Statutory Construction Cases

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Primicias vs. Municipality of Urdaneta, 1

Pangasinan G.R. No. L-26702
People vs. Nazario G.R. No. L-44143 5
Ortigas & Co., Limited Partnership vs. Feati 12
Bank G.R. No. L-24670
People vs. Conception G.R. No. L-19190 17
Alonzo vs. IAC G.R. No. 72873 20
Ramos vs. CA G.R. No. L-53766 23
Chavez vs. Gonzales G.R. No. 168338 26
Nuez vs. Apao 445 SCRA 228 35
Mamba vs. Garcia 359 SCRA 426 35
Zulueta vs. CA G.R. No. 107383 36
Gaanan vs. IAC G.R. No. L-69809 (145 SCRA 38
112)
Estrada vs. Disierto G.R. No. 146710-15 43
Estrada vs Sandiganbayan G.R. No. 148560 67
Cayetano vs. Monsod G.R. No. 100113 80

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-26702 October 18, 1979
JUAN AUGUSTO B. PRIMICIAS, plaintiff-appellee,
vs.
THE MUNICIPALITY OF URDANETA, PANGASINAN, ET AL., defendants-appellants.
Ambrosio Padilla Law Offices for appellee.
Primicias, Castillo & Macaraeg for appellants.

DE CASTRO, J.:

The main issue in this appeal is the validity of Ordinance No. 3, Series of 1964, enacted on March
13,1964 by the Municipal Council of Urdaneta, Pangasinan, which was declared null and void by the
Court of First Instance of Lingayen, Pangasinan, in its decision dated June 29, 1966, the dispositive
portion of which reads as follows:

WHEREFORE, this Court renders decision declaring Ordinance No, 3, Series of 1964, to be
null and void; making the writ of preliminary injunction heretofore issued against the
defendant, Felix D. Soriano definite and permanent; and further restraining the
defendants, Amadeo R. Perez, Jr., Lorenzo G. Suyat and Estanislao Andrada, from
enforcing the said ordinance all throughout Urdaneta; and ordering the said defendants to
return to the plaintiff his drivers (sic) license CIN 017644, a copy of which is Exhibit D-1,
and to pay the costs of suit. 1

From the aforecited decision, defendants appealed to this Court. The antecedent facts of this case are as
follows: 2

On February 8, 1965, Juan Augusta B. Primacias plaintiff appellee, was driving his car within the
jurisdiction of Urdaneta when a member of Urdaneta's Municipal Police asked him to stop. He was told,
upon stopping, that he had violated Municipal Ordinance No. 3, Series of 1964, "and more particularly,
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for overtaking a truck." The policeman then asked for plaintiff's license which he surrendered, and a
temporary operator's permit was issued to him. This incident took place about 200 meters away from a
school building, at Barrio Nancamaliran, Urdaneta.

Thereafter, a criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for
violation of Ordinance No. 3, Series of 1964. Due to the institution of the criminal case, plaintiff Primicias
initiated an action for the annulment of said ordinance with prayer for the issuance of preliminary
injunction for the purpose of restraining defendants Municipality of Urdaneta, Mayor Perez, Police Chief
Suyat, Judge Soriano and Patrolman Andrada from enforcing the ordinance. The writ was issued and
Judge Soriano was enjoined from further proceeding in the criminal case.

After trial, the Court of First Instance rendered the questioned decision holding that the ordinance was
null and void and had been repealed by Republic Act No. 4136, otherwise known as the Land
Transportation and Traffic Code. Now, defendants, appellants herein, allege that the lower court erred
in: 3
1. declaring that Municipal Ordinance No. 3 (Series of 1964) of Urdaneta is null and void;
2. requiring the municipal council of Urdaneta in the enactment of said ordinance to give
maximum allowable speed and to make classification of highways;
3. holding that said ordinance is in conflict with section 35 par. b(4) of Republic Act 4136;
4. requiring that said ordinance be approved by the Land Transportation Commissioner;
5. holding that said ordinance is not clear and definite in its terms;
6. issuing ex-parte a writ of injunction to restrain the proceedings in criminal case no.
3140.

The ordinance in question provides: 4

SECTION 1 - That the following speed limits for vehicular traffic along the National
Highway and the Provincial Roads within the territorial limits of Urdaneta shall be as
follows:

a. Thru crowded streets approaching intersections at 'blind corners,

passing school zones or thickly populated areas, duly marked with sign
posts, the maximum speed limit allowable shall be 20 kph.

SECTION 2 - That any person or persons caught driving any motor vehicle violating the
provisions of this ordinance shall be fined P10.00 for the first offense; P20.00 for the
second offense; and P30.00 for the third and succeeding offenses, the Municipal Judge
shall recommend the cancellation of the license of the offender to the Motor Vehicle's
Office (MVO); or failure to pay the fine imposed, he shall suffer a subsidiary imprisonment
in accordance with law.

Appellants contend that the Ordinance is valid, being "patterned after and based on Section 53, 5 par. 4
of Act No. 3992, as amended (Revised Motor Vehicle Law)." In so arguing, appellants fail to note that
Act No. 3992 has been superseded by Republic Act No. 4136, the Land Transportation and 'Traffic Code,
which became effective on June 20, 1964, about three months after the questioned ordinance was
approved by Urdaneta's Municipal Council. The explicit repeal of the aforesaid Act is embodied in Section
63, Republic Act No. 4136, to wit:

Act Numbered thirty-nine hundred ninety-two (3992) as amended, and all laws, executive
orders, ordinance, resolutions, regulations or paints thereof in conflict with the provisions
of this Act are repealed.

By this express repeal, and the general rule that a later law prevails over an earlier law, 6 appellants are
in error in contending that "a later enactment of the law relating to the same subject matter as that of

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an earlier statute is not sufficient to cause an implied repeal of the original law." Pursuant to Section 63,
Republic Act No. 4136, the ordinance at bar is thus placed within the ambit of Republic Act No. 4136,
and not Act No. 3992. The validity of Ordinance No. 3, Series of 1964, must therefore be determined vis-
a-vis Republic Act No. 4136, the "mother statute" so to speak, which was in force at the time the
criminal case was brought against Primicias for the violation of the said ordinance.

An essential requisite for a valid ordinance is, among others, that is "must not contravene . . . the
statute," 7 for it is a "fundamental principle that municipal ordinances are inferior in status and
subordinate to the laws of the state." 8Following this general rule, whenever there is a conflict between
an ordinance and a statute, the ordinance "must give way. 9

Since the Ordinance is aimed at regulating traffic, Chapter IV Traffic Rules), Article I (Speed Limits and
Keeping to the Right), consisting of sections 35, to 38 of Republic Act No. 4136, particularly Sections 35,
36, 38 contain the provisions material to its validity. Section 35 (b), Republic Act No. 4136, which took
the place of Section 53, par. (4), Act No. 3992, provides restrictions as to speed thus:

MAXIMUM ALLOWABLE SPEEDS

Passenger cars and Motor trucks

motorcycle and buses

1. On open country roads, with

"blind corners" not closely bordered

by habitation. 80 km. 50 km.

2. On through streets or per hour per hour

boulevards, clear of traffic, with "no

blind corners" when so designated. 40 km. 30 km.

3. On city and municipal per hour per hour

streets, with light traffic, when not

designated "through streets." 30 km. 30 km.

4. Through crowded streets ap per hour per hour

proaching intersection at "blind cor

ners," passing school zones, passing

other vehicles which are stationary, or

for similar circumstances. 20 km. 20 km.

per hour per hour

A look at the aforecited section and Section 1, par. (a) of the Ordinance shows that the latter is more or
less a restatement only of number (4), par. (b), Section 35. As observed by the trial court, the Ordinance
"refers to only one of the four classifications mentioned in paragraph (b), Section 35." 10 limiting the
rates of speed for

vehicular traffic along the national highway and The provincial roads within the territorial
limits of Urdaneta to 20 kilometers per hour without regard to whether the road is an

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 open country roads (six), or through streets or boulevards, or city or municipal streets
with light traffic. 11

As also found correctly by the lower court, the Municipal Council of Urdaneta did not make any
classification of its thoroughfares, contrary to the explicit requirement laid down by Section 38, Republic
Act No. 4136, which provides:

Classification of highways. - Public highways shall be properly classified for traffic

purposes by the provincial board or city council having jurisdiction over them, and said
provincial board, municipal board or city council shall provide appropriate signs therefor,
subject to the approval of the Commissioner. It shall be the duty of every provincial, city
and municipal secretary to certify to the Commissioner the names, locations, and limits of
all "through streets" designated as such by the provincial board, municipal board or
council.

Under this section, a local legislative body intending to control traffic in public highways 12 is supposed to
classify, first, and then mark them with proper signs, all to be approved by the Land Transportation
Commissioner. To hold that the provisions of Section 38 are mandatory is sanctioned by a ruling 13 that

statutes which confer upon a public body or officer . . . power to perform acts which
concern the public interests or rights of individuals, are generally, regarded as mandatory
although the language is permissive only since the are construed as imposing duties
rather than conferring privileges.

The classifications which must be based on Section 35 are necessary in view of Section 36 which states
that "no provincial, city or municipal authority shall enact or enforce any ordinance or resolution
specifying maximum allowable speeds other than those provided in this Act." In this case, however,
there is no showing that the marking of the streets and areas falling under Section 1, par. (a), Ordinance
No. 3, Series of 1964, was done with the approval of the Land Transportation Commissioner. Thus, on
this very ground alone, the Ordinance becomes invalid. Since it lacks the requirement imposed by
Section 38, the provincial, city, or municipal board or council is enjoined under Section 62 of the Land
Transportation and Traffic Code from "enacting or enforcing any ordinance or resolution in conflict with
the provisions of this Act."

Regarding the contention that the lower court erred in holding that said "Ordinance is not clear and
definite in its terms." We agree with the Court a quo that when the Municipal Council of Urdaneta used
the phrase "vehicular traffic" (Section 1, Ordinance) it "did not distinguish between passenger cars and
motor vehicles and motor trucks and buses." 14 This conclusion is bolstered by the fact that nowhere in
the Ordinance is "vehicular traffic" defined. Considering that this is a regulatory ordinance, its clearness,
definiteness and certainty are all the more important so that "an average man should be able with due
care, after reading it,, to understand and ascertain whether he will incur a penalty for particular acts or
courses of conduct." 15 In comparison, Section 35(b), Republic Act No. 4136 on which Section 1 of the
Ordinance must be based, stated that the rates of speed enumerated therein refer to motor
vehicle, 16 specifying the speed for each kind of vehicle. At the same time, to avoid vagueness, Art. 11,
Section 3 defines what a motor vehicle is and passenger automobiles are.

On the issue of whether a writ of injunction can restrain the proceedings in Criminal Case No. 3140, the
general rule is that "ordinarily, criminal prosecution may not be blocked by court prohibition or
injunction." 17 Exceptions however are allowed in the following instances:
1. for the orderly administration of justice;
2. to prevent the use of the strong arm of the law in an oppressive and vindictive
manner;
3. to avoid multiplicity of actions;
4. to afford adequate protection to constitutional rights;

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 5. in proper cases, because the statute relied upon is unconstitutional or was held
invalid. 18

The local statute or ordinance at bar being invalid, the exception just cited obtains in this case. Hence,
the lower court did not err in issuing the writ of injunction against defendants. Moreover, considering
that "our law on municipal corporations is in principle patterned after that of the United States, " 19 it
would not be amiss for Us to adopt in this instance the ruling that to enjoin the enforcement of a void
ordinance, "injunction has frequently been sustained in order to prevent a multiplicity of prosecutions
under it." 20

In view of the foregoing, the appealed decision is hereby affirmed.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-44143 August 31, 1988

THE PEOPLE OF THE PHILIPPINES, plaintiff,
vs.
EUSEBIO NAZARIO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Teofilo Ragodon for accused-appellant.

SARMIENTO, J.:

The petitioner was charged with violation of certain municipal ordinances of the municipal council of
Pagbilao, in Quezon province. By way of confession and avoidance, the petitioner would admit having
committed the acts charged but would claim that the ordinances are unconstitutional, or, assuming their
constitutionality, that they do not apply to him in any event.

The facts are not disputed:

This defendant is charged of the crime of Violation of Municipal Ordinance in an

information filed by the provincial Fiscal, dated October 9, 1968, as follows:

That in the years 1964, 1965 and 1966, in the Municipality of Pagbilao,
Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being then the owner and
operator of a fishpond situated in the barrio of Pinagbayanan, of said
municipality, did then and there willfully, unlawfully and feloniously refuse
and fail to pay the municipal taxes in the total amount of THREE HUNDRED
SIXTY TWO PESOS AND SIXTY TWO CENTAVOS (P362.62), required of
him as fishpond operator as provided for under Ordinance No. 4, series of
1955, as amended, inspite of repeated demands made upon him by the
Municipal Treasurer of Pagbilao, Quezon, to pay the same.

Contrary to law.

For the prosecution the following witnesses testified in substance as follows;

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MIGUEL FRANCIA, 39 years of age, married, farmer and resident of Lopez, Quezon —

In 1962 to 1967, I resided at Pinagbayanan, Pagbilao, Quezon. I know the accused as I

worked in his fishpond in 1962 to 1964. The fishpond of Nazario is at Pinagbayanan,
Pagbilao, Quezon. I worked in the clearing of the fishpond, the construction of the dikes
and the catching of fish.

On cross-examination, this witness declared:

I worked with the accused up to March 1964.

NICOLAS MACAROLAY, 65 years of age, married, copra maker and resident of

Pinagbayanan, Pagbilao, Quezon —

I resided at Pinagbayanan, Pagbilao, Quezon since 1959 up to the present. I know the
accused since 1959 when he opened a fishpond at Pinagbayanan, Pagbilao, Quezon. He
still operates the fishpond up to the present and I know this fact as I am the barrio
captain of Pinagbayanan.

On cross-examination, this witness declared:

I came to know the accused when he first operated his fishpond since 1959.
On re-direct examination, this witness declared:
I was present during the catching of fish in 1967 and the accused was there.
On re-cross examination, this witness declared:
I do not remember the month in 1962 when the accused caught fish.
RODOLFO R. ALVAREZ, 45 years old, municipal treasurer of Pagbilao, Quezon, married —

As Municipal Treasurer I am in charge of tax collection. I know the accused even before I
was Municipal Treasurer of Pagbilao. I have written the accused a letter asking him to pay
his taxes (Exhibit B). Said letter was received by the accused as per registry return
receipt, Exhibit B-1. The letter demanded for payment of P362.00, more or less, by way
of taxes which he did not pay up to the present. The former Treasurer, Ceferino Caparros,
also wrote a letter of demand to the accused (Exhibit C). On June 28, 1967, I sent a letter
to the Fishery Commission (Exhibit D), requesting information if accused paid taxes with
that office. The Commission sent me a certificate (Exhibits D-1, D-2 & D-3). The accused
had a fishpond lease agreement. The taxes unpaid were for the years 1964, 1965 and
1966.

On cross-examination, this witness declared:

I have demanded the taxes for 38.10 hectares.
On question of the court, this witness declared:

What I was collecting from the accused is the fee on fishpond operation, not rental.

The prosecution presented as part of their evidence Exhibits A, A-1, A-2, B, B-2, C, D, D-
1, D-2, D-3, E, F, F-1 and the same were admitted by the court, except Exhibits D, D-1,
D-2 and D-3 which were not admitted for being immaterial.

For the defense the accused EUSEBIO NAZARIO, 48 years of age, married, owner and
general manager of the ZIP Manufacturing Enterprises and resident of 4801 Old Sta.
Mesa, Sampaloc, Manila, declared in substance as follows:

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I have lived in Sta. Mesa, Manila, since 1949. I buy my Residence Certificates at Manila or
at San Juan. In 1964, 1965 and 1966, I was living in Manila and my business is in Manila
and my family lives at Manila. I never resided at Pagbilao, Quezon. I do not own a house
at Pagbilao. I am a lessee of a fishpond located at Pagbilao, Quezon, and I have a lease
agreement to that effect with the Philippine Fisheries Commission marked as Exhibit 1. In
1964, 1965 and 1966, the contract of lease, Exhibit 1, was still existing and enforceable.
The Ordinances Nos. 4, 15 and 12, series of 1955, 1965 and 1966, were translated into
English by the Institute of National Language to better understand the ordinances. There
were exchange of letters between me and the Municipal Treasurer of Pagbilao regarding
the payment of the taxes on my leased fishpond situated at Pagbilao. There was a letter
of demand for the payment of the taxes by the treasurer (Exhibit 3) which I received by
mail at my residence at Manila. I answered the letter of demand, Exhibit 3, with Exhibit 3-
A. I requested an inspection of my fishpond to determine its condition as it was not then
in operation. The Municipal Treasurer Alvarez went there once in 1967 and he found that
it was destroyed by the typhoon and there were pictures taken marked as Exhibits 4, 4-A,
4-B and 4C. I received another letter of demand, Exhibit 5, and I answered the same
(Exhibit 5-A). I copied my reference quoted in Exhibit 5-A from Administrative Order No.
6, Exhibit 6. I received another letter of demand from Tomas Ornedo, Acting Municipal
Treasurer of Pagbilao, dated February 16, 1966, Exhibit 7, and I answered the same with
the letter marked as Exhibit 7-A, dated February 26, 1966. I received another letter of
demand from Treasurer Alvarez of Pagbilao, Exhibit 8, and I answered the same (Exhibit
8-A). In 1964, I went to Treasurer Caparros to ask for an application for license tax and
he said none and he told me just to pay my taxes. I did not pay because up to now I do
not know whether I am covered by the Ordinance or not. The letters of demand asked
me to pay different amounts for taxes for the fishpond. Because under Sec. 2309 of the
Revised Administrative Code, municipal taxes lapse if not paid and they are collecting on a
lapsed ordinance. Because under the Tax Code, fishermen are exempted from percentage
tax and privilege tax. There is no law empowering the municipality to pass ordinance
taxing fishpond operators.

The defense presented as part of their evidence Exhibits 1, 2, 3, 3-A, 4, 4-B, 4-B, 4-C, 5,
5-A, 6, 6-A, 6-B, 6-C, 7, 7-A, 8 and 8-A and the same were admitted by the court.

From their evidence the prosecution would want to show to the court that the accused, as
lessee or operator of a fishpond in the municipality of Pagbilao, refused, and still refuses,
to pay the municipal taxes for the years 1964, 1965 and 1966, in violation of Municipal
Ordinance No. 4, series of 1955, as amended by Municipal Ordinance No. 15, series of
1965, and finally amended by Municipal Ordinance No. 12, series of 1966.

On the other hand, the accused, by his evidence, tends to show to the court that the
taxes sought to be collected have already lapsed and that there is no law empowering
municipalities to pass ordinances taxing fishpond operators. The defense, by their
evidence, tried to show further that, as lessee of a forest land to be converted into a
fishpond, he is not covered by said municipal ordinances; and finally that the accused
should not be taxed as fishpond operator because there is no fishpond yet being operated
by him, considering that the supposed fishpond was under construction during the period
covered by the taxes sought to be collected.

Finally, the defendant claims that the ordinance in question is ultra vires as it is outside of
the power of the municipal council of Pagbilao, Quezon, to enact; and that the defendant
claims that the ordinance in question is ambiguous and uncertain.

There is no question from the evidences presented that the accused is a lessee of a parcel
of forest land, with an area of 27.1998 hectares, for fishpond purposes, under Fishpond

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 Lease Agreement No. 1066, entered into by the accused and the government, through
the Secretary of Agriculture and Natural Resources on August 21, 1959.

There is no question from the evidences presented that the 27.1998 hectares of land
leased by the defendant from the government for fishpond purposes was actually
converted into fishpond and used as such, and therefore defendant is an operator of a
fishpond within the purview of the ordinance in question. 1

The trial Court 2 returned a verdict of guilty and disposed as follows:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the Court finds the accused guilty beyond reasonable
doubt of the crime of violation of Municipal Ordinance No. 4, series of 1955, as amended by Ordinance
No. 15, series of 1965 and further amended by Ordinance No. 12, series of 1966, of the Municipal
Council of Pagbilao, Quezon; and hereby sentences him to pay a fine of P50.00, with subsidiary
imprisonment in case of insolvency at the rate of P8.00 a day, and to pay the costs of this proceeding.

SO ORDERED. 3

In this appeal, certified to this Court by the Court of Appeals, the petitioner alleges that:

I.THE LOWER COURT ERRED IN NOT DECLARING THAT ORDINANCE NO. 4, SERIES OF 1955, AS
AMENDED BY ORDINANCE NO. 15, SERIES OF 1965, AND AS FURTHER AMENDED BY ORDINANCE NO.
12, SERIES OF 1966, OF THE MUNICIPALITY OF PAGBILAO, QUEZON, IS NULL AND VOID FOR BEING
AMBIGUOUS AND UNCERTAIN.

II.THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION, AS AMENDED,
IS UNCONSTITUTIONAL FOR BEING EX POST FACTO.

III.THE LOWER COURT ERRED IN NOT HOLDING THAT THE ORDINANCE IN QUESTION COVERS ONLY
OWNERS OR OVERSEER OF FISHPONDS OF PRIVATE OWNERSHIP AND NOT TO LESSEES OF PUBLIC
LANDS.

IV.THE LOWER COURT ERRED IN NOT FINDING THAT THE QUESTIONED ORDINANCE, EVEN IF VALID,
CANNOT BE ENFORCED BEYOND THE TERRITORIAL LIMITS OF PAGBILAO AND DOES NOT COVER
NON-
RESIDENTS. 4

The ordinances in question are Ordinance No. 4, series of 1955, Ordinance No. 15, series of 1965, and
Ordinance No. 12, series of 1966, of the Municipal Council of Pagbilao. Insofar as pertinent to this
appeal, the salient portions thereof are hereinbelow quoted:

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao, Quezon, shall pay a municipal tax in the amount of P3.00 per hectare of
fishpond on part thereof per annum. 5

Sec. l (a). For the convenience of those who have or owners or managers of fishponds
within the territorial limits of this municipality, the date of payment of municipal tax
relative thereto, shall begin after the lapse of three (3) years starting from the date said
fishpond is approved by the Bureau of Fisheries. 6

Section 1. Any owner or manager of fishponds in places within the territorial limits of
Pagbilao shall pay a municipal tax in the amount of P3.00 per hectare or any fraction
thereof per annum beginning and taking effect from the year 1964, if the fishpond started
operating before the year 1964. 7

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The first objection refers to the ordinances being allegedly "ambiguous and uncertain." 8 The petitioner
contends that being a mere lessee of the fishpond, he is not covered since the said ordinances speak of
"owner or manager." He likewise maintains that they are vague insofar as they reckon the date of
payment: Whereas Ordinance No. 4 provides that parties shall commence payment "after the lapse of
three (3) years starting from the date said fishpond is approved by the Bureau of Fisheries." 9 Ordinance
No. 12 states that liability for the tax accrues "beginning and taking effect from the year 1964 if the
fishpond started operating before the year 1964." 10

As a rule, a statute or act may be said to be vague when it lacks comprehensible standards that men "of
common intelligence must necessarily guess at its meaning and differ as to its application." 11 It is
repugnant to the Constitution in two respects: (1) it violates due process for failure to accord persons,
especially the parties targetted by it, fair notice of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.

But the act must be utterly vague on its face, that is to say, it cannot be clarified by either a saving
clause or by construction. Thus, in Coates v. City of Cincinnati, 12 the U.S. Supreme Court struck down
an ordinance that had made it illegal for "three or more persons to assemble on any sidewalk and there
conduct themselves in a manner annoying to persons passing by." 13 Clearly, the ordinance imposed no
standard at all "because one may never know in advance what 'annoys some people but does not annoy
others.' " 14

Coates highlights what has been referred to as a "perfectly vague" 15

act whose obscurity is evident on
its face. It is to be distinguished, however, from legislation couched in imprecise language — but which
nonetheless specifies a standard though defectively phrased — in which case, it may be "saved" by
proper construction.

It must further be distinguished from statutes that are apparently ambiguous yet fairly applicable to
certain types of activities. In that event, such statutes may not be challenged whenever directed against
such activities. In Parker v. Levy, 16 a prosecution originally under the U.S. Uniform Code of Military
Justice (prohibiting, specifically, "conduct unbecoming an officer and gentleman"), the defendant, an
army officer who had urged his men not to go to Vietnam and called the Special Forces trained to fight
there thieves and murderers, was not allowed to invoke the void for vagueness doctrine on the premise
that accepted military interpretation and practice had provided enough standards, and consequently, a
fair notice that his conduct was impermissible.

It is interesting that in Gonzales v. Commission on Elections, 17 a divided Court sustained an act of

Congress (Republic Act No. 4880 penalizing "the too early nomination of candidates" 18 limiting the
election campaign period, and prohibiting "partisan political activities"), amid challenges of vagueness
and overbreadth on the ground that the law had included an "enumeration of the acts deemed included
in the terms 'election campaign' or 'partisan political activity" 19 that would supply the standards. "As
thus limited, the objection that may be raised as to vagueness has been minimized, if not totally set at
rest." 20 In his opinion, however, Justice Sanchez would stress that the conduct sought to be prohibited
"is not clearly defined at all." 21 "As worded in R.A 4880, prohibited discussion could cover the entire
spectrum of expression relating to candidates and political parties." 22 He was unimpressed with the
"restrictions" Fernando's opinion had relied on: " 'Simple expressions of opinions and thoughts
concerning the election' and expression of 'views on current political problems or issues' leave the reader
conjecture, to guesswork, upon the extent of protection offered, be it as to the nature of the utterance
('simple expressions of opinion and thoughts') or the subject of the utterance ('current political problems
or issues')." 23

The Court likewise had occasion to apply the "balancing-of-interests" test, 24 insofar as the statute's ban
on early nomination of candidates was concerned: "The rational connection between the prohibition of
Section 50-A and its object, the indirect and modest scope of its restriction on the rights of speech and

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assembly, and the embracing public interest which Congress has found in the moderation of partisan
political activity, lead us to the conclusion that the statute may stand consistently with and does not
offend the Constitution." 25 In that case, Castro would have the balance achieved in favor of State
authority at the "expense" of individual liberties.

In the United States, which had ample impact on Castro's separate opinion, the balancing test finds a
close kin, referred to as the "less restrictive alternative " 26 doctrine, under which the court searches for
alternatives available to the Government outside of statutory limits, or for "less drastic means" 27 open to
the State, that would render the statute unnecessary. In United States v. Robel, 28 legislation was
assailed, banning members of the (American) Communist Party from working in any defense facility. The
U.S. Supreme Court, in nullifying the statute, held that it impaired the right of association, and that in
any case, a screening process was available to the State that would have enabled it to Identify
dangerous elements holding defense positions. 29 In that event, the balance would have been struck in
favor of individual liberties.

It should be noted that it is in free expression cases that the result is usually close. It is said, however,
that the choice of the courts is usually narrowed where the controversy involves say, economic
rights, 30 or as in the Levycase, military affairs, in which less precision in analysis is required and in
which the competence of the legislature is presumed.

