passengers,
one Bennie Lao-ang (Lao-ang), her neighbor, requested her to carry a few
bags which had been loaded on top of the jeepney. At first, accused-appellant
refused, but she was persuaded later when she was told that she would only
be carrying the bags. When they reached the poblacion, Lao-ang handed
accused-appellant and her companion, Lani Herbacio, the bags, and then Lao-
ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them,
arresting them. Without explanation, they were brought to the police station.
When they were at the police station, Lani Herbacio disappeared. It was also
at the police station that accused-appellant discovered the true contents of
the bags which she was asked to carry. She maintained that she was not the
owner of the bags and that she did not know what were contained in the bags.
At the police station (sic) she executed a Counter-Affidavit.[3]
On January 31, 2007, the RTC promulgated a decision, the dispositive portion
of which states:
WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged
and sentences here (sic) to suffer the penalty of life imprisonment and to pay
a fine of P500,000.00.
The 7,030.3 grams of marijuana are ordered confiscated and turned over to
the Philippine Drug Enforcement Agency for destruction in the presence of
the Court personnel and media.
SO ORDERED.[4]
Appellant appealed her conviction to the CA. She argued that the trial court
erred in considering the evidence of the prosecution despite its
inadmissibility.[5] She claimed that her right against an unreasonable search
was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter
searched the bag, assuming it was hers, without a search warrant and with no
permission from her. She averred that PO2 Pallayocs purpose for
apprehending her was to verify if the bag she was carrying was the same one
he had illegally searched earlier. Moreover, appellant contended that there
was no probable cause for her arrest.[6]
Further, appellant claimed that the prosecution failed to prove the corpus
delicti of the crime.[7] She alleged that the apprehending police officers
violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended
by Board Regulation No. 2, Series of 1990, which prescribes the procedure in
the custody of seized prohibited and regulated drugs, instruments,
apparatuses, and articles. The said regulation directs the apprehending team
having initial custody and control of the drugs and/or paraphernalia,
immediately after seizure or confiscation, to have the same physically
inventoried and photographed in the presence of appellant or her
representative, who shall be required to sign copies of the inventory. The
failure to comply with this directive, appellant claimed, casts a serious doubt
on the identity of the items allegedly confiscated from her. She, likewise,
averred that the prosecution failed to prove that the items allegedly
confiscated were indeed prohibited drugs, and to establish the chain of
custody over the same.
On the other hand, the People, through the Office of the Solicitor General
(OSG), argued that the warrantless arrest of appellant and the warrantless
seizure of marijuana were valid and legal,[8] justified as a search of a moving
vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that
appellant had committed the crime of delivering dangerous drugs based on
reliable information from their agent, which was confirmed when he peeked
into the bags and smelled the distinctive odor of marijuana.[9] The OSG also
argued that appellant was now estopped from questioning the illegality of her
arrest since she voluntarily entered a plea of not guilty upon arraignment and
participated in the trial and presented her evidence.[10] The OSG brushed
aside appellants argument that the bricks of marijuana were not
photographed and inventoried in her presence or that of her counsel
immediately after confiscation, positing that physical inventory may be done
at the nearest police station or at the nearest office of the apprehending
team, whichever was practicable.[11]
In a Decision dated January 19, 2009, the CA dismissed appellants appeal and
affirmed the RTC decision in toto.[12] It held that the prosecution had
successfully proven that appellant carried away from the jeepney a number
of bags which, when inspected by the police, contained dangerous drugs. The
CA ruled that appellant was caught in flagrante delicto of carrying and
conveying the bag that contained the illegal drugs, and thus held that
appellants warrantless arrest was valid. The appellate court ratiocinated:
It must be stressed that PO2 Pallayoc had earlier ascertained the contents of
the bags when he was aboard the jeep. He saw the bricks of marijuana
wrapped in newspaper. That said marijuana was on board the jeepney to be
delivered to a specified destination was already unlawful. PO2 Pallayoc
needed only to see for himself to whom those bags belonged. So, when he
saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful
duty to make a warrantless arrest of accused-appellant.
xxxx
Firstly, this Court opines that the invocation of Section 2, Article III of the
Constitution is misplaced. At the time, when PO2 Pallayoc looked into the
contents of the suspicious bags, there was no identified owner. He asked the
other passengers atop the jeepney but no one knew who owned the bags.
Thus, there could be no violation of the right when no one was entitled
thereto at that time.
Secondly, the facts of the case show the urgency of the situation. The local
police has been trying to intercept the transport of the illegal drugs for more
than a day, to no avail. Thus, when PO2 Pallayoc was tipped by the secret
agent of the Barangay Intelligence Network, PO2 Pallayoc had no other
recourse than to verify as promptly as possible the tip and check the contents
of the bags.
Thirdly, x x x the search was conducted in a moving vehicle. Time and again,
a search of a moving vehicle has been justified on the ground that the mobility
of motor vehicles makes it possible for the vehicle to move out of the locality
or jurisdiction in which the warrant must be sought. Thus, under the facts,
PO2 Pallayoc could not be expected to secure a search warrant in order to
check the contents of the bags which were loaded on top of the moving
jeepney. Otherwise, a search warrant would have been of no use because the
motor vehicle had already left the locality.[13]
Appellant is now before this Court, appealing her conviction.
Once again, we are asked to determine the limits of the powers of the States
agents to conduct searches and seizures. Over the years, this Court had laid
down the rules on searches and seizures, providing, more or less, clear
parameters in determining which are proper and which are not.
Appellants main argument before the CA centered on the inadmissibility of

the evidence used against her. She claims that her constitutional right against
unreasonable searches was flagrantly violated by the apprehending officer.
Thus, we must determine if the search was lawful. If it was, then there would
have been probable cause for the warrantless arrest of appellant.
Article III, Section 2 of the Philippine Constitution provides:
Section 2. The right of the people to be secure in their persons, houses,

papers, and effects against unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized.
Law and jurisprudence have laid down the instances when a warrantless
search is valid. These are:
1. Warrantless search incidental to a lawful arrest recognized under Section

12 [now Section 13], Rule 126 of the Rules of Court and by prevailing
jurisprudence;
2. Seizure of evidence in plain view, the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right
to be where they are;
(c) the evidence must be immediately apparent[;] and;
(d) plain view justified mere seizure of evidence without further search.
3. Search of a moving vehicle. Highly regulated by the government, the

vehicle's inherent mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and Emergency Circumstances.[14]
Both the trial court and the CA anchored their respective decisions on the fact
that the search was conducted on a moving vehicle to justify the validity of
the search.
Indeed, the search of a moving vehicle is one of the doctrinally accepted

exceptions to the Constitutional mandate that no search or seizure shall be
made except by virtue of a warrant issued by a judge after personally
determining the existence of probable cause.[15]
In People v. Bagista,[16] the Court said:
The constitutional proscription against warrantless searches and seizures

admits of certain exceptions. Aside from a search incident to a lawful arrest,
a warrantless search had been upheld in cases of a moving vehicle, and the
seizure of evidence in plain view.
With regard to the search of moving vehicles, this had been justified on the
ground that the mobility of motor vehicles makes it possible for the vehicle
to be searched to move out of the locality or jurisdiction in which the warrant
must be sought.
This in no way, however, gives the police officers unlimited discretion to

conduct warrantless searches of automobiles in the absence of probable
cause. When a vehicle is stopped and subjected to an extensive search, such
a warrantless search has been held to be valid only as long as the officers
conducting the search have reasonable or probable cause to believe before
the search that they will find the instrumentality or evidence pertaining to a
crime, in the vehicle to be searched.
It is well to remember that in the instances we have recognized as exceptions

to the requirement of a judicial warrant, it is necessary that the officer
effecting the arrest or seizure must have been impelled to do so because of
probable cause. The essential requisite of probable cause must be satisfied
before a warrantless search and seizure can be lawfully conducted.[17]
Without probable cause, the articles seized cannot be admitted in evidence
against the person arrested.[18]
Probable cause is defined as a reasonable ground of suspicion supported by

circumstances sufficiently strong in themselves to induce a cautious man to
believe that the person accused is guilty of the offense charged. It refers to
the existence of such facts and circumstances that can lead a reasonably
discreet and prudent man to believe that an offense has been committed, and
that the items, articles or objects sought in connection with said offense or
subject to seizure and destruction by law are in the place to be searched.[19]
The grounds of suspicion are reasonable when, in the absence of actual belief
of the arresting officers, the suspicion that the person to be arrested is
probably guilty of committing the offense is based on actual facts, i.e.,
supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. A reasonable suspicion
therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest.[20]
Over the years, the rules governing search and seizure have been steadily
liberalized whenever a moving vehicle is the object of the search on the basis
of practicality. This is so considering that before a warrant could be obtained,
the place, things and persons to be searched must be described to the
satisfaction of the issuing judge a requirement which borders on the
impossible in instances where moving vehicle is used to transport contraband
from one place to another with impunity.[21]
This exception is easy to understand. A search warrant may readily be

obtained when the search is made in a store, dwelling house or other
immobile structure. But it is impracticable to obtain a warrant when the
search is conducted on a mobile ship, on an aircraft, or in other motor vehicles
since they can quickly be moved out of the locality or jurisdiction where the
warrant must be sought.[22]
Given the discussion above, it is readily apparent that the search in this case
is valid. The vehicle that carried the contraband or prohibited drugs was about
to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be
unreasonable to require him to procure a warrant before conducting the
search under the circumstances. Time was of the essence in this case. The
searching officer had no time to obtain a warrant. Indeed, he only had enough
time to board the vehicle before the same left for its destination.
It is well to remember that on October 26, 2005, the night before appellants
arrest, the police received information that marijuana was to be transported
from Barangay Balbalayang, and had set up a checkpoint around the area to
intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the
secret agent from the Barangay Intelligence Network, who informed him that
a baggage of marijuana was loaded on a passenger jeepney about to leave for
the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages
allegedly containing illegal drugs.
This Court has also, time and again, upheld as valid a warrantless search
incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court
provides:
SEC. 13. Search incident to lawful arrest.A person lawfully arrested may be
searched for dangerous weapons or anything which may have been used or
constitute proof in the commission of an offense without a search
warrant.[23]
For this rule to apply, it is imperative that there be a prior valid arrest.
Although, generally, a warrant is necessary for a valid arrest, the Rules of
Court provides the exceptions therefor, to wit:
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private
person may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts or circumstances that the
person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested
without a warrant shall be forthwith delivered to the nearest police station or
jail and shall be proceeded against in accordance with section 7 of Rule
112.[24]
Be that as it may, we have held that a search substantially contemporaneous

with an arrest can precede the arrest if the police has probable cause to make
the arrest at the outset of the search.[25]
Given that the search was valid, appellants arrest based on that search is also
valid.
Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states:
SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and

Transportation of Dangerous Drugs and/or Controlled Precursors and
Essential Chemicals. The penalty of life imprisonment to death and a fine
ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos
(P10,000,000.00) shall be imposed upon any person, who, unless authorized
by law, shall sell, trade, administer, dispense, deliver, give away to another,
distribute, dispatch in transit or transport any dangerous drug, including any
and all species of opium poppy regardless of the quantity and purity involved,
or shall act as a broker in any of such transactions.
The penalty of imprisonment ranging from twelve (12) years and one (1) day
to twenty (20) years and a fine ranging from One hundred thousand pesos
(P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be
imposed upon any person who, unless authorized by law, shall sell, trade,
administer, dispense, deliver, give away to another, distribute, dispatch in
transit or transport any controlled precursor and essential chemical, or shall
act as a broker in such transactions.
In her defense, appellant averred that the packages she was carrying did not
belong to her but to a neighbor who had asked her to carry the same for him.
This contention, however, is of no consequence.
When an accused is charged with illegal possession or transportation of
prohibited drugs, the ownership thereof is immaterial. Consequently, proof
of ownership of the confiscated marijuana is not necessary.[26]
Appellants alleged lack of knowledge does not constitute a valid defense. Lack
of criminal intent and good faith are not exempting circumstances where the
crime charged is malum prohibitum, as in this case.[27] Mere possession
and/or delivery of a prohibited drug, without legal authority, is punishable
under the Dangerous Drugs Act.[28]
Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are
rules of convenience designed to secure a more orderly regulation of the
affairs of society, and their violation gives rise to crimes mala prohibita. Laws
defining crimes mala prohibita condemn behavior directed not against
particular individuals, but against public order.[29]
Jurisprudence defines transport as to carry or convey from one place to

another.[30] There is no definitive moment when an accused transports a
prohibited drug. When the circumstances establish the purpose of an accused
to transport and the fact of transportation itself, there should be no question
as to the perpetration of the criminal act.[31] The fact that there is actual
conveyance suffices to support a finding that the act of transporting was
committed and it is immaterial whether or not the place of destination is
reached.[32]
Moreover, appellants possession of the packages containing illegal drugs gave

rise to the disputable presumption[33] that she is the owner of the packages
and their contents.[34] Appellant failed to rebut this presumption. Her
uncorroborated claim of lack of knowledge that she had prohibited drug in
her possession is insufficient.
Appellants narration of facts deserves little credence. If it is true that Bennie

Lao-ang merely asked her and her companion to carry some baggages, it is
but logical to first ask what the packages contained and where these would
be taken. Likewise, if, as appellant said, Lao-ang ran away after they
disembarked from the jeepney, appellant and her companion should have ran
after him to give him the bags he had left with them, and not to continue on
their journey without knowing where they were taking the bags.
Next, appellant argues that the prosecution failed to prove the corpus delicti
of the crime. In particular, she alleged that the apprehending police officers
failed to follow the procedure in the custody of seized prohibited and
regulated drugs, instruments, apparatuses, and articles.
In all prosecutions for violation of the Dangerous Drugs Act, the existence of
all dangerous drugs is a sine qua non for conviction. The dangerous drug is
the very corpus delicti of that crime.[35]
Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and
disposition of seized dangerous drugs, to wit:
Section 21. Custody and Disposition of Confiscated, Seized, and/or

Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition
in the following manner:
(1) The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof.
The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further
provides:
SECTION 21. Custody and Disposition of Confiscated, Seized and/or
Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled
Precursors and Essential Chemicals, Instruments/Paraphernalia and/or
Laboratory Equipment. The PDEA shall take charge and have custody of all
dangerous drugs, plant sources of dangerous drugs, controlled precursors and
essential chemicals, as well as instruments/paraphernalia and/or laboratory
equipment so confiscated, seized and/or surrendered, for proper disposition
in the following manner:
(a) The apprehending officer/team having initial custody and control of the
drugs shall, immediately after seizure and confiscation, physically inventory
and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative
or counsel, a representative from the media and the Department of Justice
(DOJ), and any elected public official who shall be required to sign the copies
of the inventory and be given a copy thereof: Provided, that the physical
inventory and photograph shall be conducted at the place where the search
warrant is served; or at the nearest police station or at the nearest office of
the apprehending officer/team, whichever is practicable, in case of
warrantless seizures; Provided, further, that non-compliance with these
requirements under justifiable grounds, as long as the integrity and the
evidentiary value of the seized items are properly preserved by the
apprehending officer/team, shall not render void and invalid such seizures of
and custody over said items.
PO2 Pallayoc testified that after apprehending appellant, he immediately

brought her to the police station. At the station, the police requested the
Mayor to witness the opening of the bags seized from appellant. When the
Mayor arrived, he opened the bag in front of appellant and the other police
officers. The black bag yielded three bricks of marijuana wrapped in
newspaper, while the plastic bag yielded two bundles of marijuana and two
bricks of marijuana fruiting tops.[36] PO2 Pallayoc identified the bricks. He
and PO3 Stanley Campit then marked the same. Then the seized items were
brought to the PNP Crime Laboratory for examination.
It is admitted that there were no photographs taken of the drugs seized, that
appellant was not accompanied by counsel, and that no representative from
the media and the DOJ were present. However, this Court has already
previously held that non-compliance with Section 21 is not fatal and will not
render an accuseds arrest illegal, or make the items seized inadmissible. What
is of utmost importance is the preservation of the integrity and evidentiary
value of the seized items.[37]
Based on the testimony of PO2 Pallayoc, after appellants arrest, she was
immediately brought to the police station where she stayed while waiting for
the Mayor. It was the Mayor who opened the packages, revealing the illegal
drugs, which were thereafter marked and sent to the police crime laboratory
the following day. Contrary to appellants claim, the prosecutions evidence
establishes the chain of custody from the time of
appellants arrest until the prohibited drugs were tested at the police crime
laboratory.
While it is true that the arresting officer failed to state explicitly the justifiable
ground for non-compliance with Section 21, this does not necessarily mean
that appellants arrest was illegal or that the items seized are inadmissible. The
justifiable ground will remain unknown because appellant did not question
the custody and disposition of the items taken from her during the trial.[38]
Even assuming that the police officers failed to abide by Section 21, appellant
should have raised this issue before the trial court. She could have moved for
the quashal of the information at the first instance. But she did not. Hence,
she is deemed to have waived any objection on the matter.
Further, the actions of the police officers, in relation to the procedural rules
on the chain of custody, enjoyed the presumption of regularity in the
performance of official functions. Courts accord credence and full faith to the
testimonies of police authorities, as they are presumed to be performing their
duties regularly, absent any convincing proof to the contrary.[39]
In sum, the prosecution successfully established appellants guilt. Thus, her

conviction must be affirmed.
WHEREFORE, the foregoing premises considered, the appeal is DISMISSED.
The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.
SO ORDERED.

Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
DIOSDADO M. PERALTA
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE PORTUGAL PEREZ

Associate Justice
ATTESTATION
Courts Division.
ANTONIO T. CARPIO
Associate Justice
CERTIFICATION
Chairperson's Attestation, I certify that the conclusions in the above Decision
RENATO C. CORONA
Chief Justice
* Additional member in lieu of Associate Justice Jose Catral Mendoza per

Raffle dated February 22, 2010.
[1] Penned by Associate Justice Ramon M. Bato, Jr., with Associate Justices
Martin S. Villarama, Jr. (now a member of this Court) and Estela M. Perlas-
Bernabe, concurring; rollo, pp. 2-13.
[2] CA rollo, pp. 13-29.
[3] Rollo, pp. 2-5.
[4] CA rollo, p. 29.
[5] Id. at 45.
[6] Id. at 48.
[7] Id. at 50.
[8] Id. at 108.
[9] Id. at 112.
[10] Id. at 113.
[11] Id. at 114-115.
[12] Rollo, p. 13.
[13] Id. at 8-9.
[14] People v. Aruta, 351 Phil. 868, 879-880 (1998). (Citations omitted.)
[15] Asuncion v. Court of Appeals, 362 Phil. 118, 126 (1999), citing Mustang
Lumber, Inc. v. Court of Appeals, 257 SCRA 430 (1996); and People v. Lo Ho
Wing, 193 SCRA 122 (1991).
[16] G.R. No. 86218, September 18, 1992, 214 SCRA 63, 68-69. (Citations
omitted.)
[17] People v. Aruta, supra note 14, at 880.
[18] Except when the prohibited items are in plain view.
[19] People v. Aruta, supra note 14, at 880, citing People v. Encinada, 345 Phil.
301 (1997).
[20] People v. Doria, 361 Phil. 595, 632 (1999).
[21] People v. Lo Ho Wing, supra note 15, at 128-129, citing Carroll v. United
States, 267 U.S. 132, 153 (1925); People v. Del Mundo, 418 Phil. 740 (2001).
[22] Salvador v. People, 502 Phil. 60, 72 (2005).
[23] Revised Rules on Criminal Procedure, Rule 126.
[24] Revised Rules on Criminal Procedure, Rule 113.
[25] People v. Nuevas, G.R. No. 170233, February 22, 2007, 516 SCRA 463,
citing People v. Tudtud, 458 Phil. 752 (2003).
[26] People v. Del Mundo, supra note 21, at 751. (Citations omitted.)
[27] Id., citing People v. Sy Bing Yok, 309 SCRA 28, 38 (1999).
[28] People v. Beriarmente, 418 Phil. 229, 239 (2001).
[29] People v. Doria, supra note 20, at 618. (Citations omitted.)
[30] People v. Peaflorida, G.R. No. 175604, April 10, 2008, 551 SCRA 111, 125.
[31] People v. Jones, 343 Phil. 865, 877 (1997).
[32] People v. Correa, G.R. No. 119246, January 30, 1998, 285 SCRA 679, 700.
[33] Section 3 (j) of Rule 131 of the Revised Rules of Court states:
Sec. 3. Disputable presumptions.The following presumptions are satisfactory
if uncontradicted, but may be contradicted and overcome by other evidence:
xxxx
(j) That a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and the doer of the whole act; otherwise, that things
which a person possesses, or exercises acts of ownership over, are owned by
him.
[34] See People v. Del Mundo, supra note 21.
[35] People v. Kimura, 471 Phil. 895, 909 (2004), citing People v. Mendiola,
235 SCRA 116, 120 (1994).
[36] CA rollo, p. 16.
[37] People v. Concepcion, G.R. No. 178876, June 27, 2008, 556 SCRA 421,
436-437, citing People v. Del Monte, 552 SCRA 627 (2008).
[38] See People v. Pringas, G.R. No. 175928, August 31, 2007, 531 SCRA 828;
People v. Sta. Maria, G.R. No. 171019, February 23, 2007, 516 SCRA 621, 633.
[39] People v. Santiago, G.R. No. 175326, November 28, 2007, 539 SCRA 198,
223.
6. A.M. No. P-02-1651
EN BANC
[A.M. No. P-02-1651. August 4, 2003]
ALEJANDRO ESTRADA, complainant, vs. SOLEDAD S. ESCRITOR, respondent.

DECISION
PUNO, J.:
The case at bar takes us to a most difficult area of constitutional law where
man stands accountable to an authority higher than the state. To be held on
balance are the states interest and the respondents religious freedom. In this
highly sensitive area of law, the task of balancing between authority and
liberty is most delicate because to the person invoking religious freedom, the
consequences of the case are not only temporal. The task is not made easier
by the American origin of our religion clauses and the wealth of U.S.
jurisprudence on these clauses for in the United States, there is probably no
more intensely controverted area of constitutional interpretation than the
religion clauses.[1] The U.S. Supreme Court itself has acknowledged that in
this constitutional area, there is considerable internal inconsistency in the
opinions of the Court.[2] As stated by a professor of law, (i)t is by now
notorious that legal doctrines and judicial decisions in the area of religious
freedom are in serious disarray. In perhaps no other area of constitutional law
have confusion and inconsistency achieved such undisputed sovereignty.[3]
Nevertheless, this thicket is the only path to take to conquer the mountain of
a legal problem the case at bar presents. Both the penetrating and panoramic
view this climb would provide will largely chart the course of religious
freedom in Philippine jurisdiction. That the religious freedom question arose
in an administrative case involving only one person does not alter the
paramount importance of the question for the constitution commands the
positive protection by government of religious freedom -not only for a
minority, however small- not only for a majority, however large- but for each
of us.[4]
I. Facts
The facts of the case will determine whether respondent will prevail in her
plea of religious freedom. It is necessary therefore to lay down the facts in
detail, careful not to omit the essentials.
In a sworn letter-complaint dated July 27, 2000, complainant Alejandro

Estrada wrote to Judge Jose F. Caoibes, Jr., presiding judge of Branch 253,
Regional Trial Court of Las Pias City, requesting for an investigation of rumors
that respondent Soledad Escritor, court interpreter in said court, is living with
a man not her husband. They allegedly have a child of eighteen to twenty
years old. Estrada is not personally related either to Escritor or her partner
and is a resident not of Las Pias City but of Bacoor, Cavite. Nevertheless, he
filed the charge against Escritor as he believes that she is committing an
immoral act that tarnishes the image of the court, thus she should not be
allowed to remain employed therein as it might appear that the court
condones her act.[5]
Judge Caoibes referred the letter to Escritor who stated that there is no truth
as to the veracity of the allegation and challenged Estrada to appear in the
open and prove his allegation in the proper forum.[6] Judge Caoibes set a
preliminary conference on October 12, 2000. Escritor moved for the inhibition
of Judge Caoibes from hearing her case to avoid suspicion and bias as she
previously filed an administrative complaint against him and said case was
still pending in the Office of the Court Administrator (OCA). Escritors motion
was denied. The preliminary conference proceeded with both Estrada and
Escritor in attendance. Estrada confirmed that he filed the letter-complaint
for immorality against Escritor because in his frequent visits to the Hall of
Justice of Las Pias City, he learned from conversations therein that Escritor
was living with a man not her husband and that she had an eighteen to
twenty-year old son by this man. This prompted him to write to Judge Caoibes
as he believed that employees of the judiciary should be respectable and
Escritors live-in arrangement did not command respect.[7]
Respondent Escritor testified that when she entered the judiciary in 1999,[8]
she was already a widow, her husband having died in 1998.[9] She admitted
that she has been living with Luciano Quilapio, Jr. without the benefit of
marriage for twenty years and that they have a son. But as a member of the
religious sect known as the Jehovahs Witnesses and the Watch Tower and
Bible Tract Society, their conjugal arrangement is in conformity with their
religious beliefs. In fact, after ten years of living together, she executed on
July 28, 1991 a Declaration of Pledging Faithfulness, viz:
DECLARATION OF PLEDGING FAITHFULNESS
I, Soledad S. Escritor, do hereby declare that I have accepted Luciano D.

Quilapio, Jr., as my mate in marital relationship; that I have done all within my
ability to obtain legal recognition of this relationship by the proper public
authorities and that it is because of having been unable to do so that I
therefore make this public declaration pledging faithfulness in this marital
relationship.
I recognize this relationship as a binding tie before Jehovah God and before
all persons to be held to and honored in full accord with the principles of Gods
Word. I will continue to seek the means to obtain legal recognition of this
relationship by the civil authorities and if at any future time a change in
circumstances make this possible, I promise to legalize this union.
Signed this 28th day of July 1991.[10]
Escritors partner, Quilapio, executed a similar pledge on the same day.[11]

Both pledges were executed in Atimonan, Quezon and signed by three
witnesses. At the time Escritor executed her pledge, her husband was still
alive but living with another woman. Quilapio was likewise married at that
time, but had been separated in fact from his wife. During her testimony,
Escritor volunteered to present members of her congregation to confirm the
truthfulness of their Declarations of Pledging Faithfulness, but Judge Caoibes
deemed it unnecessary and considered her identification of her signature and
the signature of Quilapio sufficient authentication of the documents.[12]
Judge Caoibes endorsed the complaint to Executive Judge Manuel B.

Fernandez, Jr., who, in turn, endorsed the same to Court Administrator
Alfredo L. Benipayo. On July 17, 2001, the Court, upon recommendation of
Acting Court Administrator Zenaida N. Elepao, directed Escritor to comment
on the charge against her. In her comment, Escritor reiterated her religious
congregations approval of her conjugal arrangement with Quilapio, viz:
Herein respondent does not ignore alleged accusation but she reiterates to
state with candor that there is no truth as to the veracity of same allegation.
Included herewith are documents denominated as Declaration of Pledging
Faithfulness (Exhibit 1 and Exhibit 2) duly signed by both respondent and her
mate in marital relationship with the witnesses concurring their acceptance
to the arrangement as approved by the WATCH TOWER BIBLE and TRACT
SOCIETY, Philippine Branch.
Same marital arrangement is recognized as a binding tie before JEHOVAH God

and before all persons to be held to and honored in full accord with the
principles of Gods Word.
xxx xxx xxx
Undersigned submits to the just, humane and fair discretion of the Court with
verification from the WATCH TOWER BIBLE and TRACT SOCIETY, Philippine
Branch . . . to which undersigned believes to be a high authority in relation to
her case.[13]
Deputy Court Administrator Christopher O. Lock recommended that the case

be referred to Executive Judge Bonifacio Sanz Maceda, RTC Branch 255, Las
Pias City for investigation, report and recommendation. In the course of Judge
Macedas investigation, Escritor again testified that her congregation allows
her conjugal arrangement with Quilapio and it does not consider it immoral.
She offered to supply the investigating judge some clippings which explain the
basis of her congregations belief and practice regarding her conjugal
arrangement. Escritor started living with Quilapio twenty years ago when her
husband was still alive but living with another woman. She met this woman
who confirmed to her that she was living with her (Escritors) husband.[14]
Gregorio Salazar, a member of the Jehovahs Witnesses since 1985, also

testified. He had been a presiding minister since 1991 and in such capacity is
aware of the rules and regulations of their congregation. He explained the
import of and procedure for executing a Declaration of Pledging Faithfulness,
viz:
Q: Now, insofar as the pre-marital relationship is concern (sic), can you cite
some particular rules and regulations in your congregation?
A: Well, we of course, talk to the persons with regards (sic) to all the parties
involved and then we request them to execute a Public Declaration of Pledge
of faithfulness.
Q: What is that document?
A: Declaration of Pledge of faithfulness.
Q: What are the relations of the document Declaration of Pledge of

faithfulness, who are suppose (sic) to execute this document?
A: This must be signed, the document must be signed by the elders of the
congregation; the couple, who is a member (sic) of the congregation, baptized
member and true member of the congregation.
Q: What standard rules and regulations do you have in relation with this
document?
A: Actually, sir, the signing of that document, ah, with the couple has consent
to marital relationship (sic) gives the Christian Congregation view that the
couple has put themselves on record before God and man that they are
faithful to each other. As if that relation is validated by God.
Q: From your explanation, Minister, do you consider it a pledge or a document

between the parties, who are members of the congregation?
A: It is a pledge and a document. It is a declaration, pledge of a (sic) pledge of

faithfulness.
Q: And what does pledge mean to you?
A: It means to me that they have contracted, let us say, I am the one who
contracted with the opposite member of my congregation, opposite sex, and
that this document will give us the right to a marital relationship.
Q: So, in short, when you execute a declaration of pledge of faithfulness, it is

a preparation for you to enter a marriage?
A: Yes, Sir.
Q: But it does not necessarily mean that the parties, cohabiting or living under
the same roof?
A: Well, the Pledge of faithfulness document is (sic) already approved as to

the marital relationship.
Q: Do you mean to say, Minister, by executing this document the contracting
parties have the right to cohabit?
A: Can I sir, cite, what the Bible says, the basis of that Pledge of Faithfulness
as we Christians follow. The basis is herein stated in the Book of Matthew,
Chapter Five, Verse Twenty-two. So, in that verse of the Bible, Jesus said that
everyone divorcing his wife, except on account of fornication, makes her a
subject for adultery, and whoever marries a divorced woman commits
adultery.[15]
Escritor and Quilapio transferred to Salazars Congregation, the Almanza

Congregation in Las Pias, in May 2001. The declarations having been executed
in Atimonan, Quezon in 1991, Salazar had no personal knowledge of the
personal circumstances of Escritor and Quilapio when they executed their
declarations. However, when the two transferred to Almanza, Salazar
inquired about their status from the Atimonan Congregation, gathered
comments of the elders therein, and requested a copy of their declarations.
The Almanza Congregation assumed that the personal circumstances of the
couple had been considered by the Atimonan Congregation when they
executed their declarations.
Escritor and Quilapios declarations are recorded in the Watch Tower Central
office. They were executed in the usual and approved form prescribed by the
Watch Tower Bible and Tract Society which was lifted from the article,
Maintaining Marriage in Honor Before God and Men, [16] in the March 15,
1977 issue of the Watch Tower magazine, entitled The Watchtower.
The declaration requires the approval of the elders of the Jehovahs Witnesses
congregation and is binding within the congregation all over the world except
in countries where divorce is allowed. The Jehovahs congregation requires
that at the time the declarations are executed, the couple cannot secure the
civil authorities approval of the marital relationship because of legal
impediments. It is thus standard practice of the congregation to check the
couples marital status before giving imprimatur to the conjugal arrangement.
The execution of the declaration finds scriptural basis in Matthew 5:32 that
when the spouse commits adultery, the offended spouse can remarry. The
marital status of the declarants and their respective spouses commission of
adultery are investigated before the declarations are executed. Thus, in the
case of Escritor, it is presumed that the Atimonan Congregation conducted an
investigation on her marital status before the declaration was approved and
the declaration is valid everywhere, including the Almanza Congregation. That
Escritors and Quilapios declarations were approved are shown by the
signatures of three witnesses, the elders in the Atimonan Congregation.
Salazar confirmed from the congregations branch office that these three
witnesses are elders in the Atimonan Congregation. Although in 1998 Escritor
was widowed, thereby lifting the legal impediment to marry on her part, her
mate is still not capacitated to remarry. Thus, their declarations remain valid.
Once all legal impediments for both are lifted, the couple can already register
their marriage with the civil authorities and the validity of the declarations
ceases. The elders in the congregations can then solemnize their marriage as
authorized by Philippine law. In sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in
the congregation.[17]
Salvador Reyes, a minister at the General de Leon, Valenzuela City

Congregation of the Jehovahs Witnesses since 1974 and member of the
headquarters of the Watch Tower Bible and Tract Society of the Philippines,
Inc., presented the original copy of the magazine article entitled, Maintaining
Marriage Before God and Men to which Escritor and Minister Salazar referred
in their testimonies. The article appeared in the March 15, 1977 issue of the
Watchtower magazine published in Pennsylvania, U.S.A. Felix S. Fajardo,
President of the Watch Tower Bible and Tract Society of the Philippines, Inc.,
authorized Reyes to represent him in authenticating the article. The article is
distributed to the Jehovahs Witnesses congregations which also distribute
them to the public.[18]
The parties submitted their respective memoranda to the investigating judge.

Both stated that the issue for resolution is whether or not the relationship
between respondent Escritor and Quilapio is valid and binding in their own
religious congregation, the Jehovahs Witnesses. Complainant Estrada adds
however, that the effect of the relationship to Escritors administrative liability
must likewise be determined. Estrada argued, through counsel, that the
Declaration of Pledging Faithfulness recognizes the supremacy of the proper
public authorities such that she bound herself to seek means to . . . legalize
their union. Thus, even assuming arguendo that the declaration is valid and
binding in her congregation, it is binding only to her co-members in the
congregation and serves only the internal purpose of displaying to the rest of
the congregation that she and her mate are a respectable and morally upright
couple. Their religious belief and practice, however, cannot override the
norms of conduct required by law for government employees. To rule
otherwise would create a dangerous precedent as those who cannot legalize
their live-in relationship can simply join the Jehovahs Witnesses congregation
and use their religion as a defense against legal liability.[19]
On the other hand, respondent Escritor reiterates the validity of her conjugal
arrangement with Quilapio based on the belief and practice of her religion,
the Jehovahs Witnesses. She quoted portions of the magazine article entitled,
Maintaining Marriage Before God and Men, in her memorandum signed by
herself, viz:
The Declaration of Pledging of Faithfulness (Exhibits 1 and 2) executed by the
respondent and her mate greatly affect the administrative liability of
respondent. Jehovahs Witnesses admit and recognize (sic) the supremacy of
the proper public authorities in the marriage arrangement. However, it is
helpful to understand the relative nature of Caesars authority regarding
marriage. From country to country, marriage and divorce legislation presents
a multitude of different angles and aspects. Rather than becoming entangled
in a confusion of technicalities, the Christian, or the one desiring to become a
disciple of Gods Son, can be guided by basic Scriptural principles that hold
true in all cases.
Gods view is of first concern. So, first of all the person must consider whether
that ones present relationship, or the relationship into which he or she
contemplates entering, is one that could meet with Gods approval, or
whether in itself, it violates the standards of Gods Word. Take, for example,
the situation where a man lives with a wife but also spends time living with
another woman as a concubine. As long as such a state of concubinage
prevails, the relationship of the second woman can never be harmonized with
Christian principles, nor could any declaration on the part of the woman or
the man make it so. The only right course is cessation of the relationship.
Similarly with an incestuous relationship with a member of ones immediate
family, or a homosexual relationship or other such situation condemned by
Gods Word. It is not the lack of any legal validation that makes such
relationships unacceptable; they are in themselves unscriptural and hence,
immoral. Hence, a person involved in such a situation could not make any kind
of Declaration of Faithfulness, since it would have no merit in Gods eyes.
If the relationship is such that it can have Gods approval, then, a second
principle to consider is that one should do all one can to establish the
honorableness of ones marital union in the eyes of all. (Heb. 13:4). If divorce
is possible, then such step should now be taken so that, having obtained the
divorce (on whatever legal grounds may be available), the present union can
receive civil validation as a recognized marriage.
Finally, if the marital relationship is not one out of harmony with the
principles of Gods Word, and if one has done all that can reasonably be done
to have it recognized by civil authorities and has been blocked in doing so,
then, a Declaration Pledging Faithfulness can be signed. In some cases, as has
been noted, the extreme slowness of official action may make accomplishing
of legal steps a matter of many, many years of effort. Or it may be that the
costs represent a crushingly heavy burden that the individual would need
years to be able to meet. In such cases, the declaration pledging faithfulness
will provide the congregation with the basis for viewing the existing union as
honorable while the individual continues conscientiously to work out the legal
aspects to the best of his ability.
Keeping in mind the basic principles presented, the respondent as a Minister

of Jehovah God, should be able to approach the matter in a balanced way,
neither underestimating nor overestimating the validation offered by the
political state. She always gives primary concern to Gods view of the union.
Along with this, every effort should be made to set a fine example of
faithfulness and devotion to ones mate, thus, keeping the marriage honorable
among all. Such course will bring Gods blessing and result to the honor and
praise of the author of marriage, Jehovah God. (1 Cor. 10:31-33)[20]
Respondent also brought to the attention of the investigating judge that

complainants Memorandum came from Judge Caoibes chambers[21] whom
she claims was merely using petitioner to malign her.
In his Report and Recommendation, investigating judge Maceda found
Escritors factual allegations credible as they were supported by testimonial
and documentary evidence. He also noted that (b)y strict Catholic standards,
the live-in relationship of respondent with her mate should fall within the
definition of immoral conduct, to wit: that which is willful, flagrant, or
shameless, and which shows a moral indifference to the opinion of the good
and respectable members of the community (7 C.J.S. 959) (Delos Reyes vs.
Aznar, 179 SCRA, at p. 666). He pointed out, however, that the more relevant
question is whether or not to exact from respondent Escritor, a member of
Jehovahs Witnesses, the strict moral standards of the Catholic faith in
determining her administrative responsibility in the case at bar.[22] The
investigating judge acknowledged that religious freedom is a fundamental
right which is entitled to the highest priority and the amplest protection
among human rights, for it involves the relationship of man to his Creator (at
p. 270, EBRALINAG supra, citing Chief Justice Enrique M. Fernandos separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531) and thereby
recommended the dismissal of the complaint against Escritor.[23]
After considering the Report and Recommendation of Executive Judge

Maceda, the Office of the Court Administrator, through Deputy Court
Administrator (DCA) Lock and with the approval of Court Administrator
Presbitero Velasco, concurred with the factual findings of Judge Maceda but
departed from his recommendation to dismiss the complaint. DCA Lock
stressed that although Escritor had become capacitated to marry by the time
she joined the judiciary as her husband had died a year before, it is due to her
relationship with a married man, voluntarily carried on, that respondent may
still be subject to disciplinary action.[24] Considering the ruling of the Court
in Dicdican v. Fernan, et al.[25] that court personnel have been enjoined to
adhere to the exacting standards of morality and decency in their professional
and private conduct in order to preserve the good name and integrity of the
court of justice, DCA Lock found Escritors defense of freedom of religion
unavailing to warrant dismissal of the charge of immorality. Accordingly, he
recommended that respondent be found guilty of immorality and that she be
penalized with suspension of six months and one day without pay with a
warning that a repetition of a similar act will be dealt with more severely in
accordance with the Civil Service Rules.[26]
II. Issue
Whether or not respondent should be found guilty of the administrative

charge of gross and immoral conduct. To resolve this issue, it is necessary to
determine the sub-issue of whether or not respondents right to religious
freedom should carve out an exception from the prevailing jurisprudence on
illicit relations for which government employees are held administratively
liable.
III. Applicable Laws
Respondent is charged with committing gross and immoral conduct under

Book V, Title I, Chapter VI, Sec. 46(b)(5) of the Revised Administrative Code
which provides, viz:
Sec. 46. Discipline: General Provisions. - (a) No officer or employee in the Civil
Service shall be suspended or dismissed except for cause as provided by law
and after due process.
(b) The following shall be grounds for disciplinary action:
xxx xxx xxx

(5) Disgraceful and immoral conduct; xxx.
Not represented by counsel, respondent, in laymans terms, invokes the

religious beliefs and practices and moral standards of her religion, the
Jehovahs Witnesses, in asserting that her conjugal arrangement with a man
not her legal husband does not constitute disgraceful and immoral conduct
for which she should be held administratively liable. While not articulated by
respondent, she invokes religious freedom under Article III, Section 5 of the
Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of religion, or

prohibiting the free exercise thereof. The free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of civil
or political rights.
IV. Old World Antecedents of the American Religion Clauses
To understand the life that the religion clauses have taken, it would be well
to understand not only its birth in the United States, but its conception in the
Old World. One cannot understand, much less intelligently criticize the
approaches of the courts and the political branches to religious freedom in
the recent past in the United States without a deep appreciation of the roots
of these controversies in the ancient and medieval world and in the American
experience.[27] This fresh look at the religion clauses is proper in deciding this
case of first impression.
In primitive times, all of life may be said to have been religious. Every
significant event in the primitive mans life, from birth to death, was marked
by religious ceremonies. Tribal society survived because religious sanctions
effectively elicited adherence to social customs. A person who broke a custom
violated a taboo which would then bring upon him the wrathful vengeance of
a superhuman mysterious power.[28] Distinction between the religious and
non-religious would thus have been meaningless to him. He sought
protection from all kinds of evil - whether a wild beast or tribe enemy and
lightning or wind - from the same person. The head of the clan or the Old Man
of the tribe or the king protected his wards against both human and
superhuman enemies. In time, the king not only interceded for his people
with the divine powers, but he himself was looked upon as a divine being and
his laws as divine decrees.[29]
Time came, however, when the function of acting as intermediary between

human and spiritual powers became sufficiently differentiated from the
responsibility of leading the tribe in war and policing it in peace as to require
the full-time services of a special priest class. This saw the birth of the social
and communal problem of the competing claims of the king and priest.
Nevertheless, from the beginning, the king and not the priest was superior.
The head of the tribe was the warrior, and although he also performed
priestly functions, he carried out these functions because he was the head
and representative of the community.[30]
There being no distinction between the religious and the secular, the same
authority that promulgated laws regulating relations between man and man
promulgated laws concerning mans obligations to the supernatural. This
authority was the king who was the head of the state and the source of all law
and who only delegated performance of rituals and sacrifice to the priests.
The Code of Hammurabi, king of Babylonia, imposed penalties for homicide,
larceny, perjury, and other crimes; regulated the fees of surgeons and the
wages of masons and tailors and prescribed rules for inheritance of
property;[31] and also catalogued the gods and assigned them their places in
the divine hierarchy so as to put Hammurabis own god to a position of
equality with existing gods.[32] In sum, the relationship of religion to the state
(king) in pre-Hebreic times may be characterized as a union of the two forces,
with the state almost universally the dominant partner.[33]
With the rise of the Hebrew state, a new term had to be coined to describe
the relation of the Hebrew state with the Mosaic religion: theocracy. The
authority and power of the state was ascribed to God.[34] The Mosaic creed
was not merely regarded as the religion of the state, it was (at least until Saul)
the state itself. Among the Hebrews, patriarch, prophet, and priest preceded
king and prince. As man of God, Moses decided when the people should travel
and when to pitch camp, when they should make war and when peace. Saul
and David were made kings by the prophet Samuel, disciple of Eli the priest.
Like the Code of Hammurabi, the Mosaic code combined civil laws with
religious mandates, but unlike the Hammurabi Code, religious laws were not
of secondary importance. On the contrary, religious motivation was primary
and all-embracing: sacrifices were made and Israel was prohibited from
exacting usury, mistreating aliens or using false weights, all because God
commanded these.
Moses of the Bible led not like the ancient kings. The latter used religion as an
engine to advance the purposes of the state. Hammurabi unified
Mesopotamia and established Babylon as its capital by elevating its city-god
to a primary position over the previous reigning gods.[35] Moses, on the other
hand, capitalized on the natural yearnings of the Hebrew slaves for freedom
and independence to further Gods purposes. Liberation and Exodus were
preludes to Sinai and the receipt of the Divine Law. The conquest of Canaan
was a preparation for the building of the temple and the full worship of
God.[36]
Upon the monotheism of Moses was the theocracy of Israel founded. This
monotheism, more than anything else, charted not only the future of religion
in western civilization, but equally, the future of the relationship between
religion and state in the west. This fact is acknowledged by many writers,
among whom is Northcott who pointed out, viz:
Historically it was the Hebrew and Christian conception of a single and

universal God that introduced a religious exclusivism leading to compulsion
and persecution in the realm of religion. Ancient religions were regarded as
confined to each separate people believing in them, and the question of
change from one religious belief to another did not arise. It was not until an
exclusive fellowship, that the questions of proselytism, change of belief and
liberty of religion arose.[37] (emphasis supplied)
The Hebrew theocracy existed in its pure form from Moses to Samuel. In this
period, religion was not only superior to the state, but it was all of the state.
The Law of God as transmitted through Moses and his successors was the
whole of government.
With Saul, however, the state rose to be the rival and ultimately, the master,
of religion. Saul and David each received their kingdom from Samuel the
prophet and disciple of Eli the priest, but soon the king dominated prophet
and priest. Saul disobeyed and even sought to slay Samuel the prophet of
God.[38] Under Solomon, the subordination of religion to state became
complete; he used religion as an engine to further the states purposes. He
reformed the order of priesthood established by Moses because the high
priest under that order endorsed the claim of his rival to the throne.[39]
The subordination of religion to the state was also true in pre-Christian Rome
which engaged in emperor-worship. When Augustus became head of the
Roman state and the priestly hierarchy, he placed religion at a high esteem as
part of a political plan to establish the real religion of pre-Christian Rome - the
worship of the head of the state. He set his great uncle Julius Caesar among
the gods, and commanded that worship of Divine Julius should not be less
than worship of Apollo, Jupiter and other gods. When Augustus died, he also
joined the ranks of the gods, as other emperors before him.[40]
The onset of Christianity, however, posed a difficulty to the emperor as the

Christians dogmatic exclusiveness prevented them from paying homage to
publicly accepted gods. In the first two centuries after the death of Jesus,
Christians were subjected to persecution. By the time of the emperor Trajan,
Christians were considered outlaws. Their crime was hatred of the human
race, placing them in the same category as pirates and brigands and other
enemies of mankind who were subject to summary punishments.[41]
In 284, Diocletian became emperor and sought to reorganize the empire and
make its administration more efficient. But the closely-knit hierarchically
controlled church presented a serious problem, being a state within a state
over which he had no control. He had two options: either to force it into
submission and break its power or enter into an alliance with it and procure
political control over it. He opted for force and revived the persecution,
destroyed the churches, confiscated sacred books, imprisoned the clergy and
by torture forced them to sacrifice.[42] But his efforts proved futile.
The later emperor, Constantine, took the second option of alliance.

Constantine joined with Galerius and Licinius, his two co-rulers of the empire,
in issuing an edict of toleration to Christians on condition that nothing is done
by them contrary to discipline.[43] A year later, after Galerius died,
Constantine and Licius jointly issued the epochal Edict of Milan (312 or 313),
a document of monumental importance in the history of religious liberty. It
provided that liberty of worship shall not be denied to any, but that the mind
and will of every individual shall be free to manage divine affairs according to
his own choice. (emphasis supplied) Thus, all restrictive statutes were
abrogated and it was enacted that every person who cherishes the desire to
observe the Christian religion shall freely and unconditionally proceed to
observe the same without let or hindrance. Furthermore, it was provided that
the same free and open power to follow their own religion or worship is
granted also to others, in accordance with the tranquillity of our times, in
order that every person may have free opportunity to worship the object of
his choice.(emphasis supplied)[44]
Before long, not only did Christianity achieve equal status, but acquired
privilege, then prestige, and eventually, exclusive power. Religion became an
engine of state policy as Constantine considered Christianity a means of
unifying his complex empire. Within seven years after the Edict of Milan,
under the emperors command, great Christian edifices were erected, the
clergy were freed from public burdens others had to bear, and private
heathen sacrifices were forbidden.
The favors granted to Christianity came at a price: state interference in

religious affairs. Constantine and his successors called and dismissed church
councils, and enforced unity of belief and practice. Until recently the church
had been the victim of persecution and repression, but this time it welcomed
the states persecution and repression of the nonconformist and the orthodox
on the belief that it was better for heretics to be purged of their error than to
die unsaved.
Both in theory as in practice, the partnership between church and state was
not easy. It was a constant struggle of one claiming dominance over the other.
In time, however, after the collapse and disintegration of the Roman Empire,
and while monarchical states were gradually being consolidated among the
numerous feudal holdings, the church stood as the one permanent, stable
and universal power. Not surprisingly, therefore, it claimed not merely
equality but superiority over the secular states. This claim, symbolized by
Pope Leos crowning of Charlemagne, became the churchs accepted principle
of its relationship to the state in the Middle Ages. As viewed by the church,
the union of church and state was now a union of the state in the church. The
rulers of the states did not concede to this claim of supremacy. Thus, while
Charlemagne received his crown from the Pope, he himself crowned his own
son as successor to nullify the inference of supremacy.[45] The whole history
of medieval Europe was a struggle for supremacy between prince and Pope
and the resulting religious wars and persecution of heretics and
nonconformists. At about the second quarter of the 13th century, the
Inquisition was established, the purpose of which was the discovery and
extermination of heresy. Accused heretics were tortured with the approval of
the church in the bull Ad extirpanda issued by Pope Innocent IV in 1252.
The corruption and abuses of the Catholic Church spurred the Reformation
aimed at reforming the Catholic Church and resulting in the establishment of
Protestant churches. While Protestants are accustomed to ascribe to the
Reformation the rise of religious liberty and its acceptance as the principle
governing the relations between a democratic state and its citizens, history
shows that it is more accurate to say that the same causes that gave rise to
the Protestant revolution also resulted in the widespread acceptance of the
principle of religious liberty, and ultimately of the principle of separation of
church and state.[46] Pleas for tolerance and freedom of conscience can
without doubt be found in the writings of leaders of the Reformation. But just
as Protestants living in the countries of papists pleaded for toleration of
religion, so did the papists that lived where Protestants were dominant.[47]
Papist and Protestant governments alike accepted the idea of cooperation
between church and state and regarded as essential to national unity the
uniformity of at least the outward manifestations of religion.[48] Certainly,
Luther, leader of the Reformation, stated that neither pope, nor bishop, nor
any man whatever has the right of making one syllable binding on a Christian
man, unless it be done with his own consent.[49] But when the tables had
turned and he was no longer the hunted heretic, he likewise stated when he
made an alliance with the secular powers that (h)eretics are not to be
disputed with, but to be condemned unheard, and whilst they perish by fire,
the faithful ought to pursue the evil to its source, and bathe their hands in the
blood of the Catholic bishops, and of the Pope, who is a devil in disguise.[50]
To Luther, unity among the peoples in the interests of the state was an
important consideration. Other personalities in the Reformation such as
Melanchton, Zwingli and Calvin strongly espoused theocracy or the use of the
state as an engine to further religion. In establishing theocracy in Geneva,
Calvin made absence from the sermon a crime, he included criticism of the
clergy in the crime of blasphemy punishable by death, and to eliminate
heresy, he cooperated in the Inquisition.[51]
There were, however, those who truly advocated religious liberty. Erasmus,
who belonged to the Renaissance than the Reformation, wrote that (t)he
terrible papal edict, the more terrible imperial edict, the imprisonments, the
confiscations, the recantations, the fagots and burnings, all these things I can
see accomplish nothing except to make the evil more widespread.[52] The
minority or dissident sects also ardently advocated religious liberty. The
Anabaptists, persecuted and despised, along with the Socinians (Unitarians)
and the Friends of the Quakers founded by George Fox in the 17th century,
endorsed the supremacy and freedom of the individual conscience. They
regarded religion as outside the realm of political governments.[53] The
English Baptists proclaimed that the magistrate is not to meddle with religion
or matters of conscience, nor compel men to this or that form of religion.[54]
Thus, out of the Reformation, three rationalizations of church-state relations
may be distinguished: the Erastian (after the German doctor Erastus), the
theocratic, and the separatist. The first assumed state superiority in
ecclesiastical affairs and the use of religion as an engine of state policy as
demonstrated by Luthers belief that civic cohesion could not exist without
religious unity so that coercion to achieve religious unity was justified. The
second was founded on ecclesiastical supremacy and the use of state
machinery to further religious interests as promoted by Calvin. The third,
which was yet to achieve ultimate and complete expression in the New World,
was discernibly in its incipient form in the arguments of some dissident
minorities that the magistrate should not intermeddle in religious affairs.[55]
After the Reformation, Erastianism pervaded all Europe except for Calvins
theocratic Geneva. In England, perhaps more than in any other country,
Erastianism was at its height. To illustrate, a statute was enacted by
Parliament in 1678, which, to encourage woolen trade, imposed on all
clergymen the duty of seeing to it that no person was buried in a shroud made
of any substance other than wool.[56] Under Elizabeth, supremacy of the
crown over the church was complete: ecclesiastical offices were regulated by
her proclamations, recusants were fined and imprisoned, Jesuits and
proselytizing priests were put to death for high treason, the thirty-nine
Articles of the Church of England were adopted and English Protestantism
attained its present doctrinal status.[57] Elizabeth was to be recognized as
the only Supreme Governor of this realm . . . as well in all spiritual or
ecclesiastical things or causes as temporal. She and her successors were
vested, in their dominions, with all manner of jurisdictions, privileges, and
preeminences, in any wise touching or concerning any spiritual or
ecclesiastical jurisdiction.[58] Later, however, Cromwell established the
constitution in 1647 which granted full liberty to all Protestant sects, but
denied toleration to Catholics.[59] In 1689, William III issued the Act of
Toleration which established a de facto toleration for all except Catholics. The
Catholics achieved religious liberty in the 19th century when the Roman
Catholic Relief Act of 1829 was adopted. The Jews followed suit in 1858 when
they were finally permitted to sit in Parliament.[60]
When the representatives of the American states met in Philadelphia in 1787

to draft the constitutional foundation of the new republic, the theocratic
state which had flourished intermittently in Israel, Judea, the Holy Roman
Empire and Geneva was completely gone. The prevailing church-state
relationship in Europe was Erastianism embodied in the system of
jurisdictionalism whereby one faith was favored as the official state-
supported religion, but other faiths were permitted to exist with freedom in
various degrees. No nation had yet adopted as the basis of its church-state
relations the principle of the mutual independence of religion and
government and the concomitant principle that neither might be used as an
engine to further the policies of the other, although the principle was in its
seminal form in the arguments of some dissident minorities and intellectual
leaders of the Renaissance. The religious wars of 16th and 17th century
Europe were a thing of the past by the time America declared its
independence from the Old World, but their memory was still vivid in the
minds of the Constitutional Fathers as expressed by the United States
Supreme Court, viz:
The centuries immediately before and contemporaneous with the

colonization of America had been filled with turmoil, civil strife, and
persecution generated in large part by established sects determined to
maintain their absolute political and religious supremacy. With the power of
government supporting them, at various times and places, Catholics had
persecuted Protestants, Protestants had persecuted Catholics, Protestant
sects had persecuted other protestant sects, Catholics of one shade of belief
had persecuted Catholics of another shade of belief, and all of these had from
time to time persecuted Jews. In efforts to force loyalty to whatever religious
group happened to be on top and in league with the government of a
particular time and place, men and women had been fined, cast in jail, cruelly
tortured, and killed. Among the offenses for which these punishments had
been inflicted were such things as speaking disrespectfully of the views of
ministers of government-established churches, non-attendance at those
churches, expressions of non-belief in their doctrines, and failure to pay taxes
and tithes to support them.[61]
In 1784, James Madison captured in this statement the entire history of

church-state relations in Europe up to the time the United States Constitution
was adopted, viz:
Torrents of blood have been spilt in the world in vain attempts of the secular
arm to extinguish religious discord, by proscribing all differences in religious
opinions.[62]
In sum, this history shows two salient features: First, with minor exceptions,
the history of church-state relationships was characterized by persecution,
oppression, hatred, bloodshed, and war, all in the name of the God of Love
and of the Prince of Peace. Second, likewise with minor exceptions, this
history witnessed the unscrupulous use of religion by secular powers to
promote secular purposes and policies, and the willing acceptance of that role
by the vanguards of religion in exchange for the favors and mundane benefits
conferred by ambitious princes and emperors in exchange for religions
invaluable service. This was the context in which the unique experiment of
the principle of religious freedom and separation of church and state saw its
birth in American constitutional democracy and in human history.[63]
V. Factors Contributing to the Adoption

of the American Religion Clauses
Settlers fleeing from religious persecution in Europe, primarily in Anglican-
dominated England, established many of the American colonies. British
thought pervaded these colonies as the immigrants brought with them their
religious and political ideas from England and English books and pamphlets
largely provided their cultural fare.[64] But although these settlers escaped
from Europe to be freed from bondage of laws which compelled them to
support and attend government favored churches, some of these settlers
themselves transplanted into American soil the oppressive practices they
escaped from. The charters granted by the English Crown to the individuals
and companies designated to make the laws which would control the
destinies of the colonials authorized them to erect religious establishments,
which all, whether believers or not, were required to support or attend.[65]
At one time, six of the colonies established a state religion. Other colonies,
however, such as Rhode Island and Delaware tolerated a high degree of
religious diversity. Still others, which originally tolerated only a single religion,
eventually extended support to several different faiths.[66]
This was the state of the American colonies when the unique American
experiment of separation of church and state came about. The birth of the
experiment cannot be attributed to a single cause or event. Rather, a number
of interdependent practical and ideological factors contributed in bringing it
forth. Among these were the English Act of Toleration of 1689, the multiplicity
of sects, the lack of church affiliation on the part of most Americans, the rise
of commercial intercourse, the exigencies of the Revolutionary War, the
Williams-Penn tradition and the success of their experiments, the writings of
Locke, the social contract theory, the Great Awakening, and the influence of
European rationalism and deism.[67] Each of these factors shall be briefly
discussed.
First, the practical factors. Englands policy of opening the gates of the
American colonies to different faiths resulted in the multiplicity of sects in the
colonies. With an Erastian justification, English lords chose to forego
protecting what was considered to be the true and eternal church of a
particular time in order to encourage trade and commerce. The colonies were
large financial investments which would be profitable only if people would
settle there. It would be difficult to engage in trade with persons one seeks to
destroy for religious belief, thus tolerance was a necessity. This tended to
distract the colonies from their preoccupations over their religion and its
exclusiveness, encouraging them to think less of the Church and more of the
State and of commerce.[68] The diversity brought about by the colonies open
gates encouraged religious freedom and non-establishment in several ways.
First, as there were too many dissenting sects to abolish, there was no
alternative but to learn to live together. Secondly, because of the daily
exposure to different religions, the passionate conviction in the exclusive
rightness of ones religion, which impels persecution for the sake of ones
religion, waned. Finally, because of the great diversity of the sects, religious
uniformity was not possible, and without such uniformity, establishment
could not survive.[69]
But while there was a multiplicity of denomination, paradoxically, there was

a scarcity of adherents. Only about four percent of the entire population of
the country had a church affiliation at the time the republic was founded.[70]
This might be attributed to the drifting to the American colonies of the
skepticism that characterized European Enlightenment.[71] Economic
considerations might have also been a factor. The individualism of the
American colonist, manifested in the multiplicity of sects, also resulted in
much unaffiliated religion which treated religion as a personal non-
institutional matter. The prevalence of lack of church affiliation contributed
to religious liberty and disestablishment as persons who were not connected
with any church were not likely to persecute others for similar independence
nor accede to compulsory taxation to support a church to which they did not
belong.[72]
However, for those who were affiliated to churches, the colonial policy
regarding their worship generally followed the tenor of the English Act of
Toleration of 1689. In England, this Act conferred on Protestant dissenters the
right to hold public services subject to registration of their ministers and
places of worship.[73] Although the toleration accorded to Protestant
dissenters who qualified under its terms was only a modest advance in
religious freedom, it nevertheless was of some influence to the American
experiment.[74] Even then, for practical considerations, concessions had to
be made to other dissenting churches to ensure their cooperation in the War
of Independence which thus had a unifying effect on the colonies.
Next, the ideological factors. First, the Great Awakening in mid-18th century,
an evangelical religious revival originating in New England, caused a break
with formal church religion and a resistance to coercion by established
churches. This movement emphasized an emotional, personal religion that
appealed directly to the individual, putting emphasis on the rights and duties
of the individual conscience and its answerability exclusively to God. Thus,
although they had no quarrel with orthodox Christian theology as in fact they
were fundamentalists, this group became staunch advocates of separation of
church and state.[75]
Then there was the Williams-Penn tradition. Roger Williams was the founder
of the colony of Rhode Island where he established a community of Baptists,
Quakers and other nonconformists. In this colony, religious freedom was not
based on practical considerations but on the concept of mutual independence
of religion and government. In 1663, Rhode Island obtained a charter from
the British crown which declared that settlers have it much on their heart to
hold forth a livelie experiment that a most flourishing civil state may best be
maintained . . . with full libertie in religious concernments.[76] In Williams
pamphlet, The Bloudy Tenent of Persecution for cause of Conscience,
discussed in a Conference between Truth and Peace,[77] he articulated the
philosophical basis for his argument of religious liberty. To him, religious
freedom and separation of church and state did not constitute two but only
one principle. Religious persecution is wrong because it confounds the Civil
and Religious and because States . . . are proved essentially Civil. The power
of true discerning the true fear of God is not one of the powers that the
people have transferred to Civil Authority.[78] Williams Bloudy Tenet is
considered an epochal milestone in the history of religious freedom and the
separation of church and state.[79]
William Penn, proprietor of the land that became Pennsylvania, was also an
ardent advocate of toleration, having been imprisoned for his religious
convictions as a member of the despised Quakers. He opposed coercion in
matters of conscience because imposition, restraint and persecution for
conscience sake, highly invade the Divine prerogative. Aside from his
idealism, proprietary interests made toleration in Pennsylvania necessary. He
attracted large numbers of settlers by promising religious toleration, thus
bringing in immigrants both from the Continent and Britain. At the end of the
colonial period, Pennsylvania had the greatest variety of religious groups.
Penn was responsible in large part for the Concessions and agreements of the
Proprietors, Freeholders, and inhabitants of West Jersey, in America, a
monumental document in the history of civil liberty which provided among
others, for liberty of conscience.[80] The Baptist followers of Williams and the
Quakers who came after Penn continued the tradition started by the leaders
of their denominations. Aside from the Baptists and the Quakers, the
Presbyterians likewise greatly contributed to the evolution of separation and
freedom.[81] The Constitutional fathers who convened in Philadelphia in
1787, and Congress and the states that adopted the First Amendment in 1791
were very familiar with and strongly influenced by the successful examples of
Rhode Island and Pennsylvania.[82]
Undeniably, John Locke and the social contract theory also contributed to the
American experiment. The social contract theory popularized by Locke was so
widely accepted as to be deemed self-evident truth in Americas Declaration
of Independence. With the doctrine of natural rights and equality set forth in
the Declaration of Independence, there was no room for religious
discrimination. It was difficult to justify inequality in religious treatment by a
new nation that severed its political bonds with the English crown which
violated the self-evident truth that all men are created equal.[83]
The social contract theory was applied by many religious groups in arguing
against establishment, putting emphasis on religion as a natural right that is
entirely personal and not within the scope of the powers of a political body.
That Locke and the social contract theory were influential in the development
of religious freedom and separation is evident from the memorial presented
by the Baptists to the Continental Congress in 1774, viz:
Men unite in society, according to the great Mr. Locke, with an intention in
every one the better to preserve himself, his liberty and property. The power
of the society, or Legislature constituted by them, can never be supposed to
extend any further than the common good, but is obliged to secure every
ones property. To give laws, to receive obedience, to compel with the sword,
belong to none but the civil magistrate; and on this ground we affirm that the
magistrates power extends not to establishing any articles of faith or forms of
worship, by force of laws; for laws are of no force without penalties. The care
of souls cannot belong to the civil magistrate, because his power consists only
in outward force; but pure and saving religion consists in the inward
persuasion of the mind, without which nothing can be acceptable to God.[84]
(emphasis supplied)
The idea that religion was outside the jurisdiction of civil government was
acceptable to both the religionist and rationalist. To the religionist, God or
Christ did not desire that government have that jurisdiction (render unto
Caesar that which is Caesars; my kingdom is not of this world) and to the
rationalist, the power to act in the realm of religion was not one of the powers
conferred on government as part of the social contract.[85]
Not only the social contract theory drifted to the colonies from Europe. Many
of the leaders of the Revolutionary and post-revolutionary period were also
influenced by European deism and rationalism,[86] in general, and some were
apathetic if not antagonistic to formal religious worship and institutionalized
religion. Jefferson, Paine, John Adams, Washington, Franklin, Madison,
among others were reckoned to be among the Unitarians or Deists.
Unitarianism and Deism contributed to the emphasis on secular interests and
the relegation of historic theology to the background.[87] For these men of
the enlightenment, religion should be allowed to rise and fall on its own, and
the state must be protected from the clutches of the church whose
entanglements has caused intolerance and corruption as witnessed
throughout history.[88] Not only the leaders but also the masses embraced
rationalism at the end of the eighteenth century, accounting for the
popularity of Paines Age of Reason.[89]
Finally, the events leading to religious freedom and separation in Virginia

contributed significantly to the American experiment of the First
Amendment. Virginia was the first state in the history of the world to proclaim
the decree of absolute divorce between church and state.[90] Many factors
contributed to this, among which were that half to two-thirds of the
population were organized dissenting sects, the Great Awakening had won
many converts, the established Anglican Church of Virginia found themselves
on the losing side of the Revolution and had alienated many influential
laymen with its identification with the Crowns tyranny, and above all, present
in Virginia was a group of political leaders who were devoted to liberty
generally,[91] who had accepted the social contract as self-evident, and who
had been greatly influenced by Deism and Unitarianism. Among these leaders
were Washington, Patrick Henry, George Mason, James Madison and above
the rest, Thomas Jefferson.
The first major step towards separation in Virginia was the adoption of the
following provision in the Bill of Rights of the states first constitution:
That religion, or the duty which we owe to our Creator, and the manner of
discharging it, can be directed only by reason and conviction, not by force or
violence; and therefore, all men are equally entitled to the free exercise of
religion according to the dictates of conscience; and that it is the mutual duty
of all to practice Christian forbearance, love, and charity towards each
other.[92] (emphasis supplied)
The adoption of the Bill of Rights signified the beginning of the end of
establishment. Baptists, Presbyterians and Lutherans flooded the first
legislative assembly with petitions for abolition of establishment. While the
majority of the population were dissenters, a majority of the legislature were
churchmen. The legislature compromised and enacted a bill in 1776
abolishing the more oppressive features of establishment and granting
exemptions to the dissenters, but not guaranteeing separation. It repealed
the laws punishing heresy and absence from worship and requiring the
dissenters to contribute to the support of the establishment.[93] But the
dissenters were not satisfied; they not only wanted abolition of support for
the establishment, they opposed the compulsory support of their own
religion as others. As members of the established church would not allow that
only they would pay taxes while the rest did not, the legislature enacted in
1779 a bill making permanent the establishments loss of its exclusive status
and its power to tax its members; but those who voted for it did so in the
hope that a general assessment bill would be passed. Without the latter, the
establishment would not survive. Thus, a bill was introduced in 1779 requiring
every person to enroll his name with the county clerk and indicate which
society for the purpose of Religious Worship he wished to support. On the
basis of this list, collections were to be made by the sheriff and turned over
to the clergymen and teachers designated by the religious congregation. The
assessment of any person who failed to enroll in any society was to be divided
proportionately among the societies.[94] The bill evoked strong opposition.
In 1784, another bill, entitled Bill Establishing a Provision for Teachers of the
Christian Religion was introduced requiring all persons to pay a moderate tax
or contribution annually for the support of the Christian religion, or of some
Christian church, denomination or communion of Christians, or for some form
of Christian worship.[95] This likewise aroused the same opposition to the
1779 bill. The most telling blow against the 1784 bill was the monumental
Memorial and Remonstrance against Religious Assessments written by
Madison and widely distributed before the reconvening of legislature in the
fall of 1785.[96] It stressed natural rights, the governments lack of jurisdiction
over the domain of religion, and the social contract as the ideological basis of
separation while also citing practical considerations such as loss of population
through migration. He wrote, viz:
Because we hold it for a fundamental and undeniable truth, that religion, or

the duty which we owe to our creator, and the manner of discharging it, can
be directed only by reason and conviction, not by force or violence. The
religion, then, of every man, must be left to the conviction and conscience of
every man; and it is the right of every man to exercise it as these may dictate.
This right is, in its nature, an unalienable right. It is unalienable, because the
opinions of men, depending only on the evidence contemplated in their own
minds, cannot follow the dictates of other men; it is unalienable, also,
because what is here a right towards men, is a duty towards the creator. It is
the duty of every man to render the creator such homage, and such only as
he believes to be acceptable to him; this duty is precedent, both in order of
time and degree of obligation, to the claims of civil society. Before any man
can be considered as a member of civil society, he must be considered as a
subject of the governor of the universe; and if a member of civil society, who
enters into any subordinate association, must always do it with a reservation
of his duty to the general authority, much more must every man who
becomes a member of any particular civil society do it with the saving his
allegiance to the universal sovereign.[97] (emphases supplied)
Madison articulated in the Memorial the widely held beliefs in 1785 as

indicated by the great number of signatures appended to the Memorial. The
assessment bill was speedily defeated.
Taking advantage of the situation, Madison called up a much earlier 1779 bill
of Jefferson which had not been voted on, the Bill for Establishing Religious
Freedom, and it was finally passed in January 1786. It provided, viz:
Well aware that Almighty God hath created the mind free; that all attempts
to influence it by temporal punishments or burdens, or by civil
incapacitations, tend not only to beget habits of hypocrisy and meanness, and
are a departure from the plan of the Holy Author of our religion, who being
Lord both of body and mind, yet chose not to propagate it by coercions on
either, as was in his Almighty power to do;
xxx xxx xxx
Be it therefore enacted by the General Assembly. That no man shall be

compelled to frequent or support any religious worship, place or ministry
whatsoever, nor shall be enforced, restrained, molested or burdened in his
body or goods, nor shall otherwise suffer on account of his religious opinions
or beliefs, but that all men shall be free to profess, and by argument to
maintain, their opinions in matters of religion, and that the same shall in no
wise diminish, enlarge or affect their civil capacities.[98] (emphases supplied)
This statute forbade any kind of taxation in support of religion and effectually
ended any thought of a general or particular establishment in Virginia.[99]
But the passage of this law was obtained not only because of the influence of
the great leaders in Virginia but also because of substantial popular support
coming mainly from the two great dissenting sects, namely the Presbyterians
and the Baptists. The former were never established in Virginia and an
underprivileged minority of the population. This made them anxious to pull
down the existing state church as they realized that it was impossible for them
to be elevated to that privileged position. Apart from these expediential
considerations, however, many of the Presbyterians were sincere advocates
of separation[100] grounded on rational, secular arguments and to the
language of natural religion.[101] Influenced by Roger Williams, the Baptists,
on the other hand, assumed that religion was essentially a matter of concern
of the individual and his God, i.e., subjective, spiritual and supernatural,
having no relation with the social order.[102] To them, the Holy Ghost was
sufficient to maintain and direct the Church without governmental assistance
and state-supported religion was contrary ti the spirit of the Gospel.[103]
Thus, separation was necessary.[104] Jeffersons religious freedom statute
was a milestone in the history of religious freedom. The United States
Supreme Court has not just once acknowledged that the provisions of the
First Amendment of the U.S. Constitution had the same objectives and
intended to afford the same protection against government interference with
religious liberty as the Virginia Statute of Religious Liberty.
Even in the absence of the religion clauses, the principle that government had
no power to legislate in the area of religion by restricting its free exercise or
establishing it was implicit in the Constitution of 1787. This could be deduced
from the prohibition of any religious test for federal office in Article VI of the
Constitution and the assumed lack of power of Congress to act on any subject
not expressly mentioned in the Constitution.[105] However, omission of an
express guaranty of religious freedom and other natural rights nearly
prevented the ratification of the Constitution.[106] In the ratifying
conventions of almost every state, some objection was expressed to the
absence of a restriction on the Federal Government as regards legislation on
religion.[107] Thus, in 1791, this restriction was made explicit with the
adoption of the religion clauses in the First Amendment as they are worded
to this day, with the first part usually referred to as the Establishment Clause
and the second part, the Free Exercise Clause, viz:
Congress shall make no law respecting an establishment of religion or

prohibiting the free exercise thereof.
VI. Religion Clauses in the United States:

Concept, Jurisprudence, Standards
With the widespread agreement regarding the value of the First Amendment
religion clauses comes an equally broad disagreement as to what these
clauses specifically require, permit and forbid. No agreement has been
reached by those who have studied the religion clauses as regards its exact
meaning and the paucity of records in Congress renders it difficult to ascertain
its meaning.[108] Consequently, the jurisprudence in this area is volatile and
fraught with inconsistencies whether within a Court decision or across
decisions.
One source of difficulty is the difference in the context in which the First
Amendment was adopted and in which it is applied today. In the 1780s,
religion played a primary role in social life - i.e., family responsibilities,
education, health care, poor relief, and other aspects of social life with
significant moral dimension - while government played a supportive and
indirect role by maintaining conditions in which these activities may be
carried out by religious or religiously-motivated associations. Today,
government plays this primary role and religion plays the supportive
role.[109] Government runs even family planning, sex education, adoption
and foster care programs.[110] Stated otherwise and with some
exaggeration, (w)hereas two centuries ago, in matters of social life which
have a significant moral dimension, government was the handmaid of
religion, today religion, in its social responsibilities, as contrasted with
personal faith and collective worship, is the handmaid of government.[111]
With government regulation of individual conduct having become more
pervasive, inevitably some of those regulations would reach conduct that for
some individuals are religious. As a result, increasingly, there may be
inadvertent collisions between purely secular government actions and
religion clause values.[112]
Parallel to this expansion of government has been the expansion of religious

organizations in population, physical institutions, types of activities
undertaken, and sheer variety of denominations, sects and cults. Churches
run day-care centers, retirement homes, hospitals, schools at all levels,
research centers, settlement houses, halfway houses for prisoners, sports
facilities, theme parks, publishing houses and mass media programs. In these
activities, religious organizations complement and compete with commercial
enterprises, thus blurring the line between many types of activities
undertaken by religious groups and secular activities. Churches have also
concerned themselves with social and political issues as a necessary
outgrowth of religious faith as witnessed in pastoral letters on war and peace,
economic justice, and human life, or in ringing affirmations for racial equality
on religious foundations. Inevitably, these developments have brought about
substantial entanglement of religion and government. Likewise, the growth
in population density, mobility and diversity has significantly changed the
environment in which religious organizations and activities exist and the laws
affecting them are made. It is no longer easy for individuals to live solely
among their own kind or to shelter their children from exposure to competing
values. The result is disagreement over what laws should require, permit or
prohibit;[113] and agreement that if the rights of believers as well as non-
believers are all to be respected and given their just due, a rigid, wooden
interpretation of the religion clauses that is blind to societal and political
realities must be avoided.[114]
Religion cases arise from different circumstances. The more obvious ones
arise from a government action which purposely aids or inhibits religion.
These cases are easier to resolve as, in general, these actions are plainly
unconstitutional. Still, this kind of cases poses difficulty in ascertaining proof
of intent to aid or inhibit religion.[115] The more difficult religion clause cases
involve government action with a secular purpose and general applicability
which incidentally or inadvertently aids or burdens religious exercise. In Free
Exercise Clause cases, these government actions are referred to as those with
burdensome effect on religious exercise even if the government action is not
religiously motivated.[116] Ideally, the legislature would recognize the
religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened turn to the courts for
protection.[117] Most of these free exercise claims brought to the Court are
for exemption, not invalidation of the facially neutral law that has a
burdensome effect.[118]
With the change in political and social context and the increasing inadvertent
collisions between law and religious exercise, the definition of religion for
purposes of interpreting the religion clauses has also been modified to suit
current realities. Defining religion is a difficult task for even theologians,
philosophers and moralists cannot agree on a comprehensive definition.
Nevertheless, courts must define religion for constitutional and other legal
purposes.[119] It was in the 1890 case of Davis v. Beason[120] that the United
States Supreme Court first had occasion to define religion, viz:
The term religion has reference to ones views of his relations to his Creator,
and to the obligations they impose of reverence for his being and character,
and of obedience to his will. It is often confounded with the cultus or form of
worship of a particular sect, but is distinguishable from the latter. The First
Amendment to the Constitution, in declaring that Congress shall make no law
respecting the establishment of religion, or forbidding the free exercise
thereof, was intended to allow everyone under the jurisdiction of the United
States to entertain such notions respecting his relations to his Maker and the
duties they impose as may be approved by his judgment and conscience, and
to exhibit his sentiments in such form of worship as he may think proper, not
injurious to the equal rights of others, and to prohibit legislation for the
support of any religious tenets, or the modes of worship of any sect.[121]
The definition was clearly theistic which was reflective of the popular
attitudes in 1890.
In 1944, the Court stated in United States v. Ballard[122] that the free exercise
of religion embraces the right to maintain theories of life and of death and of
the hereafter which are rank heresy to followers of the orthodox faiths.[123]
By the 1960s, American pluralism in religion had flourished to include non-
theistic creeds from Asia such as Buddhism and Taoism.[124] In 1961, the
Court, in Torcaso v. Watkins,[125] expanded the term religion to non-theistic
beliefs such as Buddhism, Taoism, Ethical Culture, and Secular Humanism.
Four years later, the Court faced a definitional problem in United States v.
Seeger[126] which involved four men who claimed conscientious objector
status in refusing to serve in the Vietnam War. One of the four, Seeger, was
not a member of any organized religion opposed to war, but when specifically
asked about his belief in a Supreme Being, Seeger stated that you could call
(it) a belief in a Supreme Being or God. These just do not happen to be the
words that I use. Forest Peter, another one of the four claimed that after
considerable meditation and reflection on values derived from the Western
religious and philosophical tradition, he determined that it would be a
violation of his moral code to take human life and that he considered this
belief superior to any obligation to the state. The Court avoided a
constitutional question by broadly interpreting not the Free Exercise Clause,
but the statutory definition of religion in the Universal Military Training and
Service Act of 1940 which exempt from combat anyone who, by reason of
religious training and belief, is conscientiously opposed to participation in war
in any form. Speaking for the Court, Justice Clark ruled, viz:
Congress, in using the expression Supreme Being rather than the designation
God, was merely clarifying the meaning of religious tradition and belief so as
to embrace all religions and to exclude essentially political, sociological, or
philosophical views (and) the test of belief in relation to a Supreme Being is
whether a given belief that is sincere and meaningful occupies a place in the
life of its possessor parallel to the orthodox belief in God. (emphasis supplied)
The Court was convinced that Seeger, Peter and the others were
conscientious objectors possessed of such religious belief and training.
Federal and state courts have expanded the definition of religion in Seeger to
include even non-theistic beliefs such as Taoism or Zen Buddhism. It has been
proposed that basically, a creed must meet four criteria to qualify as religion
under the First Amendment. First, there must be belief in God or some
parallel belief that occupies a central place in the believers life. Second, the
religion must involve a moral code transcending individual belief, i.e., it
cannot be purely subjective. Third, a demonstrable sincerity in belief is
necessary, but the court must not inquire into the truth or reasonableness of
the belief.[127] Fourth, there must be some associational ties,[128] although
there is also a view that religious beliefs held by a single person rather than
being part of the teachings of any kind of group or sect are entitled to the
protection of the Free Exercise Clause.[129]
Defining religion is only the beginning of the difficult task of deciding religion
clause cases. Having hurdled the issue of definition, the court then has to
draw lines to determine what is or is not permissible under the religion
clauses. In this task, the purpose of the clauses is the yardstick. Their purpose
is singular; they are two sides of the same coin.[130] In devoting two clauses
to religion, the Founders were stating not two opposing thoughts that would
cancel each other out, but two complementary thoughts that apply in
different ways in different circumstances.[131] The purpose of the religion
clauses - both in the restriction it imposes on the power of the government
to interfere with the free exercise of religion and the limitation on the power
of government to establish, aid, and support religion - is the protection and
promotion of religious liberty.[132] The end, the goal, and the rationale of the
religion clauses is this liberty.[133] Both clauses were adopted to prevent
government imposition of religious orthodoxy; the great evil against which
they are directed is government-induced homogeneity.[134] The Free
Exercise Clause directly articulates the common objective of the two clauses
and the Establishment Clause specifically addresses a form of interference
with religious liberty with which the Framers were most familiar and for which
government historically had demonstrated a propensity.[135] In other words,
free exercise is the end, proscribing establishment is a necessary means to
this end to protect the rights of those who might dissent from whatever
religion is established.[136] It has even been suggested that the sense of the
First Amendment is captured if it were to read as Congress shall make no law
respecting an establishment of religion or otherwise prohibiting the free
exercise thereof because the fundamental and single purpose of the two
religious clauses is to avoid any infringement on the free exercise of
religions[137] Thus, the Establishment Clause mandates separation of church
and state to protect each from the other, in service of the larger goal of
preserving religious liberty. The effect of the separation is to limit the
opportunities for any religious group to capture the state apparatus to the
disadvantage of those of other faiths, or of no faith at all[138] because history
has shown that religious fervor conjoined with state power is likely to tolerate
far less religious disagreement and disobedience from those who hold
different beliefs than an enlightened secular state.[139] In the words of the
U.S. Supreme Court, the two clauses are interrelated, viz: (t)he structure of
our government has, for the preservation of civil liberty, rescued the temporal
institutions from religious interference. On the other hand, it has secured
religious liberty from the invasion of the civil authority.[140]
In upholding religious liberty as the end goal in religious clause cases, the line
the court draws to ensure that government does not establish and instead
remains neutral toward religion is not absolutely straight. Chief Justice Burger
explains, viz:
The course of constitutional neutrality in this area cannot be an absolutely

straight line; rigidity could well defeat the basic purpose of these provisions,
which is to insure that no religion be sponsored or favored, none commanded
and none inhibited.[141] (emphasis supplied)
Consequently, U.S. jurisprudence has produced two identifiably

different,[142] even opposing, strains of jurisprudence on the religion
clauses: separation (in the form of strict separation or the tamer version of
strict neutrality or separation) and benevolent neutrality or accommodation.
A view of the landscape of U.S. religion clause cases would be useful in
understanding these two strains, the scope of protection of each clause, and
the tests used in religious clause cases. Most of these cases are cited as
authorities in Philippine religion clause cases.
A. Free Exercise Clause
The Court first interpreted the Free Exercise Clause in the 1878 case of
Reynolds v. United States.[143] This landmark case involved Reynolds, a
Mormon who proved that it was his religious duty to have several wives and
that the failure to practice polygamy by male members of his religion when
circumstances would permit would be punished with damnation in the life to
come. Reynolds act of contracting a second marriage violated Section 5352,
Revised Statutes prohibiting and penalizing bigamy, for which he was
convicted. The Court affirmed Reynolds conviction, using what in
jurisprudence would be called the belief-action test which allows absolute
protection to belief but not to action. It cited Jeffersons Bill Establishing
Religious Freedom which, according to the Court, declares the true distinction
between what properly belongs to the Church and what to the State.[144]
The bill, making a distinction between belief and action, states in relevant
part, viz:
That to suffer the civil magistrate to intrude his powers into the field of
opinion, and to restrain the profession or propagation of principles on
supposition of their ill tendency, is a dangerous fallacy which at once destroys
all religious liberty;
that it is time enough for the rightful purposes of civil government for its
officers to interfere when principles break out into overt acts against peace
and good order.[145] (emphasis supplied)
The Court then held, viz:
Congress was deprived of all legislative power over mere opinion, but was left
free to reach actions which were in violation of social duties or subversive of
good order. . .
Laws are made for the government of actions, and while they cannot interfere
with mere religious belief and opinions, they may with practices. Suppose one
believed that human sacrifice were a necessary part of religious worship,
would it be seriously contended that the civil government under which he
lived could not interfere to prevent a sacrifice? Or if a wife religiously believed
it was her duty to burn herself upon the funeral pile of her dead husband,
would it be beyond the power of the civil government to prevent her carrying
her belief into practice?
So here, as a law of the organization of society under the exclusive dominion

of the United States, it is provided that plural marriages shall not be allowed.
Can a man excuse his practices to the contrary because of his religious belief?
To permit this would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every citizen to become
a law unto himself. Government could exist only in name under such
circumstances.[146]
The construct was thus simple: the state was absolutely prohibited by the
Free Exercise Clause from regulating individual religious beliefs, but placed no
restriction on the ability of the state to regulate religiously motivated
conduct. It was logical for belief to be accorded absolute protection because
any statute designed to prohibit a particular religious belief unaccompanied
by any conduct would most certainly be motivated only by the legislatures
preference of a competing religious belief. Thus, all cases of regulation of
belief would amount to regulation of religion for religious reasons violative of
the Free Exercise Clause. On the other hand, most state regulations of
conduct are for public welfare purposes and have nothing to do with the
legislatures religious preferences. Any burden on religion that results from
state regulation of conduct arises only when particular individuals are
engaging in the generally regulated conduct because of their particular
religious beliefs. These burdens are thus usually inadvertent and did not
figure in the belief-action test. As long as the Court found that regulation
address action rather than belief, the Free Exercise Clause did not pose any
problem.[147] The Free Exercise Clause thus gave no protection against the
proscription of actions even if considered central to a religion unless the
legislature formally outlawed the belief itself.[148]
This belief-action distinction was held by the Court for some years as shown
by cases where the Court upheld other laws which burdened the practice of
the Mormon religion by imposing various penalties on polygamy such as the
Davis case and Church of Latter Day Saints v. United States.[149] However,
more than a century since Reynolds was decided, the Court has expanded the
scope of protection from belief to speech and conduct. But while the belief-
action test has been abandoned, the rulings in the earlier Free Exercise cases
have gone unchallenged. The belief-action distinction is still of some
importance though as there remains an absolute prohibition of governmental
proscription of beliefs.[150]
The Free Exercise Clause accords absolute protection to individual religious

convictions and beliefs[151] and proscribes government from questioning a
persons beliefs or imposing penalties or disabilities based solely on those
beliefs. The Clause extends protection to both beliefs and unbelief. Thus, in
Torcaso v. Watkins,[152] a unanimous Court struck down a state law requiring
as a qualification for public office an oath declaring belief in the existence of
God. The protection also allows courts to look into the good faith of a person
in his belief, but prohibits inquiry into the truth of a persons religious beliefs.
As held in United States v. Ballard,[153] (h)eresy trials are foreign to the
Constitution. Men may believe what they cannot prove. They may not be put
to the proof of their religious doctrines or beliefs.
Next to belief which enjoys virtually absolute protection, religious speech and
expressive religious conduct are accorded the highest degree of protection.
Thus, in the 1940 case of Cantwell v. Connecticut,[154] the Court struck down
a state law prohibiting door-to-door solicitation for any religious or charitable
cause without prior approval of a state agency. The law was challenged by
Cantwell, a member of the Jehovahs Witnesses which is committed to active
proselytizing. The Court invalidated the state statute as the prior approval
necessary was held to be a censorship of religion prohibited by the Free
Exercise Clause. The Court held, viz:
In the realm of religious faith, and in that of political belief, sharp differences
arise. In both fields the tenets of one may seem the rankest error to his
neighbor. To persuade others to his point of view, the pleader, as we know,
resorts to exaggeration, to vilification of men who have been, or are,
prominent in church or state, and even to false statement. But the people of
this nation have ordained in the light of history, that, in spite of the probability
of excesses and abuses, these liberties are, in the long view, essential to
enlightened opinion and right conduct on the part of citizens of a
democracy.[155]
Cantwell took a step forward from the protection afforded by the Reynolds
case in that it not only affirmed protection of belief but also freedom to act
for the propagation of that belief, viz:
Thus the Amendment embraces two concepts - freedom to believe and

freedom to act. The first is absolute but, in the nature of things, the second
cannot be. Conduct remains subject to regulation for the protection of
society. . . In every case, the power to regulate must be so exercised as not,
in attaining a permissible end, unduly to infringe the protected freedom.
(emphasis supplied)[156]
The Court stated, however, that government had the power to regulate the
times, places, and manner of solicitation on the streets and assure the peace
and safety of the community.
Three years after Cantwell, the Court in Douglas v. City of Jeanette,[157] ruled
that police could not prohibit members of the Jehovahs Witnesses from
peaceably and orderly proselytizing on Sundays merely because other citizens
complained. In another case likewise involving the Jehovahs Witnesses,
Niemotko v. Maryland,[158] the Court unanimously held unconstitutional a
city councils denial of a permit to the Jehovahs Witnesses to use the city park
for a public meeting. The city councils refusal was because of the
unsatisfactory answers of the Jehovahs Witnesses to questions about
Catholicism, military service, and other issues. The denial of the public forum
was considered blatant censorship. While protected, religious speech in the
public forum is still subject to reasonable time, place and manner regulations
similar to non-religious speech. Religious proselytizing in congested areas, for
example, may be limited to certain areas to maintain the safe and orderly flow
of pedestrians and vehicular traffic as held in the case of Heffron v.
International Society for Krishna Consciousness.[159]
The least protected under the Free Exercise Clause is religious conduct,
usually in the form of unconventional religious practices. Protection in this
realm depends on the character of the action and the government rationale
for regulating the action.[160] The Mormons religious conduct of polygamy is
an example of unconventional religious practice. As discussed in the Reynolds
case above, the Court did not afford protection to the practice. Reynolds was
reiterated in the 1890 case of Davis again involving Mormons, where the
Court held, viz: (c)rime is not the less odious because sanctioned by what any
particular sect may designate as religion.[161]
The belief-action test in Reynolds and Davis proved unsatisfactory. Under this
test, regulation of religiously dictated conduct would be upheld no matter
how central the conduct was to the exercise of religion and no matter how
insignificant was the governments non-religious regulatory interest so long as
the government is proscribing action and not belief. Thus, the Court
abandoned the simplistic belief-action distinction and instead recognized the
deliberate-inadvertent distinction, i.e., the distinction between deliberate
state interference of religious exercise for religious reasons which was plainly
unconstitutional and governments inadvertent interference with religion in
pursuing some secular objective.[162] In the 1940 case of Minersville School
District v. Gobitis,[163] the Court upheld a local school board requirement
that all public school students participate in a daily flag salute program,
including the Jehovahs Witnesses who were forced to salute the American
flag in violation of their religious training, which considered flag salute to be
worship of a graven image. The Court recognized that the general
requirement of compulsory flag salute inadvertently burdened the Jehovah
Witnesses practice of their religion, but justified the government regulation
as an appropriate means of attaining national unity, which was the basis of
national security. Thus, although the Court was already aware of the
deliberate-inadvertent distinction in government interference with religion,
it continued to hold that the Free Exercise Clause presented no problem to
interference with religion that was inadvertent no matter how serious the
interference, no matter how trivial the states non-religious objectives, and no
matter how many alternative approaches were available to the state to
pursue its objectives with less impact on religion, so long as government was
acting in pursuit of a secular objective.
Three years later, the Gobitis decision was overturned in West Virginia v.
Barnette[164] which involved a similar set of facts and issue. The Court
recognized that saluting the flag, in connection with the pledges, was a form
of utterance and the flag salute program was a compulsion of students to
declare a belief. The Court ruled that compulsory unification of opinions leads
only to the unanimity of the graveyard and exempt the students who were
members of the Jehovahs Witnesses from saluting the flag. A close scrutiny
of the case, however, would show that it was decided not on the issue of
religious conduct as the Court said, (n)or does the issue as we see it turn on
ones possession of particular religious views or the sincerity with which they
are held. While religion supplies appellees motive for enduring the
discomforts of making the issue in this case, many citizens who do not share
these religious views hold such a compulsory rite to infringe constitutional
liberty of the individual. (emphasis supplied)[165] The Court pronounced,
however, that, freedoms of speech and of press, of assembly, and of worship
. . . are susceptible only of restriction only to prevent grave and immediate
danger to interests which the state may lawfully protect.[166] The Court
seemed to recognize the extent to which its approach in Gobitis subordinated
the religious liberty of political minorities - a specially protected constitutional
value - to the common everyday economic and public welfare objectives of
the majority in the legislature. This time, even inadvertent interference with
religion must pass judicial scrutiny under the Free Exercise Clause with only
grave and immediate danger sufficing to override religious liberty. But the
seeds of this heightened scrutiny would only grow to a full flower in the
1960s.[167]
Nearly a century after Reynolds employed the belief-action test, the Warren
Court began the modern free exercise jurisprudence.[168] A two-part
balancing test was established in Braunfeld v. Brown[169] where the Court
considered the constitutionality of applying Sunday closing laws to Orthodox
Jews whose beliefs required them to observe another day as the Sabbath and
abstain from commercial activity on Saturday. Chief Justice Warren, writing
for the Court, found that the law placed a severe burden on Sabattarian
retailers. He noted, however, that since the burden was the indirect effect of
a law with a secular purpose, it would violate the Free Exercise Clause only if
there were alternative ways of achieving the states interest. He employed a
two-part balancing test of validity where the first step was for plaintiff to
show that the regulation placed a real burden on his religious exercise. Next,
the burden would be upheld only if the state showed that it was pursuing an
overriding secular goal by the means which imposed the least burden on
religious practices.[170] The Court found that the state had an overriding
secular interest in setting aside a single day for rest, recreation and tranquility
and there was no alternative means of pursuing this interest but to require
Sunday as a uniform rest day.
Two years after came the stricter compelling state interest test in the 1963
case of Sherbert v. Verner.[171] This test was similar to the two-part
balancing test in Braunfeld,[172] but this latter test stressed that the state
interest was not merely any colorable state interest, but must be paramount
and compelling to override the free exercise claim. In this case, Sherbert, a
Seventh Day Adventist, claimed unemployment compensation under the law
as her employment was terminated for refusal to work on Saturdays on
religious grounds. Her claim was denied. She sought recourse in the Supreme
Court. In laying down the standard for determining whether the denial of
benefits could withstand constitutional scrutiny, the Court ruled, viz:
Plainly enough, appellees conscientious objection to Saturday work

constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellants constitutional challenge, it must be
either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional rights of free exercise, or
because any incidental burden on the free exercise of appellants religion may
be justified by a compelling state interest in the regulation of a subject within
the States constitutional power to regulate. . . NAACP v. Button, 371 US 415,
438 9 L ed 2d 405, 421, 83 S Ct 328.[173] (emphasis supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. (I)n this
highly sensitive constitutional area, [o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation. Thomas v.
Collins, 323 US 516, 530, 89 L ed 430, 440, 65 S Ct 315.[174] The Court found
that there was no such compelling state interest to override Sherberts
religious liberty. It added that even if the state could show that Sherberts
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however,
did not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherberts benefits would force her to
choose between receiving benefits and following her religion. This choice
placed the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship. This germinal case of
Sherbert firmly established the exemption doctrine, [175] viz:
It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some compelling state interest
intervenes.
Thus, in a short period of twenty-three years from Gobitis to Sherbert (or even
as early as Braunfeld), the Court moved from the doctrine that inadvertent or
incidental interferences with religion raise no problem under the Free
Exercise Clause to the doctrine that such interferences violate the Free
Exercise Clause in the absence of a compelling state interest - the highest level
of constitutional scrutiny short of a holding of a per se violation. Thus, the
problem posed by the belief-action test and the deliberate-inadvertent
distinction was addressed.[176]
Throughout the 1970s and 1980s under the Warren, and afterwards, the
Burger Court, the rationale in Sherbert continued to be applied. In Thomas v.
Review Board[177] and Hobbie v. Unemployment Appeals Division,[178] for
example, the Court reiterated the exemption doctrine and held that in the
absence of a compelling justification, a state could not withhold
unemployment compensation from an employee who resigned or was
discharged due to unwillingness to depart from religious practices and beliefs
that conflicted with job requirements. But not every governmental refusal to
allow an exemption from a regulation which burdens a sincerely held religious
belief has been invalidated, even though strict or heightened scrutiny is
applied. In United States v. Lee,[179] for instance, the Court using strict
scrutiny and referring to Thomas, upheld the federal governments refusal to
exempt Amish employers who requested for exemption from paying social
security taxes on wages on the ground of religious beliefs. The Court held that
(b)ecause the broad public interest in maintaining a sound tax system is of
such a high order, religious belief in conflict with the payment of taxes affords
no basis for resisting the tax.[180] It reasoned that unlike in Sherbert, an
exemption would significantly impair governments achievement of its
objective - the fiscal vitality of the social security system; mandatory
participation is indispensable to attain this objective. The Court noted that if
an exemption were made, it would be hard to justify not allowing a similar
exemption from general federal taxes where the taxpayer argues that his
religious beliefs require him to reduce or eliminate his payments so that he
will not contribute to the governments war-related activities, for example.
The strict scrutiny and compelling state interest test significantly increased
the degree of protection afforded to religiously motivated conduct. While not
affording absolute immunity to religious activity, a compelling secular
justification was necessary to uphold public policies that collided with
religious practices. Although the members of the Court often disagreed over
which governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of
religion.[181]
Heightened scrutiny was also used in the 1972 case of Wisconsin v.

Yoder[182] where the Court upheld the religious practice of the Old Order
Amish faith over the states compulsory high school attendance law. The
Amish parents in this case did not permit secular education of their children
beyond the eighth grade. Chief Justice Burger, writing for the majority, held,
viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs, and
buttressing this fundamental right was an equally firm, even if less explicit,
prohibition against the establishment of any religion. The values underlying
these two provisions relating to religion have been zealously protected,
sometimes even at the expense of other interests of admittedly high social
importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that that religiously grounded
conduct is always outside the protection of the Free Exercise Clause. It is true
that activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote
the health, safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not
to deny that there are areas of conduct protected by the Free Exercise Clause
of the First Amendment and thus beyond the power of the State to control,
even under regulations of general applicability. . . .This case, therefore, does
not become easier because respondents were convicted for their actions in
refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . . [183]
The onset of the 1990s, however, saw a major setback in the protection
afforded by the Free Exercise Clause. In Employment Division, Oregon
Department of Human Resources v. Smith,[184] the sharply divided
Rehnquist Court dramatically departed from the heightened scrutiny and
compelling justification approach and imposed serious limits on the scope of
protection of religious freedom afforded by the First Amendment. In this case,
the well-established practice of the Native American Church, a sect outside
the Judeo-Christian mainstream of American religion, came in conflict with
the states interest in prohibiting the use of illicit drugs. Oregons controlled
substances statute made the possession of peyote a criminal offense. Two
members of the church, Smith and Black, worked as drug rehabilitation
counselors for a private social service agency in Oregon. Along with other
church members, Smith and Black ingested peyote, a hallucinogenic drug, at
a sacramental ceremony practiced by Native Americans for hundreds of
years. The social service agency fired Smith and Black citing their use of
peyote as job-related misconduct. They applied for unemployment
compensation, but the Oregon Employment Appeals Board denied their
application as they were discharged for job-related misconduct. Justice Scalia,
writing for the majority, ruled that if prohibiting the exercise of religion . . . is
. . . merely the incidental effect of a generally applicable and otherwise valid
law, the First Amendment has not been offended. In other words, the Free
Exercise Clause would be offended only if a particular religious practice were
singled out for proscription. The majority opinion relied heavily on the
Reynolds case and in effect, equated Oregons drug prohibition law with the
anti-polygamy statute in Reynolds. The relevant portion of the majority
opinion held, viz:
We have never invalidated any governmental action on the basis of the
Sherbert test except the denial of unemployment compensation.
Even if we were inclined to breathe into Sherbert some life beyond the
unemployment compensation field, we would not apply it to require
exemptions from a generally applicable criminal law. . .
We conclude today that the sounder approach, and the approach in accord
with the vast majority of our precedents, is to hold the test inapplicable to
such challenges. The governments ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry out other
aspects of public policy, cannot depend on measuring the effects of a
governmental action on a religious objectors spiritual development. . . .To
make an individuals obligation to obey such a law contingent upon the laws
coincidence with his religious beliefs except where the States interest is
compelling - permitting him, by virtue of his beliefs, to become a law unto
himself, . . . - contradicts both constitutional tradition and common sense.
Justice OConnor wrote a concurring opinion pointing out that the majoritys
rejection of the compelling governmental interest test was the most
controversial part of the decision. Although she concurred in the result that
the Free Exercise Clause had not been offended, she sharply criticized the
majority opinion as a dramatic departure from well-settled First Amendment
jurisprudence. . . and . . . (as) incompatible with our Nations fundamental
commitment to religious liberty. This portion of her concurring opinion was
supported by Justices Brennan, Marshall and Blackmun who dissented from
the Courts decision. Justice OConnor asserted that (t)he compelling state
interest test effectuates the First Amendments command that religious
liberty is an independent liberty, that it occupies a preferred position, and
that the Court will not permit encroachments upon this liberty, whether
direct or indirect, unless required by clear and compelling government
interest of the highest order. Justice Blackmun registered a separate
dissenting opinion, joined by Justices Brennan and Marshall. He charged the
majority with mischaracterizing precedents and overturning. . . settled law
concerning the Religion Clauses of our Constitution. He pointed out that the
Native American Church restricted and supervised the sacramental use of
peyote. Thus, the state had no significant health or safety justification for
regulating the sacramental drug use. He also observed that Oregon had not
attempted to prosecute Smith or Black, or any Native Americans, for that
matter, for the sacramental use of peyote. In conclusion, he said that Oregons
interest in enforcing its drug laws against religious use of peyote (was) not
sufficiently compelling to outweigh respondents right to the free exercise of
their religion.
The Court went back to the Reynolds and Gobitis doctrine in Smith. The Courts
standard in Smith virtually eliminated the requirement that the government
justify with a compelling state interest the burdens on religious exercise
imposed by laws neutral toward religion. The Smith doctrine is highly
unsatisfactory in several respects and has been criticized as exhibiting a
shallow understanding of free exercise jurisprudence.[185] First, the First
amendment was intended to protect minority religions from the tyranny of
the religious and political majority. A deliberate regulatory interference with
minority religious freedom is the worst form of this tyranny. But regulatory
interference with a minority religion as a result of ignorance or sensitivity of
the religious and political majority is no less an interference with the
minoritys religious freedom. If the regulation had instead restricted the
majoritys religious practice, the majoritarian legislative process would in all
probability have modified or rejected the regulation. Thus, the imposition of
the political majoritys non-religious objectives at the expense of the minoritys
religious interests implements the majoritys religious viewpoint at the
expense of the minoritys. Second, government impairment of religious liberty
would most often be of the inadvertent kind as in Smith considering the
political culture where direct and deliberate regulatory imposition of religious
orthodoxy is nearly inconceivable. If the Free Exercise Clause could not afford
protection to inadvertent interference, it would be left almost meaningless.
Third, the Reynolds-Gobitis-Smith doctrine simply defies common sense. The
state should not be allowed to interfere with the most deeply held
fundamental religious convictions of an individual in order to pursue some
trivial state economic or bureaucratic objective. This is especially true when
there are alternative approaches for the state to effectively pursue its
objective without serious inadvertent impact on religion.[186]
Thus, the Smith decision has been criticized not only for increasing the power
of the state over religion but as discriminating in favor of mainstream religious
groups against smaller, more peripheral groups who lack legislative
clout,[187] contrary to the original theory of the First Amendment.[188]
Undeniably, claims for judicial exemption emanate almost invariably from
relatively politically powerless minority religions and Smith virtually wiped
out their judicial recourse for exemption.[189] Thus, the Smith decision
elicited much negative public reaction especially from the religious
community, and commentaries insisted that the Court was allowing the Free
Exercise Clause to disappear.[190] So much was the uproar that a majority in
Congress was convinced to enact the Religious Freedom Restoration Act
(RFRA) of 1993. The RFRA prohibited government at all levels from
substantially burdening a persons free exercise of religion, even if such
burden resulted from a generally applicable rule, unless the government
could demonstrate a compelling state interest and the rule constituted the
least restrictive means of furthering that interest.[191] RFRA, in effect, sought
to overturn the substance of the Smith ruling and restore the status quo prior
to Smith. Three years after the RFRA was enacted, however, the Court,
dividing 6 to 3, declared the RFRA unconstitutional in City of Boerne v.
Flores.[192] The Court ruled that RFRA contradicts vital principles necessary
to maintain separation of powers and the federal balance. It emphasized the
primacy of its role as interpreter of the Constitution and unequivocally
rejected, on broad institutional grounds, a direct congressional challenge of
final judicial authority on a question of constitutional interpretation.
After Smith came Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah[193]
which was ruled consistent with the Smith doctrine. This case involved animal
sacrifice of the Santeria, a blend of Roman Catholicism and West African
religions brought to the Carribean by East African slaves. An ordinance made
it a crime to unnecessarily kill, torment, torture, or mutilate an animal in
public or private ritual or ceremony not for the primary purpose of food
consumption. The ordinance came as a response to the local concern over the
sacrificial practices of the Santeria. Justice Kennedy, writing for the majority,
carefully pointed out that the questioned ordinance was not a generally
applicable criminal prohibition, but instead singled out practitioners of the
Santeria in that it forbade animal slaughter only insofar as it took place within
the context of religious rituals.
It may be seen from the foregoing cases that under the Free Exercise Clause,
religious belief is absolutely protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to non-religious speech,
and unconventional religious practice receives less protection; nevertheless
conduct, even if its violates a law, could be accorded protection as shown in
Wisconsin.[194]
B. Establishment Clause
The Courts first encounter with the Establishment Clause was in the 1947 case
of Everson v. Board of Education.[195] Prior cases had made passing
reference to the Establishment Clause[196] and raised establishment
questions but were decided on other grounds.[197] It was in the Everson case
that the U.S. Supreme Court adopted Jeffersons metaphor of a wall of
separation between church and state as encapsulating the meaning of the
Establishment Clause. The often and loosely used phrase separation of church
and state does not appear in the U.S. Constitution. It became part of U.S.
jurisprudence when the Court in the 1878 case of Reynolds v. United
States[198] quoted Jeffersons famous letter of 1802 to the Danbury Baptist
Association in narrating the history of the religion clauses, viz:
Believing with you that religion is a matter which lies solely between man and
his God; that he owes account to none other for his faith or his worship; that
the legislative powers of the Government reach actions only, and not
opinions, I contemplate with sovereign reverence that act of the whole
American people which declared that their Legislature should make no law
respecting an establishment of religion or prohibiting the free exercise
thereof, thus building a wall of separation between Church and State.[199]
(emphasis supplied)
Chief Justice Waite, speaking for the majority, then added, (c)oming as this
does from an acknowledged leader of the advocates of the measure, it may
be accepted almost as an authoritative declaration of the scope and effect of
the amendment thus secured.[200]
The interpretation of the Establishment Clause has in large part been in cases
involving education, notably state aid to private religious schools and prayer
in public schools.[201] In Everson v. Board of Education, for example, the
issue was whether a New Jersey local school board could reimburse parents
for expenses incurred in transporting their children to and from Catholic
schools. The reimbursement was part of a general program under which all
parents of children in public schools and nonprofit private schools, regardless
of religion, were entitled to reimbursement for transportation costs. Justice
Hugo Black, writing for a sharply divided Court, justified the reimbursements
on the child benefit theory, i.e., that the school board was merely furthering
the states legitimate interest in getting children regardless of their religion,
safely and expeditiously to and from accredited schools. The Court, after
narrating the history of the First Amendment in Virginia, interpreted the
Establishment Clause, viz:
The establishment of religion clause of the First Amendment means at least

this: Neither a state nor the Federal Government can set up a church. Neither
can pass laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or remain
away from church against his will or force him to profess a belief or disbelief
in any religion. No person can be punished for entertaining or professing
religious beliefs or disbeliefs, for church attendance or non-attendance. No
tax in any amount, large or small, can be levied to support any religious
activities or institutions, whatever they may be called, or whatever form they
may adopt to teach or practice religion. Neither a state nor the Federal
Government can, openly or secretly participate in the affairs of any religious
organizations or groups and vice versa. In the words of Jefferson, the clause
against establishment of religion by law was intended to erect a wall of
separation between Church and State.[202]
The Court then ended the opinion, viz:
The First Amendment has erected a wall between church and state. That wall
must be kept high and impregnable. We could not approve the slightest
breach. New Jersey has not breached it here.[203]
By 1971, the Court integrated the different elements of the Courts
Establishment Clause jurisprudence that evolved in the 1950s and 1960s and
laid down a three-pronged test in Lemon v. Kurtzman[204] in determining the
constitutionality of policies challenged under the Establishment Clause. This
case involved a Pennsylvania statutory program providing publicly funded
reimbursement for the cost of teachers salaries, textbooks, and instructional
materials in secular subjects and a Rhode Island statute providing salary
supplements to teachers in parochial schools. The Lemon test requires a
challenged policy to meet the following criteria to pass scrutiny under the
Establishment Clause. First, the statute must have a secular legislative
purpose; second, its primary or principal effect must be one that neither
advances nor inhibits religion (Board of Education v. Allen, 392 US 236, 243,
20 L Ed 2d 1060, 1065, 88 S Ct 1923 [1968]); finally, the statute must not foster
an excessive entanglement with religion. (Walz v.Tax Commission, 397 US
664, 668, 25 L Ed 2d 697, 701, 90 S Ct 1409 [1970]) (emphasis supplied)[205]
Using this test, the Court held that the Pennsylvania statutory program and
Rhode Island statute were unconstitutional as fostering excessive
entanglement between government and religion.
The most controversial of the education cases involving the Establishment

Clause are the school prayer decisions. Few decisions of the modern Supreme
Court have been criticized more intensely than the school prayer decisions of
the early 1960s.[206] In the 1962 case of Engel v. Vitale,[207] the Court
invalidated a New York Board of Regents policy that established the voluntary
recitation of a brief generic prayer by children in the public schools at the start
of each school day. The majority opinion written by Justice Black stated that
in this country it is no part of the business of government to compose official
prayers for any group of the American people to recite as part of a religious
program carried on by government. In fact, history shows that this very
practice of establishing governmentally composed prayers for religious
services was one of the reasons that caused many of the early colonists to
leave England and seek religious freedom in America. The Court called to
mind that the first and most immediate purpose of the Establishment Clause
rested on the belief that a union of government and religion tends to destroy
government and to degrade religion. The following year, the Engel decision
was reinforced in Abington School District v. Schempp[208] and Murray v.
Curlett[209] where the Court struck down the practice of Bible reading and
the recitation of the Lords prayer in the Pennsylvania and Maryland schools.
The Court held that to withstand the strictures of the Establishment Clause, a
statute must have a secular legislative purpose and a primary effect that
neither advances nor inhibits religion. It reiterated, viz:
The wholesome neutrality of which this Courts cases speak thus stems from
a recognition of the teachings of history that powerful sects or groups might
bring about a fusion of governmental and religious functions or a concert or
dependency of one upon the other to the end that official support of the State
of Federal Government would be placed behind the tenets of one or of all
orthodoxies. This the Establishment Clause prohibits. And a further reason for
neutrality is found in the Free Exercise Clause, which recognizes the value of
religious training, teaching and observance and, more particularly, the right
of every person to freely choose his own course with reference thereto, free
of any compulsion from the state.[210]
The school prayer decisions drew furious reactions. Religious leaders and
conservative members of Congress and resolutions passed by several state
legislatures condemned these decisions.[211] On several occasions,
constitutional amendments have been introduced in Congress to overturn the
school prayer decisions. Still, the Court has maintained its position and has in
fact reinforced it in the 1985 case of Wallace v. Jaffree[212] where the Court
struck down an Alabama law that required public school students to observe
a moment of silence for the purpose of meditation or voluntary prayer at the
start of each school day.
Religious instruction in public schools has also pressed the Court to interpret
the Establishment Clause. Optional religious instruction within public school
premises and instructional time were declared offensive of the Establishment
Clause in the 1948 case of McCollum v. Board of Education,[213] decided just
a year after the seminal Everson case. In this case, interested members of the
Jewish, Roman Catholic and a few Protestant faiths obtained permission from
the Board of Education to offer classes in religious instruction to public school
students in grades four to nine. Religion classes were attended by pupils
whose parents signed printed cards requesting that their children be
permitted to attend. The classes were taught in three separate groups by
Protestant teachers, Catholic priests and a Jewish rabbi and were held weekly
from thirty to forty minutes during regular class hours in the regular
classrooms of the school building. The religious teachers were employed at
no expense to the school authorities but they were subject to the approval
and supervision of the superintendent of schools. Students who did not
choose to take religious instruction were required to leave their classrooms
and go to some other place in the school building for their secular studies
while those who were released from their secular study for religious
instruction were required to attend the religious classes. The Court held that
the use of tax-supported property for religious instruction and the close
cooperation between the school authorities and the religious council in
promoting religious education amounted to a prohibited use of tax-
established and tax-supported public school system to aid religious groups
spread their faith. The Court rejected the claim that the Establishment Clause
only prohibited government preference of one religion over another and not
an impartial governmental assistance of all religions. In Zorach v.
Clauson,[214] however, the Court upheld released time programs allowing
students in public schools to leave campus upon parental permission to
attend religious services while other students attended study hall. Justice
Douglas, the writer of the opinion, stressed that (t)he First Amendment does
not require that in every and all respects there shall be a separation of Church
and State. The Court distinguished Zorach from McCollum, viz:
In the McCollum case the classrooms were used for religious instruction and
the force of the public school was used to promote that instruction. . . We
follow the McCollum case. But we cannot expand it to cover the present
released time program unless separation of Church and State means that
public institutions can make no adjustments of their schedules to
accommodate the religious needs of the people. We cannot read into the Bill
of Rights such a philosophy of hostility to religion.[215]
In the area of government displays or affirmations of belief, the Court has

given leeway to religious beliefs and practices which have acquired a secular
meaning and have become deeply entrenched in history. For instance, in
McGowan v. Maryland,[216] the Court upheld laws that prohibited certain
businesses from operating on Sunday despite the obvious religious
underpinnings of the restrictions. Citing the secular purpose of the Sunday
closing laws and treating as incidental the fact that this day of rest happened
to be the day of worship for most Christians, the Court held, viz:
It is common knowledge that the first day of the week has come to have
special significance as a rest day in this country. People of all religions and
people with no religion regard Sunday as a time for family activity, for visiting
friends and relatives, for later sleeping, for passive and active entertainments,
for dining out, and the like.[217]
In the 1983 case of Marsh v. Chambers,[218] the Court refused to invalidate

Nebraskas policy of beginning legislative sessions with prayers offered by a
Protestant chaplain retained at the taxpayers expense. The majority opinion
did not rely on the Lemon test and instead drew heavily from history and the
need for accommodation of popular religious beliefs, viz:
In light of the unambiguous and unbroken history of more than 200 years,
there can be no doubt that the practice of opening legislative sessions with
prayer has become the fabric of our society. To invoke Divine guidance on a
public body entrusted with making the laws is not, in these circumstances, an
establishment of religion or a step toward establishment; it is simply a
tolerable acknowledgement of beliefs widely held among the people of this
country. As Justice Douglas observed, (w)e are a religious people whose
institutions presuppose a Supreme Being. (Zorach c. Clauson, 343 US 306, 313
[1952])[219] (emphasis supplied)
Some view the Marsh ruling as a mere aberration as the Court would
inevitably be embarrassed if it were to attempt to strike down a practice that
occurs in nearly every legislature in the United States, including the U.S.
Congress.[220] That Marsh was not an aberration is suggested by subsequent
cases. In the 1984 case of Lynch v. Donnelly,[221] the Court upheld a city-
sponsored nativity scene in Rhode Island. By a 5-4 decision, the majority
opinion hardly employed the Lemon test and again relied on history and the
fact that the creche had become a neutral harbinger of the holiday season for
many, rather than a symbol of Christianity.
The Establishment Clause has also been interpreted in the area of tax
exemption. By tradition, church and charitable institutions have been exempt
from local property taxes and their income exempt from federal and state
income taxes. In the 1970 case of Walz v. Tax Commission,[222] the New York
City Tax Commissions grant of property tax exemptions to churches as
allowed by state law was challenged by Walz on the theory that this required
him to subsidize those churches indirectly. The Court upheld the law stressing
its neutrality, viz:
It has not singled out one particular church or religious group or even
churches as such; rather, it has granted exemptions to all houses of religious
worship within a broad class of property owned by non-profit, quasi-public
corporations . . . The State has an affirmative policy that considers these
groups as beneficial and stabilizing influences in community life and finds this
classification useful, desirable, and in the public interest.[223]
The Court added that the exemption was not establishing religion but sparing
the exercise of religion from the burden of property taxation levied on private
profit institutions[224] and preventing excessive entanglement between
state and religion. At the same time, the Court acknowledged the long-
standing practice of religious tax exemption and the Courts traditional
deference to legislative bodies with respect to the taxing power, viz:
(f)ew concepts are more deeply embedded in the fabric of our national life,
beginning with pre-Revolutionary colonial times, than for the government to
exercise . . . this kind of benevolent neutrality toward churches and religious
exercise generally so long as none was favored over others and none suffered
interference.[225] (emphasis supplied)
C. Strict Neutrality v. Benevolent Neutrality
To be sure, the cases discussed above, while citing many landmark decisions
in the religious clauses area, are but a small fraction of the hundreds of
religion clauses cases that the U.S. Supreme Court has passed upon. Court
rulings contrary to or making nuances of the above cases may be cited.
Professor McConnell poignantly recognizes this, viz:
Thus, as of today, it is constitutional for a state to hire a Presbyterian minister

to lead the legislature in daily prayers (Marsh v. Chambers, 463 US783, 792-
93[1983]), but unconstitutional for a state to set aside a moment of silence in
the schools for children to pray if they want to (Wallace v. Jaffree, 472 US 38,
56 [1985]). It is unconstitutional for a state to require employers to
accommodate their employees work schedules to their sabbath observances
(Estate of Thornton v. Caldor, Inc., 472 US 703, 709-10 [1985]) but
constitutionally mandatory for a state to require employers to pay workers
compensation when the resulting inconsistency between work and sabbath
leads to discharge (. . .Sherbert v. Verner, 374 US 398, 403-4 [1963]). It is
constitutional for the government to give money to religiously-affiliated
organizations to teach adolescents about proper sexual behavior (Bowen v.
Kendrick, 487 US 589, 611 [1988]), but not to teach them science or history
(Lemon v. Kurtzman, 403 US 602, 618-619 [1971]). It is constitutional for the
government to provide religious school pupils with books (Board of Education
v. Allen, 392 US 236, 238 [1968]), but not with maps (Wolman v. Walter, 433
US 229, 249-51 [1977]); with bus rides to religious schools (Everson v. Board
of Education, 330 US 1, 17 [1947]), but not from school to a museum on a
field trip (Wolman v. Walter, 433 US 229, 252-55 [1977]); with cash to pay for
state-mandated standardized tests (Committee for Pub. Educ. and Religious
Liberty v. Regan, 444 US 646, 653-54 [1980]), but not to pay for safety-related
maintenance (Committee for Pub. Educ v. Nyquist, 413 US 756, 774-80
[1973]). It is a mess.[226]
But the purpose of the overview is not to review the entirety of the U.S.
religion clause jurisprudence nor to extract the prevailing case law regarding
particular religious beliefs or conduct colliding with particular government
regulations. Rather, the cases discussed above suffice to show that, as legal
scholars observe, this area of jurisprudence has demonstrated two main
standards used by the Court in deciding religion clause cases: separation (in
the form of strict separation or the tamer version of strict neutrality or
separation) and benevolent neutrality or accommodation. The weight of
current authority, judicial and in terms of sheer volume, appears to lie with
the separationists, strict or tame.[227] But the accommodationists have also
attracted a number of influential scholars and jurists.[228] The two standards
producing two streams of jurisprudence branch out respectively from the
history of the First Amendment in England and the American colonies and
climaxing in Virginia as narrated in this opinion and officially acknowledged
by the Court in Everson, and from American societal life which reveres religion
and practices age-old religious traditions. Stated otherwise, separation - strict
or tame - protects the principle of church-state separation with a rigid reading
of the principle while benevolent neutrality protects religious realities,
tradition and established practice with a flexible reading of the principle.[229]
The latter also appeals to history in support of its position, viz:
The opposing school of thought argues that the First Congress intended to
allow government support of religion, at least as long as that support did not
discriminate in favor of one particular religion. . . the Supreme Court has
overlooked many important pieces of history. Madison, for example, was on
the congressional committee that appointed a chaplain, he declared several
national days of prayer and fasting during his presidency, and he sponsored
Jeffersons bill for punishing Sabbath breakers; moreover, while president,
Jefferson allowed federal support of religious missions to the Indians. . . And
so, concludes one recent book, there is no support in the Congressional
records that either the First Congress, which framed the First Amendment, or
its principal author and sponsor, James Madison, intended that Amendment
to create a state of complete independence between religion and
government. In fact, the evidence in the public documents goes the other
way.[230] (emphasis supplied)
To succinctly and poignantly illustrate the historical basis of benevolent
neutrality that gives room for accommodation, less than twenty-four hours
after Congress adopted the First Amendments prohibition on laws respecting
an establishment of religion, Congress decided to express its thanks to God
Almighty for the many blessings enjoyed by the nation with a resolution in
favor of a presidential proclamation declaring a national day of Thanksgiving
and Prayer. Only two members of Congress opposed the resolution, one on
the ground that the move was a mimicking of European customs, where they
made a mere mockery of thanksgivings, the other on establishment clause
concerns. Nevertheless, the salutary effect of thanksgivings throughout
Western history was acknowledged and the motion was passed without
further recorded discussion.[231] Thus, accommodationists also go back to
the framers to ascertain the meaning of the First Amendment, but prefer to
focus on acts rather than words. Contrary to the claim of separationists that
rationalism pervaded America in the late 19th century and that America was
less specifically Christian during those years than at any other time before or
since,[232] accommodationaists claim that American citizens at the time of
the Constitutions origins were a remarkably religious people in particularly
Christian terms.[233]
The two streams of jurisprudence - separationist or accommodationist - are

anchored on a different reading of the wall of separation. The strict
separtionist view holds that Jefferson meant the wall of separation to protect
the state from the church. Jefferson was a man of the Enlightenment Era of
the eighteenth century, characterized by the rationalism and anticlericalism
of that philosophic bent.[234] He has often been regarded as espousing
Deism or the rationalistic belief in a natural religion and natural law divorced
from its medieval connection with divine law, and instead adhering to a
secular belief in a universal harmony.[235] Thus, according to this
Jeffersonian view, the Establishment Clause being meant to protect the state
from the church, the states hostility towards religion allows no interaction
between the two.[236] In fact, when Jefferson became President, he refused
to proclaim fast or thanksgiving days on the ground that these are religious
exercises and the Constitution prohibited the government from
intermeddling with religion.[237] This approach erects an absolute barrier to
formal interdependence of religion and state. Religious institutions could not
receive aid, whether direct or indirect, from the state. Nor could the state
adjust its secular programs to alleviate burdens the programs placed on
believers.[238] Only the complete separation of religion from politics would
eliminate the formal influence of religious institutions and provide for a free
choice among political views thus a strict wall of separation is necessary.[239]
Strict separation faces difficulties, however, as it is deeply embedded in
history and contemporary practice that enormous amounts of aid, both direct
and indirect, flow to religion from government in return for huge amounts of
mostly indirect aid from religion. Thus, strict separationists are caught in an
awkward position of claiming a constitutional principle that has never existed
and is never likely to.[240]
A tamer version of the strict separationist view, the strict neutrality or

separationist view is largely used by the Court, showing the Courts tendency
to press relentlessly towards a more secular society.[241] It finds basis in the
Everson case where the Court declared that Jeffersons wall of separation
encapsulated the meaning of the First Amendment but at the same time held
that the First Amendment requires the state to be neutral in its relations with
groups of religious believers and non-believers; it does not require the state
to be their adversary. State power is no more to be used so as to handicap
religions than it is to favor them. (emphasis supplied)[242] While the strict
neutrality approach is not hostile to religion, it is strict in holding that religion
may not be used as a basis for classification for purposes of governmental
action, whether the action confers rights or privileges or imposes duties or
obligations. Only secular criteria may be the basis of government action. It
does not permit, much less require, accommodation of secular programs to
religious belief.[243] Professor Kurland wrote, viz:
The thesis proposed here as the proper construction of the religion clauses of
the first amendment is that the freedom and separation clauses should be
read as a single precept that government cannot utilize religion as a standard
for action or inaction because these clauses prohibit classification in terms of
religion either to confer a benefit or to impose a burden.[244]
The Court has repeatedly declared that religious freedom means government
neutrality in religious matters and the Court has also repeatedly interpreted
this policy of neutrality to prohibit government from acting except for secular
purposes and in ways that have primarily secular effects.[245]
Prayer in public schools is an area where the Court has applied strict neutrality
and refused to allow any form of prayer, spoken or silent, in the public schools
as in Engel and Schempp.[246] The McCollum case prohibiting optional
religious instruction within public school premises during regular class hours
also demonstrates strict neutrality. In these education cases, the Court
refused to uphold the government action as they were based not on a secular
but on a religious purpose. Strict neutrality was also used in Reynolds and
Smith which both held that if government acts in pursuit of a generally
applicable law with a secular purpose that merely incidentally burdens
religious exercise, the First Amendment has not been offended. However, if
the strict neutrality standard is applied in interpreting the Establishment
Clause, it could de facto void religious expression in the Free Exercise Clause.
As pointed out by Justice Goldberg in his concurring opinion in Schempp, strict
neutrality could lead to a brooding and pervasive devotion to the secular and
a passive, or even active, hostility to the religious which is prohibited by the
Constitution.[247] Professor Laurence Tribe commented in his authoritative
treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion
but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the Supreme Court has
rejected strict neutrality, permitting and sometimes mandating religious
classifications.[248]
The separationist approach, whether strict or tame, is caught in a dilemma

because while the Jeffersonian wall of separation captures the spirit of the
American ideal of church-state separation, in real life church and state are not
and cannot be totally separate.[249] This is all the more true in contemporary
times when both the government and religion are growing and expanding
their spheres of involvement and activity, resulting in the intersection of
government and religion at many points.[250]
Consequently, the Court has also decided cases employing benevolent

neutrality. Benevolent neutrality which gives room for accommodation is
buttressed by a different view of the wall of separation associated with
Williams, founder of the Rhode Island colony. In Mark DeWolfe Howes classic,
The Garden and the Wilderness, he asserts that to the extent the Founders
had a wall of separation in mind, it was unlike the Jeffersonian wall that is
meant to protect the state from the church; instead, the wall is meant to
protect the church from the state,[251] i.e., the garden of the church must be
walled in for its own protection from the wilderness of the world[252] with
its potential for corrupting those values so necessary to religious
commitment.[253] Howe called this the theological or evangelical rationale
for church-state separation while the wall espoused by enlightened
statesmen such as Jefferson and Madison, was a political rationale seeking to
protect politics from intrusions by the church.[254] But it has been asserted
that this contrast between the Williams and Jeffersonian positions is more
accurately described as a difference in kinds or styles of religious thinking, not
as a conflict between religious and secular (political); the religious style was
biblical and evangelical in character while the secular style was grounded in
natural religion, more generic and philosophical in its religious
orientation.[255]
The Williams wall is, however, breached for the church is in the state and so
the remaining purpose of the wall is to safeguard religious liberty. Williams
view would therefore allow for interaction between church and state, but is
strict with regard to state action which would threaten the integrity of
religious commitment.[256] His conception of separation is not total such
that it provides basis for certain interactions between church and state
dictated by apparent necessity or practicality.[257] This theological view of
separation is found in Williams writings, viz:
. . . when they have opened a gap in the hedge or wall of separation between
the garden of the church and the wilderness of the world, God hath ever
broke down the wall itself, removed the candlestick, and made his garden a
wilderness, as this day. And that therefore if He will eer please to restore His
garden and paradise again, it must of necessity be walled in peculiarly unto
Himself from the world. . .[258]
Chief Justice Burger spoke of benevolent neutrality in Walz, viz:

The general principle deducible from the First Amendment and all that has
been said by the Court is this: that we will not tolerate either governmentally
established religion or governmental interference with religion. Short of
those expressly proscribed governmental acts there is room for play in the
joints productive of a benevolent neutrality which will permit religious
exercise to exist without sponsorship and without interference.[259]
(emphasis supplied)
The Zorach case expressed the doctrine of accommodation,[260] viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; so help me God in our
courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: God save the United
States and this Honorable Court.
xxx xxx xxx

We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to find
in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious
influence.[261] (emphases supplied)
Benevolent neutrality is congruent with the sociological proposition that

religion serves a function essential to the survival of society itself, thus there
is no human society without one or more ways of performing the essential
function of religion. Although for some individuals there may be no felt need
for religion and thus it is optional or even dispensable, for society it is not,
which is why there is no human society without one or more ways of
performing the essential function of religion. Even in ostensibly atheistic
societies, there are vigorous underground religion(s) and surrogate religion(s)
in their ideology.[262] As one sociologist wrote:
It is widely held by students of society that there are certain functional

prerequisites without which society would not continue to exist. At first
glance, this seems to be obvious - scarcely more than to say that an
automobile could not exist, as a going system, without a carburetor. . . Most
writers list religion among the functional prerequisites.[263]
Another noted sociologist, Talcott Parsons, wrote: There is no known human
society without something which modern social scientists would classify as a
religionReligion is as much a human universal as language.[264]
Benevolent neutrality thus recognizes that religion plays an important role in

the public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of In God We Trust on American currency,
the recognition of America as one nation under God in the official pledge of
allegiance to the flag, the Supreme Courts time-honored practice of opening
oral argument with the invocation God save the United States and this
honorable Court, and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination to lead
representatives in prayer.[265] These practices clearly show the preference
for one theological viewpoint -the existence of and potential for intervention
by a god - over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and
in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral
dimension.[266] The persistence of these de facto establishments are in large
part explained by the fact that throughout history, the evangelical theory of
separation, i.e., Williams wall, has demanded respect for these de facto
establishments.[267] But the separationists have a different explanation. To
characterize these as de jure establishments according to the principle of the
Jeffersonian wall, the U.S. Supreme Court, the many dissenting and
concurring opinions explain some of these practices as de minimis instances
of government endorsement or as historic governmental practices that have
largely lost their religious significance or at least have proven not to lead the
government into further involvement with religion.[268]
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the governments favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a persons or institutions religion. As Justice Brennan explained,
the government [may] take religion into accountto exempt, when possible,
from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in which voluntary religious
exercise may flourish.[269] (emphasis supplied) Accommodation is
forbearance and not alliance. it does not reflect agreement with the minority,
but respect for the conflict between the temporal and spiritual authority in
which the minority finds itself.[270]
Accommodation is distinguished from strict neutrality in that the latter holds

that government should base public policy solely on secular considerations,
without regard to the religious consequences of its actions. The debate
between accommodation and strict neutrality is at base a question of means:
Is the freedom of religion best achieved when the government is conscious of
the effects of its action on the various religious practices of its people, and
seeks to minimize interferences with those practices? Or is it best advanced
through a policy of religious blindness - keeping government aloof from
religious practices and issues? An accommodationist holds that it is good
public policy, and sometimes constitutionally required, for the state to make
conscious and deliberate efforts to avoid interference with religious freedom.
On the other hand, the strict neutrality adherent believes that it is good public
policy, and also constitutionally required, for the government to avoid
religion-specific policy even at the cost of inhibiting religious exercise.[271]
There are strong and compelling reasons, however, to take the
accommodationist position rather than the strict neutrality position. First, the
accommodationist interpretation is most consistent with the language of the
First Amendment. The religion clauses contain two parallel provisions, both
specifically directed at religion. The government may not establish religion
and neither may government prohibit it. Taken together, the religion clauses
can be read most plausibly as warding off two equal and opposite threats to
religious freedom - government action that promotes the (political) majoritys
favored brand of religion and government action that impedes religious
practices not favored by the majority. The substantive end in view is the
preservation of the autonomy of religious life and not just the formal process
value of ensuring that government does not act on the basis of religious bias.
On the other hand, strict neutrality interprets the religion clauses as allowing
government to do whatever it desires to or for religion, as long as it does the
same to or for comparable secular entities. Thus, for example, if government
prohibits all alcoholic consumption by minors, it can prohibit minors from
taking part in communion. Paradoxically, this view would make the religion
clauses violate the religion clauses, so to speak, since the religion clauses
single out religion by name for special protection. Second, the
accommodationist position best achieves the purposes of the First
Amendment. The principle underlying the First Amendment is that freedom
to carry out ones duties to a Supreme Being is an inalienable right, not one
dependent on the grace of legislature. Although inalienable, it is necessarily
limited by the rights of others, including the public right of peace and good
order. Nevertheless it is a substantive right and not merely a privilege against
discriminatory legislation. The accomplishment of the purpose of the First
Amendment requires more than the religion blindness of strict neutrality.
With the pervasiveness of government regulation, conflicts with religious
practices become frequent and intense. Laws that are suitable for secular
entities are sometimes inappropriate for religious entities, thus the
government must make special provisions to preserve a degree of
independence for religious entities for them to carry out their religious
missions according to their religious beliefs. Otherwise, religion will become
just like other secular entities subject to pervasive regulation by majoritarian
institutions. Third, the accommodationist interpretation is particularly
necessary to protect adherents of minority religions from the inevitable
effects of majoritarianism, which include ignorance and indifference and
overt hostility to the minority. In a democratic republic, laws are inevitably
based on the presuppositions of the majority, thus not infrequently, they
come into conflict with the religious scruples of those holding different world
views, even in the absence of a deliberate intent to interfere with religious
practice. At times, this effect is unavoidable as a practical matter because
some laws are so necessary to the common good that exceptions are
intolerable. But in other instances, the injury to religious conscience is so
great and the advancement of public purposes so small or incomparable that
only indifference or hostility could explain a refusal to make exemptions.
Because of plural traditions, legislators and executive officials are frequently
willing to make such exemptions when the need is brought to their attention,
but this may not always be the case when the religious practice is either
unknown at the time of enactment or is for some reason unpopular. In these
cases, a constitutional interpretation that allows accommodations prevents
needless injury to the religious consciences of those who can have an
influence in the legislature; while a constitutional interpretation that requires
accommodations extends this treatment to religious faiths that are less able
to protect themselves in the political arena. Fourth, the accommodationist
position is practical as it is a commonsensical way to deal with the various
needs and beliefs of different faiths in a pluralistic nation. Without
accommodation, many otherwise beneficial laws would interfere severely
with religious freedom. Aside from laws against serving alcoholic beverages
to minors conflicting with celebration of communion, regulations requiring
hard hats in construction areas can effectively exclude Amish and Sikhs from
the workplace, or employment anti-discrimination laws can conflict with the
Roman Catholic male priesthood, among others. Exemptions from such laws
are easy to craft and administer and contribute much to promoting religious
freedom at little cost to public policy. Without exemptions, legislature would
be frequently forced to choose between violating religious conscience of a
segment of the population or dispensing with legislation it considers
beneficial to society as a whole. Exemption seems manifestly more
reasonable than either of the alternative: no exemption or no law.[272]
Benevolent neutrality gives room for different kinds of accommodation:

those which are constitutionally compelled, i.e., required by the Free Exercise
Clause; and those which are discretionary or legislative, i.e., and those not
required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause.[273] Some Justices of the Supreme Court have also
used the term accommodation to describe government actions that
acknowledge or express prevailing religious sentiments of the community
such as display of a religious symbol on public property or the delivery of a
prayer at public ceremonial events.[274] Stated otherwise, using benevolent
neutrality as a standard could result to three situations of accommodation:
those where accommodation is required, those where it is permissible, and
those where it is prohibited. In the first situation, accommodation is required
to preserve free exercise protections and not unconstitutionally infringe on
religious liberty or create penalties for religious freedom. Contrary to the
Smith declaration that free exercise exemptions are intentional government
advancement, these exemptions merely relieve the prohibition on the free
exercise thus allowing the burdened religious adherent to be left alone. The
state must create exceptions to laws of general applicability when these laws
threaten religious convictions or practices in the absence of a compelling
state interest.[275] By allowing such exemptions, the Free Exercise Clause
does not give believers the right or privilege to choose for themselves to
override socially-prescribed decision; it allows them to obey spiritual rather
than temporal authority[276] for those who seriously invoke the Free Exercise
Clause claim to be fulfilling a solemn duty. Religious freedom is a matter less
of rights than duties; more precisely, it is a matter of rights derived from
duties. To deny a person or a community the right to act upon such a duty can
be justified only by appeal to a yet more compelling duty. Of course, those
denied will usually not find the reason for the denial compelling. Because they
may turn out to be right about the duty in question, and because, even if they
are wrong, religion bears witness to that which transcends the political order,
such denials should be rare and painfully reluctant.[277]
The Yoder case is an example where the Court held that the state must
accommodate the religious beliefs of the Amish who objected to enrolling
their children in high school as required by law. The Sherbert case is another
example where the Court held that the state unemployment compensation
plan must accommodate the religious convictions of Sherbert.[278] In these
cases of burdensome effect, the modern approach of the Court has been to
apply strict scrutiny, i.e., to declare the burden as permissible, the Court
requires the state to demonstrate that the regulation which burdens the
religious exercise pursues a particularly important or compelling government
goal through the least restrictive means. If the states objective could be
served as well or almost as well by granting an exemption to those whose
religious beliefs are burdened by the regulation, such an exemption must be
given.[279] This approach of the Court on burdensome effect was only
applied since the 1960s. Prior to this time, the Court took the separationist
view that as long as the state was acting in pursuit of non-religious ends and
regulating conduct rather than pure religious beliefs, the Free Exercise Clause
did not pose a hindrance such as in Reynolds.[280] In the second situation
where accommodation is permissible, the state may, but is not required to,
accommodate religious interests. The Walz case illustrates this situation
where the Court upheld the constitutionality of tax exemption given by New
York to church properties, but did not rule that the state was required to
provide tax exemptions. The Court declared that (t)he limits of permissible
state accommodation to religion are by no means co-extensive with the
noninterference mandated by the Free Exercise Clause.[281] The Court held
that New York could have an interest in encouraging religious values and
avoiding threats to those values through the burden of property taxes. Other
examples are the Zorach case allowing released time in public schools and
Marsh allowing payment of legislative chaplains from public funds. Finally, in
the situation where accommodation is prohibited, establishment concerns
prevail over potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that all
claims for free exercise exemptions are valid.[282] An example where
accommodation was prohibited is McCollum where the Court ruled against
optional religious instruction in the public school premises.[283] In effect, the
last situation would arrive at a strict neutrality conclusion.
In the first situation where accommodation is required, the approach follows

this basic framework:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or compelling) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimants beliefs must
be sincere, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimants religious denomination.
Only beliefs rooted in religion are protected by the Free Exercise Clause;
secular beliefs, however sincere and conscientious, do not suffice.[284]
In other words, a three-step process (also referred to as the two-step

balancing process supra when the second and third steps are combined) as in
Sherbert is followed in weighing the states interest and religious freedom
when these collide. Three questions are answered in this process. First, (h)as
the statute or government action created a burden on the free exercise of
religion? The courts often look into the sincerity of the religious belief, but
without inquiring into the truth of the belief because the Free Exercise Clause
prohibits inquiring about its truth as held in Ballard and Cantwell. The
sincerity of the claimants belief is ascertained to avoid the mere claim of
religious beliefs to escape a mandatory regulation. As evidence of sincerity,
the U.S. Supreme Court has considered historical evidence as in Wisconsin
where the Amish people had held a long-standing objection to enrolling their
children in ninth and tenth grades in public high schools. In another case,
Dobkin v. District of Columbia,[285] the Court denied the claim of a party who
refused to appear in court on Saturday alleging he was a Sabbatarian, but the
Court noted that he regularly conducted business on Saturday. Although it is
true that the Court might erroneously deny some claims because of a
misjudgment of sincerity, this is not as argument to reject all claims by not
allowing accommodation as a rule. There might be injury to the particular
claimant or to his religious community, but for the most part, the injustice is
done only in the particular case.[286] Aside from the sincerity, the court may
look into the centrality of those beliefs, assessing them not on an objective
basis but in terms of the opinion and belief of the person seeking exemption.
In Wisconsin, for example, the Court noted that the Amish peoples
convictions against becoming involved in public high schools were central to
their way of life and faith. Similarly, in Sherbert, the Court concluded that the
prohibition against Saturday work was a cardinal principle.[287] Professor
Lupu puts to task the person claiming exemption, viz:
On the claimants side, the meaning and significance of the relevant religious
practice must be demonstrated. Religious command should outweigh
custom, individual conscience should count for more than personal
convenience, and theological principle should be of greater significance than
institutional ease. Sincerity matters, (footnote omitted) and longevity of
practice - both by the individual and within the individuals religious tradition
- reinforces sincerity. Most importantly, the law of free exercise must be
inclusive and expansive, recognizing non-Christian religions - eastern,
Western, aboriginal and otherwise - as constitutionally equal to their Christian
counterparts, and accepting of the intensity and scope of fundamentalist
creed.[288]
Second, the court asks: (i)s there a sufficiently compelling state interest to
justify this infringement of religious liberty? In this step, the government has
to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted.[289] The person
claiming religious freedom, on the other hand, will endeavor to show that the
interest is not legitimate or that the purpose, although legitimate, is not
compelling compared to infringement of religious liberty. This step involves
balancing, i.e., weighing the interest of the state against religious liberty to
determine which is more compelling under the particular set of facts. The
greater the states interests, the more central the religious belief would have
to be to overcome it. In assessing the state interest, the court will have to
determine the importance of the secular interest and the extent to which that
interest will be impaired by an exemption for the religious practice. Should
the court find the interest truly compelling, there will be no requirement that
the state diminish the effectiveness of its regulation by granting the
exemption.[290]
Third, the court asks: (h)as the state in achieving its legitimate purposes used
the least intrusive means possible so that the free exercise is not infringed
any more than necessary to achieve the legitimate goal of the state?[291] The
analysis requires the state to show that the means in which it is achieving its
legitimate state objective is the least intrusive means, i.e., it has chosen a way
to achieve its legitimate state end that imposes as little as possible on
religious liberties. In Cantwell, for example, the Court invalidated the license
requirement for the door-to-door solicitation as it was a forbidden burden on
religious liberty, noting that less drastic means of insuring peace and
tranquility existed. As a whole, in carrying out the compelling state interest
test, the Court should give careful attention to context, both religious and
regulatory, to achieve refined judgment.[292]
In sum, as shown by U.S. jurisprudence on religion clause cases, the

competing values of secular government and religious freedom create
tensions that make constitutional law on the subject of religious liberty
unsettled, mirroring the evolving views of a dynamic society.[293]
VII. Religion Clauses in the Philippines
A. History
Before our country fell under American rule, the blanket of Catholicism
covered the archipelago. There was a union of church and state and
Catholicism was the state religion under the Spanish Constitution of 1876.
Civil authorities exercised religious functions and the friars exercised civil
powers.[294] Catholics alone enjoyed the right of engaging in public
ceremonies of worship.[295] Although the Spanish Constitution itself was not
extended to the Philippines, Catholicism was also the established church in
our country under the Spanish rule. Catholicism was in fact protected by the
Spanish Penal Code of 1884 which was in effect in the Philippines. Some of
the offenses in chapter six of the Penal Code entitled Crimes against Religion
and Worship referred to crimes against the state religion.[296] The coming of
the Americans to our country, however, changed this state-church scheme
for with the advent of this regime, the unique American experiment of
separation of church and state was transported to Philippine soil.
Even as early as the conclusion of the Treaty of Paris between the United
States and Spain on December 10, 1898, the American guarantee of religious
freedom had been extended to the Philippines. The Treaty provided that the
inhabitants of the territories over which Spain relinquishes or cedes her
sovereignty shall be secured in the free exercise of religion.[297] Even the
Filipinos themselves guaranteed religious freedom a month later or on
January 22, 1899 upon the adoption of the Malolos Constitution of the
Philippine Republic under General Emilio Aguinaldo. It provided that the State
recognizes the liberty and equality of all religion (de todos los cultos) in the
same manner as the separation of the Church and State. But the Malolos
Constitution and government was short-lived as the Americans took over the
reigns of government.[298]
With the Philippines under the American regime, President McKinley issued
Instructions to the Second Philippine Commission, the body created to take
over the civil government in the Philippines in 1900. The Instructions
guaranteed religious freedom, viz:
That no law shall be made respecting the establishment of religion or

prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference shall forever be allowed ... that no form of religion and no minister
of religion shall be forced upon the community or upon any citizen of the
Islands, that, on the other hand, no minister of religion shall be interfered
with or molested in following his calling.[299]
This provision was based on the First Amendment of the United States
Constitution. Likewise, the Instructions declared that (t)he separation
between State and Church shall be real, entire and absolute.[300]
Thereafter, every organic act of the Philippines contained a provision on
freedom of religion. Similar to the religious freedom clause in the Instructions,
the Philippine Bill of 1902 provided that:
No law shall be made respecting an establishment of religion or prohibiting

the free exercise thereof, and that free exercise and enjoyment of religious
worship, without discrimination or preference, shall forever be allowed.
In U.S. v. Balcorta,[301] the Court stated that the Philippine Bill of 1902
caused the complete separation of church and state, and the abolition of all
special privileges and all restrictions theretofor conferred or imposed upon
any particular religious sect.[302]
The Jones Law of 1916 carried the same provision, but expanded it with a
restriction against using public money or property for religious purposes, viz:
That no law shall be made respecting an establishment of religion or

prohibiting the free exercise thereof, and that the free exercise and
enjoyment of religious profession and worship without discrimination or
preference, shall forever be allowed; and no religious test shall be required
for the exercise of civil or political rights. No public money or property shall
ever be appropriated, applied, donated, or used, directly or indirectly, for the
use, benefit, or support of any sect, church, denomination, sectarian
institution, or system of religion, or for the use, benefit or support of any
priest, preacher, minister, or other religious teachers or dignitary as such.
This was followed by the Philippine Independence Law or Tydings-McDuffie

Law of 1934 which guaranteed independence to the Philippines and
authorized the drafting of a Philippine constitution. It enjoined Filipinos to
include freedom of religion in drafting their constitution preparatory to the
grant of independence. The law prescribed that (a)bsolute toleration of
religious sentiment shall be secured and no inhabitant or religious
organization shall be molested in person or property on account of religious
belief or mode of worship.[303]
The Constitutional Convention then began working on the 1935 Constitution.

In their proceedings, Delegate Jose P. Laurel as Chairman of the Committee
on Bill of Rights acknowledged that (i)t was the Treaty of Paris of December
10, 1898, which first introduced religious toleration in our country. President
McKinleys Instructions to the Second Philippine Commission reasserted this
right which later was incorporated into the Philippine Bill of 1902 and in the
Jones Law.[304] In accordance with the Tydings-McDuffie Law, the 1935
Constitution provided in the Bill of Rights, Article IV, Section 7, viz:

prohibiting the free exercise thereof, and the free exercise and enjoyment of
This provision, borrowed from the Jones Law, was readily approved by the
Convention.[305] In his speech as Chairman of the Committee on Bill of
Rights, Delegate Laurel said that modifications in phraseology of the Bill of
Rights in the Jones Law were avoided whenever possible because the
principles must remain couched in a language expressive of their historical
background, nature, extent and limitations as construed and interpreted by
the great statesmen and jurists that vitalized them.[306]
The 1973 Constitution which superseded the 1935 Constitution contained an
almost identical provision on religious freedom in the Bill of Rights in Article
IV, Section 8, viz:

prohibiting the free exercise thereof. The free exercise and enjoyment of
This time, however, the General Provisions in Article XV added in Section 15

that (t)he separation of church and state shall be inviolable.
Without discussion by the 1986 Constitutional Commission, the 1973 religious

clauses were reproduced in the 1987 Constitution under the Bill of Rights in
Article III, Section 5.[307] Likewise, the provision on separation of church and
state was included verbatim in the 1987 Constitution, but this time as a
principle in Section 6, Article II entitled Declaration of Principles and State
Policies.
Considering the American origin of the Philippine religion clauses and the
intent to adopt the historical background, nature, extent and limitations of
the First Amendment of the U.S. Constitution when it was included in the
1935 Bill of Rights, it is not surprising that nearly all the major Philippine cases
involving the religion clauses turn to U.S. jurisprudence in explaining the
nature, extent and limitations of these clauses. However, a close scrutiny of
these cases would also reveal that while U.S. jurisprudence on religion clauses
flows into two main streams of interpretation - separation and benevolent
neutrality - the well-spring of Philippine jurisprudence on this subject is for
the most part, benevolent neutrality which gives room for accommodation.
B. Jurisprudence
In revisiting the landscape of Philippine jurisprudence on the religion clauses,

we begin with the definition of religion. Religion is derived from the Middle
English religioun, from Old French religion, from Latin religio, vaguely
referring to a bond between man and the gods.[308] This pre-Christian term
for the cult and rituals of pagan Rome was first Christianized in the Latin
translation of the Bible.[309] While the U.S. Supreme Court has had to take
up the challenge of defining the parameters and contours of religion to
determine whether a non-theistic belief or act is covered by the religion
clauses, this Court has not been confronted with the same issue. In Philippine
jurisprudence, religion, for purposes of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case of Aglipay v. Ruiz[310]
involving the Establishment Clause, defined religion as a profession of faith to
an active power that binds and elevates man to his Creator. Twenty years
later, the Court cited the Aglipay definition in American Bible Society v. City
of Manila,[311] a case involving the Free Exercise clause. The latter also cited
the American case of Davis in defining religion, viz: (i)t has reference to ones
views of his relations to His Creator and to the obligations they impose of
reverence to His being and character and obedience to His Will. The Beason
definition, however, has been expanded in U.S. jurisprudence to include non-
theistic beliefs.
1. Free Exercise Clause

Freedom of choice guarantees the liberty of the religious conscience and
prohibits any degree of compulsion or burden, whether direct or indirect, in
the practice of ones religion. The Free Exercise Clause principally guarantees
voluntarism, although the Establishment Clause also assures voluntarism by
placing the burden of the advancement of religious groups on their intrinsic
merits and not on the support of the state.[312]
In interpreting the Free Exercise Clause, the realm of belief poses no difficulty.
The early case of Gerona v. Secretary of Education[313] is instructive on the
matter, viz:
The realm of belief and creed is infinite and limitless bounded only by ones
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.[314]
The difficulty in interpretation sets in when belief is externalized into speech

and action.
Religious speech comes within the pale of the Free Exercise Clause as
illustrated in the American Bible Society case. In that case, plaintiff American
Bible Society was a foreign, non-stock, non-profit, religious missionary
corporation which sold bibles and gospel portions of the bible in the course
of its ministry. The defendant City of Manila required plaintiff to secure a
mayors permit and a municipal license as ordinarily required of those
engaged in the business of general merchandise under the citys ordinances.
Plaintiff argued that this amounted to religious censorship and restrained the
free exercise and enjoyment of religious profession, to wit: the distribution
and sale of bibles and other religious literature to the people of the
Philippines.
After defining religion, the Court, citing Tanada and Fernando, made this
statement, viz:
The constitutional guaranty of the free exercise and enjoyment of religious

profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to
prevent. (Tanada and Fernando on the Constitution of the Philippines, vol. 1,
4th ed., p. 297) (emphasis supplied)
This was the Courts maiden unequivocal affirmation of the clear and present
danger rule in the religious freedom area, and in Philippine jurisprudence, for
that matter.[315] The case did not clearly show, however, whether the Court
proceeded to apply the test to the facts and issues of the case, i.e., it did not
identify the secular value the government regulation sought to protect,
whether the religious speech posed a clear and present danger to this or other
secular value protected by government, or whether there was danger but it
could not be characterized as clear and present. It is one thing to apply the
test and find that there is no clear and present danger, and quite another not
to apply the test altogether.
Instead, the Court categorically held that the questioned ordinances were not
applicable to plaintiff as it was not engaged in the business or occupation of
selling said merchandise for profit. To add, the Court, citing Murdock v.
Pennsylvania,[316] ruled that applying the ordinance requiring it to secure a
license and pay a license fee or tax would impair its free exercise of religious
profession and worship and its right of dissemination of religious beliefs as
the power to tax the exercise of a privilege is the power to control or suppress
its enjoyment. Thus, in American Bible Society, the clear and present danger
rule was laid down but it was not clearly applied.
In the much later case of Tolentino v. Secretary of Finance,[317] also involving

the sale of religious books, the Court distinguished the American Bible Society
case from the facts and issues in Tolentino and did not apply the American
Bible Society ruling. In Tolentino, the Philippine Bible Society challenged the
validity of the registration provisions of the Value Added Tax (VAT) Law as a
prior restraint. The Court held, however, that the fixed amount of registration
fee was not imposed for the exercise of a privilege like a license tax which
American Bible Society ruled was violative of religious freedom. Rather, the
registration fee was merely an administrative fee to defray part of the cost of
registration which was a central feature of the VAT system. Citing Jimmy
Swaggart Ministries v. Board of Equalization,[318] the Court also declared
prefatorily that the Free Exercise of Religion Clause does not prohibit
imposing a generally applicable sales and use tax on the sale of religious
materials by a religious organization. In the Courts resolution of the motion
for reconsideration of the Tolentino decision, the Court noted that the burden
on religious freedom caused by the tax was just similar to any other economic
imposition that might make the right to disseminate religious doctrines costly.
Two years after American Bible Society came the 1959 case of Gerona v.
Secretary of Education,[319] this time involving conduct expressive of
religious belief colliding with a rule prescribed in accordance with law. In this
case, petitioners were members of the Jehovahs Witnesses. They challenged
a Department Order issued by the Secretary of Education implementing
Republic Act No. 1265 which prescribed compulsory flag ceremonies in all
public schools. In violation of the Order, petitioners children refused to salute
the Philippine flag, sing the national anthem, or recite the patriotic pledge,
hence they were expelled from school. Seeking protection under the Free
Exercise Clause, petitioners claimed that their refusal was on account of their
religious belief that the Philippine flag is an image and saluting the same is
contrary to their religious belief. The Court stated, viz:
. . . If the exercise of religious belief clashes with the established institutions

of society and with the law, then the former must yield to the latter. The
Government steps in and either restrains said exercise or even prosecutes the
one exercising it. (emphasis supplied)[320]
The Court then proceeded to determine if the acts involved constituted a

religious ceremony in conflict with the beliefs of the petitioners with the
following justification:
After all, the determination of whether a certain ritual is or is not a religious

ceremony must rest with the courts. It cannot be left to a religious group or
sect, much less to a follower of said group or sect; otherwise, there would be
confusion and misunderstanding for there might be as many interpretations
and meaning to be given to a certain ritual or ceremony as there are religious
groups or sects or followers, all depending upon the meaning which they,
though in all sincerity and good faith, may want to give to such ritual or
ceremony.[321]
It was held that the flag was not an image, the flag salute was not a religious
ceremony, and there was nothing objectionable about the singing of the
national anthem as it speaks only of love of country, patriotism, liberty and
the glory of suffering and dying for it. The Court upheld the questioned Order
and the expulsion of petitioners children, stressing that:
Men may differ and do differ on religious beliefs and creeds, government
policies, the wisdom and legality of laws, even the correctness of judicial
decisions and decrees; but in the field of love of country, reverence for the
flag, national unity and patriotism, they can hardly afford to differ, for these
are matters in which they are mutually and vitally interested, for to them,
they mean national existence and survival as a nation or national
extinction.[322]
In support of its ruling, the Court cited Justice Frankfurters dissent in the
Barnette case, viz:
The constitutional protection of religious freedom x x x gave religious

equality, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma.[323]
It stated in categorical terms, viz:
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority.[324]
Thus, the religious freedom doctrines one can derive from Gerona are: (1) it
is incumbent upon the Court to determine whether a certain ritual is religious
or not; (2) religious freedom will not be upheld if it clashes with the
established institutions of society and with the law such that when a law of
general applicability (in this case the Department Order) incidentally burdens
the exercise of ones religion, ones right to religious freedom cannot justify
exemption from compliance with the law. The Gerona ruling was reiterated
in Balbuna, et al. v. Secretary of Education, et al.[325]
Fifteen years after Gerona came the 1974 case of Victoriano v. Elizalde Rope
Workers Union.[326] In this unanimously decided en banc case, Victoriano
was a member of the Iglesia ni Cristo which prohibits the affiliation of its
members with any labor organization. He worked in the Elizalde Rope Factory,
Inc. and was a member of the Elizalde Rope Workers Union which had with
the company a closed shop provision pursuant to Republic Act No. 875
allowing closed shop arrangements. Subsequently, Republic Act No. 3350 was
enacted exempting from the application and coverage of a closed shop
agreement employees belonging to any religious sect which prohibits
affiliation of their members with any labor organization. Victoriano resigned
from the union after Republic Act No. 3350 took effect. The union notified the
company of Victorianos resignation, which in turn notified Victoriano that
unless he could make a satisfactory arrangement with the union, the
company would be constrained to dismiss him from the service. Victoriano
sought to enjoin the company and the union from dismissing him. The court
having granted the injunction, the union came to this Court on questions of
law, among which was whether Republic Act No. 3350 was unconstitutional
for impairing the obligation of contracts and for granting an exemption
offensive of the Establishment Clause. With respect to the first issue, the
Court ruled, viz:
Religious freedom, although not unlimited, is a fundamental personal right

and liberty (Schneider v. Irgington, 308 U.S. 147, 161, 84 L.ed.155, 164, 60
S.Ct. 146) and has a preferred position in the hierarchy of values. Contractual
rights, therefore, must yield to freedom of religion. It is only where
unavoidably necessary to prevent an immediate and grave danger to the
security and welfare of the community that infringement of religious freedom
may be justified, and only to the smallest extent necessary.[327] (emphasis
supplied)
As regards the Establishment Clause issue, the Court after citing the
constitutional provision on establishment and free exercise of religion,
declared, viz:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also assures
the free exercise of ones chosen form of religion within limits of utmost
amplitude. It has been said that the religion clauses of the Constitution are all
designed to protect the broadest possible liberty of conscience, to allow each
man to believe as his conscience directs, to profess his beliefs, and to live as
he believes he ought to live, consistent with the liberty of others and with the
common good. (footnote omitted). Any legislation whose effect or purpose is
to impede the observance of one or all religions, or to discriminate invidiously
between the religions, is invalid, even though the burden may be
characterized as being only indirect. (Sherbert v. Verner, 374 U.S. 398, 10
L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting,
within its power, a general law which has for its purpose and effect to advance
the states secular goals, the statute is valid despite its indirect burden on
religious observance, unless the state can accomplish its purpose without
imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6 L ed. 2d. 563, 81
S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449)[328]
(emphasis supplied)
Quoting Aglipay v. Ruiz,[329] the Court held that government is not precluded
from pursuing valid objectives secular in character even if the incidental result
would be favorable to a religion or sect. It also cited Board of Education v.
Allen,[330] which held that in order to withstand the strictures of
constitutional prohibition, a statute must have a secular legislative purpose
and a primary effect that neither advances nor inhibits religion. Using these
criteria in upholding Republic Act No. 3350, the Court pointed out, viz:
(Republic Act No. 3350) was intended to serve the secular purpose of
advancing the constitutional right to the free exercise of religion, by averting
that certain persons be refused work, or be dismissed from work, or be
dispossessed of their right to work and of being impeded to pursue a modest
means of livelihood, by reason of union security agreements. . . . The primary
effects of the exemption from closed shop agreements in favor of members
of religious sects that prohibit their members from affiliating with a labor
organization, is the protection of said employees against the aggregate force
of the collective bargaining agreement, and relieving certain citizens of a
burden on their religious beliefs, and . . . eliminating to a certain extent
economic insecurity due to unemployment.[331]
The Court stressed that (a)lthough the exemption may benefit those who are
members of religious sects that prohibit their members from joining labor
unions, the benefit upon the religious sects is merely incidental and
indirect.[332] In enacting Republic Act No. 3350, Congress merely relieved the
exercise of religion by certain persons of a burden imposed by union security
agreements which Congress itself also imposed through the Industrial Peace
Act. The Court concluded the issue of exemption by citing Sherbert which laid
down the rule that when general laws conflict with scruples of conscience,
intervenes. The Court then abruptly added that (i)n the instant case, We see
no compelling state interest to withhold exemption.[333]
A close look at Victoriano would show that the Court mentioned several tests
in determining when religious freedom may be validly limited. First, the Court
mentioned the test of immediate and grave danger to the security and
welfare of the community and infringement of religious freedom only to the
smallest extent necessary to justify limitation of religious freedom. Second,
religious exercise may be indirectly burdened by a general law which has for
its purpose and effect the advancement of the states secular goals, provided
that there is no other means by which the state can accomplish this purpose
without imposing such burden. Third, the Court referred to the compelling
state interest test which grants exemptions when general laws conflict with
religious exercise, unless a compelling state interest intervenes.
It is worth noting, however, that the first two tests were mentioned only for
the purpose of highlighting the importance of the protection of religious
freedom as the secular purpose of Republic Act No. 3350. Upholding religious
freedom was a secular purpose insofar as it relieved the burden on religious
freedom caused by another law, i.e, the Industrial Peace Act providing for
union shop agreements. The first two tests were only mentioned in Victoriano
but were not applied by the Court to the facts and issues of the case. The
third, the compelling state interest test was employed by the Court to
determine whether the exemption provided by Republic Act No. 3350 was
not unconstitutional. It upheld the exemption, stating that there was no
compelling state interest to strike it down. However, after careful
consideration of the Sherbert case from which Victoriano borrowed this test,
the inevitable conclusion is that the compelling state interest test was not
appropriate and could not find application in the Victoriano case. In Sherbert,
appellant Sherbert invoked religious freedom in seeking exemption from the
provisions of the South Carolina Unemployment Compensation Act which
disqualified her from claiming unemployment benefits. It was the appellees,
members of the South Carolina Employment Commission, a government
agency, who propounded the state interest to justify overriding Sherberts
claim of religious freedom. The U.S. Supreme Court, considering Sherberts
and the Commissions arguments, found that the state interest was not
sufficiently compelling to prevail over Sherberts free exercise claim. This
situation did not obtain in the Victoriano case where it was the government
itself, through Congress, which provided the exemption in Republic Act No.
3350 to allow Victorianos exercise of religion. Thus, the government could not
argue against the exemption on the basis of a compelling state interest as it
would be arguing against itself; while Victoriano would not seek exemption
from the questioned law to allow the free exercose of religion as the law in
fact provides such an exemption. In sum, although Victoriano involved a
religious belief and conduct, it did not involve a free exercise issue where the
Free Exercise Clause is invoked to exempt him from the burden imposed by a
law on his religious freedom.
Victoriano was reiterated in several cases involving the Iglesia ni Cristo,

namely Basa, et al. v. Federacion Obrera de la Industria Tabaquera y Otros
Trabajadores de Filipinas,[334] Anucension v. National Labor Union, et
al.,[335] and Gonzales, et al. v. Central Azucarera de Tarlac Labor Union.[336]
Then came German v. Barangan in 1985 at the height of the anti-

administration rallies. Petitioners were walking to St. Jude Church within the
Malacanang security area to pray for an end to violence when they were
barred by the police. Invoking their constitutional freedom of religious
worship and locomotion, they came to the Court on a petition for mandamus
to allow them to enter and pray inside the St. Jude Chapel. The Court was
divided on the issue. The slim majority of six recognized their freedom of
religion but noted their absence of good faith and concluded that they were
using their religious liberty to express their opposition to the government.
Citing Cantwell, the Court distinguished between freedom to believe and
freedom to act on matters of religion, viz:
. . . Thus the (First) amendment embraces two concepts - freedom to believe

and freedom to act. The first is absolute, but in the nature of things, the
second cannot be.[337]
The Court reiterated the Gerona ruling, viz:
In the case at bar, petitioners are not denied or restrained of their freedom
of belief or choice of their religion, but only in the manner by which they had
attempted to translate the same to action. This curtailment is in accord with
the pronouncement of this Court in Gerona v. Secretary of Education (106
Phil. 2), thus:
. . . But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. The government steps in and either
restrains said exercise or even prosecutes the one exercising it. (italics
supplied)
The majority found that the restriction imposed upon petitioners was
necessary to maintain the smooth functioning of the executive branch of the
government, which petitioners mass action would certainly disrupt[338] and
denied the petition. Thus, without considering the tests mentioned in
Victoriano, German went back to the Gerona rule that religious freedom will
not be upheld if it clashes with the established institutions of society and the
law.
Then Associate Justice Teehankee registered a dissent which in subsequent

jurisprudence would be cited as a test in religious freedom cases. His dissent
stated in relevant part, viz:
A brief restatement of the applicable constitutional principles as set forth in

the landmark case of J.B.L. Reyes v. Bagatsing (125 SCRA 553[1983]) should
guide us in resolving the issues.
1. The right to freely exercise ones religion is guaranteed in Section 8 of our