In no way may the ordinances at bar be said to be tainted with the vice of vagueness. It is unmistakable
from their very provisions that the appellant falls within its coverage. As the actual operator of the
fishponds, he comes within the term " manager." He does not deny the fact that he financed the
construction of the fishponds, introduced fish fries into the fishponds, and had employed laborers to
maintain them. 31 While it appears that it is the National Government which owns them, 32 the
Government never shared in the profits they had generated. It is therefore only logical that he shoulders
the burden of tax under the said ordinances.

We agree with the trial court that the ordinances are in the character of revenue measures 33 designed
to assist the coffers of the municipality of Pagbilao. And obviously, it cannot be the owner, the
Government, on whom liability should attach, for one thing, upon the ancient principle that the
Government is immune from taxes and for another, since it is not the Government that had been making
money from the venture.

Suffice it to say that as the actual operator of the fishponds in question, and as the recipient of profits
brought about by the business, the appellant is clearly liable for the municipal taxes in question. He
cannot say that he did not have a fair notice of such a liability to make such ordinances vague.

Neither are the said ordinances vague as to dates of payment. There is no merit to the claim that "the
imposition of tax has to depend upon an uncertain date yet to be determined (three years after the
'approval of the fishpond' by the Bureau of Fisheries, and upon an uncertain event (if the fishpond
started operating before 1964), also to be determined by an uncertain individual or
individuals." 34 Ordinance No. 15, in making the tax payable "after the lapse of three (3) years starting
from the date said fishpond is approved by the Bureau of Fisheries," 35 is unequivocal about the date of
payment, and its amendment by Ordinance No. 12, reckoning liability thereunder "beginning and taking
effect from the year 1964 if the fishpond started operating before the year 1964 ," 36 does not give rise
to any ambiguity. In either case, the dates of payment have been definitely established. The fact that
the appellant has been allegedly uncertain about the reckoning dates — as far as his liability for the
years 1964, 1965, and 1966 is concerned — presents a mere problem in computation, but it does not
make the ordinances vague. In addition, the same would have been at most a difficult piece of
legislation, which is not unfamiliar in this jurisdiction, but hardly a vague law.

As it stands, then, liability for the tax accrues on January 1, 1964 for fishponds in operation prior thereto
(Ordinance No. 12), and for new fishponds, three years after their approval by the Bureau of Fisheries

10 | P a g e
(Ordinance No. 15). This is so since the amendatory act (Ordinance No. 12) merely granted amnesty
unto old, delinquent fishpond operators. It did not repeal its mother ordinances (Nos. 4 and 15). With
respect to new operators, Ordinance No. 15 should still prevail.

To the Court, the ordinances in question set forth enough standards that clarify imagined ambiguities.
While such standards are not apparent from the face thereof, they are visible from the intent of the said
ordinances.

The next inquiry is whether or not they can be said to be ex post facto measures. The appellant argues
that they are: "Amendment No. 12 passed on September 19, 1966, clearly provides that the payment of
the imposed tax shall "beginning and taking effect from the year 1964, if the fishpond started operating
before the year 1964.' In other words, it penalizes acts or events occurring before its passage, that is to
say, 1964 and even prior thereto." 37

The Court finds no merit in this contention. As the Solicitor General notes, "Municipal Ordinance No. 4
was passed on May 14, 1955. 38 Hence, it cannot be said that the amendment (under Ordinance No. 12)
is being made to apply retroactively (to 1964) since the reckoning period is 1955 (date of enactment).
Essentially, Ordinances Nos. 12 and 15 are in the nature of curative measures intended to facilitate and
enhance the collection of revenues the originally act, Ordinance No. 4, had prescribed. 39 Moreover, the
act (of non-payment of the tax), had been, since 1955, made punishable, and it cannot be said that
Ordinance No. 12 imposes a retroactive penalty. As we have noted, it operates to grant amnesty to
operators who had been delinquent between 1955 and 1964. It does not mete out a penalty, much less,
a retrospective one.

The appellant assails, finally, the power of the municipal council of Pagbilao to tax "public forest
land." 40 In Golden Ribbon Lumber Co., Inc. v. City of Butuan 41 we held that local governments' taxing
power does not extend to forest products or concessions under Republic Act No. 2264, the Local
Autonomy Act then in force. (Republic Act No. 2264 likewise prohibited municipalities from imposing
percentage taxes on sales.)

First of all, the tax in question is not a tax on property, although the rate thereof is based on the area of
fishponds ("P3.00 per hectare" 42). Secondly, fishponds are not forest lands, although we have held them
to the agricultural lands. 43 By definition, "forest" is "a large tract of land covered with a natural growth
of trees and underbush; a large wood." 44 (Accordingly, even if the challenged taxes were directed on
the fishponds, they would not have been taxes on forest products.)

They are, more accurately, privilege taxes on the business of fishpond maintenance. They are not
charged against sales, which would have offended the doctrine enshrined by Golden Ribbon
Lumber, 45 but rather on occupation, which is allowed under Republic Act No. 2264. 46 They are what
have been classified as fixed annual taxes and this is obvious from the ordinances themselves.

There is, then, no merit in the last objection.

WHEREFORE, the appeal is DISMISSED. Costs against the appellant.

11 | P a g e
 EN BANC

[G.R. No. L-24670. December 14, 1979.]

ORTIGAS & CO., LIMITED PARTNERSHIP, Plaintiff-Appellant, v. FEATI BANK AND TRUST
CO., Defendant-Appellee.
Ramirez & Ortigas for Appellant.
Tañada, Teehankee & Carreon for Appellee.

DECISION

SANTOS, J.:

An appeal interposed on June 23, 1965 by plaintiff-appellant, Ortigas & Co., Limited Partnership, from
the decision of the Court of First Instance of Rizal, Branch VI, at Pasig, Hon. Andres Reyes presiding,
which dismissed its complaint in Civil Case No. 7706, entitled, "Ortigas & Company, Limited Partnership,
plaintiff, v. Feati Bank and Trust Company, defendant," for lack of merit.

The following facts — a reproduction of the lower court’s findings, which, in turn, are based on a
stipulation of facts entered into by the parties — are not disputed. Plaintiff (formerly known as "Ortigas,
Madrigal y Cia") is a limited partnership and defendant Feati Bank and Trust Co., is a corporation duly
organized and existing in accordance with the laws of the Philippines. Plaintiff is engaged in real estate
business, developing and selling lots to the public, particularly the Highway Hills Subdivision along
Epifanio de los Santos Avenue, Mandaluyong, Rizal.

On March 4, 1952, plaintiff, as vendor, and Augusto Padilla y Angeles and Natividad Angeles, as
vendees, entered into separate agreements of sale on installments over two parcels of land, known as
Lots Nos. 5 and 6, Block 31, of the Highway Hills Subdivision, situated at Mandaluyong, Rizal. On July
19, 1962, the said vendees transferred their rights and interests over the aforesaid lots in favor of one
Emma Chavez. Upon completion of payment of the purchase price, the plaintiff executed the
corresponding deeds of sale in favor of Emma Chavez. Both the agreements (of sale on installment) and
the deeds of sale contained the stipulations or restrictions that:jgc:c
hanrobles.com.ph
"1. The parcel of land subject of this deed of sale shall be used by the Buyer exclusively for
residential purposes, and she shall not be entitled to take or remove soil, stones or gravel from it or any
other lots belonging to the Seller.

2. All buildings and other improvements (except the fence) which may be constructed at
any time in said lot must be, (a) of strong materials and properly painted, (b) provided with modern
sanitary installations connected either to the public sewer or to an approved septic tank, and (c) shall
not be at a distance of less than two (2) meters from its boundary lines."

The above restrictions were later annotated in TCT Nos. 101509 and 101511 of the Register of Deeds of
Rizal, covering the said lots and issued in the name of Emma Chavez.
Eventually, defendant-appellee acquired Lots Nos. 5 and 6, with TCT Nos. 101613 and
106092 issued in its name, respectively, and the building restrictions were also annotated therein. 4
Defendant-appellee bought Lot No. 5 directly from Emma Chavez, "free from all liens and encumbrances
as stated in Annex ‘D’," 5 while Lot No. 6 was acquired from Republic Flour Mills through a "Deed of
Exchange," Annex "E." 6 TCT No. 101719 in the name of Republic Flour Mills likewise contained the
same restrictions, although defendant-appellee claims that Republic Flour Mills purchased the said Lot
No. 6 "in good faith, free from all liens and encumbrances," as stated in the Deed of Sale, Annex "F" 7
between it and Emma Chavez.c
Plaintiff-appellant claims that the restrictions annotated on TCT Nos. 101509, 101511,
101719, 101613, and 106092 were imposed as part of its general building scheme designed for the

12 | P a g e
beautification and development of the Highway Hills Subdivision which forms part of the big landed
estate of plaintiff-appellant where commercial and industrial sites are also designated or established.

Defendant-appellee, upon the other hand, maintains that the area along the western part of
Epifanio de los Santos Avenue (EDSA) from Shaw Boulevard to Pasig River, has been declared a
commercial and industrial zone, per Resolution No. 27, dated February 4, 1960 of the Municipal Council
of Mandaluyong, Rizal.9 It alleges that plaintiff-appellant "completely sold and transferred to third
persons all lots in said subdivision facing Epifanio de los Santos Avenue" 10 and the subject lots
thereunder were acquired by it "only on July 23, 1962 or more than two (2) years after the area . . . had
been declared a commercial and industrial zone . . ."

On or about May 5, 1963, defendant-appellee began laying the foundation and commenced
the construction of a building on Lots Nos. 5 and 6, to be devoted to banking purposes, but which
defendant-appellee claims could also be devoted to, and used exclusively for, residential purposes. The
following day, plaintiff-appellant demanded in writing that defendant-appellee stop the construction of
the commercial building on the said lots. The latter refused to comply with the demand, contending that
the building was being constructed in accordance with the zoning regulations, defendant-appellee having
filed building and planning permit applications with the Municipality of Mandaluyong, and it had
accordingly obtained building and planning permits to proceed with the construction.

On the basis of the foregoing facts, Civil Case No. 7706, supra, was submitted in the lower
court for decision. The complaint sought, among other things, the issuance of "a writ of preliminary
injunction . . . restraining and enjoining defendant, its agents, assigns, and those acting on its or their
behalf from continuing or completing the construction of a commercial bank building in the premises . . .
involved, with the view to commanding the defendant to observe and comply with the building
restrictions annotated in the defendant’s transfer certificate of title.”ry

In deciding the said case, the trial court considered, as the fundamental issue, whether or
not the resolution of the Municipal Council of Mandaluyong declaring Lots Nos. 5 and 6, among others,
as part of the commercial and industrial zone of the municipality, prevailed over the building restrictions
imposed by plaintiff-appellant on the lots in question. 13 The records do not show that a writ of
preliminary injunction was issued.
The trial court upheld the defendant-appellee and dismissed the complaint, holding that the
subject restrictions were subordinate to Municipal Resolution No. 27, supra. It predicated its conclusion
on the exercise of police power of the said municipality, and stressed that private interest should "bow
down to general interest and welfare." In short, it upheld the classification by the Municipal Council of
the area along Epifanio de los Santos Avenue as a commercial and industrial zone, and held that the
same rendered "ineffective and unenforceable" the restrictions in question as against defendant-
appellee. 14 The trial court decision further emphasized that it "assumes said resolution to be valid,
considering that there is no issue raised by either of the parties as to whether the same is null and void."

On March 2, 1965, plaintiff-appellant filed a motion for reconsideration of the above decision, 16
which motion was opposed by defendant-appellee on March 17, 1965. 17 It averred, among others, in
the motion for reconsideration that defendant-appellee "was duty bound to comply with the conditions of
the contract of sale in its favor, which conditions were duly annotated in the Transfer Certificates of Title
issued in her (Emma Chavez) favor." It also invited the trial court’s attention to its claim that." . . the
Municipal Council had (no) power to nullify the contractual obligations assumed by the defendant
corporation."
The trial court denied the motion for reconsideration in its order of March 26, 1965.

On April 2, 1965 plaintiff-appellant filed its notice of appeal from the decision dismissing the
complaint and from the order of March 26, 1965 denying the motion for reconsideration, its record on
appeal, and a cash appeal bond. 20 On April 14, the appeal was given due course 21 and the records of
the case were elevated directly to this Court, since only questions of law are raised.
13 | P a g e
Plaintiff-appellant alleges in its brief that the trial court erred —

I. When it sustained the view that Resolution No. 27, series of 1960 of the Municipal Council of
Mandaluyong, Rizal declaring Lots Nos. 5 and 6, among others, as part of the commercial and industrial
zone, is valid because it did so in the exercise of its police power; and
II. When it failed to consider whether or not the Municipal Council had the power to nullify the
contractual obligations assumed by defendant-appellee and when it did not make a finding that the
building was erected along the property line, when it should have been erected two meters away from
said property line.
The defendant-appellee submitted its counter-assignment of errors. In this connection, We
already had occasion to hold in Relativo v. Castro 24 that" (I)t is not incumbent on the appellee, who
occupies a purely defensive position, and is seeking no affirmative relief, to make assignments of
error."crvirtua1aw library
The only issues to be resolved, therefore, are: (1) whether Resolution No. 27 s-1960 is a valid
exercise of police power; and (2) whether the said Resolution can nullify or supersede the contractual
obligations assumed by Defendant-Appellee.

1. The contention that the trial court erred in sustaining the validity of Resolution No. 27 as an exercise
of police power is without merit. In the first place, the validity of the said resolution was never
questioned before it. The rule is that the question of law or of fact which may be included in the
appellant’s assignment of errors must be those which have been raised in the court below, and are
within the issues framed by the parties. 25 The object of requiring the parties to present all questions
and issues to the lower court before they can be presented to the appellate court is to enable the lower
court to pass thereon, so that the appellate court upon appeal may determine whether or not such ruling
was erroneous. The requirement is in furtherance of justice in that the other party may not be taken by
surprise. 26 The rule against the practice of blowing "hot and cold" by assuming one position in the trial
court and another on appeal will, in the words of Elliot, prevent deception. 27 For it is well-settled that
issues or defenses not raised 28 or properly litigated 29 or pleaded 30 in the Court below cannot be
raised or entertained on appeal.

In this particular case, the validity of the resolution was admitted, at least impliedly, in the
stipulation of facts below, when plaintiff-appellant did not dispute the same. The only controversy then
as stated by the trial court was." . whether or not the resolution of the Municipal Council of Mandaluyong
. . . which declared Lots Nos. 4 and 5 among others, as a part of the commercial and industrial zone of
the municipality, prevails over the restrictions constituting as encumbrances on the lots in question." 31
Having admitted the validity of the subject resolution below, even if impliedly, plaintiff-appellant cannot
now change its position on appeal.

But, assuming arguendo that it is not yet too late in the day for plaintiff-appellant to raise the
issue of the invalidity of the municipal resolution in question, We are of the opinion that its posture is
unsustainable. Section 3 of R.A. No. 2264, otherwise known as the Local Autonomy Act, 32 empowers a
Municipal Council "to adopt zoning and subdivision ordinances or regulations "33 for the municipality.
Clearly, the law does not restrict the exercise of the power through an ordinance. Therefore, granting
that Resolution No. 27 is not an ordinance, it certainly is a regulatory measure within the intendment or
ambit of the word "regulation" under the provision. As a matter of fact the same section declares that
the power exists" (A)ny provision of law to the contrary notwithstanding . . ."c virt
ua1aw library
An examination of Section 12 of the same law 34 which prescribes the rules for its
interpretation likewise reveals that the implied power of a municipality should be "liberally construed in
its favor" and that" (A)ny fair and reasonable doubt as to the existence of the power should be
interpreted in favor of the local government and it shall be presumed to exist." The same section further
mandates that the general welfare clause be liberally interpreted in case of doubt, so as to give more
power to local governments in promoting the economic conditions, social welfare and material progress
14 | P a g e
of the people in the community. The only exceptions under Section 12 are existing vested rights arising
out of a contract between "a province, city or municipality on one hand and a third party on the other,"
in which case the original terms and provisions of the contract should govern. The exceptions, clearly, do
not apply in the case at bar.

2. With regard to the contention that said resolution cannot nullify the contractual obligations assumed
by the defendant-appellee — referring to the restrictions incorporated in the deeds of sale and later in
the corresponding Transfer Certificates of Title issued to defendant-appellee — it should be stressed,
that while non-impairment of contracts is constitutionally guaranteed, the rule is not absolute, since it
has to be reconciled with the legitimate exercise of police power, i.e., "the power to prescribe
regulations to promote the health, morals, peace, education, good order or safety and general welfare of
the people." 35 Invariably described as "the most essential, insistent, and illimitable of powers" 36 and
"in a sense, the greatest and most powerful attribute of government," 37 the exercise of the power may
be judicially inquired into and corrected only if it is capricious, whimsical, unjust or unreasonable, there
having been a denial of due process or a violation of any other applicable constitutional guarantee. 38 As
this Court held through Justice Jose P. Bengzon in Philippine Long Distance Company v. City of Davao,
Et. Al. 39 police power "is elastic and must be responsive to various social conditions; it is not confined
within narrow circumscriptions of precedents resting on past conditions; it must follow the legal progress
of a democratic way of life." We were even more emphatic in Vda. de Genuino v. The Court of Agrarian
Relations, Et Al., 40 when We declared: "We do not see why public welfare when clashing with the
individual right to property should not be made to prevail through the state’s exercise of its police
power."cralaw virtua1aw library
Resolution No. 27, s-1960 declaring the western part of Highway 54, now E. de los Santos
Avenue (EDSA, for short) from Shaw Boulevard to the Pasig River as an industrial and commercial zone,
was obviously passed by the Municipal Council of Mandaluyong, Rizal in the exercise of police power to
safeguard or promote the health, safety, peace, good order and general welfare of the people in the
locality. Judicial notice may be taken of the conditions prevailing in the area, especially where Lots Nos.
5 and 6 are located. The lots themselves not only front the highway; industrial and commercial
complexes have flourished about the place. EDSA, a main traffic artery which runs through several cities
and municipalities in the Metro Manila area, supports an endless stream of traffic and the resulting
activity, noise and pollution are hardly conducive to the health, safety or welfare of the residents in its
route. Having been expressly granted the power to adopt zoning and subdivision ordinances or
regulations, the municipality of Mandaluyong, through its Municipal Council, was reasonably, if not
perfectly, justified under the circumstances, in passing the subject resolution. virtual law
The scope of police power keeps expanding as civilization advances, stressed this Court, speaking
thru Justice Laurel in the leading case of Calalang v. Williams, Et. Al. 41 Thus —

"As was said in the case of Dobbins v. Los Angeles (195 US 223, 238 49 L. ed. 169), ‘the right to
exercise the police power is a continuing one, and a business lawful today may in the future, because of
changed situation the growth of population or other causes, become a menace to the public health and
welfare, and be required to yield to the public good.’ And in People v. Pomar (46 Phil. 440), it was
observed that ‘advancing civilization is bringing within the scope of police power of the state today
things which were not thought of as being with in such power yesterday. The development of
civilization, the rapidly increasing population, the growth of public opinion, with an increasing desire on
the part of the masses and of the government to look after and care for the interests of the individuals
of the state, have brought within the police power many questions for regulation which formerly were
not so considered.’" 42 (Emphasis, supplied.).

Thus, the state, in order to promote the general welfare, may interfere with personal liberty,
with property, and with business and occupations. Persons may be subjected to all kinds of restraints
and burdens, in order to secure the general comfort health and prosperity of the state 43 and to this
fundamental aim of our Government, the rights of the individual are subordinated.

The need for reconciling the non-impairment clause of the Constitution and the valid
15 | P a g e
exercise of police power may also be gleaned from Helvering v. Davis 45 wherein Mr. Justice Cardozo,
speaking for the Court, resolved the conflict "between one welfare and another, between particular and
general," thus —
"Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may
be interwoven in our day with the well-being of the nation. What is critical or urgent changes with the
times."

The motives behind the passage of the questioned resolution being reasonable, and it being
a "legitimate response to a felt public need," 47 not whimsical or oppressive, the non-impairment of
contracts clause of the Constitution will not bar the municipality’s proper exercise of the power. Now
Chief Justice Fernando puts it aptly when he declared: "Police power legislation then is not likely to
succumb to the challenge that thereby contractual rights are rendered nugatory."
Furthermore, We restated in Philippine American Life Ins. Co. v. Auditor General 49 that laws and
reservation of essential attributes of sovereign power are read into contracts agreed upon by the parties.
Thus —

"Not only are existing laws read into contracts in order to fix obligations as between the
parties, but the reservation of essential attributes of sovereign power is also read into contracts as a
postulate of the legal order. The policy of protecting contracts against impairments presupposes the
maintenance of a government by virtue of which contractual relations are worthwhile — a government
which retains adequate authority to secure the peace and good order of society."crala
ua1aw library
Again, We held in Liberation Steamship Co., Inc. v. Court of Industrial Relations, 50 through
Justice J.B.L. Reyes, that." . . the law forms part of, and is read into, every contract, unless clearly
excluded therefrom in those cases where such exclusion is allowed." The decision in Maritime Company
of the Philippines v. Reparations Commission, 51 written for the Court by Justice Fernando, now Chief
Justice, restates the rule.

One last observation. Appellant has placed unqualified reliance on American jurisprudence
and authorities 52 to bolster its theory that the municipal resolution in question cannot nullify or
supersede the agreement of the parties embodied in the sales contract, as that, it claims, would impair
the obligation of contracts in violation of the Constitution. Such reliance is misplaced.

In the first place, the views set forth in American decisions and authorities are not per se
controlling in the Philippines, the laws of which must necessarily be construed in accordance with the
intention of its own lawmakers and such intent may be deduced from the language of each law and the
context of other local legislation related thereto. 53 and Burgess, Et. Al. v. Magarian, Et. Al.,55 two of
the cases cited by plaintiff-appellant, lend support to the conclusion reached by the trial court, i.e. that
the municipal resolution supersedes/supervenes over the contractual undertaking between the parties.
Dolan v. Brown, states that "Equity will not, as a rule, enforce a restriction upon the use of property by
injunction where the property has so changed in character and environment as to make it unfit or
unprofitable for use should the restriction be enforced, but will, in such a case, leave the complainant to
whatever remedy he may have at law." 56 (Emphasis supplied.) Hence, the remedy of injunction in
Dolan v. Brown was denied on the specific holding that "A grantor may lawfully insert in his deed
conditions or restrictions which are not against public policy and do not materially impair the beneficial
enjoyment of the estate." 57 Applying the principle just stated to the present controversy, We can say
that since it is now unprofitable, nay a hazard to the health and comfort, to use Lots Nos. 5 and 6 for
strictly residential purposes, defendants-appellees should be permitted, on the strength of the resolution
promulgated under the police power of the municipality, to use the same for commercial purposes. In
Burgess v. Magarian, Et. Al. it was held that "restrictive covenants running with the land are binding on
all subsequent purchasers . . ." However, Section 23 of the zoning ordinance involved therein contained
a proviso expressly declaring that the ordinance was not intended "to interfere with or abrogate or annul
any easements, covenants or other agreement between parties." 58 In the case at bar, no such proviso
is found in the subject resolution.crala
16 | P a g e
wnad
It is, therefore, clear that even if the subject building restrictions were assumed by the
defendant-appellee as vendee of Lots Nos. 5 and 6, in the corresponding deeds of sale, and later, in
Transfer Certificates of Title Nos. 101613 and 106092, the contractual obligations so assumed cannot
prevail over Resolution No. 27, of the Municipality of Mandaluyong, which has validly exercised its police
power through the said resolution. Accordingly, the building restrictions, which declare Lots Nos. 5 and 6
as residential, cannot be enforced.