Bill of Rights. (footnote omitted) Freedom of worship, alongside with freedom
of expression and speech and peaceable assembly along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional
values. It cannot be too strongly stressed that on the judiciary - even more so
than on the other departments - rests the grave and delicate responsibility of
assuring respect for and deference to such preferred rights. No verbal
formula, no sanctifying phrase can, of course, dispense with what has been
so felicitously termed by Justice Holmes as the sovereign prerogative of
judgment. Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence
and primacy. (J.B.L. Reyes, 125 SCRA at pp. 569-570)
2. In the free exercise of such preferred rights, there is to be no prior restraint

although there may be subsequent punishment of any illegal acts committed
during the exercise of such basic rights. The sole justification for a prior
restraint or limitation on the exercise of these basic rights is the existence of
a grave and present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent
(Idem, at pp. 560-561).[339] (emphasis supplied)
The J.B.L. Reyes v. Bagatsing case from which this portion of Justice
Teehankees dissent was taken involved the rights to free speech and
assembly, and not the exercise of religious freedom. At issue in that case was
a permit sought by retired Justice J.B.L. Reyes, on behalf of the Anti-Bases
Coalition, from the City of Manila to hold a peaceful march and rally from the
Luneta to the gates of the U.S. Embassy. Nevertheless Bagatsing was used by
Justice Teehankee in his dissent which had overtones of petitioner German
and his companions right to assemble and petition the government for
redress of grievances.[340]
In 1993, the issue on the Jehovahs Witnesses participation in the flag

ceremony again came before the Court in Ebralinag v. The Division
Superintendent of Schools.[341] A unanimous Court overturned the Gerona
ruling after three decades. Similar to Gerona, this case involved several
Jehovahs Witnesses who were expelled from school for refusing to salute the
flag, sing the national anthem and recite the patriotic pledge, in violation of
the Administrative Code of 1987. In resolving the same religious freedom
issue as in Gerona, the Court this time transported the grave and imminent
danger test laid down in Justice Teehankees dissent in German, viz:
The sole justification for a prior restraint or limitation on the exercise of

religious freedom (according to the late Chief Justice Claudio Teehankee in his
dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the existence
of a grave and present danger of a character both grave and imminent, of a
serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent.
Absent such a threat to public safety, the expulsion of the petitioners from
the schools is not justified.[342] (emphasis supplied)
The Court added, viz:
We are not persuaded that by exempting the Jehovahs Witnesses from

saluting the flag, singing the national anthem and reciting the patriotic
pledge, this religious group which admittedly comprises a small portion of the
school population will shake up our part of the globe and suddenly produce a
nation untaught and uninculcated in and unimbued with reverence for the
flag, patriotism, love of country and admiration for national heroes (Gerona
v. Secretary of Education, 106 Phil. 224). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from the public
schools where they may study the Constitution, the democratic way of life
and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation or profession and
be taught the virtues of patriotism, respect for human rights, appreciation of
national heroes, the rights and duties of citizenship, and moral and spiritual
values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling
or banning the petitioners from Philippine schools will bring about the very
situation that this Court has feared in Gerona. Forcing a small religious group,
through the iron hand of the law, to participate in a ceremony that violates
their religious beliefs, will hardly be conducive to love of country or respect
for duly constituted authorities.[343]
Barnette also found its way to the opinion, viz:
Furthermore, let it be noted that coerced unity and loyalty even to the
country, x x x- assuming that such unity and loyalty can be attained through
coercion- is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046).[344]
Towards the end of the decision, the Court also cited the Victoriano case and
its use of the compelling state interest test in according exemption to the
Jehovahs Witnesses, viz:
In Victoriano vs. Elizalde Rope Workers Union, 59 SCRA 54, 72-75, we upheld
the exemption of members of the Iglesia ni Cristo, from the coverage of a
closed shop agreement between their employer and a union because it would
violate the teaching of their church not to join any group:
x x x It is certain that not every conscience can be accommodated by all the

laws of the land; but when general laws conflict with scruples of conscience,
intervenes. (Sherbert vs. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.Ct.
1790)
We hold that a similar exemption may be accorded to the Jehovahs Witnesses

with regard to the observance of the flag ceremony out of respect for their
religious beliefs, however bizarre those beliefs may seem to others.[345]
The Court annulled the orders expelling petitioners from school.
Thus, the grave and imminent danger test laid down in a dissenting opinion
in German which involved prior restraint of religious worship with overtones
of the right to free speech and assembly, was transported to Ebralinag which
did not involve prior restraint of religious worship, speech or assembly.
Although, it might be observed that the Court faintly implied that Ebralinag
also involved the right to free speech when in its preliminary remarks, the
Court stated that compelling petitioners to participate in the flag ceremony is
alien to the conscience of the present generation of Filipinos who cut their
teeth on the Bill of Rights which guarantees their rights to free speech and
the free exercise of religious profession and worship; the Court then stated in
a footnote that the flag salute, singing the national anthem and reciting the
patriotic pledge are all forms of utterances.[346]
The compelling state interest test was not fully applied by the Court in
Ebralinag. In the Solicitor Generals consolidated comment, one of the grounds
cited to defend the expulsion orders issued by the public respondents was
that (t)he States compelling interests being pursued by the DECs lawful
regulations in question do not warrant exemption of the school children of
the Jehovahs Witnesses from the flag salute ceremonies on the basis of their
own self-perceived religious convictions.[347] The Court, however, referred
to the test only towards the end of the decision and did not even mention
what the Solicitor General argued as the compelling state interest, much less
did the Court explain why the interest was not sufficiently compelling to
override petitioners religious freedom.
Three years after Ebralinag, the Court decided the 1996 case of Iglesia ni
Cristo v. Court of Appeals, et al.[348] Although there was a dissent with
respect to the applicability of the clear and present danger test in this case,
the majority opinion in unequivocal terms applied the clear and present
danger test to religious speech. This case involved the television program, Ang
Iglesia ni Cristo, regularly aired over the television. Upon petitioner Iglesia ni
Cristos submission of the VTR tapes of some of its episodes, respondent Board
of Review for Motion Pictures and Television classified these as X or not for
public viewing on the ground that they offend and constitute an attack against
other religions which is expressly prohibited by law. Invoking religious
freedom, petitioner alleged that the Board acted without jurisdiction or with
grave abuse of discretion in requiring it to submit the VTR tapes of its
television program and x-rating them. While upholding the Boards power to
review the Iglesia television show, the Court was emphatic about the
preferred status of religious freedom. Quoting Justice Cruz commentary on
the constitution, the Court held that freedom to believe is absolute but
freedom to act on ones belief, where it affects the public, is subject to the
authority of the state. The commentary quoted Justice Frankfurters dissent in
Barnette which was quoted in Gerona, viz: (t)he constitutional provision on
religious freedom terminated disabilities, it did not create new privileges. It
gave religious liberty, not civil immunity. Its essence is freedom from
conformity to religious dogma, not freedom from conformity to law because
of religious dogma.[349] Nevertheless, the Court was quick to add the criteria
by which the state can regulate the exercise of religious freedom, that is,
when the exercise will bring about the clear and present danger of some
substantive evil which the State is duty bound to prevent, i.e., serious
detriment to the more overriding interest of public health, public morals, or
public welfare.[350]
In annulling the x-rating of the shows, the Court stressed that the Constitution
is hostile to all prior restraints on speech, including religious speech and the
x-rating was a suppression of petitioners freedom of speech as much as it was
an interference with its right to free exercise of religion. Citing Cantwell, the
Court recognized that the different religions may criticize one another and
their tenets may collide, but the Establishment Clause prohibits the state from
protecting any religion from this kind of attack.
The Court then called to mind the clear and present danger test first laid down
in the American Bible Society case and the test of immediate and grave
danger with infringement only to the smallest extent necessary to avoid
danger in Victoriano and pointed out that the reviewing board failed to apply
the clear and present danger test. Applying the test, the Court noted, viz:
The records show that the decision of the respondent Board, affirmed by the
respondent appellate court, is completely bereft of findings of facts to justify
the conclusion that the subject video tapes constitute impermissible attacks
against another religion. There is no showing whatsoever of the type of harm
the tapes will bring about especially the gravity and imminence of the
threatened harm. Prior restraint on speech, including religious speech, cannot
be justified by hypothetical fears but only by the showing of a substantive and
imminent evil which has taken the life of a reality already on ground.
Replying to the challenge on the applicability of the clear and present danger
test to the case, the Court acknowledged the permutations that the test has
undergone, but stressed that the test is still applied to four types of speech:
speech that advocates dangerous ideas, speech that provokes a hostile
audience reaction, out of court contempt and release of information that
endangers a fair trial[351] and ruled, viz:
. . . even allowing the drift of American jurisprudence, there is reason to apply

the clear and present danger test to the case at bar which concerns speech
that attacks other religions and could readily provoke hostile audience
reaction. It cannot be doubted that religious truths disturb and disturb
terribly.[352]
In Iglesia therefore, the Court went back to Gerona insofar as holding that
religious freedom cannot be invoked to seek exemption from compliance
with a law that burdens ones religious exercise. It also reiterated the clear and
present danger test in American Bible Society and the grave and imminent
danger in Victoriano, but this time clearly justifying its applicability and
showing how the test was applied to the case.
In sum, the Philippine Supreme Court has adopted a posture of not

invalidating a law offensive to religious freedom, but carving out an exception
or upholding an exception to accommodate religious exercise where it is
justified.[353]
2. Establishment Clause
In Philippine jurisdiction, there is substantial agreement on the values sought

to be protected by the Establishment Clause, namely, voluntarism and
insulation of the political process from interfaith dissension. The first,
voluntarism, has both a personal and a social dimension. As a personal value,
it refers to the inviolability of the human conscience which, as discussed
above, is also protected by the free exercise clause. From the religious
perspective, religion requires voluntarism because compulsory faith lacks
religious efficacy. Compelled religion is a contradiction in terms.[354] As a
social value, it means that the growth of a religious sect as a social force must
come from the voluntary support of its members because of the belief that
both spiritual and secular society will benefit if religions are allowed to
compete on their own intrinsic merit without benefit of official patronage.
Such voluntarism cannot be achieved unless the political process is insulated
from religion and unless religion is insulated from politics.[355] Non-
establishment thus calls for government neutrality in religious matters to
uphold voluntarism and avoid breeding interfaith dissension.[356]
The neutrality principle was applied in the first significant non-establishment

case under the 1935 Constitution. In the 1937 case of Aglipay v. Ruiz,[357] the
Philippine Independent Church challenged the issuance and sale of postage
stamps commemorating the Thirty-Third International Eucharistic Congress
of the Catholic Church on the ground that the constitutional prohibition
against the use of public money for religious purposes has been violated. It
appears that the Director of Posts issued the questioned stamps under the
provisions of Act No. 4052[358] which appropriated a sum for the cost of
plates and printing of postage stamps with new designs and authorized the
Director of Posts to dispose of the sum in a manner and frequency
advantageous to the Government. The printing and issuance of the postage
stamps in question appears to have been approved by authority of the
President. Justice Laurel, speaking for the Court, took pains explaining
religious freedom and the role of religion in society, and in conclusion, found
no constitutional infirmity in the issuance and sale of the stamps, viz:
The prohibition herein expressed is a direct corollary of the principle of

separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for occasions might arise
when the state will use the church, and the church the state, as a weapon in
the furtherance of their respective ends and aims . . . It is almost trite to say
now that in this country we enjoy both religious and civil freedom. All the
officers of the Government, from the highest to the lowest, in taking their
oath to support and defend the Constitution, bind themselves to recognize
and respect the constitutional guarantee of religious freedom, with its
inherent limitations and recognized implications. It should be stated that
what is guaranteed by our Constitution is religious liberty, not mere
toleration.
Religious freedom, however, as a constitutional mandate is not an inhibition

of profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored the aid of Divine Providence, in order to establish a government that
shall embody their ideals, conserve and develop the patrimony of the nation,
promote the general welfare, and secure to themselves and their posterity
the blessings of independence under a regime of justice, liberty and
democracy, they thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and nations.
The elevating influence of religion in human society is recognized here as
elsewhere. In fact, certain general concessions are indiscriminately accorded
to religious sects and denominations. . .[359]
xxx xxx xxx
It is obvious that while the issuance and sale of the stamps in question may
be said to be inseparably linked with an event of a religious character, the
resulting propaganda, if any, received by the Roman Catholic Church, was not
the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply because of
incidental results, more or less religious in character, if the purpose had in
view is one which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to mere
incidental results not contemplated. (Vide Bradfield vs. Roberts, 175 U.S. 295;
20 Sup. Ct. Rep., 121; 44 Law. ed., 168)[360] (emphases supplied)
In so deciding the case, the Court, citing U.S. jurisprudence, laid down the
doctrine that a law or government action with a legitimate secular purpose
does not offend the Establishment Clause even if it incidentally aids a
particular religion.
Almost forty-five years after Aglipay came Garces v. Estenzo.[361] Although

the Court found that the separation of church and state was not at issue as
the controversy was over who should have custody of a saints image, it
nevertheless made pronouncements on the separation of church and state
along the same line as the Aglipay ruling. The Court held that there was
nothing unconstitutional or illegal in holding a fiesta and having a patron saint
for the barrio. It adhered to the barrio resolutions of the barangay involved in
the case stating that the barrio fiesta is a socio-religious affair, the celebration
of which is an ingrained tradition in rural communities that relieves the
monotony and drudgery of the lives of the masses. Corollarily, the Court
found nothing illegal about any activity intended to facilitate the worship of
the patron saint such as the acquisition and display of his image bought with
funds obtained through solicitation from the barrio residents. The Court
pointed out that the image of the patron saint was purchased in connection
with the celebration of the barrio fiesta honoring the patron saint, San
Vicente Ferrer, and not for the purpose of favoring any religion nor interfering
with religious matters or the religious beliefs of the barrio residents. Citing
the Aglipay ruling, the Court declared, viz:
Not every governmental activity which involves the expenditure of public

funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and
banning the use of public money or property.
Then came the 1978 case of Pamil v. Teleron, et al.[362] which presented a
novel issue involving the religion clauses. In this case, Section 2175 of the
Revised Administrative Code of 1917 disqualifying ecclesiastics from
appointment or election as municipal officer was challenged. After protracted
deliberation, the Court was sharply divided on the issue. Seven members of
the Court, one short of the number necessary to declare a law
unconstitutional, approached the problem from a free exercise perspective
and considered the law a religious test offensive of the constitution. They
were Justices Fernando, Teehankee, Muoz-Palma, Concepcion, Jr., Santos,
Fernandez, and Guerrero. Then Associate Justice Fernando, the ponente,
stated, viz: The challenged Administrative Code provision, certainly insofar as
it declares ineligible ecclesiastics to any elective or appointive office, is, on its
face, inconsistent with the religious freedom guaranteed by the Constitution.
Citing Torcaso v. Watkins,[363] the ponencia held, viz:
Torcaso v. Watkins, an American Supreme Court decision, has persuasive

weight. What was there involved was the validity of a provision in the
Maryland Constitution prescribing that no religious test ought ever to be
required as a disqualification for any office or profit or trust in this State, other
than a declaration of belief in the existence of God ***. Such a constitutional
requirement was assailed as contrary to the First Amendment of the United
States Constitution by an appointee to the office of notary public in Maryland,
who was refused a commission as he would not declare a belief in God. He
failed in the Maryland Court of Appeals but prevailed in the United States
Supreme Court, which reversed the state court decision. It could not have
been otherwise. As emphatically declared by Justice Black: this Maryland
religious test for public office unconstitutionally invades the appellants
freedom of belief and religion and therefore cannot be enforced against him.
The analogy appears to be obvious. In that case, it was lack of belief in God
that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied
upon by petitioner and an express constitutional mandate.[364]
On the other hand, the prevailing five other members of the Court - Chief
Justice Castro, Justices Barredo, Makasiar, Antonio and Aquino - approached
the case from a non-establishment perspective and upheld the law as a
safeguard against the constant threat of union of church and state that has
marked Philippine history. Justice Makasiar stated: To allow an ecclesiastic to
head the executive department of a municipality is to permit the erosion of
the principle of separation of Church and State and thus open the floodgates
for the violation of the cherished liberty of religion which the constitutional
provision seeks to enforce and protect. Consequently, the Court upheld the
validity of Section 2175 of the Revised Administrative Code and declared
respondent priest ineligible for the office of municipal mayor.
Another type of cases interpreting the establishment clause deals with

intramural religious disputes. Fonacier v. Court of Appeals[365] is the leading
case. The issue therein was the right of control over certain properties of the
Philippine Independent Church, the resolution of which necessitated the
determination of who was the legitimate bishop of the church. The Court
cited American Jurisprudence,[366] viz:
Where, however, a decision of an ecclesiastical court plainly violates the law

it professes to administer, or is in conflict with the law of the land, it will not
be followed by the civil courts. . . In some instances, not only have the civil
courts the right to inquire into the jurisdiction of the religious tribunals and
the regularity of their procedure, but they have subjected their decisions to
the test of fairness or to the test furnished by the constitution and the law of
the church. . .[367]
The Court then ruled that petitioner Fonacier was legitimately ousted and
respondent de los Reyes was the duly elected head of the Church, based on
their internal laws. To finally dispose of the property issue, the Court, citing
Watson v. Jones,[368] declared that the rule in property controversies within
religious congregations strictly independent of any other superior
ecclesiastical association (such as the Philippine Independent Church) is that
the rules for resolving such controversies should be those of any voluntary
association. If the congregation adopts the majority rule then the majority
should prevail; if it adopts adherence to duly constituted authorities within
the congregation, then that should be followed. Applying these rules,
Fonacier lost the case. While the Court exercised jurisdiction over the case, it
nevertheless refused to touch doctrinal and disciplinary differences raised,
viz:
The amendments of the constitution, restatement of articles of religion and

abandonment of faith or abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church
those allegedly unworthy of membership, are unquestionably ecclesiastical
matters which are outside the province of the civil courts.[369]
VIII. Free Exercise Clause vis--vis Establishment Clause
In both Philippine and U.S. jurisdiction, it is recognized that there is a tension

between the Free Exercise Clause and the Establishment Clause in their
application. There is a natural antagonism between a command not to
establish religion and a command not to inhibit its practice; this tension
between the religion clauses often leaves the courts with a choice between
competing values in religion cases.[370]
One set of facts, for instance, can be differently viewed from the
Establishment Clause perspective and the Free Exercise Clause point of view,
and decided in opposite directions. In Pamil, the majority gave more weight
to the religious liberty of the priest in holding that the prohibition of
ecclesiastics to assume elective or appointive government positions was
violative of the Free Exercise Clause. On the other hand, the prevailing five
justices gave importance to the Establishment Clause in stating that the
principle of separation of church and state justified the prohibition.
Tension is also apparent when a case is decided to uphold the Free Exercise
Clause and consequently exemptions from a law of general applicability are
afforded by the Court to the person claiming religious freedom; the question
arises whether the exemption does not amount to support of the religion in
violation of the Establishment Clause. This was the case in the Free Exercise
Clause case of Sherbert where the U.S. Supreme Court ruled, viz:
In holding as we do, plainly we are not fostering the establishment of the

Seventh-day Adventist religion in South Carolina, for the extension of
unemployment benefits to Sabbatarians in common with Sunday worshippers
reflects nothing more than the governmental obligation of neutrality in the
face of religious differences, and does not represent that involvement of
religious with secular institutions which it is the object of the Establishment
Clause to forestall.[371] (emphasis supplied)
Tension also exists when a law of general application provides exemption in

order to uphold free exercise as in the Walz case where the appellant argued
that the exemption granted to religious organizations, in effect, required him
to contribute to religious bodies in violation of the Establishment Clause. But
the Court held that the exemption was not a case of establishing religion but
merely upholding the Free Exercise Clause by sparing the exercise of religion
from the burden of property taxation levied on private profit institutions.
Justice Burger wrote, viz:
(t)he Court has struggled to find a neutral course between the two religion
clauses, both of which are cast in absolute terms, and either of which, if
expanded to a logical extreme, would tend to clash with the other.[372]
Similarly, the Philippine Supreme Court in the Victoriano case held that the
exemption afforded by law to religious sects who prohibit their members
from joining unions did not offend the Establishment Clause. We ruled, viz:
We believe that in enacting Republic Act No. 3350, Congress acted

consistently with the spirit of the constitutional provision. It acted merely to
relieve the exercise of religion, by certain persons, of a burden that is imposed
by union security agreements.[373] (emphasis supplied)
Finally, in some cases, a practice is obviously violative of the Establishment

Clause but the Court nevertheless upholds it. In Schempp, Justice Brennan
stated: (t)here are certain practices, conceivably violative of the
Establishment Clause, the striking down of which might seriously interfere
with certain religious liberties also protected by the First Amendment.
How the tension between the Establishment Clause and the Free Exercise
Clause will be resolved is a question for determination in the actual cases that
come to the Court. In cases involving both the Establishment Clause and the
Free Exercise Clause, the two clauses should be balanced against each other.
The courts must review all the relevant facts and determine whether there is
a sufficiently strong free exercise right that should prevail over the
Establishment Clause problem. In the United States, it has been proposed that
in balancing, the free exercise claim must be given an edge not only because
of abundant historical evidence in the colonial and early national period of
the United States that the free exercise principle long antedated any broad-
based support of disestablishment, but also because an Establishment Clause
concern raised by merely accommodating a citizens free exercise of religion
seems far less dangerous to the republic than pure establishment cases. Each
time the courts side with the Establishment Clause in cases involving tension
between the two religion clauses, the courts convey a message of hostility to
the religion that in that case cannot be freely exercised.[374] American
professor of constitutional law, Laurence Tribe, similarly suggests that the
free exercise principle should be dominant in any conflict with the anti-
establishment principle. This dominance would be the result of commitment
to religious tolerance instead of thwarting at all costs even the faintest
appearance of establishment.[375] In our jurisdiction, Fr. Joaquin Bernas, S.J.
asserts that a literal interpretation of the religion clauses does not suffice.
Modern society is characterized by the expanding regulatory arm of
government that reaches a variety of areas of human conduct and an
expanding concept of religion. To adequately meet the demands of this
modern society, the societal values the religion clauses are intended to
protect must be considered in their interpretation and resolution of the
tension. This, in fact, has been the approach followed by the Philippine
Court.[376]
IX. Philippine Religion Clauses: Nature, Purpose, Tests

Based on Philippine and American Religion Clause History,
Law and Jurisprudence
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution. The religion clauses in the First Amendment were contained in
every organic Act of the Philippines under the American regime. When the
delegates of the 1934 Constitutional Convention adopted a Bill of Rights in
the 1935 Constitution, they purposely retained the phraseology of the
religion clauses in the First Amendment as contained in the Jones Law in order
to adopt its historical background, nature, extent and limitations. At that
time, there were not too many religion clause cases in the United States as
the U.S. Supreme Court decided an Establishment Clause issue only in the
1947 Everson case. The Free Exercise Clause cases were also scarce then. Over
the years, however, with the expanding reach of government regulation to a
whole gamut of human actions and the growing plurality and activities of
religions, the number of religion clause cases in the U.S. exponentially
increased. With this increase came an expansion of the interpretation of the
religion clauses, at times reinforcing prevailing case law, at other times
modifying it, and still at other times creating contradictions so that two main
streams of jurisprudence had become identifiable. The first stream employs
separation while the second employs benevolent neutrality in interpreting
the religious clauses. Alongside this change in the landscape of U.S. religion
clause jurisprudence, the Philippines continued to adopt the 1935
Constitution religion clauses in the 1973 Constitution and later, the 1987
Constitution. Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence. One might simply conclude that the Philippine Constitutions
and jurisprudence also inherited the disarray of U.S. religion clause
jurisprudence and the two identifiable streams; thus, when a religion clause
case comes before the Court, a separationist approach or a benevolent
neutrality approach might be adopted and each will have U.S. authorities to
support it. Or, one might conclude that as the history of the First Amendment
as narrated by the Court in Everson supports the separationist approach,
Philippine jurisprudence should also follow this approach in light of the
Philippine religion clauses history. As a result, in a case where the party claims
religious liberty in the face of a general law that inadvertently burdens his
religious exercise, he faces an almost insurmountable wall in convincing the
Court that the wall of separation would not be breached if the Court grants
him an exemption. These conclusions, however, are not and were never
warranted by the 1987, 1973 and 1935 Constitutions as shown by other
provisions on religion in all three constitutions. It is a cardinal rule in
constitutional construction that the constitution must be interpreted as a
whole and apparently conflicting provisions should be reconciled and
harmonized in a manner that will give to all of them full force and effect.[377]
From this construction, it will be ascertained that the intent of the framers
was to adopt a benevolent neutrality approach in interpreting the religious
clauses in the Philippine constitutions, and the enforcement of this intent is
the goal of construing the constitution.[378]
We first apply the hermeneutical scalpel to dissect the 1935 Constitution. At

the same time that the 1935 Constitution provided for an Establishment
Clause, it also provided for tax exemption of church property in Article VI,
Section 22, par. 3(b), viz:
(3) Cemeteries, churches, and parsonages or convents, appurtenant thereto,

and all lands, buildings, and improvements used exclusively for religious,
charitable, or educational purposes shall be exempt from taxation.
Before the advent of the 1935 Constitution, Section 344 of the Administrative
Code provided for a similar exemption. To the same effect, the Tydings-
McDuffie Law contained a limitation on the taxing power of the Philippine
government during the Commonwealth period.[379] The original draft of the
Constitution placed this provision in an ordinance to be appended to the
Constitution because this was among the provisions prescribed by the
Tydings-McDuffie Law. However, in order to have a constitutional guarantee
for such an exemption even beyond the Commonwealth period, the provision
was introduced in the body of the Constitution on the rationale that if
churches, convents [rectories or parsonages] and their accessories are always
necessary for facilitating the exercise of such [religious] freedom, it would
also be natural that their existence be also guaranteed by exempting them
from taxation.[380] The amendment was readily approved with 83
affirmative votes against 15 negative votes.[381]
The Philippine constitutional provision on tax exemption is not found in the

U.S. Constitution. In the U.S. case of Walz, the Court struggled to justify this
kind of exemption to withstand Establishment Clause scrutiny by stating that
church property was not singled out but was exempt along with property
owned by non-profit, quasi-public corporations because the state upheld the
secular policy that considers these groups as beneficial and stabilizing
influences in community life and finds this classification useful, desirable, and
in the public interest. The Court also stated that the exemption was meant to
relieve the burden on free exercise imposed by property taxation. At the same
time, however, the Court acknowledged that the exemption was an exercise
of benevolent neutrality to accommodate a long-standing tradition of
exemption. With the inclusion of the church property tax exemption in the
body of the 1935 Constitution and not merely as an ordinance appended to
the Constitution, the benevolent neutrality referred to in the Walz case was
given constitutional imprimatur under the regime of the 1935 Constitution.
The provision, as stated in the deliberations, was an acknowledgment of the
necessity of the exempt institutions to the exercise of religious liberty,
thereby evincing benevolence towards religious exercise.
Similarly, the 1935 Constitution provides in Article VI, Section 23(3), viz:
(3) No public money, or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, sectarian institution or system of religion, for the use, benefit
or support of any priest, preacher, ministers or other religious teacher or
dignitary as such, except when such priest, preacher, minister, or dignitary is
assigned to the armed forces or to any penal institution, orphanage, or
leprosarium. (emphasis supplied)
The original draft of this provision was a reproduction of a portion of section

3 of the Jones Law which did not contain the above exception, viz:
No public money or property shall ever be appropriated, applied, or used,

directly or indirectly, for the use, benefit, or support of any sect, church
denomination, sectarian institution, or system of religion, or for the use,
benefit or support of any priest, preacher, minister, or dignitary as such[382]
In the deliberations of this draft provision, an amendment was proposed to

strike down everything after church denomination.[383] The proposal
intended to imitate the silence of the U.S. Constitution on the subject of
support for priests and ministers. It was also an imitation of the silence of the
Malolos Constitution to restore the situation under the Malolos Constitution
and prior to the Jones Law, when chaplains of the revolutionary army received
pay from public funds with no doubt about its legality. It was pointed out,
however, that even with the prohibition under the Jones Law, appropriations
were made to chaplains of the national penitentiary and the Auditor General
upheld its validity on the basis of a similar United States practice. But it was
also pointed out that the U.S. Constitution did not contain a prohibition on
appropriations similar to the Jones Law.[384] To settle the question on the
constitutionality of payment of salaries of religious officers in certain
government institutions and to avoid the feared situation where the
enumerated government institutions could not employ religious officials with
compensation, the exception in the 1935 provision was introduced and
approved. The provision garnered 74 affirmative votes against 34 negative
votes.[385] As pointed out in the deliberations, the U.S. Constitution does not
provide for this exemption. However, the U.S. Supreme Court in Cruz v. Beto,
apparently taking a benevolent neutrality approach, implicitly approved the
state of Texas payment of prison chaplains salaries as reasonably necessary
to permit inmates to practice their religion. Also, in the Marsh case, the U.S.
Supreme Court upheld the long-standing tradition of beginning legislative
sessions with prayers offered by legislative chaplains retained at taxpayers
expense. The constitutional provision exempting religious officers in
government institutions affirms the departure of the Philippine Constitution
from the U.S. Constitution in its adoption of benevolent neutrality in
Philippine jurisdiction. While the provision prohibiting aid to religion protects
the wall of separation between church and state, the provision at the same
time gives constitutional sanction to a breach in the wall.
To further buttress the thesis that benevolent neutrality is contemplated in

the Philippine Establishment Clause, the 1935 Constitution provides for
optional religious instruction in public schools in Article XIII, Section 5, viz:
. . . Optional religious instruction shall be maintained in the public schools as

now authorized by law. . .
The law then applicable was Section 928 of the Administrative Code, viz:
It shall be lawful, however, for the priest or minister of any church established
in the town where a public school is situated, either in person or by a
designated teacher of religion, to teach religion for one-half hour three times
a week, in the school building, to those public-school pupils whose parents or
guardians desire it and express their desire therefor in writing filed with the
principal of the school . . .
During the debates of the Constitutional Convention, there were three

positions on the issue of religious instruction in public schools. The first held
that the teaching of religion in public schools should be prohibited as this was
a violation of the principle of separation of church and state and the
prohibition against the use of public funds for religious purposes. The second
favored the proposed optional religious instruction as authorized by the
Administrative Code and recognized that the actual practice of allowing
religious instruction in the public schools was sufficient proof that religious
instruction was not and would not be a source of religious discord in the
schools.[386] The third wanted religion to be included as a course in the
curriculum of the public schools but would only be taken by pupils at the
option of their parents or guardians. After several rounds of debate, the
second camp prevailed, thus raising to constitutional stature the optional
teaching of religion in public schools, despite the opposition to the provision
on the ground of separation of church and state.[387] As in the provisions on
church property tax exemption and compensation of religious officers in
government institutions, the U.S. Constitution does not provide for optional
religious instruction in public schools. In fact, in the McCollum case, the Court,
using strict neutrality, prohibited this kind of religious instruction where the
religion teachers would conduct class within the school premises. The
constitutional provision on optional religious instruction shows that
Philippine jurisdiction rejects the strict neutrality approach which does not
allow such accommodation of religion.
Finally, to make certain the Constitutions benevolence to religion, the Filipino

people implored (ing) the aid of Divine Providence (,) in order to establish a
government that shall embody their ideals, conserve and develop the
patrimony of the nation, promote the general welfare, and secure to
themselves and their posterity the blessings of independence under a regime
of justice, liberty, and democracy, (in) ordain(ing) and promulgat(ing) this
Constitution. A preamble is a key to open the mind of the authors of the
constitution as to the evil sought to be prevented and the objects sought to
be accomplished by the provisions thereof.[388] There was no debate on the
inclusion of a Divine Providence in the preamble. In Aglipay, Justice Laurel
noted that when the Filipino people implored the aid of Divine Providence,
(t)hey thereby manifested their intense religious nature and placed
unfaltering reliance upon Him who guides the destinies of men and
nations.[389] The 1935 Constitutions religion clauses, understood alongside
the other provisions on religion in the Constitution, indubitably shows not
hostility, but benevolence, to religion.[390]
The 1973 Constitution contained in Article VI, Section 22(3) a provision similar
to Article VI, Section 22, par. 3(b) of the 1935 Constitution on exemption of
church property from taxation, with the modification that the property
should not only be used directly, but also actually and exclusively for religious
or charitable purposes. Parallel to Article VI, Section 23(3) of the 1935
Constitution, the 1973 Constitution also contained a similar provision on
salaries of religious officials employed in the enumerated government
institutions. Article XIII, Section 5 of the 1935 Constitution on optional
religious instruction was also carried to the 1973 Constitution in Article XV,
Section 8(8) with the modification that optional religious instruction shall be
conducted as may be provided by law and not as now authorized by law as
stated in the 1935 Constitution. The 1973 counterpart, however, made
explicit in the constitution that the religious instruction in public elementary
and high schools shall be done (a)t the option expressed in writing by the
parents or guardians, and without cost to them and the government. With
the adoption of these provisions in the 1973 Constitution, the benevolent
neutrality approach continued to enjoy constitutional sanction. In Article XV,
Section 15 of the General Provisions of the 1973 Constitution this provision
made its maiden appearance: (t)he separation of church and state shall be
inviolable. The 1973 Constitution retained the portion of the preamble
imploring the aid of Divine Providence.
In the Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems

of the Committee on Church and State of the 1971 Constitutional Convention,
the question arose as to whether the absolute separation of Church and State
as enunciated in the Everson case and reiterated in Schempp - i.e., neutrality
not only as between one religion and another but even as between religion
and non-religion - is embodied in the Philippine Constitution. The sub-
committees answer was that it did not seem so. Citing the Aglipay case where
Justice Laurel recognized the elevating influence of religion in human society
and the Filipinos imploring of Divine Providence in the 1935 Constitution, the
sub-committee asserted that the state may not prefer or aid one religion over
another, but may aid all religions equally or the cause of religion in
general.[391] Among the position papers submitted to the Committee on
Church on State was a background paper for reconsideration of the religion
provisions of the constitution by Fr. Bernas, S.J. He stated therein that the
Philippine Constitution is not hostile to religion and in fact recognizes the
value of religion and accommodates religious values.[392] Stated otherwise,
the Establishment Clause contemplates not a strict neutrality but benevolent
neutrality. While the Committee introduced the provision on separation of
church and state in the General Provisions of the 1973 Constitution, this was
nothing new as according to it, this principle was implied in the 1935
Constitution even in the absence of a similar provision.[393]
Then came the 1987 Constitution. The 1973 Constitutional provision on tax
exemption of church property was retained with minor modification in Article
VI, Section 28(3) of the 1987 Constitution. The same is true with respect to
the prohibition on the use of public money and property for religious
purposes and the salaries of religious officers serving in the enumerated
government institutions, now contained in Article VI, Section 29(2).
Commissioner Bacani, however, probed into the possibility of allowing the
government to spend public money for purposes which might have religious
connections but which would benefit the public generally. Citing the Aglipay
case, Commissioner Rodrigo explained that if a public expenditure would
benefit the government directly, such expense would be constitutional even
if it results to an incidental benefit to religion. With that explanation,
Commissioner Bacani no longer pursued his proposal.[394]
The provision on optional religious instruction was also adopted in the 1987
Constitution in Article XIV, Section 3(3) with the modification that it was
expressly provided that optional instruction shall be conducted within the
regular class hours and without additional cost to the government. There
were protracted debates on what additional cost meant, i.e., cost over and
above what is needed for normal operations such as wear and tear, electricity,
janitorial services,[395] and when during the day instruction would be
conducted.[396] In deliberating on the phrase within the regular class hours,
Commissioner Aquino expressed her reservations to this proposal as this
would violate the time-honored principle of separation of church and state.
She cited the McCullom case where religious instruction during regular school
hours was stricken down as unconstitutional and also cited what she
considered the most liberal interpretation of separation of church and state
in Surach v. Clauson where the U.S. Supreme Court allowed only release time
for religious instruction. Fr. Bernas replied, viz:
. . . the whole purpose of the provision was to provide for an exception to the
rule on non-establishment of religion, because if it were not necessary to
make this exception for purposes of allowing religious instruction, then we
could just drop the amendment. But, as a matter of fact, this is necessary
because we are trying to introduce something here which is contrary to
American practices.[397] (emphasis supplied)
(W)ithin regular class hours was approved.
The provision on the separation of church and state was retained but placed
under the Principles in the Declaration of Principles and State Policies in
Article II, Section 6. In opting to retain the wording of the provision, Fr. Bernas
stated, viz:
. . . It is true, I maintain, that as a legal statement the sentence The separation

of Church and State is inviolable, is almost a useless statement; but at the
same time it is a harmless statement. Hence, I am willing to tolerate it there,
because, in the end, if we look at the jurisprudence on Church and State,
arguments are based not on the statement of separation of church and state
but on the non-establishment clause in the Bill of Rights.[398]
The preamble changed Divine Providence in the 1935 and 1973 Constitutions
to Almighty God. There was considerable debate on whether to use Almighty
God which Commissioner Bacani said was more reflective of Filipino
religiosity, but Commissioner Rodrigo recalled that a number of atheistic
delegates in the 1971 Constitutional Convention objected to reference to a
personal God.[399] God of History, Lord of History and God were also
proposed, but the phrase Almighty God prevailed. Similar to the 1935 and
1971 Constitutions, it is obvious that the 1987 Constitution is not hostile nor
indifferent to religion;[400] its wall of separation is not a wall of hostility or
indifference.[401]
The provisions of the 1935, 1973 and 1987 constitutions on tax exemption of
church property, salary of religious officers in government institutions,
optional religious instruction and the preamble all reveal without doubt that
the Filipino people, in adopting these constitutions, did not intend to erect a
high and impregnable wall of separation between the church and state.[402]
The strict neutrality approach which examines only whether government
action is for a secular purpose and does not consider inadvertent burden on
religious exercise protects such a rigid barrier. By adopting the above
constitutional provisions on religion, the Filipinos manifested their adherence
to the benevolent neutrality approach in interpreting the religion clauses, an
approach that looks further than the secular purposes of government action
and examines the effect of these actions on religious exercise. Benevolent
neutrality recognizes the religious nature of the Filipino people and the
elevating influence of religion in society; at the same time, it acknowledges
that government must pursue its secular goals. In pursuing these goals,
however, government might adopt laws or actions of general applicability
which inadvertently burden religious exercise. Benevolent neutrality gives
room for accommodation of these religious exercises as required by the Free
Exercise Clause. It allows these breaches in the wall of separation to uphold
religious liberty, which after all is the integral purpose of the religion clauses.
The case at bar involves this first type of accommodation where an exemption
is sought from a law of general applicability that inadvertently burdens
religious exercise.
Although our constitutional history and interpretation mandate benevolent

neutrality, benevolent neutrality does not mean that the Court ought to grant
exemptions every time a free exercise claim comes before it. But it does mean
that the Court will not look with hostility or act indifferently towards religious
beliefs and practices and that it will strive to accommodate them when it can
within flexible constitutional limits; it does mean that the Court will not simply
dismiss a claim under the Free Exercise Clause because the conduct in
question offends a law or the orthodox view for this precisely is the protection
afforded by the religion clauses of the Constitution, i.e., that in the absence
of legislation granting exemption from a law of general applicability, the Court
can carve out an exception when the religion clauses justify it. While the Court
cannot adopt a doctrinal formulation that can eliminate the difficult questions
of judgment in determining the degree of burden on religious practice or
importance of the state interest or the sufficiency of the means adopted by
the state to pursue its interest, the Court can set a doctrine on the ideal
towards which religious clause jurisprudence should be directed.[403] We
here lay down the doctrine that in Philippine jurisdiction, we adopt the
benevolent neutrality approach not only because of its merits as discussed
above, but more importantly, because our constitutional history and
interpretation indubitably show that benevolent neutrality is the launching
pad from which the Court should take off in interpreting religion clause cases.
The ideal towards which this approach is directed is the protection of religious
liberty not only for a minority, however small- not only for a majority,
however large- but for each of us to the greatest extent possible within
flexible constitutional limits.
Benevolent neutrality is manifest not only in the Constitution but has also
been recognized in Philippine jurisprudence, albeit not expressly called
benevolent neutrality or accommodation. In Aglipay, the Court not only
stressed the elevating influence of religion in human society but
acknowledged the Constitutional provisions on exemption from tax of church
property, salary of religious officers in government institutions, and optional
religious instruction as well as the provisions of the Administrative Code
making Thursday and Friday of the Holy Week, Christmas Day and Sundays
legal holidays. In Garces, the Court not only recognized the Constitutional
provisions indiscriminately granting concessions to religious sects and
denominations, but also acknowledged that government participation in
long-standing traditions which have acquired a social character - the barrio
fiesta is a socio-religious affair - does not offend the Establishment Clause. In
Victoriano, the Court upheld the exemption from closed shop provisions of
members of religious sects who prohibited their members from joining unions
upon the justification that the exemption was not a violation of the
Establishment Clause but was only meant to relieve the burden on free
exercise of religion. In Ebralinag, members of the Jehovahs Witnesses were
exempt from saluting the flag as required by law, on the basis not of a statute
granting exemption but of the Free Exercise Clause without offending the
Establishment Clause.
While the U.S. and Philippine religion clauses are similar in form and origin,
Philippine constitutional law has departed from the U.S. jurisprudence of
employing a separationist or strict neutrality approach. The Philippine religion
clauses have taken a life of their own, breathing the air of benevolent
neutrality and accommodation. Thus, the wall of separation in Philippine
jurisdiction is not as high and impregnable as the wall created by the U.S.
Supreme Court in Everson.[404] While the religion clauses are a unique
American experiment which understandably came about as a result of
Americas English background and colonization, the life that these clauses
have taken in this jurisdiction is the Philippines own experiment, reflective of
the Filipinos own national soul, history and tradition. After all, the life of the
law. . . has been experience.
But while history, constitutional construction, and earlier jurisprudence

unmistakably show that benevolent neutrality is the lens with which the Court
ought to view religion clause cases, it must be stressed that the interest of the
state should also be afforded utmost protection. To do this, a test must be
applied to draw the line between permissible and forbidden religious
exercise. It is quite paradoxical that in order for the members of a society to
exercise their freedoms, including their religious liberty, the law must set a
limit when their exercise offends the higher interest of the state. To do
otherwise is self-defeating for unlimited freedom would erode order in the
state and foment anarchy, eventually destroying the very state its members
established to protect their freedoms. The very purpose of the social contract
by which people establish the state is for the state to protect their liberties;
for this purpose, they give up a portion of these freedoms - including the
natural right to free exercise - to the state. It was certainly not the intention
of the authors of the constitution that free exercise could be used to
countenance actions that would undo the constitutional order that
guarantees free exercise.[405]
The all important question then is the test that should be used in ascertaining
the limits of the exercise of religious freedom. Philippine jurisprudence
articulates several tests to determine these limits. Beginning with the first
case on the Free Exercise Clause, American Bible Society, the Court
mentioned the clear and present danger test but did not employ it.
Nevertheless, this test continued to be cited in subsequent cases on religious
liberty. The Gerona case then pronounced that the test of permissibility of
religious freedom is whether it violates the established institutions of society
and law. The Victoriano case mentioned the immediate and grave danger test
as well as the doctrine that a law of general applicability may burden religious
exercise provided the law is the least restrictive means to accomplish the goal
of the law. The case also used, albeit inappropriately, the compelling state
interest test. After Victoriano, German went back to the Gerona rule.
Ebralinag then employed the grave and immediate danger test and overruled
the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the
clear and present danger test in the maiden case of American Bible Society.
Not surprisingly, all the cases which employed the clear and present danger
or grave and immediate danger test involved, in one form or another,
religious speech as this test is often used in cases on freedom of expression.
On the other hand, the Gerona and German cases set the rule that religious
freedom will not prevail over established institutions of society and law.
Gerona, however, which was the authority cited by German has been
overruled by Ebralinag which employed the grave and immediate danger test.
Victoriano was the only case that employed the compelling state interest test,
but as explained previously, the use of the test was inappropriate to the facts
of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the clear and present danger and grave
and immediate danger tests were appropriate as speech has easily discernible
or immediate effects. The Gerona and German doctrine, aside from having
been overruled, is not congruent with the benevolent neutrality approach,
thus not appropriate in this jurisdiction. Similar to Victoriano, the present
case involves purely conduct arising from religious belief. The compelling
state interest test is proper where conduct is involved for the whole gamut of
human conduct has different effects on the states interests: some effects may
be immediate and short-term while others delayed and far-reaching. A test
that would protect the interests of the state in preventing a substantive evil,
whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious
freedom as this is a fundamental right that enjoys a preferred position in the
hierarchy of rights - the most inalienable and sacred of all human rights, in
the words of Jefferson.[406] This right is sacred for an invocation of the Free
Exercise Clause is an appeal to a higher sovereignty. The entire constitutional
order of limited government is premised upon an acknowledgment of such
higher sovereignty,[407] thus the Filipinos implore the aid of Almighty God in
order to build a just and humane society and establish a government. As held
in Sherbert, only the gravest abuses, endangering paramount interests can
limit this fundamental right. A mere balancing of interests which balances a
right with just a colorable state interest is therefore not appropriate. Instead,
only a compelling interest of the state can prevail over the fundamental right
to religious liberty. The test requires the state to carry a heavy burden, a
compelling one, for to do otherwise would allow the state to batter religion,
especially the less powerful ones until they are destroyed.[408] In
determining which shall prevail between the states interest and religious
liberty, reasonableness shall be the guide.[409] The compelling state interest
serves the purpose of revering religious liberty while at the same time
affording protection to the paramount interests of the state. This was the test
used in Sherbert which involved conduct, i.e. refusal to work on Saturdays. In
the end, the compelling state interest test, by upholding the paramount
interests of the state, seeks to protect the very state, without which, religious
liberty will not be preserved.
X. Application of the Religion Clauses to the Case at Bar
A. The Religion Clauses and Morality
In a catena of cases, the Court has ruled that government employees engaged
in illicit relations are guilty of disgraceful and immoral conduct for which
he/she may be held administratively liable.[410] In these cases, there was not
one dissent to the majoritys ruling that their conduct was immoral. The
respondents themselves did not foist the defense that their conduct was not
immoral, but instead sought to prove that they did not commit the alleged
act or have abated from committing the act. The facts of the 1975 case of De
Dios v. Alejo[411] and the 1999 case of Maguad v. De Guzman,[412] are
similar to the case at bar - i.e., the complainant is a mere stranger and the
legal wife has not registered any objection to the illicit relation, there is no
proof of scandal or offense to the moral sensibilities of the community in
which the respondent and the partner live and work, and the government
employee is capacitated to marry while the partner is not capacitated but has
long been separated in fact. Still, the Court found the government employees
administratively liable for disgraceful and immoral conduct and only
considered the foregoing circumstances to mitigate the penalty. Respondent
Escritor does not claim that there is error in the settled jurisprudence that an
illicit relation constitutes disgraceful and immoral conduct for which a
government employee is held liable. Nor is there an allegation that the norms
of morality with respect to illicit relations have shifted towards leniency from
the time these precedent cases were decided. The Court finds that there is no
such error or shift, thus we find no reason to deviate from these rulings that
such illicit relationship constitutes disgraceful and immoral conduct
punishable under the Civil Service Law. Respondent having admitted the
alleged immoral conduct, she, like the respondents in the above-cited cases,
could be held administratively liable. However, there is a distinguishing factor
that sets the case at bar apart from the cited precedents, i.e., as a defense,
respondent invokes religious freedom since her religion, the Jehovahs
Witnesses, has, after thorough investigation, allowed her conjugal
arrangement with Quilapio based on the churchs religious beliefs and
practices. This distinguishing factor compels the Court to apply the religious
clauses to the case at bar.
Without holding that religious freedom is not in issue in the case at bar, both
the dissenting opinion of Mme. Justice Ynares-Santiago and the separate
opinion of Mr. Justice Vitug dwell more on the standards of morality than on
the religion clauses in deciding the instant case. A discussion on morality is in
order.
At base, morality refers to, in Socrates words, how we ought to live and why.
Any definition of morality beyond Socrates simple formulation is bound to
offend one or another of the many rival theories regarding what it means to
live morally.[413] The answer to the question of how we ought to live
necessarily considers that man does not live in isolation, but in society. Devlin
posits that a society is held together by a community of ideas, made up not
only of political ideas but also of ideas about the manner its members should
behave and govern their lives. The latter are their morals; they constitute the
public morality. Each member of society has ideas about what is good and
what is evil. If people try to create a society wherein there is no fundamental
agreement about good and evil, they will fail; if having established the society
on common agreement, the agreement collapses, the society will
disintegrate. Society is kept together by the invisible bonds of common
thought so that if the bonds are too loose, the members would drift apart. A
common morality is part of the bondage and the bondage is part of the price
of society; and mankind, which needs society, must pay its price.[414] This
design is parallel with the social contract in the realm of politics: people give
up a portion of their liberties to the state to allow the state to protect their
liberties. In a constitutional order, people make a fundamental agreement
about the powers of government and their liberties and embody this
agreement in a constitution, hence referred to as the fundamental law of the
land. A complete break of this fundamental agreement such as by revolution
destroys the old order and creates a new one.[415] Similarly, in the realm of
morality, the breakdown of the fundamental agreement about the manner a
societys members should behave and govern their lives would disintegrate
society. Thus, society is justified in taking steps to preserve its moral code by
law as it does to preserve its government and other essential
institutions.[416] From these propositions of Devlin, one cannot conclude
that Devlin negates diversity in society for he is merely saying that in the midst
of this diversity, there should nevertheless be a fundamental agreement
about good and evil that will govern how people in a society ought to live. His
propositions, in fact, presuppose diversity hence the need to come to an
agreement; his position also allows for change of morality from time to time
which may be brought about by this diversity. In the same vein, a pluralistic
society lays down fundamental rights and principles in their constitution in
establishing and maintaining their society, and these fundamental values and
principles are translated into legislation that governs the order of society,
laws that may be amended from time to time. Harts argument propounded
in Mr. Justice Vitugs separate opinion that, Devlins view of people living in a
single society as having common moral foundation (is) overly simplistic
because societies have always been diverse fails to recognize the necessity of
Devlins proposition in a democracy. Without fundamental agreement on
political and moral ideas, society will fall into anarchy; the agreement is
necessary to the existence and progress of society.
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together.
Citizens are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining
which convictions and moral judgments may be proposed for public
deliberation. Through a constitutionally designed process, the people
deliberate and decide. Majority rule is a necessary principle in this democratic
governance.[417] Thus, when public deliberation on moral judgments is
finally crystallized into law, the laws will largely reflect the beliefs and
preferences of the majority, i.e., the mainstream or median groups.[418]
Nevertheless, in the very act of adopting and accepting a constitution and the
limits it specifies -- including protection of religious freedom not only for a
minority, however small- not only for a majority, however large- but for each
of us -- the majority imposes upon itself a self-denying ordinance. It promises
not to do what it otherwise could do: to ride roughshod over the dissenting
minorities.[419] In the realm of religious exercise, benevolent neutrality that
gives room for accommodation carries out this promise, provided the
compelling interests of the state are not eroded for the preservation of the
state is necessary to the preservation of religious liberty. That is why
benevolent neutrality is necessary in a pluralistic society such as the United
States and the Philippines to accommodate those minority religions which are
politically powerless. It is not surprising that Smith is much criticized for it
blocks the judicial recourse of the minority for religious accommodations.
The laws enacted become expressions of public morality. As Justice Holmes

put it, (t)he law is the witness and deposit of our moral life.[420] In a liberal
democracy, the law reflects social morality over a period of time.[421]
Occasionally though, a disproportionate political influence might cause a law
to be enacted at odds with public morality or legislature might fail to repeal
laws embodying outdated traditional moral views.[422] Law has also been
defined as something men create in their best moments to protect
themselves in their worst moments.[423] Even then, laws are subject to
amendment or repeal just as judicial pronouncements are subject to
modification and reversal to better reflect the public morals of a society at a
given time. After all, the life of the law...has been experience, in the words of
Justice Holmes. This is not to say though that law is all of morality. Law deals
with the minimum standards of human conduct while morality is concerned
with the maximum. A person who regulates his conduct with the sole object
of avoiding punishment under the law does not meet the higher moral
standards set by society for him to be called a morally upright person.[424]
Law also serves as a helpful starting point for thinking about a proper or ideal
public morality for a society[425] in pursuit of moral progress.
In Magno v. Court of Appeals, et al.,[426] we articulated the relationship

between law and public morality. We held that under the utilitarian theory,
the protective theory in criminal law, criminal law is founded upon the moral
disapprobation x x x of actions which are immoral, i.e., which are detrimental
(or dangerous) to those conditions upon which depend the existence and
progress of human society. This disapprobation is inevitable to the extent that
morality is generally founded and built upon a certain concurrence in the
moral opinions of all. x x x That which we call punishment is only an external
means of emphasizing moral disapprobation: the method of punishment is in
reality the amount of punishment.[427] Stated otherwise, there are certain
standards of behavior or moral principles which society requires to be
observed and these form the bases of criminal law. Their breach is an offense
not only against the person injured but against society as a whole.[428] Thus,
even if all involved in the misdeed are consenting parties, such as in the case
at bar, the injury done is to the public morals and the public interest in the
moral order.[429] Mr. Justice Vitug expresses concern on this point in his
separate opinion. He observes that certain immoral acts which appear private
and not harmful to society such as sexual congress between a man and a
prostitute, though consensual and private, and with no injured third party,
remains illegal in this country. His opinion asks whether these laws on private
morality are justified or they constitute impingement on ones freedom of
belief. Discussion on private morality, however, is not material to the case at
bar for whether respondents conduct, which constitutes concubinage,[430] is
private in the sense that there is no injured party or the offended spouse
consents to the concubinage, the inescapable fact is that the legislature has
taken concubinage out of the sphere of private morals. The legislature
included concubinage as a crime under the Revised Penal Code and the
constitutionality of this law is not being raised in the case at bar. In the
definition of the crime of concubinage, consent of the injured party, i.e., the
legal spouse, does not alter or negate the crime unlike in rape[431] where
consent of the supposed victim negates the crime. If at all, the consent or
pardon of the offended spouse in concubinage negates the prosecution of the
action,[432] but does not alter the legislatures characterization of the act as
a moral disapprobation punishable by law. The separate opinion states that,
(t)he ponencia has taken pains to distinguish between secular and private
morality, and reached the conclusion that the law, as an instrument of the
secular State should only concern itself with secular morality. The Court does
not draw this distinction in the case at bar. The distinction relevant to the case
is not, as averred and discussed by the separate opinion, between secular and
private morality, but between public and secular morality on the one hand,
and religious morality on the other, which will be subsequently discussed.
Not every moral wrong is foreseen and punished by law, criminal or

otherwise. We recognized this reality in Velayo, et al. v. Shell Co. of the
Philippine Islands, et al., where we explained that for those wrongs which are
not punishable by law, Articles 19 and 21 in Chapter 2 of the Preliminary Title
of the New Civil Code, dealing with Human Relations, provide for the
recognition of the wrong and the concomitant punishment in the form of
damages. Articles 19 and 21 provide, viz:
Art. 19. Any person must, in the exercise of his rights and in the performance
of his duties, act with justice, give everyone his due and observe honesty and
good faith.
xxx xxx xxx
Art. 21. Any person who willfully causes loss or injury to another in a manner
that is contrary to morals, good customs or public policy shall compensate the
latter for the damage. (emphasis supplied)
We then cited in Velayo the Code Commissions comment on Article 21:
Thus at one stroke, the legislator, if the foregoing rule is approved (as it was
approved), would vouchsafe adequate legal remedy for that untold numbers
of moral wrongs which is impossible for human foresight to provide for
specifically in the statutes.
But, it may be asked, would this proposed article obliterate the boundary line
between morality and law? The answer is that, in the last analysis, every good
law draws its breath of life from morals, from those principles which are
written with words of fire in the conscience of man. If this premise is
admitted, then the proposed rule is a prudent earnest of justice in the face of
the impossibility of enumerating, one by one, all wrongs which cause
damages. When it is reflected that while codes of law and statutes have
changed from age to age, the conscience of man has remained fixed to its
ancient moorings, one can not but feel that it is safe and salutary to
transmute, as far as may be, moral norms into legal rules, thus imparting to
every legal system that enduring quality which ought to be one of its
superlative attributes.
Furthermore, there is no belief of more baneful consequence upon the social

order than that a person may with impunity cause damage to his fellow-men
so long as he does not break any law of the State, though he may be defying
the most sacred postulates of morality. What is more, the victim loses faith in
the ability of the government to afford him protection or relief.
A provision similar to the one under consideration is embodied in article 826

of the German Civil Code.[433] (emphases supplied)
The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing
a religion, including the morality it sanctions. Religious morality proceeds
from a persons views of his relations to His Creator and to the obligations they
impose of reverence to His being and character and obedience to His Will, in
accordance with this Courts definition of religion in American Bible Society
citing Davis. Religion also dictates how we ought to live for the nature of
religion is not just to know, but often, to act in accordance with mans views
of his relations to His Creator.[434] But the Establishment Clause puts a
negative bar against establishment of this morality arising from one religion
or the other, and implies the affirmative establishment of a civil order for the
resolution of public moral disputes. This agreement on a secular mechanism
is the price of ending the war of all sects against all; the establishment of a
secular public moral order is the social contract produced by religious
truce.[435]
Thus, when the law speaks of immorality in the Civil Service Law or immoral
in the Code of Professional Responsibility for lawyers[436], or public morals
in the Revised Penal Code,[437] or morals in the New Civil Code,[438] or moral
character in the Constitution,[439] the distinction between public and secular
morality on the one hand, and religious morality, on the other, should be kept
in mind.[440] The morality referred to in the law is public and necessarily
secular, not religious as the dissent of Mr. Justice Carpio holds. Religious
teachings as expressed in public debate may influence the civil public order
but public moral disputes may be resolved only on grounds articulable in
secular terms.[441] Otherwise, if government relies upon religious beliefs in
formulating public policies and morals, the resulting policies and morals
would require conformity to what some might regard as religious programs
or agenda. The non-believers would therefore be compelled to conform to a
standard of conduct buttressed by a religious belief, i.e., to a compelled
religion, anathema to religious freedom. Likewise, if government based its
actions upon religious beliefs, it would tacitly approve or endorse that belief
and thereby also tacitly disapprove contrary religious or non-religious views
that would not support the policy. As a result, government will not provide
full religious freedom for all its citizens, or even make it appear that those
whose beliefs are disapproved are second-class citizens. Expansive religious
freedom therefore requires that government be neutral in matters of religion;
governmental reliance upon religious justification is inconsistent with this
policy of neutrality.[442]
In other words, government action, including its proscription of immorality as

expressed in criminal law like concubinage, must have a secular purpose. That
is, the government proscribes this conduct because it is detrimental (or
dangerous) to those conditions upon which depend the existence and
progress of human society and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of
a religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with
heaven.[443] Succinctly put, a law could be religious or Kantian or Aquinian
or utilitarian in its deepest roots, but it must have an articulable and
discernible secular purpose and justification to pass scrutiny of the religion
clauses. Otherwise, if a law has an apparent secular purpose but upon closer
examination shows a discriminatory and prohibitory religious purpose, the
law will be struck down for being offensive of the religion clauses as in Church
of the Lukumi Babalu Aye, Inc. where the U.S. Supreme Court invalidated an
ordinance prohibiting animal sacrifice of the Santeria. Recognizing the
religious nature of the Filipinos and the elevating influence of religion in
society, however, the Philippine constitutions religion clauses prescribe not a
strict but a benevolent neutrality. Benevolent neutrality recognizes that
government must pursue its secular goals and interests but at the same time
strives to uphold religious liberty to the greatest extent possible within
flexible constitutional limits. Thus, although the morality contemplated by
laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state
interests.
Mr. Justice Vitugs separate opinion embraces the benevolent neutrality

approach when it states that in deciding the case at bar, the approach should
consider that, (a)s a rule . . . moral laws are justified only to the extent that
they directly or indirectly serve to protect the interests of the larger society.
It is only where their rigid application would serve to obliterate the value
which society seeks to uphold, or defeat the purpose for which they are
enacted would, a departure be justified. In religion clause parlance, the
separate opinion holds that laws of general applicability governing morals
should have a secular purpose of directly or indirectly protecting the interests
of the state. If the strict application of these laws (which are the Civil Service
Law and the laws on marriage) would erode the secular purposes of the law
(which the separate opinion identifies as upholding the sanctity of marriage
and the family), then in a benevolent neutrality framework, an
accommodation of the unconventional religious belief and practice (which
the separate opinion holds should be respected on the ground of freedom of
belief) that would promote the very same secular purpose of upholding the
sanctity of marriage and family through the Declaration Pledging Faithfulness
that makes the union binding and honorable before God and men, is required
by the Free Exercise Clause. The separate opinion then makes a preliminary
discussion of the values society seeks to protect in adhering to monogamous
marriage, but concludes that these values and the purposes of the applicable
laws should be thoroughly examined and evidence in relation thereto
presented in the OCA. The accommodation approach in the case at bar would
also require a similar discussion of these values and presentation of evidence
before the OCA by the state that seeks to protect its interest on marriage and
opposes the accommodation of the unconventional religious belief and
practice regarding marriage.
The distinction between public and secular morality as expressed - albeit not
exclusively - in the law, on the one hand, and religious morality, on the other,
is important because the jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at
bar should be understood only in this realm where it has authority. More
concretely, should the Court declare respondents conduct as immoral and
hold her administratively liable, the Court will be holding that in the realm of
public morality, her conduct is reprehensible or there are state interests
overriding her religious freedom. For as long as her conduct is being judged
within this realm, she will be accountable to the state. But in so ruling, the
Court does not and cannot say that her conduct should be made
reprehensible in the realm of her church where it is presently sanctioned and
that she is answerable for her immorality to her Jehovah God nor that other
religions prohibiting her conduct are correct. On the other hand, should the
Court declare her conduct permissible, the Court will be holding that under
her unique circumstances, public morality is not offended or that upholding
her religious freedom is an interest higher than upholding public morality thus
her conduct should not be penalized. But the Court is not ruling that the
tenets and practice of her religion are correct nor that other churches which
do not allow respondents conjugal arrangement should likewise allow such
conjugal arrangement or should not find anything immoral about it and
therefore members of these churches are not answerable for immorality to
their Supreme Being. The Court cannot speak more than what it has authority
to say. In Ballard, the U.S. Supreme Court held that courts cannot inquire
about the truth of religious beliefs. Similarly, in Fonacier, this Court declared
that matters dealing with faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a churchare unquestionably
ecclesiastical matters which are outside the province of the civil courts.[444]
But while the state, including the Court, accords such deference to religious
belief and exercise which enjoy protection under the religious clauses, the
social contract and the constitutional order are designed in such a way that
when religious belief flows into speech and conduct that step out of the
religious sphere and overlap with the secular and public realm, the state has
the power to regulate, prohibit and penalize these expressions and
embodiments of belief insofar as they affect the interests of the state. The
states inroad on religion exercise in excess of this constitutional design is
prohibited by the religion clauses; the Old World, European and American
history narrated above bears out the wisdom of this proscription.
Having distinguished between public and secular morality and religious

morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase disgraceful and immoral
conduct for which a government employee may be held administratively
liable. The line is not easy to draw for it is like a line that divides land and sea,
a coastline of irregularities and indentations.[445] But the case at bar does
not require us to comprehensively delineate between those immoral acts for
which one may be held administratively liable and those to which
administrative liability does not attach. We need not concern ourselves in this
case therefore whether laziness, gluttony, vanity, selfishness, avarice and
cowardice are immoral acts which constitute grounds for administrative
liability. Nor need we expend too much energy grappling with the
propositions that not all immoral acts are illegal or not all illegal acts are
immoral, or different jurisdictions have different standards of morality as
discussed by the dissents and separate opinions, although these observations
and propositions are true and correct. It is certainly a fallacious argument that
because there are exceptions to the general rule that the law is the witness
and deposit of our moral life, then the rule is not true; in fact, that there are
exceptions only affirms the truth of the rule. Likewise, the observation that
morality is relative in different jurisdictions only affirms the truth that there
is morality in a particular jurisdiction; without, however, discounting the truth
that underneath the moral relativism are certain moral absolutes such as
respect for life and truth-telling, without which no society will survive. Only
one conduct is in question before this Court, i.e., the conjugal arrangement
of a government employee whose partner is legally married to another which
Philippine law and jurisprudence consider both immoral and illegal. Lest the
Court inappropriately engage in the impossible task of prescribing
comprehensively how one ought to live, the Court must focus its attention
upon the sole conduct in question before us.
In interpreting disgraceful and immoral conduct, the dissenting opinion of

Mme. Justice Ynares-Santiago groped for standards of morality and stated
that the ascertainment of what is moral or immoral calls for the discovery of
contemporary community standards but did not articulate how these
standards are to be ascertained. Instead, it held that, (f)or those in the service
of the Government, provisions of law and court precedents . . . have to be
considered. It identified the Civil Service Law and the laws on adultery and
concubinage as laws which respondents conduct has offended and cited a
string of precedents where a government employee was found guilty of
committing a disgraceful and immoral conduct for maintaining illicit relations
and was thereby penalized. As stated above, there is no dispute that under
settled jurisprudence, respondents conduct constitutes disgraceful and
immoral conduct. However, the cases cited by the dissent do not involve the
defense of religious freedom which respondent in the case at bar invokes.
Those cited cases cannot therefore serve as precedents in settling the issue
in the case at bar.
Mme. Justice Ynares-Santiagos dissent also cites Cleveland v. United

States[446] in laying down the standard of morality, viz: (w)hether an act is
immoral within the meaning of the statute is not to be determined by
respondents concept of morality. The law provides the standard; the offense
is complete if respondent intended to perform, and did in fact perform, the
act which it condemns. The Mann Act under consideration in the Cleveland
case declares as an offense the transportation in interstate commerce of any
woman or girl for the purpose of prostitution or debauchery, or for any other
immoral purpose.[447] The resolution of that case hinged on the
interpretation of the phrase immoral purpose. The U.S. Supreme Court held
that the petitioner Mormons act of transporting at least one plural wife
whether for the purpose of cohabiting with her, or for the purpose of aiding
another member of their Mormon church in such a project, was covered by
the phrase immoral purpose. In so ruling, the Court relied on Reynolds which
held that the Mormons practice of polygamy, in spite of their defense of
religious freedom, was odious among the northern and western nations of
Europe,[448] a return to barbarism,[449] contrary to the spirit of Christianity
and of the civilization which Christianity has produced in the Western
world,[450] and thus punishable by law.
The Cleveland standard, however, does not throw light to the issue in the case
at bar. The pronouncements of the U.S. Supreme Court that polygamy is
intrinsically odious or barbaric do not apply in the Philippines where Muslims,
by law, are allowed to practice polygamy. Unlike in Cleveland, there is no
jurisprudence in Philippine jurisdiction holding that the defense of religious
freedom of a member of the Jehovahs Witnesses under the same
circumstances as respondent will not prevail over the laws on adultery,
concubinage or some other law. We cannot summarily conclude therefore
that her conduct is likewise so odious and barbaric as to be immoral and
punishable by law.
While positing the view that the resolution of the case at bar lies more on
determining the applicable moral standards and less on religious freedom,
Mme. Justice Ynares-Santiagos dissent nevertheless discussed respondents
plea of religious freedom and disposed of this defense by stating that (a) clear
and present danger of a substantive evil, destructive to public morals, is a
ground for the reasonable regulation of the free exercise and enjoyment of
religious profession. (American Bible Society v. City of Manila, 101 Phil. 386
[1957]). In addition to the destruction of public morals, the substantive evil in
this case is the tearing down of morality, good order, and discipline in the
judiciary. However, the foregoing discussion has shown that the clear and
present danger test that is usually employed in cases involving freedom of
expression is not appropriate to the case at bar which involves purely religious
conduct. The dissent also cites Reynolds in supporting its conclusion that
respondent is guilty of disgraceful and immoral conduct. The Reynolds ruling,
however, was reached with a strict neutrality approach, which is not the
approach contemplated by the Philippine constitution. As discussed above,
Philippine jurisdiction adopts benevolent neutrality in interpreting the
religion clauses.
In the same vein, Mr. Justice Carpios dissent which employs strict neutrality
does not reflect the constitutional intent of employing benevolent neutrality
in interpreting the Philippine religion clauses. His dissent avers that
respondent should be held administratively liable not for disgraceful and
immoral conduct but conduct prejudicial to the best interest of the service as
she is a necessary co-accused of her partner in concubinage. The dissent
stresses that being a court employee, her open violation of the law is
prejudicial to the administration of justice. Firstly, the dissent offends due
process as respondent was not given an opportunity to defend herself against
the charge of conduct prejudicial to the best interest of the service. In
addition, there is no evidence of the alleged prejudice to the best interest of
the service. Most importantly, the dissent concludes that respondents plea of
religious freedom cannot prevail without so much as employing a test that
would balance respondents religious freedom and the states interest at stake
in the case at bar. The foregoing discussion on the doctrine of religious
freedom, however, shows that with benevolent neutrality as a framework,
the Court cannot simply reject respondents plea of religious freedom without
even subjecting it to the compelling state interest test that would balance her
freedom with the paramount interests of the state. The strict neutrality
employed in the cases the dissent cites -Reynolds, Smith and People v. Bitdu
decided before the 1935 Constitution which unmistakably shows adherence
to benevolent neutrality - is not contemplated by our constitution.
Neither is Sulu Islamic Association of Masjid Lambayong v. Judge Nabdar J.

Malik[451] cited in Mr. Justice Carpios dissent decisive of the immorality issue
in the case at bar. In that case, the Court dismissed the charge of immorality
against a Tausug judge for engaging in an adulterous relationship with
another woman with whom he had three children because it (was) not
immoral by Muslim standards for Judge Malik to marry a second time while
his first marriage (existed). Putting the quoted portion in its proper context
would readily show that the Sulu Islamic case does not provide a precedent
to the case at bar. Immediately prior to the portion quoted by the dissent, the
Court stressed, viz: (s)ince Art. 180 of P.D. No. 1083, otherwise known as the
Code of Muslim Personal Laws of the Philippines, provides that the penal laws
relative to the crime of bigamy shall not apply to a person married x x x under
Muslim Law, it is not immoral by Muslim standards for Judge Malik to marry
a second time while his first marriage exists.[452] It was by law, therefore,
that the Muslim conduct in question was classified as an exception to the
crime of bigamy and thus an exception to the general standards of morality.
The constitutionality of P.D. No. 1083 when measured against the
Establishment Clause was not raised as an issue in the Sulu Islamic case. Thus,
the Court did not determine whether P.D. No. 1083 suffered from a
constitutional infirmity and instead relied on the provision excepting the
challenged Muslim conduct from the crime of bigamy in holding that the
challenged act is not immoral by Muslim standards. In contradistinction, in
the case at bar, there is no similar law which the Court can apply as basis for
treating respondents conduct as an exception to the prevailing jurisprudence
on illicit relations of civil servants. Instead, the Free Exercise Clause is being
invoked to justify exemption.
B. Application of Benevolent Neutrality and the

Compelling State Interest Test to the Case at Bar
The case at bar being one of first impression, we now subject the respondents
claim of religious freedom to the compelling state interest test from a
benevolent neutrality stance - i.e. entertaining the possibility that
respondents claim to religious freedom would warrant carving out an
exception from the Civil Service Law; necessarily, her defense of religious
freedom will be unavailing should the government succeed in demonstrating
a more compelling state interest.
In applying the test, the first inquiry is whether respondents right to religious
freedom has been burdened. There is no doubt that choosing between
keeping her employment and abandoning her religious belief and practice
and family on the one hand, and giving up her employment and keeping her
religious practice and family on the other hand, puts a burden on her free
exercise of religion. In Sherbert, the Court found that Sherberts religious
exercise was burdened as the denial of unemployment benefits forces her to
choose between following the precepts of her religion and forfeiting benefits,
on the one hand, and abandoning one of the precepts of her religion in order
to accept work, on the other hand. The burden on respondent in the case at
bar is even greater as the price she has to pay for her employment is not only
her religious precept but also her family which, by the Declaration Pledging
Faithfulness, stands honorable before God and men.
The second step is to ascertain respondents sincerity in her religious belief.

Respondent appears to be sincere in her religious belief and practice and is
not merely using the Declaration of Pledging Faithfulness to avoid
punishment for immorality. She did not secure the Declaration only after
entering the judiciary where the moral standards are strict and defined, much
less only after an administrative case for immorality was filed against her. The
Declaration was issued to her by her congregation after ten years of living
together with her partner, Quilapio, and ten years before she entered the
judiciary. Ministers from her congregation testified on the authenticity of the
Jehovahs Witnesses practice of securing a Declaration and their doctrinal or
scriptural basis for such a practice. As the ministers testified, the Declaration
is not whimsically issued to avoid legal punishment for illicit conduct but to
make the union of their members under respondents circumstances
honorable before God and men. It is also worthy of notice that the Report and
Recommendation of the investigating judge annexed letters[453] of the OCA
to the respondent regarding her request to be exempt from attending the flag
ceremony after Circular No. 62-2001 was issued requiring attendance in the
flag ceremony. The OCAs letters were not submitted by respondent as
evidence but annexed by the investigating judge in explaining that he was
caught in a dilemma whether to find respondent guilty of immorality because
the Court Administrator and Deputy Court Administrator had different
positions regarding respondents request for exemption from the flag
ceremony on the ground of the Jehovahs Witnesses contrary belief and
practice. Respondents request for exemption from the flag ceremony shows
her sincerity in practicing the Jehovahs Witnesses beliefs and not using them
merely to escape punishment. She is a practicing member of the Jehovahs
Witnesses and the Jehovah ministers testified that she is a member in good
standing. Nevertheless, should the government, thru the Solicitor General,
want to further question the respondents sincerity and the centrality of her
practice in her faith, it should be given the opportunity to do so. The
government has not been represented in the case at bar from its incipience
until this point.
In any event, even if the Court deems sufficient respondents evidence on the
sincerity of her religious belief and its centrality in her faith, the case at bar
cannot still be decided using the compelling state interest test. The case at
bar is one of first impression, thus the parties were not aware of the burdens
of proof they should discharge in the Courts use of the compelling state
interest test. We note that the OCA found respondents defense of religious
freedom unavailing in the face of the Courts ruling in Dicdican v. Fernan, et
al., viz:
It bears emphasis that the image of a court of justice is mirrored in the

conduct, official and otherwise, of the personnel who work thereat, from the
judge to the lowest of its personnel. Court personnel have been enjoined to
adhere to the exacting standards of morality and decency in their professional
and private conduct in order to preserve the good name and integrity of the
courts of justice.
It is apparent from the OCAs reliance upon this ruling that the state interest
it upholds is the preservation of the integrity of the judiciary by maintaining
among its ranks a high standard of morality and decency. However, there is
nothing in the OCAs memorandum to the Court that demonstrates how this
interest is so compelling that it should override respondents plea of religious
freedom nor is it shown that the means employed by the government in
pursuing its interest is the least restrictive to respondents religious exercise.
Indeed, it is inappropriate for the complainant, a private person, to present

evidence on the compelling interest of the state. The burden of evidence
should be discharged by the proper agency of the government which is the
Office of the Solicitor General. To properly settle the issue in the case at bar,
the government should be given the opportunity to demonstrate the
compelling state interest it seeks to uphold in opposing the respondents
stance that her conjugal arrangement is not immoral and punishable as it
comes within the scope of free exercise protection. Should the Court prohibit
and punish her conduct where it is protected by the Free Exercise Clause, the
Courts action would be an unconstitutional encroachment of her right to
religious freedom.[454] We cannot therefore simply take a passing look at
respondents claim of religious freedom, but must instead apply the
compelling state interest test. The government must be heard on the issue as
it has not been given an opportunity to discharge its burden of demonstrating
the states compelling interest which can override respondents religious belief
and practice. To repeat, this is a case of first impression where we are
applying the compelling state interest test in a case involving purely religious
conduct. The careful application of the test is indispensable as how we will
decide the case will make a decisive difference in the life of the respondent
who stands not only before the Court but before her Jehovah God.
IN VIEW WHEREOF, the case is REMANDED to the Office of the Court

Administrator. The Solicitor General is ordered to intervene in the case where
it will be given the opportunity (a) to examine the sincerity and centrality of
respondents claimed religious belief and practice; (b) to present evidence on
the states compelling interest to override respondents religious belief and
practice; and (c) to show that the means the state adopts in pursuing its
interest is the least restrictive to respondents religious freedom. The
rehearing should be concluded thirty (30) days from the Office of the Court
Administrators receipt of this Decision.
SO ORDERED.
Davide, Jr., C.J., Austria-Martinez, Corona, Azcuna, and Tinga, JJ., concur.
Bellosillo and Vitug, JJ., please see separate opinion.
Ynares-Santiago, and Carpio, JJ., see dissenting opinion.
Panganiban, Carpio-Morales, and Callejo, Sr., JJ., joins the dissenting opinion
of J. Carpio.
Quisumbing, and Sandoval-Gutierrez, JJ., on official leave.
[1] Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber, P.,
Equal Separation (1990), p. 17.
[2] Walz v. Tax Commission of the City of New York, 397 U.S. 664 (1970), p.
668.
[3] Smith, S., The Rise and Fall of Religious Freedom in Constitutional
Discourse, University of Pennsylvania Law Review, vol. 140(1), November
1991, pp. 149-150.
[4] Concurring Opinion of Justice Stewart, Sherbert v. Verner, 374 U.S. 398, p.
416 (1963).
[5] Rollo, pp. 5-6.
[6] Id. at 8.
[7] Id. at 19-26; TSN, October 12, 2000, pp. 3-10.
[8] Id. at 101.
[9] Id. at 100; Exhibit 3, Certificate of Death.
[10] Id. at 10; Exhibit 1.
[11] Id. at 11; Exhibit 2.
[12] Id. at 27-33.
[13] Id. at 37.
[14] Id. at 191-194; TSN, Soledad Escritor, March 8, 2002, pp. 7-10.
[15] Id. at 156-160, TSN, May 29, 2002, pp. 5-9.