IN VIEW OF THE FOREGOING, the decision appealed from, dismissing the complaint, is hereby
AFFIRMED. Without pronouncement as to costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-19190 November 29, 1922
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,
vs.
VENANCIO CONCEPCION, defendant-appellant.
Recaredo Ma. Calvo for appellant.
Attorney-General Villa-Real for appellee.
MALCOLM, J.:
By telegrams and a letter of confirmation to the manager of the Aparri branch of the Philippine
National Bank, Venancio Concepcion, President of the Philippine National Bank, between April 10, 1919,
and May 7, 1919, authorized an extension of credit in favor of "Puno y Concepcion, S. en C." in the
amount of P300,000. This special authorization was essential in view of the memorandum order of
President Concepcion dated May 17, 1918, limiting the discretional power of the local manager at Aparri,
Cagayan, to grant loans and discount negotiable documents to P5,000, which, in certain cases, could be
increased to P10,000. Pursuant to this authorization, credit aggregating P300,000, was granted the firm
of "Puno y Concepcion, S. en C.," the only security required consisting of six demand notes. The notes,
together with the interest, were taken up and paid by July 17, 1919.
"Puno y Concepcion, S. en C." was a copartnership capitalized at P100,000. Anacleto Concepcion
contributed P5,000; Clara Vda. de Concepcion, P5,000; Miguel S. Concepcion, P20,000; Clemente Puno,
P20,000; and Rosario San Agustin, "casada con Gral. Venancio Concepcion," P50,000. Member Miguel S.
Concepcion was the administrator of the company.
On the facts recounted, Venancio Concepcion, as President of the Philippine National Bank and as
member of the board of directors of this bank, was charged in the Court of First Instance of Cagayan
with a violation of section 35 of Act No. 2747. He was found guilty by the Honorable Enrique V. Filamor,
Judge of First Instance, and was sentenced to imprisonment for one year and six months, to pay a fine
of P3,000, with subsidiary imprisonment in case of insolvency, and the costs.
Section 35 of Act No. 2747, effective on February 20, 1918, just mentioned, to which reference
must hereafter repeatedly be made, reads as follows: "The National Bank shall not, directly or indirectly,
grant loans to any of the members of the board of directors of the bank nor to agents of the branch
banks." Section 49 of the same Act provides: "Any person who shall violate any of the provisions of this
Act shall be punished by a fine not to exceed ten thousand pesos, or by imprisonment not to exceed five
years, or by both such fine and imprisonment." These two sections were in effect in 1919 when the
alleged unlawful acts took place, but were repealed by Act No. 2938, approved on January 30, 1921.
Counsel for the defense assign ten errors as having been committed by the trial court. These
errors they have argued adroitly and exhaustively in their printed brief, and again in oral argument.
Attorney-General Villa-Real, in an exceptionally accurate and comprehensive brief, answers the
proposition of appellant one by one.
The question presented are reduced to their simplest elements in the opinion which follows:

17 | P a g e
 I. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." by
Venancio Concepcion, President of the Philippine National Bank, a "loan" within the meaning of section
35 of Act No. 2747?
Counsel argue that the documents of record do not prove that authority to make a loan was given, but
only show the concession of a credit. In this statement of fact, counsel is correct, for the exhibits in
question speak of a "credito" (credit) and not of a " prestamo" (loan).
The "credit" of an individual means his ability to borrow money by virtue of the confidence or
trust reposed by a lender that he will pay what he may promise. (Donnell vs. Jones [1848], 13 Ala., 490;
Bouvier's Law Dictionary.) A "loan" means the delivery by one party and the receipt by the other party of
a given sum of money, upon an agreement, express or implied, to repay the sum loaned, with or without
interest. (Payne vs. Gardiner [1864], 29 N. Y., 146, 167.) The concession of a "credit" necessarily
involves the granting of "loans" up to the limit of the amount fixed in the "credit,"
II. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C.,"
by Venancio Concepcion, President of the Philippine National Bank, a "loan" or a "discount"?
Counsel argue that while section 35 of Act No. 2747 prohibits the granting of a "loan," it does not
prohibit what is commonly known as a "discount."
In a letter dated August 7, 1916, H. Parker Willis, then President of the National Bank, inquired of the
Insular Auditor whether section 37 of Act No. 2612 was intended to apply to discounts as well as to
loans. The ruling of the Acting Insular Auditor, dated August 11, 1916, was to the effect that said section
referred to loans alone, and placed no restriction upon discount transactions. It becomes material,
therefore, to discover the distinction between a "loan" and a "discount," and to ascertain if the instant
transaction comes under the first or the latter denomination.
Discounts are favored by bankers because of their liquid nature, growing, as they do, out of an
actual, live, transaction. But in its last analysis, to discount a paper is only a mode of loaning money,
with, however, these distinctions: (1) In a discount, interest is deducted in advance, while in a loan,
interest is taken at the expiration of a credit; (2) a discount is always on double-name paper; a loan is
generally on single-name paper.
Conceding, without deciding, that, as ruled by the Insular Auditor, the law covers loans and not
discounts, yet the conclusion is inevitable that the demand notes signed by the firm "Puno y Concepcion,
S. en C." were not discount paper but were mere evidences of indebtedness, because (1) interest was
not deducted from the face of the notes, but was paid when the notes fell due; and (2) they were
single-name and not double-name paper.
The facts of the instant case having relation to this phase of the argument are not essentially
different from the facts in the Binalbagan Estate case. Just as there it was declared that the operations
constituted a loan and not a discount, so should we here lay down the same ruling.
III. Was the granting of a credit of P300,000 to the copartnership, "Puno y Concepcion, S. en C."
by Venancio Concepcion, President of the Philippine National Bank, an "indirect loan" within the meaning
of section 35 of Act No. 2747?
Counsel argue that a loan to the partnership "Puno y Concepcion, S. en C." was not an "indirect loan." In
this connection, it should be recalled that the wife of the defendant held one-half of the capital of this
partnership.
In the interpretation and construction of statutes, the primary rule is to ascertain and give effect
to the intention of the Legislature. In this instance, the purpose of the Legislature is plainly to erect a
wall of safety against temptation for a director of the bank. The prohibition against indirect loans is a
recognition of the familiar maxim that no man may serve two masters — that where personal interest
clashes with fidelity to duty the latter almost always suffers. If, therefore, it is shown that the husband is
financially interested in the success or failure of his wife's business venture, a loan to partnership of
which the wife of a director is a member, falls within the prohibition.
Various provisions of the Civil serve to establish the familiar relationship called a conjugal partnership.
(Articles 1315, 1393, 1401, 1407, 1408, and 1412 can be specially noted.) A loan, therefore, to a
partnership of which the wife of a director of a bank is a member, is an indirect loan to such director.
That it was the intention of the Legislature to prohibit exactly such an occurrence is shown by the
acknowledged fact that in this instance the defendant was tempted to mingle his personal and family

18 | P a g e
affairs with his official duties, and to permit the loan P300,000 to a partnership of no established
reputation and without asking for collateral security.
In the case of Lester and Wife vs. Howard Bank ([1870], 33 Md., 558; 3 Am. Rep., 211), the
Supreme Court of Maryland said:
What then was the purpose of the law when it declared that no director or officer should borrow
of the bank, and "if any director," etc., "shall be convicted," etc., "of directly or indirectly violating
this section he shall be punished by fine and imprisonment?" We say to protect the stockholders,
depositors and creditors of the bank, against the temptation to which the directors and officers
might be exposed, and the power which as such they must necessarily possess in the control and
management of the bank, and the legislature unwilling to rely upon the implied understanding
that in assuming this relation they would not acquire any interest hostile or adverse to the most
exact and faithful discharge of duty, declared in express terms that they should not borrow, etc.,
of the bank.
In the case of People vs. Knapp ([1912], 206 N. Y., 373), relied upon in the Binalbagan Estate decision,
it was said:
We are of opinion the statute forbade the loan to his copartnership firm as well as to himself
directly. The loan was made indirectly to him through his firm.
IV. Could Venancio Concepcion, President of the Philippine National Bank, be convicted of a
violation of section 35 of Act No. 2747 in relation with section 49 of the same Act, when these portions
of Act No. 2747 were repealed by Act No. 2938, prior to the finding of the information and the rendition
of the judgment?
As noted along toward the beginning of this opinion, section 49 of Act No. 2747, in relation to section 35
of the same Act, provides a punishment for any person who shall violate any of the provisions of the Act.
It is contended, however, by the appellant, that the repeal of these sections of Act No. 2747 by Act No.
2938 has served to take away the basis for criminal prosecution.
This same question has been previously submitted and has received an answer adverse to such
contention in the cases of United Stated vs. Cuna ([1908], 12 Phil., 241); People vs. Concepcion ([1922],
43 Phil., 653); and Ong Chang Wing and Kwong Fok vs. United States ([1910], 218 U. S., 272; 40 Phil.,
1046). In other words, it has been the holding, and it must again be the holding, that where an Act of
the Legislature which penalizes an offense, such repeals a former Act which penalized the same offense,
such repeal does not have the effect of thereafter depriving the courts of jurisdiction to try, convict, and
sentenced offenders charged with violations of the old law.
V. Was the granting of a credit of P300,000 to the copartnership "Puno y Concepcion, S. en C."
by Venancio Concepcion, President of the Philippine National Bank, in violation of section 35 of Act No.
2747, penalized by this law?
Counsel argue that since the prohibition contained in section 35 of Act No. 2747 is on the bank, and
since section 49 of said Act provides a punishment not on the bank when it violates any provisions of the
law, but on a personviolating any provisions of the same, and imposing imprisonment as a part of the
penalty, the prohibition contained in said section 35 is without penal sanction.lawph!l.net
The answer is that when the corporation itself is forbidden to do an act, the prohibition extends
to the board of directors, and to each director separately and individually.
(People vs. Concepcion, supra.)
VI. Does the alleged good faith of Venancio Concepcion, President of the Philippine National
Bank, in extending the credit of P300,000 to the copartnership "Puno y Concepcion, S. en C." constitute
a legal defense?
Counsel argue that if defendant committed the acts of which he was convicted, it was because
he was misled by rulings coming from the Insular Auditor. It is furthermore stated that since the loans
made to the copartnership "Puno y Concepcion, S. en C." have been paid, no loss has been suffered by
the Philippine National Bank.
Neither argument, even if conceded to be true, is conclusive. Under the statute which the defendant has
violated, criminal intent is not necessarily material. The doing of the inhibited act, inhibited on account of
public policy and public interest, constitutes the crime. And, in this instance, as previously demonstrated,
the acts of the President of the Philippine National Bank do not fall within the purview of the rulings of
the Insular Auditor, even conceding that such rulings have controlling effect.
19 | P a g e
Morse, in his work, Banks and Banking, section 125, says:
It is fraud for directors to secure by means of their trust, and advantage not common to the
other stockholders. The law will not allow private profit from a trust, and will not listen to any
proof of honest intent.
JUDGMENT
On a review of the evidence of record, with reference to the decision of the trial court, and the
errors assigned by the appellant, and with reference to previous decisions of this court on the same
subject, we are irresistibly led to the conclusion that no reversible error was committed in the trial of this
case, and that the defendant has been proved guilty beyond a reasonable doubt of the crime charged in
the information. The penalty imposed by the trial judge falls within the limits of the punitive provisions of
the law.
Judgment is affirmed, with the costs of this instance against the appellant. So ordered.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 72873 May 28, 1987

CARLOS ALONZO and CASIMIRA ALONZO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and TECLA PADUA, respondents.
Perpetuo L.B. Alonzo for petitioners.
Luis R. Reyes for private respondent.

CRUZ, J.:

The question is sometimes asked, in serious inquiry or in curious conjecture, whether we are a court of
law or a court of justice. Do we apply the law even if it is unjust or do we administer justice even against
the law? Thus queried, we do not equivocate. The answer is that we do neither because we are a
court both of law and of justice. We apply the law with justice for that is our mission and purpose in the
scheme of our Republic. This case is an illustration.

Five brothers and sisters inherited in equal pro indiviso shares a parcel of land registered in 'the name of
their deceased parents under OCT No. 10977 of the Registry of Deeds of Tarlac. 1

On March 15, 1963, one of them, Celestino Padua, transferred his undivided share of the herein
petitioners for the sum of P550.00 by way of absolute sale. 2 One year later, on April 22, 1964,
Eustaquia Padua, his sister, sold her own share to the same vendees, in an instrument denominated
"Con Pacto de Retro Sale," for the sum of P 440.00. 3

By virtue of such agreements, the petitioners occupied, after the said sales, an area corresponding to
two-fifths of the said lot, representing the portions sold to them. The vendees subsequently enclosed the
same with a fence. In 1975, with their consent, their son Eduardo Alonzo and his wife built a semi-
concrete house on a part of the enclosed area.4

On February 25, 1976, Mariano Padua, one of the five coheirs, sought to redeem the area sold to the
spouses Alonzo, but his complaint was dismissed when it appeared that he was an American citizen
.5 On May 27, 1977, however, Tecla Padua, another co-heir, filed her own complaint invoking the same
right of redemption claimed by her brother. 6

The trial court * also dismiss this complaint, now on the ground that the right had lapsed, not having
been exercised within thirty days from notice of the sales in 1963 and 1964. Although there was no
written notice, it was held that actual knowledge of the sales by the co-heirs satisfied the requirement of
the law. 7

20 | P a g e
In truth, such actual notice as acquired by the co-heirs cannot be plausibly denied. The other co-heirs,
including Tecla Padua, lived on the same lot, which consisted of only 604 square meters, including the
portions sold to the petitioners . 8 Eustaquia herself, who had sold her portion, was staying in the same
house with her sister Tecla, who later claimed redemption petition. 9 Moreover, the petitioners and the
private respondents were close friends and neighbors whose children went to school together. 10

It is highly improbable that the other co-heirs were unaware of the sales and that they thought, as they
alleged, that the area occupied by the petitioners had merely been mortgaged by Celestino and
Eustaquia. In the circumstances just narrated, it was impossible for Tecla not to know that the area
occupied by the petitioners had been purchased by them from the other. co-heirs. Especially significant
was the erection thereon of the permanent semi-concrete structure by the petitioners' son, which was
done without objection on her part or of any of the other co-heirs.

The only real question in this case, therefore, is the correct interpretation and application of the
pertinent law as invoked, interestingly enough, by both the petitioners and the private respondents. This
is Article 1088 of the Civil Code, providing as follows:

Art. 1088. Should any of the heirs sell his hereditary rights to a stranger before the
partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by
reimbursing him for the price of the sale, provided they do so within the period of one
month from the time they were notified in writing of the sale by the vendor.

In reversing the trial court, the respondent court ** declared that the notice required by the said article
was written notice and that actual notice would not suffice as a substitute. Citing the same case of De
Conejero v. Court of Appeals 11 applied by the trial court, the respondent court held that that decision,
interpreting a like rule in Article 1623, stressed the need for written notice although no particular form
was required.

Thus, according to Justice J.B.L. Reyes, who was the ponente of the Court, furnishing the co-heirs with a
copy of the deed of sale of the property subject to redemption would satisfy the requirement for written
notice. "So long, therefore, as the latter (i.e., the redemptioner) is informed in writing of the sale and
the particulars thereof," he declared, "the thirty days for redemption start running. "

In the earlier decision of Butte v. UY, 12 " the Court, speaking through the same learned jurist,
emphasized that the written notice should be given by the vendor and not the vendees, conformably to
a similar requirement under Article 1623, reading as follows:

Art. 1623. The right of legal pre-emption or redemption shall not be exercised except
within thirty days from the notice in writing by the prospective vendor, or by the vendors,
as the case may be. The deed of sale shall not be recorded in the Registry of Property,
unless accompanied by an affidavit of the vendor that he has given written notice thereof
to all possible redemptioners.

The right of redemption of co-owners excludes that of the adjoining owners.

As "it is thus apparent that the Philippine legislature in Article 1623 deliberately selected a particular
method of giving notice, and that notice must be deemed exclusive," the Court held that notice given by
the vendees and not the vendor would not toll the running of the 30-day period.

The petition before us appears to be an illustration of the Holmes dictum that "hard cases make bad
laws" as the petitioners obviously cannot argue against the fact that there was really no written notice
given by the vendors to their co-heirs. Strictly applied and interpreted, Article 1088 can lead to only one
conclusion to wit, that in view of such deficiency, the 30 day period for redemption had not begun to
run, much less expired in 1977.

But as has also been aptly observed, we test a law by its results; and likewise, we may add, by its
purposes. It is a cardinal rule that, in seeking the meaning of the law, the first concern of the judge
should be to discover in its provisions the intent of the lawmaker. Unquestionably, the law should never
be interpreted in such a way as to cause injustice as this is never within the legislative intent. An
indispensable part of that intent, in fact, for we presume the good motives of the legislature, is to render
justice.
21 | P a g e
Thus, we interpret and apply the law not independently of but in consonance with justice. Law and
justice are inseparable, and we must keep them so. To be sure, there are some laws that, while
generally valid, may seem arbitrary when applied in a particular case because of its peculiar
circumstances. In such a situation, we are not bound, because only of our nature and functions, to apply
them just the same, in slavish obedience to their language. What we do instead is find a balance
between the word and the will, that justice may be done even as the law is obeyed.

As judges, we are not automatons. We do not and must not unfeelingly apply the law as it is worded,
yielding like robots to the literal command without regard to its cause and consequence. "Courts are apt
to err by sticking too closely to the words of a law," so we are warned, by Justice Holmes again, "where
these words import a policy that goes beyond them." 13 While we admittedly may not legislate, we
nevertheless have the power to interpret the law in such a way as to reflect the will of the legislature.
While we may not read into the law a purpose that is not there, we nevertheless have the right to
read out of it the reason for its enactment. In doing so, we defer not to "the letter that killeth" but to
"the spirit that vivifieth," to give effect to the law maker's will.

The spirit, rather than the letter of a statute determines its construction, hence, a statute
must be read according to its spirit or intent. For what is within the spirit is within the
letter but although it is not within the letter thereof, and that which is within the letter but
not within the spirit is not within the statute. Stated differently, a thing which is within the
intent of the lawmaker is as much within the statute as if within the letter; and a thing
which is within the letter of the statute is not within the statute unless within the intent of
the lawmakers. 14

In requiring written notice, Article 1088 seeks to ensure that the redemptioner is properly
notified of the sale and to indicate the date of such notice as the starting time of the 30-
day period of redemption. Considering the shortness of the period, it is really necessary,
as a general rule, to pinpoint the precise date it is supposed to begin, to obviate any
problem of alleged delays, sometimes consisting of only a day or two.

The instant case presents no such problem because the right of redemption was invoked
not days but years after the sales were made in 1963 and 1964. The complaint was filed by Tecla Padua
in 1977, thirteen years after the first sale and fourteen years after the second sale. The delay invoked by
the petitioners extends to more than a decade, assuming of course that there was a valid notice that
tolled the running of the period of redemption.

Was there a valid notice? Granting that the law requires the notice to be written, would such notice be
necessary in this case? Assuming there was a valid notice although it was not in writing. would there be
any question that the 30-day period for redemption had expired long before the complaint was filed in
1977?

In the face of the established facts, we cannot accept the private respondents' pretense that they were
unaware of the sales made by their brother and sister in 1963 and 1964. By requiring written proof of
such notice, we would be closing our eyes to the obvious truth in favor of their palpably false claim of
ignorance, thus exalting the letter of the law over its purpose. The purpose is clear enough: to make
sure that the redemptioners are duly notified. We are satisfied that in this case the other brothers and
sisters were actually informed, although not in writing, of the sales made in 1963 and 1964, and that
such notice was sufficient.

Now, when did the 30-day period of redemption begin?

While we do not here declare that this period started from the dates of such sales in 1963 and 1964, we
do say that sometime between those years and 1976, when the first complaint for redemption was filed,
the other co-heirs were actually informed of the sale and that thereafter the 30-day period started
running and ultimately expired. This could have happened any time during the interval of thirteen years,
when none of the co-heirs made a move to redeem the properties sold. By 1977, in other words, when
Tecla Padua filed her complaint, the right of redemption had already been extinguished because the
period for its exercise had already expired.

The following doctrine is also worth noting:

22 | P a g e
 While the general rule is, that to charge a party with laches in the assertion of an alleged
right it is essential that he should have knowledge of the facts upon which he bases his
claim, yet if the circumstances were such as should have induced inquiry, and the means
of ascertaining the truth were readily available upon inquiry, but the party neglects to
make it, he will be chargeable with laches, the same as if he had known the facts. 15

It was the perfectly natural thing for the co-heirs to wonder why the spouses Alonzo, who were not
among them, should enclose a portion of the inherited lot and build thereon a house of strong materials.
This definitely was not the act of a temporary possessor or a mere mortgagee. This certainly looked like
an act of ownership. Yet, given this unseemly situation, none of the co-heirs saw fit to object or at least
inquire, to ascertain the facts, which were readily available. It took all of thirteen years before one of
them chose to claim the right of redemption, but then it was already too late.

We realize that in arriving at our conclusion today, we are deviating from the strict letter of the law,
which the respondent court understandably applied pursuant to existing jurisprudence. The said court
acted properly as it had no competence to reverse the doctrines laid down by this Court in the above-
cited cases. In fact, and this should be clearly stressed, we ourselves are not abandoning the De
Conejero and Buttle doctrines. What we are doing simply is adopting an exception to the general rule, in
view of the peculiar circumstances of this case.

The co-heirs in this case were undeniably informed of the sales although no notice in writing was given
them. And there is no doubt either that the 30-day period began and ended during the 14 years
between the sales in question and the filing of the complaint for redemption in 1977, without the co-
heirs exercising their right of redemption. These are the justifications for this exception.

More than twenty centuries ago, Justinian defined justice "as the constant and perpetual wish to render
every one his due." 16 That wish continues to motivate this Court when it assesses the facts and the law
in every case brought to it for decision. Justice is always an essential ingredient of its decisions. Thus
when the facts warrants, we interpret the law in a way that will render justice, presuming that it was the
intention of the lawmaker, to begin with, that the law be dispensed with justice. So we have done in this
case.

WHEREFORE, the petition is granted. The decision of the respondent court is REVERSED and that of the
trial court is reinstated, without any pronouncement as to costs. It is so ordered.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-53766 October 30, 1981

MARIA C. RAMOS, petitioner,

vs.
COURT OF APPEALS, Judge JESUS R. DE VEGA of the Court of First Instance of Bulacan
Malolos Branch II and the MUNICIPALITY OF HAGONOY Bulacan, respondents.

AQUINO, J.:

This case is about the legality of a municipality's hiring of private counsel to file a suit in its behalf. The
municipality of Hagonoy, Bulacan, through the law firm of Cruz Durian & Academia (now Cruz Durian
Agabin Atienza & Alday), sued in the Court of First Instance of Bulacan Marciano Domingo, Leonila
Guzman, Maria C. Ramos and Consorcio Cruz for the recovery of its 74-hectare fishpond (Civil Case No.
5095-M).

23 | P a g e
In paragraph 19 of the complaint it was alleged that the municipality had obligated itself to pay Cruz
Durian & Academia as attorney's fees not less than twenty percent of the amount to be recovered by the
plaintiff (p. 44, Rollo).

The provincial fiscal of Bulacan and the municipal attorney of Hagonoy entered their appearance as
counsel for the municipality with the manifestation that its private counsel would be under the control
and supervision of those officials. Notwithstanding that appearance, Domingo and Maria C. Ramos
(lessee and sublessee of the fishpond) moved to disqualify the Cruz law firm from serving as counsel of
the municipality.

The trial court denied the motion. It found that Angel Cruz, the head of the law firm, volunteered to act
as counsel for the municipality because he desired to serve his native town.

Ramos and Domingo assailed that order by means of certiorari in the Court of Appeals which in a
decision dated February 15, 1979 sustained the trial court (Ramos vs. Judge Jesus R. de Vega, et al.,
CA-G.R. No. SP-7728-R). Ramos brought the case to this Court.

We hold that the trial court and the Court of Appeals erred in allowing the Cruz law firm to act as
counsel for the municipality in collaboration with the fiscal and the municipal attorney.

That ruling constitutes a grave abuse of discretion because it is manifestly a transgression of section
1683 of the Revised Administrative Code which provides that "the provincial fiscal shall represent the
province and any municipality or municipal district thereof in any court, except in cases whereof original
jurisdiction is vested in the Supreme Court or in cases where the municipality or municipal district in
question is a party adverse to the provincial government or to some other municipality or municipal
district in the same province. When the interests of a provincial government and of any political division
thereof are opposed, the provincial fiscal shall act on behalf of the province. When the provincial fiscal is
disqualified to serve any municipality or other political subdivision of a province, a special attorney may
be employed by its council.

The legislative intent to prohibit a municipality from employing private counsel in its lawsuits is further
implemented by section 3 of the Local Autonomy Act, Republic Act No. 2264, which provides that the
municipal attorney, as the head of the legal division or office of a municipality, "shall act as legal counsel
of the municipality and perform such duties and exercise such powers as may be assigned to him by the
council" The municipal attorney is paid out of municipal funds (Sec. 4, Republic Act No. 5185,
Decentralization Act of 1967). He can represent the municipality even without the fiscal's collaboration
(Calleja vs. Court of Appeals, L-22501, July 31,1967,20 SCRA 895).

The questioned-ruling of the two courts also contravenes settled jurisprudence. Applying section 1683, it
was held that the municipality's authority to employ a private lawyer is expressly limited only to
situations where the provincial fiscal is disqualified to represent it (De Guia vs. Auditor General; L-29824,
March 29, 197 2, 44 SCRA 169. See Reyes vs. Cornista, 92 Phil. 838, Municipality of Bocaue vs. Manotok,
93 Phil. 173; Enriquez vs. Gimenez, 107 Phil. 932).

Evidently, the lawmaker in requiring that the municipality should be represented in its court cases by a
government lawyer like its municipal attorney and the provincial fiscal intended that the municipality
should not be burdened with the expenses of hiring a private lawyer. The lawmaker also assumed that
the interests of the municipality would be best protected if a government lawyer handles its litigations.

It is to be expected that the municipal attorney and the fiscal would be faithful and dedicated to the
municipality's interests and that, as civil service employees, they could be held accountable for any
misconduct or dereliction of duty.

24 | P a g e
The Court of Appeals perceived nothing illegal in allowing the Cruz Law Office to represent the
municipality of Hagonoy because lawyer Cruz offered his legal services gratis. Petitioner Ramos in her
second motion for reconsideration called the Court's attention to paragraph 19 of the complaint wherein
the Cruz law firm alleged that the municipality had contracted to pay its lawyer a 20% contingent fee.

The Court of Appeals in a resolution dated December 6, 1979 said that there was no cogent reason to
reconsider, its decision but at the same time it gave the Cruz law firm fifteen days from notice within
which "to amend the answer (should be complaint) in the trail court by "deleting therefrom the claim for
attorney's fees" and to report such amendment to the Court of Appeals; otherwise, it would "motu
proprio reconsider its decision".

Obviously, the Appellate Court wanted the complaint to conform to its erroneous factual finding that the
Cruz law firm was serving as counsel without compensation. It did not notice that its resolution was
ambivalent because while it denied the second motion for reconsideration, in the same breath it
threatened to "reconsider its decision" if the complaint was not amended.

Following that directive, the Cruz law firm filed in the trial court an amended complaint dated December
31, 1979 containing the allegation in paragraph 19 thereof that the municipality was forced to retain the
Cruz law firm "as additional counsel under the control and supervision of plaintiff's principal attorneys
and/or the Provincial Fiscal without any obligation to pay attorney's fees". The prayer for the payment of
attorney's fees in the original complaint was eliminated in the amended complaint.

Ramos contended in the trial court and in the Court of Appeals that the trial court could not admit the
amended complaint because it was immobilized by the restraining order issued by the Court of Appeals.
The Court of Appeals did not resolve that contention.

On May 7, 1980, Ramos filed in this Court her petition for certiorari, mandamus and prohibition wherein
she prayed that the Court of Appeals be directed to resolve the issue raised in her second motion for
reconsideration and that the amended complaint should not be taken into consideration because it was
improperly admitted by the trial court.

Although the Court of Appeals was furnished on May 7, 1980 with a copy of that petition, it,
nevertheless, issued a resolution dated May 22, 1981 requiring the Cruz law firm to inform it of "the
further development on the matter" (p. 113, Rollo).

This Court treated Ramos' petition as an appeal from the Appellate Court's decision. Ramos was
confused as to when she would appeal from that decision because, as noted earlier, while the Appellate
Court denied her second motion for reconsideration, the denial was not final since it was accompanied
by the warning that it would "reconsider its decision" if the complaint was not amended to eliminate the
claim of the Cruz law firm for attorney's fees. Hence, the alleged tardiness of the petition was excusable.

The fact that the municipal attorney and the fiscal are supposed to collaborate with a private law firm
does not legalize the latter's representation of the municipality of Hagonoy in Civil Case No. 5095-M.
While a private prosecutor is allowed in criminal cases, an analogous arrangement is not allowed in civil
cases wherein a municipality is the plaintiff.

Section 1683 of the Revised Administrative Code, as complemented by section 3 of the Local Autonomy
Law is clear in providing that only the provincial fiscal and the municipal attorney can represent a
municipality in its lawsuits. That provision is mandatory.

The law being clear and unmistakable, there is no room for interpretation or for engrafting upon it
exceptions or qualifications not contemplated therein. As observed by Justice Moreland:

Where language is plain, subtle refinements which tinge words so as to give them the
color of a particular judicial theory are not only unnecessary but decidedly harmful. That
25 | P a g e
 which has caused so much confusion in the law, which has made it so difficult for the
public to understand and know what the law is with respect to a given matter, is in
considerable measure the unwarranted interference by judicial tribunals with the English
language as found in statutes and contracts, cutting out words here and inserting them
there, making them fit personal Ideas of what the legislature ought to have done or what
parties should have agreed upon, giving them meanings which they do not ordinarily
have, cutting, trimming, fitting, changing and coloring until lawyers themselves are unable
to advise their clients as to the meaning of a given statute or contract until it has been
submitted to some court for its 'interpretation and construction (Yangco vs. Court of First
Instance of Manila, 29 Phil. 183,188).

Construction and interpretation come only after it has been demonstrated that application
is impossible or inadequate without them. They are the very last functions which a court
should exercise. The majority of the laws need no interpretation or construction. They
require only application, and if there were more application and less construction, there
would be more stability in the law, and more people would know what the law is.
(Lizarraga Hermanos vs. Yap Tico, 24 Phil. 504, 513).

WHEREFORE, the decision of the Court of Appeals is reversed and set aside. We hereby declare that the
appearance in the aforementioned case of Cruz Durian Agabin Atienza & Alday as counsel for the
municipality of Hagonoy is contrary to law. The municipality should be represented by its municipal
attorney and by the provincial fiscal of Bulacan. The restraining order is lifted. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. 168338 February 15, 2008

FRANCISCO CHAVEZ, petitioner,

vs.
RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and
NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), respondents.

SEPARATE CONCURRING OPINION

CARPIO, J.:

The Case

This is a petition for the writs of certiorari and prohibition to set aside "acts, issuances, and orders" of
respondents Secretary of Justice Raul M. Gonzalez (respondent Gonzales) and the National
Telecommunications Commission (NTC), particularly an NTC "press release" dated 11 June 2005,
warning radio and television stations against airing taped conversations allegedly between President
Gloria Macapagal-Arroyo and Commission on Elections (COMELEC) Commissioner Virgilio Garcillano
(Garcillano)1 under pain of suspension or revocation of their airwave licenses.

26 | P a g e
 The Facts

On 24 June 2004, Congress, acting as national board of canvassers, proclaimed President Arroyo winner
in the 2004 presidential elections.2 President Arroyo received a total of 12,905,808 votes, 1,123,576
more than the votes of her nearest rival, Fernando Poe, Jr. Sometime before 6 June 2005, the radio
station dzMM aired the Garci Tapes where the parties to the conversation discussed "rigging" the results
of the 2004 elections to favor President Arroyo. On 6 June 2005, Presidential spokesperson Ignacio
Bunye (Bunye) held a press conference in Malacañang Palace, where he played before the presidential
press corps two compact disc recordings of conversations between a woman and a man. Bunye
identified the woman in both recordings as President Arroyo but claimed that the contents of the second
compact disc had been "spliced" to make it appear that President Arroyo was talking to Garcillano.

However, on 9 June 2005, Bunye backtracked and stated that the woman's voice in the compact discs
was not President Arroyo’s after all.3 Meanwhile, other individuals went public, claiming possession of the
genuine copy of the Garci Tapes.4 Respondent Gonzalez ordered the National Bureau of Investigation to
investigate media organizations which aired the Garci Tapes for possible violation of Republic Act No.
4200 or the Anti-Wiretapping Law.

On 11 June 2005, the NTC issued a press release warning radio and television stations that airing the
Garci Tapes is a "cause for the suspension, revocation and/or cancellation of the licenses or
authorizations" issued to them.5 On 14 June 2005, NTC officers met with officers of the broadcasters
group, Kapisanan ng mga Broadcasters sa Pilipinas (KBP), to dispel fears of censorship. The NTC and
KBP issued a joint press statement expressing commitment to press freedom.6

On 21 June 2005, petitioner Francisco I. Chavez (petitioner), as citizen, filed this petition to nullify the
"acts, issuances, and orders" of the NTC and respondent Gonzalez (respondents) on the following
grounds: (1) respondents’ conduct violated freedom of expression and the right of the people to
information on matters of public concern under Section 7, Article III of the Constitution, and (2) the NTC
acted ultra vires when it warned radio and television stations against airing the Garci Tapes.

In their Comment to the petition, respondents raised threshold objections that (1) petitioner has no
standing to litigate and (2) the petition fails to meet the case or controversy requirement in
constitutional adjudication. On the merits, respondents claim that (1) the NTC's press release of 11 June
2005 is a mere "fair warning," not censorship, cautioning radio and television networks on the lack of
authentication of the Garci Tapes and of the consequences of airing false or fraudulent material, and (2)
the NTC did not act ultra vires in issuing the warning to radio and television stations.

In his Reply, petitioner belied respondents' claim on his lack of standing to litigate, contending that his
status as a citizen asserting the enforcement of a public right vested him with sufficient interest to
maintain this suit. Petitioner also contests respondents' claim that the NTC press release of 11 June 2005
is a mere warning as it already prejudged the Garci Tapes as inauthentic and violative of the Anti-
Wiretapping Law, making it a "cleverly disguised x x x gag order."

ISSUE

The principal issue for resolution is whether the NTC warning embodied in the press release of 11 June
2005 constitutes an impermissible prior restraint on freedom of expression.

I vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release dated 11
June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC from
enforcing the same.

1. Standing to File Petition

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Petitioner has standing to file this petition. When the issue involves freedom of expression, as in the
present case, any citizen has the right to bring suit to question the constitutionality of a government
action in violation of freedom of expression, whether or not the government action is directed at such
citizen. The government action may chill into silence those to whom the action is directed. Any citizen
must be allowed to take up the cudgels for those who have been cowed into inaction because freedom
of expression is a vital public right that must be defended by everyone and anyone.

Freedom of expression, being fundamental to the preservation of a free, open and democratic society, is
of transcendental importance that must be defended by every patriotic citizen at the earliest opportunity.
We have held that any concerned citizen has standing to raise an issue of transcendental importance to
the nation,7 and petitioner in this present petition raises such issue.

2. Overview of Freedom of Expression, Prior Restraint and Subsequent Punishment

Freedom of expression is the foundation of a free, open and democratic society. Freedom of expression
is an indispensable condition8 to the exercise of almost all other civil and political rights. No society can
remain free, open and democratic without freedom of expression. Freedom of expression guarantees
full, spirited, and even contentious discussion of all social, economic and political issues. To survive, a
free and democratic society must zealously safeguard freedom of expression.

Freedom of expression allows citizens to expose and check abuses of public officials. Freedom of
expression allows citizens to make informed choices of candidates for public office. Freedom of
expression crystallizes important public policy issues, and allows citizens to participate in the discussion
and resolution of such issues. Freedom of expression allows the competition of ideas, the clash of claims
and counterclaims, from which the truth will likely emerge. Freedom of expression allows the airing of
social grievances, mitigating sudden eruptions of violence from marginalized groups who otherwise
would not be heard by government. Freedom of expression provides a civilized way of engagement
among political, ideological, religious or ethnic opponents for if one cannot use his tongue to argue, he
might use his fist instead.

Freedom of expression is the freedom to disseminate ideas and beliefs, whether competing, conforming
or otherwise. It is the freedom to express to others what one likes or dislikes, as it is the freedom of
others to express to one and all what they favor or disfavor. It is the free expression for the ideas we
love, as well as the free expression for the ideas we hate.9 Indeed, the function of freedom of expression
is to stir disputes:

[I]t may indeed best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often
provocative and challenging. It may strike at prejudices and preconceptions and have profound
unsettling effects as it presses for acceptance of an idea.10

Section 4, Article III of the Constitution prohibits the enactment of any law curtailing freedom of
expression:

No law shall be passed abridging the freedom of speech, of expression, or the press, or the right
of the people peaceably to assemble and petition the government for redress of grievances.

Thus, the rule is that expression is not subject to any prior restraint or censorship because the
Constitution commands that freedom of expression shall not be abridged. Over time, however, courts
have carved out narrow and well defined exceptions to this rule out of necessity.

The exceptions, when expression may be subject to prior restraint, apply in this jurisdiction to
only four categories of expression, namely: pornography,11 false or misleading
advertisement,12 advocacy of imminent lawless action,13 and danger to national security.14 All other

28 | P a g e
expression is not subject to prior restraint. As stated in Turner Broadcasting System v. Federal
Communication Commission, "[T]he First Amendment (Free Speech Clause), subject only to narrow and
well understood exceptions, does not countenance governmental control over the content of messages
expressed by private individuals."15

Expression not subject to prior restraint is protected expression or high-value expression. Any
content-based prior restraint on protected expression is unconstitutional without
exception. A protected expression means what it says – it is absolutely protected from censorship.
Thus, there can be no prior restraint on public debates on the amendment or repeal of existing laws, on
the ratification of treaties, on the imposition of new tax measures, or on proposed amendments to the
Constitution.

Prior restraint on expression is content-based if the restraint is aimed at the message or idea of the
expression. Courts will subject to strict scrutiny content-based restraint. If the content-based prior
restraint is directed at protected expression, courts will strike down the restraint as unconstitutional
because there can be no content-based prior restraint on protected expression. The analysis thus turns
on whether the prior restraint is content-based, and if so, whether such restraint is directed at protected
expression, that is, those not falling under any of the recognized categories of unprotected expression.

If the prior restraint is not aimed at the message or idea of the expression, it is content-neutral even if it
burdens expression. A content-neutral restraint is a restraint which regulates the time, place or manner
of the expression in public places16 without any restraint on the content of the expression. Courts will
subject content-neutral restraints to intermediate scrutiny.17

An example of a content-neutral restraint is a permit specifying the date, time and route of a rally
passing through busy public streets. A content-neutral prior restraint on protected expression which does
not touch on the content of the expression enjoys the presumption of validity and is thus enforceable
subject to appeal to the courts.18 Courts will uphold time, place or manner restraints if they are content-
neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative
channels of expression.19

In content-neutral prior restraint on protected speech, there should be no prior restraint on the content
of the expression itself. Thus, submission of movies or pre-taped television programs to a government
review board is constitutional only if the review is for classification and not for censoring any part of the
content of the submitted materials.20 However, failure to submit such materials to the review board may
be penalized without regard to the content of the materials.21 The review board has no power to reject
the airing of the submitted materials. The review board’s power is only to classify the materials, whether
for general patronage, for adults only, or for some other classification. The power to classify expressions
applies only to movies and pre-taped television programs22 but not to live television programs. Any
classification of live television programs necessarily entails prior restraint on expression.

Expression that may be subject to prior restraint is unprotected expression or low-value expression.
By definition, prior restraint on unprotected expression is content-based23 since the restraint is imposed
because of the content itself. In this jurisdiction, there are currently only four categories of unprotected
expression that may be subject to prior restraint. This Court recognized false or misleading
advertisement as unprotected expression only in October 2007.24

Only unprotected expression may be subject to prior restraint. However, any such prior restraint
on unprotected expression must hurdle a high barrier. First, such prior restraint is presumed
unconstitutional. Second,the government bears a heavy burden of proving the constitutionality of the
prior restraint.25

Courts will subject to strict scrutiny any government action imposing prior restraint on unprotected
expression.26 The government action will be sustained if there is a compelling State interest, and prior

29 | P a g e
restraint is necessary to protect such State interest. In such a case, the prior restraint shall be narrowly
drawn - only to the extent necessary to protect or attain the compelling State interest.

Prior restraint is a more severe restriction on freedom of expression than subsequent punishment.
Although subsequent punishment also deters expression, still the ideas are disseminated to the public.
Prior restraint prevents even the dissemination of ideas to the public.

While there can be no prior restraint on protected expression, such expression may be subject to
subsequent punishment,27 either civilly or criminally. Thus, the publication of election surveys cannot be
subject to prior restraint,28 but an aggrieved person can sue for redress of injury if the survey turns out
to be fabricated. Also, while Article 201 (2)(b)(3) of the Revised Penal Code punishing "shows which
offend any race or religion" cannot be used to justify prior restraint on religious expression, this
provision can be invoked to justify subsequent punishment of the perpetrator of such offensive shows.29

Similarly, if the unprotected expression does not warrant prior restraint, the same expression may still be
subject to subsequent punishment, civilly or criminally. Libel falls under this class of unprotected
expression. However, if the expression cannot be subject to the lesser restriction of subsequent
punishment, logically it cannot also be subject to the more severe restriction of prior restraint. Thus,
since profane language or "hate speech" against a religious minority is not subject to subsequent
punishment in this jurisdiction,30 such expression cannot be subject to prior restraint.

If the unprotected expression warrants prior restraint, necessarily the same expression is subject to
subsequent punishment. There must be a law punishing criminally the unprotected expression before
prior restraint on such expression can be justified. The legislature must punish the unprotected
expression because it creates a substantive evil that the State must prevent. Otherwise, there will be no
legal basis for imposing a prior restraint on such expression.

The prevailing test in this jurisdiction to determine the constitutionality of government action imposing
prior restraint on three categories of unprotected expression – pornography,31 advocacy of imminent
lawless action, and danger to national security - is the clear and present danger test.32 The expression
restrained must present a clear and present danger of bringing about a substantive evil that the State
has a right and duty to prevent, and such danger must be grave and imminent.33

Prior restraint on unprotected expression takes many forms - it may be a law, administrative regulation,
or impermissible pressures like threats of revoking licenses or withholding of benefits.34 The
impermissible pressures need not be embodied in a government agency regulation, but may emanate
from policies, advisories or conduct of officials of government agencies.

3. Government Action in the Present Case

The government action in the present case is a warning by the NTC that the airing or
broadcasting of the Garci Tapes by radio and television stations is a "cause for the
suspension, revocation and/or cancellation of the licenses or authorizations" issued to radio
and television stations. The NTC warning, embodied in a press release, relies on two grounds. First, the
airing of the Garci Tapes "is a continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority issued to radio and TV stations." Second, the Garci
Tapes have not been authenticated, and subsequent investigation may establish that the tapes contain
false information or willful misrepresentation.

Specifically, the NTC press release contains the following categorical warning:

Taking into consideration the country’s unusual situation, and in order not to unnecessarily
aggravate the same, the NTC warns all radio stations and television networks owners/operators
that the conditions of the authorizations and permits issued to them by Government like the

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 Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall
not use its stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the Commission that certain
personalities are in possession of alleged taped conversation which they claim, (sic) involve the
President of the Philippines and a Commissioner of the COMELEC regarding their supposed
violation of election laws. These personalities have admitted that the taped conversations are
product of illegal wiretapping operations.

Considering that these taped conversations have not been duly authenticated nor could it be said
at this time that the tapes contain an accurate or truthful representation of what was recorded
therein, (sic) it is the position of the Commission that the continuous airing or
broadcast of the said taped conversations by radio and television stations is a
continuing violation of the Anti-Wiretapping Law and the conditions of the
Provisional Authority and/or Certificate of Authority issued to these radio and
television stations. If it has been (sic) subsequently established that the said tapes
are false and/or fraudulent after a prosecution or appropriate investigation, the
concerned radio and television companies are hereby warned that their
broadcast/airing of such false information and/or willful misrepresentation shall be
just cause for the suspension, revocation and/or cancellation of the licenses or
authorizations issued to the said companies. (Boldfacing and underscoring supplied)

The NTC does not claim that the public airing of the Garci Tapes constitutes unprotected expression that
may be subject to prior restraint. The NTC does not specify what substantive evil the State seeks to
prevent in imposing prior restraint on the airing of the Garci Tapes. The NTC does not claim that the
public airing of the Garci Tapes constitutes a clear and present danger of a substantive evil, of grave and
imminent character, that the State has a right and duty to prevent.

The NTC did not conduct any hearing in reaching its conclusion that the airing of the Garci Tapes
constitutes a continuing violation of the Anti-Wiretapping Law. At the time of issuance of the NTC press
release, and even up to now, the parties to the conversations in the Garci Tapes have not complained
that the wire-tapping was without their consent, an essential element for violation of the Anti-
Wiretapping Law.35 It was even the Office of the President, through the Press Secretary, that played and
released to media the Garci Tapes containing the alleged "spliced" conversation between President
Arroyo and Commissioner Garcillano. There is also the issue of whether a wirelesscellular phone
conversation is covered by the Anti-Wiretapping Law.

Clearly, the NTC has no factual or legal basis in claiming that the airing of the Garci Tapes constitutes a
violation of the Anti-Wiretapping Law. The radio and television stations were not even given an
opportunity to be heard by the NTC. The NTC did not observe basic due process as mandated in Ang
Tibay v. Court of Industrial Relations.36

The NTC claims that the Garci Tapes, "after a prosecution or the appropriate investigation," may
constitute "false information and/or willful misrepresentation." However, the NTC does not claim that
such possible false information or willful misrepresentation constitutes misleading commercial
advertisement. In the United States, false or deceptive commercial speech is categorized as unprotected
expression that may be subject to prior restraint. Recently, this Court upheld the constitutionality of
Section 6 of the Milk Code requiring the submission to a government screening committee of advertising
materials for infant formula milk to prevent false or deceptive claims to the public.37 There is, however,
no claim here by respondents that the Garci Tapes constitute false or misleading commercial
advertisement.

The NTC concedes that the Garci Tapes have not been authenticated as accurate or truthful. The NTC
also concedes that only "after a prosecution or appropriate investigation" can it be established that the
Garci Tapes constitute "false information and/or willful misrepresentation." Clearly, the NTC admits

31 | P a g e
that it does not even know if the Garci Tapes contain false information or willful
misrepresentation.

4. Nature of Prior Restraint in the Present Case

The NTC action restraining the airing of the Garci Tapes is a content-based prior restraint because it is
directed at the message of the Garci Tapes. The NTC’s claim that the Garci Tapes might contain "false
information and/or willful misrepresentation," and thus should not be publicly aired, is an admission that
the restraint is content-based.

5. Nature of Expression in the Present Case

The public airing of the Garci Tapes is a protected expression because it does not fall under any of
the four existing categories of unprotected expression recognized in this jurisdiction. The airing of the
Garci Tapes is essentially a political expression because it exposes that a presidential candidate had
allegedly improper conversations with a COMELEC Commissioner right after the close of voting in the last
presidential elections.

Obviously, the content of the Garci Tapes affects gravely the sanctity of the ballot. Public
discussion on the sanctity of the ballot is indisputably a protected expression that cannot be subject to
prior restraint. Public discussion on the credibility of the electoral process is one of the highest political
expressions of any electorate, and thus deserves the utmost protection. If ever there is a hierarchy of
protected expressions, political expression would occupy the highest rank,38 and among different kinds
of political expression, the subject of fair and honest elections would be at the top. In any event, public
discussion on all political issues should always remain uninhibited, robust and wide open.

The rule, which recognizes no exception, is that there can be no content-based prior
restraint on protected expression. On this ground alone, the NTC press release is
unconstitutional. Of course, if the courts determine that the subject matter of a wiretapping, illegal or
not, endangers the security of the State, the public airing of the tape becomes unprotected expression
that may be subject to prior restraint. However, there is no claim here by respondents that the subject
matter of the Garci Tapes involves national security and publicly airing the tapes would endanger the
security of the State.39

The alleged violation of the Anti-Wiretapping Law is not in itself a ground to impose a prior restraint on
the airing of the Garci Tapes because the Constitution expressly prohibits the enactment of any law, and
that includes anti-wiretapping laws, curtailing freedom of expression.40 The only exceptions to this rule
are the four recognized categories of unprotected expression. However, the content of the Garci Tapes
does not fall under any of these categories of unprotected expression.

The airing of the Garci Tapes does not violate the right to privacy because the content of the Garci
Tapes is a matter of important public concern. The Constitution guarantees the people’s right to
information on matters of public concern.41 The remedy of any person aggrieved by the public airing of
the Garci Tapes is to file a complaint for violation of the Anti-Wiretapping Law after the commission of
the crime. Subsequent punishment, absent a lawful defense, is the remedy available in case of violation
of the Anti-Wiretapping Law.

The present case involves a prior restraint on protected expression. Prior restraint on protected
expression differs significantly from subsequent punishment of protected expression. While there can be
no prior restraint on protected expression, there can be subsequent punishment for protected expression
under libel, tort or other laws. In the present case, the NTC action seeks prior restraint on the airing of
the Garci Tapes, not punishment of personnel of radio and television stations for actual violation of the
Anti-Wiretapping Law.

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6. Only the Courts May Impose Content-Based Prior Restraint

The NTC has no power to impose content-based prior restraint on expression. The charter of the NTC
does not vest NTC with any content-based censorship power over radio and television stations.

In the present case, the airing of the Garci Tapes is a protected expression that can never be subject to
prior restraint. However, even assuming for the sake of argument that the airing of the Garci Tapes
constitutes unprotected expression, only the courts have the power to adjudicate on the factual and
legal issue of whether the airing of the Garci Tapes presents a clear and present danger of bringing
about a substantive evil that the State has a right and duty to prevent, so as to justify the prior restraint.

Any order imposing prior restraint on unprotected expression requires prior adjudication by the
courts on whether the prior restraint is constitutional. This is a necessary consequence from the
presumption of invalidity of any prior restraint on unprotected expression. Unless ruled by the courts as
a valid prior restraint, government agencies cannot implement outright such prior restraint because such
restraint is presumed unconstitutional at inception.

As an agency that allocates frequencies or airwaves, the NTC may regulate the bandwidth position,
transmitter wattage, and location of radio and television stations, but not the content of the broadcasts.
Such content-neutral prior restraint may make operating radio and television stations more costly.
However, such content-neutral restraint does not restrict the content of the broadcast.

7. Government Failed to Overcome Presumption of Invalidity

Assuming that the airing of the Garci Tapes constitutes unprotected expression, the NTC action imposing
prior restraint on the airing is presumed unconstitutional. The Government bears a heavy burden to
prove that the NTC action is constitutional. The Government has failed to meet this burden.

In their Comment, respondents did not invoke any compelling State interest to impose prior restraint on
the public airing of the Garci Tapes. The respondents claim that they merely "fairly warned" radio and
television stations to observe the Anti-Wiretapping Law and pertinent NTC circulars on program
standards. Respondents have not explained how and why the observance by radio and television
stations of the Anti-Wiretapping Law and pertinent NTC circulars constitutes a compelling State interest
justifying prior restraint on the public airing of the Garci Tapes.

Violation of the Anti-Wiretapping Law, like the violation of any criminal statute, can always be subject to
criminal prosecution after the violation is committed. Respondents have not explained why there is a
need in the present case to impose prior restraint just to prevent a possible future violation of the Anti-
Wiretapping Law. Respondents have not explained how the violation of the Anti-Wiretapping Law, or of
the pertinent NTC circulars, can incite imminent lawless behavior or endanger the security of the State.
To allow such restraint is to allow prior restraint on all future broadcasts that may possibly violate any of
the existing criminal statutes. That would be the dawn of sweeping and endless censorship on broadcast
media.

8. The NTC Warning is a Classic Form of Prior Restraint

The NTC press release threatening to suspend or cancel the airwave permits of radio and television
stations constitutes impermissible pressure amounting to prior restraint on protected expression.
Whether the threat is made in an order, regulation, advisory or press release, the chilling effect is the
same: the threat freezes radio and television stations into deafening silence. Radio and television
stations that have invested substantial sums in capital equipment and market development suddenly
face suspension or cancellation of their permits. The NTC threat is thus real and potent.

In Burgos v. Chief of Staff,42 this Court ruled that the closure of the We Forum newspapers under a
general warrant "is in the nature of a previous restraint or censorship abhorrent to the freedom of the
33 | P a g e
press guaranteed under the fundamental law." The NTC warning to radio and television stations not to
air the Garci Tapes or else their permits will be suspended or cancelled has the same effect – a prior
restraint on constitutionally protected expression.

In the recent case of David v. Macapagal-Arroyo,43 this Court declared unconstitutional government
threats to close down mass media establishments that refused to comply with government prescribed
"standards" on news reporting following the declaration of a State of National Emergency by President
Arroyo on 24 February 2006. The Court described these threats in this manner:

Thereafter, a wave of warning[s] came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was "meant to show a 'strong
presence,' to tell media outlets not to connive or do anything that would help the rebels in
bringing down this government." Director General Lomibao further stated that "if they do not
follow the standards — and the standards are if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No. 1017 —
we will recommend a 'takeover.'" National Telecommunications Commissioner Ronald
Solis urged television and radio networks to "cooperate" with the government for the
duration of the state of national emergency. He warned that his agency will not
hesitate to recommend the closure of any broadcast outfit that violates rules set out
for media coverage during times when the national security is threatened.44 (Emphasis
supplied)

The Court struck down this "wave of warning[s]" as impermissible restraint on freedom of expression.
The Court ruled that "the imposition of standards on media or any form of prior restraint on the press,
as well as the warrantless search of the Tribune offices and whimsical seizure of its articles for
publication and other materials, are declared UNCONSTITUTIONAL."45

The history of press freedom has been a constant struggle against the censor whose weapon is the
suspension or cancellation of licenses to publish or broadcast. The NTC warning resurrects the weapon
of the censor. The NTC warning is a classic form of prior restraint on protected expression, which in
the words of Near v. Minnesota is "the essence of censorship."46 Long before the American Declaration
of Independence in 1776, William Blackstone had already written in his Commentaries on the Law of
England, "The liberty of the press x x x consists in laying no previous restraints upon publication x x x."47

Although couched in a press release and not in an administrative regulation, the NTC threat to suspend
or cancel permits remains real and effective, for without airwaves or frequencies, radio and television
stations will fall silent and die. The NTC press release does not seek to advance a legitimate regulatory
objective, but to suppress through coercion information on a matter of vital public concern.

9. Conclusion

In sum, the NTC press release constitutes an unconstitutional prior restraint on protected expression.
There can be no content-based prior restraint on protected expression. This rule has no exception.

I therefore vote to (1) grant the petition, (2) declare the NTC warning, embodied in its press release
dated 11 June 2005, an unconstitutional prior restraint on protected expression, and (3) enjoin the NTC
from enforcing the same.

ANTONIO T. CARPIO
Associate Justice

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 ZALDY NUEZ, Complainant, vs.
ELVIRA CRUZ-APAO, Respondent.
A.M. No. CA-05-18-P; April 12, 2005
Facts:
The complaint arose out of respondent’s solicitation of One Million Pesos (P1,000,000.00) from
Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latter’s pending case in
the Court of Appeals.
Complainant earlier sought the assistance of Imbestigador. The crew of the TV program accompanied
him to PAOCCF-SPG where he lodged a complaint against respondent for extortion. Thereafter, he
communicated with respondent again to verify if the latter was still asking for the money and to set up a
meeting with her. Upon learning that respondent’s offer of a favorable decision in exchange for One
Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated
by Imbestigador in cooperation with the PAOCC.
During the hearing of this case, respondent would like the court to believe that she never had any
intention of committing a crime, that the offer of a million pesos for a favorable decision came from
complainant and that it was complainant and the law enforcers who instigated the whole incident.
When she was asked if she had sent the text messages contained in complainant’s cellphone and which
reflected her cellphone number, respondent admitted those that were not incriminating but claimed she
did not remember those that clearly showed she was transacting with complainant.
Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting
her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged.
Issue:
Whether or not the text messages are admissible as evidence in court?
Held:
Yes. Complainant was able to prove by his testimony in conjunction with the text messages from
respondent duly presented before the Committee that the latter asked for One Million Pesos
(P1,000,000.00) in exchange for a favorable decision of the former’s pending case with the CA. The text
messages were properly admitted by the Committee since the same are now covered by Section 1(k),
Rule 2 of the Rules on Electronic Evidence65 which provides:
“Ephemeral electronic communication” refers to telephone conversations, text messages . . . and other
electronic forms of communication the evidence of which is not recorded or retained.”
Under Section 2, Rule 11 of the Rules on Electronic Evidence, “Ephemeral electronic communications
shall be proven by the testimony of a person who was a party to the same or who has personal
knowledge thereof . . . .” In this case, complainant who was the recipient of said messages and
therefore had personal knowledge thereof testified on their contents and import. Respondent herself
admitted that the cellphone number reflected in complainant’s cellphone from which the messages
originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text
messages had been laid to rest when she and her counsel signed and attested to the veracity of the text
messages between her and complainant. It is also well to remember that in administrative cases,
technical rules of procedure and evidence are not strictly applied.
The Court has no doubt as to the probative value of the text messages as evidence in determining the
guilt or lack thereof of respondent in this case.