[16] Citing biblical passages, this article addresses the question, Does the
validity of a marriage depend entirely upon its recognition by civil authorities
and does their validation determine how Jehovah God, the author of
marriage, views the union? It traces the origins of marriage to the time of the
Hebrews when marriage was a family or tribal affair. With the forming of
Israel as a nation, God gave a law containing provisions on marriage, but there
was no requirement for a license to be obtained from the priesthood nor that
a priest or a representative from government be present in the marriage to
validate it. Instead, as long as Gods law was adhered to, the marriage was
valid and honorable within the community where the couple lived. In later
Bible times, marriages came to be registered, but only after the marriage had
been officiated, thereby making the government only a record-keeper of the
fact of marriage and not a judge of its morality.
In the early centuries of the Christian congregation, marriage was likewise

chiefly a family affair and there was no requirement of license from the
religious or civil authority to make it valid and honorable. It was conformity
to Gods law that was necessary for the marriage to be viewed as honorable
within the congregation. Later, however, the civil authorities came to have
more prominence in determining the validity of a marriage while the role of
the congregation waned. Christians cannot turn their back on this reality in
desiring to make their marriage honorable among all, i.e., in the sight of God
and men. However, the view of civil authorities regarding the validity of
marriage is relative and sometimes even contradictory to the standards set
by the Bible. For example, in some lands, polygamy is approved while the
Bible says that a man should only have one wife. Likewise, some countries
allow divorce for the slightest reasons while others do not allow divorce. The
Bible, on the other hand, states that there is only one ground for divorce,
namely, fornication, and those divorcing for this reason become free to
marry.
To obtain a balanced view of civil authority (or Caesars authority in Biblical
terms) regarding marriage, it is well to understand the interest of civil
governments in marriage. The government is concerned with the practical
aspects of marriage such as property rights and weakening genetic effects on
children born to blood relatives, and not with the religious or moral aspects
of marriage. Caesars authority is to provide legal recognition and
accompanying protection of marital rights in court systems, thus a Christian
desiring this recognition and rights must adhere to Caesars requirements.
However, God is not bound by Caesars decisions and the Christian should
rightly give conscientious consideration to Caesars marriage and divorce
provisions but will always give greatest consideration to the Supreme
Authority, Jehovah God (Acts 4:19; Rom. 13:105). . . Thus the Christian
appreciates that, even though Caesars rulings of themselves are not what
finally determine the validity of his marriage in Gods eyes, this does not
thereby exempt him from the Scriptural injunction: Let marriage be
honorable among all. (Heb. 13:4) He is obligated to do conscientiously
whatever is within the power to see that his marriage is accorded such honor
by all. Those who wish to be baptized members of the Christian congregation
but do not have legal recognition of their marital union should do all that is
possible to obtain such recognition, thereby removing any doubt as to the
honorableness of their union in the eyes of people.
In some cases, however, it is not possible to secure this recognition. For

instance, in countries where divorce is not allowed even on the Scriptural
ground of fornication, either because of the dominance of one religion or
other reasons, a man might have left his unfaithful wife and lives with another
woman with whom he has a family. He may later learn the truth of Gods Word
and desire to be baptized as a disciple of Gods Son, but he cannot obtain
divorce and remarry as the national laws do not allow these. He might go to
a land which permits divorce and remarry under the laws of that land and add
honor to his union, but upon returning to his homeland, the law therein might
not recognize the union. If this option is not available to that man, he should
obtain a legal separation from his estranged mate or resort to other legal
remedies, then make a written statement to the local congregation pledging
faithfulness to his present mate and declaring his agreement to obtain a legal
marriage certificate if the estranged legal wife should die or if other
circumstances should make possible the obtaining of such registration. If his
present mate likewise seeks baptism, she would also make such a signed
statement. (p. 182) In some cases, a person might have initiated the process
of divorce where the law allows it, but it may take a long period to finally
obtain it. If upon learning Bible truth, the person wants to be baptized, his
baptism should not be delayed by the pending divorce proceedings that
would make his present union honorable for Bible examples indicate that
unnecessary delay in taking the step of baptism is not advisable (Acts 2:37-
41; 8:34-38; 16:30-34; 22:16). Such person should then provide the
congregation with a statement pledging faithfulness, thereby establishing his
determination to maintain his current union in honor while he exerts effort
to obtain legal recognition of the union. Similarly, in the case of an already
baptized Christian whose spouse proves unfaithful and whose national laws
do not recognize the God-given right to divorce an adulterous mate and
remarry, he should submit clear evidence to the elders of the congregation of
the mates infidelity. If in the future he decides to take another mate, he can
do this in an honorable way by signing declarations pledging faithfulness
where they also promise to seek legal recognition of their union where it is
feasible. This declaration will be viewed by the congregation as a putting of
oneself on record before God and man that the signer will be just as faithful
to his or her existing marital relationship as he or she would be if the union
were one validated by civil authorities. Such declaration is viewed as no less
binding than one made before a marriage officer representing a Caesar
government of the world. . . It could contain a statement such as the
following:
I, __________, do here declare that I have accepted __________ as my mate

in marital relationship; that I have done all within my ability to obtain legal
recognition of this relationship by the proper public authorities and that it is
because of having been unable to do so that I therefore make this declaration
pledging faithfulness in this marital relationship. I recognize this relationship
as a binding tie before Jehovah God and before all persons, to be held to and
honored in full accord with the principles of Gods Word. I will continue to seek
the means to obtain legal recognition of this relationship by the civil
authorities and if at any future time a change in circumstances makes this
possible I promise to legalize this union.
The declaration is signed by the declarant and by two others as witnesses and
the date of declaration is indicated therein. A copy of the declaration is kept
by the persons involved, by the congregation to which they belong, and by
the branch office of the Watch Tower Society in that area. It is also beneficial
to announce to the congregation that a declaration was made for their
awareness that conscientious steps are being undertaken to uphold the
honorableness of the marriage relationship. It must be realized, however,
that if the declarant is unable to obtain recognition from the civil authorities,
even if he makes that declaration, whatever consequences result to him as
far as the world outside is concerned are his sole responsibility and must be
faced by him. (p. 184) For instance, should there be inheritance or property
issues arising from an earlier marriage, he cannot seek legal protection with
regard to his new, unrecognized union.
[17] Rollo, pp. 163-183; TSN, Minister Gregorio Salazar, May 29, 2002, pp. 12-
32.
[18] Rollo, pp. 111, 217-222; TSN, Minister Salvador Reyes, pp. 3-8; Exhibit 6.
[19] Rollo, pp. 235-238; Memorandum for Complainant, pp. 1-4.
[20] Rollo, pp. 239-240; Respondents Memorandum, pp. 1-2; Rollo, pp. 109-
110, Maintaining Marriage Before God and Men, pp. 184-185.
[21] Rollo, p, 240; Respondents Memorandum, p. 2.
[22] Report and Recommendation of Executive Judge Bonifacio Sanz Maceda,

p. 3.
[23] Id. at 4.
[24] Memorandum by Deputy Court Administrator Christopher Lock dated

August 28, 2002, p. 6.
[25] A.M. No. P-96-1231, February 12, 1997.
[26] Memorandum by Deputy Court Administrator Christopher Lock dated

August 28, 2002, p. 7.
[27] Noonan, J., Jr. and Gaffney, Jr., Religious Freedom (2001), p. xvii.
[28] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 22.
[29] Pfeffer, L., Church, State, and Freedom (1967), p. 3., citing Wieman,
Henry Nelson, and Horton, Walter M., The Growth of Religion (1938), p. 29.
[30] Pfeffer, L., supra, p. 3, citing Hopkins, E. Washburn, Origin and Evolution
of Religion (1923), pp. 68, 206.
[31] Pfeffer, L., supra, p. 4, citing Cambridge Ancient History (1928), pp. 512-
528.
[32] Pfeffer, L., supra, p. 4, citing Clemen, C., Religions of the World (1931), p.
47.
[33] Pfeffer, L., supra, p. 4.
[34] Pfeffer, L., supra, p. 5, citing Against Apion, Book II, paragraph 17, in
Complete Works of Josephus, p. 500.
[35] Pfeffer, L., supra, p. 5, citing Clemen, p. 46-47.
[36] It may also be said that Moses actually used the concept of a single all-
powerful God as a means of unifying the Hebrews and establishing them as a
nation, rather than vice versa. What is important to note, however, is that the
monotheism which served as foundation of Christianity of western civilization
with its consequences in church-state relations was established by Moses of
the Bible, not the Moses of history. Pfeffer, L., supra, p. 5.
[37] Pfeffer, L., supra, pp. 5-6, citing Northcott, C., Religious Liberty (1949), p.
24.
[38] Pfeffer, L., supra, p. 7, citing 1 Kings 2:35.
[40] Pfeffer, L., supra, p. 10, citing Kellett, E.E., A Short History of Religions
(1934), p. 108.
[41] Pfeffer, L., supra, p. 12, citing History of Christianity, p. 168.
[43] Pfeffer, L., supra, p. 13, citing Walker, W., A History of the Christian
Church (1940), p. 108.
[44] Pfeffer, L., supra, p. 13, citing History of Christianity, p. 481.
[45] Pfeffer, L., supra, p. 16, citing Encyclopedia Britannica, Charles the Great,
14th ed., V, p. 258.

[48] Greene, E., Religion and the State (1941), p. 8.
[49] Pfeffer, L., supra, p. 23, citing Wace, Henry, and Bucheim, C.A., Luthers
Primary Works (1885), pp. 194-185.
[50] Pfeffer, L., supra, p. 23, citing Acton, History of Freedom in Chrisitianity,
in Essays on Freedom and Power (1949), p. 103.
[51] Pfeffer, L., supra, pp. 24-25.
[52] Pfeffer, L., supra, p. 26, citing Stokes, I, p. 100.
[53] Greene, E., supra, p. 9.
[56] Pfeffer, L., supra, p. 27, citing Garbett, C. (Archbishop of York), Church
and State in England (1950), p. 93.
[57] Pfeffer, L., supra, p. 27, citing Noss, J.B., Mans Religions (1949), pp. 674-
675 and Garbett, C., pp. 61-62.
[58] Greene, E., supra, p. 10, citing Tanner, Tudor Constitutional Documents,
130-135.
[59] Pfeffer, L., supra, p. 28, citing Encyclopedia of Social Sciences, XIII, p. 243.
[61] Everson v.Board of Education of the Township of Ewing, et al., 330 U.S. 1
(1947), pp. 8-9.
[62] Pfeffer, L., supra, p. 30, citing Religious News Service, October 31, 1950.
[64] Beth, L., American Theory of Church and State (1958), p. 3.
[65] Everson v. Board of Education, 330 US 1(1946), pp. 8-10.
[66] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.

[69] Pfeffer, L., supra, p. 95
[70] Another estimate of church membership in 1775 is that in none of the

colonies was membership in excess of 35 percent of the population. (Beth, L.,
American Theory of Church and State [1958], p. 73.)
[71] Grossman, J.B. and Wells, R.S., Constitutional Law & Judicial Policy
Making, Second Edition (1980), p. 1276.
[72] Pfeffer, L., supra, pp. 96.
[73] Pfeffer, L., supra, p. 93, citing Mecklin, J. M., The Story of American
Dissent (1934), p. 202.
[75] Greene, E., supra, pp. 65-66 and Pfeffer, L., supra, p. 103, citing Cobb,
S.H., The Rise of Religious Liberty in America (1902), p. 485.
[77] Blau, J., Cornerstones of Religious Freedom in America (1950), p. 36.

[83] Pfeffer, L., supra, p. 97. See also Locke, J., Second Treatise of Government
(edited by C.B: Macpherson), pp. 8-10.
[84] Pfeffer, L., supra, p. 102, citing Humphrey, E.F., Nationalism and Religion
in America, 1774-1789 (1924), pp. 368-369.
[86] Drakeman, D., Church-State Constitutional Issues (1991), p. 55.
[87] Pfeffer, L., supra, p. 104, citing Beard, C. and Mary R., The Rise of
American Civilization, I (1947), p. 449.
[88] Drakeman, D., supra, p. 55.
[89] Pfeffer, L., supra, p. 104, citing Laski, H.J., The Ameican Democracy
(1948), p. 267.
[90] Pfeffer, L., supra, p. 105, citing Henry, M., The Part Taken by Virginia in
Establishing Religious Liberty as a Foundation of the American Government,
Papers of the American Historical Association, II, p. 26.
[91] Beth, L., American Theory of Church and State (1958), pp. 61-62.
[92] Pfeffer, L., supra, p. 107, citing Butts, R. Freeman, The American Tradition
in Religion and Education (1950), pp. 46-47.
[93] Pfeffer, L., supra, p. 108, citing Humphrey, E. F., Nationalism and Religion
in America, 1774-1789 (1924), p. 379.
[94] Pfeffer, L., supra, p. 109, citing Butts, supra, pp. 53-56.
[95] Drakeman, D., supra, p. 3; Pfeffer, L., supra, p. 109, citing Eckenrode, N.J.,
The Separation of Church and State in Virginia (1910), p. 86.
[96] Beth, L., supra, p. 63.
[97] Id. at 81-82.

[98] Id. at 74-75.
[99] Beth, L., supra, p. 63.
[100] Id at 63-65.
1991, p. 149, 160.
[102] Id. at 63-65.
1991, p. 149, 160.
[104] Beth, L., supra, pp. 63-65.
[105] Id. at 69.

[107] Reynolds v. United States, 98 U.S. 145 (1878), pp. 163-164; Pfeffer, L.,
supra, p. 92, 125, citing Kohler, M.J., The Fathers of the Republic and
Constitutional Establishment of Religious Liberty (1930), pp. 692-693.
[108] Beth, L., supra, p. 71.
[109] Berman, H., Religious Freedom and the Challenge of the Modern State,
Emory Law Journal, vol. 39, Winter 1990-Fall 1990, pp. 151-152.
[110] Monsma, S., The Neutrality Principle and a Pluralist Concept of

Accommodation in Weber, P., Equal Separation (1990), p. 74.
[111] Berman, H., supra, pp. 151-152.
[112] McCoy, T., A Coherent Methodology for First Amendment Speech and
Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October 1995, p.
1335, 1340.
[113] Weber, P., Neutrality and first Amendment Interpretation in Equal

Separation (1990), pp. 5-7. See also Kauper, P., Religion and the Constitution
(1964), p. 99.
[114] Monsma, S., supra, p. 73.
[115] See Carter, S., The Resurrection of Religious Freedom, Harvard Law
Review (1993), vol. 107(1), p. 118, 128-129.
[116] Emanuel, S., Constitutional Law (1992), p. 633.
[117] Carter, S., supra, p. 118, 140.
[118] Sullivan, K., Religion and Liberal Democracy, The University of Chicago
Law Review (1992), vol. 59(1), p. 195, 214-215.
[119] Kauper, P., Religion and the Constitution (1964), pp, 24-25.
[120] 133 U.S. 333 (1890).
[121] 133 U.S. 333 (1890), p. 342.
[122] 322 U.S. 78 (1944).
[123] United States v. Ballard, 322 U.S. 78 (1944), p. 86.
[124] Stephens, Jr., O.H. and Scheb, II J.M., American Constitutional Law,
Second Edition (1999), pp. 522-523.
[125] 367 U.S. 488 (1961).
[126] 380 U.S. 163 (1965).

[127] Stephens, Jr., supra, p. 645.
[128] Id. at 524.
[129] Emanuel, S., supra, p. 645, citing Frazee v. Illinois Department of

Employment Security, 489 U.S. 829 (1989).
[130] McCoy, T., A Coherent Methodology for First Amendment Speech and
Religion Clause Cases, Vanderbilt Law Review, vol. 48(5), October 1995, p.
1335, 1336-1337.
[131] Kelley, D. Strict Neutrality and the Free Exercise of Religion in Weber,
P., Equal Separation (1990), p. 20.
[132] Kauper, P., supra, p, 13.
[133] Neuhaus, R., A New Order of Religious Freedom, The George

Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[134] McConnell, M., Religious Freedom at a Crossroads, The University of

Chicago Law Review (1992), vol. 59(1), p. 115, 168.
[135] McCoy, T., supra, p. 1335, 1336-1337.

Washington Law Review (1992), vol. 60 (2), p. 620, 626-627.
[137] Monsma, S., supra, p. 88, citing Neuhaus, R., Contending for the Future:
Overcoming the Pfefferian Inversion, in The First Amendment Religion Liberty
Clauses and American Public Life, p. 183.
[138] Carter, S., supra, p. 118, 134-135.
[139] Lupu, I., The Religion Clauses and Justice Brennan in Full, California Law
Review (1999), vol. 87(5), p. 1105, 1114.
[140] Everson v. Board of Education, 330 US 1 (1946), p. 15.
[141] Walz v. Tax Commission, 397 U.S. 664 (1970), p. 669.
[142] See McCoy, T., supra, p. 1335, 1336.
[143] 98 U.S. 145 (1878); Buzzard, L., Ericsson, S., The Battle for Religious
Liberty (1980), p. 49; Drakeman, Church-State Constitutional Issues (1991), p.
2.
[144] Reynolds v. United States, 98 U.S. 164 (1878), p. 163.
[145] Id. at 163.

[146] 98 U.S. 145, 166.
[147] McCoy, T., supra, p. 1335, 1344-45.
[148] Nowak, J., Rotunda, R., and Young, J., Constitutional Law, 3rd ed. (1986),
p. 1069.
[149] 136 U.S. 1 (1890).
[150] Nowak, J., Rotunda, R., and Young, J., supra, pp. 1069-1072.
[151] Witt, E. (ed.), The Supreme Court and Individual Rights (1980), p. 79.
[152] 367 U.S. 488 (1961).
[153] 322 U.S. 78, 86 (1944).
[154] 310 U.S. 296 (1940).
[155] Id. at 310.
[156] Id at 303-304.
[157] 319 U.S. 157 (1943).
[158] 340 U.S. 268 (1951).
[159] 452 U.S. 640 (1981).
[160] Stephens, Jr., O.H. and Scheb, II J.M., supra, p. 524.
[161] 133 U.S. 333, 345.
[162] McCoy, T., supra, p. 1335, 1344-45.
[163] 310 U.S. 586 (1940).
[164] 319 U.S. 624 (1943).
[165] Id. at 634.
[166] Id. at 639.
[167] McCoy, T., supra, p. 1335, 1345-46.

[168] See Bloostein, M., The Core-Periphery Dichotomy in First Amendment
Free Exercise Clause Doctrine: Goldman v. Weinberger, Bowen v. Roy, and
OLone v. Estate of Shabbaz,z Cornell Law Review, vol. 72 (4), p. 827, 828.
[169] 366 U.S. 599 (1961).
[171] 374 U.S. 398 (1963).
[173] Sherbert v. Verner, 374 U.S. 398 (1963), p. 403.
[174] Id. at 406.
[175] Lupu, I., supra, p. 1105, 1110.
[176] McCoy, T., supra, p. 1335, 1346-1347.
[177] 450 U.S. 707 (1981).
[178] 480 U.S. 136 (1987).

[179] 455 U.S. 252 (1982).
[180] United States v. Lee, 455 U.S. 252 (1982), p. 260.
[182] 406 U.S. 205 (1972).
[183] Id. at 214-215, 219-220.
[184] 494 U.S. 872 (1990).
[185] McConnell, M., supra, p. 685, 726.
[186] McCoy, T., supra, p. 1335, 1350-1351.
[187] Ducat, C., Constitutional Interpretation, vol. II (2000), pp. 1180 and
1191. See also Sullivan, K., Religion and Liberal Democracy, The University of

[189] Sullivan, K., Religion and Liberal Democracy, The University of Chicago
Law Review (1992), vol. 59(1), p. 195, 216.
[190] Carter, S., supra, p. 118.
[191] Rosenzweig, S., Restoring Religious Freedom to the Workplace: Title VII,
RFRA and Religious Accommodation, University of Pennsylvania Law Review
(1996), vol. 144(6), p. 2513, 2516.
[192] 138 L.Ed. 2d 624 (1994).
[193] 508 U.S. 520 (1993).
[195] 330 U.S. 1 (1946).
[196] Drakeman, D., supra, p. 4-6.
[197] Buzzard, L., Ericsson, S., The Battle for Religious Liberty (1980), p. 53.
[198] 98 U.S. 164 (1878).
[199] Reynolds v. United States, 98 U.S. 164 (1878), p. 164.

[200] Id. at 164.
[202] Everson v. Board of Education, 330 U.S. 1 (1946), pp. 15-16.
[203] Id. at 18.
[204] 403 U.S. 602 (1971).
[205] Lemon v. Kurtzman, 403 U.S. 602 (1971), pp. 612-613.
[206] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[207] 370 U.S. 421 (1962).
[208] 374 U.S. 203 (1963).
[209] Id.
[210] Id. at 222.

[211] Witt, E. (ed.), supra, p. 93.
[212] 472 U.S. 38 (1985).
[213] 333 U.S. 203 (1948).
[214] 343 U.S. 306 (1952).
[215] Zorach v. McCollum, 343 U.S. 306 (1952), p. 315.
[216] 366 U.S. 420 (1961).
[217] Id. at 451-452.
[218] 463 U.S. 783 (1983).
[219] Marsh v. Chambers, 463 US 783 (1983).
[220] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 540-541.
[221] 465 U.S. 668 (1984).
[222] 397 U.S. 664 (1970).

[223] Id. at 673.
[224] Id.
[225] Id. at 676.

Chicago Law Review (1992), vol. 59(1), p. 115, 119-120.
[228] Id. at 53.
[230] Drakeman, supra, p. 52, citing Cord, R., Separation of Church and State:
Historical Fact and Current Fiction. p. 50.
[231] Drakeman, supra, pp. 52 and 82, citing Gales, J. and Seaton, W., eds.,
The Debates and Proceedings in the Congress of the United States, Compiled
from Authentic Materials (Annala), vol. 1, pp. 949-950.
[232] Beth, L., supra, p. 74.

[233] Drakeman, supra, pp. 57, 82.
[234] Buzzard, L., Ericsson, S., supra, p. 46.
[235] Beth, L., supra, p. 72.
[236] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[237] Beth, L., supra, p. 71.
[238] The Constitution and Religion, p. 1541.
[239] Id. at 1539.
[240] Weber, P., Neutrality and First Amendment Interpretation in Equal

Separation (1990), p. 3.

[242] Everson v. Board of Education, 330 U.S. 1 (1947), p. 18.

[243] The Constitution and Religion, p. 1541, citing Kurland, Of Church and
State and the Supreme Court, 29 U.Chi.L.Rev. 1, 5 (1961).
[244] Weber, P., Equal Separation (1990), p. 8, citing Kurland, P., Religion and
the Law (1962), p. 18.
1991, p. 149, 186.
[246] Stephens, Jr., O.H. and Scheb, II J.M., supra, pp. 536, 540.
[248] Kelley, D., supra, p. 1189.
[249] Monsma, S., supra, p. 74.
[250] Id. at 75.
[251] Smith, S., supra, p. 149, 159.
[252] Drakeman, supra, p. 54.

[253] Grossman, J.B. and Wells, R.S., supra, p. 1276.
[254] Smith, S., supra, p. 149, 159.
[255] Id. at 149, 159-160.
[256] Grossman, J.B. and Wells, R.S., supra, pp. 1276-1277.
[257] Id. at 1276-1277, citing Kirby, Jr., J., Everson to Meek and Roemer: From
Separation to Dtente in Church-State Relations, 55 North Carolina Law Review
(April 1977), 563-75.
[261] Zorach v. Clauson, 343 U.S. 306 (1951), pp. 312-314.
[262] Kelley, D., supra, p. 34.
[263] Id. at 34, citing Milton Yinger, J., The Scientific Study of Religion (1970),
p. 21.
[264] Id., citing Talcott Parsons, Introduction, Max Weber, Sociology of
Religion (1963), pp. xxvii, xxviii.
[266] Berman, H., supra, p. 162.
[267] The Constitution and Religion, p. 1569.
[268] McCoy, T., supra, p. 1335, 1338-1339.
[269] McConnell, M., Accommodation of Religion: An Update and a Response

to the Critics, The George Washington Law Review (1992), vol. 60 (3), p. 685,
688.
[270] Id.
[271] Id. at 689.
[272] Id. at 690-694, 715.
[273] Id. at 686.

[274] Id. at 687, citing County of Allegheny v. ACLU, 492 U.S. 573, 659, 663,
679 (1989) (Kennedy, J., concurring); Lynch v. Donnelly, 465 U.S. 668, 673
(1984); Marsh v. Chambers, 463 U.S. 783, 792 (1983).

Chicago Law Review (1992), vol. 59(1), p. 115, 139, 184.
[276] Id. at 174.

Washington Law Review (1992), vol. 60 (2), p. 620, 631.
[278] Buzzard, L., Ericsson, S., supra, pp. 61-62.
[279] Emanuel, S., supra, pp. 633-634, citing Tribe, L., American Constitutional
Law, 2nd ed. (1988), p. 1251. See also Nowak, J., Rotunda, R., and Young, J.,
Constitutional Law, 3rd ed. (1986), pp. 1067-1069.
[280] Id. at 633.

715.
[284] McConnell, The Origins and Historical Understanding of Free Exercise of

Religion, Harvard Law Review , vol. 103 (1990), p. 1410, 1416-7.

735.
[288] Lupu, I., supra, p. 743, 775.
[289] Id. at 775.
[290] Nowak, J., Rotunda, R., and Young, J., supra, p. 1069.
[292] Lupu, I., supra, p. 743, 776.

[294] Martinez, H., The High and Impregnable Wall of Separation Between
Church and State, Philippine Law Journal (1962), vol. 37(5), p. 748, 766.
[295] Article II.
[296] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), p. 284.
[297] Coquia, J., Church and State Law and Relations, p. 52, citing Article X of
the Treaty of Paris. The territories referred to were Cuba, Puerto Rico, Guam,
the West Indies and the Philippine Islands.
[298] Coquia, J., supra, p. 52, citing Article 5, Constitucion Politica de la

Republica Filipina promulgada el dia 22 de Enero de 1899 (Edicion oficial, Islas
Filipinas, Barazoain, Bul., 1899), p. 9.
[299] Bernas, J., A Historical and Juridical Study of the Philippine Bill of Rights
(1971), pp. 13, 148.
[300] Coquia, J., supra, p. 77, citing Acts of the Philippine Commission, With
Philippine Organic Laws 10.
[301] 25 Phil. 273 (1913).

[302] Id. at 276.
[303] Coquia, J., supra, p. 53, citing Public Law No. 127, sec. 2(a), 73rd
Congress (1934).
[304] Laurel, S., Proceedings of the Philippine Constitutional Convention, vol.

III (1966), pp. 654-655.
[305] Aruego, J., The Framing of the Philippine Constitution, vol. I (1949), p.
164.
[306] Id. at 150.
[307] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 182.
[308] Baddiri, E., Islam and the 1987 Constitution: An Issue on the Practice of
Religion, 45 Ateneo Law Journal 161 (2001), p. 208, citing Syed Muhammad
Al-Naquib Al-Attas, Islam and Secularism 46 (1978).
[309] Id. at 208, citing Lewis, B., Islam and the West 3 (1993).
[310] 64 Phil 201 (1937).
[311] 101 Phil. 386 (1957).

[312] Bernas, Constitutional Rights and Social Demands, Part II, p. 268.
[313] 106 Phil. 2 (1959).
[314] Id. at 9-10.
[315] Bernas, J., The Constitution of the Republic of the Philippines: A

Commentary (1987), p. 225, Footnote 38.
[316] 319 U.S. 103.
[317] 234 SCRA 630 (1994).
[318] 493 U.S. 378 (1990).
[319] 106 Phil. 2 (1959).
[320] 106 Phil. 2 (1959), p. 10.
[321] Id. at 11-12.
[322] Id. at 14.

[323] Id. at 25.
[324] Id. at 24-25.
[325] 110 Phil 150.
[326] 59 SCRA 54 (1974). See also Basa v. Federacion Obrera, 61 SCRA 93

(1974); Gonzalez v. Central Azucarera de Tarlac Labor Union, 139 SCRA (1985).
[327] Victoriano v. Elizalde Rope Workers Union, Inc., et al., 59 SCRA 54

(1974), p. 72.
[328] Id. at 73.
[329] 64 Phil 201.
[330] 392 US 236.
[331] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 74.
[332] Id. at 75.
[333] Id.
[334] 61 SCRA 93 (1974).
[335] 80 SCRA 350 (1977).
[336] 139 SCRA 30 (1985).
[337] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), p. 525, citing
Cantwell v. Connecticut, 310 U.S. 296.
[338] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), pp. 524-525.
[339] German, et al. v. Barangan, et al., 135 SCRA 514 (1985).
[340] German, et al. v. Barangan, et al., 135 SCRA 514 (1985), Dissenting
Opinion of Justice Teehankee.
[341] 219 SCRA 256 (1993), March 1, 1993.
[342] Id. at 270-271.
[343] Id. at 271-272.
[344] Id. at 272.

[345] Id. at 272-273.
[346] Id. at 270.
[347] Id. at 269.
[348] 259 SCRA 529 (1996).
[349] Id. at 543; citing Cruz, I., Constitutional Law (1991), p. 178.
[350] Id., citing Cruz, I., Constitutional Law (1991), p. 544.
[351] Id., citing Cruz, I., Constitutional Law (1991), p. 551, citing Hentoff,
Speech, Harm and Self-Government: Understanding the Ambit of the Clear
and Present Danger Test, 91 Col. Law Rev. No. 6, p. 1453 (1991).
[352] Id.
[353] Bernas, Constitutional Rights and Social Demands, Part II, p. 314.
[354] This argument was a central theme in John Lockes A Letter Concerning
Toleration, which strongly influenced the thinking of many Americans,
including Jefferson and Madison. (Smith, S., The Rise and Fall of Religious
Freedom in Constitutional Discourse, University of Pennsylvania Law Review,
vol. 140[1], November 1991, p. 149, 155).
[355] Bernas, J., The Constitution of the Republic of the Philippines: A

Commentary (1987), p. 233.
[356] Id. at 234.
[357] 64 Phil. 201 (1937); Bernas, J., The Constitution of the Republic of the
Philippines: A Commentary (1987), p. 234.
[358] An Act Appropriating the Sum of Sixty Thousand Pesos and Making the
Same Available out of any Funds in the Insular Treasury not otherwise
Appropriated for the Cost of Plates and Printing of Postage Stamps with New
Designs, and for other Purposes.
[359] Aglipay v. Ruiz, 64 Phil. 201 (1937), pp. 205-206.
[360] Id. at. 209-210, citing Bradfield v. Roberts, 175 U.S. 291 (1899).
[361] 104 SCRA 510 (1981).
[362] 86 SCRA 413 (1978).
[363] 367 U.S. 488 (1961).

[364] Pamil v. Teleron, 86 SCRA 413 (1978), pp. 428-429.
[365] 96 Phil. 417 (1955).
[366] 45 Am. Jur. 77.
[367] 96 Phil 417 (1955), p. 426.
[368] Id. at 441, citing American authorities.
[369] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[370] Nowak, J., Rotunda, R., and Young, J., supra, p. 1031.
[371] Sherbert v. Verner, 374 U.S. 398 (1963), p. 409.
[372] Walz v. Tax Commission, supra, p. 668.
[373] Victoriano v. Elizalde Rope Workers Union, Inc., et al., supra, p. 75.

[375] Buzzard, L. and Ericsson, S., supra, p. 75.
[376] Bernas, J., The 1987 Constitution of the Republic of the Philippines: A
Commentary (1995), pp. 288-289.
[377] Ang-Angco v. Castillo, 9 SCRA 619 (1963).
[378] Martin, Statutory Construction (1979), p. 210.
[379] Aruego, J., supra, pp. 331-337.
(1971), pp. 154-155, citing Francisco (ed.), Journal of the Constitutional
Convention of the Philippines, vol. 4, pp. 1550, 1552.
[381] Aruego, J., supra, p. 337.
(1971), p. 153.
[383] Id. at 153, citing Francisco (ed.), Journal of the Constitutional

Convention of the Philippines, vol. 4, p. 1539.
[384] Id. at 153-154, citing Francisco (ed.), Journal of the Constitutional

Convention of the Philippines, vol. 4, pp. 1541-1543.
[385] Aruego, J., supra, pp. 340-345.
(1971), pp. 156-157, citing Escareal (ed.), Constitutional Convention Record,
vol. 10 (1967), p. 29.
[387] Aruego, J., The Framing of the Philippine Constitution, vol. 2 (1949), pp.
627-629.
[388] Martin, supra, p. 218.
[389] Aglipay v. Ruiz, supra, p. 206.
[390] Tanada, L. and Fernando, E., Constitution of the Philippines, vol. 1

(1952), pp. 269-270.
[391] Report of the Ad Hoc Sub-Committee on Goals, Principles and Problems

of the Committee on Church and State of the 1971 Constitutional Convention,
p. 18.
[392] Bernas, J., Background paper for reconsideration of the religion

provisions of the constitution (1971), pp. 41-43.
[393] Tingson, J., Report of the Committee on Church and State of the 1971
Constitutional Convention Report, p. 5.
[394] Bernas, J., The Intent of the 1986 Constitution Writers (1995), p. 406,
citing Records of the Constitutional Commission, vol. II, pp. 193-194.
[395] Records of the Constitutional Commission, vol. 4, p. 362.
[396] Id. at 358.
[397] Id. at 359.
[398] Id. at 973.
[399] Records of the Constitutional Commission, vol. 1, p. 102.
[400] Bernas, Constitutional Rights and Social Demands, Part II (1991), p. 268.
[401] Cruz, I., Constitutional Law (1995), p. 167.
[402] Martinez, H., supra, p. 768-772.

[404] Martinez, H., supra, p. 773.
[405] Neuhaus, R., supra, p. 630.
[406] Smith, S., supra, p. 153, citing Jefferson, T., Freedom of Religion at the
University of Virginia, in The Complete Jefferson (Saul K. Padover ed., 1969),
p. 957, 958.
[407] Neuhaus, R., supra, p. 630.
[408] Carter, S., supra, pp. 140-142.
[409] Cruz, I., Constitutional Law (1995), p. 178.
[410] Liguid v. Camano, A.M., No. RTJ-99-1509, August 8, 2002; Bucatcat v.

Bucatcat, 380 Phil. 555 (2000); Navarro v. Navarro, 339 SCRA 709 (2000);
Ecube-Badel v. Badel, 339 Phil. 510 (1997); Nalupta v. Tapec, 220 SCRA 505
(1993); Aquino v. Navarro, 220 Phil. 49 (1985).
[411] 68 SCRA 354 (1975).
[412] 305 SCRA 469 (1999).
[413] Rachels, J., The Elements of Moral Philosophy (1986), p. 1.

[414] Devlin, P., The Enforcement of Morals (1965), p. 10.
[415] Letter of Associate Justice Reynato S. Puno, 210 SCRA 589 (1992).
[416] Devlin, P., supra, 13.
[417] Neuhaus, R., supra, pp. 621, 624-625.

[419] Neuhaus, R., supra, pp. 624-625.
[420] Greenwalt, K., Conflicts of Law and Morality, p. 247, citing Holmes, The
Path of the Law, 10 Harv. L. Rev., 457, 459 (1897).
[421] Id. at 247.
[422] Greenwalt, K., supra, p. 272.
[423] Buzzard, L. and Ericsson, S., supra, p. 31.
[424] Devlin, P., supra, pp. 19-20.

[425] Id. at 247.
[426] 210 SCRA 471 (1992).
[427] Magno v. Court of Appeals, et al., 210 SCRA 471 (1992), p. 478, citing
Aquino, The Revised Penal Code, 1987 Edition, Vol. I, pp. 11-12, citing People
v. Roldan Zaballero, CA 54 O.G. 6904. Note also Justice Pablos view in People
v. Piosca and Peremne, 86 Phil. 31.
[428] Devlin, P., supra, pp. 6-7.
[429] Id. at 19.
[430] Article 334 of the Revised Penal Code provides, viz:
Art. 334. Concubinage. Any husband who shall keep a mistress in the conjugal
dwelling, or shall have sexual intercourse, under scandalous circumstances,
with a woman who is not his wife, or shall cohabit with her in any other place,
shall be punished by prision correccional in its minimum and medium period.
The concubine shall suffer the penalty of destierro.
[431] Article 266-A of the Revised Penal Code.

[432] Rule 110 of the Revised Rules of Criminal Procedure, as amended
provides in relevant part, viz:
The crime of adultery and concubinage shall not be prosecuted except upon
a complaint filed by the offended spouse. The offended party cannot institute
criminal prosecution without including the guilty parties, if both are alive, nor,
in any case, if the offended party has consented to the offense or pardoned
the offenders.
[433] Velayo, et al. v. Shell Co. of the Philippine Islands, et al., 100 Phil. 186
(1956), pp. 202-203, citing Report of the Code Commission on the Proposed
Civil Code of the Philippines, pp. 40-41.
[434] Carter, S., supra, p. 138.
[435] Sullivan, K., supra, pp. 197-198.
[436] Rule 1.01 of the Code of Professional Responsibility provides that, (a)
lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct.
(emphasis supplied)
[437] Title Six of the Revised Penal Code is entitled Crimes against Public
Morals and includes therein provisions on gambling and betting. (emphasis
supplied)
[438] The New Civil Code provides, viz:

Article 6. Rights may be waived, unless the waiver is contrary to law, public
order, public policy, morals, or good customs or prejudicial to a third person
with a right recognized by law.
Article 21. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
Article 1306. The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided that are not
contrary to law, morals, good customs, public order, or public policy.
Article 1409. The following contracts are inexistent and void from the
beginning:
(1) Those whose cause, object or purpose is contrary to law, morals, good
customs, public order or public policy; x x x (emphasis supplied)
[439] Article XIV, Section 3 provides in relevant part, viz:
All educational institutions shall include the study of the Constitution as part
of the curricula.
They shall inculcate patriotism and nationalism, foster love of humanity,

respect for human rights, appreciation of the role of national heroes in the
historical development of the country, teach the rights and duties of
citizenship, strengthen ethical and spiritual values, develop moral character
and personal discipline, encourage critical and creative thinking, broaden
scientific and technological knowledge, and promote vocational efficiency.
(emphasis supplied)
[440] To illustrate the distinction between public or secular morality and

religious morality, we take the example of a judge. If the public morality of a
society deems that the death penalty is necessary to keep society together
and thus crystallizes this morality into law, a judge might find himself in a
conflict between public morality and his religious morality. He might discern
that after weighing all considerations, his religious beliefs compel him not to
impose the death penalty as to do so would be immoral. If the judge refuses
to impose the death penalty where the crime warrants it, he will be made
accountable to the state which is the authority in the realm of public morality
and be held administratively liable for failing to perform his duty to the state.
If he refuses to act according to the public morality because he finds more
compelling his religious morality where he is answerable to an authority he
deems higher than the state, then his choice is to get out of the public
morality realm where he has the duty to enforce the public morality or
continue to face the sanctions of the state for his failure to perform his duty.
See Griffin, L., The Relevance of Religion to a Lawyers Work: Legal Ethics,
Fordham Law Review (1998), vol. 66(4), p. 1253 for a discussion of a similar
dilemma involving lawyers.
[441] Sullivan, K., supra, p. 196.
[442] Smith, S., supra, pp. 184-185. For a defense of this view, see William P.
Marshall, We Know It When We See It: The Supreme Court and Establishment,
59 S.Cal. L. Rev. 495 (1986). For an extended criticism of this position, see
Steven D. Smith, Symbols, Perceptions, and Doctrinal Illusions: Establishment
Neutrality and the No Establishment Test, 86 Mich. L. Rev. 266 (1987).
[443] Ostrom, V., Religion and the Constitution of the American Political
System, Emory Law Journal, vol. 39(1), p. 165, citing 1 A. Tocqueville,
Democracy in America (1945), p. 305.
[444] 96 Phil. 417 (1955), p. 444, quoting 45 Am. Jur. 743-52 and 755.
[445] Devlin, P., supra, p. 22.
[446] 329 U.S. 14 (1946).
[447] Cleveland v. United States, 329 U.S. 14, p. 16.
[448] Reynolds v. United States, supra, p. 164.
[449] Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1.
[450] Id.
[451] 226 SCRA 193 (1993).
[452] Id. at 199.

[453] Annexes A and B of the Report and Recommendation of Executive Judge
Bonifacio Sanz Maceda.
[454] Cruz, I., supra, p. 176.

7. G.R. No. 199034
EN BANC
G.R. No. 199034 (Gloria Macapagal-Arroyo vs. Hon. Leila M. De Lima, in her
capacity as Secretary of the Department of Justice and Ricardo A. David, Jr.,
in his capacity as Commissioner of the Bureau of Immigration) and G.R. No.
199046 (Jose Miguel T. Arroyo vs. Hon. Leila M. De Lima, in her capacity as
Secretary, Department of Justice, Ricardo V. Paras III, in his capacity as Chief
State Counsel, Department of Justice and Ricardo A. David, Jr., in his capacity
as Commissioner, Bureau of Immigration)
Promulgated:
December 13, 2011

x ---------------------------------------------------------------------------------------- x
SEPARATE OPINION
VELASCO, JR., J.:

This is in response to the Dissenting Opinions of Justices Antonio T. Carpio and
Maria Lourdes P.A. Sereno in relation to the Temporary Restraining Order
(TRO) issued by the Court on November l5, 2011 pursuant to its Resolution of
even date. In its relevant part, the November 15, 2011 Resolution provided as
follows:
x x x Acting on the Special Civil Actions for Certiorari and Prohibition with
Prayer for the Issuance of a Temporary Restraining Order and/or Writ of
Preliminary Injunction, and mindful of the underlying issues in the cases the
right to life (which is the highest right under the Constitution) and its
supporting rights, including the right to travel the Court Resolved to
(a) CONSOLIDATE the above-entitled cases;
(b) REQUIRE the respondents to COMMENT on the consolidated petitions

NOT LATER THAN NOVEMBER 18, 2011;
(c) ISSUE a TEMPORARY RESTRAINING ORDER in the consolidated petitions,

enjoining the respondents from enforcing or implementing DOJ Department
Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated August 9, 2011,
2011-422 dated September 6, 2011 and 2011-573 dated October 27, 2011,
subject to the following conditions:
(i) The petitioners shall post a cash bond of Two Million Pesos
(P2,000,000.00) payable to this Court within five (5) days from notice hereof.
Failure to post the bond within the aforesaid period will result in the
automatic lifting of the temporary restraining order;
(ii) The petitioners shall appoint a legal representative common to
both of them who will receive subpoena, orders and other legal processes on
their behalf during their absence. The petitioners shall submit the name of
the legal representative, also within five (5) days from notice hereof; and
(iii) If there is a Philippine embassy or consulate in the place where they

will be traveling, the petitioners shall inform said embassy or consulate by
personal appearance or by phone of their whereabouts at all times; and
(d) SET the consolidated cases for ORAL ARGUMENTS on November 22, 2011
x x x.
xxxx
The temporary restraining order shall be immediately executory. Justices

Antonio T. Carpio and Bienvenido L. Reyes have reserved the right to submit
their dissenting opinions. Leonardo-De Castro, J., on official business. Del
Castillo, J., on official leave. (adv156 & 157)
The above Resolution was followed by the related November 18, 2011 and
November 22, 2011 Resolutions, pertinently reading:
November 18, 2011 Resolution
On November 15, 2011, the Court issued a temporary restraining order

enjoining Secretary of Justice Leila M. De Lima, her agents, representatives,
or persons acting in her place or stead, from enforcing or implementing DOJ
Department Circular No. 41 and Watchlist Order Nos. ASM-11-237 dated
August 9, 2011, 2011-422 dated September 6, 2011 and 2011-573 dated
October 27, 2011. To date, it appears that Secretary De Lima has effectively
prevented petitioners Gloria Macapagal-Arroyo and Jose Miguel T. Arroyo
from leaving the country.
Accordingly, on motion of the petitioners, the Court Resolved to require

Secretary De Lima to (a) SHOW CAUSE, within a NON-EXTENDIBLE period of
ten (10) days from notice hereof, why she should not be disciplinary dealt
with or held in contempt for failure to comply with the temporary restraining
order and (b) IMMEDIATELY COMPLY with the said temporary restraining
order by allowing petitioners to leave the country.
November 22, 2011 Resolution
On November 18, 2011, the Court, by a vote of 7-6, found that there was no
sufficient compliance with the second condition of the Temporary Restraining
Order issued on November 15, 2011. However, by a vote of 7-6, the Court
ruled that the TRO was not suspended pending compliance with the second
condition. Thus, the Court resolved to CLARIFY that the TRO was not
suspended even with the finding that there was no full compliance with the
conditions of the TRO.
The Court further Resolved to
(a) REQUIRE the petitioners to COMMENT, within ten (10) days from
today, on the Urgent Manifestation with Motion to Lift Temporary
Restraining Order dated November 18, 2011 filed by the Office of the Solicitor
General (OSG) for public respondents [x x x];
(b) NOTE the Supplemental Compliance dated November 18, 2011 filed
by Atty. Ferdinand S. Topacio, submitting the Special Powers of Attorney from
Mrs. Gloria Macapagal Arroyo and Mr. Jose Miguel Arroyo pursuant to the
resolution dated November l8, 20ll;
(c) NOTE the aforesaid Special Powers of Attorney authorizing him,

among others, to receive summons, subpoenas, orders and other legal
processes, and to submit documentary evidence.
In its En Banc session of November 29, 2011, the Court revoted on the issue
of whether or not the TRO was suspended pending compliance by the
petitioners of condition (ii) on the requirement to appoint their legal
representative. This issue was no longer reflected in the adverted November
22, 2011 Resolution.
Unpromulgated Dissenting Opinion of Justice Sereno filed late and in

contravention of Section 2, Rule 10 of the Internal Rules of the Supreme Court
(IRSC)
When, as earlier indicated, the En Banc Court conducted a revote on the
question bearing on the suspension of the TRO pending compliance with the
appointment of petitioners legal representative, a majority of 7 members
categorically voted that the TRO was not suspended. The revote, to stress,
was held to clarify the correctness of the directives contained in the Courts
November 22, 2011 Resolution on the same issue.
After the vote, Justice Sereno, when asked when she would submit her
dissenting opinion thereon, committed to do so on December 1, 2011, a self-
imposed deadline. As it turned out, her opinion was belatedly filed only on
December 2, 2011 (a Friday) at 4 p.m. She did not even circulated a letter
asking for an extension of time to submit her opinion. Her late submission
effectively prevented me from responding to her opinion since I was already
booked to leave for Jakarta on December 4, 2011 to attend the ASEAN Chief
Justices Roundtable on Environment. Accordingly, I requested Atty. Enriqueta
E. Vidal to hold in abeyance the promulgation of Justice Serenos opinion so
that the matter of the promulgation could be discussed in the December 6,
2011 En Banc session. I could have had filed a separate opinion on her dissent
had she filed it on December 1, 2011. For then, I would have the rest of
December 1 and the whole day of December 2, 2011 to prepare and submit
one.
There is yet another reason why I felt the dissent should not be promulgated
until the validity thereof is discussed by the En Banc. In my view, the
disclosures made in Justice Serenos dissent may constitute a breach of Sec. 2,
Rule 10 of the IRSC which reads:
Sec. 2. Confidentiality of court sessions.Court sessions are executive in

character, with only the Members of the Court present. Court deliberations
are confidential and shall not be disclosed to outside parties, except as may
be provided herein or as authorized by the Court.
The Chief Justice or the Division Chairperson shall record the action or actions
taken in each case for transmittal to the Clerk of Court or Division Clerk of
Court after each session. The notes of the Chief Justice and the Division
Chairperson, which the Clerk of Court and the Division Clerks of Court must
treat with strict confidentiality, shall be the bases of the minutes of the
sessions.
The following confidential matters, discussed during the November 18, 2011
session, are embodied in the Dissenting Opinion of Justice Sereno
promulgated on the same date, to wit:
1. At this mornings special session called exclusively to deliberate on the

pending incidents in the above-consolidated Petitions, the Court voted on
several matters:
The first voting was on whether the Resolution dated 15 November 2011
granting the prayer for Temporary Restraining Order (TRO) by petitioners is
to be reconsidered or not. The justices who voted on the 15 November 2011
Resolution maintained the same vote, 8-5.
The issue in the second voting, proposed by one of the members of the Court,
was on whether the TRO issued by the Clerk of Court should be recalled for
failure to comply with one of the conditions, Condition Number 2, imposed
for the issuance of the TRO. Condition No. 2 reads:
(ii) The petitioners shall appoint a legal representative common to both of
them who will receive subpoena, orders, and other legal processes on their
behalf during their absence. The petitioners shall submit the name of the legal
representative, also within five (5) days from notice hereof; (Emphasis
supplied.)
On this matter, the voting was 76[1] finding that there was no compliance
with the second condition of the TRO.
The third voting proceeded from the result of the second voting whether,
considering that the Court found that there was a failure to comply with a
condition imposed by the earlier resolution, the Court should explicitly state
that the TRO was thereby suspended in the meantime pending compliance
with Condition Number 2. The Court, by a vote of 7-6, decided there was no
need to explicitly state the legal effect on the TRO of the noncompliance by
petitioners with Condition Number 2 of the earlier Resolution.
The fourth vote that was taken was on whether the Court would direct public
respondents to show cause why they should not be held in contempt for
failure to comply with the TRO and to comply therewith. The vote was
unanimous.
The fifth vote was on whether public respondent DOJ Secretary should be
ordered to also show cause why she should not be held in contempt for
showing disrespect for the Court. The voting on this was 9-4.
The sixth voting was on whether to reset the schedule of the oral arguments.
This was unanimously denied.[2]
2. The Court, motu proprio, even without the motion from petitioners herein,
is ordering public respondent De Lima to show cause why she should not be
held for indirect contempt by showing disrespect to the Court. The majority
has explained that this order is anyway, to just require an explanation from
her, and is thus not out of the ordinary.[3]
3. The majority, by a 7-6 voting, denied the minoritys proposition that a
resolution be issued including a phrase that the TRO is suspended pending
compliance with the second condition of the 15 November 2011 Resolution.
The majority argued that such a clarification is unnecessary, because it is clear
that the TRO is conditional, and cannot be made use of until compliance has
been done. It was therefore the sense of the majority that, as an offshoot of
the winning vote that there was failure by petitioners to comply with
Condition Number 2, the TRO is implicitly deemed suspended until there is
compliance with such condition. Everyone believed that it would be clear to
all that a conditional TRO is what it is, conditional.[4]
4. Contrary to this interpretation, as stated, it was the understanding of a
majority that the TRO is suspended pending compliance with our earlier
Resolution.[5]
On the other hand, the unpromulgated dissenting opinion of Justice Sereno

contained the following confidential matters:
1. To recall, my Dissenting Opinion of 18 November 2011 consisted of two
parts: (1) a narration of the voting that took place in the morning; and (2) the
reason why my Dissent to the Decision of the majority to grant the temporary
restraining order (TRO) in favor of petitioners continues.[6]
2. What took place in the En Banc morning sessions of the 15th, 18th, and
22nd of November 2011 has been placed on record by Justice Antonio T.
Carpio in a letter to Chief Justice Renato C. Corona and circulated to all the
members of the Court on the morning of 24 November 2011.
The letter reads:
24 November 2011
The CHIEF JUSTICE

Supreme Court
May I suggest that the issuance of the attached Resolution dated 22

November 2011, which is supposed to clarify the Resolution dated 18
November 2011, be held in abeyance until the En Banc has a chance to go
over the same. Instead of clarifying the Resolution dated 18 November 2011,
the attached Resolution compounds the error in the Resolution dated 18
November 2011. (Underlining supplied)
You will recall that during the En Banc meeting last 18 November 2011,[7] the
En Banc, after a long discussion, voted on the following issues:
1. That petitioners did not comply with condition (ii) for the issuance of the
TRO (voting was 7-6 with Carpio, Abad, Villarama, Mendoza, Sereno, Reyes
and Bernabe as the majority);
2. That there is no need to state in the Resolution that the TRO is suspended
until petitioners comply with condition (ii), that is, petitioners will simply be
directed to comply with condition (ii) for the issuance of the TRO (voting was
7-6, with Corona, Velasco, Brion, Peralta, Bersamin, Abad, and Perez as the
majority). This vote was taken after Justice Abad stated that since condition
(ii) for the issuance of the TRO was not complied with, there was no need to
state that the TRO is suspended since it is common sense that the TRO cannot
take effect unless all the conditions are satisfied. I had earlier proposed that
the Court recall the TRO for non-compliance of condition (ii) but Justice Abads
response was that it need not be recalled because its effectivity is deemed
suspended pending compliance with condition (ii). After all, Justice Abad said,
it will take only 10 minutes for the amended Special Power of Attorney to be
submitted by Atty. Topacio.
However, the Resolution dated 18 November 2011 did not reflect at all item
1. The Resolution merely stated that petitioners are directed to comply with
condition (ii) for the issuance of the TRO, which correctly reflects item 2. Thus,
in the En Banc meeting last 22 November 2011, I suggested that the En Banc
clarify the Resolution dated 15 November 2011 to reflect item 1 above. The
En Banc agreed, and no one objected. Justice Velasco was designated to draft
the clarificatory Resolution.
x x x x[8]
Justice Carpios confidential letter aforementioned became part of the

discussion during the En Banc session on November 29, 2011 which ought not
to be divulged to the public.
3. The letter of Justice Carpio was taken up on the morning of 29 November

2011. While Justice Roberto A. Abad had argued on 18 November 2011 that
the suspensive effect of non-compliance with condition (ii) need no longer be
stated, as it is common sense, this time he voted unequivocably that despite
non-compliance with condition (ii), the TRO is nevertheless not suspended.[9]
4. The voting taken on 29 November 2011 was of the same composition as
that of the 18 November 2011 voting. Justices Carpio, Abad, Martin S.
Villarama, Jr., Jose C. Mendoza, Maria Lourdes P. A. Sereno, Bienvenido L.
Reyes and Estela M. Perlas-Bernabe as the first majority group maintain that
there was no compliance with condition (ii). Then the majority grouping
shifted when Justice Abad as he did on 18 November joined Chief Justice
Corona and Justices Presbitero J. Velasco, Jr., Arturo D. Brion, Diosdado M.
Peralta, Lucas P. Bersamin, and Jose P. Perez to comprise the majority. This
time, however, the majority categorically voted to declare the non-
suspension of the TRO despite non-compliance with condition (ii). There was
therefore, in every sense of the word, a revision of the second majority groups
vote, which now has the effect of reversing their earlier ruling. This is not
strange, as any clarification of an earlier vote can result in a very substantive
revision of that earlier vote. I requested two (2) days to write my Dissent.[10]
5. When the resolution came out, it was not, with all due respect, a fully
accurate reflection of what took place; thus, the sentences in my Dissent
advising the acting chief of the PIO to desist from interpreting our actions, the
letter of Justice Carpio, and the need for a re-voting by the En Banc on 29
November 2011. This incident demonstrates an existing gap between the
actual discussion and the voting results that take place in an En Banc session
and their reflection in written form via an unsigned resolution.[11]
Justice Serenos unpromulgated dissenting opinion appears to me as a clear

breach of Sec. 2, Rule 10 of the IRSC, which pronounces, in an unequivocal
manner, that Court deliberations are confidential and shall not be disclosed
to outside parties, except as may be provided herein (IRSC) or as authorized
by the Court. The aforesaid excerpts from the promulgated November 18,
2011 Dissenting Opinion and the unpromulgated Dissenting Opinion of Justice
Sereno are confidential matters taken up during the November 18, 2011 and
November 29, 2011 En Banc sessions. They cannot be incorporated in an
opinion of a member of the Court as this will be tantamount to a proscribed
disclosure to outside parties even if contained in an opinion. Justice Sereno
has not shown that such disclosure is allowed by any rule of the IRSC or
authorized by the Court.
More importantly, it is the Chief Justices task under Sec. 2, Rule 10 of the IRSC
to record the action or actions taken in each case. The notes of the Chief
Justice shall be the bases of the minutes of the session which, in turn,
resolutions shall be predicated upon. Nowhere in the Rules does it say that a
member can incorporate the deliberations in his/her opinion. This caveat is
to obviate the possibility of conflicting statements of facts that will likely arise
especially if the member takes a contrary position to that of the majority.
Justice Sereno, by stating what are allegedly the result of the deliberations of
the En Banc and the votation on cases or incidents, appears to encroach into
the functions of the Chief Justice. This should not be countenanced as once a
vote is taken on an issue, the majority view then becomes that of the Court.
To say that such was not the case, as is the position of J. Sereno, would sow
doubt and suspicion on the veracity of the resolutions of the en banc as
authenticated by the Clerk of Court. Else the stability of judicial decisions and
resolutions is compromised.
Accordingly, I recommend that the portions of the unpromulgated Dissenting
Opinion of Justice Sereno delving on what under the Rules are considered
confidential be expunged for being violative of Sec. 2, Rule 10 of the IRSC. In
the same token, confidential matters contained in this separate opinion
should likewise be expunged in the event the Court decides to adopt the
recommendation herein made. It should be made clear, however, that what
impelled me to include matters in this opinion that only members of the Court
ought to know is to show that, should the dissenting opinion of Justice Sereno
be promulgated in its present form, it in itself is a departure from the IRSC.
The TRO authorized by the November l5, 20ll Resolution is immediately

executory upon compliance with the posting of the P2M bond.
The November 15, 2011 Resolution is clearThe temporary restraining order

shall be immediately executory. (Last paragraph, p. 3) This directive is
qualified by item (c) of the said Resolution which prescribed three (3)
conditions:
i. the posting of the P2M bond within 5 days from notice otherwise the
TRO will be automatically lifted;
ii. the appointment of a legal representative who will receive subpoena,

orders and other legal processes during petitioners absence also within 5 days
from notice; and
iii. the petitioners shall inform said embassy of their whereabouts at all
times.
It is my view that petitioners are required only to post the bond of P2M to
pave the way for the issuance of the TRO. This is clear from the 2nd sentence
of condition (i) that the failure to post the bond within 5 days will result in the
automatic lifting of the TRO.
While The Court ruled later in its November 22, 2011 Resolution that the
special power of attorney submitted by Atty. Topacio on November 15, 2011
was insufficient, the TRO however remained effective by virtue of the
submission of the requisite P2M bond. It should be made abundantly clear
that the qualification respecting the automatic lifting of the TRO obtaining in
condition (i) was not made to apply to condition (ii), implying that non-
compliance with the requirement on the appointment of the legal
representative will not result in the lifting of the TRO. The matter of whether
or not condition (ii) constitutes a condition precedent or a subsequent
condition, is now really of little moment. The important consideration is that
non-compliance with condition (ii) would not, under the very terms of the
enabling Resolution or the TRO itself, result in the automatic lifting of the
restraining order thus granted.
At any rate, on November 15, 2011, petitioners complied with conditions (i)
and (ii) and, as a result, the Office of the Clerk of Court issued the TRO
pursuant to the November 15, 2011 Resolution. The presumptive validity of
the TRO must be recognized, albeit the original special power of attorney
accorded Atty. Topacio was determined later to be non-compliant.
Respondent De Lima chose to ignore the TRO and so, on November 18, 2011,
the Court issued a Resolution requiring her to show cause why she should not
be cited for contempt for her failure to comply with the TRO and further
require her to immediately comply thereto. Justice Carpio questioned the
accuracy and completeness of this Resolution. Thus, the Resolution in
question was discussed during the November 22, 2011 session. By a vote of
7-6, the Court found that there was no sufficient compliance with the
required appointment of the legal representative of petitioners. Thereafter,
there was a long discussion on whether or not the TRO was suspended
pending compliance with the second condition. I distinctly remember moving
that a vote be made on the issue of the suspension or non-suspension of the
TRO pending satisfaction of the second condition. Thus, the majority vote of
7 held that the TRO was not suspended pending compliance with the
appointment of the legal representative of petitioners. As a matter of fact, on
November 18, 2011, petitioners already submitted a special power of
attorney appointing Atty. Topacio as their legal representative to receive
summons, subpoenas, orders and other legal processes. Thus, by November
18, 2011, the issue of whether or not the TRO was suspended pending
compliance with such requirement has already become moot and academic
and there is actually no necessity to clarify said issue. However, to set the
record straight, I certify that the draft directive on the non-suspension of the
TRO is correct and accurate.
On November 29, 2011, the Court En Banc voted anew on the same issue of
the non-suspension of the TRO pending compliance with the second
condition and again, by a vote of 7 against 6, the Court held that the TRO was
not suspended. The majority sustained the correctness and validity of the
November 22, 2011 Resolution. This should put the issue to rest.

Associate Justice
[1] The seven justices who voted for the majority includes Justices Antonio T.
Carpio, Roberto A. Abad, Martin S. Villarama, Jr., Jose C. Mendoza, Maria
Lourdes P. A. Sereno, Bienvenido L. Reyes, and Estela M. Perlas Bernabe.
[2] Dissenting Opinion of Justice Sereno promulgated on November 18, 2011,
pp. 1-2.
[3] Id. at 6.
[4] Id. at 7.
[5] Id. at 8.
[6] Unpromulgated Dissenting Opinion of Justice Sereno, p. 1.
[7] As amended from 15 November to 18 November by Justice Carpio in his
amendatory letter also dated 24 November 2011.
[8] Supra note 6, at 2-3.
[9] Id. at 4.
[10] Id. at 5.
[11] Id.
8. G.R. No. 141529
THIRD DIVISION
[G.R. No. 141529. June 6, 2001]
FRANCISCO YAP, JR., a.k.a. EDWIN YAP, petitioner, vs. COURT OF APPEALS and
the PEOPLE OF THE PHILIPPINES, respondents.
DECISION
GONZAGA-REYES, J.:
The right against excessive bail, and the liberty of abode and travel, are being
invoked to set aside two resolutions of the Court of Appeals which fixed bail
at P5,500,000.00 and imposed conditions on change of residence and travel
abroad.
For misappropriating amounts equivalent to P5,500,000.00, petitioner was

convicted of estafa by the Regional Trial Court of Pasig City[1] and was
sentenced to four years and two months of prision correccional, as minimum,
to eight years of prision mayor as maximum, in addition to one (1) year for
each additional P10,000.00 in excess of P22,000.00 but in no case shall it
exceed twenty (20) years.[2] He filed a notice of appeal, and moved to be
allowed provisional liberty under the cash bond he had filed earlier in the
proceedings. The motion was denied by the trial court in an order dated
February 17, 1999.
After the records of the case were transmitted to the Court of Appeals,
petitioner filed with the said court a Motion to Fix Bail For the Provisional
Liberty of Accused-Appellant Pending Appeal, invoking the last paragraph of
Section 5, Rule 114 of the 1997 Revised Rules of Court. Asked to comment on
this motion, the Solicitor General opined that petitioner may be allowed to
post bail in the amount of P5,500,000.00 and be required to secure a
certification/guaranty from the Mayor of the place of his residence that he is
a resident of the area and that he will remain to be so until final judgment is
rendered or in case he transfers residence, it must be with prior notice to the
court and private complainant.[3] Petitioner filed a Reply, contending that the
proposed bail of P5,500,000.00 was violative of his right against excessive bail.
The assailed resolution of the Court of Appeals[4], issued on October 6, 1999,

upheld the recommendation of the Solicitor General; thus, its dispositive
portion reads:
WHEREFORE, premises considered, the Motion to Fix Bail For Provisional

Liberty of Accused-Appellant Pending Appeal is hereby GRANTED. Accused-
appellant Francisco Yap, Jr., a.k.a. Edwin Yap is hereby ALLOWED TO POST
BAIL in the amount of Five Million Five Hundred Thousand (P5,500,000.00)
Pesos, subject to the following conditions, viz.:
(1) He (accused-appellant) secures a certification/guaranty from the Mayor of

the place of his residence that he is a resident of the area and that he will
remain to be a resident therein until final judgment is rendered or in case he
transfers residence, it must be with prior notice to the court;
(2) The Commission of Immigration and Deportation (CID) is hereby directed

to issue a hold departure order against accused-appellant; and
(3) The accused-appellant shall forthwith surrender his passport to the

Division Clerk of Court for safekeeping until the court orders its return;
(4) Any violation of the aforesaid conditions shall cause the forfeiture of
accused-appellants bail bond, the dismissal of appeal and his immediate
arrest and confinement in jail.
SO ORDERED.[5]
A motion for reconsideration was filed, seeking the reduction of the amount
of bail fixed by respondent court, but was denied in a resolution issued on
November 25, 1999. Hence, this petition.
Petitioner sets out the following assignments of error:
The respondent Court of Appeals committed grave abuse of discretion in

fixing the bail for the provisional liberty of petitioner pending appeal in the
amount of P5.5 million.
The respondent Court of Appeals committed grave abuse of discretion in

basing the bail for the provisional liberty of the petitioner on his civil liability.
The respondent Court of Appeals unduly restricted petitioners constitutional

liberty of abode and travel in imposing the other conditions for the grant of
bail.
Petitioner contends that the Court of Appeals, by setting bail at a prohibitory

amount, effectively denied him his right to bail. He challenges the legal basis
of respondent court for fixing bail at P5,500,000.00, which is equivalent to the
amount of his civil liability to private complainant Manila Mahogany
Marketing Corporation, and argues that the Rules of Court never intended for
the civil liability of the accused to be a guideline or basis for determining the
amount of bail. He prays that bail be reduced to at least P40,000.00, citing the
maximum amount of bail that can be posted for the crime of estafa under the
1996 Bail Bond Guide, or P20,000.00, equivalent to the amount of bail he
posted during the trial of the case.[6]
On the other hand, the Solicitor General maintains that no grave abuse of
discretion could be ascribed to the Court of Appeals for fixing the amount of
bail at P5,500,000.00 considering the severity of the penalty imposed, the
weight of the evidence against petitioner, and the gravity of the offense of
which petitioner was convicted by the RTC. He asserted that the
P5,500,000.00 not only corresponded to civil liability but also to the amount
of fraud imputed to petitioner. The Solicitor General further pointed out the
probability of flight in case petitioner is released on bail, it having been
established that petitioner was in possession of a valid passport and visa and
had in fact left the country several times during the course of the proceedings
in the lower court. It was also shown that petitioner used different names in
his business transactions and had several abodes in different parts of the
country.
As for the conditions imposed by the bail bond, the Solicitor General
advanced that all that the Court of Appeals requires is notice in case of change
of address; it does not in any way impair petitioners right to change abode for
as long as the court is apprised of his change of residence during the pendency
of the appeal.
Petitioners case falls within the provisions of Section 5, Rule 114 of the 1997
Rules of Court which states:
SEC. 5. Bail, when discretionary. --- Upon conviction by the Regional Trial
Court of an offense not punishable by death, reclusion perpetua or life
imprisonment, the court, on application, may admit the accused to bail.
The court, in its discretion, may allow the accused to continue on provisional
liberty under the same bail bond during the period to appeal subject to the
consent of the bondsman.
If the court imposed a penalty of imprisonment exceeding six (6) years, but
not more than twenty (20) years, the accused shall be denied bail, or his bail
previously granted shall be cancelled, upon a showing by the prosecution,
with notice to the accused, of the following or other similar circumstances:
(a) That the accused is a recidivist, quasi-recidivist, or habitual delinquent, or

has committed the crime aggravated by the circumstance of reiteration;
(b) That the accused is found to have previously escaped from legal
confinement, evaded sentence, or has violated the conditions of his bail
without valid justification;
(c) That the accused committed the offense while on probation, parole, or
under conditional pardon;
(d) That the circumstances of the accused or his case indicate the probability
of flight if released on bail; or
(e) That there is undue risk that during the pendency of the appeal, the
accused may commit another crime.
The appellate court may review the resolution of the Regional Trial Court, on
motion and with notice to the adverse party.[7]
There is no question that in the present case the Court of Appeals exercised
its discretion in favor of allowing bail to petitioner on appeal. Respondent
court stated that it was doing so for humanitarian reasons, and despite a
perceived high risk of flight, as by petitioners admission he went out of the
country several times during the pendency of the case, for which reason the
court deemed it necessary to peg the amount of bail at P5,500,000.00.
The prohibition against requiring excessive bail is enshrined in the

Constitution.[8] The obvious rationale, as declared in the leading case of De
la Camara vs. Enage,[9] is that imposing bail in an excessive amount could
render meaningless the right to bail. Thus, in Villaseor vs. Abao,[10] this Court
made the pronouncement that it will not hesitate to exercise its supervisory
powers over lower courts should the latter, after holding the accused entitled
to bail, effectively deny the same by imposing a prohibitory sum or exacting
unreasonable conditions.
xxx There is grim irony in an accused being told that he has a right to bail but
at the same time being required to post such an exorbitant sum. What
aggravates the situation is that the lower court judge would apparently yield
to the command of the fundamental law. In reality, such a sanctimonious
avowal of respect for a mandate of the Constitution was on a purely verbal
level. There is reason to believe that any person in the position of petitioner
would under the circumstances be unable to resist thoughts of escaping from
confinement, reduced as he must have been to a state of desperation. In the
same breath as he was told he could be bailed out, the excessive amount
required could only mean that provisional liberty would be beyond his reach.
It would have been more forthright if he were informed categorically that
such a right could not be availed of. There would have been no
disappointment of expectations then. It does call to mind these words of
Justice Jackson, a promise to the ear to be broken to the hope, a teasing
illusion like a munificent bequest in a paupers will. xxx[11]
At the same time, Section 9, Rule 114 of the Revised Rules of Criminal
Procedure advises courts to consider the following factors in the setting of
the amount of bail:
(a) Financial ability of the accused to give bail;
(b) Nature and circumstances of the offense;
(c) Penalty for the offense charged;
(d) Character and reputation of the accused;
(e) Age and health of the accused;

(f) Weight of the evidence against the accused;
(g) Probability of the accused appearing at the trial;
(h) Forfeiture of other bail;
(i) The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail.
Thus, the court has wide latitude in fixing the amount of bail. Where it fears
that the accused may jump bail, it is certainly not precluded from installing
devices to ensure against the same. Options may include increasing the bail
bond to an appropriate level, or requiring the person to report periodically to
the court and to make an accounting of his movements.[12] In the present
case, where petitioner was found to have left the country several times while
the case was pending, the Court of Appeals required the confiscation of his
passport and the issuance of a hold-departure order against him.
Under the circumstances of this case, we find that appropriate conditions

have been imposed in the bail bond to ensure against the risk of flight,
particularly, the combination of the hold-departure order and the
requirement that petitioner inform the court of any change of residence and
of his whereabouts. Although an increase in the amount of bail while the case
is on appeal may be meritorious, we find that the setting of the amount at
P5,500,000.00 is unreasonable, excessive, and constitutes an effective denial
of petitioners right to bail.
The purpose for bail is to guarantee the appearance of the accused at the
trial,[13] or whenever so required by the court[14] The amount should be
high enough to assure the presence of the accused when required but no
higher than is reasonably calculated to fulfill this purpose.[15] To fix bail at an
amount equivalent to the civil liability of which petitioner is charged (in this
case, P5,500,000.00) is to permit the impression that the amount paid as bail
is an exaction of the civil liability that accused is charged of; this we cannot
allow because bail is not intended as a punishment, nor as a satisfaction of
civil liability which should necessarily await the judgment of the appellate
court.
At the same time, we cannot yield to petitioners submission that bail in the
instant case be set at P40,000.00 based on the 1996 Bail Bond Guide. (The
current Bail Bond Guide, issued on August 29, 2000, maintains recommended
bail at P40,000.00 for estafa where the amount of fraud is P142,000.00 or
over and the imposable penalty 20 years of reclusion temporal). True, the
Court has held that the Bail Bond Guide, a circular of the Department of
Justice for the guidance of state prosecutors, although technically not binding
upon the courts, merits attention, being in a sense an expression of policy of
the Executive Branch, through the Department of Justice, in the enforcement
of criminal laws.[16] Thus, courts are advised that they must not only be
aware but should also consider the Bail Bond Guide due to its significance in
the administration of criminal justice.[17] This notwithstanding, the Court is
not precluded from imposing in petitioners case an amount higher than
P40,000.00 (based on the Bail Bond Guide) where it perceives that an
appropriate increase is dictated by the circumstances.
It militates emphasis that petitioner is seeking bail on appeal. Section 5, Rule

114 of the Revised Rules of Criminal Procedure is clear that although the grant
of bail on appeal in non-capital offenses is discretionary, when the penalty
imposed on the convicted accused exceeds six years and circumstances exist
that point to the probability of flight if released on bail, then the accused must
be denied bail, or his bail previously granted should be cancelled.[18] In the
same vein, the Court has held that the discretion to extend bail during the
course of the appeal should be exercised with grave caution and for strong
reasons, considering that the accused had been in fact convicted by the trial
court.[19] In an earlier case, the Court adopted Senator Vicente J. Franciscos
disquisition on why bail should be denied after judgment of conviction as a
matter of wise discretion; thus:
The importance attached to conviction is due to the underlying principle that

bail should be granted only where it is uncertain whether the accused is guilty
or innocent, and therefore, where that uncertainty is removed by conviction
it would, generally speaking, be absurd to admit to bail. After a person has
been tried and convicted the presumption of innocence which may be relied
upon in prior applications is rebutted, and the burden is upon the accused to
show error in the conviction. From another point of view it may be properly
argued that the probability of ultimate punishment is so enhanced by the
conviction that the accused is much more likely to attempt to escape if
liberated on bail than before conviction. xxx [20]
Petitioner is seeking bail on appeal. He was in fact declared guilty beyond

reasonable doubt by the RTC, and due to the serious amount of fraud
involved, sentenced to imprisonment for twenty years --- the maximum
penalty for estafa by false pretenses or fraudulent acts allowed by the Revised
Penal Code. Although it cannot be controverted that the Court of Appeals,
despite the foregoing considerations and the possibility of flight still wielded
its discretion to grant petitioner bail, the setting of bail in the amount of
P5,500,000.00 is unjustified as having no legal nor factual basis. Guided by the
penalty imposed by the lower court and the weight of the evidence against
petitioner, we believe that the amount of P200,000.00 is more reasonable.
Petitioner also contests the condition imposed by the Court of Appeals that
he secure a certification/guaranty from the Mayor of the place of his
residence that he is a resident of the area and that he will remain to be a
resident therein until final judgment is rendered or in case he transfers
residence, it must be with prior notice to the court, claiming that the same
violates his liberty of abode and travel.
Notably, petitioner does not question the hold-departure order which

prevents him from leaving the Philippines unless expressly permitted by the
court which issued the order.[21] In fact, the petition submits that the hold-
departure order against petitioner is already sufficient guarantee that he will
not escape. Thus, to require him to inform the court every time he changed
his residence is already unnecessary.[22]
The right to change abode and travel within the Philippines, being invoked by
petitioner, are not absolute rights. Section 6, Article III of the 1987
Constitution states:
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.
The order of the Court of Appeals releasing petitioner on bail constitutes such
lawful order as contemplated by the above provision.[23] The condition
imposed by the Court of Appeals is simply consistent with the nature and
function of a bail bond, which is to ensure that petitioner will make himself
available at all times whenever the Court requires his presence. Besides, a
closer look at the questioned condition will show that petitioner is not
prevented from changing abode; he is merely required to inform the court in
case he does so.
WHEREFORE, the petition is PARTIALLY GRANTED. Petitioners bail pending

appeal is reduced from P5,500,000.00 to P200,000.00. In all other respects,
the resolutions of the Court of Appeals, dated October 6, 1999 and November
25, 1999, respectively, are AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.
[1] Branch 167, presided by Judge Alfredo C. Flores.
[2] RTC Decision; Rollo, 33-34.
[3] Comment of Solicitor General to Motion to Fix Bail; Rollo, 59.
[4] Fourteenth Division, composed of Associate Justice Ramon A. Barcelona

(Chairman and ponente), Associate Justice Demetrio G. Demetria, and
Associate Justice Mercedes Gozo-Dadole.
[5] CA Resolution dated October 6, 1999; Rollo, 18-19.
[6] Petition; Rollo, 8.
[7] See also Section 5, Rule 114 of the Revised Rules of Criminal Procedure,
effective December 1, 2000.
[8] At Section 13, Article III (Bill of Rights), the 1987 Constitution declares: 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. (Emphasis
supplied)
[9] 41 SCRA 1 (1971).
[10] 21 SCRA 312 (1967). See also Chu vs. Dolalas, 260 SCRA 309 (1996).
[11] Dela Camara vs. Enage, supra, at 9, 10.
[12] Almeda vs. Villaluz, 66 SCRA 38 (1975).
[13] Almeda vs. Villaluz, supra.