MAMBA v. GARCIA 359 SCRA 426

Facts:
On August 23, 1996, a complaint for violation of Presidential Decree No.1866 (illegal possession
of firearms) was filed against a certain Renato Bulatao by the Cagayan Provincial Police Command
beforethe sala of respondent Judge Dominador L. Garcia of the Municipal Trial Court, Tuao,
Cagayan.Respondent set the preliminary investigation, but the same was subsequently postponed and
reset asrespondent was not present, although the complaining officers appeared in court.Later, the
preliminary investigation was again reset. On the day before the new date of preliminaryinvestigation,
the accused, Renato Bulatao, complained to the NBI that at the first scheduled preliminaryinvestigation,
the arresting officer demanded P30,000.00

35 | P a g e
from him in consideration of the withdrawal of the criminal case against him. According to Bulatao, the
demand was reiterated by Salvador andrespondent judge. As Bulatao told them that he could not afford
it, the amount was reduced toP6,000.00.Based on B
ulatao’s report, the NBI set out to entrap Salvador and respondent judge.
Bulatao was given a tape recorder to record his conversation with whoever will receive the money.
Afterhanding the money to the police officers, Bulatao went out of respondent's chambers. Upon his
signal,the NBI operatives waiting outside respondent's court then rushed to the judge's chambers and
arrestedthe two police officers after recovering marked bills in their possession.After the matter was
referred by this Court to the Executive Judge for investigation, the latter scheduledseveral hearings for
the reception of evidence for the respondent. The records show that hearings wereset on different
dates, but respondent did not appear despite due notice. Accordingly, he was deemedto have waived
the right to present evidence and the case was submitted for decision. Hence only hiscounter-affidavit
was considered, in which respondent claimed that it was Bulatao who askedpermission to talk to the
two police officers.
Issue:
Whet
her the investigating judge’s reliance on the taped conversation is proper?

Held:
The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two
police officers is erroneous. The recording of private conversations without the consent of the parties
contravenes the provisions of Rep. Act. No. 4200, otherwise known as the Anti-Wire Tapping Law, and
renders the same inadmissible in evidence in any proceeding. In all other respects, however, the findings
of the Investigating Judge are in accordance with the evidence. We hold, however, that respondent
judge is guilty not just of improper conduct but of serious misconduct. Serious misconduct is such
conduct which affects a public officer's performance of his duties as such officer and not only that
which affects his character as a private individual.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,
vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her
from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner
entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and
private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took
157 documents consisting of private correspondence between Dr. Martin and his alleged paramours,
greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and
papers were seized for use in evidence in a case for legal separation and for disqualification from the
practice of medicine which petitioner had filed against her husband.

36 | P a g e
Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial,
rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner
of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the
Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a
immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or submitting/admitting as evidence" the documents and
papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using them
in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents
and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in
evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or
gross misconduct, For this reason it is contended that the Court of Appeals erred in affirming the
decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other
things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note
of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains
that:

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from
using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the
said order to this Court on a petition for certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit the genuineness
and authenticity of the subject annexes cannot be looked upon as malpractice. Notably,
petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At
that point in time, would it have been malpractice for respondent to use petitioner's admission as
evidence against him in the legal separation case pending in the Regional Trial Court of Makati?
Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under
oath, Such verified admission constitutes an affidavit, and, therefore, receivable in evidence
against him. Petitioner became bound by his admission. For Cecilia to avail herself of her
husband's admission and use the same in her action for legal separation cannot be treated as
malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in
question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the

37 | P a g e
trial court's order was dismissed and, therefore, the prohibition against the further use of the documents
and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable
simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party
against whom the constitutional provision is to be enforced. The only exception to the prohibition in the
Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for any
purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected spouse
while the marriage subsists.6Neither may be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to
share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes
to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,
vs.
INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as
the Anti-Wiretapping Act, on the issue of whether or not an extension telephone is among the prohibited
devices in Section 1 of the Act, such that its use to overhear a private conversation would constitute
unlawful interception of communications between the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by
the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel
Montebon were in the living room of complainant's residence discussing the terms for the
withdrawal of the complaint for direct assault which they filed with the Office of the City
Fiscal of Cebu against Leonardo Laconico. After they had decided on the proposed
conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-
5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office
and advise him on the settlement of the direct assault case because his regular lawyer,
Atty. Leon Gonzaga, went on a business trip. According to the request, appellant went to

38 | P a g e
 the office of Laconico where he was briefed about the problem. (Exhibit 'D', tsn, April 22,
1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the
telephone conversation through a telephone extension so as to hear personally the
proposed conditions for the settlement. Appellant heard complainant enumerate the
following conditions for withdrawal of the complaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to
P8,000.00. A breakdown of the P8,000.00 had been made together with other demands,
to wit: (a) P5,000.00 no longer for the teacher Manuel Montebon, but for Atty. Pintor
himself in persuading his client to withdraw the case for Direct Assault against Atty.
Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco
Technical High School;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco
Technical High School;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against
Manuel Montebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of
desistance on the Direct Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass
media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).

Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to
the conditions. Laconico answered 'Yes'. Complainant then told Laconico to wait for
instructions on where to deliver the money. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the
office of the then Department of Public Highways. Laconico who earlier alerted his friend
Colonel Zulueta of the Criminal Investigation Service of the Philippine Constabulary,
insisted that complainant himself should receive the money. (tsn, March 10, 1982, pp. 26-
33). When he received the money at the Igloo Restaurant, complainant was arrested by
agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant
demand P8,000.00 for the withdrawal of the case for direct assault. Laconico attached the
affidavit of appellant to the complainant for robbery/extortion which he filed against
complainant. Since appellant listened to the telephone conversation without complainant's
consent, complainant charged appellant and Laconico with violation of the Anti-
Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan
and Laconico guilty of violating Section 1 of Republic Act No. 4200. The two were each sentenced to one
(1) year imprisonment with costs. Not satisfied with the decision, the petitioner appealed to the
appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding
that the communication between the complainant and accused Laconico was private in nature and,
therefore, covered by Rep. Act No. 4200; that the petitioner overheard such communication without the
knowledge and consent of the complainant; and that the extension telephone which was used by the

39 | P a g e
petitioner to overhear the telephone conversation between complainant and Laconico is covered in the
term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the
following issues; (a) whether or not the telephone conversation between the complainant and accused
Laconico was private in nature; (b) whether or not an extension telephone is covered by the term
"device or arrangement" under Rep. Act No. 4200; (c) whether or not the petitioner had authority to
listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous
and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to
any private communication or spoken word, to tap any wire or cable or by using any
other device or arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly known as a dictaphone or
dictagraph or detectaphone or walkie-talkie or tape-recorder, or however otherwise
described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized
in the next preceeding sentence, to knowingly possess any tape record, wire record, disc
record, or any other such record, or copies thereof, of any communication or spoken word
secured either before or after the effective date of this Act in the manner prohibited by
this law; or to replay the same for any other person or persons; or to communicate the
contents thereof, either verbally or in writing, or to furnish transcriptions thereof, whether
complete or partial, to any other person: Provided, that the use of such record or any
copies thereof as evidence in any civil, criminal investigation or trial of offenses
mentioned in Section 3 hereof, shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The
issue is not the admissibility of evidence secured over an extension line of a telephone by a third party.
The issue is whether or not the person called over the telephone and his lawyer listening to the
conversation on an extension line should both face prison sentences simply because the extension was
used to enable them to both listen to an alleged attempt at extortion.

There is no question that the telephone conversation between complainant Atty. Pintor and accused
Atty. Laconico was "private" in the sense that the words uttered were made between one person and
another as distinguished from words between a speaker and a public. It is also undisputed that only one
of the parties gave the petitioner the authority to listen to and overhear the caller's message with the
use of an extension telephone line. Obviously, complainant Pintor, a member of the Philippine bar, would
not have discussed the alleged demand for an P8,000.00 consideration in order to have his client
withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knew
that another lawyer was also listening. We have to consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by merely using a telephone line can force the listener to
secrecy no matter how obscene, criminal, or annoying the call may be. It would be the word of the caller
against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra
heavy loads which telephone cables are made to carry in certain areas, telephone users often encounter
what are called "crossed lines". An unwary citizzen who happens to pick up his telephone and who
overhears the details of a crime might hesitate to inform police authorities if he knows that he could be
accused under Rep. Act 4200 of using his own telephone to secretly overhear the private
communications of the would be criminals. Surely the law was never intended for such mischievous
results.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase
"any other device or arrangement." Is an extension of a telephone unit such a device or arrangement as
would subject the user to imprisonment ranging from six months to six years with the accessory penalty
of perpetual absolute disqualification for a public officer or deportation for an alien? Private secretaries

40 | P a g e
with extension lines to their bosses' telephones are sometimes asked to use answering or recording
devices to record business conversations between a boss and another businessman. Would transcribing
a recorded message for the use of the boss be a proscribed offense? or for that matter, would a "party
line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of
"commonly known" listening or recording devices, nor do they belong to the same class of enumerated
electronic devices contemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep.
Act No. 4200) was being considered in the Senate, telephones and extension telephones were already
widely used instruments, probably the most popularly known communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of
the Senate. Yet, when the bill was finalized into a statute, no mention was made of telephones in the
enumeration of devices "commonly known as a dictaphone or dictagraph, detectaphone or walkie talkie
or tape recorder or however otherwise described." The omission was not a mere oversight. Telephone
party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device"
within the context of the aforementioned law because it is not a part or portion of a complete set of a
telephone apparatus. It is a separate device and distinct set of a movable apparatus consisting of a wire
and a set of telephone receiver not forming part of a main telephone set which can be detached or
removed and can be transferred away from one place to another and to be plugged or attached to a
main telephone line to get the desired communication corning from the other party or end.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of
secretly overhearing, intercepting, or recording the communication. There must be either a physical
interruption through a wiretap or the deliberate installation of a device or arrangement in order to
overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other
devices enumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping"
the wire or cable of a telephone line. The telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office use. It is a rule in statutory construction that in
order to determine the true intent of the legislature, the particular clauses and phrases of the statute
should not be taken as detached and isolated expressions, but the whole and every part thereof must be
considered in fixing the meaning of any of its parts. (see Commissioner of Customs v. Esso Estandard
Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:

Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a
contract may be, they shall not be understood to comprehend things that are distinct and
cases that are different from those upon which the parties intended to agree.' Similarly,
Article 1374 of the same Code provides that 'the various stipulations of a contract shall be
interpreted together, attributing to the doubtful ones that sense which may result from all
of them taken jointly.

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph
5(c) and 7(d) should be then restricted only to those listed in the Inventory and should
not be construed as to comprehend all other obligations of the decedent. The rule that
'particularization followed by a general expression will ordinarily be restricted to the
former' is based on the fact in human experience that usually the minds of parties are
addressed specially to the particularization, and that the generalities, though broad
enough to comprehend other fields if they stood alone, are used in contemplation of that
upon which the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc.,
Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco, Revised Rules of Court
(Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that
enumerated therein, should be construed to comprehend instruments of the same or similar nature, that
is, instruments the use of which would be tantamount to tapping the main line of a telephone. It refers

41 | P a g e
to instruments whose installation or presence cannot be presumed by the party or parties being
overheard because, by their very nature, they are not of common usage and their purpose is precisely
for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit
does not have to be connected by wire to the main telephone but can be moved from place ' to place
within a radius of a kilometer or more. A person should safely presume that the party he is calling at the
other end of the line probably has an extension telephone and he runs the risk of a third party listening
as in the case of a party line or a telephone unit which shares its line with another. As was held in the
case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the
bell to ring in more than one ordinarily used instrument. Each party to a telephone
conversation takes the risk that the other party may have an extension telephone and
may allow another to overhear the conversation. When such takes place there has been
no violation of any privacy of which the parties may complain. Consequently, one element
of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead
of repeating the message he held out his hand-set so that another could hear out of it and that there is
no distinction between that sort of action and permitting an outsider to use an extension telephone for
the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused.
Thus, in case of doubt as in the case at bar, on whether or not an extension telephone is included in the
phrase "device or arrangement", the penal statute must be construed as not including an extension
telephone. In the case of People v. Purisima, 86 SCRA 542, 562, we explained the rationale behind the
rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law
of the rights of individuals; the object is to establish a certain rule by conformity to which
mankind would be safe, and the discretion of the court limited. (United States v. Harris,
177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill
v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all
cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of forbidden acts."
(State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction,
Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative
measure, the primary rule is to search for and determine the intent and spirit of the law. A perusal of the
Senate Congressional Records will show that not only did our lawmakers not contemplate the inclusion
of an extension telephone as a prohibited device or arrangement" but of greater importance, they were
more concerned with penalizing the act of recording than the act of merely listening to a telephone
conversation.

Senator Tañada. Another possible objection to that is entrapment which is certainly objectionable. It is
made possible by special amendment which Your Honor may introduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the amendment
than without it, because with the amendment the evidence of entrapment would only consist of
government testimony as against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would have the right to tape record
their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record and, therefore, the
court would be limited to saying: "Okay, who is more credible, the police officers or the defendant?" In
these cases, as experienced lawyers, we know that the Court go with the peace offices.

42 | P a g e
(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

Senator Diokno. The point I have in mind is that under these conditions, with an agent outside listening
in, he could falsify the testimony and there is no way of checking it. But if you allow him to record or
make a recording in any form of what is happening, then the chances of falsifying the evidence is not
very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of false testimony. If
we could devise a way by which we could prevent the presentation of false testimony, it would be
wonderful. But what this bill intends to prohibit is the use of tape record and other electronic devices to
intercept private conversations which later on will be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as
government authorities or representatives of organized groups from installing devices in order to gather
evidence for use in court or to intimidate, blackmail or gain some unwarranted advantage over the
telephone users. Consequently, the mere act of listening, in order to be punishable must strictly be with
the use of the enumerated devices in RA No. 4200 or others of similar nature. We are of the view that
an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated
August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of
violation of Rep. Act No. 4200, otherwise known as the Anti-Wiretapping Act.

SO ORDERED.

G.R. No. 146710-15 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
ANIANO DESIERTO, in his capacity as Ombudsman, RAMON GONZALES, VOLUNTEERS
AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION, INC.,
LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., respondent.

----------------------------------------

G.R. No. 146738 March 2, 2001

JOSEPH E. ESTRADA, petitioner,

vs.
GLORIA MACAPAGAL-ARROYO, respondent.

PUNO, J.:

On the line in the cases at bar is the office of the President. Petitioner Joseph Ejercito Estrada alleges
that he is the President on leave while respondent Gloria Macapagal-Arroyo claims she is the President.
The warring personalities are important enough but more transcendental are the constitutional issues
embedded on the parties' dispute. While the significant issues are many, the jugular issue involves the
relationship between the ruler and the ruled in a democracy, Philippine style.

First, we take a view of the panorama of events that precipitated the crisis in the office of the President.

In the May 11, 1998 elections, petitioner Joseph Ejercito Estrada was elected President while respondent
Gloria Macapagal-Arroyo was elected Vice-President. Some ten (10) million Filipinos voted for the
petitioner believing he would rescue them from life's adversity. Both petitioner and the respondent were
to serve a six-year term commencing on June 30, 1998.

From the beginning of his term, however, petitioner was plagued by a plethora of problems that slowly
but surely eroded his popularity. His sharp descent from power started on October 4, 2000. Ilocos Sur
43 | P a g e
Governor, Luis "Chavit" Singson, a longtime friend of the petitioner, went on air and accused the
petitioner, his family and friends of receiving millions of pesos from jueteng lords.1

The exposẻ immediately ignited reactions of rage. The next day, October 5, 2000, Senator Teofisto
Guingona, Jr., then the Senate Minority Leader, took the floor and delivered a fiery privilege speech
entitled "I Accuse." He accused the petitioner of receiving some P220 million in jueteng money from
Governor Singson from November 1998 to August 2000. He also charged that the petitioner took from
Governor Singson P70 million on excise tax on cigarettes intended for Ilocos Sur. The privilege speech
was referred by then Senate President Franklin Drilon, to the Blue Ribbon Committee (then headed by
Senator Aquilino Pimentel) and the Committee on Justice (then headed by Senator Renato Cayetano) for
joint investigation.2

The House of Representatives did no less. The House Committee on Public Order and Security, then
headed by Representative Roilo Golez, decided to investigate the exposẻ of Governor Singson. On the
other hand, Representatives Heherson Alvarez, Ernesto Herrera and Michael Defensor spearheaded the
move to impeach the petitioner.

Calls for the resignation of the petitioner filled the air. On October 11, Archbishop Jaime Cardinal Sin
issued a pastoral statement in behalf of the Presbyteral Council of the Archdiocese of Manila, asking
petitioner to step down from the presidency as he had lost the moral authority to govern.3 Two days
later or on October 13, the Catholic Bishops Conference of the Philippines joined the cry for the
resignation of the petitioner.4 Four days later, or on October 17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme self-sacrifice" of resignation.5 Former President Fidel
Ramos also joined the chorus. Early on, or on October 12, respondent Arroyo resigned as Secretary of
the Department of Social Welfare and Services6 and later asked for petitioner's resignation.7 However,
petitioner strenuously held on to his office and refused to resign.

The heat was on. On November 1, four (4) senior economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto Zobel de Ayala, former Prime Minister Cesar
Virata, former Senator Vicente Paterno and Washington Sycip.8 On November 2, Secretary Mar Roxas II
also resigned from the Department of Trade and Industry.9 On November 3, Senate President Franklin
Drilon, and House Speaker Manuel Villar, together with some 47 representatives defected from the ruling
coalition, Lapian ng Masang Pilipino.10

The month of November ended with a big bang. In a tumultuous session on November 13, House
Speaker Villar transmitted the Articles of Impeachment11 signed by 115 representatives, or more than
1/3 of all the members of the House of Representatives to the Senate. This caused political convulsions
in both houses of Congress. Senator Drilon was replaced by Senator Pimentel as Senate President.
Speaker Villar was unseated by Representative Fuentebella.12 On November 20, the Senate formally
opened the impeachment trial of the petitioner. Twenty-one (21) senators took their oath as judges with
Supreme Court Chief Justice Hilario G. Davide, Jr., presiding.13

The political temperature rose despite the cold December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the marquee names in the legal profession. Standing
as prosecutors were then House Minority Floor Leader Feliciano Belmonte and Representatives Joker
Arroyo, Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar Moreno, Salacnib Baterina, Roan
Libarios, Oscar Rodriguez, Clavel Martinez and Antonio Nachura. They were assisted by a battery of
private prosecutors led by now Secretary of Justice Hernando Perez and now Solicitor General Simeon
Marcelo. Serving as defense counsel were former Chief Justice Andres Narvasa, former Solicitor General
and Secretary of Justice Estelito P. Mendoza, former City Fiscal of Manila Jose Flaminiano, former Deputy
Speaker of the House Raul Daza, Atty. Siegfried Fortun and his brother, Atty. Raymund Fortun. The day
to day trial was covered by live TV and during its course enjoyed the highest viewing rating. Its high and
low points were the constant conversational piece of the chattering classes. The dramatic point of the
December hearings was the testimony of Clarissa Ocampo, senior vice president of Equitable-PCI Bank.
She testified that she was one foot away from petitioner Estrada when he affixed the signature "Jose
Velarde" on documents involving a P500 million investment agreement with their bank on February 4,
2000.15

After the testimony of Ocampo, the impeachment trial was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of Finance took the witness stand. He alleged that

44 | P a g e
the petitioner jointly owned BW Resources Corporation with Mr. Dante Tan who was facing charges of
insider trading.16 Then came the fateful day of January 16, when by a vote of 11-1017 the senator-judges
ruled against the opening of the second envelope which allegedly contained evidence showing that
petitioner held P3.3 billion in a secret bank account under the name "Jose Velarde." The public and
private prosecutors walked out in protest of the ruling. In disgust, Senator Pimentel resigned as Senate
President.18 The ruling made at 10:00 p.m. was met by a spontaneous outburst of anger that hit the
streets of the metropolis. By midnight, thousands had assembled at the EDSA Shrine and speeches full
of sulphur were delivered against the petitioner and the eleven (11) senators.

On January 17, the public prosecutors submitted a letter to Speaker Fuentebella tendering their
collective resignation. They also filed their Manifestation of Withdrawal of Appearance with the
impeachment tribunal.19Senator Raul Roco quickly moved for the indefinite postponement of the
impeachment proceedings until the House of Representatives shall have resolved the issue of resignation
of the public prosecutors. Chief Justice Davide granted the motion.20

January 18 saw the high velocity intensification of the call for petitioner's resignation. A 10-kilometer line
of people holding lighted candles formed a human chain from the Ninoy Aquino Monument on Ayala
Avenue in Makati City to the EDSA Shrine to symbolize the people's solidarity in demanding petitioner's
resignation. Students and teachers walked out of their classes in Metro Manila to show their
concordance. Speakers in the continuing rallies at the EDSA Shrine, all masters of the physics of
persuasion, attracted more and more people.21

On January 19, the fall from power of the petitioner appeared inevitable. At 1:20 p.m., the petitioner
informed Executive Secretary Edgardo Angara that General Angelo Reyes, Chief of Staff of the Armed
Forces of the Philippines, had defected. At 2:30 p.m., petitioner agreed to the holding of a snap election
for President where he would not be a candidate. It did not diffuse the growing crisis. At 3:00 p.m.,
Secretary of National Defense Orlando Mercado and General Reyes, together with the chiefs of all the
armed services went to the EDSA Shrine.22 In the presence of former Presidents Aquino and Ramos and
hundreds of thousands of cheering demonstrators, General Reyes declared that "on behalf of Your
Armed Forces, the 130,000 strong members of the Armed Forces, we wish to announce that we are
withdrawing our support to this government."23 A little later, PNP Chief, Director General Panfilo Lacson
and the major service commanders gave a similar stunning announcement.24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau chiefs quickly resigned from their posts.25 Rallies for
the resignation of the petitioner exploded in various parts of the country. To stem the tide of rage,
petitioner announced he was ordering his lawyers to agree to the opening of the highly controversial
second envelope.26There was no turning back the tide. The tide had become a tsunami.

January 20 turned to be the day of surrender. At 12:20 a.m., the first round of negotiations for the
peaceful and orderly transfer of power started at Malacañang'' Mabini Hall, Office of the Executive
Secretary. Secretary Edgardo Angara, Senior Deputy Executive Secretary Ramon Bagatsing, Political
Adviser Angelito Banayo, Asst. Secretary Boying Remulla, and Atty. Macel Fernandez, head of the
Presidential Management Staff, negotiated for the petitioner. Respondent Arroyo was represented by
now Executive Secretary Renato de Villa, now Secretary of Finance Alberto Romulo and now Secretary of
Justice Hernando Perez.27 Outside the palace, there was a brief encounter at Mendiola between pro and
anti-Estrada protesters which resulted in stone-throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief Justice Davide would administer the oath to
respondent Arroyo at high noon at the EDSA Shrine.

At about 12:00 noon, Chief Justice Davide administered the oath to respondent Arroyo as President of
the Philippines.28 At 2:30 p.m., petitioner and his family hurriedly left Malacañang Palace.29 He issued
the following press statement:30

"20 January 2001

STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA

At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took her oath as President
of the Republic of the Philippines. While along with many other legal minds of our country, I have
strong and serious doubts about the legality and constitutionality of her proclamation as
President, I do not wish to be a factor that will prevent the restoration of unity and order in our
civil society.
45 | P a g e
 It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the same service of our
country.

I call on all my supporters and followers to join me in to promotion of a constructive national

spirit of reconciliation and solidarity.

May the Almighty bless our country and beloved people.

MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001, he signed the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice-President shall be the Acting President.
(Sgd.) JOSEPH EJERCITO ESTRADA"

A copy of the letter was sent to former Speaker Fuentebella at 8:30 a.m. on January 20.23 Another copy
was transmitted to Senate President Pimentel on the same day although it was received only at 9:00
p.m.33

On January 22, the Monday after taking her oath, respondent Arroyo immediately discharged the powers
the duties of the Presidency. On the same day, this Court issued the following Resolution in
Administrative Matter No. 01-1-05-SC, to wit:

"A.M. No. 01-1-05-SC — In re: Request of Vice President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of the Philippines before the Chief Justice — Acting on
the urgent request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the
Republic of the Philippines, addressed to the Chief Justice and confirmed by a letter to the Court,
dated January 20, 2001, which request was treated as an administrative matter, the court
Resolve unanimously to confirm the authority given by the twelve (12) members of the Court
then present to the Chief Justice on January 20, 2001 to administer the oath of office of Vice
President Gloria Macapagal-Arroyo as President of the Philippines, at noon of January 20,
2001.1âwphi1.nêt

This resolution is without prejudice to the disposition of any justiciable case that may be filed by
a proper party."

Respondent Arroyo appointed members of her Cabinet as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at Malacañang, led by the Dean of the Diplomatic Corps,
Papal Nuncio Antonio Franco, more than a hundred foreign diplomats recognized the government of
respondent Arroyo.35 US President George W. Bush gave the respondent a telephone call from the White
House conveying US recognition of her government.36

On January 24, Representative Feliciano Belmonte was elected new Speaker of the House of
Representatives.37The House then passed Resolution No. 175 "expressing the full support of the House
of Representatives to the administration of Her Excellency, Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176 "expressing the support of the House of
Representatives to the assumption into office by Vice President Gloria Macapagal-Arroyo as President of
the Republic of the Philippines, extending its congratulations and expressing its support for her
administration as a partner in the attainment of the nation's goals under the Constitution."39

On January 26, the respondent signed into law the Solid Waste Management Act.40 A few days later, she
also signed into law the Political Advertising ban and Fair Election Practices Act.41

On February 6, respondent Arroyo nominated Senator Teofisto Guingona, Jr., as her Vice
President.42 The next day, February 7, the Senate adopted Resolution No. 82 confirming the nomination
46 | P a g e
of Senator Guingona, Jr.43Senators Miriam Defensor-Santiago, Juan Ponce Enrile, and John Osmena
voted "yes" with reservations, citing as reason therefor the pending challenge on the legitimacy of
respondent Arroyo's presidency before the Supreme Court. Senators Teresa Aquino-Oreta and Robert
Barbers were absent.44 The House of Representatives also approved Senator Guingona's nomination in
Resolution No. 178.45 Senator Guingona, Jr. took his oath as Vice President two (2) days later.46

On February 7, the Senate passed Resolution No. 83 declaring that the impeachment court is functus
officio and has been terminated.47 Senator Miriam Defensor-Santiago stated "for the record" that she
voted against the closure of the impeachment court on the grounds that the Senate had failed to decide
on the impeachment case and that the resolution left open the question of whether Estrada was still
qualified to run for another elective post.48

Meanwhile, in a survey conducted by Pulse Asia, President Arroyo's public acceptance rating jacked up
from 16% on January 20, 2001 to 38% on January 26, 2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that 61% of the Filipinos nationwide accepted
President Arroyo as replacement of petitioner Estrada. The survey also revealed that President Arroyo is
accepted by 60% in Metro Manila, by also 60% in the balance of Luzon, by 71% in the Visayas, and
55% in Mindanao. Her trust rating increased to 52%. Her presidency is accepted by majorities in all
social classes: 58% in the ABC or middle-to-upper classes, 64% in the D or mass class, and 54% among
the E's or very poor class.50

After his fall from the pedestal of power, the petitioner's legal problems appeared in clusters. Several
cases previously filed against him in the Office of the Ombudsman were set in motion. These are: (1)
OMB Case No. 0-00-1629, filed by Ramon A. Gonzales on October 23, 2000 for bribery and graft and
corruption; (2) OMB Case No. 0-00-1754 filed by the Volunteers Against Crime and Corruption on
November 17, 2000 for plunder, forfeiture, graft and corruption, bribery, perjury, serious misconduct,
violation of the Code of Conduct for Government Employees, etc; (3) OMB Case No. 0-00-1755 filed by
the Graft Free Philippines Foundation, Inc. on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB Case No. 0-00-1756 filed by Romeo Capulong,
et al., on November 28, 2000 for malversation of public funds, illegal use of public funds and property,
plunder, etc.; (5) OMB Case No. 0-00-1757 filed by Leonard de Vera, et al., on November 28, 2000 for
bribery, plunder, indirect bribery, violation of PD 1602, PD 1829, PD 46, and RA 7080; and (6) OMB Case
No. 0-00-1758 filed by Ernesto B. Francisco, Jr. on December 4, 2000 for plunder, graft and corruption.

A special panel of investigators was forthwith created by the respondent Ombudsman to investigate the
charges against the petitioner. It is chaired by Overall Deputy Ombudsman Margarito P. Gervasio with
the following as members, viz: Director Andrew Amuyutan, Prosecutor Pelayo Apostol, Atty. Jose de
Jesus and Atty. Emmanuel Laureso. On January 22, the panel issued an Order directing the petitioner to
file his counter-affidavit and the affidavits of his witnesses as well as other supporting documents in
answer to the aforementioned complaints against him.

Thus, the stage for the cases at bar was set. On February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a writ of preliminary injunction. It sought to enjoin
the respondent Ombudsman from "conducting any further proceedings in Case Nos. OMB 0-00-1629,
1754, 1755, 1756, 1757 and 1758 or in any other criminal complaint that may be filed in his office, until
after the term of petitioner as President is over and only if legally warranted." Thru another counsel,
petitioner, on February 6, filed GR No. 146738 for Quo Warranto. He prayed for judgment "confirming
petitioner to be the lawful and incumbent President of the Republic of the Philippines temporarily unable
to discharge the duties of his office, and declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting capacity pursuant to the provisions of the
Constitution." Acting on GR Nos. 146710-15, the Court, on the same day, February 6, required the
respondents "to comment thereon within a non-extendible period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation of GR Nos. 146710-15 and GR No. 146738 and the
filing of the respondents' comments "on or before 8:00 a.m. of February 15."

On February 15, the consolidated cases were orally argued in a four-hour hearing. Before the hearing,
Chief Justice Davide, Jr.51 and Associate Justice Artemio Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag. They debunked the charge of counsel Saguisag
that they have "compromised themselves by indicating that they have thrown their weight on one side"
but nonetheless inhibited themselves. Thereafter, the parties were given the short period of five (5) days
to file their memoranda and two (2) days to submit their simultaneous replies.

47 | P a g e
In a resolution dated February 20, acting on the urgent motion for copies of resolution and press
statement for "Gag Order" on respondent Ombudsman filed by counsel for petitioner in G.R. No. 146738,
the Court resolved:

"(1) to inform the parties that the Court did not issue a resolution on January 20, 2001 declaring
the office of the President vacant and that neither did the Chief Justice issue a press statement
justifying the alleged resolution;

(2) to order the parties and especially their counsel who are officers of the Court under pain of
being cited for contempt to refrain from making any comment or discussing in public the merits
of the cases at bar while they are still pending decision by the Court, and

(3) to issue a 30-day status quo order effective immediately enjoining the respondent
Ombudsman from resolving or deciding the criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and subject of the cases at bar, it appearing from news
reports that the respondent Ombudsman may immediately resolve the cases against petitioner
Joseph E. Estrada seven (7) days after the hearing held on February 15, 2001, which action will
make the cases at bar moot and academic."53

The parties filed their replies on February 24. On this date, the cases at bar were deemed submitted for
decision.

The bedrock issues for resolution of this Court are:

I
Whether the petitions present a justiciable controversy.
II
Assuming that the petitions present a justiciable controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is an Acting President.
III
Whether conviction in the impeachment proceedings is a condition precedent for the criminal
prosecution of petitioner Estrada. In the negative and on the assumption that petitioner is still
President, whether he is immune from criminal prosecution.
IV
Whether the prosecution of petitioner Estrada should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.

Whether or not the cases

At bar involve a political question

Private respondents54 raise the threshold issue that the cases at bar pose a political question, and hence,
are beyond the jurisdiction of this Court to decide. They contend that shorn of its embroideries, the
cases at bar assail the "legitimacy of the Arroyo administration." They stress that respondent Arroyo
ascended the presidency through people power; that she has already taken her oath as the
14th President of the Republic; that she has exercised the powers of the presidency and that she has
been recognized by foreign governments. They submit that these realities on ground constitute the
political thicket, which the Court cannot enter.

We reject private respondents' submission. To be sure, courts here and abroad, have tried to lift the
shroud on political question but its exact latitude still splits the best of legal minds. Developed by the
courts in the 20th century, the political question doctrine which rests on the principle of separation of
powers and on prudential considerations, continue to be refined in the mills of constitutional law.55 In
the United States, the most authoritative guidelines to determine whether a question is political were
spelled out by Mr. Justice Brennan in the 1962 case or Baker v. Carr,56 viz:

48 | P a g e
 "x x x Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political
department or a lack of judicially discoverable and manageable standards for resolving it, or the
impossibility of deciding without an initial policy determination of a kind clearly for non-judicial
discretion; or the impossibility of a court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or an unusual need for
unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on question. Unless
one of these formulations is inextricable from the case at bar, there should be no dismissal for
non justiciability on the ground of a political question's presence. The doctrine of which we treat
is one of 'political questions', not of 'political cases'."

In the Philippine setting, this Court has been continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political question.57 Our leading case is Tanada v.
Cuenco,58 where this Court, through former Chief Justice Roberto Concepcion, held that political
questions refer "to those questions which, under the Constitution, are to be decided by the people in
their sovereign capacity, or in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government. It is concerned with issues dependent upon
the wisdom, not legality of a particular measure." To a great degree, the 1987 Constitution has
narrowed the reach of the political question doctrine when it expanded the power of judicial review of
this court not only to settle actual controversies involving rights which are legally demandable and
enforceable but also to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of
government.59 Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction.60With the new provision, however, courts are given a
greater prerogative to determine what it can do to prevent grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any branch or instrumentality of government. Clearly, the new
provision did not just grant the Court power of doing nothing. In sync and symmetry with this
intent are other provisions of the 1987 Constitution trimming the so called political thicket. Prominent of
these provisions is section 18 of Article VII which empowers this Court in limpid language to "x x x
review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the
proclamation of martial law or the suspension of the privilege of the writ (of habeas corpus) or the
extension thereof x x x."

Respondents rely on the case of Lawyers League for a Better Philippines and/or Oliver A.
Lozano v. President Corazon C. Aquino, et al.61 and related cases62 to support their thesis that since
the cases at bar involve the legitimacy of the government of respondent Arroyo, ergo, they
present a political question. A more cerebral reading of the cited cases will show that they are
inapplicable. In the cited cases, we held that the government of former President Aquino was the
result of a successful revolution by the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino government was installed through a direct
exercise of the power of the Filipino people "in defiance of the provisions of the 1973
Constitution, as amended." In is familiar learning that the legitimacy of a government sired by a
successful revolution by people power is beyond judicial scrutiny for that government automatically
orbits out of the constitutional loop. In checkered contrast, the government of respondent Arroyo is
not revolutionary in character. The oath that she took at the EDSA Shrine is the oath under the
1987 Constitution.64 In her oath, she categorically swore to preserve and defend the 1987
Constitution. Indeed, she has stressed that she is discharging the powers of the presidency under the
authority of the 1987 Constitution.

In fine, the legal distinction between EDSA People Power I EDSA People Power II is clear. EDSA
I involves the exercise of the people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of freedom of speech and freedom of
assembly to petition the government for redress of grievances which only affected the office
of the President. EDSA I is extra constitutional and the legitimacy of the new government that
resulted from it cannot be the subject of judicial review, but EDSA II is intra constitutional and the
resignation of the sitting President that it caused and the succession of the Vice President as President
are subject to judicial review. EDSA I presented a political question; EDSA II involves legal
questions. A brief discourse on freedom of speech and of the freedom of assembly to petition the
government for redress of grievance which are the cutting edge of EDSA People Power II is not
inappropriate.

49 | P a g e
Freedom of speech and the right of assembly are treasured by Filipinos. Denial of these rights was one
of the reasons of our 1898 revolution against Spain. Our national hero, Jose P. Rizal, raised the clarion
call for the recognition of freedom of the press of the Filipinos and included it as among "the
reforms sine quibus non."65 The Malolos Constitution, which is the work of the revolutionary Congress
in 1898, provided in its Bill of Rights that Filipinos shall not be deprived (1) of the right to freely express
his ideas or opinions, orally or in writing, through the use of the press or other similar means; (2) of the
right of association for purposes of human life and which are not contrary to public means; and (3) of
the right to send petitions to the authorities, individually or collectively." These fundamental rights
were preserved when the United States acquired jurisdiction over the Philippines. In the
Instruction to the Second Philippine Commission of April 7, 1900 issued by President McKinley, it is
specifically provided "that no law shall be passed abridging the freedom of speech or of the press or of
the rights of the people to peaceably assemble and petition the Government for redress of grievances."
The guaranty was carried over in the Philippine Bill, the Act of Congress of July 1, 1902 and the Jones
Law, the Act of Congress of August 29, 1966.66

Thence on, the guaranty was set in stone in our 1935 Constitution,67 and the 197368 Constitution.
These rights are now safely ensconced in section 4, Article III of the 1987 Constitution, viz:

"Sec. 4. No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress of
grievances."

The indispensability of the people's freedom of speech and of assembly to democracy is now self-
evident. The reasons are well put by Emerson: first, freedom of expression is essential as a means of
assuring individual fulfillment; second, it is an essential process for advancing knowledge and
discovering truth; third, it is essential to provide for participation in decision-making by all members of
society; and fourth, it is a method of achieving a more adaptable and hence, a more stable community
of maintaining the precarious balance between healthy cleavage and necessary consensus."69 In this
sense, freedom of speech and of assembly provides a framework in which the "conflict
necessary to the progress of a society can take place without destroying the
society."70In Hague v. Committee for Industrial Organization,71 this function of free speech and
assembly was echoed in the amicus curiae filed by the Bill of Rights Committee of the American Bar
Association which emphasized that "the basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than force; and this means talk for all and by
all."72 In the relatively recent case of Subayco v. Sandiganbayan,73 this Court similar stressed that "…
it should be clear even to those with intellectual deficits that when the sovereign people assemble to
petition for redress of grievances, all should listen. For in a democracy, it is the people who count;
those who are deaf to their grievances are ciphers."

Needless to state, the cases at bar pose legal and not political questions. The principal issues for
resolution require the proper interpretation of certain provisions in the 1987 Constitution, notably section
1 of Article II,74 and section 875 of Article VII, and the allocation of governmental powers under section
1176 of Article VII. The issues likewise call for a ruling on the scope of presidential immunity from suit.
They also involve the correct calibration of the right of petitioner against prejudicial publicity. As early as
the 1803 case of Marbury v. Madison,77 the doctrine has been laid down that "it is emphatically the
province and duty of the judicial department to say what the law is . . ." Thus, respondent's in
vocation of the doctrine of political question is but a foray in the dark.

II

Whether or not the petitioner

Resigned as President

We now slide to the second issue. None of the parties considered this issue as posing a political
question. Indeed, it involves a legal question whose factual ingredient is determinable from the records
of the case and by resort to judicial notice. Petitioner denies he resigned as President or that he suffers
from a permanent disability. Hence, he submits that the office of the President was not vacant when
respondent Arroyo took her oath as President.

The issue brings under the microscope the meaning of section 8, Article VII of the Constitution which
provides:

50 | P a g e
 "Sec. 8. In case of death, permanent disability, removal from office or resignation of the
President, the Vice President shall become the President to serve the unexpired term. In case of
death, permanent disability, removal from office, or resignation of both the President and Vice
President, the President of the Senate or, in case of his inability, the Speaker of the House of
Representatives, shall then act as President until the President or Vice President shall have been
elected and qualified.

x x x."

The issue then is whether the petitioner resigned as President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the 14th President of the Public. Resignation is not a
high level legal abstraction. It is a factual question and its elements are beyond quibble: there must
be an intent to resign and the intent must be coupled by acts of relinquishment.78 The validity
of a resignation is not government by any formal requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As long as the resignation is clear, it must be given legal
effect.

In the cases at bar, the facts show that petitioner did not write any formal letter of resignation before he
evacuated Malacañang Palace in the afternoon of January 20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner resigned has to be determined from his act and
omissions before, during and after January 20, 2001 or by the totality of prior, contemporaneous
and posterior facts and circumstantial evidence bearing a material relevance on the issue.

Using this totality test, we hold that petitioner resigned as President.

To appreciate the public pressure that led to the resignation of the petitioner, it is important to follow
the succession of events after the exposẻ of Governor Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of Impeachment filed in the House of
Representatives which initially was given a near cipher chance of succeeding snowballed. In express
speed, it gained the signatures of 115 representatives or more than 1/3 of the House of Representatives.
Soon, petitioner's powerful political allies began deserting him. Respondent Arroyo quit as Secretary of
Social Welfare. Senate President Drilon and former Speaker Villar defected with 47 representatives in
tow. Then, his respected senior economic advisers resigned together with his Secretary of Trade and
Industry.

As the political isolation of the petitioner worsened, the people's call for his resignation intensified. The
call reached a new crescendo when the eleven (11) members of the impeachment tribunal refused to
open the second envelope. It sent the people to paroxysms of outrage. Before the night of January 16
was over, the EDSA Shrine was swarming with people crying for redress of their grievance. Their number
grew exponentially. Rallies and demonstration quickly spread to the countryside like a brush fire.

As events approached January 20, we can have an authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily Inquirer.79 The Angara Diary reveals that in the
morning of January 19, petitioner's loyal advisers were worried about the swelling of the crowd at EDSA,
hence, they decided to create an ad hoc committee to handle it. Their worry would worsen. At 1:20
p.m., petitioner pulled Secretary Angara into his small office at the presidential residence and exclaimed:
"Ed, seryoso na ito. Kumalas na si Angelo (Reyes) (Ed, this is serious. Angelo has defected.)"80 An hour
later or at 2:30 p.m., the petitioner decided to call for a snap presidential election and stressed he
would not be a candidate. The proposal for a snap election for president in May where he
would not be a candidate is an indicium that petitioner had intended to give up the
presidency even at that time. At 3:00 p.m., General Reyes joined the sea of EDSA demonstrators
demanding the resignation of the petitioner and dramatically announced the AFP's withdrawal of support
from the petitioner and their pledge of support to respondent Arroyo. The seismic shift of support left
petitioner weak as a president. According to Secretary Angara, he asked Senator Pimentel to advise
petitioner to consider the option of "dignified exit or resignation."81 Petitioner did not disagree
but listened intently.82 The sky was falling fast on the petitioner. At 9:30 p.m., Senator Pimentel
repeated to the petitioner the urgency of making a graceful and dignified exit. He gave the proposal a
sweetener by saying that petitioner would be allowed to go abroad with enough funds to support him
and his family.83 Significantly, the petitioner expressed no objection to the suggestion for a

51 | P a g e
graceful and dignified exit but said he would never leave the country.84 At 10:00 p.m.,
petitioner revealed to Secretary Angara, "Ed, Angie (Reyes) guaranteed that I would have five days to a
week in the palace."85 This is proof that petitioner had reconciled himself to the reality that he
had to resign. His mind was already concerned with the five-day grace period he could stay
in the palace. It was a matter of time.

The pressure continued piling up. By 11:00 p.m., former President Ramos called up Secretary Angara
and requested, "Ed, magtulungan tayo para magkaroon tayo ng (let's cooperate to ensure a) peaceful
and orderly transfer of power."86 There was no defiance to the request. Secretary Angara readily
agreed. Again, we note that at this stage, the problem was already about a peaceful and orderly
transfer of power. The resignation of the petitioner was implied.

The first negotiation for a peaceful and orderly transfer of power immediately started at 12:20 a.m. of
January 20, that fateful Saturday. The negotiation was limited to three (3) points: (1) the transition
period of five days after the petitioner's resignation; (2) the guarantee of the safety of the petitioner and
his family, and (3) the agreement to open the second envelope to vindicate the name of the
petitioner.87 Again, we note that the resignation of petitioner was not a disputed point. The
petitioner cannot feign ignorance of this fact. According to Secretary Angara, at 2:30 a.m., he
briefed the petitioner on the three points and the following entry in the Angara Diary shows the
reaction of the petitioner, viz:

"x x x

I explain what happened during the first round of negotiations. The President immediately
stresses that he just wants the five-day period promised by Reyes, as well as to open the
second envelope to clear his name.

If the envelope is opened, on Monday, he says, he will leave by Monday.

The President says. "Pagod na pagod na ako. Ayoko na masyado nang masakit. Pagod
na ako sa red tape, bureaucracy, intriga. (I am very tired. I don't want any more of
this – it's too painful. I'm tired of the red tape, the bureaucracy, the intrigue.)

I just want to clear my name, then I will go."88

Again, this is high grade evidence that the petitioner has resigned. The intent to resign is clear
when he said "x x x Ayoko na masyado nang masakit." "Ayoko na" are words of resignation.

The second round of negotiation resumed at 7:30 a.m. According to the Angara Diary, the following
happened:

"Opposition's deal

7:30 a.m. – Rene arrives with Bert Romulo and (Ms. Macapagal's spokesperson) Rene Corona.
For this round, I am accompanied by Dondon Bagatsing and Macel.
Rene pulls out a document titled "Negotiating Points." It reads:
'1. The President shall sign a resignation document within the day, 20 January 2001, that will be
effective on Wednesday, 24 January 2001, on which day the Vice President will assume the
Presidency of the Republic of the Philippines.
2. Beginning to day, 20 January 2001, the transition process for the assumption of the new
administration shall commence, and persons designated by the Vice President to various
positions and offices of the government shall start their orientation activities in coordination with
the incumbent officials concerned.
3. The Armed Forces of the Philippines and the Philippine National Police shall function under the
Vice President as national military and police authority effective immediately.
4. The Armed Forced of the Philippines, through its Chief of Staff, shall guarantee the security of
the President and his family as approved by the national military and police authority (Vice
President).

52 | P a g e
 5. It is to be noted that the Senate will open the second envelope in connection with the alleged
savings account of the President in the Equitable PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate President.
Our deal
We bring out, too, our discussion draft which reads:
The undersigned parties, for and in behalf of their respective principals, agree and undertake as
follows:
'1. A transition will occur and take place on Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over the presidency to Vice President Gloria
Macapagal-Arroyo.
'2. In return, President Estrada and his families are guaranteed security and safety of their
person and property throughout their natural lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution or retaliation from government and the private
sector throughout their natural lifetimes.
This commitment shall be guaranteed by the Armed Forces of the Philippines (AFP) through the
Chief of Staff, as approved by the national military and police authorities – Vice President
(Macapagal).
'3. Both parties shall endeavor to ensure that the Senate sitting as an impeachment court will
authorize the opening of the second envelope in the impeachment trial as proof that the subject
savings account does not belong to President Estrada.
'4. During the five-day transition period between 20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet members shall receive an appropriate briefing from the
outgoing Cabinet officials as part of the orientation program.
During the Transition Period, the AFP and the Philippine National Police (PNP) shall function Vice
President (Macapagal) as national military and police authorities.
Both parties hereto agree that the AFP chief of staff and PNP director general shall obtain all the
necessary signatures as affixed to this agreement and insure faithful implementation and
observance thereof.
Vice President Gloria Macapagal-Arroyo shall issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to this agreement."89
The second round of negotiation cements the reading that the petitioner has resigned. It will be noted
that during this second round of negotiation, the resignation of the petitioner was again treated as a
given fact. The only unsettled points at that time were the measures to be undertaken by the parties
during and after the transition period.
According to Secretary Angara, the draft agreement, which was premised on the resignation of the
petitioner was further refined. It was then, signed by their side and he was ready to fax it to General
Reyes and Senator Pimentel to await the signature of the United Opposition. However, the signing by
the party of the respondent Arroyo was aborted by her oath-taking. The Angara diary narrates the
fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and myself, there is a firm agreement on the five points to
effect a peaceful transition. I can hear the general clearing all these points with a group he is
with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall resign today, 20 January 2001, which resignation
shall be effective on 24 January 2001, on which day the Vice President will assume the
presidency of the Republic of the Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of the new administration shall commence on 20
January 2001, wherein persons designated by the Vice President to various government positions
shall start orientation activities with incumbent officials.

53 | P a g e
'3. The Armed Forces of the Philippines through its Chief of Staff, shall guarantee the safety and
security of the President and his families throughout their natural lifetimes as approved by the
national military and police authority – Vice President.
'4. The AFP and the Philippine National Police (PNP) shall function under the Vice President as
national military and police authorities.
'5. Both parties request the impeachment court to open the second envelope in the impeachment
trial, the contents of which shall be offered as proof that the subject savings account does not
belong to the President.
The Vice President shall issue a public statement in the form and tenor provided for in Annex "B"
heretofore attached to this agreement.
11:20 a.m. – I am all set to fax General Reyes and Nene Pimentel our agreement, signed by our
side and awaiting the signature of the United opposition.
And then it happens. General Reyes calls me to say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na ang agreement (why couldn't you wait? What
about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and academic na?'
And General Reyes answers: ' Oo nga, I delete na natin, sir (yes, we're deleting the part).'
Contrary to subsequent reports, I do not react and say that there was a double cross.
But I immediately instruct Macel to delete the first provision on resignation since this matter is
already moot and academic. Within moments, Macel erases the first provision and faxes the
documents, which have been signed by myself, Dondon and Macel, to Nene Pimentel and
General Reyes.
I direct Demaree Ravel to rush the original document to General Reyes for the signatures of the
other side, as it is important that the provisions on security, at least, should be respected.
I then advise the President that the Supreme Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of the Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to some people inside the compound.
The president is having his final meal at the presidential Residence with the few friends and
Cabinet members who have gathered.
By this time, demonstrators have already broken down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the police and military have already withdrawn their
support for the President.
1 p.m. – The President's personal staff is rushing to pack as many of the Estrada family's
personal possessions as they can.
During lunch, Ronnie Puno mentions that the president needs to release a final statement before
leaving Malacañang.
The statement reads: At twelve o'clock noon today, Vice President Gloria Macapagal-Arroyo took
her oath as President of the Republic of the Philippines. While along with many other legal minds
of our country, I have strong and serious doubts about the legality and constitutionality of her
proclamation as President, I do not wish to be a factor that will prevent the restoration of unity
and order in our civil society.
It is for this reason that I now leave Malacañang Palace, the seat of the presidency of this
country, for the sake of peace and in order to begin the healing process of our nation. I leave the
Palace of our people with gratitude for the opportunities given to me for service to our people. I
will not shirk from any future challenges that may come ahead in the same service of our
country.
I call on all my supporters and followers to join me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and our beloved people.
54 | P a g e
 MABUHAY!"'

It was curtain time for the petitioner.

In sum, we hold that the resignation of the petitioner cannot be doubted. It was confirmed by his
leaving Malacañang. In the press release containing his final statement, (1) he acknowledged the oath-
taking of the respondent as President of the Republic albeit with reservation about its legality; (2) he
emphasized he was leaving the Palace, the seat of the presidency, for the sake of peace and in order to
begin the healing process of our nation. He did not say he was leaving the Palace due to any kind
inability and that he was going to re-assume the presidency as soon as the disability disappears: (3) he
expressed his gratitude to the people for the opportunity to serve them. Without doubt, he was referring
to the past opportunity given him to serve the people as President (4) he assured that he will not shirk
from any future challenge that may come ahead in the same service of our country. Petitioner's
reference is to a future challenge after occupying the office of the president which he has given up; and
(5) he called on his supporters to join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of reconciliation and solidarity could not be
attained if he did not give up the presidency. The press release was petitioner's valedictory, his final act
of farewell. His presidency is now in the part tense.

It is, however, urged that the petitioner did not resign but only took a temporary leave dated January
20, 2001 of the petitioner sent to Senate President Pimentel and Speaker Fuentebella is cited. Again, we
refer to the said letter, viz:

"Sir.

By virtue of the provisions of Section II, Article VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the powers and duties of my office. By operation of
law and the Constitution, the Vice President shall be the Acting president.

(Sgd.) Joseph Ejercito Estrada"

To say the least, the above letter is wrapped in mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the circumstances that led to its preparation. Neither
did the counsel of the petitioner reveal to the Court these circumstances during the oral argument. It
strikes the Court as strange that the letter, despite its legal value, was never referred to by the petitioner
during the week-long crisis. To be sure, there was not the slightest hint of its existence when he issued
his final press release. It was all too easy for him to tell the Filipino people in his press release that he
was temporarily unable to govern and that he was leaving the reins of government to respondent Arroyo
for the time bearing. Under any circumstance, however, the mysterious letter cannot negate the
resignation of the petitioner. If it was prepared before the press release of the petitioner clearly as a
later act. If, however, it was prepared after the press released, still, it commands scant legal
significance. Petitioner's resignation from the presidency cannot be the subject of a changing caprice nor
of a whimsical will especially if the resignation is the result of his reputation by the people. There is
another reason why this Court cannot given any legal significance to petitioner's letter and this shall be
discussed in issue number III of this Decision.

After petitioner contended that as a matter of fact he did not resign, he also argues that he could not
resign as a matter of law. He relies on section 12 of RA No. 3019, otherwise known as the Anti-graft and
Corrupt Practices Act, which allegedly prohibits his resignation, viz:

"Sec. 12. No public officer shall be allowed to resign or retire pending an investigation, criminals
or administrative, or pending a prosecution against him, for any offense under this Act or under
the provisions of the Revised Penal Code on bribery."