[14] Sec. 2, Rule 114, Revised Rules of Criminal Procedure.
[15] Villaseor vs. Abao, 21 SCRA 312 (1967).
[16] People vs. Resterio-Andrade, 175 SCRA 782 (1989).
[17] Chu vs. Dolalas, supra.
[18] Maguddatu vs. Court of Appeals, 326 SCRA 362 (2000); Obosa vs. Court
of Appeals, 266 SCRA 281 (1997), citing People vs. Caderao and Associated
Insurance & Surety Co., Inc., 117 Phil. 650 (1963).
[19] Obosa vs. Court of Appeals, supra.
[20] Id., citing FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES
--- CRIMINAL PROCEDURE (1963), at 322.
[21] See Defensor-Santiago vs. Vasquez, 217 SCRA 633 (1993), where the
Court held that the ex parte issuance of a hold-departure order was a valid
exercise of the presiding courts inherent power to preserve and to maintain
the effectiveness of its jurisdiction over the case and the person of the
accused. See also Silverio vs. Court of Appeals, 195 SCRA 760 (1991), where
the Court upheld the hold-departure order as a valid restriction on the
accuseds right to travel, as to keep him within the reach of the courts.
[22] Petition; Rollo, 11

[23] Manotoc vs. Court of Appeals, 142 SCRA 149 (1986).
9. G.R. No. L-14639
SUPREME COURT
Manila
EN BANC
G.R. No. L-14639 March 25, 1919
ZACARIAS VILLAVICENCIO, ET AL., petitioners,

vs.
JUSTO LUKBAN, ET AL., respondents.
Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.
MALCOLM, J.:
The annals of juridical history fail to reveal a case quite as remarkable as the
one which this application for habeas corpus submits for decision. While
hardly to be expected to be met with in this modern epoch of triumphant
democracy, yet, after all, the cause presents no great difficulty if there is kept
in the forefront of our minds the basic principles of popular government, and
if we give expression to the paramount purpose for which the courts, as an
independent power of such a government, were constituted. The primary
question is Shall the judiciary permit a government of the men instead of
a government of laws to be set up in the Philippine Islands?
Omitting much extraneous matter, of no moment to these proceedings, but

which might prove profitable reading for other departments of the
government, the facts are these: The Mayor of the city of Manila, Justo
Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a
number of years in the city of Manila, closed. Between October 16 and
October 25, 1918, the women were kept confined to their houses in the
district by the police. Presumably, during this period, the city authorities
quietly perfected arrangements with the Bureau of Labor for sending the
women to Davao, Mindanao, as laborers; with some government office for
the use of the coastguard cutters Corregidor and Negros, and with the
Constabulary for a guard of soldiers. At any rate, about midnight of October
25, the police, acting pursuant to orders from the chief of police, Anton
Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon
the houses, hustled some 170 inmates into patrol wagons, and placed them
aboard the steamers that awaited their arrival. The women were given no
opportunity to collect their belongings, and apparently were under the
impression that they were being taken to a police station for an investigation.
They had no knowledge that they were destined for a life in Mindanao. They
had not been asked if they wished to depart from that region and had neither
directly nor indirectly given their consent to the deportation. The involuntary
guests were received on board the steamers by a representative of the
Bureau of Labor and a detachment of Constabulary soldiers. The two
steamers with their unwilling passengers sailed for Davao during the night of
October 25.
The vessels reached their destination at Davao on October 29. The women
were landed and receipted for as laborers by Francisco Sales, provincial
governor of Davao, and by Feliciano Yigo and Rafael Castillo. The governor
and the hacendero Yigo, who appear as parties in the case, had no previous
notification that the women were prostitutes who had been expelled from
the city of Manila. The further happenings to these women and the serious
charges growing out of alleged ill-treatment are of public interest, but are not
essential to the disposition of this case. Suffice it to say, generally, that some
of the women married, others assumed more or less clandestine relations
with men, others went to work in different capacities, others assumed a life
unknown and disappeared, and a goodly portion found means to return to
Manila.
To turn back in our narrative, just about the time the Corregidor and the
Negros were putting in to Davao, the attorney for the relatives and friends of
a considerable number of the deportees presented an application for habeas
corpus to a member of the Supreme Court. Subsequently, the application,
through stipulation of the parties, was made to include all of the women who
were sent away from Manila to Davao and, as the same questions concerned
them all, the application will be considered as including them. The application
set forth the salient facts, which need not be repeated, and alleged that the
women were illegally restrained of their liberty by Justo Lukban, Mayor of the
city of Manila, Anton Hohmann, chief of police of the city of Manila, and by
certain unknown parties. The writ was made returnable before the full court.
The city fiscal appeared for the respondents, Lukban and Hohmann, admitted
certain facts relative to sequestration and deportation, and prayed that the
writ should not be granted because the petitioners were not proper parties,
because the action should have been begun in the Court of First Instance for
Davao, Department of Mindanao and Sulu, because the respondents did not
have any of the women under their custody or control, and because their
jurisdiction did not extend beyond the boundaries of the city of Manila.
According to an exhibit attached to the answer of the fiscal, the 170 women
were destined to be laborers, at good salaries, on the haciendas of Yigo and
Governor Sales. In open court, the fiscal admitted, in answer to question of a
member of the court, that these women had been sent out of Manila without
their consent. The court awarded the writ, in an order of November 4, that
directed Justo Lukban, Mayor of the city of Manila, Anton Hohmann, chief of
police of the city of Manila, Francisco Sales, governor of the province of
Davao, and Feliciano Yigo, an hacendero of Davao, to bring before the court
the persons therein named, alleged to be deprived of their liberty, on
December 2, 1918.
Before the date mentioned, seven of the women had returned to Manila at
their own expense. On motion of counsel for petitioners, their testimony was
taken before the clerk of the Supreme Court sitting as commissioners. On the
day named in the order, December 2nd, 1918, none of the persons in whose
behalf the writ was issued were produced in court by the respondents. It has
been shown that three of those who had been able to come back to Manila
through their own efforts, were notified by the police and the secret service
to appear before the court. The fiscal appeared, repeated the facts more
comprehensively, reiterated the stand taken by him when pleading to the
original petition copied a telegram from the Mayor of the city of Manila to the
provincial governor of Davao and the answer thereto, and telegrams that had
passed between the Director of Labor and the attorney for that Bureau then
in Davao, and offered certain affidavits showing that the women were
contained with their life in Mindanao and did not wish to return to Manila.
Respondents Sales answered alleging that it was not possible to fulfill the
order of the Supreme Court because the women had never been under his
control, because they were at liberty in the Province of Davao, and because
they had married or signed contracts as laborers. Respondent Yigo answered
alleging that he did not have any of the women under his control and that
therefore it was impossible for him to obey the mandate. The court, after due
deliberation, on December 10, 1918, promulgated a second order, which
related that the respondents had not complied with the original order to the
satisfaction of the court nor explained their failure to do so, and therefore
directed that those of the women not in Manila be brought before the court
by respondents Lukban, Hohmann, Sales, and Yigo on January 13, 1919,
unless the women should, in written statements voluntarily made before the
judge of first instance of Davao or the clerk of that court, renounce the right,
or unless the respondents should demonstrate some other legal motives that
made compliance impossible. It was further stated that the question of
whether the respondents were in contempt of court would later be decided
and the reasons for the order announced in the final decision.
Before January 13, 1919, further testimony including that of a number of the
women, of certain detectives and policemen, and of the provincial governor
of Davao, was taken before the clerk of the Supreme Court sitting as
commissioner and the clerk of the Court of First Instance of Davao acting in
the same capacity. On January 13, 1919, the respondents technically
presented before the Court the women who had returned to the city through
their own efforts and eight others who had been brought to Manila by the
respondents. Attorneys for the respondents, by their returns, once again
recounted the facts and further endeavored to account for all of the persons
involved in the habeas corpus. In substance, it was stated that the
respondents, through their representatives and agents, had succeeded in
bringing from Davao with their consent eight women; that eighty-one women
were found in Davao who, on notice that if they desired they could return to
Manila, transportation fee, renounced the right through sworn statements;
that fifty-nine had already returned to Manila by other means, and that
despite all efforts to find them twenty-six could not be located. Both counsel
for petitioners and the city fiscal were permitted to submit memoranda. The
first formally asked the court to find Justo Lukban, Mayor of the city of Manila,
Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez and
Fernando Ordax, members of the police force of the city of Manila, Feliciano
Yigo, an hacendero of Davao, Modesto Joaquin, the attorney for the Bureau
of Labor, and Anacleto Diaz, fiscal of the city of Manila, in contempt of court.
The city fiscal requested that the replica al memorandum de los recurridos,
(reply to respondents' memorandum) dated January 25, 1919, be struck from
the record.
In the second order, the court promised to give the reasons for granting the
writ of habeas corpus in the final decision. We will now proceed to do so.
One fact, and one fact only, need be recalled these one hundred and
seventy women were isolated from society, and then at night, without their
consent and without any opportunity to consult with friends or to defend
their rights, were forcibly hustled on board steamers for transportation to
regions unknown. Despite the feeble attempt to prove that the women left
voluntarily and gladly, that such was not the case is shown by the mere fact
that the presence of the police and the constabulary was deemed necessary
and that these officers of the law chose the shades of night to cloak their
secret and stealthy acts. Indeed, this is a fact impossible to refute and
practically admitted by the respondents.
With this situation, a court would next expect to resolve the question By
authority of what law did the Mayor and the Chief of Police presume to act in
deporting by duress these persons from Manila to another distant locality
within the Philippine Islands? We turn to the statutes and we find
Alien prostitutes can be expelled from the Philippine Islands in conformity

with an Act of congress. The Governor-General can order the eviction of
undesirable aliens after a hearing from the Islands. Act No. 519 of the
Philippine Commission and section 733 of the Revised Ordinances of the city
of Manila provide for the conviction and punishment by a court of justice of
any person who is a common prostitute. Act No. 899 authorizes the return of
any citizen of the United States, who may have been convicted of vagrancy,
to the homeland. New York and other States have statutes providing for the
commitment to the House of Refuge of women convicted of being common
prostitutes. Always a law! Even when the health authorities compel
vaccination, or establish a quarantine, or place a leprous person in the Culion
leper colony, it is done pursuant to some law or order. But one can search in
vain for any law, order, or regulation, which even hints at the right of the
Mayor of the city of Manila or the chief of police of that city to force citizens
of the Philippine Islands and these women despite their being in a sense
lepers of society are nevertheless not chattels but Philippine citizens
protected by the same constitutional guaranties as are other citizens to
change their domicile from Manila to another locality. On the contrary,
Philippine penal law specifically punishes any public officer who, not being
expressly authorized by law or regulation, compels any person to change his
residence.
In other countries, as in Spain and Japan, the privilege of domicile is deemed

so important as to be found in the Bill of Rights of the Constitution. Under the
American constitutional system, liberty of abode is a principle so deeply
imbedded in jurisprudence and considered so elementary in nature as not
even to require a constitutional sanction. Even the Governor-General of the
Philippine Islands, even the President of the United States, who has often
been said to exercise more power than any king or potentate, has no such
arbitrary prerogative, either inherent or express. Much less, therefore, has
the executive of a municipality, who acts within a sphere of delegated powers.
If the mayor and the chief of police could, at their mere behest or even for
the most praiseworthy of motives, render the liberty of the citizen so
insecure, then the presidents and chiefs of police of one thousand other
municipalities of the Philippines have the same privilege. If these officials can
take to themselves such power, then any other official can do the same. And
if any official can exercise the power, then all persons would have just as much
right to do so. And if a prostitute could be sent against her wishes and under
no law from one locality to another within the country, then officialdom can
hold the same club over the head of any citizen.
Law defines power. Centuries ago Magna Charta decreed that "No freeman
shall be taken, or imprisoned, or be disseized of his freehold, or liberties, or
free customs, or be outlawed, or exiled, or any other wise destroyed; nor will
we pass upon him nor condemn him, but by lawful judgment of his peers or
by the law of the land. We will sell to no man, we will not deny or defer to any
man either justice or right." (Magna Charta, 9 Hen., 111, 1225, Cap. 29; 1 eng.
stat. at Large, 7.) No official, no matter how high, is above the law. The courts
are the forum which functionate to safeguard individual liberty and to punish
official transgressors. "The law," said Justice Miller, delivering the opinion of
the Supreme Court of the United States, "is the only supreme power in our
system of government, and every man who by accepting office participates in
its functions is only the more strongly bound to submit to that supremacy,
and to observe the limitations which it imposes upon the exercise of the
authority which it gives." (U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very
idea," said Justice Matthews of the same high tribunal in another case, "that
one man may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will of another,
seems to be intolerable in any country where freedom prevails, as being the
essence of slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All
this explains the motive in issuing the writ of habeas corpus, and makes clear
why we said in the very beginning that the primary question was whether the
courts should permit a government of men or a government of laws to be
established in the Philippine Islands.
What are the remedies of the unhappy victims of official oppression? The
remedies of the citizen are three: (1) Civil action; (2) criminal action, and (3)
habeas corpus.
The first is an optional but rather slow process by which the aggrieved party
may recoup money damages. It may still rest with the parties in interest to
pursue such an action, but it was never intended effectively and promptly to
meet any such situation as that now before us.
As to criminal responsibility, it is true that the Penal Code in force in these

Islands provides:
Any public officer not thereunto authorized by law or by regulations of a

general character in force in the Philippines who shall banish any person to a
place more than two hundred kilometers distant from his domicile, except it
be by virtue of the judgment of a court, shall be punished by a fine of not less
than three hundred and twenty-five and not more than three thousand two
hundred and fifty pesetas.
Any public officer not thereunto expressly authorized by law or by regulation

of a general character in force in the Philippines who shall compel any person
to change his domicile or residence shall suffer the penalty of destierro and a
fine of not less than six hundred and twenty-five and not more than six
thousand two hundred and fifty pesetas. (Art. 211.)
We entertain no doubt but that, if, after due investigation, the proper
prosecuting officers find that any public officer has violated this provision of
law, these prosecutors will institute and press a criminal prosecution just as
vigorously as they have defended the same official in this action.
Nevertheless, that the act may be a crime and that the persons guilty thereof
can be proceeded against, is no bar to the instant proceedings. To quote the
words of Judge Cooley in a case which will later be referred to "It would be
a monstrous anomaly in the law if to an application by one unlawfully
confined, ta be restored to his liberty, it could be a sufficient answer that the
confinement was a crime, and therefore might be continued indefinitely until
the guilty party was tried and punished therefor by the slow process of
criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.)
The writ of habeas corpus was devised and exists as a speedy and effectual
remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. Any further rights of the parties are
left untouched by decision on the writ, whose principal purpose is to set the
individual at liberty.
Granted that habeas corpus is the proper remedy, respondents have raised
three specific objections to its issuance in this instance. The fiscal has argued
(l) that there is a defect in parties petitioners, (2) that the Supreme Court
should not a assume jurisdiction, and (3) that the person in question are not
restrained of their liberty by respondents. It was finally suggested that the
jurisdiction of the Mayor and the chief of police of the city of Manila only
extends to the city limits and that perforce they could not bring the women
from Davao.
The first defense was not presented with any vigor by counsel. The petitioners
were relatives and friends of the deportees. The way the expulsion was
conducted by the city officials made it impossible for the women to sign a
petition for habeas corpus. It was consequently proper for the writ to be
submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78;
Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal
liberty, even makes it the duty of a court or judge to grant a writ of habeas
corpus if there is evidence that within the court's jurisdiction a person is
unjustly imprisoned or restrained of his liberty, though no application be
made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had
standing in court.
The fiscal next contended that the writ should have been asked for in the
Court of First Instance of Davao or should have been made returnable before
that court. It is a general rule of good practice that, to avoid unnecessary
expense and inconvenience, petitions for habeas corpus should be presented
to the nearest judge of the court of first instance. But this is not a hard and
fast rule. The writ of habeas corpus may be granted by the Supreme Court or
any judge thereof enforcible anywhere in the Philippine Islands. (Code of
Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the
writ shall be made returnable before the Supreme Court or before an inferior
court rests in the discretion of the Supreme Court and is dependent on the
particular circumstances. In this instance it was not shown that the Court of
First Instance of Davao was in session, or that the women had any means by
which to advance their plea before that court. On the other hand, it was
shown that the petitioners with their attorneys, and the two original
respondents with their attorney, were in Manila; it was shown that the case
involved parties situated in different parts of the Islands; it was shown that
the women might still be imprisoned or restrained of their liberty; and it was
shown that if the writ was to accomplish its purpose, it must be taken
cognizance of and decided immediately by the appellate court. The failure of
the superior court to consider the application and then to grant the writ
would have amounted to a denial of the benefits of the writ.
The last argument of the fiscal is more plausible and more difficult to meet.
When the writ was prayed for, says counsel, the parties in whose behalf it was
asked were under no restraint; the women, it is claimed, were free in Davao,
and the jurisdiction of the mayor and the chief of police did not extend
beyond the city limits. At first blush, this is a tenable position. On closer
examination, acceptance of such dictum is found to be perversive of the first
principles of the writ of habeas corpus.
A prime specification of an application for a writ of habeas corpus is restraint
of liberty. The essential object and purpose of the writ of habeas corpus is to
inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal. Any
restraint which will preclude freedom of action is sufficient. The forcible
taking of these women from Manila by officials of that city, who handed them
over to other parties, who deposited them in a distant region, deprived these
women of freedom of locomotion just as effectively as if they had been
imprisoned. Placed in Davao without either money or personal belongings,
they were prevented from exercising the liberty of going when and where
they pleased. The restraint of liberty which began in Manila continued until
the aggrieved parties were returned to Manila and released or until they
freely and truly waived his right.
Consider for a moment what an agreement with such a defense would mean.
The chief executive of any municipality in the Philippines could forcibly and
illegally take a private citizen and place him beyond the boundaries of the
municipality, and then, when called upon to defend his official action, could
calmly fold his hands and claim that the person was under no restraint and
that he, the official, had no jurisdiction over this other municipality. We
believe the true principle should be that, if the respondent is within the
jurisdiction of the court and has it in his power to obey the order of the court
and thus to undo the wrong that he has inflicted, he should be compelled to
do so. Even if the party to whom the writ is addressed has illegally parted with
the custody of a person before the application for the writ is no reason why
the writ should not issue. If the mayor and the chief of police, acting under no
authority of law, could deport these women from the city of Manila to Davao,
the same officials must necessarily have the same means to return them from
Davao to Manila. The respondents, within the reach of process, may not be
permitted to restrain a fellow citizen of her liberty by forcing her to change
her domicile and to avow the act with impunity in the courts, while the person
who has lost her birthright of liberty has no effective recourse. The great writ
of liberty may not thus be easily evaded.
It must be that some such question has heretofore been presented to the
courts for decision. Nevertheless, strange as it may seem, a close examination
of the authorities fails to reveal any analogous case. Certain decisions of
respectable courts are however very persuasive in nature.
A question came before the Supreme Court of the State of Michigan at an

early date as to whether or not a writ of habeas corpus would issue from the
Supreme Court to a person within the jurisdiction of the State to bring into
the State a minor child under guardianship in the State, who has been and
continues to be detained in another State. The membership of the Michigan
Supreme Court at this time was notable. It was composed of Martin, chief
justice, and Cooley, Campbell, and Christiancy, justices. On the question
presented the court was equally divided. Campbell, J., with whom concurred
Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most
distinguished American judges and law-writers, with whom concurred
Christiancy, J., held that the writ should issue. Since the opinion of Justice
Campbell was predicated to a large extent on his conception of the English
decisions, and since, as will hereafter appear, the English courts have taken a
contrary view, only the following eloquent passages from the opinion of
Justice Cooley are quoted:
I have not yet seen sufficient reason to doubt the power of this court to issue
the present writ on the petition which was laid before us. . . .
It would be strange indeed if, at this late day, after the eulogiums of six
centuries and a half have been expended upon the Magna Charta, and rivers
of blood shed for its establishment; after its many confirmations, until Coke
could declare in his speech on the petition of right that "Magna Charta was
such a fellow that he will have no sovereign," and after the extension of its
benefits and securities by the petition of right, bill of rights and habeas corpus
acts, it should now be discovered that evasion of that great clause for the
protection of personal liberty, which is the life and soul of the whole
instrument, is so easy as is claimed here. If it is so, it is important that it be
determined without delay, that the legislature may apply the proper remedy,
as I can not doubt they would, on the subject being brought to their notice. .
..
The second proposition that the statutory provisions are confined to the
case of imprisonment within the state seems to me to be based upon a
misconception as to the source of our jurisdiction. It was never the case in
England that the court of king's bench derived its jurisdiction to issue and
enforce this writ from the statute. Statutes were not passed to give the right,
but to compel the observance of rights which existed. . . .
The important fact to be observed in regard to the mode of procedure upon

this writ is, that it is directed to and served upon, not the person confined,
but his jailor. It does not reach the former except through the latter. The
officer or person who serves it does not unbar the prison doors, and set the
prisoner free, but the court relieves him by compelling the oppressor to
release his constraint. The whole force of the writ is spent upon the
respondent, and if he fails to obey it, the means to be resorted to for the
purposes of compulsion are fine and imprisonment. This is the ordinary mode
of affording relief, and if any other means are resorted to, they are only
auxiliary to those which are usual. The place of confinement is, therefore, not
important to the relief, if the guilty party is within reach of process, so that by
the power of the court he can be compelled to release his grasp. The difficulty
of affording redress is not increased by the confinement being beyond the
limits of the state, except as greater distance may affect it. The important
question is, where the power of control exercised? And I am aware of no
other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)
The opinion of Judge Cooley has since been accepted as authoritative by other
courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911],
Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)
The English courts have given careful consideration to the subject. Thus, a
child had been taken out of English by the respondent. A writ of habeas
corpus was issued by the Queen's Bench Division upon the application of the
mother and her husband directing the defendant to produce the child. The
judge at chambers gave defendant until a certain date to produce the child,
but he did not do so. His return stated that the child before the issuance of
the writ had been handed over by him to another; that it was no longer in his
custody or control, and that it was impossible for him to obey the writ. He
was found in contempt of court. On appeal, the court, through Lord Esher, M.
R., said:
A writ of habeas corpus was ordered to issue, and was issued on January 22.
That writ commanded the defendant to have the body of the child before a
judge in chambers at the Royal Courts of Justice immediately after the receipt
of the writ, together with the cause of her being taken and detained. That is
a command to bring the child before the judge and must be obeyed, unless
some lawful reason can be shown to excuse the nonproduction of the child.
If it could be shown that by reason of his having lawfully parted with the
possession of the child before the issuing of the writ, the defendant had no
longer power to produce the child, that might be an answer; but in the
absence of any lawful reason he is bound to produce the child, and, if he does
not, he is in contempt of the Court for not obeying the writ without lawful
excuse. Many efforts have been made in argument to shift the question of
contempt to some anterior period for the purpose of showing that what was
done at some time prior to the writ cannot be a contempt. But the question
is not as to what was done before the issue of the writ. The question is
whether there has been a contempt in disobeying the writ it was issued by
not producing the child in obedience to its commands. (The Queen vs.
Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of
In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo,
Gossage's Case [1890], 24 Q. B. D., 283.)
A decision coming from the Federal Courts is also of interest. A habeas corpus
was directed to the defendant to have before the circuit court of the District
of Columbia three colored persons, with the cause of their detention. Davis,
in his return to the writ, stated on oath that he had purchased the negroes as
slaves in the city of Washington; that, as he believed, they were removed
beyond the District of Columbia before the service of the writ of habeas
corpus, and that they were then beyond his control and out of his custody.
The evidence tended to show that Davis had removed the negroes because
he suspected they would apply for a writ of habeas corpus. The court held the
return to be evasive and insufficient, and that Davis was bound to produce
the negroes, and Davis being present in court, and refusing to produce them,
ordered that he be committed to the custody of the marshall until he should
produce the negroes, or be otherwise discharged in due course of law. The
court afterwards ordered that Davis be released upon the production of two
of the negroes, for one of the negroes had run away and been lodged in jail
in Maryland. Davis produced the two negroes on the last day of the term.
(United States vs. Davis [1839], 5 Cranch C.C., 622, Fed. Cas. No. 14926. See
also Robb vs. Connolly [1883], 111 U.S., 624; Church on Habeas, 2nd ed., p.
170.)
We find, therefore, both on reason and authority, that no one of the defense
offered by the respondents constituted a legitimate bar to the granting of the
writ of habeas corpus.
There remains to be considered whether the respondent complied with the

two orders of the Supreme Court awarding the writ of habeas corpus, and if
it be found that they did not, whether the contempt should be punished or
be taken as purged.
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to
comply with the writ. As far as the record discloses, the Mayor of the city of
Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the attorney for
the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-hearted effort naturally
resulted in none of the parties in question being brought before the court on
the day named.
For the respondents to have fulfilled the court's order, three optional courses
were open: (1) They could have produced the bodies of the persons according
to the command of the writ; or (2) they could have shown by affidavit that on
account of sickness or infirmity those persons could not safely be brought
before the court; or (3) they could have presented affidavits to show that the
parties in question or their attorney waived the right to be present. (Code of
Criminal Procedure, sec. 87.) They did not produce the bodies of the persons
in whose behalf the writ was granted; they did not show impossibility of
performance; and they did not present writings that waived the right to be
present by those interested. Instead a few stereotyped affidavits purporting
to show that the women were contended with their life in Davao, some of
which have since been repudiated by the signers, were appended to the
return. That through ordinary diligence a considerable number of the women,
at least sixty, could have been brought back to Manila is demonstrated to be
found in the municipality of Davao, and that about this number either
returned at their own expense or were produced at the second hearing by the
respondents.
The court, at the time the return to its first order was made, would have been
warranted summarily in finding the respondents guilty of contempt of court,
and in sending them to jail until they obeyed the order. Their excuses for the
non-production of the persons were far from sufficient. The, authorities cited
herein pertaining to somewhat similar facts all tend to indicate with what
exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's
case, supra, the Magistrate in referring to an earlier decision of the Court,
said: "We thought that, having brought about that state of things by his own
illegal act, he must take the consequences; and we said that he was bound to
use every effort to get the child back; that he must do much more than write
letters for the purpose; that he must advertise in America, and even if
necessary himself go after the child, and do everything that mortal man could
do in the matter; and that the court would only accept clear proof of an
absolute impossibility by way of excuse." In other words, the return did not
show that every possible effort to produce the women was made by the
respondents. That the court forebore at this time to take drastic action was
because it did not wish to see presented to the public gaze the spectacle of a
clash between executive officials and the judiciary, and because it desired to
give the respondents another chance to demonstrate their good faith and to
mitigate their wrong.
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and counter-charges in
such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it. Our finding
to this effect may be influenced somewhat by our sincere desire to see this
unhappy incident finally closed. If any wrong is now being perpetrated in
Davao, it should receive an executive investigation. If any particular individual
is still restrained of her liberty, it can be made the object of separate habeas
corpus proceedings.
Since the writ has already been granted, and since we find a substantial
compliance with it, nothing further in this connection remains to be done.
The attorney for the petitioners asks that we find in contempt of court Justo
Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the
city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police
force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of
Labor, Feliciano Yigo, an hacendero of Davao, and Anacleto Diaz, Fiscal of
the city of Manila.
The power to punish for contempt of court should be exercised on the

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

Civil Procedure, which relates to the penalty for disobeying the writ, and in
pursuance thereof to require respondent Lukban to forfeit to the parties
aggrieved as much as P400 each, which would reach to many thousands of
pesos, and in addition to deal with him as for a contempt. Some members of
the court are inclined to this stern view. It would also be possible to find that
since respondent Lukban did comply substantially with the second order of
the court, he has purged his contempt of the first order. Some members of
the court are inclined to this merciful view. Between the two extremes
appears to lie the correct finding. The failure of respondent Lukban to obey
the first mandate of the court tended to belittle and embarrass the
administration of justice to such an extent that his later activity may be
considered only as extenuating his conduct. A nominal fine will at once
command such respect without being unduly oppressive such an amount
is P100.
In resume as before stated, no further action on the writ of habeas corpus

is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin, Yigo,
and Diaz are found not to be in contempt of court. Respondent Lukban is
found in contempt of court and shall pay into the office of the clerk of the
Supreme Court within five days the sum of one hundred pesos (P100). The
motion of the fiscal of the city of Manila to strike from the record the Replica
al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall
be taxed against respondents. So ordered.
In concluding this tedious and disagreeable task, may we not be permitted to

express the hope that this decision may serve to bulwark the fortifications of
an orderly government of laws and to protect individual liberty from illegal
encroachment.
Arellano, C.J., Avancea and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.
Separate Opinions
TORRES, J., dissenting:
The undersigned does not entirely agree to the opinion of the majority in the
decision of the habeas corpus proceeding against Justo Lukban, the mayor of
this city.
There is nothing in the record that shows the motive which impelled Mayor
Lukban to oblige a great number of women of various ages, inmates of the
houses of prostitution situated in Gardenia Street, district of Sampaloc, to
change their residence.
We know no express law, regulation, or ordinance which clearly prohibits the

opening of public houses of prostitution, as those in the said Gardenia Street,
Sampaloc. For this reason, when more than one hundred and fifty women
were assembled and placed aboard a steamer and transported to Davao,
considering that the existence of the said houses of prostitution has been
tolerated for so long a time, it is undeniable that the mayor of the city, in
proceeding in the manner shown, acted without authority of any legal
provision which constitutes an exception to the laws guaranteeing the liberty
and the individual rights of the residents of the city of Manila.
We do not believe in the pomp and obstentation of force displayed by the

police in complying with the order of the mayor of the city; neither do we
believe in the necessity of taking them to the distant district of Davao. The
said governmental authority, in carrying out his intention to suppress the
segregated district or the community formed by those women in Gardenia
Street, could have obliged the said women to return to their former
residences in this city or in the provinces, without the necessity of
transporting them to Mindanao; hence the said official is obliged to bring back
the women who are still in Davao so that they may return to the places in
which they lived prior to their becoming inmates of certain houses in
Gardenia Street.
As regards the manner whereby the mayor complied with the orders of this
court, we do not find any apparent disobedience and marked absence of
respect in the steps taken by the mayor of the city and his subordinates, if we
take into account the difficulties encountered in bringing the said women who
were free at Davao and presenting them before this court within the time
fixed, inasmuch as it does not appear that the said women were living
together in a given place. It was not because they were really detained, but
because on the first days there were no houses in which they could live with
a relative independent from one another, and as a proof that they were free
a number of them returned to Manila and the others succeeded in living
separate from their companions who continued living together.
To determine whether or not the mayor acted with a good purpose and legal
object and whether he has acted in good or bad faith in proceeding to dissolve
the said community of prostitutes and to oblige them to change their
domicile, it is necessary to consider not only the rights and interests of the
said women and especially of the patrons who have been directing and
conducting such a reproachable enterprise and shameful business in one of
the suburbs of this city, but also the rights and interests of the very numerous
people of Manila where relatively a few transients accidentally and for some
days reside, the inhabitants thereof being more than three hundred thousand
(300,000) who can not, with indifference and without repugnance, live in the
same place with so many unfortunate women dedicated to prostitution.
If the material and moral interests of the community as well as the demands
of social morality are to be taken into account, it is not possible to sustain that
it is legal and permissible to establish a house of pandering or prostitution in
the midst of an enlightened population, for, although there were no positive
laws prohibiting the existence of such houses within a district of Manila, the
dictates of common sense and dictates of conscience of its inhabitants are
sufficient to warrant the public administration, acting correctly, in exercising
the inevitable duty of ordering the closing and abandonment of a house of
prostitution ostensibly open to the public, and of obliging the inmates thereof
to leave it, although such a house is inhabited by its true owner who invokes
in his behalf the protection of the constitutional law guaranteeing his liberty,
his individual rights, and his right to property.
A cholera patient, a leper, or any other person affected by a known

contagious disease cannot invoke in his favor the constitutional law which
guarantees his liberty and individual rights, should the administrative
authority order his hospitalization, reclusion, or concentration in a certain
island or distant point in order to free from contagious the great majority of
the inhabitants of the country who fortunately do not have such diseases. The
same reasons exist or stand good with respect to the unfortunate women
dedicated to prostitution, and such reasons become stronger because the
first persons named have contracted their diseases without their knowledge
and even against their will, whereas the unfortunate prostitutes voluntarily
adopted such manner of living and spontaneously accepted all its
consequences, knowing positively that their constant intercourse with men
of all classes, notwithstanding the cleanliness and precaution which they are
wont to adopt, gives way to the spread or multiplication of the disease known
as syphilis, a venereal disease, which, although it constitutes a secret disease
among men and women, is still prejudicial to the human species in the same
degree, scope, and seriousness as cholera, tuberculosis, leprosy, pest,
typhoid, and other contagious diseases which produce great mortality and
very serious prejudice to poor humanity.
If a young woman, instead of engaging in an occupation or works suitable to

her sex, which can give her sufficient remuneration for her subsistence,
prefers to put herself under the will of another woman who is usually older
than she is and who is the manager or owner of a house of prostitution, or
spontaneously dedicates herself to this shameful profession, it is undeniable
that she voluntarily and with her own knowledge renounces her liberty and
individual rights guaranteed by the Constitution, because it is evident that she
can not join the society of decent women nor can she expect to get the same
respect that is due to the latter, nor is it possible for her to live within the
community or society with the same liberty and rights enjoyed by every
citizen. Considering her dishonorable conduct and life, she should therefore
be comprised within that class which is always subject to the police and
sanitary regulations conducive to the maintenance of public decency and
morality and to the conservation of public health, and for this reason it should
not permitted that the unfortunate women dedicated to prostitution evade
the just orders and resolutions adopted by the administrative authorities.
It is regrettable that unnecessary rigor was employed against the said poor
women, but those who have been worrying so much about the prejudice
resulting from a governmental measure, which being a very drastic remedy
may be considered arbitrary, have failed to consider with due reflection the
interests of the inhabitants of this city in general and particularly the duties
and responsibilities weighing upon the authorities which administer and
govern it; they have forgotten that many of those who criticize and censure
the mayor are fathers of families and are in duty bound to take care of their
children.
For the foregoing reasons, we reach the conclusion that when the petitioners,
because of the abnormal life they assumed, were obliged to change their
residence not by a private citizen but by the mayor of the city who is directly
responsible for the conservation of public health and social morality, the
latter could take the step he had taken, availing himself of the services of the
police in good faith and only with the purpose of protecting the immense
majority of the population from the social evils and diseases which the houses
of prostitution situated in Gardenia Street have been producing, which
houses have been constituting for years a true center for the propagation of
general diseases and other evils derived therefrom. Hence, in ordering the
dissolution and abandonment of the said houses of prostitution and the
change of the domicile of the inmates thereof, the mayor did not in bad faith
violate the constitutional laws which guarantees the liberty and the individual
rights of every Filipino, inasmuch as the women petitioners do not absolutely
enjoy the said liberty and rights, the exercise of which they have voluntarily
renounced in exchange for the free practice of their shameful profession.
In very highly advanced and civilized countries, there have been adopted by
the administrative authorities similar measures, more or less rigorous,
respecting prostitutes, considering them prejudicial to the people, although
it is true that in the execution of such measures more humane and less drastic
procedures, fortiter in re et suaviter in forma, have been adopted, but such
procedures have always had in view the ultimate object of the Government
for the sake of the community, that is, putting an end to the living together in
a certain place of women dedicated to prostitution and changing their
domicile, with the problematical hope that they adopt another manner of
living which is better and more useful to themselves and to society.
In view of the foregoing remarks, we should hold, as we hereby hold, that
Mayor Justo Lukban is obliged to take back and restore the said women who
are at present found in Davao, and who desire to return to their former
respective residences, not in Gardenia Street, Sampaloc District, with the
exception of the prostitutes who should expressly make known to the clerk
of court their preference to reside in Davao, which manifestation must be
made under oath. This resolution must be transmitted to the mayor within
the shortest time possible for its due compliance. The costs shall be charged
de officio.
ARAULLO, J., dissenting in part:
I regret to dissent from the respectable opinion of the majority in the decision
rendered in these proceedings, with respect to the finding as to the
importance of the contempt committed, according to the same decision, by
Justo Lukban, Mayor of the city of Manila, and the consequent imposition
upon him of a nominal fine of P100.
In the said decision, it is said:
The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,
Francisco Sales, and Feliciano Yigo to present the persons named in the writ
before the court on December 2, 1918. The order was dated November 4,
1918. The respondents were thus given ample time, practically one month, to
comply with the writ. As far as the record disclosed, the mayor of the city of
Manila waited until the 21st of November before sending a telegram to the
provincial governor of Davao. According to the response of the Attorney for
the Bureau of Labor to the telegram of his chief, there were then in Davao
women who desired to return to Manila, but who should not be permitted to
do so because of having contracted debts. The half-hearted effort naturally
resulted in none of the parties in question being brought before the court on
the day named.
In accordance with section 87 of General Orders No. 58, as said in the same
decision, the respondents, for the purpose of complying with the order of the
court, could have, (1) produced the bodies of the persons according to the
command of the writ; (2) shown by affidavits that on account of sickness or
infirmity the said women could not safely be brought before this court; and
(3) presented affidavits to show that the parties in question or their lawyers
waived their right to be present. According to the same decision, the said
respondents ". . . did not produce the bodies of the persons in whose behalf
the writ was granted; did not show impossibility of performance; and did not
present writings, that waived the right to be present by those interested.
Instead, a few stereotyped affidavits purporting to show that the women
were contented with their life in Davao, some of which have since been
repudiated by the signers, were appended to the return. That through
ordinary diligence a considerable number of the women, at least sixty, could
have been brought back to Manila is demonstrated by the fact that during
this time they were easily to be found in the municipality of Davao, and that
about this number either returned at their own expense or were produced at
the second hearing by the respondents."
The majority opinion also recognized that, "That court, at the time the return
to its first order was made, would have been warranted summarily in finding
the respondent guilty of contempt of court, and in sending them to jail until
they obeyed the order. Their excuses for the non production of the persons
were far from sufficient." To corroborate this, the majority decision cites the
case of the Queen vs. Barnardo, Gossage's Case ([1890], 24 Q. B. D., 283) and
added "that the return did not show that every possible effort to produce the
women was made by the respondents."
When the said return by the respondents was made to this court in banc and
the case discussed, my opinion was that Mayor Lukban should have been
immediately punished for contempt. Nevertheless, a second order referred
to in the decision was issued on December 10, 1918, requiring the
respondents to produce before the court, on January 13, 1919, the women
who were not in Manila, unless they could show that it was impossible to
comply with the said order on the two grounds previously mentioned. With
respect to this second order, the same decision has the following to say:
In response to the second order of the court, the respondents appear to have
become more zealous and to have shown a better spirit. Agents were
dispatched to Mindanao, placards were posted, the constabulary and the
municipal police joined in rounding up the women, and a steamer with free
transportation to Manila was provided. While charges and countercharges in
such a bitterly contested case are to be expected, and while a critical reading
of the record might reveal a failure of literal fulfillment with our mandate, we
come to conclude that there is a substantial compliance with it.
I do not agree to this conclusion.
The respondent mayor of the city of Manila, Justo Lukban, let 17 days elapse
from the date of the issuance of the first order on November 4th till the 21st
of the same month before taking the first step for compliance with the
mandate of the said order; he waited till the 21st of November, as the
decision says, before he sent a telegram to the provincial governor o f Davao
and naturally this half-hearted effort, as is so qualified in the decision,
resulted in that none of the women appeared before this court on December
2nd. Thus, the said order was not complied with, and in addition to this
noncompliance there was the circumstances that seven of the said women
having returned to Manila at their own expense before the said second day
of December and being in the antechamber of the court room, which fact was
known to Chief of Police Hohmann, who was then present at the trial and to
the attorney for the respondents, were not produced before the court by the
respondents nor did the latter show any effort to present them, in spite of
the fact that their attention was called to this particular by the undersigned.
The result of the said second order was, as is said in the same decision, that
the respondents, on January 13th, the day fixed for the protection of the
women before this court, presented technically the seven (7) women above-
mentioned who had returned to the city at their own expense and the other
eight (8) women whom the respondents themselves brought to Manila,
alleging moreover that their agents and subordinates succeeded in bringing
them from Davao with their consent; that in Davao they found eighty-one (81)
women who, when asked if they desired to return to Manila with free
transportation, renounced such a right, as is shown in the affidavits presented
by the respondents to this effect; that, through other means, fifty-nine (59)
women have already returned to Manila, but notwithstanding the efforts
made to find them it was not possible to locate the whereabouts of twenty-
six (26) of them. Thus, in short, out of the one hundred and eighty-one (181)
women who, as has been previously said, have been illegally detained by
Mayor Lukban and Chief of Police Hohmann and transported to Davao against
their will, only eight (8) have been brought to Manila and presented before
this court by the respondents in compliance with the said two orders. Fifty-
nine (59) of them have returned to Manila through other means not furnished
by the respondents, twenty-six of whom were brought by the attorney for the
petitioners, Mendoza, on his return from Davao. The said attorney paid out
of his own pocket the transportation of the said twenty-six women. Adding to
these numbers the other seven (7) women who returned to this city at their
own expense before January 13 we have a total of sixty-six (66), which
evidently proves, on the one hand, the falsity of the allegation by the
respondents in their first answer at the trial of December 2, 1918, giving as
one of the reasons for their inability to present any of the said women that
the latter were content with their life in Mindanao and did not desire to
return to Manila; and, on the other hand, that the respondents, especially the
first named, that is Mayor Justo Lukban, who acted as chief and principal in
all that refers to the compliance with the orders issued by this court, could
bring before December 2nd, the date of the first hearing of the case, as well
as before January 13th, the date fixed for the compliance with the second
order, if not the seventy-four (74) women already indicated, at least a great
number of them, or at least sixty (60) of them, as is said in the majority
decision, inasmuch as the said respondent could count upon the aid of the
Constabulary forces and the municipal police, and had transportation
facilities for the purpose. But the said respondent mayor brought only eight
(8) of the women before this court on January 13th. This fact can not, in my
judgment, with due respect to the majority opinion, justify the conclusion
that the said respondent has substantially complied with the second order of
this court, but on the other hand demonstrates that he had not complied with
the mandate of this court in its first and second orders; that neither of the
said orders has been complied with by the respondent Justo Lukban, Mayor
of the city of Manila, who is, according to the majority decision, principally
responsible for the contempt, to which conclusion I agree. The conduct of the
said respondent with respect to the second order confirms the contempt
committed by non-compliance with the first order and constitutes a new
contempt because of non-compliance with the second, because of the
production of only eight (8) of the one hundred and eighty-one (181) women
who have been illegally detained by virtue of his order and transported to
Davao against their will, committing the twenty-six (26) women who could
not be found in Davao, demonstrates in my opinion that, notwithstanding the
nature of the case which deals with the remedy of habeas corpus, presented
by the petitioners and involving the question whether they should or not be
granted their liberty, the respondent has not given due attention to the same
nor has he made any effort to comply with the second order. In other words,
he has disobeyed the said two orders; has despised the authority of this court;
has failed to give the respect due to justice; and lastly, he has created and
placed obstacles to the administration of justice in the said habeas corpus
proceeding, thus preventing, because of his notorious disobedience, the
resolution of the said proceeding with the promptness which the nature of
the same required.
Contempt of court has been defined as a despising of the authority, justice,

or dignity of the court; and he is guilty of contempt whose conduct is such as
tends to bring the authority and administration of the law into disrespect or
disregard. . . ." (Ruling Case Law, vol. 6, p. 488.)
It is a general principle that a disobedience of any valid order of the court

constitutes contempt, unless the defendant is unable to comply therewith.
(Ruling Case Law, vol. 6, p. 502.)
It is contempt to employ a subterfuge to evade the judgment of the court, or

to obstruct or attempt to obstruct the service of legal process. If a person
hinders or prevents the service of process by deceiving the officer or
circumventing him by any means, the result is the same as though he had
obstructed by some direct means. (Ruling Case Law, vol. 6, p. 503.)
While it may seem somewhat incongruous to speak, as the courts often do,
of enforcing respect for the law and for the means it has provided in civilized
communities for establishing justice, since true respect never comes in that
way, it is apparent nevertheless that the power to enforce decorum in the
courts and obedience to their orders and just measures is so essentially a part
of the life of the courts that it would be difficult to conceive of their usefulness
or efficiency as existing without it. Therefore it may be said generally that
where due respect for the courts as ministers of the law is wanting, a
necessity arises for the use of compulsion, not, however, so much to excite
individual respect as to compel obedience or to remove an unlawful or
unwarranted interference with the administration of justice. (Ruling Case
Law, vol. 6, p. 487.)
The power to punish for contempt is as old as the law itself, and has been
exercised from the earliest times. In England it has been exerted when the
contempt consisted of scandalizing the sovereign or his ministers, the law-
making power, or the courts. In the American states the power to punish for
contempt, so far as the executive department and the ministers of state are
concerned, and in some degree so far as the legislative department is
concerned, is obsolete, but it has been almost universally preserved so far as
regards the judicial department. The power which the courts have of
vindicating their own authority is a necessary incident to every court of
justice, whether of record or not; and the authority for issuing attachments
in a proper case for contempts out of court, it has been declared, stands upon
the same immemorial usage as supports the whole fabric of the common law.
. . . (Ruling Case Law, vol. 6, p. 489.)
The undisputed importance of the orders of this court which have been
disobeyed; the loss of the prestige of the authority of the court which issued
the said orders, which loss might have been caused by noncompliance with
the same orders on the part of the respondent Justo Lukban; the damages
which might have been suffered by some of the women illegally detained, in
view of the fact that they were not brought to Manila by the respondents to
be presented before the court and of the further fact that some of them were
obliged to come to this city at their own expense while still others were
brought to Manila by the attorney for the petitioners, who paid out of his own
pocket the transportation of the said women; and the delay which was
necessarily incurred in the resolution of the petition interposed by the said
petitioners and which was due to the fact that the said orders were not
opportunately and duly obeyed and complied with, are circumstances which
should be taken into account in imposing upon the respondent Justo Lukban
the penalty corresponding to the contempt committed by him, a penalty
which, according to section 236 of the Code of Civil Procedure, should consist
of a fine not exceeding P1,000 or imprisonment not exceeding months, or
both such fine and imprisonment. In the imposition of the penalty, there
should also be taken into consideration the special circumstance that the
contempt was committed by a public authority, the mayor of the city of
Manila, the first executive authority of the city, and consequently, the person
obliged to be the first in giving an example of obedience and respect for the
laws and the valid and just orders of the duly constituted authorities as well
as for the orders emanating from the courts of justice, and in giving help and
aid to the said courts in order that justice may be administered with
promptness and rectitude.
I believe, therefore, that instead of the fine of one hundred pesos (P100),
there should be imposed upon the respondent Justo Lukban a fine of five
hundred pesos (P500), and all the costs should be charged against him. Lastly,
I believe it to be my duty to state here that the records of this proceeding
should be transmitted to the Attorney-General in order that, after a study of
the same and deduction from the testimony which he may deem necessary,
and the proper transmittal of the same to the fiscal of the city of Manila and
to the provincial fiscal of Davao, both the latter shall present the
corresponding informations for the prosecution and punishment of the
crimes which have been committed on the occasion when the illegal
detention of the women was carried into effect by Mayor Justo Lukban of the
city of Manila and Chief of Police Anton Hohmann, and also of those crimes
committed by reason of the same detention and while the women were in
Davao. This will be one of the means whereby the just hope expressed in the
majority decision will be realized, that is, that in the Philippine Islands there
should exist a government of laws and not a government of men and that this
decision may serve to bulwark the fortifications of an orderly Government of
laws and to protect individual liberty from illegal encroachments.
10. G.R. No. L-45459
SUPREME COURT
Manila
EN BANC
G.R. No. L-45459 March 13, 1937
GREGORIO AGLIPAY, petitioner,

vs.
JUAN RUIZ, respondent.
Vicente Sotto for petitioner.

Office of the Solicitor-General Tuason for respondent.
LAUREL, J.:
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine

Independent Church, seeks the issuance from this court of a writ of
prohibition to prevent the respondent Director of Posts from issuing and
selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in
the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of
what he considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent
publicly announced having sent to the United States the designs of the
postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border design.
The stamps are blue, green, brown, cardinal red, violet and orange, 1 inch by
1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50 centavos."
The said stamps were actually issued and sold though the greater part
thereof, to this day, remains unsold. The further sale of the stamps is sought
to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper
legal remedy in the instant case, although he admits that the writ may
properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance
of other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance
and enforcement are regulated by statute and in this jurisdiction may issue to
. . . inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516
and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution is
a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person
whose acts are without or in excess of his authority. Not infrequently, "the
writ is granted, where it is necessary for the orderly administration of justice,
or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
No public money or property shall ever be appropriated, applied, or used,

directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian, institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary
is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the principle of

separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of church and
state in the early stages of our constitutional development; it was inserted in
the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions of the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act
of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers
of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious
toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of

profound reverence for religion and is not denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively
to religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines
and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec. 344,
par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest, preacher,
minister or other religious teacher or dignitary as such is assigned to the
armed forces or to any penal institution, orphanage or leprosarium 9 sec. 13,
subsec. 3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code).
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the secular
idea that their observance is conclusive to beneficial moral results. The law
allows divorce but punishes polygamy and bigamy; and certain crimes against
religious worship are considered crimes against the fundamental laws of the
state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the
Philippine Legislature. This Act is as follows:
No. 4052. AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND PESOS

AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN THE INSULAR
TREASURY NOT OTHERWISE APPROPRIATED FOR THE COST OF PLATES AND
PRINTING OF POSTAGE STAMPS WITH NEW DESIGNS, AND FOR OTHER
PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines

in Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and made
immediately available out of any funds in the Insular Treasury not otherwise
appropriated, for the costs of plates and printing of postage stamps with new
designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or
any portion of the amount herein appropriated in the manner indicated and
as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for
the costs of plates and printing of postage stamps with new designs and other
expenses incident thereto, and authorizes the Director of Posts, with the
approval of the Secretary of Public Works and Communications, to dispose of
the amount appropriated in the manner indicated and "as often as may be
deemed advantageous to the Government". The printing and issuance of the
postage stamps in question appears to have been approved by authority of
the President of the Philippines in a letter dated September 1, 1936, made
part of the respondent's memorandum as Exhibit A. The respondent alleges
that the Government of the Philippines would suffer losses if the writ prayed
for is granted. He estimates the revenue to be derived from the sale of the
postage stamps in question at P1,618,17.10 and states that there still remain
to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the
Director of Posts is the discretionary power to determine when the issuance
of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize the
violation of the Constitution. It does not authorize the appropriation, use or
application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the stamps
given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The
officials concerned merely, took advantage of an event considered of
international importance "to give publicity to the Philippines and its people"
(Letter of the Undersecretary of Public Works and Communications to the
President of the Philippines, June 9, 1936; p. 3, petitioner's complaint). It is
significant to note that the stamps as actually designed and printed (Exhibit
2), instead of showing a Catholic Church chalice as originally planned, contains
a map of the Philippines and the location of the City of Manila, and an
inscription as follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-
7,1937." What is emphasized is not the Eucharistic Congress itself but Manila,
the capital of the Philippines, as the seat of that congress. It is obvious that
while the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental results,
more or less religious in character, if the purpose had in view is one which
could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere incidental results
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct. Rep.,
121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the
petitioner to maintain inviolate the complete separation of church and state
and curb any attempt to infringe by indirection a constitutional inhibition.
Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political
development nothing is done by the Government or its officials that may lead
to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we have come to
the conclusion that there has been no constitutional infraction in the case at
bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse postage
stamps with new designs "as often as may be deemed advantageous to the
Government." Even if we were to assume that these officials made use of a
poor judgment in issuing and selling the postage stamps in question still, the
case of the petitioner would fail to take in weight. Between the exercise of a
poor judgment and the unconstitutionality of the step taken, a gap exists
which is yet to be filled to justify the court in setting aside the official act
assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without

pronouncement as to costs. So ordered.
Avancea, C.J., Villa-Real, Abad Santos, Imperial, Diaz and Concepcion, JJ.,
concur.
11. G.R. No. 173319
FEDERICO MIGUEL OLBES,
Petitioner,
- versus -
HON. DANILO A. BUEMIO, in his capacity as pairing presiding judge of Branch

22 of the Metropolitan Trial Court of Manila, PEOPLE OF THE PHILIPPINES,
SAMIR MUHSEN and ROWENA MUHSEN,
Respondents.
G.R. No. 173319
Present:
PUNO, C.J., Chairperson,

CARPIO MORALES,
LEONARDO-DE CASTRO,
BERSAMIN, and
VILLARAMA, JR., JJ.
Promulgated:
December 4, 2009
x--------------------------------------------------x
DECISION
CARPIO MORALES, J.:

On complaint of Samir and Rowena Muhsen, Federico Miguel Olbes
(petitioner) was indicted for Grave Coercion before the Metropolitan Trial
Court (MeTC) of Manila by Information[1] dated June 28, 2002 which was
raffled to Branch 22 thereof. On October 28, 2002, petitioner posted bail and
was released.
Denying petitioners motion to defer or suspend his arraignment in light of his

pending petition for review before the Department of Justice from the City
Fiscals Resolution finding probable cause to hale him into court, Judge
Hipolito dela Vega proceeded with petitioners arraignment on February 12,
2003 in which he pleaded not guilty to the charge.[2] Pre-trial was thereupon
set to May 28, 2003 which was, however, declared a non-working day due to
the occurrence of typhoon Chedeng. The pre-trial was thus reset to October
23, 2003.[3]
At the scheduled pre-trial on October 23, 2003, petitioner failed to appear,

prompting the trial court to issue a warrant for his arrest, which warrant was,
however, later recalled on discovery that neither petitioner nor his counsel
was notified of said schedule. Pre-trial was again reset to January 21, 2004.[4]
Before the scheduled pre-trial on January 21, 2004 or on November 3, 2003,

petitioner filed a Motion to Dismiss[5] the Information on the ground of
violation of his right to a speedy trial under Republic Act No. 8493[6] or the
Speedy Trial Act of 1998 and Supreme Court Circular (SCC) No. 38-98.[7] He
argued that considering that [he] was not - without any fault on his part -
brought to trial within 80 days from the date he was arraigned, this case
should be dismissed pursuant to Rule 119, Section 9[8] in relation to Rule 119,
Section 6 of the Rules.[9]
The trial court, through pairing Judge Danilo A. Buemio (respondent judge),
denied petitioners Motion to Dismiss by Order[10] of December 5, 2003,
holding that petitioner played a big part in the delay of the case, and that
technical rules of procedure were meant to secure, not override, substantial
justice.
Petitioners Motion for Reconsideration of the December 5, 2003 Order was

denied by Order[11] of March 3, 2004 after respondent judge noted that
during petitioners arraignment on February 12, 2003, he interposed no
objection to the setting of the pre-trial to May 28, 2003. Besides, respondent
judge held, strict compliance with the Speedy Trial Act was improbable, given
the volume of cases being filed with the MeTC. Additionally respondent judge
held that the term speedy trial as applied in criminal cases is a relative term
such that the trial and disposition of cases depended on several factors
including the availability of counsel, witnesses and prosecutor, and weather
conditions.
Petitioner challenged respondent judges orders via certiorari and prohibition

before the Regional Trial Court (RTC) of Manila, alleging that not only was he
(petitioner) not brought to trial within 80 days from the date of his
arraignment as required under Section 6, Rule 119, but the prosecution had
failed to establish the existence of any of the time exclusions provided under
Section 3[12] of the same Rule to excuse its failure to bring him to trial within
the 80-day period.
By Decision[13] of January 31, 2006, the RTC denied the petition, holding that
Section 9 of Rule 119 of the Rules of Court does not call for the automatic
dismissal of a case just because trial has not commenced within 80 days from
arraignment; that the proceedings before the MeTC were not attended by
vexatious, capricious and oppressive delays; and that the concept of a speedy
trial is not a mere question of numbers that could be computed in terms of
years, months or days but is understood according to the peculiar
circumstances of each case, citing SPO1 Sumbang, Jr. v. Gen. Court Martial
PRO-Region 6.[14]
The RTC further held that in determining whether petitioners right to speedy
trial was violated,[15] the circumstances that respondent judge was the
pairing judge of Br. 22 of the MeTC who may be assumed also [to] preside
over his own regular court and devotes limited time to his pairing court and
that first level courts in Manila have an excessive load of cases should also be
taken into consideration.
His motion for reconsideration having been denied by the RTC,[16] petitioner
lodged the present petition for review which, in the main, faults the RTC
I
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT COMPLIANCE
WITH RULE 119, SECTION 9 OF THE RULES IS NOT MANDATORY. THE RIGHT
OF AN ACCUSED TO A SPEEDY TRIAL IS A SUBSTANTIVE RIGHT THAT CANNOT
BE DISREGARDED.
II
. . . IN AFFIRMING THE MTC-MANILA JUDGES RULING THAT THE
ENUMERATION OF ALLOWABLE TIME EXCLUSIONS UNDER RULE 119,
SECTION 3 IS NOT EXCLUSIVE, AND THAT THE FAILURE TO BRING PETITIONER
TO TRIAL WITHIN THE PERIOD PROVIDED UNDER RULE 119, SECTION 6 WAS
JUSTIFIED.
x x x x,[17]
errors which raise a question of law.
Petitioner argues that his right to speedy trial is a substantive right and that,
contrary to the RTC ruling, Section 9 of Rule 119 is mandatory in character,
having been taken from SCC No. 38-98, strict compliance with which is urged
to remove any attempt on the part of judges to exercise discretion with
respect to the time frame for conducting the trial of an accused; that the last
paragraph of said Section 9 clearly indicates that it is the right of an accused
to move for dismissal of the Information should the prosecution fail to prove
the existence of the time exclusions under Section 3 of Rule 119; and that the
enumeration of the allowable time exclusions under Section 3 is exclusive,
hence, the RTC erred in considering the excessive caseload of respondent
judge, as a mere pairing judge, to be an allowable time exclusion under the
Rules.
In its Comment,[18] the People, through the Office of the Solicitor General
(OSG), counters that speed alone is not the chief objective of a trial such that
mere assertion of a violation of the right to speedy trial does not necessarily
result in the automatic dismissal of an Information; that the time exclusions
referred to in paragraphs (a) to (f) of Section 3, Rule 119 are not exclusive and
admit of other exceptions; that petitioner himself contributed to the delay in
the proceedings when he filed a frivolous motion to suspend proceedings and
failed to appear during the scheduled pre-trial; and that the RTC statement
about respondent judge being a mere pairing judge was not an apology for
the courts congested dockets but a mere statement of fact as to the
impossibility of setting the case for pre-trial at an earlier date.
Furthermore, the OSG asserts that respondent judges denial of petitioners

motion to dismiss was in order as he correctly applied the principles of
relativity and flexibility in determining whether petitioners right to speedy
trial had been violated.[19]
Respondents-private complainants, on the other hand, maintain in their

Comment[20] that several Supreme Court decisions[21] dealing with the issue
of the constitutional guaranty of a speedy trial, the Speedy Trial Act of 1998,
and SCC No. 38-98 have held that the right is deemed violated only when the
proceedings are attended by vexatious, capricious and oppressive delays,
which did not obtain in the present case, petitioner himself having been
instrumental in the delay in the prosecution of the case.
The petition does not impress.
Petitioner draws attention to the time gap of 105 days from his arraignment
on February 12, 2003 up to the first pre-trial setting on May 28, 2003, and
another gap of 148 days from the latter date up to the second pre-trial setting
on October 23, 2003 or for a total of 253 days - a clear contravention,
according to petitioner, of the 80-day time limit from arraignment to trial.
It bears noting, however, that on his arraignment on February 12, 2003,
petitioner interposed no objection to the setting of the pre-trial to May 28,
2003 which was, as earlier stated, later declared a non-working day.
Inarguably, the cancellation of the scheduled pre-trial on that date was
beyond the control of the trial court.
Petitioner argues, however, that the lapse of 253 days (from arraignment to
October 23, 2003) was not justified by any of the excusable delays as
embodied in the time exclusions[22] specified under Section 3 of Rule 119.
The argument is unavailing.
In Solar Team Entertainment, Inc. v. Judge How,[23] the Court stressed that
the exceptions consisting of the time exclusions provided in the Speedy Trial
Act of 1998 reflect the fundamentally recognized principle that speedy trial is
a relative term and necessarily involves a degree of flexibility. This was
reiterated in People v. Hernandez,[24] viz:
The right of the accused to a speedy trial is guaranteed under Sections 14(2)
and 16, Article III of the 1987 Constitution. In 1998, Congress enacted R.A. No.
8493, otherwise known as the "Speedy Trial Act of 1998." The law provided
for time limits in order "to ensure a speedy trial of all criminal cases before
the Sandiganbayan, [RTC], Metropolitan Trial Court, Municipal Trial Court,
and Municipal Circuit Trial Court." On August 11, 1998, the Supreme Court
issued Circular No. 38-98, the Rules Implementing R.A. No. 8493. The
provisions of said circular were adopted in the 2000 Revised Rules of Criminal
Procedure. As to the time limit within which trial must commence after
arraignment, the 2000 Revised Rules of Criminal Procedure states:
Sec. 6, Rule 119. Extended time limit.-- Notwithstanding the provisions of
section 1(g), Rule 116 and the preceding section 1, for the first twelve-
calendar-month period following its effectivity on September 15, 1998, the
time limit with respect to the period from arraignment to trial imposed by
said provision shall be one hundred eighty (180) days. For the second twelve-
month period, the time limit shall be one hundred twenty (120) days, and for
the third twelve-month period, the time limit shall be eighty (80) days.
R.A. No. 8493 and its implementing rules and the Revised Rules of Criminal
Procedure enumerate certain reasonable delays as exclusions in the
computation of the prescribed time limits. They also provide that "no
provision of law on speedy trial and no rule implementing the same shall be
interpreted as a bar to any charge of denial of speedy trial as provided by
Article III, Section 14(2), of the 1987 Constitution." Thus, in spite of the
prescribed time limits, jurisprudence continues to adopt the view that the
concept of "speedy trial" is a relative term and must necessarily be a flexible
concept. In Corpuz v. Sandiganbayan, we held:
The right of the accused to a speedy trial and to a speedy disposition of the
case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an indefinite time, and
to prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases. Such right to
a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. x x x
While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too
long in a system where justice is supposed to be swift, but deliberate. It is
consistent with delays and depends upon circumstances. It secures rights to
the accused, but it does not preclude the rights of public justice. Also, it must
be borne in mind that the rights given to the accused by the Constitution and
the Rules of Court are shields, not weapons; hence, courts are to give meaning
to that intent.
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc
basis.
In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered:
(a) length of delay; (b) the reason for the delay; (c) the defendants assertion
of his right; and (d) prejudice to the defendant. (citations omitted)
(underscoring supplied)
The time limits set by the Speedy Trial Act of 1998 do not thus preclude
justifiable postponements and delays when so warranted by the
situation.[25] To the Court, the reasons for the postponements and delays
attendant to the present case reflected above are not unreasonable. While
the records indicate that neither petitioner nor his counsel was notified of the
resetting of the pre-trial to October 23, 2003, the same appears to have been
occasioned by oversight or simple negligence which, standing alone, does not
prove fatal to the prosecutions case. The faux pas was acknowledged and
corrected when the MeTC recalled the arrest warrant it had issued against
petitioner under the mistaken belief that petitioner had been duly notified of
the October 23, 2003 pre-trial setting.[26]
Reiterating the Courts pronouncement in Solar Team Entertainment, Inc.[27]
that speedy trial is a relative and flexible term, Lumanlaw v. Peralta, Jr.[28]
summons the courts to maintain a delicate balance between the demands of
due process and the strictures of speedy trial on the one hand, and the right
of the State to prosecute crimes and rid society of criminals on the other.
Applying the balancing test for determining whether an accused has been
denied his constitutional right to a speedy trial, or a speedy disposition of his
case, taking into account several factors such as the length and reason of the
delay, the accuseds assertion or non-assertion of his right, and the prejudice
to the accused resulting from the delay,[29] the Court does not find petitioner
to have been unduly and excessively prejudiced by the delay in the
proceedings, especially given that he had posted bail.
WHEREFORE, the petition is DENIED.
Costs against Petitioner.
SO ORDERED.
CONCHITA CARPIO MORALES

Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
Chairperson

Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARTIN S. VILLARAMA, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice
[1] Rollo, p. 42.

[2] Records, p. 217.
[3] Rollo, p. 43.
[4] Id. at 56.
[5] Id. at 44-46.
[6] AN ACT TO ENSURE A SPEEDY TRIAL OF ALL CRIMINAL CASES BEFORE THE
SANDIGANBAYAN, REGIONAL TRIAL COURT, METROPOLITAN TRIAL COURT,
MUNICIPAL TRIAL COURT, AND MUNICIPAL CIRCUIT TRIAL COURT,
APPROPRIATING FUNDS THEREFOR, AND FOR OTHER PURPOSES.
[7] IMPLEMENTING THE PROVISIONS OF REPUBLIC ACT NO. 8493 (effective
September 15, 1998).
[8] Sec. 9. Remedy where accused is not brought to trial within the time limit.
- If the accused is not brought to trial within the time limit required by section
1 (g), Rule 116 and section 1, as extended by section 6 of this Rule, the
information may be dismissed on motion of the accused on the ground of
denial of his right to speedy trial. The accused shall have the burden of proving
the motion but the prosecution shall have the burden of going forward with
the evidence to establish the exclusion of time under section 3 of this Rule.
The dismissal shall be subject to the rules on double jeopardy.
Failure of the accused to move for dismissal prior to trial shall constitute a
waiver of the right to dismiss under this section. (sec. 14, cir. 38-98).
[9] Vide Motion to Dismiss, rollo, pp. 44-46.
[10] Id. at 55-56.
[11] Id. at 71-73.
[12] SEC. 3. Exclusions. The following periods of delay shall be excluded in
computing the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
(1) Delay resulting from an examination of the physical and mental condition
of the accused;
(2) Delay resulting from proceedings with respect to other criminal charges
against the accused;
(3) Delay resulting from extraordinary remedies against interlocutory orders;
(4) Delay resulting from pre-trial proceedings; provided, that the delay does
not exceed thirty (30) days;
(5) Delay resulting from orders of inhibition, or proceedings relating to change
of venue of cases or transfer from other courts;
(6) Delay resulting from a finding of the existence of a prejudicial question;
and
(7) Delay reasonably attributable to any period, not to exceed thirty (30) days,
during which any proceeding concerning the accused is actually under
advisement.
(b) Any period of delay resulting from the absence or unavailability of an
essential witness.
For purposes of this subparagraph, an essential witness shall be considered
absent when his whereabouts are unknown or his whereabouts cannot be
determined by due diligence. He shall be considered unavailable whenever
his whereabouts are known but his presence for trial cannot be obtained by
due diligence.
(c) Any period of delay resulting from the mental incompetence or physical
inability of the accused to stand trial.
(d) If the information is dismissed upon motion of the prosecution and
thereafter a charge is filed against the accused for the same offense, any
period of delay from the date the charge was dismissed to the date the time
limitation would commence to run as to the subsequent charge had there
been no previous charge.
(e) A reasonable period of delay when the accused is joined for trial with a co-
accused over whom the court has not acquired jurisdiction, or, as to whom
the time for trial has not run and no motion for separate trial has been
granted.
(f) Any period of delay resulting from a continuance granted by any court
motu proprio, or on motion of either the accused or his counsel, or the
prosecution, if the court granted the continuance on the basis of its findings
set forth in the order that the ends of justice served by taking such action
outweigh the best interest of the public and the accused in a speedy trial.
[13] Rendered by Assisting RTC Judge Manuel M. Barrios; rollo, pp. 34-39.
[14] 391 Phil. 929.
[15] Vide note 13 at 38.
[16] Rollo, pp. 40-41.
[17] Id. at 13.
[18] Id. at 229-241.
[19] Id. at 239-240.
[20] Id. at 205- 208.
[21] People v. Tee, 443 Phil. 521 (2003); Gonzales v. Sandiganbayan, G.R. No.
94750, July 16, 1991, 199 SCRA 298.
[22] Vide at note 12.
[23] 393 Phil. 172, 182 (2000).
[24] G.R. Nos. 154218 & 154372, August 28, 2006, 499 SCRA 688, 708-710;
Caballes v. Court of Appeals, 492 Phil. 410, 429 (2005).
[25] Domondon v. Sandiganbayan, G.R. No. 166606, November 29, 2005, 476
SCRA 496, 504.
[26] Vide Petition for Certiorari and Prohibition before the RTC Manila; rollo,
p. 79.
[27] Supra at note 23.
[28] G.R. No. 164953, February 13, 2006, 482 SCRA 396, 409.
[29] Domondon v. Sandiganbayan, supra at note 25 citing Gonzales v.
Sandiganbayan, supra note 21 at 307.
12. G.R. No. 153414
SECOND DIVISION
VICTORIA G. CALLANGAN, G.R. No. 153414
Petitioner,
Present:
PUNO, J., Chairperson,

SANDOVAL-GUTIERREZ,
- v e r s u s - CORONA,
AZCUNA and
GARCIA, JJ.
PEOPLE OF THE PHILIPPINES,*

June 27, 2006

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
DECISION
CORONA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court
assails the January 10, 2002 decision of the Regional Trial Court (RTC) of Pasig
City, Branch 69, in SCA No. 1933. The challenged decision dismissed petitioner
Victoria G. Callangans petition for certiorari imputing grave abuse of
discretion to the Metropolitan Trial Court (MTC) of Pasig City, Branch 68, for
issuing an order on October 8, 1999 denying petitioners motion for new trial
in Criminal Case No. 38674.
On May 28, 1999, petitioner was found guilty of the crime of perjury in
Criminal Case No. 38674. On July 5, 1999, petitioner filed a timely motion for
new trial on the ground that she was deprived of her day in court because of
the gross negligence of her counsel, Atty. Ricardo C. Valmonte, and his utter
lack of diligence in the performance of his duty to represent her in every stage
of the suit. She attributed the following omissions to her counsel:
1. failure to file the demurrer to evidence despite leave of court previously

granted;
2. failure to inform his client of the April 14, 1999 order of the court
considering the intended demurrer to evidence as abandoned;
3. failure to attend the hearing for the reception of the evidence for the
defense (i.e., petitioner) despite notice, which failure was deemed by the
MTC as a waiver of petitioners right to present her evidence;
4. failure to seek proper relief from the adverse effects of said orders and
5. failure to appear on the promulgation of judgment.
On October 8, 1999, the MTC denied the motion for new trial. It held that the
ground invoked by petitioner was not among those provided in the Rules of
Court for new trial in criminal cases. Petitioner sought the reconsideration of
the order but the same was also denied in the MTCs December 27, 1999
order.
Aggrieved, petitioner questioned the October 8, 1999 and December 27, 1999
orders of the MTC by filing a petition for certiorari under Rule 65 of the Rules
of Court with the RTC of Pasig City. It was docketed as SCA No. 1933.
On January 10, 2002, the RTC rendered its decision. It dismissed the petition
on the ground that the remedy of appeal was still available to petitioner. It
also ruled that the MTC did not commit any abuse of discretion in issuing the
orders assailed by petitioner.
Petitioner moved for reconsideration but the RTC denied it. Hence, this
petition.
The Court is called upon to resolve these issues: (a) whether a petition for
certiorari under Rule 65 of the Rules of Court, not appeal, is the proper
remedy for relief from the denial of a motion for new trial and (b) whether
the MTC committed grave abuse of discretion in denying the motion for new
trial.
Petitioner insists that its resort to a petition for certiorari under Rule 65 to
impugn the order denying its motion for new trial was proper. She also claims
that the RTC erred in declaring that the MTC did not abuse its discretion when
it denied her motion for new trial.
The petition is meritorious.
Rule 41, Section 1 of the Rules of Court provides that no appeal may be taken
from an order denying a motion for new trial. Such final order is not
appealable. In such a case, the aggrieved party may file an appropriate special
civil action under Rule 65 of the Rules of Court. In Rivera v. Court of
Appeals,[1] the Court ruled that an order denying a motion for new trial
cannot be the subject of an appeal. The proper remedy against such an order
is a petition for certiorari under Rule 65 on the ground of grave abuse of
discretion amounting to lack or excess of jurisdiction.[2]
While this rule pertains to civil cases, there is no cogent reason why the same
principle cannot be applied in criminal cases.[3] Thus, in criminal cases, the
special civil action for certiorari under Rule 65 is a proper remedy to question
an order denying a motion for new trial.
True, there was no grave abuse of discretion on the part of the MTC when it
issued the order denying petitioners motion for new trial. The records of the
case are bereft of any indication that Judge Cornejo arbitrarily, despotically
or deliberately failed to afford petitioner her constitutionally mandated right
to be heard. The cause of petitioners travails and misfortune was the
negligence of her own counsel.
However, in view of the circumstances of this case, outright deprivation of

liberty will be the consequence of petitioners criminal conviction based solely
on the evidence for the prosecution. Thus, to prevent a miscarriage of justice
and to give meaning to the due process clause of the Constitution, the Court
deems it wise to allow petitioner to present evidence in her defense.
The rule that the negligence of counsel binds the client admits of exceptions.
The recognized exceptions are: (1) where reckless or gross negligence of
counsel deprives the client of due process of law, (2) when its application will
result in outright deprivation of the clients liberty or property or (3) where
the interests of justice so require.[4] In such cases, courts must step in and
accord relief to a party-litigant.[5]
The omissions of petitioners counsel amounted to an abandonment or total

disregard of her case. They show conscious indifference to or utter disregard
of the possible repercussions to his client. Thus, the chronic inaction of
petitioners counsel on important incidents and stages of the criminal
proceedings constituted gross negligence.
The RTC itself found that petitioner never had the chance to present her
defense because of the nonfeasance (malfeasance, even) of her counsel. It
also concluded that, effectively, she was without counsel.[6] Considering
these findings, to deprive petitioner of her liberty without affording her the
right to be assisted by counsel is to deny her due process.
In criminal cases, the right of the accused to be assisted by counsel is

immutable.[7] Otherwise, there will be a grave denial of due process.[8] The
right to counsel proceeds from the fundamental principle of due process
which basically means that a person must be heard before being
condemned.[9]
In People v. Ferrer,[10] the essence of the right to counsel was enunciated:
The right to counsel means that the accused is amply accorded legal
assistance extended by a counsel who commits himself to the cause for the
defense and acts accordingly. The right assumes an active involvement by the
lawyer in the proceedings, particularly at the trial of the case, his bearing
constantly in mind of the basic rights of the accused, his being well-versed on
the case, and his knowing the fundamental procedures, essential laws and
existing jurisprudence. The right of an accused to counsel finds substance in
the performance by the lawyer of his sworn duty of fidelity to his client.
Tersely put, it means an efficient and truly decisive legal assistance and not a
simple perfunctory representation.[11] (Emphasis supplied)
Petitioner was accorded grossly insufficient legal assistance by a counsel who

did not devote himself to the defense of her cause. Counsels utter lack of
action after the prosecution rested its case revealed an extreme shortcoming
on his part. Such inaction definitely proved infidelity to and abandonment of
petitioners cause.
Considering that this case involved personal liberty, the gross negligence of
counsel shocks our sense of justice. It should not be allowed to prejudice
petitioners constitutional right to be heard.[12] The Courts pronouncement
in Reyes v. Court of Appeals,[13] applies strongly in this case:
The judicial conscience certainly cannot rest easy on a conviction based solely
on the evidence of the prosecution just because the presentation of the
defense evidence had been barred by technicality. Rigid application of rules
must yield to the duty of courts to render justice where justice is due to secure
to every individual all possible legal means to prove his innocence of a crime
with which he or she might be charged.[14]
Otherwise, the likelihood of convicting and punishing an innocent man and of

inflicting a serious injustice on him becomes great.
In Reyes, the Court, after finding that the conviction of Zenaida Reyes had
been caused by the gross negligence of her counsel, reconsidered its earlier
resolution which denied the petition for review of the decision of the Court
of Appeals affirming her conviction. The case was remanded to the trial court
for the purpose of allowing Reyes to present evidence in her defense.
In De Guzman v. Sandiganbayan,[15] the Court also set aside its decision

affirming Domingo de Guzmans conviction by the Sandiganbayan, after being
shown that his conviction had been brought about by his counsels gross
ignorance of law and procedure. The case was then ordered remanded to the
Sandiganbayan for reception and appreciation of petitioners evidence.
Therefore, in consonance with the demands of justice and to prevent any

outright deprivation of liberty, the Court deems it best to give petitioner a
chance to present evidence in her defense. The case should be remanded to
the MTC for acceptance and appraisal of petitioners evidence.
Petitioner does not seek her exoneration but the opportunity to present
evidence in her defense. Considering the gross negligence of her counsel on
whom she reposed her trust to protect her rights, justice demands that she
be given that chance.
In sum, it is better to allow petitioner another occasion to present her
evidence than to let her conviction stand based solely on the evidence of the
prosecution.[16] In accordance with Rule 121, Section 6 of the Rules of Court,
the evidence of the prosecution shall be understood preserved, subject to the
right of the prosecution to supplement it and/or to rebut the evidence which
petitioner may present.[17]
WHEREFORE, the petition is hereby GRANTED. The January 10, 2002 decision
of the Regional Trial Court of Pasig City, Branch 69, in SCA No. 1933 and the
October 8, 1999 and December 27, 1999 orders of the Metropolitan Trial
Court of Pasig City, Branch 68 in Criminal Case No. 38674 are SET ASIDE.
This case is hereby REMANDED to the Metropolitan Trial Court of Pasig City
for a new trial for the purpose of allowing petitioner to present evidence in
her defense with directive to the court to decide the case with deliberate
speed.
Let a copy of this decision be furnished to the Commission on Bar Discipline
of the Integrated Bar of the Philippines for further investigation of Atty.
Ricardo C. Valmontes liability as a member of the bar.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Associate Justice
Chairperson
ANGELINA SANDOVAL-GUTIERREZ ADOLFO S. AZCUNA

CANCIO C. GARCIA
Associate Justice
ATTESTATION
Courts Division.
REYNATO S. PUNO
Associate Justice
CERTIFICATION
Chairpersons Attestation, I certify that the conclusions in the above decision
ARTEMIO V. PANGANIBAN
Chief Justice
* Judge Lorifel Lacap Pahimna, Presiding Judge of the RTC of Pasig City, Branch
69, was impleaded as a party in this case. However, under Rule 45, Section 4
of the Rules of Court, the lower court or judges thereof need not be
impleaded in petitions for review filed before this Court.
[1] G.R. No. 141863, 26 June 2003, 405 SCRA 61.
[2] Id.
[3] The provisions of Section 1, Rule 41 of the Rules of Court had been applied
in criminal cases. In Casalla v. People, 439 Phil. 958 (2002), the Court invoked
Rule 41 and held that no appeal may be taken from an order denying a motion
for new trial or reconsideration and an order of execution. The appropriate
recourse is a special civil action under Rule 65. See also Basco v. Court of
Appeals and People, 383 Phil. 671 (2000), where Rule 41 was employed to
resolve the issue on the proper remedy against an order denying a petition
for relief.
[4] Sarraga, Sr. v. Banco Filipino Savings and Mortgage Bank, 442 Phil. 55
(2002).
[5] Id.
[6] RTC Decision of January 10, 2002 in SCA No. 1933, Annex A of Petition;
rollo, pp. 22-27.
[7] Spouses Telan v. Court of Appeals, G.R. No. 95026, 04 October 1991, 202
SCRA 534.
[8] Id.
[9] People v. Ferrer, G.R. No. 148821, 18 July 2003, 406 SCRA 658.
[10] Id.
[11] Id.
[12] Reyes v. Court of Appeals, 335 Phil. 206 (1997).
[13] Id.
[14] Id.
[15] 326 Phil. 182 (1996).
[16] Reyes v. Court of Appeals, supra.
[17] Id.
13. G.R. No. 176389
EN BANC
ANTONIO LEJANO, G.R. No. 176389

Petitioner,
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Respondent.
x --------------------------------------------- x
PEOPLE OF THE PHILIPPINES, G.R. No. 176864

Appellee,
- versus -
HUBERT JEFFREY P. WEBB,

ANTONIO LEJANO, MICHAEL
A. GATCHALIAN, HOSPICIO
FERNANDEZ, MIGUEL RODRIGUEZ,
PETER ESTRADA and GERARDO Promulgated:
BIONG,
Appellants. December 14, 2010
x ---------------------------------------------------------------------------------------- x
DECISION
ABAD, J.:
Brief Background
On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen
years old, and Jennifer, seven, were brutally slain at their home in Paraaque
City. Following an intense investigation, the police arrested a group of
suspects, some of whom gave detailed confessions. But the trial court smelled
a frame-up and eventually ordered them discharged. Thus, the identities of
the real perpetrators remained a mystery especially to the public whose
interests were aroused by the gripping details of what everybody referred to
as the Vizconde massacre.
Four years later in 1995, the National Bureau of Investigation or NBI

announced that it had solved the crime. It presented star-witness Jessica M.
Alfaro, one of its informers, who claimed that she witnessed the crime. She
pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano,
Artemio Dong Ventura, Michael A. Gatchalian, Hospicio Pyke Fernandez,
Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as the culprits. She also
tagged accused police officer, Gerardo Biong, as an accessory after the fact.
Relying primarily on Alfaro's testimony, on August 10, 1995 the public
prosecutors filed an information for rape with homicide against Webb, et
al.[1]
The Regional Trial Court of Paraaque City, Branch 274, presided over by Judge
Amelita G. Tolentino, tried only seven of the accused since Artemio Ventura
and Joey Filart remained at large.[2] The prosecution presented Alfaro as its
main witness with the others corroborating her testimony. These included the
medico-legal officer who autopsied the bodies of the victims, the security
guards of Pitong Daan Subdivision, the former laundrywoman of the Webbs
household, police officer Biongs former girlfriend, and Lauro G. Vizconde,
Estrellitas husband.
For their part, some of the accused testified, denying any part in the crime
and saying they were elsewhere when it took place. Webbs alibi appeared the
strongest since he claimed that he was then across the ocean in the United
States of America. He presented the testimonies of witnesses as well as
documentary and object evidence to prove this. In addition, the defense
presented witnesses to show Alfaro's bad reputation for truth and the
incredible nature of her testimony.
But impressed by Alfaros detailed narration of the crime and the events
surrounding it, the trial court found a credible witness in her. It noted her
categorical, straightforward, spontaneous, and frank testimony, undamaged
by grueling cross-examinations. The trial court remained unfazed by
significant discrepancies between Alfaros April 28 and May 22, 1995
affidavits, accepting her explanation that she at first wanted to protect her
former boyfriend, accused Estrada, and a relative, accused Gatchalian; that
no lawyer assisted her; that she did not trust the investigators who helped
her prepare her first affidavit; and that she felt unsure if she would get the
support and security she needed once she disclosed all about the Vizconde
killings.
In contrast, the trial court thought little of the denials and alibis that Webb,
Lejano, Rodriguez, and Gatchalian set up for their defense. They paled,
according to the court, compared to Alfaros testimony that other witnesses
and the physical evidence corroborated. Thus, on January 4, 2000, after four
years of arduous hearings, the trial court rendered judgment, finding all the
accused guilty as charged and imposing on Webb, Lejano, Gatchalian,
Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on
Biong, an indeterminate prison term of eleven years, four months, and one
day to twelve years. The trial court also awarded damages to Lauro
Vizconde.[3]
On appeal, the Court of Appeals affirmed the trial courts decision, modifying
the penalty imposed on Biong to six years minimum and twelve years
maximum and increasing the award of damages to Lauro Vizconde.[4] The
appellate court did not agree that the accused were tried by publicity or that
the trial judge was biased. It found sufficient evidence of conspiracy that
rendered Rodriguez, Gatchalian, Fernandez, and Estrada equally guilty with
those who had a part in raping and killing Carmela and in executing her
mother and sister.
On motion for reconsideration by the accused, the Court of Appeals' Special

Division of five members voted three against two to deny the motion,[5]
hence, the present appeal.
On April 20, 2010, as a result of its initial deliberation in this case, the Court
issued a Resolution granting the request of Webb to submit for DNA analysis
the semen specimen taken from Carmelas cadaver, which specimen was then
believed still under the safekeeping of the NBI. The Court granted the request
pursuant to section 4 of the Rule on DNA Evidence[6] to give the accused and
the prosecution access to scientific evidence that they might want to avail
themselves of, leading to a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer
has custody of the specimen, the same having been turned over to the trial
court. The trial record shows, however, that the specimen was not among the
object evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit on
the ground that the governments failure to preserve such vital evidence has
resulted in the denial of his right to due process.
Issues Presented
Accused Webbs motion to acquit presents a threshold issue: whether or not

the Court should acquit him outright, given the governments failure to
produce the semen specimen that the NBI found on Carmelas cadaver, thus
depriving him of evidence that would prove his innocence.
In the main, all the accused raise the central issue of whether or not Webb,
acting in conspiracy with Lejano, Gatchalian, Fernandez, Estrada, Rodriguez,
Ventura, and Filart, raped and killed Carmela and put to death her mother
and sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaros testimony as eyewitness, describing the crime and

identifying Webb, Lejano, Gatchalian, Fernandez, Estrada, Rodriguez, and two
others as the persons who committed it, is entitled to belief; and
2. Whether or not Webb presented sufficient evidence to prove his alibi and
rebut Alfaros testimony that he led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the
crime after its commission.
The Right to Acquittal

Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland,[7] that he is entitled to outright

acquittal on the ground of violation of his right to due process given the States
failure to produce on order of the Court either by negligence or willful
suppression the semen specimen taken from Carmela.
The medical evidence clearly established that Carmela was raped and,
consistent with this, semen specimen was found in her. It is true that Alfaro
identified Webb in her testimony as Carmelas rapist and killer but serious
questions had been raised about her credibility. At the very least, there exists
a possibility that Alfaro had lied. On the other hand, the semen specimen
taken from Carmela cannot possibly lie. It cannot be coached or allured by a
promise of reward or financial support. No two persons have the same DNA
fingerprint, with the exception of identical twins.[8] If, on examination, the
DNA of the subject specimen does not belong to Webb, then he did not rape
Carmela. It is that simple. Thus, the Court would have been able to determine
that Alfaro committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to produce
the semen specimen at this late stage. For one thing, the ruling in Brady v.
Maryland[9] that he cites has long be overtaken by the decision in Arizona v.
Youngblood,[10] where the U.S. Supreme Court held that due process does
not require the State to preserve the semen specimen although it might be
useful to the accused unless the latter is able to show bad faith on the part of
the prosecution or the police. Here, the State presented a medical expert who
testified on the existence of the specimen and Webb in fact sought to have
the same subjected to DNA test.
For, another, when Webb raised the DNA issue, the rule governing DNA
evidence did not yet exist, the country did not yet have the technology for
conducting the test, and no Philippine precedent had as yet recognized its
admissibility as evidence. Consequently, the idea of keeping the specimen
secure even after the trial court rejected the motion for DNA testing did not
come up. Indeed, neither Webb nor his co-accused brought up the matter of
preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webbs application for DNA
testing, he allowed the proceeding to move on when he had on at least two
occasions gone up to the Court of Appeals or the Supreme Court to challenge
alleged arbitrary actions taken against him and the other accused.[11] They
raised the DNA issue before the Court of Appeals but merely as an error
committed by the trial court in rendering its decision in the case. None of the
accused filed a motion with the appeals court to have the DNA test done
pending adjudication of their appeal. This, even when the Supreme Court had
in the meantime passed the rules allowing such test. Considering the accuseds
lack of interest in having such test done, the State cannot be deemed put on
reasonable notice that it would be required to produce the semen specimen
at some future time.
Now, to the merit of the case.
Alfaros Story
Based on the prosecutions version, culled from the decisions of the trial court
and the Court of Appeals, on June 29, 1991 at around 8:30 in the evening,
Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter Estrada as
passenger, to the Ayala Alabang Commercial Center parking lot to buy shabu
from Artemio Dong Ventura. There, Ventura introduced her to his friends:
Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Miguel Ging Rodriguez,
Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled
frequently seeing them at a shabu house in Paraaque in January 1991, except
Ventura whom she had known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to relay a
message for him to a girl, whom she later identified as Carmela Vizconde.
Alfaro agreed. After using up their shabu, the group drove to Carmelas house
at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, Paraaque City.
Riding in her car, Alfaro and Estrada trailed Filart and Rodriguez who rode a
Mazda pick-up and Webb, Lejano, Ventura, Fernandez, and Gatchalian who
were on a Nissan Patrol car.
On reaching their destination, Alfaro parked her car on Vinzons Street,

alighted, and approached Carmelas house. Alfaro pressed the buzzer and a
woman came out. Alfaro queried her about Carmela. Alfaro had met Carmela
twice before in January 1991. When Carmela came out, Alfaro gave her
Webbs message that he was just around. Carmela replied, however, that she
could not go out yet since she had just arrived home. She told Alfaro to return
after twenty minutes. Alfaro relayed this to Webb who then told the group to
drive back to the Ayala Alabang Commercial Center.
The group had another shabu session at the parking lot. After sometime, they
drove back but only Alfaro proceeded to Vinzons Street where Carmela lived.
The Nissan Patrol and the Mazda pick-up, with their passengers, parked
somewhere along Aguirre Avenue. Carmela was at their garden. She
approached Alfaro on seeing her and told the latter that she (Carmela) had to
leave the house for a while. Carmela requested Alfaro to return before
midnight and she would leave the pedestrian gate, the iron grills that led to
the kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink
her cars headlights twice when she approached the pedestrian gate so
Carmela would know that she had arrived.
Alfaro returned to her car but waited for Carmela to drive out of the house in
her own car. Alfaro trailed Carmela up to Aguirre Avenue where she dropped
off a man whom Alfaro believed was Carmelas boyfriend. Alfaro looked for
her group, found them, and relayed Carmelas instructions to Webb. They
then all went back to the Ayala Alabang Commercial Center. At the parking
lot, Alfaro told the group about her talk with Carmela. When she told Webb
of Carmelas male companion, Webbs mood changed for the rest of the
evening (bad trip).
Webb gave out free cocaine. They all used it and some shabu, too. After about
40 to 45 minutes, Webb decided that it was time for them to leave. He said,
Pipilahan natin siya [Carmela] at ako ang mauuna. Lejano said, Ako ang
susunod and the others responded Okay, okay. They all left the parking lot in
a convoy of three vehicles and drove into Pitong Daan Subdivision for the third
time. They arrived at Carmelas house shortly before midnight.
Alfaro parked her car between Vizcondes house and the next. While waiting
for the others to alight from their cars, Fernandez approached Alfaro with a
suggestion that they blow up the transformer near the Vizcondes residence
to cause a brownout (Pasabugin kaya natin ang transformer na ito). But Alfaro
shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When
Webb, Lejano, and Ventura were already before the house, Webb told the
others again that they would line up for Carmela but he would be the first.
The others replied, O sige, dito lang kami, magbabantay lang kami.
Alfaro was the first to pass through the pedestrian gate that had been left
open. Webb, Lejano, and Ventura followed her. On entering the garage,
Ventura using a chair mounted the hood of the Vizcondes Nissan Sentra and
loosened the electric bulb over it (para daw walang ilaw). The small group
went through the open iron grill gate and passed the dirty kitchen. Carmela
opened the aluminum screen door of the kitchen for them. She and Webb
looked each other in the eyes for a moment and, together, headed for the
dining area.
As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked
her where she was going and she replied that she was going out to smoke. As
she eased her way out through the kitchen door, she saw Ventura pulling out
a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty
minutes, she was surprised to hear a womans voice ask, Sino yan? Alfaro
immediately walked out of the garden to her car. She found her other
companions milling around it. Estrada who sat in the car asked her, Okay ba?
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde
house, using the same route. The interior of the house was dark but some
light filtered in from outside. In the kitchen, Alfaro saw Ventura searching a
ladys bag that lay on the dining table. When she asked him what he was
looking for, he said: Ikaw na nga dito, maghanap ka ng susi. She asked him
what key he wanted and he replied: Basta maghanap ka ng susi ng main door
pati na rin ng susi ng kotse. When she found a bunch of keys in the bag, she
tried them on the main door but none fitted the lock. She also did not find the
car key.
Unable to open the main door, Alfaro returned to the kitchen. While she was
at a spot leading to the dining area, she heard a static noise (like a television
that remained on after the station had signed off). Out of curiosity, she
approached the masters bedroom from where the noise came, opened the
door a little, and peeked inside. The unusual sound grew even louder. As she
walked in, she saw Webb on top of Carmela while she lay with her back on
the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the
bed about to wear his jacket. Carmela was gagged, moaning, and in tears
while Webb raped her, his bare buttocks exposed.
Webb gave Alfaro a meaningful look and she immediately left the room. She
met Ventura at the dining area. He told her, Prepare an escape. Aalis na tayo.
Shocked with what she saw, Alfaro rushed out of the house to the others who
were either sitting in her car or milling on the sidewalk. She entered her car
and turned on the engine but she did not know where to go. Webb, Lejano,
and Ventura came out of the house just then. Webb suddenly picked up a
stone and threw it at the main door, breaking its glass frame.
As the three men approached the pedestrian gate, Webb told Ventura that
he forgot his jacket in the house. But Ventura told him that they could not get
in anymore as the iron grills had already locked. They all rode in their cars and
drove away until they reached Aguirre Avenue. As they got near an old hotel
at the Tropical Palace area, Alfaro noticed the Nissan Patrol slow down.
Someone threw something out of the car into the cogonal area.
The convoy of cars went to a large house with high walls, concrete fence, steel
gate, and a long driveway at BF Executive Village. They entered the compound
and gathered at the lawn where the blaming session took place. It was here
that Alfaro and those who remained outside the Vizconde house learned of
what happened. The first to be killed was Carmelas mother, then Jennifer,
and finally, Carmella. Ventura blamed Webb, telling him, Bakit naman pati
yung bata? Webb replied that the girl woke up and on seeing him molesting
Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got
mad, grabbed the girl, pushed her to the wall, and repeatedly stabbed her.
Lejano excused himself at this point to use the telephone in the house.
Meanwhile, Webb called up someone on his cellular phone.
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered
him to go and clean up the Vizconde house and said to him, Pera lang ang
katapat nyan. Biong answered, Okay lang. Webb spoke to his companions and
told them, We dont know each other. We havent seen each otherbaka maulit
yan. Alfaro and Estrada left and they drove to her fathers house.[12]
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who showed up at the NBI after four
years, bothered by her conscience or egged on by relatives or friends to come
forward and do what was right? No. She was, at the time she revealed her
story, working for the NBI as an asset, a stool pigeon, one who earned her
living by fraternizing with criminals so she could squeal on them to her NBI
handlers. She had to live a life of lies to get rewards that would pay for her
subsistence and vices.
According to Atty. Artemio Sacaguing, former head of the NBI Anti-

Kidnapping, Hijacking, and Armed Robbery Task Force (AKHAR) Section, Alfaro
had been hanging around at the NBI since November or December 1994 as an
asset. She supplied her handlers with information against drug pushers and
other criminal elements. Some of this information led to the capture of
notorious drug pushers like Christopher Cruz Santos and Orlando Bacquir.
Alfaros tip led to the arrest of the leader of the Martilyo gang that killed a
police officer. Because of her talent, the task force gave her very special
treatment and she became its darling, allowed the privilege of spending
nights in one of the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime, however, they teased her
about it and she was piqued. One day, she unexpectedly told Sacaguing that
she knew someone who had the real story behind the Vizconde massacre.
Sacaguing showed interest. Alfaro promised to bring that someone to the NBI
to tell his story. When this did not happen and Sacaguing continued to press
her, she told him that she might as well assume the role of her informant.
Sacaguing testified thus:
ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde
murder case? Will you tell the Honorable Court?
xxxx
A. She told me. Your Honor, that she knew somebody who related to her the
circumstances, I mean, the details of the massacre of the Vizconde family.
Thats what she told me, Your Honor.
ATTY. ONGKIKO:
Q. And what did you say?
xxxx
A. I was quite interested and I tried to persuade her to introduce to me that
man and she promised that in due time, she will bring to me the man, and
together with her, we will try to convince him to act as a state witness and
help us in the solution of the case.
xxxx
Q. Atty. Sacaguing, were you able to interview this alleged witness?
WITNESS SACAGUING:
A. No, sir.
ATTY. ONGKIKO:
Q. Why not?
WITNESS SACAGUING:
A. Because Jessica Alfaro was never able to comply with her promise to bring
the man to me. She told me later that she could not and the man does not
like to testify.
ATTY. ONGKIKO:
Q. All right, and what happened after that?
WITNESS SACAGUING:
A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong
COURT:
How was that?
WITNESS SACAGUING:
A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan.
xxxx
ATTY. ONGKIKO:
Q. All right, and what was your reaction when Ms. Alfaro stated that
papapelan ko na lang yan?
WITNESS SACAGUING:
A. I said, hindi puwede yan, kasi hindi ka naman eye witness.
ATTY. ONGKIKO:
Q. And what was the reply of Ms. Alfaro?
WITNESS SACAGUING:
A. Hindi siya nakakibo, until she went away.
(TSN, May 28, 1996, pp. 49-50, 58, 77-79)
Quite significantly, Alfaro never refuted Sacaguings above testimony.
2. The suspicious details
But was it possible for Alfaro to lie with such abundant details some of which
even tallied with the physical evidence at the scene of the crime? No doubt,
yes.
Firstly, the Vizconde massacre had been reported in the media with dizzying
details. Everybody was talking about what the police found at the crime scene
and there were lots of speculations about them.
Secondly, the police had arrested some akyat-bahay group in Paraaque and
charged them with the crime. The police prepared the confessions of the men
they apprehended and filled these up with details that the evidence of the
crime scene provided. Alfaros NBI handlers who were doing their own
investigation knew of these details as well. Since Alfaro hanged out at the NBI
offices and practically lived there, it was not too difficult for her to hear of
these evidentiary details and gain access to the documents.
Not surprisingly, the confessions of some members of the Barroso akyat

bahay gang, condemned by the Makati RTC as fabricated by the police to pin
the crime on them, shows how crime investigators could make a confession
ring true by matching some of its details with the physical evidence at the
crime scene. Consider the following:
a. The Barroso gang members said that they got into Carmelas house by
breaking the glass panel of the front door using a stone wrapped in cloth to
deaden the noise. Alfaro could not use this line since the core of her story was
that Webb was Carmelas boyfriend. Webb had no reason to smash her front
door to get to see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming
that, on the way out of the house, Webb picked up some stone and, out of
the blue, hurled it at the glass-paneled front door of the Vizconde residence.
His action really made no sense. From Alfaros narration, Webb appeared
rational in his decisions. It was past midnight, the house was dark, and they
wanted to get away quickly to avoid detection. Hurling a stone at that glass
door and causing a tremendous noise was bizarre, like inviting the neighbors
to come.
b. The crime scene showed that the house had been ransacked. The rejected
confessions of the Barroso akyat-bahay gang members said that they tried to
rob the house. To explain this physical evidence, Alfaro claimed that at one
point Ventura was pulling a kitchen drawer, and at another point, going
through a handbag on the dining table. He said he was looking for the front-
door key and the car key.
Again, this portion of Alfaros story appears tortured to accommodate the

physical evidence of the ransacked house. She never mentioned Ventura
having taken some valuables with him when they left Carmelas house. And
why would Ventura rummage a bag on the table for the front-door key,
spilling the contents, when they had already gotten into the house. It is a story
made to fit in with the crime scene although robbery was supposedly not the
reason Webb and his companions entered that house.
c. It is the same thing with the garage light. The police investigators found that
the bulb had been loosened to turn off the light. The confessions of the
Barroso gang claimed that one of them climbed the parked cars hood to reach
up and darken that light. This made sense since they were going to rob the
place and they needed time to work in the dark trying to open the front door.
Some passersby might look in and see what they were doing.
Alfaro had to adjust her testimony to take into account that darkened garage
light. So she claimed that Ventura climbed the cars hood, using a chair, to turn
the light off. But, unlike the Barroso akyat-bahay gang, Webb and his friends
did not have anything to do in a darkened garage. They supposedly knew in
advance that Carmela left the doors to the kitchen open for them. It did not
make sense for Ventura to risk standing on the cars hood and be seen in such
an awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBIs star witness, their badge of excellent
investigative work. After claiming that they had solved the crime of the
decade, the NBI people had a stake in making her sound credible and,
obviously, they gave her all the preparations she needed for the job of
becoming a fairly good substitute witness. She was their darling of an asset.
And this is not pure speculation. As pointed out above, Sacaguing of the NBI,
a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial
court and the Court of Appeals failed to see this is mystifying.
At any rate, did Alfaro at least have a fine memory for faces that had a strong
effect on her, given the circumstances? Not likely. She named Miguel Ging
Rodriguez as one of the culprits in the Vizconde killings. But when the NBI
found a certain Michael Rodriguez, a drug dependent from the Bicutan
Rehabilitation Center, initially suspected to be Alfaros Miguel Rodriguez and
showed him to Alfaro at the NBI office, she ran berserk, slapping and kicking
Michael, exclaiming: How can I forget your face. We just saw each other in a
disco one month ago and you told me then that you will kill me. As it turned
out, he was not Miguel Rodriguez, the accused in this case.[13]
Two possibilities exist: Michael was really the one Alfaro wanted to implicate
to settle some score with him but it was too late to change the name she
already gave or she had myopic vision, tagging the wrong people for what
they did not do.
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or suffers
from inherent inconsistencies. An understanding of the nature of things and
the common behavior of people will help expose a lie. And it has an abundant
presence in this case.
One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and

Filart, who were supposed to be Webbs co-principals in the crime, Alfaro
made it a point to testify that Webb proposed twice to his friends the gang-
rape of Carmela who had hurt him. And twice, they (including, if one believes
Alfaro, her own boyfriend Estrada) agreed in a chorus to his proposal. But
when they got to Carmelas house, only Webb, Lejano, Ventura, and Alfaro
entered the house.
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around

Alfaros car, which was parked on the street between Carmelas house and the
next. Some of these men sat on top of the cars lid while others milled on the
sidewalk, visible under the street light to anyone who cared to watch them,
particularly to the people who were having a drinking party in a nearby house.
Obviously, the behavior of Webbs companions out on the street did not figure
in a planned gang-rape of Carmela.
Two. Ventura, Alfaros dope supplier, introduced her for the first time in her
life to Webb and his friends in a parking lot by a mall. So why would she agree
to act as Webbs messenger, using her gas, to bring his message to Carmela at
her home. More inexplicably, what motivated Alfaro to stick it out the whole
night with Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it
came to a point that Webb decided with his friends to gang-rape Carmela,
clearly, there was nothing in it for Alfaro. Yet, she stuck it out with them, as a
police asset would, hanging in there until she had a crime to report, only she
was not yet an asset then. If, on the other hand, Alfaro had been too soaked
in drugs to think clearly and just followed along where the group took her,
how could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her house for the second time,
Carmella told her that she still had to go out and that Webb and his friends
should come back around midnight. Alfaro returned to her car and waited for
Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue
where she supposedly dropped off a man whom she thought was Carmelas
boyfriend. Alfaros trailing Carmela to spy on her unfaithfulness to Webb did
not make sense since she was on limited errand. But, as a critical witness,
Alfaro had to provide a reason for Webb to freak out and decide to come with
his friends and harm Carmela.
Four. According to Alfaro, when they returned to Carmelas house the third
time around midnight, she led Webb, Lejano, and Ventura through the
pedestrian gate that Carmela had left open. Now, this is weird. Webb was the
gang leader who decided what they were going to do. He decided and his
friends agreed with him to go to Carmelas house and gang-rape her. Why
would Alfaro, a woman, a stranger to Webb before that night, and obviously
with no role to play in the gang-rape of Carmela, lead him and the others into
her house? It made no sense. It would only make sense if Alfaro wanted to
feign being a witness to something she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about twenty
minutes, a woman exclaimed, Sino yan? On hearing this, Alfaro immediately
walked out of the garden and went to her car. Apparently, she did this
because she knew they came on a sly. Someone other than Carmela became
conscious of the presence of Webb and others in the house. Alfaro walked
away because, obviously, she did not want to get involved in a potential
confrontation. This was supposedly her frame of mind: fear of getting
involved in what was not her business.
But if that were the case, how could she testify based on personal knowledge
of what went on in the house? Alfaro had to change that frame of mind to
one of boldness and reckless curiosity. So that is what she next claimed. She
went back into the house to watch as Webb raped Carmela on the floor of the
masters bedroom. He had apparently stabbed to death Carmelas mom and
her young sister whose bloodied bodies were sprawled on the bed. Now,
Alfaro testified that she got scared (another shift to fear) for she hurriedly got
out of the house after Webb supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada,
Rodriguez, and Filart who sat on the car or milled on the sidewalk. She did not
speak to them, even to Estrada, her boyfriend. She entered her car and turned
on the engine but she testified that she did not know where to go. This woman
who a few minutes back led Webb, Lejano, and Ventura into the house,
knowing that they were decided to rape and harm Carmela, was suddenly too
shocked to know where to go! This emotional pendulum swing indicates a
witness who was confused with her own lies.
4. The supposed corroborations
Intending to provide corroboration to Alfaros testimony, the prosecution

presented six additional witnesses:
Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the
bodies of the victims, testified on the stab wounds they sustained[14] and the
presence of semen in Carmelas genitalia,[15] indicating that she had been
raped.
Normal E. White, Jr., was the security guard on duty at Pitong Daan
Subdivision from 7 p.m. of June 29 to 7 a.m. of June 30, 1991. He got a report
on the morning of June 30 that something untoward happened at the
Vizconde residence. He went there and saw the dead bodies in the masters
bedroom, the bag on the dining table, as well as the loud noise emanating
from a television set.[16]
White claimed that he noticed Gatchalian and his companions, none of whom
he could identify, go in and out of Pitong Daan Subdivision. He also saw them
along Vinzons Street. Later, they entered Pitong Daan Subdivision in a three-
car convoy. White could not, however, describe the kind of vehicles they used
or recall the time when he saw the group in those two instances. And he did
not notice anything suspicious about their coming and going.
But Whites testimony cannot be relied on. His initial claim turned out to be
inaccurate. He actually saw Gatchalian and his group enter the Pitong Daan
Subdivision only once. They were not going in and out. Furthermore, Alfaro
testified that when the convoy of cars went back the second time in the
direction of Carmelas house, she alone entered the subdivision and passed
the guardhouse without stopping. Yet, White who supposedly manned that
guardhouse did not notice her.
Surprisingly, White failed to note Biong, a police officer, entering or exiting

the subdivision on the early morning of June 30 when he supposedly cleaned
up Vizconde residence on Webbs orders. What is more, White did not notice
Carmela arrive with her mom before Alfaros first visit that night. Carmela
supposedly left with a male companion in her car at around 10:30 p.m. but
White did not notice it. He also did not notice Carmela reenter the
subdivision. White actually discredited Alfaros testimony about the
movements of the persons involved.
Further, while Alfaro testified that it was the Mazda pick-up driven by Filart
that led the three-vehicle convoy,[17] White claimed it was the Nissan Patrol
with Gatchalian on it that led the convoy since he would not have let the
convoy in without ascertaining that Gatchalian, a resident, was in it. Security
guard White did not, therefore, provide corroboration to Alfaros testimony.
Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified

that he saw Webb around the last week of May or the first week of June 1991
to prove his presence in the Philippines when he claimed to be in the United
States. He was manning the guard house at the entrance of the subdivision of
Pitong Daan when he flagged down a car driven by Webb. Webb said that he
would see Lilet Sy. Cabanacan asked him for an ID but he pointed to his United
BF Homes sticker and said that he resided there. Cabanacan replied, however,
that Pitong Daan had a local sticker.
Cabanacan testified that, at this point, Webb introduced himself as the son of
Congressman Webb. Still, the supervisor insisted on seeing his ID. Webb
grudgingly gave it and after seeing the picture and the name on it, Cabanacan
returned the same and allowed Webb to pass without being logged in as their
Standard Operating Procedure required.[18]
But Cabanacan's testimony could not be relied on. Although it was not
common for a security guard to challenge a Congressmans son with such
vehemence, Cabanacan did not log the incident on the guardhouse book. Nor
did he, contrary to prescribed procedure, record the visitors entry into the
subdivision. It did not make sense that Cabanacan was strict in the matter of
seeing Webbs ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house at
BF Homes Executive Village. She testified that she saw Webb at his parents
house on the morning of June 30, 1991 when she got the dirty clothes from
the room that he and two brothers occupied at about 4.a.m. She saw him
again pacing the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt
and shorts, passing through a secret door near the maids quarters on the way
out. Finally, she saw Webb at 4 p.m. of the same day.[19]
On cross-examination, however, Gaviola could not say what distinguished

June 30, 1991 from the other days she was on service at the Webb household
as to enable her to distinctly remember, four years later, what one of the
Webb boys did and at what time. She could not remember any of the details
that happened in the household on the other days. She proved to have a
selective photographic memory and this only damaged her testimony.
Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30,
1991 she noticed bloodstains on Webb's t-shirt.[20] She did not call the
attention of anybody in the household about it when it would have been a
point of concern that Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May
1992, and Sgt. Miguel Muoz, the Webbs' security aide in 1991, testified that
Gaviola worked for the Webbs only from January 1991 to April 1991. Ventoso
further testified that it was not Gaviola's duty to collect the clothes from the
2nd floor bedrooms, this being the work of the housemaid charged with
cleaning the rooms.
What is more, it was most unlikely for a laundrywoman who had been there
for only four months to collect, as she claimed, the laundry from the rooms
of her employers and their grown up children at four in the morning while
they were asleep.
And it did not make sense, if Alfaros testimony were to be believed that
Webb, who was so careful and clever that he called Biong to go to the
Vizconde residence at 2 a.m. to clean up the evidence against him and his
group, would bring his bloodied shirt home and put it in the hamper for
laundrywoman Gaviola to collect and wash at 4 a.m. as was her supposed
habit.
Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde
massacre took place. Birrer testified that she was with Biong playing mahjong
from the evening of June 29, 1991 to the early morning of June 30, when
Biong got a call at around 2 a.m. This prompted him, according to De Birrer,
to leave and go to BF. Someone sitting at the backseat of a taxi picked him up.
When Biong returned at 7 a.m. he washed off what looked like dried blood
from his fingernails. And he threw away a foul-smelling handkerchief. She also
saw Biong take out a knife with aluminum cover from his drawer and hid it in
his steel cabinet.[21]
The security guard at Pitong Daan did not notice any police investigator
flashing a badge to get into the village although Biong supposedly came in at
the unholy hour of two in the morning. His departure before 7 a.m. also
remained unnoticed by the subdivision guards. Besides, if he had cleaned up
the crime scene shortly after midnight, what was the point of his returning
there on the following morning to dispose of some of the evidence in the
presence of other police investigators and on-lookers? In fact, why would he
steal valuable items from the Vizconde residence on his return there hours
later if he had the opportunity to do it earlier?
At most, Birrers testimony only established Biongs theft of certain items from
the Vizconde residence and gross neglect for failing to maintain the sanctity
of the crime scene by moving around and altering the effects of the crime.
Birrers testimony failed to connect Biong's acts to Webb and the other
accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her
wife and two daughters. Carmella spoke to him of a rejected suitor she called
Bagyo, because he was a Paraaque politicians son. Unfortunately, Lauro did
not appear curious enough to insist on finding out who the rejected fellow
was. Besides, his testimony contradicts that of Alfaro who testified that
Carmela and Webb had an on-going relation. Indeed, if Alfaro were to be
believed, Carmela wanted Webb to come to her house around midnight. She
even left the kitchen door open so he could enter the house.
5. The missing corroboration

There is something truly remarkable about this case: the prosecutions core
theory that Carmela and Webb had been sweethearts, that she had been
unfaithful to him, and that it was for this reason that Webb brought his friends
to her house to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressmans son, courted the young

Carmela, that would be news among her circle of friends if not around town.
But, here, none of her friends or even those who knew either of them came
forward to affirm this. And if Webb hanged around with her, trying to win her
favors, he would surely be seen with her. And this would all the more be so if
they had become sweethearts, a relation that Alfaro tried to project with her
testimony.
But, except for Alfaro, the NBI asset, no one among Carmelas friends or her
friends friends would testify ever hearing of such relationship or ever seeing
them together in some popular hangouts in Paraaque or Makati. Alfaros claim
of a five-hour drama is like an alien page, rudely and unconnectedly inserted
into Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed
to fit into the shape on the board but does not belong because it clashes with
the surrounding pieces. It has neither antecedent nor concomitant support in
the verifiable facts of their personal histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela drive out of her house
with a male passenger, Mr. X, whom Alfaro thought the way it looked was
also Carmelas lover. This was the all-important reason Webb supposedly had
for wanting to harm her. Again, none of Carmelas relatives, friends, or people
who knew her ever testified about the existence of Mr.X in her life. Nobody
has come forward to testify having ever seen him with Carmela. And despite
the gruesome news about her death and how Mr. X had played a role in it, he
never presented himself like anyone who had lost a special friend normally
would. Obviously, Mr. X did not exist, a mere ghost of the imagination of
Alfaro, the woman who made a living informing on criminals.
Webbs U.S. Alibi
Among the accused, Webb presented the strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife,
Elizabeth, sent their son to the United States (U.S.) to learn the value of
independence, hard work, and money.[22] Gloria Webb, his aunt,
accompanied him. Rajah Tours booked their flight to San Francisco via United
Airlines. Josefina Nolasco of Rajah Tours confirmed that Webb and his aunt
used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his
basketball buddy, Joselito Orendain Escobar, of his travel plans. He even
invited them to his despedida party on March 8, 1991 at Faces Disco along
Makati Ave.[23] On March 8,1991, the eve of his departure, he took girlfriend
Milagros Castillo to a dinner at Bunchums at the Makati Cinema Square. His
basketball buddy Rafael Jose with Tina Calma, a blind date arranged by Webb,
joined them. They afterwards went to Faces Disco for Webb's despedida
party. Among those present were his friends Paulo Santos and Jay Ortega.[24]
b. The two immigration checks

The following day, March 9, 1991, Webb left for San Francisco, California, with
his Aunt Gloria on board United Airlines Flight 808.[25] Before boarding his
plane, Webb passed through the Philippine Immigration booth at the airport
to have his passport cleared and stamped. Immigration Officer, Ferdinand
Sampol checked Webbs visa, stamped, and initialed his passport, and let him
pass through.[26] He was listed on the United Airlines Flights Passenger
Manifest.[27]
On arrival at San Francisco, Webb went through the U.S. Immigration where
his entry into that country was recorded. Thus, the U.S. Immigration
Naturalization Service, checking with its Non-immigrant Information System,
confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at
the trial the INS Certification issued by the U.S. Immigration and
Naturalization Service,[28] the computer-generated print-out of the US-INS
indicating Webb's entry on March 9, 1991,[29] and the US-INS Certification
dated August 31, 1995, authenticated by the Philippine Department of
Foreign Affairs, correcting an earlier August 10, 1995 Certification.[30]
c. Details of U.S. sojourn
In San Francisco, Webb and his aunt Gloria were met by the latters daughter,
Maria Teresa Keame, who brought them to Glorias house in Daly City,
California. During his stay with his aunt, Webb met Christopher Paul Legaspi
Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain
Daphne Domingo watched the concert of Deelite Band in San Francisco.[31]
In the same month, Dorothy Wheelock and her family invited Webb to Lake
Tahoe to return the Webbs hospitality when she was in the Philippines.[32]
In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to
Anaheim Hills, California.[33] During his stay there, he occupied himself with
playing basketball once or twice a week with Steven Keeler[34] and working
at his cousin-in-laws pest control company.[35] Webb presented the
companys logbook showing the tasks he performed,[36] his paycheck,[37] his
ID, and other employment papers. On June 14, 1991 he applied for a driver's
license[38] and wrote three letters to his friend Jennifer Cabrera.[39]
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the
Brottmans. On the same day, his father introduced Honesto Aragon to his son
when he came to visit.[40] On the following day, June 29, Webb, in the
company of his father and Aragon went to Riverside, California, to look for a
car. They bought an MR2 Toyota car.[41] Later that day, a visitor at the
Brottmans, Louis Whittacker, saw Webb looking at the plates of his new
car.[42] To prove the purchase, Webb presented the Public Records of
California Department of Motor Vehicle[43] and a car plate LEW WEBB.[44]
In using the car in the U.S., Webb even received traffic citations.[45]
On June 30, 1991 Webb, again accompanied by his father and Aragon,[46]
bought a bicycle at Orange Cycle Center.[47] The Center issued Webb a
receipt dated June 30, 1991.[48] On July 4, 1991, Independence Day, the
Webbs, the Brottmans, and the Vaca family had a lakeside picnic.[49]
Webb stayed with the Brottmans until mid July and rented a place for less
than a month. On August 4, 1991 he left for Longwood, Florida, to stay with
the spouses Jack and Sonja Rodriguez.[50] There, he met Armando Rodriguez
with whom he spent time, playing basketball on weekends, watching movies,
and playing billiards.[51] In November 1991, Webb met performing artist
Gary Valenciano, a friend of Jack Rodriguez, who was invited for a dinner at
the Rodriguezs house.[52] He left the Rodriguezs home in August 1992,
returned to Anaheim and stayed with his aunt Imelda Pagaspas. He stayed
there until he left for the Philippines on October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S., Webb also went through both the U.S. and
Philippine immigrations on his return trip. Thus, his departure from the U.S.
was confirmed by the same certifications that confirmed his entry.[53]
Furthermore, a Diplomatic Note of the U.S. Department of State with
enclosed letter from Acting Director Debora A. Farmer of the Records
Operations, Office of Records of the US-INS stated that the Certification dated
August 31, 1995 is a true and accurate statement. And when he boarded his
plane, the Passenger Manifest of Philippine Airlines Flight No. 103,[54]
certified by Agnes Tabuena[55] confirmed his return trip.
When he arrived in Manila, Webb again went through the Philippine

Immigration. In fact, the arrival stamp and initial on his passport indicated his
return to Manila on October 27, 1992. This was authenticated by Carmelita
Alipio, the immigration officer who processed Webbs reentry.[56] Upon his
return, in October 1992, Paolo Santos, Joselito Erondain Escobar, and Rafael
Jose once again saw Webb playing basketball at the BF's Phase III basketball
court.
e. Alibi versus positive identification
The trial court and the Court of Appeals are one in rejecting as weak Webbs
alibi. Their reason is uniform: Webbs alibi cannot stand against Alfaros
positive identification of him as the rapist and killer of Carmela and,
apparently, the killer as well of her mother and younger sister. Because of
this, to the lower courts, Webbs denial and alibi were fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if the
accused is truly innocent, he can have no other defense but denial and alibi.
So how can such accused penetrate a mind that has been made cynical by the
rule drilled into his head that a defense of alibi is a hangmans noose in the
face of a witness positively swearing, I saw him do it.? Most judges believe
that such assertion automatically dooms an alibi which is so easy to fabricate.
This quick stereotype thinking, however, is distressing. For how else can the
truth that the accused is really innocent have any chance of prevailing over
such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard
against slipping into hasty conclusion, often arising from a desire to quickly
finish the job of deciding a case. A positive declaration from a witness that he
saw the accused commit the crime should not automatically cancel out the
accuseds claim that he did not do it. A lying witness can make as positive an
identification as a truthful witness can. The lying witness can also say as
forthrightly and unequivocally, He did it! without blinking an eye.
Rather, to be acceptable, the positive identification must meet at least two

criteria:
First, the positive identification of the offender must come from a credible
witness. She is credible who can be trusted to tell the truth, usually based on
past experiences with her. Her word has, to one who knows her, its weight in
gold.
And second, the witness story of what she personally saw must be believable,
not inherently contrived. A witness who testifies about something she never
saw runs into inconsistencies and makes bewildering claims.
Here, as already fully discussed above, Alfaro and her testimony fail to meet
the above criteria.
She did not show up at the NBI as a spontaneous witness bothered by her
conscience. She had been hanging around that agency for sometime as a stool
pigeon, one paid for mixing up with criminals and squealing on them. Police
assets are often criminals themselves. She was the prosecutions worst
possible choice for a witness. Indeed, her superior testified that she
volunteered to play the role of a witness in the Vizconde killings when she
could not produce a man she promised to the NBI.
And, although her testimony included details, Alfaro had prior access to the
details that the investigators knew of the case. She took advantage of her
familiarity with these details to include in her testimony the clearly
incompatible act of Webb hurling a stone at the front door glass frames even
when they were trying to slip away quietlyjust so she can accommodate this
crime scene feature. She also had Ventura rummaging a bag on the dining
table for a front door key that nobody needed just to explain the physical
evidence of that bag and its scattered contents. And she had Ventura climbing
the cars hood, risking being seen in such an awkward position, when they did
not need to darken the garage to force open the front doorjust so to explain
the darkened light and foot prints on the car hood.
Further, her testimony was inherently incredible. Her story that Gatchalian,
Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping
Carmela is incongruent with their indifference, exemplified by remaining
outside the house, milling under a street light, visible to neighbors and
passersby, and showing no interest in the developments inside the house, like
if it was their turn to rape Carmela. Alfaros story that she agreed to serve as
Webbs messenger to Carmela, using up her gas, and staying with him till the
bizarre end when they were practically strangers, also taxes incredulity.
To provide basis for Webbs outrage, Alfaro said that she followed Carmela to
the main road to watch her let off a lover on Aguirre Avenue. And,
inexplicably, although Alfaro had only played the role of messenger, she
claimed leading Webb, Lejano, and Ventura into the house to gang-rape
Carmella, as if Alfaro was establishing a reason for later on testifying on
personal knowledge. Her swing from an emotion of fear when a woman woke
up to their presence in the house and of absolute courage when she
nonetheless returned to become the lone witness to a grim scene is also quite
inexplicable.
Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently

unbelievable, testimony cannot be the positive identification that
jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. A documented alibi
To establish alibi, the accused must prove by positive, clear, and satisfactory
evidence[57] that (a) he was present at another place at the time of the
perpetration of the crime, and (b) that it was physically impossible for him to
be at the scene of the crime.[58]
The courts below held that, despite his evidence, Webb was actually in
Paraaque when the Vizconde killings took place; he was not in the U.S. from
March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he
actually returned before June 29, 1991, committed the crime, erased the fact
of his return to the Philippines from the records of the U.S. and Philippine
Immigrations, smuggled himself out of the Philippines and into the U.S., and
returned the normal way on October 27, 1992. But this ruling practically
makes the death of Webb and his passage into the next life the only
acceptable alibi in the Philippines. Courts must abandon this unjust and
inhuman paradigm.
If one is cynical about the Philippine system, he could probably claim that
Webb, with his fathers connections, can arrange for the local immigration to
put a March 9, 1991 departure stamp on his passport and an October 27, 1992
arrival stamp on the same. But this is pure speculation since there had been
no indication that such arrangement was made. Besides, how could Webb fix
a foreign airlines passenger manifest, officially filed in the Philippines and at
the airport in the U.S. that had his name on them? How could Webb fix with
the U.S. Immigrations record system those two dates in its record of his
travels as well as the dates when he supposedly departed in secret from the
U.S. to commit the crime in the Philippines and then return there? No one has
come up with a logical and plausible answer to these questions.
The Court of Appeals rejected the evidence of Webbs passport since he did
not leave the original to be attached to the record. But, while the best
evidence of a document is the original, this means that the same is exhibited
in court for the adverse party to examine and for the judge to see. As Court
of Appeals Justice Tagle said in his dissent,[59] the practice when a party does
not want to leave an important document with the trial court is to have a
photocopy of it marked as exhibit and stipulated among the parties as a
faithful reproduction of the original. Stipulations in the course of trial are
binding on the parties and on the court.
The U.S. Immigration certification and the computer print-out of Webbs

arrival in and departure from that country were authenticated by no less than
the Office of the U.S. Attorney General and the State Department. Still the
Court of Appeals refused to accept these documents for the reason that
Webb failed to present in court the immigration official who prepared the
same. But this was unnecessary. Webbs passport is a document issued by the
Philippine government, which under international practice, is the official
record of travels of the citizen to whom it is issued. The entries in that
passport are presumed true.[60]
The U.S. Immigration certification and computer print-out, the official

certifications of which have been authenticated by the Philippine Department
of Foreign Affairs, merely validated the arrival and departure stamps of the
U.S. Immigration office on Webbs passport. They have the same evidentiary
value. The officers who issued these certifications need not be presented in
court to testify on them. Their trustworthiness arises from the sense of official
duty and the penalty attached to a breached duty, in the routine and
disinterested origin of such statement and in the publicity of the record.[61]
The Court of Appeals of course makes capital of the fact that an earlier
certification from the U.S. Immigration office said that it had no record of
Webb entering the U.S. But that erroneous first certification was amply
explained by the U.S. Government and Court of Appeals Justice Tagle stated
it in his dissenting opinion, thus:
While it is true that an earlier Certification was issued by the U.S. INS on
August 16, 1995 finding no evidence of lawful admission of Webb, this was
already clarified and deemed erroneous by no less than the US INS Officials.
As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the
Philippine Embassy in Washington D.C., said Certification did not pass through
proper diplomatic channels and was obtained in violation of the rules on
protocol and standard procedure governing such request.
The initial request was merely initiated by BID Commissioner Verceles who
directly communicated with the Philippine Consulate in San Francisco, USA,
bypassing the Secretary of Foreign Affairs which is the proper protocol
procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board
of US-INS Washington D.C. in his letter addressed to Philip Antweiler,
Philippine Desk Officer, State Department, declared the earlier Certification
as incorrect and erroneous as it was not exhaustive and did not reflect all
available information. Also, Richard L. Huff, Co-Director of the Office of
Information and privacy, US Department of Justice, in response to the appeal
raised by Consul General Teresita V. Marzan, explained that the INS normally
does not maintain records on individuals who are entering the country as
visitors rather than as immigrants: and that a notation concerning the entry
of a visitor may be made at the Nonimmigrant Information system. Since
appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial
search could not have produced the desired result inasmuch as the data base
that was looked into contained entries of the names of IMMIGRANTS and not
that of NON-IMMIGRANT visitors of the U.S..[62]
The trial court and the Court of Appeals expressed marked cynicism over the
accuracy of travel documents like the passport as well as the domestic and
foreign records of departures and arrivals from airports. They claim that it
would not have been impossible for Webb to secretly return to the Philippines
after he supposedly left it on March 9, 1991, commit the crime, go back to the
U.S., and openly return to the Philippines again on October 26, 1992. Travel
between the U.S. and the Philippines, said the lower courts took only about
twelve to fourteen hours.
If the Court were to subscribe to this extremely skeptical view, it might as well
tear the rules of evidence out of the law books and regard suspicions,
surmises, or speculations as reasons for impeaching evidence. It is not that
official records, which carry the presumption of truth of what they state, are
immune to attack. They are not. That presumption can be overcome by
evidence. Here, however, the prosecution did not bother to present evidence
to impeach the entries in Webbs passport and the certifications of the
Philippine and U.S. immigration services regarding his travel to the U.S. and
back. The prosecutions rebuttal evidence is the fear of the unknown that it
planted in the lower courts minds.
7. Effect of Webbs alibi to others
Webbs documented alibi altogether impeaches Alfaro's testimony, not only

with respect to him, but also with respect to Lejano, Estrada, Fernandez,
Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition
that Webb was in the U.S. when the crime took place, Alfaros testimony will
not hold together. Webbs participation is the anchor of Alfaros story. Without
it, the evidence against the others must necessarily fall.
CONCLUSION
In our criminal justice system, what is important is, not whether the court
entertains doubts about the innocence of the accused since an open mind is
willing to explore all possibilities, but whether it entertains a reasonable,
lingering doubt as to his guilt. For, it would be a serious mistake to send an
innocent man to jail where such kind of doubt hangs on to ones inner being,
like a piece of meat lodged immovable between teeth.
Will the Court send the accused to spend the rest of their lives in prison on
the testimony of an NBI asset who proposed to her handlers that she take the
role of the witness to the Vizconde massacre that she could not produce?
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated
December 15, 2005 and Resolution dated January 26, 2007 of the Court of
Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert
Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez,
Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which
they were charged for failure of the prosecution to prove their guilt beyond
reasonable doubt. They are ordered immediately RELEASED from detention
unless they are confined for another lawful cause.
Let a copy of this Decision be furnished the Director, Bureau of Corrections,

Muntinlupa City for immediate implementation. The Director of the Bureau
of Corrections is DIRECTED to report the action he has taken to this Court
within five days from receipt of this Decision.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
I join the dissent of J. Villarama

RENATO C. CORONA
Chief Justice
No Part. I testified in this case. Please see concurring Opinion

ANTONIO T. CARPIO CONCHITA CARPIO MORALES
J. Velasco on official business No part. Filed pleading as Sol. Gen.

PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
I joing the dissent of J. Villarama I Certify that J. Brion cast a dissenting vote
with Villarama
See supplemental Opinion
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
DIOSDADO M. PERALTA LUCAS P. BERSAMIN

(No part) See dissenting Opinion

MARIANO C. DEL CASTILLO MARTIN S. VILLARAMA, JR.
I vote for the vacation of the verdict with
conviction there being a lingering doubt.
JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
See separate concurring opinion

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified

that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice
[1] Records, Vol. 1, pp. 1-3.

[2] Rollo (G.R. 176389), pp. 393-399 and rollo (G.R. 176864), pp. 80-104.
[3] Records, Vol. 25, pp. 170-71.
[4] CA rollo, Vol. IV, pp. 3478-3479.
[5] Resolution dated January 26, 2007, rollo (G.R. 176839), pp. 197-214.
[6] A.M. 06-11-5-SC effective October 15, 2007.
[7] 373 U.S. 83 (1963).
[8] People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514.
[9] Supra note 7.
[10] 488 U.S. 41 (1988).
[11] Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb
v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243.
[12] The ponencia, pp. 4-9.
[13] TSN, August 6, 1996, pp. 13-41; TSN, May 22, 1997, pp. 72, 81-131, 142-
157; Exhibits 274 and 275.
[14] Exhibits G to G-2, Q to R, V, W and X, Records, Vol. 8, pp. 308-310, 323-
324, 328-330.
[15] Exhibits H to K, Records, Vol. 8, pp. 311-315; TSN, January 30, 1996, pp.
xx.
[16] TSN, March 25, 1996, pp. 8-14, 17-34.
[17] TSN October 10, 1995, pp. 97-98 (Records, Vol. 4, pp. 271-272).
[18] TSN, March 14, 1996, pp. 79-89, 103-104.
[19] TSN, December 5, 1995, pp. 21-65.
[20] Id.
[21] TSN, April 16, 1996, pp. 18-38, 79.
[22] TSN, August 14, 1997 and September 1, 1997.
[23] TSN, July 9, 1997, pp. 22-26.
[24] TSN, July 8, 1997, pp. 15-19; and TSN, June 9, 1997, pp. 22-26.
[25] Exhibit 227.
[26] TSN, May 28, 1997, pp. 112-118, 121-122.
[27] Exhibit 223.
[28] Exhibits 207 to 219.
[29] Exhibit 207-B.
[30] Exhibit 212-D.
[31] TSN, June 3, 1997, pp. 14-33; photograph before the concert Exhibit 295,
Records (Vol.2), p. 208.
[32] TSN, April 23, 1997, pp. 128-129, 134-148.
[33] TSN, April 30, 1997, pp. 69-71.
[34] TSN, June 2, 1997, pp. 51-64, 75-78.
[35] TSN, June 16, 1997, pp. 12, 16-38, 43-59 and 69-93.
[36] Exhibits 305.
[37] Exhibits 306 and 307.
[39] Exhibits 244, 245 and 246.
[40] TSN, July 16, 1997, pp. 35, 41-42, 48-49, 58, 61-62.
[41] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.
[42] TSN, June 26, 1997, pp. 13-28.
[43] Exhibit 338.
[44] Exhibit 348.
[46] TSN, July 16, 1996, pp. 16-17, 23-32, 61-63, 78-84.
[47] Exhibit 349.
[48] Exhibit 337-B.
[49] TSN, May 9, 1996, pp. 26-32, 37, 44-57.
[50] Id.
[51] TSN, July 7, 1997, pp. 19-35.
[52] TSN, July 2, 1997, pp. 33-37.
[53] Exhibit 212-D.
[54] Exhibit 261.
[55] Exhibit 260.
[56] TSN, June 23, 1997.
[57] People v. Hillado, 367 Phil. 29 (1999).
[58] People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46.
[59] Rollo (G.R. 176839), pp. 216-217.
[60] Section 44, Rule 130, Rules of Court.
[61] Antilon v. Barcelona, 37 Phil. 148 (1917).
[62] Rollo (G.R. 176839), pp. 218-219.
14. G.R. No. 187728
Supreme Court
Manila
THIRD DIVISION
CHURCHILLE V. MARI and the PEOPLE OF THE PHILIPPINES,

Petitioners,
- versus -
HON. ROLANDO L. GONZALES, Presiding Judge, Regional Trial Court, Branch

39, Sogod, Southern Leyte, and PO1 RUDYARD PALOMA y TORRES,
Respondents.
G.R. No. 187728
Present:
VELASCO, JR., J., Chairperson,
PERALTA,
ABAD,
MENDOZA, and
SERENO,* JJ.
Promulgated:
September 12, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
PERALTA, J.:
This resolves the Petition for Certiorari under Rule 65 of the Rules of Court,
praying that the Order[1] of the Regional Trial Court of Sogod, Southern Leyte
(RTC), dated January 16, 2009, dismissing the criminal case for rape against
PO1 Rudyard Paloma y Torres (private respondent), and the Resolution[2]
dated March 16, 2009, denying petitioners' motion for reconsideration, be
annulled and set aside.
The records reveal the following antecedent facts.
On October 25, 2004, petitioner AAA, private complainant below, executed a

sworn statement before an Investigator of the 8th Regional Office, Philippine
National Police-Criminal Investigation and Detection Group (PNP-CIDG) in
Tacloban City, where she stated that she was raped by herein private
respondent on October 10, 2004 at her boarding house at Sogod, Southern
Leyte. A preliminary investigation of the case was commenced on November
4, 2004 before the Presiding Judge of the Municipal Circuit Trial Court (MCTC)
of Sogod. A warrant of arrest was issued against private respondent, so he
voluntarily surrendered to the Chief of Police of Sogod on November 18, 2004
and was then incarcerated at the Sogod Municipal Jail.
On November 20, 2004, private respondent filed a Motion for Bail. Hearings
on the motion commenced on December 7, 2004, but petitioner failed to
appear. Only private respondent presented evidence. Thus, on March 16,
2005, the MCTC of Sogod issued an Order allowing private respondent to post
bail set at P200,000.00. After posting a surety bond, private respondent was
released from confinement.
Pursuant to the issuance of A.M. No. 05-8-26, divesting first-level courts of

authority to conduct preliminary investigation of criminal complaints
cognizable by Regional Trial Courts, records of the subject case were
transmitted to the Provincial Prosecutor's Office of Southern Leyte.[3] The
Prosecutor's Office issued a Resolution dated May 26, 2008, finding probable
cause against private respondent and, accordingly, an Information for Rape
was filed on June 11, 2008. A warrant of arrest was immediately issued
against private respondent.
On June 27, 2008, private respondent was committed to detention[4] and, on

June 30, 2008, the RTC issued an Order[5] stating that accused had voluntarily
surrendered to the Office of the Clerk of Court and arraignment was set for
July 31, 2008. In the meantime, on July 3, 2008, private respondent filed a
Motion to Admit Cash Bond in Lieu of Surety Bond; thus, in an Order dated
July 10, 2008, the RTC cancelled the July 31, 2008 schedule for arraignment
and reset the arraignment and hearing on said motion for August 20, 2008.
At said scheduled date for arraignment and hearing on the motion, nobody
appeared for the prosecution. Hence, the RTC issued the Order[6] dated
August 20, 2008 resetting the arraignment for October 31, 2008 and stating
that:
x x x this Court hereby orders the public prosecutor x x x and/or his assistant
prosecutor x x x to appear and prosecute this case on the next scheduled
hearing from arraignment up to the termination of the trial of this case
otherwise this Court will order the dismissal of this case for failure to
prosecute or nolle prosequi.[7]
On October 28, 2008, petitioner AAA, private complainant below, filed

through her private counsel, a Motion for Cancellation of Hearing,[8]
manifesting that Atty. Pedro Felicen, Jr. had been granted the authority to
prosecute by the Provincial Prosecutor and praying that the scheduled
arraignment on October 31, 2008 be cancelled due to the pendency of private
complainant's petition for transfer of venue before this Court. The authorized
private prosecutor did not appear on said hearing date. The hearing on
October 31, 2008 proceeded as the RTC ruled, in its Order[9] issued on the
same day, that unless restrained by a higher court, the mere pendency of a
petition for transfer of venue is not sufficient reason to suspend the
proceedings. Moreover, counsel for accused invoked the accused's right to a
speedy trial and, thus, private respondent was arraigned in the presence of
the Provincial Prosecutor who was designated by the RTC to represent the
prosecution for the purpose of arraignment. Pre-trial was set for November
13, 2008. Nevertheless, said schedule for pre-trial was cancelled (per
Order[10] dated November 4, 2008) as the Presiding Judge of the RTC had to
attend a PHILJA Seminar, and pre-trial was reset to November 24, 2008. On
November 24, 2008, the day of the pre-trial itself, the private prosecutor
again filed a Motion for Cancellation of Hearing, again using as justification
the pendency of the petition for transfer of venue. The RTC issued an Order
on even date, reading as follows:
During the scheduled pre-trial conference of this case, the public prosecutors
of Leyte, the private prosecutor and the private complainant failed to appear
despite proper notices sent [to] them. A motion for cancellation of hearing
was filed by the authorized private prosecutor, Pedro Felicen, Jr. for reasons
stated therein to which this Court finds to be not meritorious, hence, the
same is denied. x x x the public prosecutor as well as the counsel for the
accused were directed to make their oral comments on the first endorsement
of the Hon. Deputy Court Administrator, regarding the motion to transfer
venue of this case to any of the RTC, at Tacloban City, x x x.
x x x Thereafter, the pre trial proceeded by discussing matters concerning the

amicable settlement, plea bargaining agreement, stipulation of facts, pre-
marking of documentary exhibits, number of witnesses, trial dates and nature
of the defense. There being no other matters to discuss on pre-trial in order
to expedite the early disposition of this case, the pre-trial proper is now
deemed terminated.[11]
The said Order also scheduled the initial hearing for trial on the merits for
December 12, 2008. On December 12, 2008, no one appeared for the
prosecution, prompting counsel for accused private respondent to move for
dismissal of the case on the ground of failure to prosecute. Private
respondent's motion to dismiss was denied per Order[12] dated December
12, 2008, and hearing was reset to January 16, 2009.
Again, on the very day of the January 16, 2009 hearing, the private prosecutor
filed an Urgent Motion for Cancellation of Hearing, stating that it
was only on January 14, 2009 that he was furnished a copy of the notice of
the January 16, 2009 hearing and he had to attend a previously scheduled
hearing for another case he was handling, set for the very same date. Thus, in
the Order dated January 16, 2009, the RTC disposed, thus:
x x x Again notably absent are the private prosecutor, the two public
prosecutors designated by the Department of Justice to prosecute this case
as well as the private complainant herself.
A last minute urgent motion to reset was filed by the private prosecutor, but
the same is denied being in violation of the three (3) day rule in filing written
postponements. After hearing the arguments coming from both the public
prosecutor assigned to this Court and counsel for the defense, the Court
deems it proper to act on the urgency of the matter prayed for by the said
counsel. Considering that the accused has been languishing in jail since June,
2008 up to the present and to allow him to stay in jail for a single minute, it is
quite unreasonable and would violate his right to speedy trial.
WHEREFORE, finding the motion of the counsel for the accused to be based
on grounds that are meritorious, this Court pursuant to x x x the rule on
speedy trial (RA 8433) [should be 8493] hereby orders this case dismissed for
failure of the prosecution to prosecute or nolle prosequi.[13]
Petitioners filed a motion for reconsideration, but the RTC denied the same
per Resolution dated March 16, 2009.
Hence, the present petition for certiorari, alleging that public respondent
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction in rashly and precipitately dismissing the rape case against private
respondent. Respondents counter that there was no grave abuse committed
by the trial court and setting aside the dismissal of the rape case would put
private respondent in double jeopardy.
The Court finds the petition bereft of merit.
Firstly, petitioners failed to observe the doctrine on hierarchy of courts. In

Garcia v. Miro,[14] the Court, quoting Vergara, Sr. v. Suelto,[15] ruled thus:
The Supreme Court is a court of last resort, and must so remain if it is to

satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the
task of dealing with causes in the first instance. Its original jurisdiction to
issue the so-called extraordinary writs should be exercised only where
absolutely necessary or where serious and important reasons exist therefor.
Hence, that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action for the writ's
procurement must be presented. This is, and should continue, to be the
policy in this regard, a policy that courts and lawyers must strictly
observe.[16] (Emphasis supplied.)
On this point alone, the petition is already dismissible. However, on several
occasions, this Court found compelling reasons to relax the rule on
observance on hierarchy of courts. In Pacoy v. Cajigal,[17] the Court opted not
to strictly apply said doctrine, since the issue involved is double jeopardy,
considered to be one of the most fundamental constitutional rights of an
accused. Hence, the Court also finds sufficient reason to relax the rule in this
case as it also involves the issue of double jeopardy, necessitating a look into
the merits of the petition.
Petitioners insist that the RTC dismissed the criminal case against private
respondent too hurriedly, despite the provision in Section 10 of the Speedy
Trial Act of 1998 (Republic Act No. 8493), now incorporated in Section 3, Rule
119 of the Rules of Court, to wit:
SEC. 3. Exclusions. - The following periods of delay shall be excluded in

computing the time within which trial must commence:
(a) Any period of delay resulting from other proceedings concerning the
accused, including but not limited to the following:
xxxx
(5) Delay resulting from orders of inhibition, or proceedings relating to

change of venue of cases or transfer from other courts;
x x x x[18]
A careful reading of the above rule would show that the only delays that may
be excluded from the time limit within which trial must commence are those
resulting from proceedings concerning the accused. The time involved in the
proceedings in a petition for transfer of venue can only be excluded from said
time limit if it was the accused who instituted the same. Hence, in this case,
the time during which the petition for transfer of venue filed by the private
complainant is pending, cannot be excluded from the time limit of thirty (30)
days from receipt of the pre-trial order imposed in Section 1, Rule 119 of the
Rules of Court.
The records reveal that the 30-day time limit set by Section 1, Rule 119 of the
Rules of Court had, in fact, already been breached. The private prosecutor
received the Pre-trial Order[19] dated November 24, 2008 on December 3,
2008, while the Provincial Prosecutor received the same on December 2,
2008.[20] This means that at the latest, trial should have commenced by
January 2, 2009, or if said date was a Sunday or holiday, then on the very next
business day. Yet, because of the prosecution's failure to appear at the
December 12, 2008 hearing for the initial presentation of the prosecution's
evidence, the RTC was constrained to reset the hearing to January 16, 2009,
which is already beyond the 30-day time limit. Nevertheless, the prosecution
again failed to appear at the January 16, 2009 hearing. Indeed, as aptly
observed by the RTC, petitioners showed recalcitrant behavior by obstinately
refusing to comply with the RTC's directives to commence presentation of
their evidence. Petitioners did not even show proper courtesy to the court,
by filing motions for cancellation of the hearings on the very day of the
hearing and not even bothering to appear on the date they set for hearing on
their motion. As set forth in the narration of facts above, the prosecution
appeared to be intentionally delaying and trifling with court processes.
Petitioners are likewise mistaken in their notion that mere pendency of their
petition for transfer of venue should interrupt proceedings before the trial
court. Such situation is akin to having a pending petition for certiorari with
the higher courts. In People v. Hernandez,[21] the Court held that delay
resulting from extraordinary remedies against interlocutory orders must be
read in harmony with Section 7, Rule 65 of the Rules of Court which provides
that the [p]etition [under Rule 65] shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of preliminary
injunction has been issued against the public respondent from further
proceeding in the case.[22] The trial court was then correct and acting well
within its discretion when it refused to grant petitioners' motions for
postponement mainly because of the pendency of their petition for transfer
of venue.
The trial court cannot be faulted for refusing to countenance delays in the
prosecution of the case. The Court's ruling in Tan v. People[23] is quite
instructive, to wit:
An accused's right to "have a speedy, impartial, and public trial" is guaranteed

in criminal cases by Section 14 (2) of Article III of the Constitution. This right
to a speedy trial may be defined as one free from vexatious, capricious and
oppressive delays, its "salutary objective" being to assure that an innocent
person may be free from the anxiety and expense of a court litigation or, if
otherwise, of having his guilt determined within the shortest possible time
compatible with the presentation and consideration of whatsoever legitimate
defense he may interpose. Intimating historical perspective on the evolution
of the right to speedy trial, we reiterate the old legal maxim, "justice delayed
is justice denied." This oft-repeated adage requires the expeditious resolution
of disputes, much more so in criminal cases where an accused is
constitutionally guaranteed the right to a speedy trial.
Following the policies incorporated under the 1987 Constitution, Republic Act
No. 8493, otherwise known as "The Speedy Trial Act of 1998," was enacted,
with Section 6 of said act limiting the trial period to 180 days from the first
day of trial. Aware of problems resulting in the clogging of court dockets, the
Court implemented the law by issuing Supreme Court Circular No. 38-98,
which has been incorporated in the 2000 Rules of Criminal Procedure, Section
2 of Rule 119.
In Corpuz v. Sandiganbayan, the Court had occasion to state -
The right of the accused to a speedy trial and to a speedy disposition of the
case against him was designed to prevent the oppression of the citizen by
holding criminal prosecution suspended over him for an indefinite time, and
to prevent delays in the administration of justice by mandating the courts to
proceed with reasonable dispatch in the trial of criminal cases. Such right to
a speedy trial and a speedy disposition of a case is violated only when the
proceeding is attended by vexatious, capricious and oppressive delays. The
inquiry as to whether or not an accused has been denied such right is not
susceptible by precise qualification. The concept of a speedy disposition is a
relative term and must necessarily be a flexible concept.
While justice is administered with dispatch, the essential ingredient is orderly,

expeditious and not mere speed. It cannot be definitely said how long is too
long in a system where justice is supposed to be swift, but deliberate. It is
consistent with delays and depends upon circumstances. It secures rights to
the accused, but it does not preclude the rights of public justice. Also, it must
be borne in mind that the rights given to the accused by the Constitution and
the Rules of Court are shields, not weapons; hence, courts are to give meaning
to that intent.
The Court emphasized in the same case that:
A balancing test of applying societal interests and the rights of the accused
necessarily compels the court to approach speedy trial cases on an ad hoc
basis.
In determining whether the accused has been deprived of his right to a speedy
disposition of the case and to a speedy trial, four factors must be considered:
(a) length of delay; (b) the reason for the delay; (c) the defendant's assertion
of his right; and (d) prejudice to the defendant. x x x.
Closely related to the length of delay is the reason or justification of the State
for such delay. Different weights
should be assigned to different reasons or justifications invoked by the State.

x x x.
Exhaustively explained in Corpuz v. Sandiganbayan, an accused's right to

speedy trial is deemed violated only when the proceeding is attended by
vexatious, capricious, and oppressive delays. In determining whether
petitioner was deprived of this right, the factors to consider and balance are
the following: (a) duration of the delay; (b) reason therefor; (c) assertion of
the right or failure to assert it; and (d) prejudice caused by such delay.
xxxx
We emphasize that in determining the right of an accused to speedy trial,
courts are required to do more than a mathematical computation of the
number of postponements of the scheduled hearings of the case. A mere
mathematical reckoning of the time involved is clearly insufficient, and
particular regard must be given to the facts and circumstances peculiar to
each case.[24]
Here, it must be emphasized that private respondent had already been

deprived of his liberty on two occasions. First, during the preliminary
investigation before the MCTC, when he was incarcerated from November 18,
2004 to March 16, 2005, or a period of almost four months; then again, when
an Information had already been issued and since rape is a non-bailable
offense, he was imprisoned beginning June 27, 2008 until the case was
dismissed on January 16, 2009, or a period of over 6 months. Verily, there can
be no cavil that deprivation of liberty for any duration of time is quite
oppressive. Because of private respondent's continued incarceration, any
delay in trying the case would cause him great prejudice. Thus, it was
absolutely vexatious and oppressive to delay the trial in the subject criminal
case to await the outcome of petitioners' petition for transfer of venue,
especially in this case where there is no temporary restraining order or writ
of preliminary injunction issued by a higher court against herein public
respondent from further proceeding in the case.
Hence, the Court does not find any grave abuse of discretion committed by
the trial court in dismissing the case against private respondent for violation
of his constitutional right to speedy trial.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:

Associate Justice
Chairperson
ROBERTO A. ABAD JOSE CATRAL MENDOZA

Associate Justice
ATTESTATION
Courts Division.
Associate Justice
Third Division, Chairperson
CERTIFICATION
were reached in consultation before the case was assigned to the writer of
the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
* Designated additional member per Special Order No. 1028 dated June 21,
2011.
[1] Penned by Rolando L. Gonzales, Presiding Judge, RTC, Br. 39, Sogod,
Southern Leyte; rollo, pp. 80-81.
[2] Id. at 88-93
[3] MCTC records, pp. 378-379.
[4] RTC records, p. 25.
[5] Id. at 26.
[6] Id. at 91-92.
[7] Id. at 92.
[8] Id. at 193-195.
[9] Id. at 199-200.
[10] Id. at 206.
[11] Id. at 218.
[12] Id. at 260-261.
[13] Id. at 273-274.
[14] G.R. No. 167409, March 20, 2009, 582 SCRA 127.
[15] G.R. No. L-74766, December 21, 1987, 156 SCRA 753.
[16] Garcia v. Miro, supra note 14, at 131-132.
[17] G.R. No. 157472, September 28, 2007, 534 SCRA 338.
[18] Emphasis and underscoring supplied.
[19] RTC records, pp. 223-225.
[20] See Registry Receipts, RTC records, attached to the dorsal portion of p.
225.
[21] G.R. Nos. 154218 & 154372, August 28, 2006, 499 SCRA 688.
[22] Id. at 713.
[23] G.R. No. 173637, April 21, 2009, 586 SCRA 139.
[24] Id. at 151-155. (Emphasis supplied).
15. G.R. No. 145566
SUPREME COURT
Manila
EN BANC
G.R. No. 145566 March 9, 2004
PEOPLE OF THE PHILIPPINES, appellee,

vs.
DINDO "BEBOT" MOJELLO, appellant.
DECISION
YNARES-SANTIAGO, J.:
On automatic review is a decision of the Regional Trial Court (RTC) of Bogo,

Cebu, Branch 61, finding appellant Dindo "Bebot" Mojello guilty beyond
reasonable doubt of the crime of rape with homicide defined and penalized
under Article 335 of the Revised Penal Code, as amended by Republic Act No.
7659, and sentencing him to the supreme penalty of death.1
Appellant Dindo Mojello, alias "Bebot" was charged with the crime of rape
with homicide in an Information dated May 22, 1997, as follows:2
That on the 15th day of December 1996, at about 11:00 o'clock in the evening,
at Sitio Kota, Barangay Talisay, Municipality of Santa Fe, Province of Cebu,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, moved by lewd design and by means of force, violence and
intimidation, did then and there willfully, unlawfully and feloniously succeed
in having carnal knowledge with Lenlen Rayco under twelve (12) years of age
and with mental deficiency, against her will and consent, and by reason
and/or on the occasion thereof, purposely to conceal the most brutal act and
in pursuance of his criminal design, the above-named accused, did then and
there willfully, unlawfully and feloniously with intent to kill, treacherously and
employing personal violence, attack, assault and kill the victim Lenlen Rayco,
thereby inflicting upon the victim wounds on the different parts of her body
which caused her death.
CONTRARY TO LAW.
Appellant was arraigned on July 24, 1997, entering a plea of "not guilty." Trial
followed.
On January 21, 1999, the trial court rendered judgment finding appellant
guilty beyond reasonable doubt of the crime of rape with homicide, and
sentencing him to suffer the death penalty.
From the facts found by the court a quo, it appears that on December 15,
1996, at or around 9:00 p.m., Rogelio Rayco was having some drinks with a
group which included Roger Capacito and his wife and the spouses Borah and
Arsolin Illustrismo at the Capacito residence located at Barangay Talisay, Sta.
Fe, Cebu.3
Rogelio Rayco left the group to go home about an hour later. On his way
home, he saw his niece, Lenlen Rayco, with appellant Dindo Mojello, a
nephew of Roger Capacito, walking together some thirty meters away
towards the direction of Sitio Kota.4 Since he was used to seeing them
together on other occasions, he did not find anything strange about this. He
proceeded to his house.5
On December 16, 1996, between 5:00 to 6:00 a.m., the Rayco family was
informed that the body of Lenlen was found at the seashore of Sitio Kota.
Rogelio Rayco immediately proceeded to the site and saw the lifeless, naked
and bruised body of his niece. Rogelio was devastated by what he saw. A
remorse of conscience enveloped him for his failure to protect his niece. He
even attempted to take his own life several days after the incident.6
Appellant was arrested at Bantayan while attempting to board a motor launch

bound for Cadiz City. On an investigation conducted by SPO2 Wilfredo
Giducos, he admitted that he was the perpetrator of the dastardly deed.
Appellant was assisted by Atty. Isaias Giduquio during his custodial
interrogation. His confession was witnessed by Barangay Captains Wilfredo
Batobalanos and Manolo Landao. Batobalanos testified that after it was
executed, the contents of the document were read to appellant who later on
voluntarily signed it.7 Appellant's extrajudicial confession was sworn before
Judge Cornelio T. Jaca of the Municipal Circuit Trial Court (MCTC) of Sta. Fe-
Bantayan.8 On December 21, 1996, an autopsy was conducted on the victim's
cadaver by Dr. Nestor Sator of the Medico-Legal Branch of the PNP Crime
Laboratory, Region VII.9
Dr. Sator testified that the swelling of the labia majora and hymenal
lacerations positively indicate that the victim was raped.10 He observed that
froth in the lungs of the victim and contusions on her neck show that she was
strangled and died of asphyxia.11 He indicated the cause of death as cardio-
respiratory arrest due to asphyxia by strangulation and physical injuries to the
head and the trunk.12
In this automatic review, appellant raises two issues: whether the

extrajudicial confession executed by appellant is admissible in evidence; and
whether appellant is guilty beyond reasonable doubt of the crime of rape with
homicide.
We now resolve.
Appellant alleges that the lower court gravely erred in admitting in evidence
the alleged extrajudicial confession which he executed on December 23,
1996. In his Brief, appellant avers that the confession which he executed was
not freely, intelligently and voluntarily entered into.13 He argues that he was
not knowingly and intelligently apprised of his constitutional rights before the
confession was taken from him.14 Hence, his confession, and admissions
made therein, should be deemed inadmissible in evidence, under the fruit of
the poisonous tree doctrine.
We are not convinced.

At the core of the instant case is the application of the law on custodial
investigation enshrined in Article III, Section 12, paragraph 1 of the
Constitution, which provides:
Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent
and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights
cannot be waived except in writing and in the presence of counsel.
The above provision in the fundamental Charter embodies what

jurisprudence has termed as "Miranda rights" stemming from the landmark
decision of the United States Supreme Court, Miranda v. Arizona.15 It has
been the linchpin of the modern Bill of Rights, and the ultimate refuge of
individuals against the coercive power of the State.
The Miranda doctrine requires that: (a) any person under custodial
investigation has the right to remain silent; (b) anything he says can and will
be used against him in a court of law; (c) he has the right to talk to an attorney
before being questioned and to have his counsel present when being
questioned; and (d) if he cannot afford an attorney, one will be provided
before any questioning if he so desires.
In the Philippines, the right to counsel espoused in the Miranda doctrine was
based on the leading case of People v. Galit16 and Morales, Jr. v. Enrile,17
rulings subsequently incorporated into the present Constitution. The Miranda
doctrine under the 1987 Charter took on a modified form where the right to
counsel was specifically qualified to mean competent and independent
counsel preferably of the suspect's own choice. Waiver of the right to counsel
likewise provided for stricter requirements compared to its American
counterpart; it must be done in writing, and in the presence of counsel.
Verily, it may be observed that the Philippine law on custodial investigation

has evolved to provide for more stringent standards than what was originally
laid out in Miranda v. Arizona. The purpose of the constitutional limitations
on police interrogation as the process shifts from the investigatory to the
accusatory seems to be to accord even the lowliest and most despicable
criminal suspects a measure of dignity and respect. The main focus is the
suspect, and the underlying mission of custodial investigation to elicit a
confession.
The extrajudicial confession executed by appellant on December 23, 1996,

applying Art. III, Sec. 12, par. 1 of the Constitution in relation to Rep. Act No.
7438, Sec. 2 complies with the strict constitutional requirements on the right
to counsel. In other words, the extrajudicial confession of the appellant is
valid and therefore admissible in evidence.
As correctly pointed out by the Solicitor General, appellant was undoubtedly

apprised of his Miranda rights under the Constitution.18 The court a quo
observed that the confession itself expressly states that the investigating
officers informed him of such rights.19 As further proof of the same, Atty.
Isaias Giduquio testified that while he was attending a Sangguniang Bayan
session, he was requested by the Chief of Police of Sta. Fe to assist
appellant.20 Appellant manifested on record his desire to have Atty. Giduquio
as his counsel, with the latter categorically stating that before the
investigation was conducted and appellant's statement taken, he advised
appellant of his constitutional rights. Atty. Giduquio even told appellant to
answer only the questions he understood freely and not to do so if he was not
sure of his answer.21 Atty. Giduquio represented appellant during the initial
stages of the trial of the present case.
Atty. Giduquio was a competent and independent counsel of appellant within

the contemplation of the Constitution. No evidence was presented to negate
his competence and independence in representing appellant during the
custodial investigation. Moreover, appellant manifested for the record that
Atty. Giduquio was his choice of counsel during the custodial proceedings.
The phrase "preferably of his own choice" does not convey the message that
the choice of a lawyer by a person under investigation is exclusive as to
preclude other equally competent and independent attorneys from handling
the defense; otherwise the tempo of custodial investigation will be solely in
the hands of the accused who can impede, nay, obstruct the progress of the
interrogation by simply selecting a lawyer who, for one reason or another, is
not available to protect his interest.22
We ruled in People v. Continente23 that while the choice of a lawyer in cases

where the person under custodial interrogation cannot afford the services of
counsel or where the preferred lawyer is not available is naturally lodged
in the police investigators, the suspect has the final choice as he may reject
the counsel chosen for him and ask for another one. A lawyer provided by the
investigators is deemed engaged by the accused when he does not raise any
objection against the counsel's appointment during the course of the
investigation, and the accused thereafter subscribes to the veracity of the
statement before the swearing officer.24
The right to counsel at all times is intended to preclude the slightest coercion
as would lead the accused to admit something false. The lawyer, however,
should never prevent an accused from freely and voluntarily telling the truth.
In People v. Dumalahay,25 this Court held:
The sworn confessions of the three accused show that they were properly
apprised of their right to remain silent and right to counsel, in accordance
with the constitutional guarantee.
At 8:00 in the morning of the next day, the three accused proceeded to the
office of Atty. Rexel Pacuribot, Clerk of Court of the Regional Trial Court of
Cagayan de Oro City. All of the three accused, still accompanied by Atty. Ubay-
ubay, subscribed and swore to their respective written confessions. Before
administering the oaths, Atty. Pacuribot reminded the three accused of their
constitutional rights under the Miranda doctrine and verified that their
statements were voluntarily given. Atty. Pacuribot also translated the
contents of each confession in the Visayan dialect, to ensure that each
accused understood the same before signing it.
No ill-motive was imputed on these two lawyers to testify falsely against the
accused. Their participation in these cases merely involved the performance
of their legal duties as officers of the court. Accused-appellant Dumalahay's
allegation to the contrary, being self-serving, cannot prevail over the
testimonies of these impartial and disinterested witnesses.
More importantly, the confessions are replete with details which could
possibly be supplied only by the accused, reflecting spontaneity and
coherence which psychologically cannot be associated with a mind to which
violence and torture have been applied. These factors are clear indicia that
the confessions were voluntarily given.
When the details narrated in an extrajudicial confession are such that they
could not have been concocted by one who did not take part in the acts
narrated, where the claim of maltreatment in the extraction of the confession
is unsubstantiated and where abundant evidence exists showing that the
statement was voluntarily executed, the confession is admissible against the
declarant. There is greater reason for finding a confession to be voluntary
where it is corroborated by evidence aliunde which dovetails with the
essential facts contained in such confession.
The confessions dovetail in all their material respects. Each of the accused
gave the same detailed narration of the manner by which Layagon and
Escalante were killed. This clearly shows that their confessions could not have
been contrived. Surely, the three accused could not have given such identical
accounts of their participation and culpability in the crime were it not the
truth.
Concededly, the December 17, 1996 custodial investigation upon appellant's

apprehension by the police authorities violated the Miranda doctrine on two
grounds: (1) no counsel was present; and (2) improper waiver of the right to
counsel as it was not made in writing and in the presence of counsel.
However, the December 23, 1996 custodial investigation which elicited the
appellant's confession should nevertheless be upheld for having complied
with Art. III, Sec. 12, par. 1. Even though improper interrogation methods
were used at the outset, there is still a possibility of obtaining a legally valid
confession later on by properly interrogating the subject under different
conditions and circumstances than those which prevailed originally.26
The records of this case clearly reflect that the appellant freely, voluntarily
and intelligently entered into the extrajudicial confession in full compliance
with the Miranda doctrine under Art. III, Sec. 12, par. 1 of the Constitution in
relation to Rep. Act No. 7438, Sec. 2. SPO2 Wilfredo Abello Giducos, prior to
conducting his investigation, explained to appellant his constitutional rights
in the Visayan dialect, notably Cebuano, a language known to the appellant,
viz:27
PASIUNA (PRELIMINARY) : Ikaw karon Dindo Mojello ubos sa usa ka

inbestigasyon diin ikaw gituhon nga adunay kalabutan sa kamatayon ni
LENLEN RAYCO ug nahitabong paglugos kaniya. Ubos sa atong Batakang
Balaod, ikaw adunay katungod sa pagpakahilom ning maong inbesigasyon
karon kanimo ug aduna usab ikaw ug katungod nga katabangan ug usa ka
abogado nga motabang karon kanimo ning maong inbestigasyon. Imo ba
nasabtan kining tanan? (DINDO MOJELLO, you are hereby reminded that you
are under investigation in which you were suspected about the death and
raping of LENLEN RAYCO. Under the Constitution you have the right to remain
silent about this investigation on you now and you have also the right to have
counsel of your own choice to assist you in this investigation now. Have you
understood everything?)
TUBAG (ANSWER) : Oo, sir. (Yes, sir.)
PANGUTANA (QUESTION) : Human ikaw sayri sa imong katungod ubos sa

atong Batakang Balaod sa pagpakahilom, gusto ba nimo nga ipadayon nato
kining inbestigasyon karon kanimo? (After you have been apprised of your
rights under our Constitution to remain silent, do you want to proceed this
investigation on you now?)
TUBAG (QUESTION) : Oo, sir. (Yes, sir.)

PANGUTANA (QUESTION) : Gusto ba usab nimo ug abogado nga makatabang
kanimo ning maong inbestigasyon? (Do you want counsel to assist you in this
said investigation?)
APPEARANCE : Atty. Isaias Giduquio is appearing as counsel of the affiant.
PANGUTANA (QUESTION) : Ako usab ikaw pahinumdoman nga unsa man ang
imo isulti karon dinhi magamit pabor o batok kanimo sa Hukmanan, nasabtan
ba nimo kining tanan mo nga mga katungod nga walay naghulga, nagpugos o
nagdagmal kanimo o nagsaad ba ug ganti sa kaulihan? (You are also hereby
reminded that all your statements now will be used as evidence against or in
your favor in any court of justice. Have you understood all your rights with
nobody coercing or forcing you, or mauling or promising a reward in the end?)
TUBAG (ANSWER) : Oo (Yes.)
PANGUTANA (QUESTION) : Andam ka nga mohatag ug libre ug boluntaryo nga

pamahayag? (Are you now ready to give your free and voluntary statement?)
xxx xxx xxx
(START OF CUSTODIAL INVESTIGATION)

xxx xxx x x x.
The trial court observed that as to the confession of appellant, he was fully
apprised of his constitutional rights to remain silent and his right to counsel,
as contained in such confession.28 Appellant was properly assisted by Atty.
Isaias Giduquio. The extrajudicial confession of appellant was subscribed and
sworn to before Judge Cornelio T. Jaca, Municipal Judge of Medellin-
Daanbantayan and acting Judge of MCTC Sta. Fe-Bantayan and Madredijos.
Judge Jaca declared that he explained to the appellant the contents of the
extrajudicial confession and asked if he understood it. He subsequently
acknowledged that when appellant subscribed to his statement, Atty.
Giduquio, witness Batobalonos and his Clerk of Court were present as well as
other people.29
The extrajudicial confession executed by the appellant followed the rigid

requirements of the Miranda doctrine; consequently, it is admissible as
evidence. The lower court was correct in giving credence to the extrajudicial
confession of the appellant.
On cross-examination, appellant Mojello claimed his life was threatened,

thereby inducing him to execute an extrajudicial confession, yet he neither
filed any case against the person who threatened him, nor he report this to
his counsel. He further claimed that he did not understand the contents of
the confession which was read in the Visayan dialect, yet he admits that he
uses the Visayan dialect in his daily discourse.
In People v. Pia,30 we held that "where appellants did not present evidence
of compulsion or duress or violence on their persons; where they failed to
complain to officers who administered the oaths; where they did not institute
any criminal or administrative action against their alleged maltreatment;
where there appears no marks of violence on their bodies and where they did
not have themselves examined by a reputable physician to buttress their
claim, all these should be considered as factors indicating voluntariness of
confessions." The failure of the appellant to complain to the swearing officer
or to file charges against the persons who allegedly maltreated him, although
he had all the chances to do so, manifests voluntariness in the execution of
his confessions.31 To hold otherwise is to facilitate the retraction of his
statements at the mere allegation of threat, torture, coercion, intimidation or
inducement, without any proof whatsoever. People v. Enanoria further
declared that another indicium of voluntariness is the disclosure of details in
the confession which could have been known only to the declarant.32
The confessant bears the burden of proof that his confession is tainted with
duress, compulsion or coercion by substantiating his claim with independent
evidence other than his own self-serving claims that the admissions in his
affidavit are untrue and unwillingly executed.33 Bare assertions will certainly
not suffice to overturn the presumption.34
The test for determining whether a confession is voluntary is whether the

defendant's will was overborne at the time he confessed.35 In cases where
the Miranda warnings have been given, the test of voluntariness should be
subsequently applied in order to determine the probative weight of the
confession.
Accordingly, the presumption of voluntariness of appellant's confession

remains unrebutted by his failure to present independent evidence that the
same was coerced.
It cannot be gainsaid that the constitutional duty of law enforcement officers
is to ensure that a suspect has been properly apprised of his Miranda rights,
including the right to counsel. It is in the paramount public interest that the
foundation of an effective administration of criminal justice relies on the
faithful adherence to the Miranda doctrine. Compliance with Art. III, Sec. 12,
par. 1 by police authorities is central to the criminal justice system; Miranda
rights must in every case be respected, without exception.
Thus, the confession, having strictly complied with the constitutional

requirements under Art. III, Sec. 12, par. 1, is deemed admissible in evidence
against appellant. It follows that the admission of culpability made therein is
admissible. It is therefore not "fruit of the poisonous tree" since the tree itself
is not poisonous.
Appellant also alleges that the lower court gravely erred in holding him guilty
beyond reasonable doubt of the crime of rape with homicide, thereby
sentencing him to suffer the death penalty despite the glaring insufficiency of
circumstantial evidence against him. In his Brief, he argues that the evidence
against him is insufficient to warrant his conviction of rape with homicide.
The categorical admission of the appellant to the crime of rape, coupled with
the corpus delicti as established by the Medico-Legal Report and the
testimony of Rogelio Rayco, leads us to no other conclusion than that of
appellant's guilt for the rape of Lenlen Rayco on December 15, 1996. It passes
the test of moral certainty and must therefore be sustained.
However, the records do not adequately show that appellant admitted to

killing the victim. Neither is the circumstantial evidence sufficient to establish
that by reason or on the occasion of the rape a homicide was committed by
the appellant. The lack of physical evidence further precludes us from
connecting the slaying of the victim to her sexual assault, given the quantum
of proof required by law for conviction. No estimated time of death was given,
which is essential in making a connection with the appellant's story that he
went home after a night of drinking. The time when he and the victim were
headed towards the seashore at or about 9:00 to 10:00 p.m. of December 15,
1996 until the time when the victim's lifeless body was found at or about 4:00
a.m. of December 16, 1996 had a time variance of between six to seven hours.
Although the circumstances may point to the appellant as the most likely
perpetrator of the homicide, the same do not constitute an unbroken chain
of events which would lead us to a reasonable conclusion that appellant was
guilty of killing the victim. In other words, there are gaps in the reconstruction
of facts and inferences surrounding the death of Lenlen. Appellant only
admitted to boxing the victim when she shouted, then hurriedly ran away.
The cause of death of Lenlen was cardio-respiratory attack due to
asphyxiation and physical injuries; she was strangled to death and left on the
seashore as manifested by the frothing in her lungs. No physical, scientific or
DNA evidence was presented to pinpoint appellant as the person who killed
the victim. Fingerprints, if available, would have determined who committed
the homicide. Thus, appellant cannot be convicted of rape with homicide
considering the insufficiency of evidence which thereby created a reasonable
doubt as to his guilt for the said special complex crime.
Appellant should instead be held liable only for the crime of statutory rape,
the victim Lenlen Rayco being then eleven years old. The sexual assault was
necessarily included in the special complex crime charged in the Information
dated May 22, 1997.
The trial court should have awarded damages to the heirs of the victim. Civil
indemnity in the amount of P50,000.00 is awarded upon the finding of the
fact of rape.36 Moral damages in the amount of P50,000.00 may likewise be
given to the heirs of the victim without need of proof in accordance with
current jurisprudence.37
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court
of Bogo, Cebu, Branch 61 in Criminal Case No. B-00224 is AFFIRMED with
MODIFICATION. Appellant Dindo Mojello is found guilty beyond reasonable
doubt of the crime of statutory rape and sentenced to suffer the penalty of
reclusion perpetua. He is also ordered to pay the heirs of the victim, Lenlen
Rayco, P50,000.00 as civil indemnity and P50,000.00 as moral damages.
Costs de oficio.
SO ORDERED.
Davide, Jr., C.J., Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-

Morales, Callejo, Sr., and Azcuna, JJ., concur.
Puno, J., on leave.
Vitug, J., joins the dissent.
Panganiban, J., on official leave.
Quisumbing, J., please see dissenting opinion.
Tinga, J., joins the dissent of J. Quisumbing.
Footnotes
1 Decision penned by Judge Ildefonso G. Mantilla.
2 Original Records, pp. 1-2.
3 TSN, 20 August 1998, p. 4.
4 Id., p. 12.
5 Id., p. 6.
6 Id., p. 15.
7 Id., February 26, 1998, pp. 14-20.
8 Id., pp. 4-7. See also Exhibit "B", Original Records; pp. 18-20.
9 Id., February 12, 1998, pp. 7-9.
10 Id., p. 9.
11 Id., pp. 11-12.
12 Original Records, p. 28.