A reading of the legislative history of RA No. 3019 will hardly provide any comfort to the petitioner. RA
No. 3019 originated form Senate Bill No. 293. The original draft of the bill, when it was submitted to the
Senate, did not contain a provision similar to section 12 of the law as it now stands. However, in his
sponsorship speech, Senator Arturo Tolentino, the author of the bill, "reserved to propose during the
period of amendments the inclusion of a provision to the effect that no public official who is under
prosecution for any act of graft or corruption, or is under administrative investigation, shall be allowed to

55 | P a g e
voluntarily resign or retire."92 During the period of amendments, the following provision was inserted as
section 15:

"Sec. 15. Termination of office – No public official shall be allowed to resign or retire pending an
investigation, criminal or administrative, or pending a prosecution against him, for any offense
under the Act or under the provisions of the Revised Penal Code on bribery.

The separation or cessation of a public official form office shall not be a bar to his prosecution
under this Act for an offense committed during his incumbency."93

The bill was vetoed by then President Carlos P. Garcia who questioned the legality of the second
paragraph of the provision and insisted that the President's immunity should extend after his tenure.

Senate Bill No. 571, which was substantially similar Senate Bill No. 293, was thereafter passed. Section
15 above became section 13 under the new bill, but the deliberations on this particular provision mainly
focused on the immunity of the President, which was one of the reasons for the veto of the original bill.
There was hardly any debate on the prohibition against the resignation or retirement of a public official
with pending criminal and administrative cases against him. Be that as it may, the intent of the law
ought to be obvious. It is to prevent the act of resignation or retirement from being used by a public
official as a protective shield to stop the investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be compelled to render service for that would be a
violation of his constitutional right.94 A public official has the right not to serve if he really wants to retire
or resign. Nevertheless, if at the time he resigns or retires, a public official is facing administrative or
criminal investigation or prosecution, such resignation or retirement will not cause the dismissal of the
criminal or administrative proceedings against him. He cannot use his resignation or retirement to avoid
prosecution.

There is another reason why petitioner's contention should be rejected. In the cases at bar, the records
show that when petitioner resigned on January 20, 2001, the cases filed against him before the
Ombudsman were OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-1757 and 0-00-1758. While
these cases have been filed, the respondent Ombudsman refrained from conducting the preliminary
investigation of the petitioner for the reason that as the sitting President then, petitioner was immune
from suit. Technically, the said cases cannot be considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019 cannot therefore be invoked by the petitioner for
it contemplates of cases whose investigation or prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.

Petitioner contends that the impeachment proceeding is an administrative investigation that, under
section 12 of RA 3019, bars him from resigning. We hold otherwise. The exact nature of an
impeachment proceeding is debatable. But even assuming arguendo that it is an administrative
proceeding, it can not be considered pending at the time petitioner resigned because the process
already broke down when a majority of the senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out, the public prosecutors filed their Manifestation
of Withdrawal of Appearance, and the proceedings were postponed indefinitely. There was, in effect, no
impeachment case pending against petitioner when he resigned.

III

Whether or not the petitioner Is only temporarily unable to Act as President.

We shall now tackle the contention of the petitioner that he is merely temporarily unable to perform the
powers and duties of the presidency, and hence is a President on leave. As aforestated, the inability
claim is contained in the January 20, 2001 letter of petitioner sent on the same day to Senate President
Pimentel and Speaker Fuentebella.

Petitioner postulates that respondent Arroyo as Vice President has no power to adjudge the inability of
the petitioner to discharge the powers and duties of the presidency. His significant submittal is that
"Congress has the ultimate authority under the Constitution to determine whether the President is
incapable of performing his functions in the manner provided for in section 11 of article VII."95 This

56 | P a g e
contention is the centerpiece of petitioner's stance that he is a President on leave and respondent
Arroyo is only an Acting President.

An examination of section 11, Article VII is in order. It provides:

"SEC. 11. Whenever the President transmits to the President of the Senate and the Speaker of
the House of Representatives his written declaration that he is unable to discharge the powers
and duties of his office, and until he transmits to them a written declaration to the contrary, such
powers and duties shall be discharged by the Vice-President as Acting President.

Whenever a majority of all the Members of the Cabinet transmit to the President of the Senate
and to the Speaker of the House of Representatives their written declaration that the President is
unable to discharge the powers and duties of his office, the Vice-President shall immediately
assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President of the Senate and to the Speaker of
the House of Representatives his written declaration that no inability exists, he shall reassume
the powers and duties of his office. Meanwhile, should a majority of all the Members of the
Cabinet transmit within five days to the President of the Senate and to the Speaker of the House
of Representatives their written declaration that the President is unable to discharge the powers
and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall
convene, if it is not in session, within forty-eight hours, in accordance with its rules and without
need of call.

If the Congress, within ten days after receipt of the last written declaration, or, if not in session,
within twelve days after it is required to assemble, determines by a two-thirds vote of both
Houses, voting separately, that the President is unable to discharge the powers and duties of his
office, the Vice-President shall act as President; otherwise, the President shall continue exercising
the powers and duties of his office."

That is the law. Now, the operative facts:

1. Petitioner, on January 20, 2001, sent the above letter claiming inability to the Senate
President and Speaker of the House;
2. Unaware of the letter, respondent Arroyo took her oath of office as President on January
20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House of Representatives passed on January 24, 2001
House Resolution No. 175;96

On the same date, the House of the Representatives passed House Resolution No. 17697 which
states:

"RESOLUTION EXPRESSING THE SUPPORT OF THE HOUSE OF REPRESENTATIVES TO THE

ASSUMPTION INTO OFFICE BY VICE PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT
OF THE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS CONGRATULATIONS AND
EXPRESSING ITS SUPPORT FOR HER ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF
THE NATION'S GOALS UNDER THE CONSTITUTION
WHEREAS, as a consequence of the people's loss of confidence on the ability of former President
Joseph Ejercito Estrada to effectively govern, the Armed Forces of the Philippines, the Philippine
National Police and majority of his cabinet had withdrawn support from him;
WHEREAS, upon authority of an en banc resolution of the Supreme Court, Vice President Gloria
Macapagal-Arroyo was sworn in as President of the Philippines on 20 January 2001 before Chief
Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of the international community had extended their
recognition to Her Excellency, Gloria Macapagal-Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has espoused a policy of national
healing and reconciliation with justice for the purpose of national unity and development;

57 | P a g e
 WHEREAS, it is axiomatic that the obligations of the government cannot be achieved if it is
divided, thus by reason of the constitutional duty of the House of Representatives as an
institution and that of the individual members thereof of fealty to the supreme will of the people,
the House of Representatives must ensure to the people a stable, continuing government and
therefore must remove all obstacles to the attainment thereof;
WHEREAS, it is a concomitant duty of the House of Representatives to exert all efforts to unify
the nation, to eliminate fractious tension, to heal social and political wounds, and to be an
instrument of national reconciliation and solidarity as it is a direct representative of the various
segments of the whole nation;
WHEREAS, without surrending its independence, it is vital for the attainment of all the foregoing,
for the House of Representatives to extend its support and collaboration to the administration of
Her Excellency, President Gloria Macapagal-Arroyo, and to be a constructive partner in nation-
building, the national interest demanding no less: Now, therefore, be it
Resolved by the House of Representatives, To express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, to
extend its congratulations and to express its support for her administration as a partner in the
attainment of the Nation's goals under the Constitution.

Adopted,

(Sgd.) FELICIANO BELMONTE JR.

Speaker

This Resolution was adopted by the House of Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives passed House Resolution No. 17898 which
states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-ARROYO'S NOMINATION OF
SENATOR TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES
WHEREAS, there is a vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9, Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona Jr., to the position of Vice President of the Republic of the
Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is a public servant endowed with integrity,
competence and courage; who has served the Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr. possesses sterling qualities of true statesmanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
of Justice, Senator of the Philippines – qualities which merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it
Resolved as it is hereby resolved by the House of Representatives, That the House of
Representatives confirms the nomination of Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker

58 | P a g e
This Resolution was adopted by the House of Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter claiming inability, some twelve (12) members of the
Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government offers the nation an opportunity for meaningful
change and challenge;
WHEREAS, to attain desired changes and overcome awesome challenges the nation needs unity
of purpose and resolve cohesive resolute (sic) will;
WHEREAS, the Senate of the Philippines has been the forum for vital legislative measures in unity
despite diversities in perspectives;
WHEREFORE, we recognize and express support to the new government of President Gloria
Macapagal-Arroyo and resolve to discharge and overcome the nation's challenges." 99
On February 7, the Senate also passed Senate Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL ARROYO'S NOMINATION OF SEM.
TEOFISTO T. GUINGONA, JR. AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-Arroyo;
WHEREAS, pursuant to Section 9 Article VII of the Constitution, the President in the event of
such vacancy shall nominate a Vice President from among the members of the Senate and the
House of Representatives who shall assume office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria Macapagal-Arroyo has nominated Senate Minority
Leader Teofisto T. Guingona, Jr. to the position of Vice President of the Republic of the
Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a public servant endowed with integrity, competence
and courage; who has served the Filipino people with dedicated responsibility and patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr. possesses sterling qualities of true statemanship,
having served the government in various capacities, among others, as Delegate to the
Constitutional Convention, Chairman of the Commission on Audit, Executive Secretary, Secretary
of Justice, Senator of the land - which qualities merit his nomination to the position of Vice
President of the Republic: Now, therefore, be it
Resolved, as it is hereby resolved, That the Senate confirm the nomination of Sen. Teofisto T.
Guingona, Jr. as Vice President of the Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7, the Senate likewise passed Senate Resolution No. 83101 which
states:
"RESOLUTION RECOGNIZING THAT THE IMPEACHMENT COURT IS FUNCTUS OFFICIO
Resolved, as it is hereby resolved. That the Senate recognize that the Impeachment Court
is functus officioand has been terminated.
Resolved, further, That the Journals of the Impeachment Court on Monday, January 15, Tuesday,
January 16 and Wednesday, January 17, 2001 be considered approved.
Resolved, further, That the records of the Impeachment Court including the "second envelope"
be transferred to the Archives of the Senate for proper safekeeping and preservation in
accordance with the Rules of the Senate. Disposition and retrieval thereof shall be made only
upon written approval of the Senate president.
Resolved, finally. That all parties concerned be furnished copies of this Resolution.
Adopted,
59 | P a g e
 (Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"

(5) On February 8, the Senate also passed Resolution No. 84 "certifying to the existence of vacancy in
the Senate and calling on the COMELEC to fill up such vacancy through election to be held
simultaneously with the regular election on May 14, 2001 and the Senatorial candidate garnering the
thirteenth (13th) highest number of votes shall serve only for the unexpired term of Senator Teofisto T.
Guingona, Jr.'

(6) Both houses of Congress started sending bills to be signed into law by respondent Arroyo as
President.

(7) Despite the lapse of time and still without any functioning Cabinet, without any recognition from any
sector of government, and without any support from the Armed Forces of the Philippines and the
Philippine National Police, the petitioner continues to claim that his inability to govern is only momentary.

What leaps to the eye from these irrefutable facts is that both houses of Congress have
recognized respondent Arroyo as the President. Implicitly clear in that recognition is the
premise that the inability of petitioner Estrada. Is no longer temporary. Congress has clearly
rejected petitioner's claim of inability.

The question is whether this Court has jurisdiction to review the claim of temporary
inability of petitioner Estrada and thereafter revise the decision of both Houses of
Congress recognizing respondent Arroyo as president of the Philippines. Following Tañada v.
Cuenco,102 we hold that this Court cannot exercise its judicial power or this is an issue "in regard to
which full discretionary authority has been delegated to the Legislative xxx branch of the government."
Or to use the language in Baker vs. Carr,103 there is a "textually demonstrable or a lack of judicially
discoverable and manageable standards for resolving it." Clearly, the Court cannot pass upon petitioner's
claim of inability to discharge the power and duties of the presidency. The question is political in
nature and addressed solely to Congress by constitutional fiat. It is a political issue, which
cannot be decided by this Court without transgressing the principle of separation of powers.

In fine, even if the petitioner can prove that he did not resign, still, he cannot successfully
claim that he is a President on leave on the ground that he is merely unable to govern
temporarily. That claim has been laid to rest by Congress and the decision that respondent
Arroyo is the de jure, president made by a co-equal branch of government cannot be
reviewed by this Court.

IV

Whether or not the petitioner enjoys immunity from suit.

Assuming he enjoys immunity, the extent of the immunity

Petitioner Estrada makes two submissions: first, the cases filed against him before the respondent
Ombudsman should be prohibited because he has not been convicted in the impeachment proceedings
against him; and second, he enjoys immunity from all kinds of suit, whether criminal or civil.

Before resolving petitioner's contentions, a revisit of our legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this jurisdiction emerged as a case law. In
the 1910 case of Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the respondent Tiaco, a Chinese
citizen, sued petitioner W. Cameron Forbes, Governor-General of the Philippine Islands. J.E. Harding and
C.R. Trowbridge, Chief of Police and Chief of the Secret Service of the City of Manila, respectively, for
damages for allegedly conspiring to deport him to China. In granting a writ of prohibition, this Court,
speaking thru Mr. Justice Johnson, held:

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 " The principle of nonliability, as herein enunciated, does not mean that the judiciary has no
authority to touch the acts of the Governor-General; that he may, under cover of his office, do
what he will, unimpeded and unrestrained. Such a construction would mean that tyranny, under
the guise of the execution of the law, could walk defiantly abroad, destroying rights of person
and of property, wholly free from interference of courts or legislatures. This does not mean,
either that a person injured by the executive authority by an act unjustifiable under the law has n
remedy, but must submit in silence. On the contrary, it means, simply, that the governors-
general, like the judges if the courts and the members of the Legislature, may not be personally
mulcted in civil damages for the consequences of an act executed in the performance of his
official duties. The judiciary has full power to, and will, when the mater is properly presented to it
and the occasion justly warrants it, declare an act of the Governor-General illegal and void and
place as nearly as possible in status quo any person who has been deprived his liberty or his
property by such act. This remedy is assured to every person, however humble or of whatever
country, when his personal or property rights have been invaded, even by the highest authority
of the state. The thing which the judiciary can not do is mulct the Governor-General personally in
damages which result from the performance of his official duty, any more than it can a member
of the Philippine Commission of the Philippine Assembly. Public policy forbids it.

Neither does this principle of nonliability mean that the chief executive may not be personally
sued at all in relation to acts which he claims to perform as such official. On the contrary, it
clearly appears from the discussion heretofore had, particularly that portion which touched the
liability of judges and drew an analogy between such liability and that of the Governor-General,
that the latter is liable when he acts in a case so plainly outside of his power and authority that
he can not be said to have exercised discretion in determining whether or not he had the right to
act. What is held here is that he will be protected from personal liability for damages not only
when he acts within his authority, but also when he is without authority, provided he actually
used discretion and judgement, that is, the judicial faculty, in determining whether he had
authority to act or not. In other words, in determining the question of his authority. If he decide
wrongly, he is still protected provided the question of his authority was one over which two men,
reasonably qualified for that position, might honestly differ; but he s not protected if the lack of
authority to act is so plain that two such men could not honestly differ over its determination. In
such case, be acts, not as Governor-General but as a private individual, and as such must answer
for the consequences of his act."

Mr. Justice Johnson underscored the consequences if the Chief Executive was not granted immunity
from suit, viz"xxx. Action upon important matters of state delayed; the time and substance of the chief
executive spent in wrangling litigation; disrespect engendered for the person of one of the highest
officials of the state and for the office he occupies; a tendency to unrest and disorder resulting in a way,
in distrust as to the integrity of government itself."105

Our 1935 Constitution took effect but it did not contain any specific provision on executive immunity.
Then came the tumult of the martial law years under the late President Ferdinand E. Marcos and the
1973 Constitution was born. In 1981, it was amended and one of the amendments involved executive
immunity. Section 17, Article VII stated:

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

The immunities herein provided shall apply to the incumbent President referred to in Article XVII
of this Constitution.

In his second Vicente G. Sinco professional Chair lecture entitled, "Presidential Immunity and All The
King's Men: The Law of Privilege As a Defense To Actions For Damages,"106 petitioner's learned counsel,
former Dean of the UP College of Law, Atty. Pacificao Agabin, brightened the modifications effected by
this constitutional amendment on the existing law on executive privilege. To quote his disquisition:

"In the Philippines, though, we sought to do the Americans one better by enlarging and fortifying
the absolute immunity concept. First, we extended it to shield the President not only form civil
claims but also from criminal cases and other claims. Second, we enlarged its scope so that it
would cover even acts of the President outside the scope of official duties. And third, we
broadened its coverage so as to include not only the President but also other persons, be they

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 government officials or private individuals, who acted upon orders of the President. It can be said
that at that point most of us were suffering from AIDS (or absolute immunity defense
syndrome)."

The Opposition in the then Batasan Pambansa sought the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by them Member of Parliament, now Secretary of
Finance, Alberto Romulo, who argued that the after incumbency immunity granted to President Marcos
violated the principle that a public office is a public trust. He denounced the immunity as a return to the
anachronism "the king can do no wrong."107 The effort failed.

The 1973 Constitution ceased to exist when President Marcos was ousted from office by the People
Power revolution in 1986. When the 1987 Constitution was crafted, its framers did not reenact the
executive immunity provision of the 1973 Constitution. The following explanation was given by delegate
J. Bernas vis:108

"Mr. Suarez. Thank you.

The last question is with reference to the Committee's omitting in the draft proposal the
immunity provision for the President. I agree with Commissioner Nolledo that the Committee did
very well in striking out second sentence, at the very least, of the original provision on immunity
from suit under the 1973 Constitution. But would the Committee members not agree to a
restoration of at least the first sentence that the President shall be immune from suit during his
tenure, considering that if we do not provide him that kind of an immunity, he might be spending
all his time facing litigation's, as the President-in-exile in Hawaii is now facing litigation's almost
daily?

Fr. Bernas. The reason for the omission is that we consider it understood in present
jurisprudence that during his tenure he is immune from suit.

Mr. Suarez. So there is no need to express it here.

Fr. Bernas. There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez. On that understanding, I will not press for any more query, Madam President.

I think the Commissioner for the clarifications."

We shall now rule on the contentions of petitioner in the light of this history. We reject his argument
that he cannot be prosecuted for the reason that he must first be convicted in the impeachment
proceedings. The impeachment trial of petitioner Estrada was aborted by the walkout of the prosecutors
and by the events that led to his loss of the presidency. Indeed, on February 7, 2001, the Senate passed
Senate Resolution No. 83 "Recognizing that the Impeachment Court is Functus Officio."109 Since, the
Impeachment Court is now functus officio, it is untenable for petitioner to demand that he should first be
impeached and then convicted before he can be prosecuted. The plea if granted, would put a perpetual
bar against his prosecution. Such a submission has nothing to commend itself for it will place him in a
better situation than a non-sitting President who has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To be sure, the debates in the Constitutional
Commission make it clear that when impeachment proceedings have become moot due to the
resignation of the President, the proper criminal and civil cases may already be filed against him, viz:110

"xxx

Mr. Aquino. On another point, if an impeachment proceeding has been filed against the
President, for example, and the President resigns before judgement of conviction has been
rendered by the impeachment court or by the body, how does it affect the impeachment
proceeding? Will it be necessarily dropped?

Mr. Romulo. If we decide the purpose of impeachment to remove one from office, then his
resignation would render the case moot and academic. However, as the provision says, the
criminal and civil aspects of it may continue in the ordinary courts."
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This is in accord with our ruling In Re: Saturnino Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period of their incumbency and tenure" but not
beyond. Considering the peculiar circumstance that the impeachment process against the petitioner has
been aborted and thereafter he lost the presidency, petitioner Estrada cannot demand as a condition
sine qua non to his criminal prosecution before the Ombudsman that he be convicted in the
impeachment proceedings. His reliance on the case of Lecaroz vs. Sandiganbayan112 and related
cases113 are inapropos for they have a different factual milieu.

We now come to the scope of immunity that can be claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in character. They involve plunder, bribery and graft
and corruption. By no stretch of the imagination can these crimes, especially plunder which carries the
death penalty, be covered by the alleged mantle of immunity of a non-sitting president. Petitioner cannot
cite any decision of this Court licensing the President to commit criminal acts and wrapping him with
post-tenure immunity from liability. It will be anomalous to hold that immunity is an inoculation from
liability for unlawful acts and conditions. The rule is that unlawful acts of public officials are not acts of
the State and the officer who acts illegally is not acting as such but stands in the same footing as any
trespasser.114

Indeed, critical reading of current literature on executive immunity will reveal a judicial disinclination to
expand the privilege especially when it impedes the search for truth or impairs the vindication of a right.
In the 1974 case of US v. Nixon,115 US President Richard Nixon, a sitting President, was subpoenaed to
produce certain recordings and documents relating to his conversations with aids and advisers. Seven
advisers of President Nixon's associates were facing charges of conspiracy to obstruct Justice and other
offenses, which were committed in a burglary of the Democratic National Headquarters in Washington's
Watergate Hotel during the 972 presidential campaign. President Nixon himself was named an
unindicted co-conspirator. President Nixon moved to quash the subpoena on the ground, among others,
that the President was not subject to judicial process and that he should first be impeached and
removed from office before he could be made amenable to judicial proceedings. The claim was rejected
by the US Supreme Court. It concluded that "when the ground for asserting privilege as to subpoenaed
materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it
cannot prevail over the fundamental demands of due process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald,116 the US Supreme Court further held that the immunity
of the president from civil damages covers only "official acts." Recently, the US Supreme Court had the
occasion to reiterate this doctrine in the case of Clinton v. Jones117 where it held that the US President's
immunity from suits for money damages arising out of their official acts is inapplicable to unofficial
conduct.

There are more reasons not to be sympathetic to appeals to stretch the scope of executive immunity in
our jurisdiction. One of the great themes of the 1987 Constitution is that a public office is a public
trust.118 It declared as a state policy that "the State shall maintain honesty and integrity in the public
service and take positive and effective measures against graft and corruptio."119 it ordained that "public
officers and employees must at all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency act with patriotism and justice, and lead modest
lives."120 It set the rule that 'the right of the State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees or transferees, shall not be barred by
prescription, latches or estoppel."121 It maintained the Sandiganbayan as an anti-graft court.122 It created
the office of the Ombudsman and endowed it with enormous powers, among which is to "investigate on
its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust improper or inefficient."123 The Office of
the Ombudsman was also given fiscal autonomy.124 These constitutional policies will be devalued if we
sustain petitioner's claim that a non-sitting president enjoys immunity from suit for criminal acts
committed during his incumbency.

Whether or not the prosecution of petitioner

Estrada should be enjoined due to prejudicial publicity

Petitioner also contends that the respondent Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the barrage of prejudicial publicity on his guilt. He

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submits that the respondent Ombudsman has developed bias and is all set file the criminal cases
violation of his right to due process.

There are two (2) principal legal and philosophical schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of high profile cases.125 The British approach the
problem with the presumption that publicity will prejudice a jury. Thus, English courts readily stay and
stop criminal trials when the right of an accused to fair trial suffers a threat.126 The American approach is
different. US courts assume a skeptical approach about the potential effect of pervasive publicity on the
right of an accused to a fair trial. They have developed different strains of tests to resolve this issue, i.e.,
substantial; probability of irreparable harm, strong likelihood, clear and present danger, etc.

This is not the first time the issue of trial by publicity has been raised in this Court to stop the trials or
annul convictions in high profile criminal cases.127 In People vs. Teehankee, Jr.,128 later reiterated in the
case of Larranaga vs. court of Appeals, et al.,129 we laid down the doctrine that:

"We cannot sustain appellant's claim that he was denied the right to impartial trial due to
prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible
reporting enhances accused's right to a fair trial for, as well pointed out, a responsible press has
always been regarded as the criminal field xxx. The press does not simply publish information
about trials but guards against the miscarriage of justice by subjecting the police, prosecutors,
and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself
prove that the publicity so permeated the mind of the trial judge and impaired his impartiality.
For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-
court publicity of sensational criminal cases. The state of the art of our communication system
brings news as they happen straight to our breakfast tables and right to our bedrooms. These
news form part of our everyday menu of the facts and fictions of life. For another, our idea of a
fair and impartial judge is not that of a hermit who is out of touch with the world. We have not
installed the jury system whose members are overly protected from publicity lest they lose there
impartially. xxx xxx xxx. Our judges are learned in the law and trained to disregard off-court
evidence and on-camera performances of parties to litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to
the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et
al. v. Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test
of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at a bar, the records do not show that the trial judge
developed actual bias against appellants as a consequence of the extensive media coverage of
the pre-trial and trial of his case. The totality of circumstances of the case does not prove that
the trial judge acquired a fixed opinion as a result of prejudicial publicity, which is incapable of
change even by evidence presented during the trial. Appellant has the burden to prove this
actual bias and he has not discharged the burden.'

We expounded further on this doctrine in the subsequent case of Webb vs. Hon. Raul de Leon,
etc.130 and its companion cases, viz:

"Again petitioners raise the effect of prejudicial publicity on their right to due process while
undergoing preliminary investigation. We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing a preliminary investigation.

xxx

The democratic settings, media coverage of trials of sensational cases cannot be avoided and
oftentimes, its excessiveness has been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the high volume and high velocity of

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publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and
fiction about the case continues unabated even today. Commentators still bombard the public
with views not too many of which are sober and sublime. Indeed, even the principal actors in the
case – the NBI, the respondents, their lawyers and their sympathizers have participated in this
media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding,
criminal trials cannot be completely closed to the press and public. In the seminal case of
Richmond Newspapers, Inc. v. Virginia, it was

xxx

a. The historical evidence of the evolution of the criminal trial in Anglo-American justice
demonstrates conclusively that at the time this Nation's organic laws were adopted,
criminal trials both here and in England had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly to all concerned and discouraging
perjury, the misconduct of participants, or decisions based on secret bias or partiality. In
addition, the significant community therapeutic value of public trials was recognized when
a shocking crime occurs a community reaction of outrage and public protest often follows,
and thereafter the open processes of justice serve an important prophylactic purpose,
providing an outlet for community concern, hostility and emotion. To work effectively, it is
important that society's criminal process satisfy the appearance of justice,' Offutt v.
United States, 348 US 11, 14, 99 L ED 11, 75 S Ct 11, which can best be provided by
allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of a criminal trial under this Nation's
system of justice, Cf., e,g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct
1038.
b. The freedoms of speech. Press and assembly, expressly guaranteed by the First
Amendment, share a common core purpose of assuring freedom of communication on
matters relating to the functioning of government. In guaranteeing freedom such as those
of speech and press, the First Amendment can be read as protecting the right of everyone
to attend trials so as give meaning to those explicit guarantees; the First Amendment
right to receive information and ideas means, in the context of trials, that the guarantees
of speech and press, standing alone, prohibit government from summarily closing
courtroom doors which had long been open to the public at the time the First Amendment
was adopted. Moreover, the right of assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to augment the free exercise of the
other First Amendment rights with which the draftsmen deliberately linked it. A trial
courtroom is a public place where the people generally and representatives of the media
have a right to be present, and where their presence historically has been thought to
enhance the integrity and quality of what takes place.
c. Even though the Constitution contains no provision which be its terms guarantees to the
public the right to attend criminal trials, various fundamental rights, not expressly
guaranteed, have been recognized as indispensable to the enjoyment of enumerated
rights. The right to attend criminal trial is implicit in the guarantees of the First
Amendment: without the freedom to attend such trials, which people have exercised for
centuries, important aspects of freedom of speech and of the press be eviscerated.

Be that as it may, we recognize that pervasive and prejudicial publicity under certain
circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al., we held that to warrant a finding of prejudicial publicity there must
be allegation and proof that the judges have been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will
prove that the tone and content of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a
factor to consider in determining whether they can easily be blinded by the klieg lights of
publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except evidence properly adduced by the
parties. The length of time the investigation was conducted despite its summary nature and the

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 generosity with which they accommodated the discovery motions of petitioners speak well of
their fairness. At no instance, we note, did petitioners seek the disqualification of any member of
the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity."
(emphasis supplied)

Applying the above ruling, we hold that there is not enough evidence to warrant this Court to
enjoin the preliminary investigation of the petitioner by the respondent Ombudsman.
Petitioner needs to offer more than hostile headlines to discharge his burden of proof.131 He needs to
show more weighty social science evidence to successfully prove the impaired capacity of a judge to
render a bias-free decision. Well to note, the cases against the petitioner are still
undergoing preliminary investigation by a special panel of prosecutors in the office of the respondent
Ombudsman. No allegation whatsoever has been made by the petitioner that the minds of the members
of this special panel have already been infected by bias because of the pervasive prejudicial publicity
against him. Indeed, the special panel has yet to come out with its findings and the Court cannot second
guess whether its recommendation will be unfavorable to the petitioner.1âwphi1.nêt

The records show that petitioner has instead charged respondent Ombudsman himself with bias. To
quote petitioner's submission, the respondent Ombudsman "has been influenced by the barrage of
slanted news reports, and he has buckled to the threats and pressures directed at him by the
mobs."132 News reports have also been quoted to establish that the respondent Ombudsman has already
prejudged the cases of the petitioner133 and it is postulated that the prosecutors investigating the
petitioner will be influenced by this bias of their superior.

Again, we hold that the evidence proffered by the petitioner is insubstantial. The accuracy of the
news reports referred to by the petitioner cannot be the subject of judicial notice by this Court especially
in light of the denials of the respondent Ombudsman as to his alleged prejudice and the presumption of
good faith and regularity in the performance of official duty to which he is entitled. Nor can we adopt
the theory of derivative prejudice of petitioner, i.e., that the prejudice of respondent
Ombudsman flows to his subordinates. In truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make their own findings and recommendations albeit they
are reviewable by their superiors.134 They can be reversed but they can not be compelled cases which
they believe deserve dismissal. In other words, investigating prosecutors should not be treated like
unthinking slot machines. Moreover, if the respondent Ombudsman resolves to file the cases against the
petitioner and the latter believes that the findings of probable cause against him is the result of bias, he
still has the remedy of assailing it before the proper court.

VI.

Epilogue

A word of caution to the "hooting throng." The cases against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office of the Ombudsman. Predictably, the call from
the majority for instant justice will hit a higher decibel while the gnashing of teeth of the minority will be
more threatening. It is the sacred duty of the respondent Ombudsman to balance the right of the State
to prosecute the guilty and the right of an accused to a fair investigation and trial which has been
categorized as the "most fundamental of all freedoms."135To be sure, the duty of a prosecutor is more to
do justice and less to prosecute. His is the obligation to insure that the preliminary investigation of the
petitioner shall have a circus-free atmosphere. He has to provide the restraint against what Lord Bryce
calls "the impatient vehemence of the majority." Rights in a democracy are not decided by the mob
whose judgment is dictated by rage and not by reason. Nor are rights necessarily resolved by the power
of number for in a democracy, the dogmatism of the majority is not and should never be the definition
of the rule of law. If democracy has proved to be the best form of government, it is because it has
respected the right of the minority to convince the majority that it is wrong. Tolerance of multiformity of
thoughts, however offensive they may be, is the key to man's progress from the cave to civilization. Let
us not throw away that key just to pander to some people's prejudice.

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IN VIEW WHEREOF, the petitions of Joseph Ejercito Estrada challenging the respondent Gloria
Macapagal-Arroyo as the de jure 14th President of the Republic are DISMISSED.

SO ORDERED.

G.R. No. 148560 November 19, 2001

JOSEPH EJERCITO ESTRADA, petitioner,

vs.
SANDIGANBAYAN (Third Division) and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

BELLOSILLO, J.:

JOHN STUART MILL, in his essay On Liberty, unleashes the full fury of his pen in defense of the rights of
the individual from the vast powers of the State and the inroads of societal pressure. But even as he
draws a sacrosanct line demarcating the limits on individuality beyond which the State cannot tread -
asserting that "individual spontaneity" must be allowed to flourish with very little regard to social
interference - he veritably acknowledges that the exercise of rights and liberties is imbued with a civic
obligation, which society is justified in enforcing at all cost, against those who would endeavor to
withhold fulfillment. Thus he says -

The sole end for which mankind is warranted, individually or collectively, in interfering with the liberty of
action of any of their number, is self-protection. The only purpose for which power can be rightfully
exercised over any member of a civilized community, against his will, is to prevent harm to others.

Parallel to individual liberty is the natural and illimitable right of the State to self-preservation. With the
end of maintaining the integrity and cohesiveness of the body politic, it behooves the State to formulate
a system of laws that would compel obeisance to its collective wisdom and inflict punishment for non-
observance.

The movement from Mill's individual liberalism to unsystematic collectivism wrought changes in the social
order, carrying with it a new formulation of fundamental rights and duties more attuned to the
imperatives of contemporary socio-political ideologies. In the process, the web of rights and State
impositions became tangled and obscured, enmeshed in threads of multiple shades and colors, the skein
irregular and broken. Antagonism, often outright collision, between the law as the expression of the will
of the State, and the zealous attempts by its members to preserve their individuality and dignity,
inevitably followed. It is when individual rights are pitted against State authority that judicial conscience
is put to its severest test.

Petitioner Joseph Ejercito Estrada, the highest-ranking official to be prosecuted under RA 7080 (An Act
Defining and Penalizing the Crime of Plunder),1 as amended by RA 7659,2 wishes to impress upon us that
the assailed law is so defectively fashioned that it crosses that thin but distinct line which divides the
valid from the constitutionally infirm. He therefore makes a stringent call for this Court to subject the
Plunder Law to the crucible of constitutionality mainly because, according to him, (a) it suffers from the
vice of vagueness; (b) it dispenses with the "reasonable doubt" standard in criminal prosecutions; and,
(c) it abolishes the element of mens rea in crimes already punishable under The Revised Penal Code, all
of which are purportedly clear violations of the fundamental rights of the accused to due process and to
be informed of the nature and cause of the accusation against him.

Specifically, the provisions of the Plunder Law claimed by petitioner to have transgressed constitutional
boundaries are Secs. 1, par. (d), 2 and 4 which are reproduced hereunder:

Section 1. x x x x (d) "Ill-gotten wealth" means any asset, property, business, enterprise or material
possession of any person within the purview of Section Two (2) hereof, acquired by him directly or
indirectly through dummies, nominees, agents, subordinates and/or business associates by any
combination or series of the following means or similar schemes:

(1) Through misappropriation, conversion, misuse, or malversation of public funds or raids on the
public treasury;
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 (2) By receiving, directly or indirectly, any commission, gift, share, percentage, kickbacks or any
other form of pecuniary benefit from any person and/or entity in connection with any
government contract or project or by reason of the office or position of the public office
concerned;

(3) By the illegal or fraudulent conveyance or disposition of assets belonging to the National
Government or any of its subdivisions, agencies or instrumentalities, or government owned or
controlled corporations and their subsidiaries;

(4) By obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any
other form of interest or participation including the promise of future employment in any
business enterprise or undertaking;

(5) By establishing agricultural, industrial or commercial monopolies or other combinations and/or

implementation of decrees and orders intended to benefit particular persons or special interests;
or

(6) By taking advantage of official position, authority, relationship, connection or influence to

unjustly enrich himself or themselves at the expense and to the damage and prejudice of the
Filipino people and the Republic of the Philippines.

Section 2. Definition of the Crime of Plunder, Penalties. - Any public officer who, by himself or in
connivance with members of his family, relatives by affinity or consanguinity, business associates,
subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through
a combination or series of overt or criminal acts as described in Section 1 (d) hereof, in the
aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the
crime of plunder and shall be punished by reclusion perpetua to death. Any person who participated with
the said public officer in the commission of an offense contributing to the crime of plunder shall likewise
be punished for such offense. In the imposition of penalties, the degree of participation and the
attendance of mitigating and extenuating circumstances as provided by the Revised Penal Code shall be
considered by the court. The court shall declare any and all ill-gotten wealth and their interests and
other incomes and assets including the properties and shares of stocks derived from the deposit or
investment thereof forfeited in favor of the State (underscoring supplied).

Section 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary
to prove each and every criminal act done by the accused in furtherance of the scheme or
conspiracy to amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish
beyond reasonable doubt a pattern of overt or criminal acts indicative of the overall
unlawful scheme or conspiracy (underscoring supplied).

On 4 April 2001 the Office of the Ombudsman filed before the Sandiganbayan eight (8) separate
Informations, docketed as: (a) Crim. Case No. 26558, for violation of RA 7080, as amended by RA 7659;
(b) Crim. Cases Nos. 26559 to 26562, inclusive, for violation of Secs. 3, par. (a), 3, par. (a), 3, par. (e)
and 3, par. (e), of RA 3019 (Anti-Graft and Corrupt Practices Act), respectively; (c) Crim. Case No.
26563, for violation of Sec. 7, par. (d), of RA 6713 (The Code of Conduct and Ethical Standards for
Public Officials and Employees); (d) Crim. Case No. 26564, for Perjury (Art. 183 of The Revised Penal
Code); and, (e) Crim. Case No. 26565, for Illegal Use Of An Alias (CA No. 142, as amended by RA 6085).

On 11 April 2001 petitioner filed an Omnibus Motion for the remand of the case to the Ombudsman for
preliminary investigation with respect to specification "d" of the charges in the Information in Crim. Case
No. 26558; and, for reconsideration/reinvestigation of the offenses under specifications "a," "b," and "c"
to give the accused an opportunity to file counter-affidavits and other documents necessary to prove
lack of probable cause. Noticeably, the grounds raised were only lack of preliminary investigation,
reconsideration/reinvestigation of offenses, and opportunity to prove lack of probable cause. The
purported ambiguity of the charges and the vagueness of the law under which they are charged were
never raised in that Omnibus Motion thus indicating the explicitness and comprehensibility of the Plunder
Law.

On 25 April 2001 the Sandiganbayan, Third Division, issued a Resolution in Crim. Case No. 26558 finding
that "a probable cause for the offense of PLUNDER exists to justify the issuance of warrants for the

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arrest of the accused." On 25 June 2001 petitioner's motion for reconsideration was denied by the
Sandiganbayan.

On 14 June 2001 petitioner moved to quash the Information in Crim. Case No. 26558 on the ground that
the facts alleged therein did not constitute an indictable offense since the law on which it was based was
unconstitutional for vagueness, and that the Amended Information for Plunder charged more than one
(1) offense. On 21 June 2001 the Government filed its Opposition to the Motion to Quash, and five (5)
days later or on 26 June 2001 petitioner submitted his Reply to the Opposition. On 9 July 2001 the
Sandiganbayan denied petitioner's Motion to Quash.

As concisely delineated by this Court during the oral arguments on 18 September 2001, the issues for
resolution in the instant petition for certiorari are: (a) The Plunder Law is unconstitutional for being
vague; (b) The Plunder Law requires less evidence for proving the predicate crimes of plunder and
therefore violates the rights of the accused to due process; and, (c) Whether Plunder as defined in RA
7080 is a malum prohibitum, and if so, whether it is within the power of Congress to so classify it.

Preliminarily, the whole gamut of legal concepts pertaining to the validity of legislation is predicated on
the basic principle that a legislative measure is presumed to be in harmony with the Constitution.3 Courts
invariably train their sights on this fundamental rule whenever a legislative act is under a constitutional
attack, for it is the postulate of constitutional adjudication. This strong predilection for constitutionality
takes its bearings on the idea that it is forbidden for one branch of the government to encroach upon
the duties and powers of another. Thus it has been said that the presumption is based on the deference
the judicial branch accords to its coordinate branch - the legislature.

If there is any reasonable basis upon which the legislation may firmly rest, the courts must assume that
the legislature is ever conscious of the borders and edges of its plenary powers, and has passed the law
with full knowledge of the facts and for the purpose of promoting what is right and advancing the
welfare of the majority. Hence in determining whether the acts of the legislature are in tune with the
fundamental law, courts should proceed with judicial restraint and act with caution and forbearance.
Every intendment of the law must be adjudged by the courts in favor of its constitutionality, invalidity
being a measure of last resort. In construing therefore the provisions of a statute, courts must first
ascertain whether an interpretation is fairly possible to sidestep the question of constitutionality.

In La Union Credit Cooperative, Inc. v. Yaranon4 we held that as long as there is some basis for the
decision of the court, the constitutionality of the challenged law will not be touched and the case will be
decided on other available grounds. Yet the force of the presumption is not sufficient to catapult a
fundamentally deficient law into the safe environs of constitutionality. Of course, where the law clearly
and palpably transgresses the hallowed domain of the organic law, it must be struck down on sight lest
the positive commands of the fundamental law be unduly eroded.

Verily, the onerous task of rebutting the presumption weighs heavily on the party challenging the validity
of the statute. He must demonstrate beyond any tinge of doubt that there is indeed an infringement of
the constitution, for absent such a showing, there can be no finding of unconstitutionality. A doubt, even
if well-founded, will hardly suffice. As tersely put by Justice Malcolm, "To doubt is to sustain."5 And
petitioner has miserably failed in the instant case to discharge his burden and overcome the presumption
of constitutionality of the Plunder Law.

As it is written, the Plunder Law contains ascertainable standards and well-defined parameters which
would enable the accused to determine the nature of his violation. Section 2 is sufficiently explicit in its
description of the acts, conduct and conditions required or forbidden, and prescribes the elements of the
crime with reasonable certainty and particularity. Thus -

1. That the offender is a public officer who acts by himself or in connivance with members of his
family, relatives by affinity or consanguinity, business associates, subordinates or other persons;

2. That he amassed, accumulated or acquired ill-gotten wealth through a combination or series of

the following overt or criminal acts: (a) through misappropriation, conversion, misuse, or
malversation of public funds or raids on the public treasury; (b) by receiving, directly or
indirectly, any commission, gift, share, percentage, kickback or any other form of pecuniary
benefits from any person and/or entity in connection with any government contract or project or
by reason of the office or position of the public officer; (c) by the illegal or fraudulent conveyance
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 or disposition of assets belonging to the National Government or any of its subdivisions, agencies
or instrumentalities of Government owned or controlled corporations or their subsidiaries; (d) by
obtaining, receiving or accepting directly or indirectly any shares of stock, equity or any other
form of interest or participation including the promise of future employment in any business
enterprise or undertaking; (e) by establishing agricultural, industrial or commercial monopolies or
other combinations and/or implementation of decrees and orders intended to benefit particular
persons or special interests; or (f) by taking advantage of official position, authority, relationship,
connection or influence to unjustly enrich himself or themselves at the expense and to the
damage and prejudice of the Filipino people and the Republic of the Philippines; and,

3. That the aggregate amount or total value of the ill-gotten wealth amassed, accumulated or
acquired is at least ₱50,000,000.00.

As long as the law affords some comprehensible guide or rule that would inform those who are subject
to it what conduct would render them liable to its penalties, its validity will be sustained. It must
sufficiently guide the judge in its application; the counsel, in defending one charged with its violation;
and more importantly, the accused, in identifying the realm of the proscribed conduct. Indeed, it can be
understood with little difficulty that what the assailed statute punishes is the act of a public officer in
amassing or accumulating ill-gotten wealth of at least ₱50,000,000.00 through a series or combination of
acts enumerated in Sec. 1, par. (d), of the Plunder Law.

In fact, the amended Information itself closely tracks the language of the law, indicating with reasonable
certainty the various elements of the offense which petitioner is alleged to have committed:

"The undersigned Ombudsman, Prosecutor and OIC-Director, EPIB, Office of the Ombudsman, hereby
accuses former PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, Joseph Ejercito
Estrada, a.k.a. 'ASIONG SALONGA' and a.k.a. 'JOSE VELARDE,' together with Jose 'Jinggoy' Estrada,
Charlie 'Atong' Ang, Edward Serapio, Yolanda T. Ricaforte, Alma Alfaro, JOHN DOE a.k.a. Eleuterio
Tan OR Eleuterio Ramos Tan or Mr. Uy, Jane Doe a.k.a. Delia Rajas, and John DOES & Jane Does, of
the crime of Plunder, defined and penalized under R.A. No. 7080, as amended by Sec. 12 of R.A. No.
7659, committed as follows:

That during the period from June, 1998 to January 2001, in the Philippines, and within the jurisdiction of
this Honorable Court, accused Joseph Ejercito Estrada, THEN A PRESIDENT OF THE REPUBLIC OF
THE PHILIPPINES, by himself AND/OR in CONNIVANCE/CONSPIRACY with his co-accused, WHO
ARE MEMBERS OF HIS FAMILY, RELATIVES BY AFFINITY OR CONSANGUINITY, BUSINESS
ASSOCIATES, SUBORDINATES AND/OR OTHER PERSONS, BY TAKING UNDUE ADVANTAGE
OF HIS OFFICIAL POSITION, AUTHORITY, RELATIONSHIP, CONNECTION, OR INFLUENCE,
did then and there willfully, unlawfully and criminally amass, accumulate and acquire BY HIMSELF,
DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount or TOTAL VALUE of FOUR
BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED
SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS (₱4,097,804,173.17), more or
less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO
THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES,
through ANY OR A combination OR Aseries of overt OR criminal acts, OR SIMILAR SCHEMES OR
MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES, MONEY IN

THE AGGREGATE AMOUNT OF FIVE HUNDRED FORTY-FIVE MILLION PESOS
(₱545,000,000.00), MORE OR LESS, FROM ILLEGAL GAMBLING IN THE FORM OF
GIFT, SHARE, PERCENTAGE, KICKBACK OR ANY FORM OF PECUNIARY BENEFIT, BY
HIMSELF AND/OR in connection with co-accused CHARLIE 'ATONG' ANG, Jose 'Jinggoy'
Estrada, Yolanda T. Ricaforte, Edward Serapio, AND JOHN DOES AND JANE DOES, in
consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR

INDIRECTLY, for HIS OR THEIR PERSONAL gain and benefit, public funds in the amount of
ONE HUNDRED THIRTY MILLION PESOS (₱130,000,000.00), more or less, representing a portion
of the TWO HUNDRED MILLION PESOS (₱200,000,000.00) tobacco excise tax share
allocated for the province of Ilocos Sur under R.A. No. 7171, by himself and/or in connivance

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 with co-accused Charlie 'Atong' Ang, Alma Alfaro, JOHN DOE a.k.a.Eleuterio Ramos Tan or Mr.
Uy, Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES & JANE DOES; (italic supplied).

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the
Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF
STOCKS, MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF
STOCK, MORE OR LESS, OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR
LESS ONE BILLION ONE HUNDRED TWO MILLION NINE HUNDRED SIXTY FIVE
THOUSAND SIX HUNDRED SEVEN PESOS AND FIFTY CENTAVOS (₱1,102,965,607.50)
AND MORE OR LESS SEVEN HUNDRED FORTY FOUR MILLION SIX HUNDRED TWELVE
THOUSAND AND FOUR HUNDRED FIFTY PESOS (₱744,612,450.00), RESPECTIVELY,
OR A TOTAL OF MORE OR LESS ONE BILLION EIGHT HUNDRED FORTY SEVEN
MILLION FIVE HUNDRED SEVENTY EIGHT THOUSAND FIFTY SEVEN PESOS AND FIFTY
CENTAVOS (₱1,847,578,057.50); AND BY COLLECTING OR RECEIVING, DIRECTLY OR
INDIRECTLY, BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE
DOES, COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF
SHARES OF STOCK IN THE AMOUNT OF ONE HUNDRED EIGHTY NINE MILLION SEVEN
HUNDRED THOUSAND PESOS (₱189,700,000.00) MORE OR LESS, FROM THE BELLE
CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK
UNDER THE ACCOUNT NAME 'JOSE VELARDE;'

(d) by unjustly enriching himself FROM COMMISSIONS, GIFTS, SHARES, PERCENTAGES,

KICKBACKS, OR ANY FORM OF PECUNIARY BENEFITS, IN CONNIVANCE WITH JOHN
DOES AND JANE DOES, in the amount of MORE OR LESS THREE BILLION TWO HUNDRED
THIRTY THREE MILLION ONE HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE
PESOS AND SEVENTEEN CENTAVOS (₱3,233,104,173.17) AND DEPOSITING THE SAME
UNDER HIS ACCOUNT NAME 'JOSE VELARDE' AT THE EQUITABLE-PCI BANK."

We discern nothing in the foregoing that is vague or ambiguous - as there is obviously none - that will
confuse petitioner in his defense. Although subject to proof, these factual assertions clearly show that
the elements of the crime are easily understood and provide adequate contrast between the innocent
and the prohibited acts. Upon such unequivocal assertions, petitioner is completely informed of the
accusations against him as to enable him to prepare for an intelligent defense.

Petitioner, however, bewails the failure of the law to provide for the statutory definition of the terms
"combination" and "series" in the key phrase "a combination or series of overt or criminal acts" found in
Sec. 1, par. (d), and Sec. 2, and the word "pattern" in Sec. 4. These omissions, according to petitioner,
render the Plunder Law unconstitutional for being impermissibly vague and overbroad and deny him the
right to be informed of the nature and cause of the accusation against him, hence, violative of his
fundamental right to due process.

The rationalization seems to us to be pure sophistry. A statute is not rendered uncertain and void merely
because general terms are used therein, or because of the employment of terms without defining
them;6 much less do we have to define every word we use. Besides, there is no positive constitutional or
statutory command requiring the legislature to define each and every word in an enactment. Congress is
not restricted in the form of expression of its will, and its inability to so define the words employed in a
statute will not necessarily result in the vagueness or ambiguity of the law so long as the legislative will
is clear, or at least, can be gathered from the whole act, which is distinctly expressed in the Plunder
Law.

Moreover, it is a well-settled principle of legal hermeneutics that words of a statute will be interpreted in
their natural, plain and ordinary acceptation and signification,7 unless it is evident that the legislature
intended a technical or special legal meaning to those words.8 The intention of the lawmakers - who are,
ordinarily, untrained philologists and lexicographers - to use statutory phraseology in such a manner is
always presumed. Thus, Webster's New Collegiate Dictionary contains the following commonly accepted
definition of the words "combination" and "series:"

Combination - the result or product of combining; the act or process of combining. To combine is to
bring into such close relationship as to obscure individual characters.

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Series - a number of things or events of the same class coming one after another in spatial and temporal
succession.

That Congress intended the words "combination" and "series" to be understood in their popular
meanings is pristinely evident from the legislative deliberations on the bill which eventually became RA
7080 or the Plunder Law:

DELIBERATIONS OF THE BICAMERAL COMMITTEE ON JUSTICE, 7 May 1991

REP. ISIDRO: I am just intrigued again by our definition of plunder. We say THROUGH A COMBINATION
OR SERIES OF OVERT OR CRIMINAL ACTS AS MENTIONED IN SECTION ONE HEREOF. Now when we
say combination, we actually mean to say, if there are two or more means, we mean to say that number
one and two or number one and something else are included, how about a series of the same act? For
example, through misappropriation, conversion, misuse, will these be included also?

REP. GARCIA: Yeah, because we say a series.

REP. ISIDRO: Series.
REP. GARCIA: Yeah, we include series.
REP. ISIDRO: But we say we begin with a combination.
REP. GARCIA: Yes.
REP. ISIDRO: When we say combination, it seems that -
REP. GARCIA: Two.
REP. ISIDRO: Not only two but we seem to mean that two of the enumerated means not twice of one
enumeration.
REP. GARCIA: No, no, not twice.
REP. ISIDRO: Not twice?
REP. GARCIA: Yes. Combination is not twice - but combination, two acts.
REP. ISIDRO: So in other words, that’s it. When we say combination, we mean, two different acts. It
cannot be a repetition of the same act.
REP. GARCIA: That be referred to series, yeah.
REP. ISIDRO: No, no. Supposing one act is repeated, so there are two.
REP. GARCIA: A series.
REP. ISIDRO: That’s not series. Its a combination. Because when we say combination or series, we seem
to say that two or more, di ba?
REP. GARCIA: Yes, this distinguishes it really from ordinary crimes. That is why, I said, that is a very
good suggestion because if it is only one act, it may fall under ordinary crime but we have here a
combination or series of overt or criminal acts. So x x x x
REP. GARCIA: Series. One after the other eh di....
SEN. TANADA: So that would fall under the term "series?"
REP. GARCIA: Series, oo.
REP. ISIDRO: Now, if it is a combination, ano, two misappropriations....
REP. GARCIA: Its not... Two misappropriations will not be combination. Series.
REP. ISIDRO: So, it is not a combination?
REP. GARCIA: Yes.
REP. ISIDRO: When you say combination, two different?
REP. GARCIA: Yes.
SEN. TANADA: Two different.
REP. ISIDRO: Two different acts.
REP. GARCIA: For example, ha...
REP. ISIDRO: Now a series, meaning, repetition...
DELIBERATIONS ON SENATE BILL NO. 733, 6 June 1989

SENATOR MACEDA: In line with our interpellations that sometimes "one" or maybe even "two" acts may
already result in such a big amount, on line 25, would the Sponsor consider deleting the words "a series
of overt or," to read, therefore: "or conspiracy COMMITTED by criminal acts such as." Remove the idea
of necessitating "a series." Anyway, the criminal acts are in the plural.
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SENATOR TANADA: That would mean a combination of two or more of the acts mentioned in this.
THE PRESIDENT: Probably two or more would be....
SENATOR MACEDA: Yes, because "a series" implies several or many; two or more.
SENATOR TANADA: Accepted, Mr. President x x x x
THE PRESIDENT: If there is only one, then he has to be prosecuted under the particular crime. But
when we say "acts of plunder" there should be, at least, two or more.
SENATOR ROMULO: In other words, that is already covered by existing laws, Mr. President.
Thus when the Plunder Law speaks of "combination," it is referring to at least two (2) acts falling under
different categories of enumeration provided in