13 Rollo, p. 59-60.
14 Id., p. 60-64.
15 384 U.S. 436 (1966).
16 G.R. No. L-51770, 20 March 1985, 135 SCRA 465.
17 G.R. Nos. L-61016 and L-61107, 26 April 1983, 121 SCRA 538.
18 Rollo, p. 107.
19 Id.
20 TSN, July 14, 1998, p. 3.
21 Id. at 6-7.
22 G.R. No. 109993, 21 January 1994; People v. Barasina, 229 SCRA 450.
23 G.R. Nos. 100801-02, 25 August 2000, 339 SCRA 1.

24 Id.
25 G.R. Nos. 131837-38, 2 April 2002.
26 Fred E. Inbau and John E. Reid, Criminal Interrogation and Confessions (2d
Ed., 1967), p. 200 citing Lyons v. Oklahoma, 322 U.S. 596 (1944) and other
cases.
27 Original Records, pp. 18-23.
28 Rollo, p. 211.
29 TSN, February 26, 1998, p. 10.
30 G.R. No. L-59604, 14 November 1986, 145 SCRA 581; See also People v.
Villanueva, G.R. No. L-32274, 2 April 1984, 128 SCRA 488.
31 People v. Continente, G.R. Nos. 100801-02, 25 August 2000, 339 SCRA 1.
32 People v. Enanoria, G.R. No. 92957, 8 June 1992, 209 SCRA 594.
33 Id.
34 Id. at 594-595.
35 29 A Am Jur 2d, Evidence 719, citing United States v. Leby (CA7 Wis) 955
F2d 1098, and other cases.
36 People v. Dumlao, G.R. Nos. 130409-10, 27 November 2001, 370 SCRA 571;
People v. Caniezo, G.R. No. 136594, 13 March 2001, 354 SCRA 298; People v.
Mangompit, Jr., G.R. Nos. 139962-63, 7 March 2001, 353 SCRA 833.
37 People v. Burgos, G.R. Nos. 139959-60, 22 November 2001, 370 SCRA 325;
People v. Bismonte, G.R. No. 139563, 22 November 2001, 370 SCRA 305.
16. G.R. No. 164763
Supreme Court
Manila
THIRD DIVISION
ZENON R. PEREZ, G.R. No. 164763

Petitioner,
Present:
YNARES-SANTIAGO, J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CORONA,*
NACHURA, and
REYES, JJ.
PEOPLE OF THE PHILIPPINES Promulgated:

and SANDIGANBAYAN,
Respondents. February 12, 2008
x--------------------------------------------------x
DECISION
REYES, R.T., J.:
PETITIONER Zenon R. Perez seeks a review[1] of his conviction by the

Sandiganbayan[2] for malversation of public funds[3] under Article 217 of the
Revised Penal Code.
This is not a big case but its implications are wide-ranging and the issues We
resolve include the rights to speedy trial and speedy disposition of a criminal
case, the balancing test, due process, and cruel and unusual punishment.
The Facts
On December 28, 1988, an audit team headed by Auditor I Arlene R. Mandin,

Provincial Auditors Office, Bohol,[4] conducted a cash examination on the
account of petitioner, who was then the acting municipal treasurer of
Tubigon, Bohol.
Petitioner was absent on the first scheduled audit at his office on December
28, 1988. A radio message was sent to Loon, the town where he resided, to
apprise him of the on-going audit. The following day, the audit team counted
the cash contained in the safe of petitioner in his presence. In the course of
the audit, the amount of P21,331.79 was found in the safe of petitioner.
The audit team embodied their findings in the Report of Cash Examination,[5]
which also contained an inventory of cash items. Based on the said audit,
petitioner was supposed to have on hand the total amount of P94,116.36,
instead of the P21,331.79, incurring a shortage of P72,784.57.[6]
The report also contained the Cash Production Notice[7] dated January 4,
1989, where petitioner was informed and required to produce the amount of
P72,784.57, and the cash count sheet signed and acknowledged by petitioner
indicating the correctness of the amount of P21,331.79 found in his safe and
counted in his presence. A separate demand letter[8] dated January 4, 1989
requiring the production of the missing funds was sent and received by
petitioner on January 5, 1989.
When asked by the auditing team as to the location of the missing funds,
petitioner verbally explained that part of the money was used to pay for the
loan of his late brother, another portion was spent for the food of his family,
and the rest for his medicine.[9]
As a result of the audit, Arlene R. Mandin prepared a memorandum[10] dated

January 13, 1989 addressed to the Provincial Auditor of Bohol recommending
the filing of the appropriate criminal case against petitioner.
On January 16, 1989, petitioner remitted to the Office of the Provincial

Treasurer of Bohol the amounts of P10,000.00 and P15,000.00, respectively.
On February 14, 1989, petitioner again remitted to the Provincial Treasurer
an additional amount of P35,000.00, followed by remittances made on
February 16, 1989 in the amounts of P2,000.00 and P2,784.00.
An administrative case was filed against petitioner on February 13, 1989. He
filed an Answer[11] dated February 22, 1989 reiterating his earlier verbal
admission before the audit team.
On April 17, 1989, petitioner again remitted the amount of P8,000.00 to the
Provincial Treasurer of Bohol. Petitioner had then fully restituted his shortage
in the amount of P72,784.57. The full restitution of the missing money was
confirmed and shown by the following receipts:[12]
Official Receipt No. Date Issued and Received Amount

8266659 January 16, 1989 P10,000.00
8266660 January 16, 1989 P15,000.00
8266662 February 14, 1989 P35,000.00
8266667 February 16, 1989 P 2,000.00
8266668 February 16, 1989 P 2,784.00
8266675 April 17, 1989 P 8,000.00

TOTAL - P72,784.57
Later, petitioner was charged before the Sandiganbayan with malversation of

public funds, defined and penalized by Article 217 of the Revised Penal Code
in an Information that read:
That on or about the period covering from December 28, 1988 to January 5,
1989, and for sometime prior thereto, in the Municipality of Tubigon,
Province of Bohol, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused Zenon R. Perez, a public officer being then
Acting Municipal Treasury of the said Municipality, by reason of the duties of
his official position was accountable for the public funds collected and
received by him, with grave abuse of confidence did then and there willfully,
unlawfully and feloniously misappropriate, misapply, embezzle and take away
from the said funds the total amount of SEVENTY-TWO THOUSAND SEVEN
HUNDRED EIGHTY-FOUR PESOS and 57/100 (P72,784.57), which said fund
was appropriated and converted by the said accused to his own personal use
and benefit to the damage and prejudice of the government in the
aforementioned amount.
CONTRARY TO LAW.[13] (Underscoring supplied)
On March 1, 1990, petitioner, duly assisted by counsel de parte, entered a

plea of not guilty.[14]
Pre-trial was initially set on June 4-5, 1990 but petitioners counsel moved for
postponement. The Sandiganbayan, however, proceeded to hear the case on
June 5, 1990, as previously scheduled, due to the presence of prosecution
witness Arlene R. Mandin, who came all the way from Bohol.
On said date, the Sandiganbayan dispensed with pre-trial and allowed the
prosecution to present its witness. Arlene R. Mandin testified as narrated
above.
The defense presented evidence through petitioner Zenon R. Perez himself.
He denied the contents of his first Answer[15] to the administrative case filed
against him by the audit team. He claimed it was prepared without the
assistance of counsel and that at the time of its preparation and submission,
he was not in peak mental and physical condition, having been stricken with
diabetes mellitus.[16]
He then revoked his Answer dated February 22, 1989 and filed his second
Answer dated March 2, 1989.[17] In the latter, he vehemently denied that he
incurred a cash shortage P72,784.57.
According to petitioner, the alleged shortage was in the possession and

custody of his accountable personnel at the time of the audit examination.
Several amounts totalling P64,784.00 were remitted to him on separate dates
by his accountable officer, starting January 16, 1989 to February 16, 1989. The
same were turned over by him to the Office of the Provincial Treasurer,
leaving an unremitted sum of P8,000.00 as of February 16, 1989.[18] He
remitted the P8,000.00 on April 17, 1989 to the Provincial Treasurer of Bohol,
fully restoring the cash shortage.
Petitioner further testified that on July 30, 1989, he submitted his Position
Paper[19] before the Office of the Ombudsman, Cebu City and maintained
that the alleged cash shortage was only due to oversight. Petitioner argued
that the government did not suffer any damage or prejudice since the alleged
cash shortage was actually deposited with the Office of the Provincial
Treasurer as evidenced by official receipts.[20]
Petitioner completed his testimony on September 20, 1990. He rested his

case on October 20, 1990.[21]
Sandiganbayan Disposition
On September 24, 2003, the Sandiganbayan rendered a judgment of

conviction with a fallo reading:
WHEREFORE, judgment is hereby rendered finding the accused ZENON R.

PEREZ, GUILTY beyond reasonable doubt of the crime of Malversation of
Public Funds as defined in and penalized by Article 217 of the Revised Penal
Code and, there being one mitigating circumstance without any aggravating
circumstance to offset the same, is hereby sentenced to suffer an
indeterminate penalty of from TEN (10) YEARS and ONE (1) DAY of prision
mayor as the minimum to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of
reclusion temporal as the maximum and to suffer perpetual special
disqualification. The accused Zenon R. Perez is likewise ordered to pay a FINE
equal to the total amount of the funds malversed, which is Seventy-Two
Thousand Seven Hundred Eighty-Four Pesos and Fifty-Seven Centavos (P72,
784.57).
SO ORDERED.[22] (Emphasis in the original)
On January 13, 2004, petitioner filed a motion for reconsideration[23] which

the prosecution opposed on January 28, 2004.[24] Petitioner replied[25] to
the opposition. On August 6, 2004, petitioners motion was denied with
finality.
On September 23, 2004, petitioner resorted to the instant appeal[26] raising

the following issues, to wit:
I. THE HON. SANDIGANBAYAN BY UNDULY AND UNREASONABLY DELAYING
THE DECISION OF THE CASE FOR OVER THIRTEEN (13) YEARS VIOLATED THE
PETITIONERS RIGHT TO SPEEDY DISPOSITION OF HIS CASE AND DUE PROCESS.
II. THE LAW RELIED UPON IN CONVICTING THE PETITIONER AND THE
SENTENCE IMPOSED IS CRUEL AND THEREFORE VIOLATES SECTION 19 OF
ARTICLE III (BILL OF RIGHTS) OF THE CONSTITUTION.[27] (Underscoring
supplied)
Our Ruling
Before addressing petitioners twin assignment of errors, We first tackle the

propriety of petitioners conviction for malversation of public funds.
I. Petitioner was correctly convicted of malversation.
Malversation is defined and penalized under Article 217 of the Revised Penal
Code. The acts punished as malversation are: (1) appropriating public funds
or property, (2) taking or misappropriating the same, (3) consenting, or
through abandonment or negligence, permitting any other person to take
such public funds or property, and (4) being otherwise guilty of the
misappropriation or malversation of such funds or property.[28]
There are four elements that must concur in order that one may be found
guilty of the crime. They are:
(a) That the offender be a public officer;
(b) That he had the custody or control of funds or property by reason of the
duties of his office;
(c) That those funds or property involved were public funds or property for
which he is accountable; and
(d) That he has appropriated, took or misappropriated or consented or,

through abandonment or negligence, permitted another person to take
them.[29]
Evidently, the first three elements are present in the case at bar. At the time
of the commission of the crime charged, petitioner was a public officer, being
then the acting municipal treasurer of Tubigon, Bohol. By reason of his public
office, he was accountable for the public funds under his custody or control.
The question then is whether or not petitioner has appropriated, took or

misappropriated, or consented or through abandonment or negligence,
permitted another person to take such funds.
We rule in the affirmative.
In malversation, all that is necessary to prove is that the defendant received

in his possession public funds; that he could not account for them and did not
have them in his possession; and that he could not give a reasonable excuse
for its disappearance. An accountable public officer may be convicted of
malversation even if there is no direct evidence of misappropriation and the
only evidence is shortage in his accounts which he has not been able to
explain satisfactorily.[30]
Verily, an accountable public officer may be found guilty of malversation even

if there is no direct evidence of malversation because the law establishes a
presumption that mere failure of an accountable officer to produce public
funds which have come into his hands on demand by an officer duly
authorized to examine his accounts is prima facie case of conversion.[31]
Because of the prima facie presumption in Article 217, the burden of evidence
is shifted to the accused to adequately explain the location of the funds or
property under his custody or control in order to rebut the presumption that
he has appropriated or misappropriated for himself the missing funds. Failing
to do so, the accused may be convicted under the said provision.
However, the presumption is merely prima facie and a rebuttable one. The
accountable officer may overcome the presumption by proof to the contrary.
If he adduces evidence showing that, in fact, he has not put said funds or
property to personal use, then that presumption is at end and the prima facie
case is destroyed.[32]
In the case at bar, petitioner was not able to present any credible evidence to
rebut the presumption that he malversed the missing funds in his custody or
control. What is extant in the records is that the prosecution, through witness
Arlene R. Mandin, was able to prove that petitioner malversed the funds
under his custody and control. As testified by Mandin:
Atty. Caballero:
Q: Was Mr. Zenon Perez actually and physically present during the time of
your cash examination?
Witness:
A. Yes, Sir.
Q: From December 28, to January 5, 1989?

A: He was present on December 28, 1988 and January 4 and 5, 1989, Sir.
Q: Did he not make any verbal explanation as the reason why he was short of
about P72,000.00, after you conducted the cash count on January 5, 1989?
A: Yes, Sir, he did.
Q: What did he tell you?

A: He told us that he used some of the money to pay for the loan of his brother
and the other portion was spent for food of his family; and the rest for his
medicine.[33] (Emphasis supplied)
Petitioner gave himself away with his first Answer filed at the Office of the
Provincial Treasurer of Bohol in the administrative case filed against him.
In that Answer, petitioner narrated how he disposed of the missing funds

under his custody and control, to wit: (1) about P30,000.00 was used to pay
the commercial loan of his late brother; (2) he spent P10,000.00 for the
treatment of his toxic goiter; and (3) about P32,000.00 was spent for food and
clothing of his family, and the education of his children. He there stated:
1. That the circumstances surrounding the cash shortage in the total amount
of P72,784.57 during the examination of the respondents cash accounts by
the Commission on Audit on December 28-29, 1988 and January 4-5, 1989 are
as follows, to wit:
(a) That respondent paid the amount of about P30,000.00 to the Philippine
National Bank, Tagbilaran Branch as interests of the commercial loan of his
late brother Carino R. Perez using respondents house and lot as collateral
thereof. If the interests would not be paid, the loan would be foreclosed to
respondents great prejudice and disadvantage considering that he and his
family are residing in said house used as collateral;
(b) That respondent spent the amount of P10,000.00 in connection with the
treatment of his toxic goiter;
(c) That the rest of the amount amounting to about P32,000.00 was spent by
him for his familys foods, clothings (sic), and education of his children because
his monthly salary is not enough for the needs of his family.[34]
By the explicit admission of petitioner, coupled with the testimony of Arlene

R. Mandin, the fourth element of the crime of malversation was duly
established. His conviction thus stands in terra firma.
True it is that petitioner filed another Answer on March 2, 1989 with the
Office of the Provincial Treasurer of Bohol, substantially changing the
contents of his earlier answer of February 22, 1989. His second Answer
averred:
3. That the truth of the matter is that the alleged total cash shortage of
P72,784.57 were still in the possession and custody of his accountable
personnel at the time of the examination held by the auditor of the
Commission on Audit;
4. That out of the alleged cash shortage of P72,784.57, almost all of said
amount were already remitted to him by his accountable personnel after
January 5, 1989, and only the remaining amount of P8,000.00 remains to be
remitted to him by his accountable personnel.[35]
The sudden turnaround of petitioner fails to convince Us. To Our mind,

petitioner only changed his story to exonerate himself, after realizing that his
first Answer put him in a hole, so to speak.
It is contended that petitioners first Answer of February 22, 1989 should not
have been given probative weight because it was executed without the
assistance of counsel.[36]
There is no law, jurisprudence or rule which mandates that an employee

should be assisted by counsel in an administrative case. On the contrary,
jurisprudence is in unison in saying that assistance of counsel is not
indispensable in administrative proceedings.
Walang batas, hurisprudensiya, o tuntunin na nagsasabi na ang isang kawani
ay dapat may tulong ng abogado sa isang kasong administratibo. Sa
katunayan, ang hurisprudensiya ay iisa ang sinasabi na ang pagtulong ng isang
abogado ay hindi kailangang-kailangan sa kasong administratibo.
The right to counsel, which cannot be waived unless the waiver is in writing
and in the presence of counsel, is a right afforded a suspect or accused during
custodial investigation. It is not an absolute right and may be invoked or
rejected in a criminal proceeding and, with more reason, in an administrative
inquiry.[37]
Ang karapatang magkaroon ng abogado, na hindi maaaring talikdan malibang

ang waiver ay nakasulat at sa harap ng abogado, ay karapatang ibinibigay sa
suspek o nasasakdal sa isang custodial investigation. Ito ay hindi lubos na
karapatan at maaring hingin o tanggihan sa isang prosesong kriminal, at lalo
na sa isang administratibong pagsisiyasat.
While investigations conducted by an administrative body may at times be

akin to a criminal proceeding, the fact remains that under existing laws, a
party in an administrative inquiry may or may not be assisted by counsel,
irrespective of the nature of the charges and of respondents capacity to
represent himself, and no duty rests on such body to furnish the person being
investigated with counsel.[38]
Thus, the right to counsel is not imperative in administrative investigations

because such inquiries are conducted merely to determine whether there are
facts that merit disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of government
service.[39]
Kung gayon, ang karapatang magkaroon ng abogado ay hindi sapilitan sa isang

administratibong imbestigasyon sapagkat ito ay ginagawa lamang upang
malaman kung may sapat na batayan na patawan ng disiplina ang
nagkasalang opisyal o empleyado, para mapanatili ang dignidad ng
paglilingkod sa pamahalaan.
There is nothing in the Constitution that says that a party in a non-litigation

proceeding is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The assistance of
lawyers, while desirable, is not indispensable. The legal profession was not
engrafted in the due process clause such that without the participation of its
members, the safeguard is deemed ignored or violated. The ordinary citizen
is not that helpless that he cannot validly act at all except only with a lawyer
at his side.[40]
More than that, petitioners first Answer may be taken against him, as he
executed it in the course of the administrative proceedings below. This is
pursuant to Rule 130, Section 26 of the Rules of Court which provides that the
act, declaration or omission of a party as to a relevant fact may be given
against him. In People v. Lising,[41] the Court held:
Extrajudicial statements are as a rule, admissible as against their respective

declarants, pursuant to the rule that the act, declaration or omission of a
party as to a relevant fact may be given against him. This is based upon the
presumption that no man would declare anything against himself, unless such
declarations were true. A mans act, conduct and declarations wherever made,
provided they be voluntary, are admissible against him, for the reason that it
is fair to presume that they correspond with the truth and it is his fault if they
are not.
There is also no merit in the contention that petitioners sickness affected the
preparation of his first Answer. He presented no convincing evidence that his
disease at the time he formulated that answer diminished his capacity to
formulate a true, clear and coherent response to any query. In fact, its
contents merely reiterated his verbal explanation to the auditing team on
January 5, 1989 on how he disposed of the missing funds.
II. There is no violation of the rights to a speedy disposition of the case and to
due process of law.
We now discuss the right to a speedy trial and disposition, the balancing test,
due process, and cruel and unusual punishment.
Petitioner asserts that his right to due process of law and to speedy
disposition of his case was violated because the decision of the
Sandiganbayan was handed down after the lapse of more than twelve years.
The years that he had to wait for the outcome of his case were allegedly spent
in limbo, pain and agony.[42]
We are not persuaded.
Due process of law as applied to judicial proceedings has been interpreted to

mean a law which hears before it condemns, which proceeds on inquiry, and
renders judgment only after trial.[43] Petitioner cannot complain that his
right to due process has been violated. He was given all the chances in the
world to present his case, and the Sandiganbayan rendered its decision only
after considering all the pieces of evidence presented before it.
Petitioners claim of violation of his right to a speedy disposition of his case

must also fail.
The 1987 Constitution[44] guarantees the right of an accused to speedy trial.

Both the 1973 Constitution in Section 16 of Article IV and the 1987
Constitution in Section 16 of Article III, Bill of Rights, are also explicit in
granting to the accused the right to speedy disposition of his case.[45]
In Barker v. Wingo,[46] the United States Supreme Court was confronted for
the first time with two rigid approaches on speedy trial as ways of eliminating
some of the uncertainty which courts experience protecting the right.[47]
The first approach is the fixed-time period which holds the view that the
Constitution requires a criminal defendant to be offered a trial within a
specified time period.[48] The second approach is the demand-waiver rule
which provides that a defendant waives any consideration of his right to
speedy trial for any period prior to which he has not demanded trial. Under
this rigid approach, a prior demand is a necessary condition to the
consideration of the speedy trial right.[49]
The fixed-time period was rejected because there is no constitutional basis

for holding that the speedy trial can be quantified into a specific number of
days or months.[50] The demand-waiver rule was likewise rejected because
aside from the fact that it is inconsistent with this Courts pronouncements on
waiver of constitutional rights,[51] it is insensitive to a right which we have
deemed fundamental.[52]
The Court went on to adopt a middle ground: the balancing test, in which the
conduct of both the prosecution and defendant are weighed.[53] Mr. Justice
Powell, ponente, explained the concept, thus:
A balancing test necessarily compels courts to approach speedy trial cases on

an ad hoc basis. We can do little more than identify some of the factors which
courts should assess in determining whether a particular defendant has been
deprived of his right. Though some might express them in different ways, we
identify four such factors: Length of delay, the reason for the delay, the
defendants assertion of his right, and prejudice to the defendant.
The length of the delay is to some extent a triggering mechanism. Until there
is some delay which is presumptively prejudicial, there is no necessity for
inquiry into the other factors that go into the balance. Nevertheless, because
of the imprecision of the right to speedy trial, the length of delay that will
provoke such an inquiry is necessarily dependent upon the peculiar
circumstances of the case. To take but one example, the delay that can be
tolerated for an ordinary street crime is considerably less than for a serious,
complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to

justify the delay. Here, too, different weights should be assigned to different
reasons. A deliberate attempt to delay the trial in order to hamper the
defense should be weighted heavily against the government. A more neutral
reason such as negligence or overcrowded courts should be weighted less
heavily but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather
than with the defendant. Finally, a valid reason, such as a missing witness,
should serve to justify appropriate delay. We have already discussed the third
factor, the defendants responsibility to assert his right. Whether and how a
defendant asserts his right is closely related to the other factors we have
mentioned. The strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most particularly by
the personal prejudice, which is not always readily identifiable, that he
experiences. The more serious the deprivation, the more likely a defendant is
to complain. The defendants assertion of his speedy trial right, then, is
entitled to strong evidentiary weight in determining whether the defendant
is being deprived of the right. We emphasize that failure to assert the right
will make it difficult for a defendant to prove that he was denied a speedy
trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be

assessed in the light of the interests of defendants which the speedy trial right
was designed to protect. This Court has identified three such interests: (i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern
of the accused; and (iii) to limit the possibility that the defense will be
impaired. Of these, the most serious is the last, because the inability of a
defendant adequately to prepare his case skews the fairness of the entire
system. If witnesses die or disappear during a delay, the prejudice is obvious.
There is also prejudice if defense witnesses are unable to recall accurately
events of the distant past. Loss of memory, however, is not always reflected
in the record because what has been forgotten can rarely be shown.[54]
(Emphasis supplied)
Philippine jurisprudence has, on several occasions, adopted the balancing

test.
In 1991, in Gonzales v. Sandiganbayan,[55] this Court ruled:
It must be here emphasized that the right to a speedy disposition of a case,

like the right to speedy trial, is deemed violated only when the proceeding is
attended by vexatious, capricious, and oppressive delays; or when unjustified
postponements of the trial are asked for and secured, or when without cause
or justifiable motive a long period of time is allowed to elapse without the
party having his case tried. Equally applicable is the balancing test used to
determine whether a defendant has been denied his right to a speedy trial,
or a speedy disposition of a case for that matter, in which the conduct of both
the prosecution and the defendant are weighed, and such factors as length of
the delay, reason for the delay, the defendants assertion or non-assertion of
his right, and prejudice to the defendant resulting from the delay, are
considered. (Underscoring supplied)
Subsequently, in Dela Pea v. Sandiganbayan,[56] this Court again enumerated

the factors that should be considered and balanced, namely: (1) length of
delay; (2) reasons for the delay; (3) assertion or failure to assert such right by
the accused; and (4) prejudice caused by the delay.[57]
Once more, in Mendoza-Ong v. Sandiganbayan,[58] this Court reiterated that

the right to speedy disposition of cases, like the right to speedy trial, is
violated only when the proceedings are attended by vexatious, capricious and
oppressive delays.[59] In the determination of whether said right has been
violated, particular regard must be taken of the facts and circumstances
peculiar to each case.[60] The conduct of both the prosecution and
defendant, the length of the delay, the reasons for such delay, the assertion
or failure to assert such right by accused, and the prejudice caused by the
delay are the factors to consider and balance.[61]
Moreover, the determination of whether the delays are of said nature is
relative and cannot be based on a mere mathematical reckoning of time.[62]
Measured by the foregoing yardstick, We rule that petitioner was not

deprived of his right to a speedy disposition of his case.
More important than the absence of serious prejudice, petitioner himself did
not want a speedy disposition of his case.[63] Petitioner was duly represented
by counsel de parte in all stages of the proceedings before the
Sandiganbayan. From the moment his case was deemed submitted for
decision up to the time he was found guilty by the Sandiganbayan, however,
petitioner has not filed a single motion or manifestation which could be
construed even remotely as an indication that he wanted his case to be
dispatched without delay.
Petitioner has clearly slept on his right. The matter could have taken a
different dimension if during all those twelve years, petitioner had shown
signs of asserting his right to a speedy disposition of his case or at least made
some overt acts, like filing a motion for early resolution, to show that he was
not waiving that right.[64]
Currit tempus contra decides et sui juris contempores: Time runs against the
slothful and those who neglect their rights. Ang panahon ay hindi panig sa
mga tamad at pabaya sa kanilang karapatan. Vigilantis sed non dormientibus
jura in re subveniunt. The law aids the vigilant and not those who slumber in
their rights. Ang batas ay tumutulong sa mga mapagbantay at hindi sa mga
humihimbing sa kanilang karapatan.
Pending his conviction by the Sandiganbayan, petitioner may have truly lived
in suspicion and anxiety for over twelve years. However, any prejudice that
may have been caused to him in all those years was only minimal. The
supposed gravity of agony experienced by petitioner is more imagined than
real.
This case is analogous to Guerrero v. Court of Appeals.[65] There, the Court
ruled that there was no violation of petitioners right to speedy trial and
disposition of his case inasmuch as he failed seasonably to assert his rights:
In the present case, there is no question that petitioner raised the violation
against his own right to speedy disposition only when the respondent trial
judge reset the case for rehearing. It is fair to assume that he would have just
continued to sleep on his right a situation amounting to laches had the
respondent judge not taken the initiative of determining the non-completion
of the records and of ordering the remedy precisely so he could dispose of
the case. The matter could have taken a different dimension if during all those
ten years between 1979 when accused filed his memorandum and 1989 when
the case was re-raffled, the accused showed signs of asserting his right which
was granted him in 1987 when the new Constitution took effect, or at least
made some overt act (like a motion for early disposition or a motion to
compel the stenographer to transcribe stenographic notes) that he was not
waiving it. As it is, his silence would have to be interpreted as a waiver of such
right.
While this Court recognizes the right to speedy disposition quite distinctly
from the right to a speedy trial, and although this Court has always zealously
espoused protection from oppressive and vexatious delays not attributable
to the party involved, at the same time, we hold that a partys individual rights
should not work against and preclude the peoples equally important right to
public justice. In the instant case, three people died as a result of the crash of
the airplane that the accused was flying. It appears to us that the delay in the
disposition of the case prejudiced not just the accused but the people as well.
Since the accused has completely failed to assert his right seasonably and
inasmuch as the respondent judge was not in a position to dispose of the case
on the merits due to the absence of factual basis, we hold it proper and
equitable to give the parties fair opportunity to obtain (and the court to
dispense) substantial justice in the premises.
III. The law relied upon in convicting petitioner is not cruel and unusual. It
does not violate Section 19, Article III of the Bill of Rights.
What constitutes cruel and unusual punishment has not been exactly
defined.[66] The Eighth Amendment of the United States Constitution,[67]
the source of Section 19, Article III of the Bill of Rights[68] of our own
Constitution, has yet to be put to the test to finally determine what
constitutes cruel and inhuman punishment.[69]
Cases that have been decided described, rather than defined, what is meant
by cruel and unusual punishment. This is explained by the pronouncement of
the United States Supreme Court that [t]he clause of the Constitution, in the
opinion of the learned commentators, may be therefore progressive, and is
not fastened to the obsolete, but may acquire meaning as public opinion
becomes enlightened by a humane justice.[70]
In Wilkerson v. Utah,[71] Mr. Justice Clifford of the United States Supreme

Court opined that [d]ifficulty would attend the effort to define with exactness
the extent of the constitutional provision which provides that cruel and
unusual punishments shall not be inflicted; but it is safe to affirm that
punishments of torture, x x x and all others in the same line of unnecessary
cruelty, are forbidden by that amendment to the constitution.[72]
In In Re: Kemmler,[73] Mr. Chief Justice Fuller of that same Court stated that
[p]unishments are cruel when they involve torture or a lingering death; but
the punishment of death is not cruel within the meaning of that word as used
in the constitution. It implies x x x something more inhuman and barbarous,
something more than the mere extinguishment of life.[74]
Again, in Weems v. U.S.,[75] Mr. Justice McKenna held for the Court that
cadena temporal and its accessory penalties has no fellow in American
legislation. Let us remember that it has come to us from a government of a
different form and genus from ours. It is cruel in its excess of imprisonment
and that which accompanies and follows imprisonment. It is unusual in
character. Its punishments come under the condemnation of the Bill of Rights,
both on account of their degree and kind. And they would have those bad
attributes even if they were found in a Federal enactment, and not taken from
an alien source.
In Echegaray v. Executive Secretary,[76] this Court in a per curiam Decision

held that Republic Act No. 8177,[77] even if it does not provide in particular
the details involved in the execution by lethal injection, is not cruel, degrading
or inhuman, and is thus constitutional. Any infliction of pain in lethal injection
is merely incidental in carrying out the execution of the death penalty and
does not fall within the constitutional proscription against cruel, degrading or
inhuman punishment.[78]
The Court adopted the American view that what is cruel and unusual is not
fastened to the obsolete but may acquire meaning as public opinion becomes
enlightened by humane justice and must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.[79]
In his last ditch effort to exculpate himself, petitioner argues that the penalty
meted for the crime of malversation of public funds that ha[ve] been
replenished, remitted and/or returned to the government is cruel and
therefore unconstitutional, as government has not suffered any damage.[80]
The argument is specious on two grounds.
First. What is punished by the crime of malversation is the act of a public

officer who, by reason of the duties of his office, is accountable for public
funds or property, shall appropriate the same, or shall take and
misappropriate or shall consent, or through abandonment or negligence shall
permit any other person to take such public funds or property, wholly or
partially, or shall otherwise be guilty of the misappropriation or malversation
of such funds or property.[81]
Payment or reimbursement is not a defense for exoneration in malversation;

it may only be considered as a mitigating circumstance. This is because
damage is not an element of malversation.
Second. There is strong presumption of constitutionality accorded to statutes.
It is established doctrine that a statute should be construed whenever

possible in harmony with, rather than in violation of, the Constitution.[82] The
presumption is that the legislature intended to enact a valid, sensible and just
law and one which operates no further than may be necessary to effectuate
the specific purpose of the law.[83] It is presumed that the legislature has
acted within its constitutional powers. So, it is the generally accepted rule that
every statute, or regularly accepted act, is, or will be, or should be, presumed
to be valid and constitutional.[84]
He who attacks the constitutionality of a law has the onus probandi to show
why such law is repugnant to the Constitution. Failing to overcome its
presumption of constitutionality, a claim that a law is cruel, unusual, or
inhuman, like the stance of petitioner, must fail.
IV. On the penalty
The Sandiganbayan sentenced petitioner to an indeterminate sentence of ten

(10) years and one (1) day of prision mayor, as minimum, to fourteen (14)
years and eight (8) months of reclusion temporal, as maximum. In imposing
the penalty, it found that petitioner was entitled to the mitigating
circumstance of payment which is akin to voluntary surrender.
Article 217 penalizes malversation in the following tenor:
Article 217. Malversation of public funds or property. Presumption of

malversation. Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same, or shall
take and misappropriate or shall consent, or through abandonment or
negligence shall permit any other person to take such public funds or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property.
xxxx
4. The penalty of reclusion temporal in its medium and maximum periods,

if the amount involved is more than 12,000 but is less than 22,000 pesos. If
the amount exceeds the latter, the penalty shall be reclusion temporal in its
maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the penalty of
perpetual special disqualification and a fine equal to the amount of the funds
malversed or equal to the total value of the property embezzled.
The failure of a public officer to have duly forthcoming any public funds or
property with which he is chargeable upon demand by any duly authorized
officer, shall be prima facie evidence that he has put such missing funds or
property to personal uses. (Underscoring supplied)
The amount malversed totalled P72,784.57. The prescribed penalty is

reclusion temporal in its maximum period to reclusion perpetua, which has a
range of seventeen (17) years, four (4) months and one (1) day to forty (40)
years.
However, the commission of the crime was attended by the mitigating

circumstance akin to voluntary surrender. As correctly observed by the
Sandiganbayan, petitioner restituted the full amount even before the
prosecution could present its evidence. That is borne by the records.
It bears stressing that the full restitution of the amount malversed will not in
any way exonerate an accused, as payment is not one of the elements of
extinction of criminal liability. Under the law, the refund of the sum
misappropriated, even before the commencement of the criminal
prosecution, does not exempt the guilty person from liability for the
crime.[85] At most, then, payment of the amount malversed will only serve
as a mitigating circumstance[86] akin to voluntary surrender, as provided for
in paragraph 7 of Article 13[87] in relation to paragraph 10[88] of the same
Article of the Revised Penal Code.
But the Court also holds that aside from voluntary surrender, petitioner is
entitled to the mitigating circumstance of no intention to commit so grave a
wrong,[89] again in relation to paragraph 10 of Article 13.[90]
The records bear out that petitioner misappropriated the missing funds under
his custody and control because he was impelled by the genuine love for his
brother and his family. Per his admission, petitioner used part of the funds to
pay off a debt owed by his brother. Another portion of the misappropriated
funds went to his medications for his debilitating diabetes.
Further, as shown earlier, petitioner restituted all but Eight Thousand Pesos
(P8,000.00) of the funds in less than one month and a half and said small
balance in three (3) months from receipt of demand of COA on January 5,
1999. Evidently, there was no intention to commit so grave a wrong.
Of course, the end does not justify the means. To condone what petitioner
has done because of the nobility of his purpose or financial emergencies will
become a potent excuse for malefactors and open the floodgates for more
corruption in the government, even from small fry like him.
The bottom line is a guilty person deserves the penalty given the attendant
circumstances and commensurate with the gravity of the offense committed.
Thus, a reduction in the imposable penalty by one degree is in order. Article
64 of the Revised Penal Code is explicit:
Art. 64. Rules for the application of penalties which contain three periods. In
cases in which the penalties prescribed by law contains three periods,
whether it be a single divisible penalty or composed of three difference
penalties, each one of which forms a period in accordance with the provisions
of Articles 76 and 77, the courts shall observe for the application of the
penalty, the following rules, according to whether there are no mitigating or
aggravating circumstances:
xxxx
5. When there are two or more mitigating circumstances and no aggravating

circumstances are present, the court shall impose the penalty next lower to
that prescribed by law, in the period that it may deem applicable, according
to the number and nature of such circumstances. (Underscoring supplied)
Considering that there are two mitigating circumstances, the prescribed

penalty is reduced to prision mayor in its maximum period to reclusion
temporal in its medium period, to be imposed in any of its periods. The new
penalty has a range of ten (10) years and one (1) day to seventeen (17) years
and four (4) months. Applying the Indeterminate Sentence Law,[91] the
maximum term could be ten (10) years and one (1) day of prision mayor
maximum, while the minimum term is again one degree lower[92] and could
be four (4) years, two (2) months and one (1) day of prision correccional
maximum.
In the 1910 case of U.S. v. Reyes,[93] the trial judge entered a judgment of
conviction against the accused and meted to him the penalty of three years
imprisonment, to pay a fine of P1,500.00, and in case of insolvency to suffer
subsidiary imprisonment at the rate of one day for every P2.50 that he failed
to pay, which subsidiary imprisonment, however, should not exceed one third
of the principal penalty and to be perpetually disqualified for public office and
to pay the costs. This was well within the imposable penalty then under
Section 1 of Act No. 1740,[94] which is imprisonment for not less than two
months nor more than ten years and, in the discretion of the court, by a fine
of not more than the amount of such funds and the value of such property.
On appeal to the Supreme Court, the accuseds conviction was affirmed but
his sentence was modified and reduced to six months. The court, per Mr.
Justice Torres, reasoned thus:
For the foregoing reasons the several unfounded errors assigned to the
judgment appealed from have been fully refuted, since in conclusion it is fully
shown that the accused unlawfully disposed of a portion of the municipal
funds, putting the same to his own use, and to that of other persons in
violation of Act. No. 1740, and consequently he has incurred the penalty
therein established as principal of the crime of misappropriation; and even
though in imposing it, it is not necessary to adhere to the rules of the Penal
Code, the court in using its discretional powers as authorized by law, believes
that the circumstances present in the commission of crimes should be taken
into consideration, and in the present case the amount misappropriated was
refunded at the time the funds were counted.[95] (Underscoring supplied)
We opt to exercise an analogous discretion.
WHEREFORE, the Decision of the Sandiganbayan dated September 24, 2003

is AFFIRMED with the MODIFICATION that petitioner is hereby sentenced to
suffer the indeterminate penalty of four (4) years, two (2) months and one (1)
day of prision correccional, as minimum term, to ten (10) years and one (1)
day of prision mayor, as maximum term, with perpetual special
disqualification. He is likewise ORDERED to pay a fine of P72,784.57, the
amount equal to the funds malversed.
Costs against petitioner.
SO ORDERED.
RUBEN T. REYES
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA


Associate Justice
ATTESTATION
Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
CERTIFICATION
REYNATO S. PUNO
Chief Justice
* Vice Associate Justice Minita V. Chico-Nazario. Justice Nazario is on official
leave per Special Order No. 484 dated January 11, 2008.
[1] Under Rule 45 of the Rules of Court per A.M. No. 00-5-03-SC.
[2] Penned by Associate Justice Diosdado M. Peralta, with Associate Justices
Teresita Leonardo-De Castro (now a member of this Court) and Francisco H.
Villaruz, Jr., concurring; rollo, pp. 25-38.
[3] Criminal Case No. 14230.
[4] Pursuant to Office Order No. 88-55 dated December 22, 1988 issued by
Provincial Auditor Fausto P. De La Serna. (Annex B)
[5] Exhibit C.
[6] Exhibit E.
[7] Exhibit D.
[8] Exhibit F.
[9] TSN, June 25, 1990, p. 25.
[10] Exhibit E.
[11] Exhibit G.
[12] Exhibits H & H-1 to H-5.
[13] Rollo, pp. 25-26.
[14] Id. at 26.
[15] Exhibit G.
[16] Exhibits 1 to 3.
[17] Exhibit 5-B.
[18] Exhibit 5.
[19] Exhibit 7.
[20] Exhibits 7-a to 7-f.
[21] Rollo, p. 26.
[22] Id. at 37.
[23] Id. at 39-44.
[24] Id. at 45-48.
[25] Id. at 49-52.
[26] Id. at 11-24.
[27] Id. at 17.
[28] Reyes, L.B., The Revised Penal Code (Book II), 15th ed., rev. 2001, pp. 393-
394.
[29] Id. at 394. See also Nizurtado v. Sandiganbayan, G.R. No. 107838,
December 7, 1994, 239 SCRA 33, 42; Peanueva, Jr. v. Sandiganbayan, G.R. Nos.
98000-02, June 30, 1993, 224 SCRA 86, 92.
[30] De Guzman v. People, G.R. No. L-54288, December 15, 1982, 119 SCRA
337, 347 (emphasis ours), citing Aquino, The Revised Penal Code, Vol. II, 1976
ed., citing People v. Mingoa, 92 Phil. 856 (1953); U.S. v. Javier, 6 Phil. 334
(1906); U.S. v. Melencio, 4 Phil. 331 (1905). See also Quizo v. Sandiganbayan,
G.R. No. L-77120, April 6, 1987, 149 SCRA 108.
[31] Quizo v. Sandiganbayan, supra at 113, citing U.S. v. Catolico, 18 Phil. 504
(1911).
[32] Id.
[33] TSN, June 5, 1990, p. 25.
[34] Exhibit G.
[35] Exhibit 5.
[36] TSN, September 20, 1990, pp. 37-39.
[37] Lumiqued v. Exevea, G.R. No. 117565, November 18, 1997, 282 SCRA 125,
138-139.
[38] Id. at 140, citing Bancroft v. Board of Governors of Registered Dentists of
Oklahoma, 210 P. 2d 666 (1949).
[39] Id. at 141.
[40] Nera v. The Auditor General, G.R. No. L-24957, August 3, 1988, 164 SCRA
1.
[41] G.R. Nos. 106210-11, January 30, 1998, 285 SCRA 595, 624, citing Vicente,
F., Evidence, 1990 ed., p. 305.
[42] Rollo, p. 19. Petitioner claims that he had to wait for more than thirteen
(13) years. However, this is erroneous. The records would show that he rested
his case on October 20, 1990, while the Sandiganbayan handed down its
questioned Decision on September 24, 2003, or after the lapse of twelve (12)
years and eleven (11) months.
[43] 16C C.J.S. Constitutional Law, Sec. 946.
[44] Bill of Rights of the Constitution (1987), Art. III, Sec. 14 provides:
(1) No person shall be heard to answer for a criminal offense without due
process of law.
(2) In all criminal prosecutions, the accused shall be presumed innocent until
the contrary is proved, and shall enjoy the right to be heard by himself and
counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witness face to
face, and to have compulsory process to secure the attendance of witnesses
and the production of evidence in his behalf. However, after arraignment,
trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable. (Emphasis
supplied)
[45] All persons shall have the right to a speedy disposition of their cases
before all judicial, quasi-judicial, or administrative bodies.
[46] 407 US 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
[47] Barker v. Wingo, id. at 112.
[48] Id.
[49] Id. at 114.
[50] Id. at 113.
[51] Id. at 114.
[52] Id. at 116.
[53] Id.
[54] Id. at 116-118.
[55] G.R. No. 94750, July 16, 1991, 199 SCRA 298, 307.
[56] G.R. No. 144542, June 29, 2001, 360 SCRA 478.
[57] Dela Pea v. Sandiganbayan, id. at 485, citing Blanco v. Sandiganbayan,
G.R. Nos. 136757-58, November 27 2000, 346 SCRA 108; Dansal v. Fernandez,
Sr., G.R. No. 126814, March 2, 2000, 327 SCRA 145, 153; Alvizo v.
Sandiganbayan, G.R. No. 101689, March 17, 1993, 220 SCRA 55, 63.
[58] G.R. Nos. 146368-69, October 18, 2004, 440 SCRA 423, 425-426.
[59] Mendoza-Ong v. Sandiganbayan, id., citing Dimayacyac v. Court of
Appeals, G.R. No. 136264, May 28, 2004, 430 SCRA 121.
[60] Id., citing Rodriguez v. Sandiganbayan, G.R. No. 141710, March 3, 2004,
424 SCRA 236.
[61] Id., citing Ty-Dazo v. Sandiganbayan, G.R. Nos. 143885-86, January 21,
2002, 374 SCRA 200, 203.
[62] Id., citing Binay v. Sandiganbayan, G.R. Nos. 120681-83 & 128136,
October 1, 1999, 316 SCRA 65.
[63] See Barker v. Wingo, supra note 46.
[64] See Dela Pea v. Sandiganbayan, supra note 56, at 488.
[65] G.R. No. 107211, June 28, 1996, 257 SCRA 703, 715-716.
[66] Weems v. U.S., 217 US 349, 30 S. Ct. 544, 54 L. Ed. 793, 19 Am. Ann. Cas.
705 (1910).
[67] The Eighth Amendment of the United States Constitution provides:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted. (Emphasis supplied)
[68] Bill of Rights of the Constitution (1987), Art. III, Sec. 19 provides:
Sec. 19. (1) Excessive fines shall not be imposed, nor cruel, degrading or
inhuman punishment inflicted. Neither shall death penalty be imposed,
unless, for compelling reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty already imposed shall be reduced
to reclusion perpetua.
(2) The employment of physical, psychological, or degrading punishment
against any prisoner or detainee, or the use of substandard or inadequate
penal facilities under subhuman condition shall be dealt with by law.
(Emphasis supplied)
[69] See note 43.
[70] Weems v. U.S., supra note 66, citing Mackin v. U.S., 117 US 348, 350, 29
L. Ed. 909, 910, 6 S. Ct. Rep. 777; Ex parte Wilson, 114 US 417, 427, 29 L. Ed.
89, 92.
[71] 99 US 130.
[72] Wilkerson v. Utah, id. at 135.
[73] 136 US 436, 10 S. Ct. 930, 34 L. Ed. 519.
[74] In Re: Kemmler, id. at 524.
[75] Supra note 66.
[76] G.R. No. 132601, October 12, 1998, 297 SCRA 754.
[77] An Act Designating Death by Lethal Injection as the Method of Carrying
Out Capital Punishment, Amending For the Purpose Article 81 of the Revised
Penal Code, As Amended by Section 24 of Republic Act No. 7659. Sections 17
and 19 of the Rules and Regulations to Implement Republic Act No. 8177
were, however, declared INVALID: (a) Section 17 because it contravenes
Article 83 of the Revised Penal Code, as amended by Section 25 of Republic
Act No. 7659; and (b) Section 19 because it fails to provide for review and
approval of the Lethal Injection Manual by the Secretary of Justice, and
unjustifiably makes the manual confidential, hence, unavailable to interested
parties including the accused/convict and counsel.
[78] Echegaray v. Executive Secretary, supra at 777.
[79] Id. at 778-779, citing Ex Parte Granvel, 561 SW 2d 503, 509 (1978), citing
Trop v. Dulles, 356 US 86, 78 S. Ct. 590, 2 L. Ed. 2d 630 (1958); Estella v.
Gamble, 429 US 97, 97 S. Ct. 285, 290, 50 L. Ed. 2d 251, 258-259 (1976).
[80] Rollo, p. 22.
[81] See Revised Penal Code, Art. 217.
[82] Cruz v. Secretary of Environment and Natural Resources, G.R. No.
135385, December 6, 2000, 347 SCRA 128, citing San Miguel Corporation v.
Avelino, G.R. No. L-39699, March 14, 1979, 89 SCRA 69; Phil. Long Distance
Telephone Co. v. Collector of Internal Revenue, 90 Phil. 674 (1952);
Teehankee v. Rovira, 75 Phil. 634 (1945).
[83] Id., citing In re Guarina, 24 Phil. 37 (1913).
[84] 16A C.J.S. Constitutional Law, Sec. 96(a).
[85] U.S. v. Reyes, 14 Phil. 718 (1910). See also People v. Livara, 94 Phil. 771
(1954).
[86] Estamos con el. Hon. Procurador General en que ha lugar a estimar la
devolucin hecha por e apelante de la cantidad defraudada como
circumstancia atenuante especial sin ninguna agravante que la compense.
Esto as, procede condenar al apelante a sufrir en su grado minmo la pena
sealada por la ley. (People v. Velasquez, 72 Phil. 98, 100 [1941]) (Italics
supplied)
[87] Revised Penal Code, Art. 13, Par. 7. That the offender had voluntarily
surrendered himself to a person in authority or his agents, or that he had
voluntarily confessed his guilt before the court prior to the presentation of
the evidence for the prosecution.
[88] Id., Sec. 10. And, finally, any other circumstance of a similar nature and
analogous to those above mentioned.
[89] Revised Penal Code, Art. 13, Par. 3. That the offender had no intention to
commit so grave a wrong as that committed.
[90] Supra note 88.
[91] Act No. 4103, as amended, otherwise known as the Indeterminate
Sentence Law, provides:
Section 1. Hereafter, in imposing a prison sentence for an offense punished
by the Revised Penal Code, or its amendments, the court shall sentence the
accused to an indeterminate sentence the maximum term of which shall be
that which, in view of the attending circumstances, could be properly
imposed under the rules of the said Code, and the minimum of which shall be
within the range of the penalty next lower to that prescribed by the Code for
the offense; and if the offense is punished by any other law, the court shall
sentence the accused to an indeterminate sentence, the maximum term of
which shall not exceed the maximum fixed by said law and shall not be less
than the minimum term prescribed by the same. (As amended by Act. No.
4225)
[92] Guevarra v. Court of Appeals, G.R. No. 41061, July 16, 1990, 187 SCRA
484.
[93] 14 Phil. 718, 721 (1910).
[94] Enacted on October 3, 1907.
[95] Id. at 725-726.
17. G.R. No. L-18619
SUPREME COURT
Manila
EN BANC
G.R. No. L-18619 February 20, 1922
GEORGE H. GANAWAY, petitioner,

vs.
J. W. QUILLEN, Warden of Bilibid Prison, respondent.
G. E. Campbell for petitioner.

Attorney-General Villareal for respondent.
MALCOLM, J.:
The petitioner in this original action in habeas corpus asks that he be released
from Bilibid Prison because of imprisonment for debt in a civil cause growing
out if a contract. The return of the Attorney-General alleges as the reason for
petitioner's incarceration in Bilibid Prison an order of the Hon. George R.
Harvey, judge of First Instance of the city of Manila, issued under authority of
Chapter XVII of the code if Civil Procedures. As standing alone the petition for
habeas corpus was fatally defective in its allegations, this court on its motion,
ordered before it the record of the lower court in the case entitled Thomas
Casey et al. vs. George H. Ganaway.
The complaint in the civil case last mentioned is grounded on a contract, and
asks in effect for an accounting. That this is true is shown by the phraseology
of the complaint which repeatedly speaks of an agreement entered into by
the plaintiffs and the defendants, by Exhibit A, relating to the publication of a
book named "Forbes' Memoirs," and which describes itself as "this contract,"
by the receipt attached to Exhibit A, which mentions "the contract," and by
the order of the trial judge on demurrer which says that "the plaintiffs allege
a contract with the defendant and a breach of the contract by the defendant.
The constitutional prohibition in effect in the Philippine Islands is in the same

category ass those States in which imprisonment for debt is absolutely
prohibited. The Constitution of the Philippine Islands, unlike some States in
the American Union, makes no exception in cases of fraud. The prohibition in
the Philippine Bill, reproduced in the Jones Law, is "that no person shall be
imprisoned for debt." It should be given the same interpretation which similar
provisions have received in the United States.
Abolition of imprisonment for debt was brought about by the force of public
opinion which looked with abhorrence on statutory provision which
permitted the cruel imprisonment of debtors. The people sought to prevent
the use of the power of the State to coerce the payment of debts. The control
of the creditor over the person of his debtor was abolished by human
statutory and constitutional provisions.
One of the first States to adopt the constitutional provision in the absolute
form appearing in this jurisdiction was Alabama. In the leading case of Carr
vs. State of Alabama ([1895], 106 Ala., 35; 34 L. R. A., 634), the Supreme Court
of Alabama held that a statute making it a misdemeanor for a person engaged
in banking to receive a deposit of money or other thing of value knowing
himself to be in failing circumstances or insolvent, and providing that upon
conviction he shall be fined not less than double the amount of such deposit,
one-half of which shall be paid to the depositor, but that payment to the
depositor of the amount deposited with costs, before conviction, shall be a
complete defense to any prosecution under the statute, was void. The court,
speaking through the leader Justice McClellan, made the following
observations:
The elimination of the exception as to frauds was a pregnant omission, which

left the guaranty of immunity from imprisonment to the debtor to apply to all
cases of debt, whether they involved fraud or not. So that the statute we are
considering can derive no aid from the idea that the receipt of a deposit by a
banker under the circumstances stated is a fraud, and hence that the
transactions would constitute "a case of fraud", since even in such cases there
can be no imprisonment for debt.
The imprisonment for debt" which the framers of constitutions embodying

this provision doubtless had most prominently in mind was imprisonment
upon process issuing in civil actions the object and sole purpose of which were
the collections of debts. It was to remove the evils incident to the system of
taking the debtor's person upon a capias ad satisfaciendum that this organic
inhibition came primarily to be ordained. But the effect of its ordination has
been to establish a public policy much broader in its influence upon legislation
and operation upon judicial proceedings than would have sufficed for the
eradication of the ills which attended upon the recovery, or attempted
recovery, of debts by restrain of the debtor's person. This policy is inimical
alike to the incarceration of a debtor as a means of coercing payment, and to
his ,punishment by imprisonment for a failure to pay, at least when such
failure results from inability.
The "debt" intended to be covered by the constitutional guaranty has a well-

defined meaning. Organic provisions relieving from imprisonment for debt,
were intended to prevent the commitment for debtors to prison for liabilities
arising from actions ex contractu. The inhibition was never meant to conclude
damages arising in actions ex delicto, for the reason that the damages
recoverable therein do not arise from any contract entered into between the
parties, but are imposed upon the defendant for the wrong he has done and
are considered as a punishment therefor, nor to fines and penalties imposed
by the courts in criminal proceedings as punishments for crime. (Freeman vs.
U. S. [1910], 217 U.S., 539.) In this connection, it may be said that the reason
for the decision of the Supreme Court of Georgia in the case of Harris vs.
Bridges ( [1856], 57 Ga., 407), mainly relied upon by the Attorney-General,
will be found to be because the action was one in tort.
The Code of Civil Procedure took effect on October 1, 1901; that is, prior to
the enactment of the Philippine Bill. Chapter XVII of the Code is entitled
"Arrest of Defendant." A comparison of the provisions of the Code of Civil
Procedure in the Philippines with the Code of Civil Procedure of California
shows clearly that the Philippine provisions on the subject of arrest of
defendants were taken bodily from the California Code. However, the
constitutional provision in California differs from ours because it declares that
"no person shall be imprisoned for debt, in any civil action on mesne or final
process, unless in cases fraud." We are, therefore, not bound by the decisions
of the Supreme Court of California because, obviously, our basic
constitutional provision must override any statutory provision in conflict
therewith.
A quite similar question has been once before presented to this court. Two
Chinese, under the firm name of Sang Kee, commenced an action in the Court
of First Instance of the city of Manila against the Chinaman Tan Cong, to
recover judgment for the sum of P30,000. The plaintiffs alleged in their
petition, among other things, that on or about the first day of January, 1904,
the defendant was employed by the plaintiffs as a general agent for their
mercantile establishment; that the defendant had been requested to turn
over the funds, personal property, stocks, etc., to the plaintiffs, but that he
had refused to do so. The detention of the defendant was ordered by the
Judge of First Instance. A petition for habeas corpus was presented to the
Supreme Court, and in a learned decision, the vacation judge, Mr. Justice
Johnson held that the provision of section 5 of the Philippine Bill expressly
prohibited the imprisonment of citizens of the Philippine Islands in actions for
the recovery of money in a cause of action arising on a contract, and ordered
the release from imprisonment of the petitioner. We would now make the
decision, just described, the authoritative decision of the Court sitting in banc,
(See Tan Cong vs. Stewart [1907], 5 Off, Gaz., 365.)1
It is clear that the action ending in the Court of First Instance of the city of
Manila in which Thomas Casey et al. are plaintiffs and George H. Ganaway is
the defendant, is one predicated on an obligation arising upon a contract.
Consequently, the imprisonment of the petitioner is in contravention of
organic law. It is for us in the Philippine Islands to let no obstacle interfere
with a reasonable enforcement of the enlightened principle of free
government relating to imprisonment for debt. It may, however, be
appropriate to remark that our holding need not be taken as going to the
extent of finding Chapter XVII of the Code of Civil Procedure invalid and
should be understood as limited to the facts before us and as circumscribed
by the various exception to the constitutional prohibition.
This court has, heretofore, in a minute order, directed the discharge from
imprisonment of the petitioner, and this decision is in explanation thereof.
The minute order will, therefore, stand as the authoritative adjudication of
the court. Costs de officio. So ordered.
Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ.,
concur.
Footnotes
1[No. 4073. June 14, 1907]
TAN CONG, petitioner, vs. M. L. STEWART, Acting Director of Prisons,

respondent.
L. M. Southworth for petitioner.

Gibbs and Gale for respondent.
JOHNSON, J.:
On the 31st day of May, 1907, Tang Lap Ting and Ho Tung Shan, partners
under the firm name of Sang Kee, by their attorneys commenced an action in
;the Court if First Instance of the city of Manila against the petitioner herein,
for the purpose of recovering judgment for the sum of 30,000 pesos, and such
additional sum as may be found to be due said plaintiffs upon an accounting
of the business of the said copartnership.
The plaintiffs alleged in their petition that they were residents of the city of
Victoria, colony of Hongkong; that they were partners and coowners in a
mercantile establishment in the city of Manila, under the industrial name of
Sang Kee; that on or about 1st day of January, 1904, the petitioner herein was
employed by the said plaintiffs as a general agent for said mercantile
establishment; that said petitioner (or defendant in that action) on or about
the said 1st day of January, 1904, took charge of said business and all the
property, merchandise, funds, credits, etc., of said mercantile establishment
and continued in the management of said business as such general agent until
the end of the year 1905 or the beginning of the year 1906, when said
mercantile establishment was closed by order and direction of the said
plaintiffs; that at the time said mercantile establishment was closed the
petitioner (or defendant in that action) had in his possession belonging to the
said plaintiffs, personal property, stocks, credits, etc., amounting to the sum
of 30,000 pesos; that the said petitioner had been requested to turn over the
said funds, personal property, stocks, etc., to the plaintiffs, but that he had
refused so to do. On the same day one Chan A. Chong, as attorney for the said
plaintiffs, filed an affidavit stating, among other things, that he, as such
attorney for the said plaintiffs, had on various occasions asked the said
petitioner for a settlement of the accounts of the said business of Sang Kee
and that the books, accounts, and balance of the business, etc., be delivered
to him; that the said petitioner had failed and refused to comply with said
request; that the petitioner had refused to indicate the whereabouts of the
books and balance pertaining to the business; that the petitioner had closed
all his private business in the city of Manila; that he had applied to the
customs authorities of the city of Manila for a certificate to allow him as a
Chinese merchant to leave the Philippine Islands for China; that he intended
to leave Manila either on May 31 or June 1, 1907, that he intended to take
with him out of the Philippine Islands a considerable amount of money
obtained by the unlawful investment of the balance of the assets of said firm
Sang Kee; that he intended to leave the Philippine Islands with the intention
of defrauding his creditors; that the action commenced by the plaintiffs
against the petitioner herein was for the goods and money concealed,
misappropriated, and used by the petitioner as manager and agent for the
plaintiffs during the performance of his commission and for the voluntary
violations of his duties; that the action commenced against him was for the
purpose of recovering the possession of personal property unlawfully
retained by the petitioner herein, who had seizure; that the petitioner was
guilty of fraud; that the action was brought for concealing and selling property
which should have been retained by the petitioner, and that the petitioner
had transferred and sold his property with the intention of defrauding his
creditors. On the same day the judge of the Court of First Instance of the city
of Manila issued the following order for the detention of the petitioner
herein:
"(Tang Lap Ting y otro, contra Chung Chew Kon, etc., Orden de detencion
del demandado)
"AL SHERIFF DE MANILA, salud:
"Por cuanto que Tang Lap Ting y Ho Tung Shan de Victoria, Colonia de
Hongkong se han querellado bajo juramento ante mi, Juez del Juzgado de
Primera Instancia de la Ciudad de Manila, que Chun Chew Kong alias Chino
Kon alias Tan Congco de Manila, debe a dichos Tang Lap Ting, Ho Tung Shan
(demandantes) la cantidad de treinta mil pesos (P30,000) y que dicho Chun
Chew Kong ha malversado y apropiado dichos fondos,
"Y por cuanto el demandante ha prestado la fianza que, marca la ley.
"Nosotros, por lo tanto, le ordenamos que detenga en seguida a dicho

demandado y le traiga ante este juzgado, a menos que el demandado preste
una fianza en la cantidad de treinta mil pesos (P30,000) conforme a derecho,
y que V. devuelva a dicho juzgado este mandamiento con sus diligencias,
"Firmado de mi mano este dia 31 de mayo de 1907.
(Signed by Judge of the Court of First Instance

of the city of Manila.)"
Upon the foregoing order of detention, the petitioner herein was arrested
and turned over to the warden of Bilibid Prison and has been detained there
since said date as a prisoner.
On the 6th day of June the petitioner herein presented a petition for a writ of
habeas corpus, alleging that he was imprisoned and restrained of liberty
illegally and that said illegality consisted in that he was deprived of his liberty
without due process of law and his imprisonment for debt is in violation of
the provisions of the Bill of Rights included in the Act of Congress of July 1,
1902.
Upon these allegations the writ of habeas corpus was issued returnable
before the writer, acting as vacation judge, upon the 7th day of June, 1907, at
10 o'clock a. m.
The petitioner alleges that he is imprisoned for debt and that imprisonment
for debt is prohibited in the Philippines Islands by virtue of one of the
provisions of section 5 of the Act of Congress of July 1, 1902, known as the
Philippine Bill. Said section 5, among other things, provides "that no person
shall be imprisonment for debt."
The defendant was arrested and imprisoned by virtue of the provisions of

chapter 17 of Act No. 190 of the Philippine Commission, known as the "Code
of Procedure in Civil Actions." Said Act No. 190 became effective in the
Philippine Islands on the 1st day of October, 1901. Said Act of Congress
became effective upon the 1st day of July, 1902. The petitioner claims that
the above quoted provisions of section 5 of the Act of Congress repealed said
chapter 17 of Act No. 190, providing for imprisonment for debt and that
therefore he cannot be imprisoned for debt under the laws now in force in
the Philippine Islands. This is the simple question presented in the application
for the writ of habeas corpus.
The Bill of Rights of the Constitution of the United States contains no

inhibition against imprisonment for debt; however, by an Act of Congress
approved February 28, 1839 (5 Stat. at L., 321) Congress enacted "that no
person shall be imprisoned for debt in any State, on process issued out of a
court of the United States, where, by the laws of such State, imprisonment
for debt has been abolished; and where, by the laws of the State,
imprisonment for debt shall be allowed under certain conditions and
restrictions, the same conditions and restrictions shall be applicable to
process issued out of the courts of the United States, and the same
proceedings shall be had therein as are adopted in the courts of such States."
By this Act of Congress the United States courts existing in a State are
governed by the laws of the State relating to imprisonment for debt. The
foregoing Act of Congress was amended on the 14th day of January, 1841 (5
Stat. at L., 410), providing that the above-quoted Act of Congress "shall be
construed as to abolish imprisonment for debt on process issued out of any
court of the United States, in all cases whatever, where, by the laws of the
State in which the said court shall be held, imprisonment for debt has been,
or shall hereafter be, abolished."
By an Act of Congress approved March 2, 1867, it was provided (14 Stat. at L.,
543) "That whenever any defendant is arrested or imprisoned (under process
issued out of United States courts) he shall be entitled to discharge from such
arrest or imprisonment in the same manner as if he was arrested or
imprisoned on like process of said courts in the same district," etc.
An examination of the constitutional provisions of the various States disclose

the fact that all of them contain provisions inhibiting the imprisonment of
citizens for debt. These constitutional provisions may be divided into two
general classes:
(1) Those which inhibit the imprisonment of citizens for debt, except for fraud,
etc.; and
(2) Those which inhibit imprisonment for debt without any exception or any
further provisions.
A large majority of the State constitution contain the first provision. An

examination of the decisions of these States, so far as it has been possible,
discloses the uniform rule that unless there is some fraud perpetrated in the
creation of the debt, a person will not be imprisoned for debt. Many decisions
might be cited to support this statement.
The author of the article entitled "Imprisonment for Debt" (16 American and
English Encyclopedia of Law) says that the only States which have
constitutional provisions corresponding with the second clause are Alabama,
Georgia, Maryland, Missouri, Tennessee, and Texas. We have been able to
examined the constitutional provisions of Alabama, Georgia, Maryland,
Missouri, and Mississippi only, and therefore can not verify the statement of
the author of this article as to the others.
The constitutional provisions in the States of Missouri is that "imprisonment

for debt shall not be allowed, except for the nonpayment of fines and
penalties imposed for violation of the law." (See sec. 16, Constitution of
Missouri of 1875.)
The constitution of the State of Alabama provides that: "The legislature shall
pass no law authorizing imprisonment for debt in civil cases." (See sec. 18 of
the Constitution of Tennessee of 1807.)
The constitution of the State of Texas provides that "No person shall ever be
imprisoned for debt." (See sec. 18 of the Constitution of the State of Texas.)
The constitution of the State of Albama provides that "No person shall be
imprisoned for debt." (See article 21 of section 21 of the Constitution of the
State of Alabama.)
The provision of the Philippine Bill is "that no person shall be imprisoned for
debt." (See Act of Congress of July 1, 1902.)
An examination of the quoted provisions of the contitutions of the foregoing-

mentioned States shows that their constitutional provisions are, in effect, the
same as that contained in the Philippine Bill, so far as imprisonment for debt
is concerned, and it would seem that this court would be justified in following
the interpretation of the provisions of the constitutions of the highest courts
of record of these States.
After the adoption of the above-quoted provisions of the Constitution of the

State of Alabama, the legislature in 1892 passed an act declaring a banker
who received a deposit, knowing his insolvency, to be guilty of a
misdemeanor, punishable by a fine of double the deposit; one-half to go to
the depositor, with imprisonment in case of nonpayment. Later, in 1895, one
Carr, as president of a banking firm, received $355 from one Abernathy,
knowing at the time, or having good cause to believe, that said banking firm
was in an insolvent and failing condition. Later Carr was indicted under the
provisions of the above-quoted statute. Carr demurred to the said
indictment, raising the question of the constitutionally of the foregoing
statute. The demurrer was overruled and Carr appealed to the supreme court.
The former constitution of the State of Alabama provided that: "No person
shall be imprisoned for debt except in cases of fraud." The Supreme Court of
Alabama, in considering the appeal (see Carr vs. State, 106 Ala., 35; 17
Southern Reporter, 350; 34 Lawyers' Reports Annotated, 634) said:
"That the elimination of the exception as to 'fraud' was a pregnant omission

which left a guaranty of immunity from imprisonment to the debtor to apply
to all cases of debt, whether they involved fraud or not. So that the statutes
we are considering can derived no aid from the idea that the receipt of the
deposit by a banker under the circumstances stated, is a fraud, and hence that
the transaction would constitute 'a case of fraud,' since even in such cases
there can be no imprisonment for debt. 'The imprisonment for debt which
the framers of the constitutions embodying this provision doubtless had most
prominently in mind, was imprisonment upon process issued in civil actions,
the object and sole purpose of which was the collection of debts.'
"It was to remove the evil incident to the taking of the debtor's person upon
a capias ad satisfaciendum that this organic inhibition came primarily to be
ordained, but the effect of the ordination has been the establishment of a
public policy which bordered in its influence upon legislation and operation
on judicial proceedings that would have sufficed for the reduction of debts by
the restraint of the debtor's person."
The Supreme court overruled the decision of the lower court, sustained the
demurrer, and discharged the defendant, holding that the case against Carr
was one for debt, and that he could not, therefore, be imprisoned.
After the adoption of the above provision in the constitution of the State of
Tennessee, the legislature of that State in 1887 provided that it should be--
"Unlawfull for any person or persons, firm, or corporation or company, to

refuse to cash any check or script of their own that may be presented within
thirty days of the date of issuance, and that any such person who should
refuse to redeem any lawful currency, any such checks, etc., would be guilty
of a misdemeanor and, upon conviction, should pay a fine of not less than ten
nor more than twenty-five dollars for each offense."
Under this law the "Paint Rock Coal Company" was indicted. The defendant
presented a demurrer to the indictment, upon the ground that the said Act
(Act of 1887) was unconstitutional, in that it impaired the obligation of the
contract and attempted to imprison the defendant for refusing to pay a debt.
The lower court sustained the demurrer and the prosecuting attorney
appealed to the supreme court. The supreme court (State vs. Paint Rock Coal
Company, etc., 92 Tenn., 81) held that the act was violative of the spirit, if not
of the letter, of the constitutional provision. It is an indirect imposition of
imprisonment for the nonpayment of debt, and is, therefore, clearly within
the constitutional inhibition.
In Missouri, in the case of Coughlin vs. Ehlert (39 Mo., 285), it was held that
since the abolition of imprisonment for debt "a party can not be imprisoned
for refusing to obey an order or decree directing the mere payment of
money." (See also Roberts vs. Stoner, 18 Mo., 481.)
In Wisconsin, in the case of In re Blair (4 Wis., 422), it was held that the
constitutional provisions against imprisonment for debt must have the effect
of rendering void any order or judgment ordering imprisonment for debt.
These constitutional provisions of the various States have been the result of
many years of gradual growth. They marked the change which had taken
place from the days of the feudal system and before, when a debtor who was
unable to pay his debt was either sent to prison or became the personal slave
of the creditor. These constitutional provisions are of the greatest importance
to the citizen. The right to personal liberty is one of the most valuable and
most cherished rights appertaining to men in society and one of which he
cannot be deprived, except by the judgment of the courts, or by the law of
the land. In the barbaric age of the law, an unfortunate debtor could be
deprived of this inestimable right if he failed to pay an hones debt. His creditor
could keep him in his own custody or send him to jail for the simple
misfortune of being poor. This was so in all the States of the Union whose
organic laws has been established prior to the year 1818, except in the one
State of Tennessee. In that year the constitution of this State was adopted,
which contained, as one of its fundamental principles alike beneficient and
just this provision:
"No person shall be imprisoned for debt, unless on refusal to deliver up his
estate for the benefit of his creditors in such manner as may be described by
law, or in cases where there is strong presumption of fraud."
Since this beneficent provision in the constitution of Tennessee, all of the

States of the Union have adopted provisions prohibiting imprisonment for
debt, so that to-day in none of the States of the Union may a man be
imprisoned for debt, unless such debt grew out of some fraud. In the case of
Meyer vs. Berlandi et al., and Bohn Manufacturing Co. vs. Jameson (39 Minn.,
38; 1 Lawyers's Reports Annotated, 777), the Supreme Court of Minnesota
said, with reference to the statute which attempted to imprison one for debt
in the absence of fraud:
"That this is returning with a vengeance to the old barbarous fiction upon
which imprisonment for debt was originally based, viz., that a man who owed
a debt and did not pay it was a trespasser against the peace and dignity of the
crown and for this supposititious crime was liable to arrest and imprisonment
such a statute can not be sustained for a moment."
We are convinced that a person, under the provisions of the Philippine Bill,
cannot be imprisoned in the Philippine Islands for debt. The question is
presented, whether or not in the present case there was an attempt to
imprison the petitioner herein for debt and this raises the question, What is
debt? In Webster's International Dictionary "debt is defined as "that which is
due from person to another, whether money, goods, or service; that which
on the person is bound to pay another, or to perform for his benefit; thing
owed; obligation; liability." In law, it is "an action to recover a certain specific
sum of money alleged to in bookkeeping to express the left-hand page of the
ledger or of an account to which are carried all the articles supplied or
amounts paid on the subject of an account or which are charged to that
account; the balance of an account where it shows that something remains
due to party keeping the account." Black in his law dictionary, defines debt as
"a sum of money due by a certain and express agreement" or as "a sum of
money due a contract." Escriche, in his "Diccionario de Legislacion y
Jurisprudencia," defines a debt as "la obligacion que alguno tiene de pagar,
satisfacer o reintegrar a otro alguna cosa." Valbuena, in his "Novismo
Diccionario" defines a debt as follows: "Obligacion de pagar, de satisfacer a
otro."
The Supreme Court of Illinois, in the case of Parker vs. Follensbee (45 III., 473),
in denying the meaning of the word "debt" as used in the constitutions, said:
"That any liability to pay money growing of a contract, express or implied,

constitutes a debt within the meaning of this provision of the constitution."
Under these definitions the question arises: Was the action which was begun
by Tang Lap Ting and Ho Tung Shang against the petitioner herein on the 31th
day of May, 1907, an action for debt? An examination of the complaint filed
discloses the following facts:
(1) That the plaintiff were partners and coowners of a mercantile
establishment in the city of Manila under the industrial name of Sang Kee.
(2) That or about the 1st day of January, 1904, the petitioner herein was
employed by the plaintiffs is that action as general agent for said mercantile
establishment, and that on to about the same date, by the virtue of an express
employment, took charge of said business, with all property, merchandise,
funds, credits, etc., and the end of the year 1905 or the beginning of the year
1906, when said business was closed by the order and direction of the said
plaintiffs.
(3) That at the time of the closing of said business, the petitioner herein, in
accordance with accounts rendered by him to the plaintiffs, had in his
possession, belonging to the funds of said business, personal property, stocks,
credits, etc., that exceeded the total sum of 30,000 pesos, which crime into
his possession in the exercise of his employment.
The plaintiffs in that action prayed for judgment against the petitioner herein
in the sum of 30,000 pesos and asked for an accounting of said business.
It appears from the said petition that whatever property of whatever class
which came into the possession of the petitioner herein, belonging to the
plaintiffs in that action, was turned over to him by them voluntarily. There is
no allegation of fraud on the part of the petitioner herein in securing
possession of said property. He was given charge of said property, with
authority to manage and control the same as an employee of the plaintiffs.
Certainly this created an obligation on the part of the petitioner herein to
return such property, or so much thereof as might be the result agent. This
relation between the petitioner and the plaintiffs in that action created the
relation of obligator and obligee, the result of which may be clearly
denominated the relation of debtor and creditor.
The plaintiffs alleged that they had made frequent demands upon the
petitioner for a delivery of said property and that the petitioner refused to
comply with said request or demands. We are not of the opinion that these
demands made by the plaintiffs upon the petitioner changed the relation
which originally existed between the parties, that of debtor and creditor.
There may have existed legal reasons justifying the petitioner in refusing to
deliver over to the plaintiffs the said property. He may have had just claims
against the plaintiffs which constituted a lien upon said property, as well as
other, under the provisions of the Penal Code, might be liable criminally for
the refusal to deliver over property which he had received with the duty to
return the same, upon his refusal so to do; but certainly his refusal to comply
with the terms of a contract under which he had assumed the relation of
debtor did not destroy that relation.
The petitioner was arrested and lodged in jail under the provisions of chapter
17 of the Code of Procedure in Civil Actions. Section 412 of said chapter
provides that
"A defendant may be arrested in the following cases:
"(1) In an action for the recovery of money or damages on a cause of action

arising upon contract, express or implied, when the defendant is about to
depart from the Philippine Islands with intent to defraud his creditors.
"(2) In an action for money or property embezzlement in the course of his
employment or for willfully violating his duty.
"(3) In an action to recover the possession of personal property unjustly

detained, when the property of any part thereof has been concealed,
removed, or disposed of to prevent its being found or taken by the officer.
"(4) When the defendant has been guilty of fraud in contracting a debt or
incurring the obligation upon which the action is brought; or in concealing or
disposing of the property for the taking, detention, or conversion of which the
action brought.
"(5) When the defendant has removed or disposed of his property or is about
to do so, with intent to defraud his creditors."
The action brought by the plaintiffs against the petitioner was an action for
the recovery of money in a cause of action arising on a contract. We are of
the opinion, and so hold, that the above-quoted provisions of section 5 of the
Philippine Bill expressly prohibits the imprisonment of the citizens of the
Philippine Islands in action of that class, and therefore the petitioner herein
is hereby ordered to be released from imprisonment with costs de oficio. So
ordered.
18. G.R. No. 185527
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 185527 July 18, 2012
HARRY L. GO, TONNY NGO, JERRY NGO AND JANE GO, Petitioners,
vs.
THE PEOPLE OF THE PHILIPPINES and HIGHDONE COMPANY, LTD., ET AL.,
Respondents.
DECISION
PERLAS-BERNABE, J.:
The procedure for taking depositions in criminal cases recognizes the

prosecution's right to preserve testimonial evidence and prove its case
despite the unavailability of its witness. It cannot, however, give license to
prosecutorial indifference or unseemly involvement in a prosecution witness'
absence from trial. To rule otherwise would effectively deprive the accused
of his fundamental right to be confronted with the witnesses against him.
In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of
Court, petitioners seek to nullify and set aside the February 19, 2008
Decision1 and November 28, 2008 Resolution2 of the Court of Appeals (CA)
in CA-G.R. SP No. 99383, which reversed the September 12, 2006 Order3
issued by the Regional Trial Court (RTC) of Manila, Branch 27 in Civil Case No.
06-114844 and upheld the grant of the prosecutions motion to take the
testimony of a witness by oral depositions in Laos, Cambodia.
Petitioners Harry Go, Tonny Ngo, Jerry Ngo and Jane Go were charged before
the Metropolitan Trial Court (MeTC) of Manila for Other Deceits under Article
318 of the Revised Penal Code (RPC) docketed as Criminal Case No. 396447.
The Information4 dated September 24, 2003, later amended5 on September
14, 2004, reads:
"That sometime in August 1996, in the City of Manila, Philippines, the said
accused, conspiring, confederating together and helping one another, did
then and there willfully, unlawfully and feloniously defraud Highdone
Company Ltd. Represented by Li Luen Ping, in the following manner, to wit:
all said accused, by means of false manifestations and fraudulent
representations which they made to said Li Luen Ping to the effect that they
have chattels such as machinery, spare parts, equipment and raw materials
installed and fixed in the premises of BGB Industrial Textile Mills Factory
located in the Bataan Export Processing Zone (BEPZ) in Mariveles, Bataan,
executed a Deed of Mortgage for a consideration of the amount of
$464,266.90 or its peso equivalent at P20,892,010.50 more or less in favor of
ML Resources and Highdone Company Ltd. Representing that the said deed is
a FIRST MORTGAGE when in truth and in fact the accused well knew that the
same had been previously encumbered, mortgaged and foreclosed by CHINA
BANK CORPORATION as early as September 1994 thereby causing damage
and prejudice to said HIGHDONE COMPANY LTD., in the said amount of
$464,266.90 or its peso equivalent at P20,892,010.50 more or less."
Upon arraignment, petitioners pleaded not guilty to the charge.
The prosecution's complaining witness, Li Luen Ping, a frail old businessman

from Laos, Cambodia, traveled from his home country back to the Philippines
in order to attend the hearing held on September 9, 2004. However, trial
dates were subsequently postponed due to his unavailability.
On October 13, 2005, the private prosecutor filed with the MeTC a Motion to
Take Oral Deposition6 of Li Luen Ping, alleging that he was being treated for
lung infection at the Cambodia Charity Hospital in Laos, Cambodia and that,
upon doctor's advice, he could not make the long travel to the Philippines by
reason of ill health.
Notwithstanding petitioners' Opposition,7 the MeTC granted8 the motion

after the prosecution complied with the directive to submit a Medical
Certificate of Li Luen Ping. Petitioners sought its reconsideration which the
MeTC denied,9 prompting petitioners to file a Petition for Certiorari10 before
the RTC.
On September 12, 2006, the RTC granted the petition and declared the MeTC
Orders null and void.11 The RTC held that Section 17, Rule 23 on the taking of
depositions of witnesses in civil cases cannot apply suppletorily to the case
since there is a specific provision in the Rules of Court with respect to the
taking of depositions of prosecution witnesses in criminal cases, which is
primarily intended to safeguard the constitutional rights of the accused to
meet the witness against him face to face.
Upon denial by the RTC of their motion for reconsideration through an Order
dated March 5, 2006,12 the prosecution elevated the case to the CA.
On February 19, 2008, the CA promulgated the assailed Decision which held
that no grave abuse of discretion can be imputed upon the MeTC for allowing
the deposition-taking of the complaining witness Li Luen Ping because no rule
of procedure expressly disallows the taking of depositions in criminal cases
and that, in any case, petitioners would still have every opportunity to cross-
examine the complaining witness and make timely objections during the
taking of the oral deposition either through counsel or through the consular
officer who would be taking the deposition of the witness.
On November 28, 2008, the CA denied petitioners' motion for

reconsideration. Hence, this petition alleging that
I.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE METROPOLITAN

TRIAL COURT INFRINGED THE CONSTITUTIONAL RIGHT OF THE PETITIONERS
TO A PUBLIC TRIAL IN ALLOWING THE TAKING OF THE DEPOSITION OF THE
COMPLAINING WITNESS IN LAOS, CAMBODIA.
II.THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE DEPOSITION

TAKING OF THE COMPLAINING WITNESS IN LAOS, CAMBODIA IS AN
INFRINGEMENT OF THE CONSTITUTIONAL RIGHT OF THE PETITIONERS TO
CONFRONT THE SAID WITNESS FACE TO FACE.
III.THE COURT OF APPEALS ERRED IN SUSTAINING THE JUDICIAL LEGISLATION

COMMITTED BY THE METROPOLITAN TRIAL COURT IN APPLYING THE RULES
ON DEPOSITION-TAKING IN CIVIL CASES TO CRIMINAL CASES.
IV.THE COURT OF APPEALS ERRED IN LIMITING THE TRADITIONAL DEFINITION
OF GRAVE ABUSE OF DISCRETION, OVERLOOKING THE ESTABLISHED RULE
THAT VIOLATION OF THE CONSTITUTION, THE LAW OR JURISPRUDENCE
SIMILARLY COMES WITHIN THE PURVIEW OF GRAVE ABUSE OF DISCRETION.
We rule in favor of petitioners.
The Procedure for Testimonial Examination of an Unavailable Prosecution

Witness is Covered Under Section 15, Rule 119.
The examination of witnesses must be done orally before a judge in open

court.13 This is true especially in criminal cases where the Constitution
secures to the accused his right to a public trial and to meet the witnessess
against him face to face. The requirement is the "safest and most satisfactory
method of investigating facts" as it enables the judge to test the witness'
credibility through his manner and deportment while testifying.14 It is not
without exceptions, however, as the Rules of Court recognizes the conditional
examination of witnesses and the use of their depositions as testimonial
evidence in lieu of direct court testimony.
Even in criminal proceedings, there is no doubt as to the availability of

conditional examination of witnesses both for the benefit of the defense, as
well as the prosecution. The Court's ruling in the case of Vda. de Manguerra
v. Risos15 explicitly states that
"x x x As exceptions, Rule 23 to 28 of the Rules of Court provide for the

different modes of discovery that may be resorted to by a party to an action.
These rules are adopted either to perpetuate the testimonies of witnesses or
as modes of discovery. In criminal proceedings, Sections 12, 13 and 15, Rule
119 of the Revised Rules of Criminal Procedure, which took effect on
December 1, 2000, allow the conditional examination of both the defense and
prosecution witnesses." (Underscoring supplied)16
The procedure under Rule 23 to 28 of the Rules of Court allows the taking of
depositions in civil cases, either upon oral examination or written
interrogatories, before any judge, notary public or person authorized to
administer oaths at any time or place within the Philippines; or before any
Philippine consular official, commissioned officer or person authorized to

administer oaths in a foreign state or country, with no additional requirement
except reasonable notice in writing to the other party.17
But for purposes of taking the deposition in criminal cases, more particularly
of a prosecution witness who would forseeably be unavailable for trial, the
testimonial examination should be made before the court, or at least before
the judge, where the case is pending as required by the clear mandate of
Section 15, Rule 119 of the Revised Rules of Criminal Procedure. The pertinent
provision reads thus:
SEC. 15. Examination of witness for the prosecution. When it satisfactorily

appears that a witness for the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to leave the Philippines with no
definite date of returning, he may forthwith be conditionally examined before
the court where the case is pending. Such examination, in the presence of the
accused, or in his absence after reasonable notice to attend the examination
has been served on him shall be conducted in the same manner as an
examination at the trial. Failure or refusal of the accused to attend the
examination after notice shall be considered a waiver. The statement taken
may be admitted in behalf of or against the accused.
Since the conditional examination of a prosecution witness must take place

at no other place than the court where the case is pending, the RTC properly
nullified the MeTC's orders granting the motion to take the deposition of Li
Luen Ping before the Philippine consular official in Laos, Cambodia. We quote
with approval the RTC's ratiocination in this wise:
The condition of the private complainant being sick and of advanced age falls
within the provision of Section 15 Rule 119 of the Rules of Court. However,
said rule substantially provides that he should be conditionally examined
before the court where the case is pending. Thus, this Court concludes that
the language of Section 15 Rule 119 must be interpreted to require the parties
to present testimony at the hearing through live witnesses, whose demeanor
and credibility can be evaluated by the judge presiding at the hearing, rather
than by means of deposition. No where in the said rule permits the taking of
deposition outside the Philippines whether the deponent is sick or not.18
(Underscoring supplied)
Certainly, to take the deposition of the prosecution witness elsewhere and

not before the very same court where the case is pending would not only
deprive a detained accused of his right to attend the proceedings but also
deprive the trial judge of the opportunity to observe the prosecution witness'
deportment and properly assess his credibility, which is especially intolerable
when the witness' testimony is crucial to the prosecution's case against the
accused. This is the import of the Court's ruling in Vda. de Manguerra19
where we further declared that
While we recognize the prosecution's right to preserve the testimony of its
witness in order to prove its case, we cannot disregard the rules which are
designed mainly for the protection of the accused's constitutional rights. The
giving of testimony during trial is the general rule. The conditional
examination of a witness outside of the trial is only an exception, and as such,
calls for a strict construction of the rules.20 (Underscoring supplied)
It is argued that since the Rules of Civil Procedure is made explicitly applicable
in all cases, both civil and criminal as well as special proceedings, the
deposition-taking before a Philippine consular official under Rule 23 should
be deemed allowable also under the circumstances.
However, the suggested suppletory application of Rule 23 in the testimonial

examination of an unavailable prosecution witness has been categorically
ruled out by the Court in the same case of Vda. de Manguerra, as follows:
It is true that Section 3, Rule 1 of the Rules of Court provides that the rules of
civil procedure apply to all actions, civil or criminal, and special proceedings.
In effect, it says that the rules of civil procedure have suppletory application
to criminal cases. However, it is likewise true that criminal proceedings are
primarily governed by the Revised Rules of Criminal Procedure.
Considering that Rule 119 adequately and squarely covers the situation in the
instant case, we find no cogent reason to apply Rule 23 suppletorily or
otherwise." (Underscoring supplied)
The Conditional Examination of a Prosecution Witness Cannot Defeat the

Rights of the Accused to Public Trial and Confrontation of Witnesses
The CA took a simplistic view on the use of depositions in criminal cases and
overlooked fundamental considerations no less than the Constitution secures
to the accused, i.e., the right to a public trial and the right to confrontation of
witnesses. Section 14(2), Article III of the
Constitution provides as follows:
Section 14. (1) x x x
him, to have a speedy, impartial and public trial, to meet the witnesses face
witnesses and the production of evidence in his behalf. However, after
unjustifiable. (Underscoring supplied)
In dismissing petitioners' apprehensions concerning the deprivation of their

constitutional rights to a public trial and confrontation, the CA opined that
petitioners would still be accorded the right to cross-examine the deponent
witness and raise their objections during the deposition-taking in the same
manner as in a regular court trial.
We disagree. There is a great deal of difference between the face-to- face

confrontation in a public criminal trial in the presence of the presiding judge
and the cross-examination of a witness in a foreign place outside the
courtroom in the absence of a trial judge. In the aptly cited case of People v.
Estenzo,21 the Court noted the uniqueness and significance of a witness
testifying in open court, thus:
"The main and essential purpose of requiring a witness to appear and testify
orally at a trial is to secure for the adverse party the opportunity of cross-
examination. "The opponent", according to an eminent authority, "demands
confrontation, not for the idle purpose of gazing upon the witness, or of being
gazed upon by him, but for the purpose of cross examination which cannot
be had except by the direct and personal putting of questions and obtaining
immediate answers." There is also the advantage of the witness before the
judge, and it is this it enables the judge as trier of facts "to obtain the elusive
and incommunicable evidence of a witness' deportment while testifying, and
a certain subjective moral effect is produced upon the witness. It is only when
the witness testifies orally that the judge may have a true idea of his
countenance, manner and expression, which may confirm or detract from the
weight of his testimony. Certainly, the physical condition of the witness will
reveal his capacity for accurate observation and memory, and his deportment
and physiognomy will reveal clues to his character. These can only be
observed by the judge if the witness testifies orally in court. x x x"22
(Underscoring supplied)1wphi1
The right of confrontation, on the other hand, is held to apply specifically to

criminal proceedings and to have a twofold purpose: (1) to afford the accused
an opportunity to test the testimony of witnesses by cross-examination, and
(2) to allow the judge to observe the deportment of witnesses.23 The Court
explained in People v. Seneris24 that the constitutional requirement "insures
that the witness will give his testimony under oath, thus deterring lying by the
threat of perjury charge; it forces the witness to submit to cross-examination,
a valuable instrument in exposing falsehood and bringing out the truth; and
it enables the court to observe the demeanor of the witness and assess his
credibility."25
As the right of confrontation is intended "to secure the accused in the right
to be tried as far as facts provable by witnesses as meet him face to face at
the trial who give their testimony in his presence, and give to the accused an
opportunity of cross-examination,"26 it is properly viewed as a guarantee
against the use of unreliable testimony in criminal trials. In the American case
of Crawford v. Washington,27 the US Supreme Court had expounded on the
procedural intent of the confrontation requirement, thus:
Where testimonial statements are involved, we do not think the Framers

meant to leave the Sixth Amendment's right to confront witness face to face
protection to the vagaries of the rules of evidence, much less to amorphous
notions of "reliability". Certainly, none of the authorities discussed above
acknowledges any general reliability exception to the common-law rule.
Admitting statements deemed reliable by a judge is fundamentally at odds

with the right of confrontation. To be sure, the Clause's ultimate goal is to
ensure reliability of evidence, but it is a procedural rather than a substantive
guarantee. It commands, not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the crucible of cross-
examination. The Clause thus reflects a judgment, not only about the
desirability of reliable evidence (a point on which there could be little dissent),
but about how reliability can best be determined." (Underscoring supplied)
The Webb Ruling is Not on All Fours with the Instant Case
The CA found the frail and infirm condition of the prosecution witness as
sufficient and compelling reason to uphold the MeTC Orders granting the
deposition-taking, following the ruling in the case of People v. Webb28 that
the taking of an unavailable witness' deposition is in the nature of a discovery
procedure the use of which is within the trial court's sound discretion which
needs only to be exercised in a reasonable manner and in consonance with
the spirit of the law.29
But the ruling in the cited case is not instantly applicable herein as the factual
settings are not similar.1wphi1 The accused in the Webb case had sought to
take the oral deposition of five defense witnesses before a Philippine consular
agent in lieu of presenting them as live witnesses, alleging that they were all
residents of the United States who could not be compelled by subpoena to
testify in court. The trial court denied the motion of the accused but the CA
differed and ordered the deposition taken. When the matter was raised
before this Court, we sustained the trial court's disallowance of the
deposition-taking on the limited ground that there was no necessity for the
procedure as the matter sought to be proved by way of deposition was
considered merely corroborative of the evidence for the defense.30
In this case, where it is the prosecution that seeks to depose the complaining
witness against the accused, the stringent procedure under Section 15, Rule
119 cannot be ignored without violating the constitutional rights of the
accused to due process.
Finally, the Court takes note that prosecution witness Li Luen Ping had
managed to attend the initial trial proceedings before the MeTC of Manila on
September 9, 2004. At that time, Li Luen Ping's old age and fragile constitution
should have been unmistakably apparent and yet the prosecution failed to
act with zeal and foresight in having his deposition or testimony taken before
the MeTC pursuant to Section 15, Rule 119 of the Revised Rules of Court. In
fact, it should have been imperative for the prosecution to have moved for
the preservation of Li Luen Ping's testimony at that first instance given the
fact that the witness is a non-resident alien who can leave the Philippines
anytime without any definite date of return. Obviously, the prosecution
allowed its main witness to leave the court's jurisdiction without availing of
the court procedure intended to preserve the testimony of such witness. The
loss of its cause is attributable to no other party.
Still, even after failing to secure Li Luen Ping's conditional examination before
the MeTC prior to said witness' becoming sick and unavailable, the
prosecution would capitalize upon its own failure by pleading for a liberal
application of the rules on depositions. It must be emphasized that while the
prosecution must provide the accused every opportunity to take the
deposition of witnesses that are material to his defense in order to avoid
charges of violating the right of the accused to compulsory process, the State
itself must resort to deposition-taking sparingly if it is to guard against
accusations of violating the right of the accused to meet the witnesses against
him face to face. Great care must be observed in the taking and use of
depositions of prosecution witnesses to the end that no conviction of an
accused will rely on ex parte affidavits and deposition.31
Thus, the CA ignored the procedure under the Revised Rules of Criminal
Procedure for taking the deposition of an unavailable prosecution witness
when it upheld the trial court's order allowing the deposition of prosecution
witness Li Luen Ping to take place in a venue other than the court where the
case is pending. This was certainly grave abuse of discretion.
WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated

February 19, 2008 and the Resolution dated November 28, 2008 of the Court
of Appeals are REVERSED and SET ASIDE. Accordingly, the Decision of the
Regional Trial Court which disallowed the deposition-taking in Laos,
Cambodia is REINSTATED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate justice
WE CONCUR:

Associate justice
Chairperson
DIOSDADO M. PERALTA
Associate Justice ROBERTO A. ABAD
Associate Justice
JOSE CATRAL MENDOZA
Associate justice
ATTESTATION
consultation before the case was .assigned to the writer of the opinion of the
Court's Division.

Associate justice
Chairperson, Third Division
CERTIFICATION
I certify that the conclusions in the above Decision had been reached in
Court's Division.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
1 Penned by Associate Justice Monina Arevalo-Zenarosa, with Presiding

Justice Conrado M. Vasquez, Jr. and Associate Justice Edgardo F. Sundiam,
concurring; rollo, pp. 44-55.
2 Annex "B" of the Petition, id. at pp. 56-59.
3 Issued by Judge Teresa P. Soriaso, id. at pp. 136-142.
4 Annex "C" of the Petition, id. at pp. 60-61.
5 Annex "D" of the Petition, id. at pp. 62-63.
6 Annex "E" of the Petition, id. at pp. 64-66
7 Annex "F" of the Petition, id. at pp. 67-68.
8 Annex "H" of the Petition, id. at pp. 73-74.
9 Annex "L" of the Petition, id. at p. 90.
10 Annex "M" of the Petition, id. at pp. 92-112.
11 RTC Order, Annex "O" of the Petition, id. at pp. 136-142.
12 Annex "R" of the Petition, id. at pp. 173-174.
13 Section 1, Rule 132, Rules of Court.

14 Francisco, R.J., Evidence, 1993 Edition, p. 437.
15 G.R. No. 152643, August 28, 2008, 563 SCRA 499.
16 Id. at pp. 506-507.
17 Sections 1, 10, 11, 14 and 15, Rule 23, 1997 Rules of Civil Procedure.
18 RTC Order, rollo, pp. 138-139.
19 G.R. No. 152643, August 28, 2008, 563 SCRA 499.
20 Id. at p. 510.
21 No. L-41166, August 25, 1976, 72 SCRA 428
22 Id. at 432.
23 Bernas, J.G., The 1987 Constitution: A Commentary, 1996 Edition, p. 463,

citing U.S. v. Anastacio, 6 Phil. 413, 416 (1906); U.S. v. Raymundo, 14 Phil. 416,
438 (1909); and U.S. v. Javier, 37 Phil. 449, 452 (1918).
24 No. L-48883, August 6, 1980, 99 SCRA 92.

25 Citing California v. Green, 339 US 157 (1970).
26 United States v. Javier, No. L-12990, January 21, 1918, 37 Phil. 449, citing
Dowdell v. U.S., 22 US 325.
27 541 U.S. 26 (2004).
28 G.R. No. 132577, August 17, 1999, 312 SCRA 573.
29 CA Decision, rollo, p. 52.
30 People v. Webb, supra note 25, at 592.
31 See Cruz, 1., Constitutional Law, 1995 Edition, p. 324.

19. G.R. No. 164457
Supreme Court
BaguioCity
FIRST DIVISION
ANNA LERIMA PATULA,

Petitioner,
-versus-

Respondent.
G.R. No. 164457
Present:
CORONA,C.J.,Chairperson,
LEONARDO-DE CASTRO,
BERSAMIN,
DEL CASTILLO, and
VILLARAMA, JR.,JJ.
Promulgated:
April 11, 2012

x-----------------------------------------------------------------------------------------x
DECISION
BERSAMIN, J.:
In the trial of everycriminal case, a judge must rigidlytest the States evidence
of guilt in order to ensure that such evidenceadheres to the basic rules of
admissibility before pronouncing an accused guilty of the crime charged upon
such evidence. Nothing less is demanded of the judge; otherwise, the
guarantee of due process of law is nullified.The accused need
notadduceanythingto rebut evidence that is discredited for failing the
test.Acquittal should then follow.
Antecedents
Petitioner was charged withestafaunder an informationfiled in the Regional

Trial Court (RTC) in DumagueteCitythat averred:
That on or about and during the period from March 16 to 20, 1997 and for
sometime prior thereto, in the City of Dumaguete, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, being then a
saleswoman of Footluckers Chain of Stores, Inc., Dumaguete City, having
collected and received the total sum of P131,286.97 from several customers
of said company under the express obligation to account for the proceeds of
the sales and deliver the collection to the said company, but far from
complying with her obligation and after a reasonable period of time despite
repeated demands therefore, and with intent to defraud the said company,
did, then and there willfully, unlawfully and feloniously fail to deliver the said
collection to the said company but instead, did, then and there willfully
unlawfully and feloniously misappropriate, misapply and convert the
proceeds of the sale to her own use and benefit, to the damage and prejudice
of the said company in the aforesaid amount of P131,286.97.
Contrary to Art. 315, par 1 (b) of the Revised Penal Code.[1]
Petitioner pled not guiltyto the offense charged in the information. At pre-
trial, no stipulation of factswas had, and petitioner did not avail herself of plea
bargaining. Thereafter, trial on the merits ensued.
The Prosecutions first witness was Lamberto Go, who testified that he was
the branch manager of Footluckers Chain of Stores, Inc. (Footluckers) in
Dumaguete City since October 8, 1994; that petitioner was an employee of
Footluckers, starting as a saleslady in 1996 until she became a sales
representative; that as a sales representative she was authorized to take
orders from wholesale customers coming from different towns (like Bacong,
Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and
Siquijor), and to collect payments from them; that she could issue and sign
official receipts of Footluckers for the payments, which she would then remit;
that she would then submit the receipts for the payments for tallying and
reconciliation; that at first her volume of sales was quite high, but later on
dropped, leading him to confront her; that she responded that business was
slow; that he summoned the accounting clerk to verify; that the accounting
clerk discovered erasures on some collection receipts; that he decided to
subject her to an audit by company auditor Karen Guivencan; that he learned
from a customer of petitioners that the customers outstanding balance had
already been fully paid although that balance appeared unpaid in Footluckers
records; and that one night later on, petitioner and her parents went to his
house to deny having misappropriated any money of Footluckers and to plead
for him not to push through with a case against her, promising to settle her
account on a monthly basis; and that she did not settle after that, but stopped
reporting to work.[2]
On March 7, 2002, Gos cross examination, re-direct examination and re-

crossexamination were completed.
The only other witness for the Prosecution was Karen Guivencan,
whomFootluckers employed as its store auditor since November 16, 1995
until her resignation on March 31, 2001. She declared that Go had requested
her to audit petitioner after some customers had told him that they had
already paid their accounts but the office ledger had still reflected
outstandingbalances for them; that she first conducted her audit by going to
the customers in places from Mabinay to Zamboanguitain Negros Oriental,
and then in Siquijor; thatshe discovered in the course of her audit that the
amounts appearing on the original copies of receipts in the possession of
around 50 customers varied from the amounts written on the duplicate
copies of the receipts petitioner submitted to the office; that upon
completing her audit, she submittedto Go a written report denominated as
List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in
Records as per Audit Duly Verified March 16-20, 1997 marked as Exhibit A;
and that based on the report, petitioner had misappropriated the total
amount ofP131,286.92.[3]
During Guivencans stint as a witness, the Prosecution marked the ledgers of

petitioners various customers allegedly with discrepancies as Exhibits B to
YYand their derivatives, inclusive. Each of the ledgers had a first column that
contained the dates of the entries, a second that identified the invoices by
the number, a third that statedthe debit, a fourth that noted the credit (or
the amounts paid), and a fifth that summed the balances (debit minus
credit).Only 49 of theledgerswere formally offered and admitted by the RTC
because the 50thledger could no longer be found.
In the course of Guivencansdirect-examination,petitioners counsel

interposed a continuing objection on the ground that the figuresentered in
Exhibits B to YYand their derivatives, inclusive, were hearsay because the
persons who had made the entries were not themselves presented in
court.[4]With that, petitioners counsel did not anymore cross-examine
Guivencan, apparently regarding her testimony to be irrelevant because she
thereby tended to prove falsification, an offense not alleged in the
information.
TheProsecution thenformally offered its documentary exhibits, including

Exhibits B to YYand their derivatives (like the originals and duplicates of the
receipts supposedly executed and issued by petitioner), inclusive, the
confirmation sheets used by Guivencan in auditing the accounts served by
petitioner, and Guivencans so-called Summary (Final Report) of
Discrepancies.[5]
After the Prosecution rested its case, the Defense decided not to file a
demurrer to evidence although it had manifested the intention to do so, and
instead rested itscase.The Prosecution and Defense submitted their
respective memoranda, and submitted the case for decision.[6]
On January 28, 2004, the RTC, stating that inasmuch as petitioner had opted
not to present evidence for her defense the Prosecutions evidence remained
unrefuted and uncontroverted,[7]rendered its decision finding petitioner
guilty of estafa, to wit:
Wherefore, in the light of the foregoing facts and circumstances, the Court
finds ANNA LERIMA PATULA guilty beyond reasonable doubt of the crime of
Estafa under Art. 315 par (1b) of the Revised Penal Code and accordingly, she
is hereby sentenced to suffer an INDETERMINATE PENALTY of imprisonment
of 8 years and 1 day of prision mayor as minimum to 18 years and 4 months
of reclusion temporal as maximum with all the accessory penalties provided
by law and to indemnify private complainant the amount of P131,286.92 with
interest at 12% per annum until fully paid and to pay the costs.
Pursuant to Sec. 2, Rule 114 of the Revised Rules of Criminal Procedure, the
cash bail put up by the accused shall be effective only until the promulgation
of this judgment.
SO ORDERED.[8]
Petitioner filed a motion for reconsideration, butthe RTC denied the motion
on May 7, 2004.[9]
Issues
Insisting that the RTCs judgment grossly violated [her] Constitutional and
statutory right to be informed of the nature and cause of the accusation
against her because, while the charge against her is estafa under Art. 315, par.
1 (b) of the Revised Penal Code, the evidence presented against her and upon
which her conviction was based, was falsification, an offense not alleged or
included in the Information under which she was arraigned and pleaded not
guilty, and that said judgment likewise blatantly ignored and manifestly
disregarded the rules on admission of evidence in that the documentary
evidence admitted by the trial court were all private documents, the due
execution and authenticity of which were not proved in accordance with Sec.
20 of Rule 132 of the Revised Rules on Evidence, petitioner has directly
appealed to the Court via petition for review on certiorari, positing the
following issues, to wit:
1. WHETHER THE ACCUSED OR ANY ACCUSED FOR THAT MATTER , CHARGED

OF ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL CODE CAN BE
CONVICTED UPON OR BY EVIDENCE OF FALSIFICATION WHICH IS EVEN (SIC)
NOT ALLEGED IN THE INFORMATION.
2. WHETHER THE ACCUSEDS CONSTITUTIONAL AND STATUTORY RIGHT TO BE

INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST HER
WAS VIOLATED WHEN SHE WAS CONVICTED UPON OR BY EVIDENCE OF
FALSIFICATION CONSIDERING THAT THE CHARGE AGAINST HER IS ESTAFA
THROUGH MISAPPROPRIATION UNDER ART. 315, PAR. 1 (B) OF THE REVISED
PENAL CODE.
3. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE,
EXHIBITS B TO YY-YY-2, ALL PRIVATE DOCUMENTS, THE DUE EXECUTION AND
AUTHENTICITY OF WHICH WERE NOT PROVED IN ACCORDANCE WITH SEC. 20,
RULE 132 OF THE SAID REVISED RULES ON EVIDENCE ASIDE FROM THE FACT
THAT SAID EXHIBITS TEND TO PROVE FALSIFICATION BY THE ACCUSED, A
CRIME NEITHER CHARGED NOR ALLEGED IN THE INFORMATION.
4. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING THE

TESTIMONY OF KAREN GUIVENCAN DESPITE THE OBJECTION THAT SAID
TESTIMONY WHICH TRIED TO PROVE THAT THE ACCUSED FALSIFIED EXHIBITS
B TO YY-YY-2INCLUSIVE VIOLATED THE ACCUSEDS CONSTITUTIONAL RIGHT
TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION AGAINST
HER, FOR BEING IRRELEVANT AND IMMATERIAL SINCE THE CHARGE AGAINST
THE ACCUSED IS ESTAFA UNDER ART. 315, PAR. 1 (B) OF THE REVISED PENAL
CODE.
5. WHETHER OR NOT THE TRIAL COURT ERRED IN CONCLUDING THAT THE

EVIDENCE OF THE PROSECUTION REMAINS UNREFUTED AND
UNCONTROVERTED DESPITE ACCUSEDS OBJECTION THAT SAID EVIDENCE IS
IMMATERIAL AND IRRELEVANT TO THE CRIME CHARGED.
6. WHETHER OR NOT THE DEFENSES NOT CROSS-EXAMINING KAREN

GUIVENCAN FOR THE REASON THAT HER TESTIMONY IS IMMATERIAL AND
IRRELEVANT AS IT TENDED TO PROVE AN OFFENSE NOT CHARGED IN
INFORMATION RESULTED IN THE ADMISSION OF SAID TESTIMONY AS BEING
UNREFUTED AND UNCONTROVERTED, AND WHETHER OR NOT THE DEFENSES
OBJECTION WOULD NOT BE CONSIDERED WAIVED IF THE DEFENSE CROSS-
EXAMINED SAID WITNESS.
7. WHETHER OR NOT THE TRIAL COURT ERRED IN RULING THAT EXHIBIT A,
WHICH IS THE LIST OF CUSTOMERS COVERED BY SALESWOMAN LERIMA
PATULA WITH DIFFERENCE IN RECORD IS NOT HEARSAY AND SELF-
SERVING.[10]
The foregoing issues are now restatedas follows:
1. Whether or not the failure of the information for estafa to allege the
falsification of the duplicate receipts issued by petitioner to her
customersviolated petitioners right to be informed of the nature and cause of
the accusation;
2. Whether or not the RTC gravely erred in admitting evidence of the

falsification of the duplicate receiptsdespite the information not alleging the
falsification;
3. Whether or not the ledgers and receipts (Exhibits B to YY, and their
derivatives, inclusive) were admissible as evidence of petitioners guilt for
estafaas charged despite their not being duly authenticated;and
4. Whether or not Guivencanstestimony onthe ledgers and receipts
(Exhibits B to YY, and their derivatives, inclusive) to prove petitioners
misappropriation or conversion wasinadmissible for being hearsay.
Ruling
The petition is meritorious.

I
Failure of information to allege falsification
did not violate petitioners right to be informed
of thenatureand cause of the accusation
Petitioner contends that the RTC grossly violated her Constitutional right to
be informed of the nature and cause of the accusation when: (a) it held that
the information did not have to allege her falsification of the duplicate
receipts, and (b) when it convicted her of estafa under Article 315, paragraph
1(b) of the Revised Penal Codeby relying on the evidence on falsification.
The contentionof petitioner cannot be sustained.
The Bill of Rights guaranteessome rightsto every person accused of a crime,

among them the right to be informed of the nature and cause of the
accusation, viz:
Section 14. (1) No person shall be held to answer for a criminal offense
without due process of law.
him, to have a speedy, impartial, and public trial, to meet the witnesses face
witnesses and the production of evidence in his behalf. However, after
unjustifiable.
Rule 110 of the Revised Rules of Court, the rule then in effect when the
information was filed in the RTC, contained the following provisions on the
proper manner of alleging the nature and cause of the accusation in the
information, to wit:
Section 8.Designation of the offense. Whenever possible, a complaint or

information should state the designation given to the offense by the statute,
besides the statement of the acts or omissions constituting the same, and if
there is no such designation, reference should be made to the section or
subsection of the statute punishing it. (7)
Section 9.Cause of accusation. The acts or omissions complained of as

constituting the offense must be stated in ordinary and concise language
without repetition, not necessarily in the terms of the statute defining the
offense, but in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable
the court to pronounce proper judgment. (8)
The importance of the proper manner of alleging the nature and cause of the
accusation in the informationshould never be taken for granted by the State.
An accused cannot be convicted of an offense that is not clearly charged in
the complaint or information. To convict him of an offense other than that
charged in the complaint or information would be violative of the
Constitutional right to be informed of the nature and cause of the
accusation.[11] Indeed, the accused cannot be convicted of a crime, even if
duly proven, unless the crime is alleged or necessarily included in the
information filed against him.
The crime of estafacharged against petitioner was defined and penalized by
Article 315, paragraph 1 (b), Revised Penal Code, viz:
Article 315. Swindling (estafa). Any person who shall defraud another by any
of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision

mayor in its minimum period, if the amount of the fraud is over 12,000 pesos
but does not exceed 22,000 pesos, and if such amount exceeds the latter sum,
the penalty provided in this paragraph shall be imposed in its maximum
period, adding one year for each additional 10,000 pesos; but the total
penalty which may be imposed shall not exceed twenty years. In such cases,
and in connection with the accessory penalties which may be imposed under
the provisions of this Code, the penalty shall be termed prision mayor or
reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and medium periods,
if the amount of the fraud is over 6,000 pesos but does not exceed 12,000
pesos;
3rd. The penalty of arresto mayor in its maximum period to prision

correccional in its minimum period if such amount is over 200 pesos but does
not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount does not exceed
200 pesos, provided that in the four cases mentioned, the fraud be committed
by any of the following means:
xxx
1. With unfaithfulness or abuse of confidence, namely:
xxx
(b) By misappropriating or converting, to the prejudice of another, money,

goods, or any other personal property received by the offender in trust or on
commission, or for administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though such obligation
be totally or partially guaranteed by a bond; or by denying having received
such money, goods, or other property.
xxx
The elements of the offense charged were as follows:
(a) That the offender received money, goods or other personal property in
trust, or on commission, or for administration, or under any other obligation
involving the duty to make delivery of, or to return, the same;
(b) That the offender misappropriated or converted such money, goods or

other personal property, or denied his part in its receipt;
(c) That the misappropriation or conversion or denial was to the prejudice of
another; and
(d) That the offended party made a demand on the offender for the delivery
or return of such money, goods or other personal property.[12]
According to the theory and proof of the Prosecution, petitioner

misappropriated or converted the sums paid by her customers, and later
falsified the duplicates of the receipts before turning such duplicates to her
employer to show that the customers had paid less than the amounts actually
reflected on the original receipts. Obviously, she committed the falsification
in order to conceal her misappropriation or conversion. Considering that the
falsificationwas not an offense separate and distinct from the estafacharged
against her, the Prosecution could legitimately prove her acts of falsification
as its means of establishing her misappropriation or conversion as an
essential ingredient of the crime duly alleged in the information. In that
manner, her right to be informed of the nature and cause of the accusation
against her was not infringed or denied to her.
We consider it inevitable to conclude that the information herein completely

pleaded the estafa defined and penalized under Article 315, paragraph 1 (b),
Revised Penal Codewithin the context of the substantive lawand the rules.
Verily, there was no necessity for the information to allege the acts of
falsification by petitioner because falsification was not an element of the
estafacharged.
Not surprisingly,the RTC correctly dealt in its decision with petitioners

concern thuswise:
In her Memorandum, it is the contention of [the] accused that [the]
prosecutions evidence utterly fails to prove the crime charged. According to
the defense, the essence of Karen Guivencans testimony is that the accused
falsified the receipts issued to the customers served by her by changing or
altering the amounts in the duplicates of the receipts and therefore, her
testimony is immaterial and irrelevant as the charge is misappropriation
under Art. 315, paragraph (1b) of the Revised Penal Code and there is no
allegation whatsoever of any falsification or alteration of amounts in the
[i]nformation under which the accused was arraigned and pleaded NOT
GUILTY. Accused, thus, maintains that the testimony of Karen Guivencan
should therefore not be considered at all as it tended to prove an offense not
charged or included in the [i]nformation and would violate [the] accuseds
constitutional and statutory right to be informed of the nature and cause of
the accusation against her. The Court is not in accord with such posture of the
accused.
It would seem that the accused is of the idea that because the crime charged
in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of
documents, the prosecution could not prove falsification. Such
argumentation is not correct. Since the information charges accused only of
misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code,
the Court holds that there is no necessity of alleging the falsification in the
Information as it is not an element of the crime charged.
Distinction should be made as to when the crimes of Estafa and Falsification

will constitute as one complex crime and when they are considered as two
separate offenses. The complex crime of Estafa Through Falsification of
Documents is committed when one has to falsify certain documents to be
able to obtain money or goods from another person. In other words, the
falsification is a necessary means of committing estafa. However, if the
falsification is committed to conceal the misappropriation, two separate
offenses of estafa and falsification are committed. In the instant case, when
accused collected payments from the customers, said collection which was in
her possession was at her disposal. The falsified or erroneous entries which
she made on the duplicate copies of the receipts were contrived to conceal
some amount of her collection which she did not remit to the company
xxx.[13]
II
Testimonial and documentary evidence,being hearsay,
did not prove petitioners guilt beyond reasonable doubt
Nonetheless, in all criminal prosecutions, the Prosecution bears the burden

to establish the guilt of the accused beyond reasonable doubt. In discharging
this burden, the Prosecutions duty is to prove each and every element of the
crime charged in the information to warrant a finding of guilt for that crime
or for any other crime necessarily included therein.[14] The Prosecution must
further prove the participation of the accused in the commission of the
offense.[15]In doing all these, the Prosecution must rely on the strength of its
own evidence, and not anchor its success upon the weakness of the evidence
of the accused. The burden of proof placed on the Prosecution arises from
the presumption of innocence in favor of the accused that no less than the
Constitution has guaranteed.[16]Conversely, as to his innocence, the accused
has no burden of proof,[17]that he must then be acquitted and set free should
the Prosecution not overcome the presumption of innocence in his favor.In
other words, the weakness of the defense put up by the accused is
inconsequential in the proceedings for as long as the Prosecution has not
discharged its burden of proof in establishing the commission of the crime
charged and in identifying the accused as the malefactor responsible for it.
Did the Prosecution adduce evidence that proved beyond reasonable doubt
the guilt of petitioner for the estafa charged in the information?
To establish the elements of estafaearlier mentioned, the Prosecution

presented the testimonies of Go and Guivencan, and various
documentsconsisting of: (a) the receipts allegedly issued by petitioner to each
of her customers upon their payment, (b) the ledgers listing the accounts
pertaining to each customer with the corresponding notations of the receipt
numbers for each of the payments, and (c) the confirmation sheets
accomplished by Guivencan herself.[18]The ledgers and receipts were
marked and formally offered as Exhibits B to YY, and their derivatives,
inclusive.
On his part, Go essentially described for the trial court the various duties of
petitioner as Footluckers sales representative. On her part, Guivencan
conceded having no personal knowledge of the amounts actually received by
petitioner from the customersor remitted by petitioner to Footluckers.This
means that persons other than Guivencan prepared Exhibits B to YY and their
derivatives, inclusive,and that Guivencan based her testimony on the entries
found in the receipts supposedly issued by petitioner and in the ledgers held
by Footluckers corresponding to each customer, as well as on the unsworn
statements of some of the customers. Accordingly, her being the only witness
who testified on the entries effectively deprived the RTC of the reasonable
opportunity to validate and test the veracity and reliability of the entries as
evidence of petitioners misappropriation or conversion through cross-
examination by petitioner. The denial of that opportunity rendered theentire
proof of misappropriation or conversion hearsay, and thus unreliable and
untrustworthy for purposes of determining the guilt or innocence of the
accused.
To elucidate why the Prosecutions hearsay evidence was unreliable and

untrustworthy, and thus devoid of probative value, reference is made
toSection 36 of Rule 130, Rules of Court, a rule that states that a witness can
testify only to those facts that she knows of her personal knowledge; that is,
which are derived from her own perception, except as otherwise provided in
the Rules of Court. The personal knowledge of a witness is a substantive
prerequisite for accepting testimonial evidence that establishes the truth of a
disputed fact. A witness bereft ofpersonal knowledge of the disputed fact
cannot be called upon for that purpose because her testimony derives its
value not from the credit accorded to her as a witness presently testifying but
from the veracity and competency of the extrajudicial source of her
information.
In case a witness is permitted to testify based on what she has heard another
person say about the facts in dispute, the person from whom the witness
derived the information on the facts in dispute is not in court and under oath
to be examined and cross-examined. The weight of such testimony
thendepends not upon theveracity of the witness but upon the veracity of the
other person giving the information to the witness without oath. The
information cannot be tested because the declarant is not standing in court
as a witness andcannot, therefore, be cross-examined.
It is apparent, too, that a person who relates a hearsay is not obliged to enter
into any particular, to answer any question, to solve any difficulties, to
reconcile any contradictions, to explain any obscurities, to remove any
ambiguities; and that she entrenches herself in the simple assertion that she
was told so, and leaves the burden entirely upon the dead or absent
author.[19] Thus, the rule against hearsay testimony rests mainly on the
ground that there was no opportunity to cross-examine the declarant.[20]
The testimony may have been given under oath and before a court of justice,
but if it is offered against a party who is afforded no opportunity to cross-
examine the witness, it is hearsay just the same.[21]
Moreover, the theory of the hearsay rule is that when a human utterance is
offered as evidence of the truth of the fact asserted, the credit of the assertor
becomes the basis of inference, and, therefore, the assertion can be received
as evidence only when made on the witness stand, subject to the test of cross-
examination. However, if an extrajudicial utterance is offered, not as an
assertion to prove the matter asserted but without reference to the truth of
the matter asserted, the hearsay rule does not apply. For example, in a
slander case, if a prosecution witness testifies that he heard the accused say
that the complainant was a thief, this testimony is admissible not to prove
that the complainant was really a thief, but merely to show that the accused
uttered those words.[22] This kind of utterance ishearsay in character but is
not legal hearsay.[23]The distinction is, therefore, between (a) the fact that
the statement was made, to which the hearsay rule does not apply, and (b)
the truth of the facts asserted in the statement, to which the hearsay rule
applies.[24]
Section 36, Rule 130 of the Rules of Court is understandably not the only rule
that explains why testimony that is hearsay should be excluded from
consideration. Excluding hearsay also aims to preserve the right of the
opposing party to cross-examine the originaldeclarant claiming to have a
direct knowledge of the transaction or occurrence.[25]If hearsay is allowed,
the right stands to be denied because the declarant is not in court.[26]It is
then to be stressed that the right to cross-examine the adverse partys
witness,
being the only means of testing the credibility of witnesses and their
testimonies, is essential to the administration of justice.
To address the problem of controlling inadmissible hearsay as evidence to

establish the truth in a dispute while also safeguardinga partys right to cross-
examine her adversarys witness,the Rules of Court offers two solutions. The
firstsolution is to require that allthe witnesses in a judicial trial or hearing be
examined only in courtunder oath or affirmation. Section 1, Rule 132 of the
Rules of Court formalizes this solution,viz:
Section 1. Examination to be done in open court. - The examination of

witnesses presented in a trial or hearing shall be done in open court, and
under oath or affirmation. Unless the witness is incapacitated to speak, or the
question calls for a different mode of answer, the answers of the witness shall
be given orally. (1a)
The secondsolution is to require that all witnesses besubject to the cross-

examination by the adverse party. Section 6, Rule 132 of the Rules of
Courtensuresthis solutionthusly:
Section 6. Cross-examination; its purpose and extent. Upon the termination

of the direct examination, the witness may be cross-examined by the adverse
party as to any matters stated in the direct examination, or connected
therewith, with sufficient fullness and freedom to test his accuracy and
truthfulness and freedom from interest or bias, or the reverse, and to elicit all
important facts bearing upon the issue. (8a)
Although the second solution traces its existence to a Constitutional precept
relevant to criminal cases, i.e., Section 14, (2), Article III, of the 1987
Constitution,which guarantees that: In all criminal prosecutions, the accused
shall xxx enjoy the right xxx to meet the witnesses face to face xxx, the rule
requiring the cross-examination by the adverse party equally applies to non-
criminal proceedings.
We thus stress that the rule excluding hearsay as evidence is based upon
serious concerns about the trustworthiness and reliability of hearsay
evidence due to its not being given under oath or solemn affirmation and due
to its not being subjected to cross-examination by the opposing counsel to
test the perception, memory, veracity and articulateness of the out-of-court
declarant or actor upon whose reliability the worth of the out-of-court
statement depends.[27]
Based on the foregoing considerations, Guivencans testimony as well as

Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as
proof of petitioners misappropriation or conversion.
III
Lack of their proper authentication rendered
Exhibits B to YY and their derivatives
inadmissible as judicial evidence
Petitioner also contends that the RTC grossly erred in admitting as evidence
Exhibits B to YY, and their derivatives, inclusive, despite their being private
documents that were not duly authenticated as required by Section 20, Rule
132 of the Rules of Court.
Section 19, Rule 132 of the Rules of Courtdistinguishes between a public

document and a private document for the purpose of their presentation in
evidence, viz:
Section 19. Classes of documents. For the purpose of their presentation in

evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country;
(b) Documents acknowledged before a notary public except last wills and
testaments, and
(c) Public records, kept in the Philippines, of private documents required by

law to be entered therein.
All other writings are private.
The nature of documents as either public or private determines how the

documents may be presented as evidence in court. A public document, by
virtue of its official or sovereign character, or because it has been
acknowledged before a notary public (except a notarial will) or a competent
public official with the formalities required by law, or because it is a public
record of a private writing authorized by law, is self-authenticating and
requires no further authentication in order to be presented as evidence in
court.In contrast, a private document is any other writing, deed, or
instrument executed by a private person without the intervention of a notary
or other person legally authorized by which some disposition or agreement is
proved or set forth. Lacking the official or sovereign character of a public
document, or the solemnities prescribed by law, a private document requires
authentication in the manner allowed by law or the Rules of Court before its
acceptance as evidence in court. The requirement of authentication of a
private document is excused only in four instances, specifically: (a) when the
document is an ancient one within the context of Section 21,[28] Rule 132 of
the Rules of Court; (b) when the genuineness and authenticity of an
actionable document have not been specifically denied under oath by the
adverse party;[29](c) when thegenuineness and authenticity of the document
have been admitted;[30] or (d) when the document is not being offered as
genuine.[31]
There is no question that Exhibits B to YY and their derivatives were private

documents because private individuals executed or generated them for
private or business purposes or uses. Considering that none of the exhibits
came under any of the four exceptions, they could not be presented and
admitted as evidence against petitioner without the Prosecution dutifully
seeing to their authentication in the manner provided in Section20 of Rule
132 of the Rules of Court,viz:
Section 20. Proof of private documents. Before any private document offered
as authentic is received in evidence, its due execution and authenticity must
be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of the

maker.
Any other private document need only be identified as that which it is claimed
to be.
The Prosecutionattempted to have Go authenticate the signature of

petitioner in various receipts, to wit:
ATTY. ABIERA:
Q. Now, these receipts which you mentioned which do not tally with the
original receipts, do you have copies of these receipts?
A. Yes, I have a copy of these receipts, but its not now in my possession.
Q. But when asked to present those receipts before this Honorable Court, can
you assure this
(Next Page)
ATTY ABIERA (continuing):

Honorable Court that you will be able to present those receipts?
A. Yes.
Q. You are also familiar with the signature of the accused in this case, Anna
Lerima Patula?
A. Yes.
Q. Why are you familiar with the signature of the accused in this case?
A. I used to see her signatures in the payroll and in the receipts also.
Q. Okay, I have here a machine copy of a receipt which we would present
this,or offer the same as soon as the original receipts can be presented, but
for purposes only of your testimony, Im going to point to you a certain
signature over this receipt number FLDT96 20441, a receipt from Cirila Askin,
kindly go over the signature and tell the Honorable Court whether you are
familiar with the signature?
A. Yes, that is her signature.
INTERPRETER:
Witness is pointing to a signature above the printed word collector.
(Next Page)
ATTY. ABIERA:
Q. Is this the only receipt wherein the name, the signature rather, of the
accused in this case appears?
A. That is not the only one, there are many receipts.
ATTY. ABIERA:
In order to save time, Your Honor, we will just be presenting the original
receipts Your Honor, because its quite voluminous, so we will just forego with
the testimony of the witness but we will just present the same using the
testimony of another witness, for purposes of identifying the signature of the
accused. We will request that this signature which has been identified to by
the witness in this case be marked, Your Honor, with the reservation to
present the original copy and present the same to offer as our exhibits but for
the meantime, this is only for the purposes of recording, Your Honor, which
we request the same, the receipt which has just been identified awhile ago
be marked as our Exhibit A You Honor.
COURT:
Mark the receipt as Exhibit A.
ATTY. ABIERA:
And the signature be bracketed and be marked as Exhibit A-1.
(Next Page)
COURT:
Bracket the signature &mark it as Exh. A-1. What is the number of that
receipt?
ATTY. ABIERA:
Receipt No. 20441 dated August 4, 1996 the statement that: received from
Cirila Askin.[32]
xxx
As the excerpts indicate, Gos attempt at authentication of the signature of

petitioner on the receipt with serial number FLDT96 No. 20441 (a document
that was marked as Exhibit A, while the purported signature of petitioner
thereon was marked as Exhibit A-1) immediately fizzled out after the
Prosecution admitted that the document was a meremachinecopy, not the
original. Thereafter, as if to soften its failed attempt, the Prosecution
expressly promised to produce at a later date the originalsof the receipt with
serial number FLDT96 No. 20441 and other receipts. But that promise was not
even true, because almost in the same breath the Prosecution offered to
authenticate the signature of petitioner on the receiptsthrougha different
witness (though then still unnamed). As matters turned out in the end, the
effort to have Go authenticate both themachinecopy of the receiptwith serial
number FLDT96 No. 20441 and the signature of petitioner on that receipt was
wasteful because the machine copy was inexplicablyforgotten and was no
longer evenincluded in the Prosecutions Offer of Documentary Evidence.
It is true that the original of the receipt bearing serial number FLDT96 No.
20441was subsequentlypresented as Exhibit Bthrough Guivencan.
However,the Prosecution did not establishthat the signature appearing on
Exhibit B was the same signature that Go had earliersought to identify to be
the signature of petitioner (Exhibit A-1) on the machine copy (Exhibit A). This
is borne out by the fact that the Prosecution abandoned Exhibit A as the
marking nomenclature for the machine copyof the receipt bearing serial
number FLDT96 No. 20441 for all intents and purposes of this case, and used
the same nomenclature to referinstead toan entirely differentdocument
entitled List of Customers covered by ANA LERIMA PATULA w/difference in
Records as per Audit duly verified March 16-20, 1997.
In her case, Guivencans identification of petitioners signature on two receipts

based alone on the fact that the signatures contained the legible family name
of Patula was ineffectual, and exposed yet another deep flaw infecting the
documentary evidence against petitioner. Apparently, Guivencan could not
honestly identify petitioners signature on the receipts either because she
lacked familiarity with such signature, or because she had not seen petitioner
affix her signature on the receipts, as the following excerpts from her
testimony bear out:
ATTY. ZERNA to witness:

Q. There are two (2) receipts attached here in the confirmation sheet,
will you go over these Miss witness?
A. This was the last payment which is fully paid by the customer. The
other receipt is the one showing her payment prior to the last payment.
COURT:
Q. Where did you get those two (2) receipts?
A. From the customer.
Q. And who issued those receipts?
A. The saleswoman, Miss Patula.
ATTY. ZERNA:
We pray, Your Honor, that this receipt identified be marked as Exhibit B-3,
receipt number 20441.
(Next Page)
COURT:
Mark it.
ATTY. ZERNA:
The signature of the collector be marked as
Q. By the way, there is a signature above the name of the collector, are your
familiar with that signature? (shown to witness)
A. Yes.
Q. Whose signature is that?
A. Miss Patula.
Q. How do you know?
A. It can be recognized because of the word Patula.
Q. Are you familiar with her signature?
A. Yes.
ATTY. ZERNA:
We pray that the signature be bracketed and marked as Exhibit B-3-a
COURT:
Mark it.
ATTY. ZERNA:
The other receipt number 20045 be marked as Exhibit B-4 and the signature
as Exhibit B-4-a.
COURT:
Mark it.[33]
xxx
ATTY. ZERNA:
Q. Ms. Witness, here is a receipt colored white, number 26603 issued to one
Divina Cadilig. Will you please identify this receipt if this is the receipt of your
office?
A.Yes.
Q.There is a signature over the portion for the collector. Whose signature is
this?
A.Ms. Patula.
Q.How do you know that this is her signature?
A.Because we can read the Patula.[34]
We also have similar impressions of lack of proper authentication as to the

ledgers the Prosecution presented to prove the discrepancies between the
amountspetitioner hadallegedly received from the customers and the
amounts she had actually remitted to Footluckers. Guivencanexclusively
relied on the entries of the unauthenticated ledgersto support her audit
report on petitioners supposed misappropriation or conversion, revealing her
lack of independent knowledge of the veracity of the entries, as the following
excerpts of her testimony show:
Q. What is your basis of saying that your office records showed that this
Cecilia Askin has an account of P10,791.75?
ATTY. DIEZ:
The question answers itself, You Honor, what is the basis, office record.
COURT:
Let the witness answer.
WITNESS:
A. I made the basis on our ledger in the office. I just copied that and showed
it to the customers for confirmation.

Q. What about the receipts?
COURT:
Make a follow-up question and what was the result when you copied that
amount in the ledger and you had it confirmed by the customers, what was
the result when you had it confirmed by the customers?
WITNESS:
A. She has no more balance but in our office she has still a balance of
P10,971.75.
Q. Do you have a-whats the basis of saying that the balance of this customer
is still P10,971.75
(Next Page)
ATTY. ZERNA (continuing):

[i]n your office?
COURT:
That was already answered paero, the office has a ledger.
Q. Now, did you bring the ledger with you?
A. No, Maam.[35]
(Continuation of the Direct Examination of

Karen Guivencan on August 13, 2002)

Q. Okay, You said there are discrepancies between the original and the
duplicate, will you please enlighten the Honorable Court on that discrepancy
which you said?
A. Like in this case of Cirila Askin, she has already fully paid. Her ledger shows
a zero balance she has fully paid while in the original
(Next page)
WITNESS (continuing):
[r]eceipt she has a balance of Ten Thousand Seven hundred Ninety-one Pesos
and Seventy-five Centavos (10,791.75).
COURT:
Q. What about the duplicate receipt, how much is indicated there?
A. The customer has no duplicate copy because it was already forwarded to
the Manila Office.
Q. What then is your basis in the entries in the ledger showing that it has
already a zero balance?
A. This is the copy of the customer while in the office, in the original receipt
she has still a balance.
xxx
ATTY. ZERNA:
The confirmation sheet ---
COURT:
The confirmation sheet was the one you referred to as the receipt in your
earlier testimony? Is that what you referred to as the receipts, the original
receipts?
A. This is what I copied from the ledger.
Q. So where was that(sic) original receipt which you said showed that that
particular customer still has a balance of Ten Thousand something?
A. The receipt is no longer here.
Q. You mean the entry of that receipt was already entered in the ledger?
A. Yes.[36]
In the face of the palpable flaws infecting the Prosecutions evidence, it should
come as no surprise that petitioners counsel interposed timely objections.
Yet, the RTC mysteriously overruled the objections and allowedthe
Prosecutionto present the unauthenticated ledgers, as follows:
(Continuation of the Direct Examination of
Witness Karen Guivencan on September 11, 2002)
ATTY. ZERNA:
CONTINUATION OF DIRECT-EXAMINATION
Q Ms. Witness, last time around you were showing us several ledgers. Where
is it now?
A It is here.
Q Here is a ledger of one Divina Cadilig. This Divina Cadilig, how much is her
account in your office?
ATTY. DIEZ:
Your Honor please before the witness will proceed to answer the question,
let me interpose our objection on the ground that this ledger has not been
duly identified to by the person who made the same. This witness will be
testifying on hearsay matters because the supposed ledger was not identified
to by the person who made the same.
COURT:
Those ledgers were already presented in the last hearing. I think they were
already duly identified by this witness. As a matter of fact, it was she who
brought them to court
(Next Page)
COURT (cont.):
because these were the ledgers on file in their office.
ATTY. DIEZ
That is correct, Your Honor, but the person who made the entries is not this
witness, Your Honor. How do we know that the entries there is (sic) correct
on the receipts submitted to their office.
COURT:
Precisely, she brought along the receipts also to support that. Let the witness
answer.
WITNESS:
A Its the office clerk in-charge.
COURT:
The one who prepared the ledger is the office clerk.
ATTY. ZERNA:
She is an auditor, Your Honor. She has been qualified and she is the auditor
of Footluckers.
COURT:
I think, I remember in the last setting also, she testified where those entries
were taken. So, you answer the query of counsel.
xxx
ATTY. DIEZ:
Your Honor please, to avoid delay, may I interpose a continuing objection to
the questions profounded(sic) on those ledgers on the ground that, as I have
said, it is hearsay.
COURT:
Okey(sic). Let the continuing objection be noted.
Q (To Witness) The clerk who allegedly was the one who prepared the entries
on those ledgers, is she still connected with Footluckers?
A She is no longer connected now, Your Honor,
COURT:
Alright proceed.
(Next Page)
ATTY. ZERNA:
Your Honor, these are entries in the normal course of business. So, exempt
from the hearsay rule.
COURT:
Okey(sic), proceed.[37]
The mystery shrouding the RTCs soft treatment of the Prosecutions flawed
presentation was avoidable simply by the RTC adhering to the instructions of
the rules earlier quoted, as well as withSection 22 of Rule 132 of the Rules of
Court,which contains instructions on how to prove the genuineness of a
handwriting in a judicial proceeding, as follows:
Section 22. How genuineness of handwriting proved. The handwriting of a

person may be proved by any witness who believes it to be the handwriting
of such person because he has seen the person write, or has seen writing
purporting to be his upon which the witness has acted or been charged, and
has thus acquired knowledge of the handwriting of such person. Evidence
respecting the handwriting may also be given by a comparison, made by the
witness or the court, with writings admitted or treated as genuine by the
party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge. (Emphases supplied)
If it is already clear that Go and Guivencan had not themselves seen the
execution or signing of the documents,the Prosecution surely did not
authenticate Exhibits B to YY and their derivatives conformably with the
aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive,
were inescapably bereft of probative value as evidence. That was the onlyfair
and just result, as the Court held in Malayan Insurance Co., Inc. v. Philippine
Nails and Wires Corporation:[38]
On the first issue, petitioner Malayan Insurance Co., Inc., contends that
Jeanne Kings testimony was hearsay because she had no personal knowledge
of the execution of the documents supporting respondents cause of action,
such as the sales contract, invoice, packing list, bill of lading, SGS Report, and
the Marine Cargo Policy. Petitioner avers that even though King was
personally assigned to handle and monitor the importation of Philippine Nails
and Wires Corporation, herein respondent, this cannot be equated with
personal knowledge of the facts which gave rise to respondents cause of
action. Further, petitioner asserts, even though she personally prepared the
summary of weight of steel billets received by respondent, she did not have
personal knowledge of the weight of steel billets actually shipped and
delivered.
At the outset, we must stress that respondents cause of action is founded on

breach of insurance contract covering cargo consisting of imported steel
billets. To hold petitioner liable, respondent has to prove, first, its importation
of 10,053.400 metric tons of steel billets valued at P67,156,300.00, and
second, the actual steel billets delivered to and received by the importer,
namely the respondent. Witness Jeanne King, who was assigned to handle
respondents importations, including their insurance coverage, has personal
knowledge of the volume of steel billets being imported, and therefore
competent to testify thereon. Her testimony is not hearsay, as this doctrine is
defined in Section 36, Rule 130 of the Rules of Court.However, she is not
qualified to testify on the shortage in the delivery of the imported steel billets.
She did not have personal knowledge of the actual steel billets received. Even
though she prepared the summary of the received steel billets, she based the
summary only on the receipts prepared by other persons. Her testimony on
steel billets received was hearsay. It has no probative value even if not
objected to at the trial.
On the second issue, petitioner avers that King failed to properly authenticate
respondents documentary evidence. Under Section 20, Rule 132, Rules of
Court, before a private document is admitted in evidence, it must be
authenticated either by the person who executed it, the person before whom
its execution was acknowledged, any person who was present and saw it
executed, or who after its execution, saw it and recognized the signatures, or
the person to whom the parties to the instruments had previously confessed
execution thereof. In this case, respondent admits that King was none of the
aforementioned persons. She merely made the summary of the weight of
steel billets based on the unauthenticated bill of lading and the SGS report.
Thus, the summary of steel billets actually received had no proven real basis,
and Kings testimony on this point could not be taken at face value.
xxx Under the rules on evidence, documents are either public or private.
Private documents are those that do not fall under any of the enumerations
in Section 19, Rule 132 of the Rules of Court.Section 20of the same law, in
turn, provides that before any private document is received in evidence, its
due execution and authenticity must be proved either by anyone who saw the
document executed or written, or by evidence of the genuineness of the
signature or handwriting of the maker. Here, respondents documentary
exhibits are private documents. They are not among those enumerated in
Section 19, thus, their due execution and authenticity need to be proved
before they can be admitted in evidence.With the exception concerning the
summary of the weight of the steel billets imported, respondent presented
no supporting evidence concerning their authenticity. Consequently, they
cannot be utilized to prove less of the insured cargo and/or the short delivery
of the imported steel billets. In sum, we find no sufficient competent evidence
to prove petitioners liability.
That the Prosecutions evidence was left uncontested because petitioner

decided not to subject Guivencan to cross-examination, and did not tender
her contrary evidencewas inconsequential. Although the trial court had
overruled the seasonable objections to Guivencans testimony bypetitioners
counsel due to the hearsay character, it could not be denied thathearsay
evidence, whether objected to or not, had no probative value.[39]Verily, the
flaws of the Prosecutions evidence were fundamental and substantive, not
merely technical and procedural, and were defects that the adverse partys
waiver of her cross-examination or failure to rebutcould not set right or cure.
Nor did the trial courts overruling of petitioners objections imbue the flawed
evidence with any virtue and value.
Curiously, the RTC excepted the entries in the ledgers from the application of
the hearsay rule by also terselystating that the ledgers were prepared in the
regular course of business.[40]Seemingly, the RTC applied Section 43, Rule
130 of the Rules of Court, to wit:
Section 43. Entries in the course of business. Entries made at, or near the time
of the transactions to which they refer, by a person deceased, or unable to
testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his
professional capacity or in the performance of duty and in the ordinary or
regular course of business or duty.
This was another grave error of the RTC.The terse yet sweeping mannerof
justifying the application of Section 43 was unacceptable due to the need to
show the concurrence of the several requisites before entries in the course of
business could be excepted from the hearsay rule. The requisites are as
follows:
(a) The person who made the entry must be dead or unable to testify;
(b) The entries were made at or near the time of the transactions to which
they refer;
(c) The entrant was in a position to know the facts stated in the entries;
(d) The entries were made in his professional capacity or in the performance
of a duty, whether legal, contractual, moral, or religious;
(e) The entries were made in the ordinary or regular course of business or
duty.[41]
The Court has to acquit petitioner for failure of the State to establish her guilt
beyond reasonable doubt. The Court reiterates that in the trial of every
criminal case, a judge must rigidly test the States evidence of guilt in order to
ensure that such evidence adhered to the basic rules of admissibility before
pronouncing an accused guilty of the crime charged upon such evidence. The
failure of the judge to do so herein nullified the guarantee of due of process
of law in favor of the accused, who had no obligation to prove her innocence.
Heracquittal should follow.
IV
No reliable evidence on damage
Conformably with finding the evidence of guilt unreliable, the Court declares
that the disposition by the RTC ordering petitioner to indemnify Footluckers
in the amount of P131,286.92 with interest of 12% per annum until fully paid
was not yet shown to be factually founded. Yet, she cannot now be absolved
of civil liability on that basis. Heracquittal has to bedeclared as without
prejudice to the filing of a civil action against her for the recovery of any
amount that she may still owe to Footluckers.
WHEREFORE, the Court SETS ASIDE ANDREVERSESthe decision convicting
ANNA LERIMA PATULAof estafa as charged, and ACQUITS her for failure of the
Prosecution to prove her guilt beyond reasonable doubt, without prejudice
to a civil action brought against her for
the recoveryof any amount still owing in favor of Footluckers Chain of Stores,
Inc.
No pronouncement on costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
TERESITA J. LEONARDO-DE CASTRO MARIANO C. DEL CASTILLO
MARTIN S. VILLARAMA, JR.

Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice
[1] Rollo, p. 22.

[2] TSN, September 15, 2000; March 7 and 30, 2001.
[3] TSN, April 4, 2002; August 13, 2002; September 11, 2002; September 12,
2002; and November 20, 2002.
[4] TSN, September 11, 2002, pp. 3-7
[5] Rollo, p. 23-27.
[6] Id., p. 27.
[7] Id., p. 40.
[8] Id., p. 43.
[9] Id., pp. 45-46.
[10] Id., p. 10.
[11] People v. Manalili, G. R. No. 121671, August 14, 1998, 294 SCRA 220, 252;
People v. Ortega, Jr., GR No. 116736, July 24, 1997, 276 SCRA 166, 187; People
v. Guevarra, G.R. No. 66437, December 4, 1989, 179 SCRA 740, 751; Matilde,
Jr. v. Jabson, No. L-38392, December 29, 1975, 68 SCRA 456, 261; United
States v. Campo, No. 7321, 23 Phil. 368, 371-372 (1912).
[12] Barrameda v. Court of Appeals, G.R. No. 96428, September 2, 1999, 313
SCRA 477, 484.
[13] Rollo, pp. 41-42 (bold emphasis supplied).
[14] Andaya v. People, G.R. No. 168486, June 27, 2006, 493 SCRA 539, 556-
557.
[15] People v. Esmale, G.R. Nos. 102981-82, April 21, 1995, 243 SCRA 578,
592.
[16] Section 14, (2), Article III (Bill of Rights).
[17] People v. Arapok, G.R. No. 134974, December 8, 2000, 347 SCRA 479,
498.
[18] Supra, at note 1.
[19] 5 Moran, Comments on the Rules of Court, 1963 Edition, pp. 267-268;
citing Coleman v. Southwick, 9 Johnson (N.Y.), 45, 50, 6 Am. Dec. 253.
[20] Id., citing Minea v. St. Louis Corp., 179 Mo. A., 705, 716, 162 S.W. 741.
[21] Id., p. 268.
[22] Wigmore, Sec. 1766; Tracys Handbook, 62 Ed., pp. 220-221.
[23] Id.
[24] 20 Am Jur 404.
[25] People v. Pagkaliwagan, 76 Phil. 457, 460 (1946).
[26] Donnelly v. United States, 228 US 243.
[27] Gulam v. Santos,G.R. No. 151458, August 31, 2006, 500 SCRA 463, 473.
[28] Section 21. When evidence of authenticity of private document not
necessary. - Where a private document is more than thirty years old, is
produced from a custody in which it would naturally be found if genuine, and
is unblemished by any alterations or circumstances of suspicion, no other
evidence of its authenticity need be given. (22 a)
[29] Section 8, Rule 8, Rules of Court, which states:
Section 8. How to contest such documents. When an action or defense is
founded upon a written instrument, copied in or attached to the
corresponding pleading as provided in the preceding section, the genuineness
and due execution of the instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an oath does not apply when
the adverse party does not appear to be a party to the instrument or when
compliance with an order for an inspection of the original instrument is
refused. (8a)
[30] Section 4, Rule 129, Rules of Court, which provides:
Section 4. Judicial admissions. - An admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing that it was made
through palpable mistake or that no such admission was made. (2a)
[31] Section 20, Rule 132, Rules of Court.
[32] TSN, September 15, 2000, pp. 13-16.
[33] TSN, August 13, 2002, pp. 15-16.
[34] TSN, September 11, 2002, p. 9.
[35] TSN, April 4, 2002, pp. 20-21.
[36] TSN, August 13, 2002, pp. 10-14.
[37] TSN, September 11, 2002, pp. 3-7
[38] G.R. No. 138084, April 10, 2002, 380 SCRA 374, 378-379.
[39] Id., citing Eugenio v. Court of Appeals, G.R. No. 103737, December 15,
1994, 239 SCRA 207, 220.
[40] Rollo, p. 42.
[41] II Regalado, Remedial Law Compendium, Ninth Edition, p. 652.
20. G.R. No. 179061
SECOND DIVISION
SHEALA P. MATRIDO,
Petitioner,
- versus -

Respondent.
G.R. No. 179061
Present:
QUISUMBING, J., Chairperson,

CARPIO MORALES,
CHICO-NAZARIO,*
LEONARDO-DE CASTRO,** and
BRION, JJ.
Promulgated:
July 13, 2009
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
DECISION
CARPIO MORALES, J.:

Sheala Matrido (petitioner) assails the May 31, 2007 Decision and August 1,
2007 Resolution of the Court of Appeals,[1] which affirmed the trial courts
Decision of December 13, 2004 convicting her of qualified theft.
As a credit and collection assistant of private complainant Empire East Land

Holdings, Inc., petitioner was tasked to collect payments from buyers of real
estate properties such as Laguna Bel-Air developed by private complainant,
issue receipts therefor, and remit the payments to private complainant in
Makati City.
On June 10, 1999, petitioner received amortization payment from one
Amante dela Torre in the amount of P22,470.66 as evidenced by the owners
copy[2] of Official Receipt No. 36547, but petitioner remitted only P4,470.66
to private complainant as reflected in the treasury departments copy[3] of
Official Receipt No. 36547 submitted to private complainant, both copies of
which bear the signature of petitioner and reflect a difference of P18,000.
On private complainants investigation, petitioner was found to have failed to

remit payments received from its clients, prompting it to file various
complaints, one of which is a Complaint-Affidavit of September 21, 2000[4]
for estafa, docketed as I.S. No. 2000-I-32381 in the Makati Prosecutors Office.
In the meantime or in October 2000, petitioner paid private complainant the

total amount of P162,000,[5] drawing private complainant to desist from
pursuing some related complaints. A few other cases including I.S. No. 2000-
I-32381 pushed through, however, since the amount did not sufficiently cover
petitioners admitted liability of P400,000.[6]
By Resolution of November 15, 2000,[7] the City Prosecution Office of Makati

dismissed the Complaint for estafa for insufficiency of evidence but found
probable cause to indict petitioner for qualified theft under an Information
which reads:
That on or about the 10th day of June 1999, in the City of Makati, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, being then a Credit and Collection Assistant employed by
complainant, EMPIRE EAST LAND HOLDINGS, INC., herein represented by
Leilani N. Cabuloy, and as such had access to the payments made by
complainants clients, with grave abuse of confidence, intent of gain and
without the knowledge and consent of the said complainant company, did
then and there willfully, unlawfully and feloniously take, steal and carry away
the amount of P18,000.00 received from Amante Dela Torre, a buyer of a
house and lot being marketed by complainant company, to the damage and
prejudice of the said complainant in the aforementioned amount of
P18,000.00.
CONTRARY TO LAW.[8]
On arraignment, petitioner entered a plea of not guilty.[9] After trial, Branch
56 of the Regional Trial Court (RTC) of Makati, by Decision of December 13,
2004 which was promulgated on April 28, 2005, convicted petitioner of
qualified theft, disposing as follows:
WHEREFORE, accused SHEALA P. MATRIDO is hereby sentenced to suffer the

indeterminate penalty of ten (10) years and one (1) day to twelve (12) years[,]
five (5) months and ten (10) days.
Accused is further ordered to pay complainant EMPIRE EAST LAND

HOLDINGS, INC., the amount of P18,000.00.
SO ORDERED.[10]
By the challenged Decision of May 31, 2007,[11] the Court of Appeals affirmed
the trial courts decision, hence, the present petition which raises the sole
issue of whether the appellate court gravely erred in affirming the decision of
the trial [court] convicting the petitioner of the crime of qualified theft
despite the fact that the prosecution tried to prove during the trial the crime
of estafa thus denying the petitioner the right to be informed of the nature
and cause of accusation against her[12]
Petitioner posits that despite her indictment for qualified theft, the
prosecution was trying to prove estafa during trial, thus violating her right to
be informed of the nature and cause of the accusation against her.
The petition fails.
In Andaya v. People,[13] the Court expounded on the constitutional right to

be informed of the nature and cause of the accusation against the accused.
x x x As early as the 1904 case of U.S. v. Karelsen, the rationale of this

fundamental right of the accused was already explained in this wise:
The object of this written accusation was First. To furnish the accused with
such a description of the charge against him as will enable him to make his
defense; and second, to avail himself of his conviction or acquittal for
protection against a further prosecution for the same cause; and third, to
inform the court of the facts alleged, so that it may decide whether they are
sufficient in law to support a conviction, if one should be had. In order that
this requirement may be satisfied, facts must be stated, not conclusions of
law. Every crime is made up of certain acts and intent; these must be set forth
in the complaint with reasonable particularity of time, place, names (plaintiff
and defendant), and circumstances. In short, the complaint must contain a
specific allegation of every fact and circumstances necessary to constitute the
crime charged.
It is fundamental that every element constituting the offense must be alleged

in the information. The main purpose of requiring the various elements of a
crime to be set out in the information is to enable the accused to suitably
prepare his defense because he is presumed to have no independent
knowledge of the facts that constitute the offense. The allegations of facts
constituting the offense charged are substantial matters and an accuseds
right to question his conviction based on facts not alleged in the information
cannot be waived. No matter how conclusive and convincing the evidence of
guilt may be, an accused cannot be convicted of any offense unless it is
charged in the information on which he is tried or is necessarily included
therein. To convict him of a ground not alleged while he is concentrating his
defense against the ground alleged would plainly be unfair and underhanded.
The rule is that a variance between the allegation in the information and proof
adduced during trial shall be fatal to the criminal case if it is material and
prejudicial to the accused so much so that it affects his substantial rights.[14]
(Citations omitted; underscoring supplied)
It is settled that it is the allegations in the Information that determine the

nature of the offense, not the technical name given by the public prosecutor
in the preamble of the Information. From a legal point of view, and in a very
real sense, it is of no concern to the accused what is the technical name of the
crime of which he stands charged. It in no way aids him in a defense on the
merits. That to which his attention should be directed, and in which he, above
all things else, should be most interested, are the facts alleged. The real
question is not did he commit a crime given in the law some technical and
specific name, but did he perform the acts alleged in the body of the
information in the manner therein set forth.[15]
Gauging such standard against the wording of the Information in this case,
the Court finds no violation of petitioners rights. The recital of facts and
circumstances in the Information sufficiently constitutes the crime of
qualified theft.
As alleged in the Information, petitioner took, intending to gain therefrom

and without the use of force upon things or violence against or intimidation
of persons, a personal property consisting of money in the amount P18,000
belonging to private complainant, without its knowledge and consent,
thereby gravely abusing the confidence reposed on her as credit and
collection assistant who had access to payments from private complainants
clients, specifically from one Amante Dela Torre.
As defined, theft is committed by any person who, with intent to gain, but
without violence against, or intimidation of persons nor force upon things,
shall take the personal property of another without the latters consent.[16] If
committed with grave abuse of confidence, the crime of theft becomes
qualified.[17]
In prcis, the elements of qualified theft punishable under Article 310 in

relation to Articles 308 and 309 of the Revised Penal Code (RPC) are as
follows:
1. There was a taking of personal property.

2. The said property belongs to another.
3. The taking was done without the consent of the owner.
4. The taking was done with intent to gain.
5. The taking was accomplished without violence or intimidation against
person, or force upon things.
6. The taking was done under any of the circumstances enumerated in
Article 310 of the RPC, i.e., with grave abuse of confidence.[18]
In the present case, both the trial court and the appellate court noted
petitioners testimonial admission of unlawfully taking the fund belonging to
private complainant and of paying a certain sum to exculpate herself from
liability. That the money, taken by petitioner without authority and consent,
belongs to private complainant, and that the taking was accomplished
without the use of violence or intimidation against persons, nor force upon
things, there is no issue.
Intent to gain or animus lucrandi is an internal act that is presumed from the
unlawful taking by the offender of the thing subject of asportation. Actual
gain is irrelevant as the important consideration is the intent to gain.[19]
The taking was also clearly done with grave abuse of confidence. As a credit
and collection assistant of private complainant, petitioner made use of her
position to obtain the amount due to private complainant. As gathered from
the nature of her functions, her position entailed a high degree of confidence
reposed by private complainant as she had been granted access to funds
collectible from clients. Such relation of trust and confidence was amply
established to have been gravely abused when she failed to remit the
entrusted amount of collection to private complainant.
The Court finds no rhyme or reason in petitioners contention that what the
prosecution tried to prove during trial was estafa through misappropriation
under Article 315(1)(b) of the RPC.
x x x The principal distinction between the two crimes is that in theft the thing
is taken while in estafa the accused receives the property and converts it to
his own use or benefit. However, there may be theft even if the accused has
possession of the property. If he was entrusted only with the material or
physical (natural) or de facto possession of the thing, his misappropriation of
the same constitutes theft, but if he has the juridical possession of the thing,
his conversion of the same constitutes embezzlement or estafa.[20]
(Underscoring supplied)
The appellate court correctly explained that conversion of personal property
in the case of an employee having material possession of the said property
constitutes theft, whereas in the case of an agent to whom both material and
juridical possession have been transferred, misappropriation of the same
property constitutes estafa.[21] Notably, petitioners belated argument that
she was not an employee but an agent of private complainant[22] grants her
no respite in view of her stipulation[23] during pre-trial and her admission[24]
at the witness stand of the fact of employment. Petitioners reliance on estafa
cases involving factual antecedents of agency transactions is thus misplaced.
That petitioner did not have juridical possession over the amount or, in other
words, she did not have a right over the thing which she may set up even
against private complainant is clear.[25] In fact, petitioner never asserted any
such right, hence, juridical possession was lodged with private complainant
and, therefore, estafa was not committed.
Petitioners view that there could be no element of taking since private

complainant had no actual possession of the money fails. The argument
proceeds from the flawed premise that there could be no theft if the accused
has possession of the property. The taking away of the thing physically from
the offended party is not elemental,[26] as qualified theft may be committed
when the personal property is in the lawful possession of the accused prior to
the commission of the alleged felony.[27]
A sum of money received by an employee in behalf of an employer is

considered to be only in the material possession of the employee.[28] The
material possession of an employee is adjunct, by reason of his employment,
to a recognition of the juridical possession of the employer. So long as the
juridical possession of the thing appropriated did not pass to the employee-
perpetrator, the offense committed remains to be theft, qualified or
otherwise.[29]
x x x When the money, goods, or any other personal property is received by

the offender from the offended party (1) in trust or (2) on commission or (3)
for administration, the offender acquires both material or physical possession
and juridical possession of the thing received. Juridical possession means a
possession which gives the transferee a right over the thing which the
transferee may set up even against the owner. In this case, petitioner was a
cash custodian who was primarily responsible for the cash-in-vault. Her
possession of the cash belonging to the bank is akin to that of a bank teller,
both being mere bank employees.[30] (Italics in the original omitted;
underscoring and emphasis supplied)
That the transaction occurred outside the company premises of private

complainant is of no moment, given that not all business deals are transacted
by employees within the confines of an office, and that field operations do
not define an agency. What is of consequence is the nature of possession by
petitioner over the property subject of the unlawful taking.
On the penalty imposed by the trial court, which was affirmed by the
appellate court indeterminate penalty of 10 years and 1 day to 12 years, 5
months and 10 days:
The penalty for qualified theft is two degrees higher than the applicable
penalty for simple theft. The amount stolen in this case was P18,000.00. In
cases of theft, if the value of the personal property stolen is more than
P12,000.00 but does not exceed P22,000.00, the penalty shall be prision
mayor in its minimum and medium periods. Two degrees higher than this
penalty is reclusion temporal in its medium and maximum periods or 14 years,
8 months and 1 day to 20 years.
Applying the Indeterminate Sentence Law, the minimum shall be prision

mayor in its maximum period to reclusion temporal in its minimum period or
within the range of 10 years and 1 day to 14 years and 8 months.[31] The
mitigating circumstance of voluntary surrender being present, the maximum
penalty shall be the minimum period of reclusion temporal in its medium and
maximum periods or within the range of 14 years, 8 months and 1 day to 16
years, 5 months and 20 days.
The Court thus affirms the minimum penalty, but modifies the maximum
penalty imposed.
WHEREFORE, the Decision of May 31, 2007 and Resolution of August 1, 2007
of the Court of Appeals in CA-G.R. CR No. 29593 is AFFIRMED with
MODIFICATION as to the imposed penalty, such that petitioner, Sheala P.
Matrido, is sentenced to suffer the indeterminate penalty of 10 years and 1
day of prision mayor, as minimum, to 14 years, 8 months and 1 day of
reclusion temporal, as maximum.
SO ORDERED.
CONCHITA CARPIO MORALES

Associate Justice
WE CONCUR:
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice

Associate Justice
ARTURO D. BRION
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision were reached in

Courts Division.
Associate Justice
Chairperson
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to
the writer of the Courts Division.
REYNATO S. PUNO
Chief Justice
* Additional member per Special Order No. 658.

** Additional member per Special Order No. 635.
[1] The assailed issuances were penned by Justice Andres B. Reyes, Jr. with
the concurrence of Justices Jose C. Mendoza and Ramon M. Bato, Jr.; rollo,
pp. 53-64, 73.
[3] Id. at 108.
[4] Id. at 6-8. Signed by its authorized representative, Junior Treasury
Manager Leilani Cabuloy.
[5] Id. at 116-117.
[6] TSN, January 15, 2004, p. 16.
[7] Records, p. 2.
[8] Id. at 1.
[9] Id. at 62.
[10] Id. at 141.
[11] Penned by Presiding Judge Nemesio S. Felix.
[12] Rollo, p. 14.
[13] G.R. No. 168486, June 27, 2006, 493 SCRA 539.
[14] Id. at 557-558.
[15] Id. at 552-553 citing U.S. v. Lim San, 17 Phil. 273, 278-279 (1910).
[16] REVISED PENAL CODE, Art. 308, par. 1.
[17] Id. at Art. 310.
[18] Vide People v. Bago, 386 Phil. 310, 334-335 (2000).
[19] Vide People v. Bustinera, G.R. No. 148233, June 8, 2004, 431 SCRA 284,
296.
[20] Santos v. People, G.R. No. 77429, January 29, 1990, 181 SCRA 487, 492.
[21] Rollo, p. 60.
[22] Id. at 17.
[24] TSN, January 15, 2004, pp. 3, 5.
[25] Rollo, p. 61.
[26] Luis B. Reyes, THE REVISED PENAL CODE (1998), pp. 687, 691.
[27] Roque v. People, 486 Phil. 288, 304 et seq. (2004)
[28] Id. at 310.
[29] Vide id. at 307.
[30] Chua-Burce v. Court of Appeals, 387 Phil. 15, 26 (2000).
[31] Cruz v. People, G.R. No. 176504, September 3, 2008.

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1. G.R. No.

RUBEN DEL CASTILLO @ BOY G.R. No. 185128

VELASCO, JR., J., Chairperson,

For this Court's consideration is the Petition for

Pursuant to a confidential information that petitioner was engaged in

That on or about the 13th day of September 1997, at about 3:00

During arraignment, petitioner, with the assistance of his counsel, pleaded

To prove the earlier mentioned incident, the prosecution presented the

The defense, on the other hand, presented the testimonies of petitioner,

On September 13, 1997, around 3 o'clock in the afternoon, petitioner was

WHEREFORE, premises considered, this Court finds the accused

The four (4) small plastic packets of white crystalline substance

WHEREFORE, the challenged Decision is AFFIRMED in toto and the

1. THE COURT OF APPEALS ERRED IN ITS APPLICATION

2. THE COURT OF APPEALS ERRED IN RULING THAT THE

3. THE COURT OF APPEALS ERRED IN ITS APPLICATION

The Office of the Solicitor General (OSG), in its Comment

This Court finds no merit on the first argument of petitioner.

With regard to the second argument of petitioner, it must be remembered

Q For how long did the chase take place?

Q Were you able to get a barangay tanod?

Q Can you tell us what is the name of the barangay tanod?

Q For point of clarification, how many barangay tanod [did] your

Q What happened after that?

Q Who proceeded to the second floor of the house?

Q What about you, where were you?

Q What about the barangay tanod?

Q When the search at the second floor of the house yielded

Q You mean to say, that when (sic) SPO1 Reynaldo Matillano,

Q What happened at the shop?

Q What [were] the contents of that white folded paper?

Q Was that the only item?

Q And after you cordoned the area, did anything happen?

Q And did the barangay tanod eventually appear?

Q What is the name of the wife of Ruben del Castillo?

Q What did you do afterwards, if any?

Q Do you know the reason why you proceeded to his electronic

Q You mentioned that Masnayon entered first. Do you mean to

Q All of your police officers and the barangay tanod followed

Q What about you?

Q And did anything happen inside the shop of Ruben del

SPO1 Pogoso also testified on the same matter, thus:

Q And where did you conduct the search, Mr. Witness?

Q And what transpired after you searched the house of Ruben

Q And what happened afterwards, if any?

Q And what happened when your team proceeded to the nipa

Q And who among the team went inside?

x x x any person directly vested with jurisdiction, whether as an

SEC. 388. Persons in Authority. - For purposes of the Revised

In People v. Tira,[27] this Court explained the concept of possession of

This crime is mala prohibita, and, as such, criminal intent is not an

While it is not necessary that the property to be searched or seized should be

x x x As admitted by respondent's wife, her husband is an

Q And what happened when your team proceeded to the nipa

However, during cross-examination, SPO3 Masnayon admitted that there was

Q Now, this shop is within a structure?

Q How big is the structure?

PRESBITERO J. VELASCO, JR.

PRESBITERO J. VELASCO, JR.

SPOUSES JOEL AND G.R. No. 158467

October 16, 2009

LEONARDO-DE CASTRO, J.:

The facts, as culled from the records, are as follows: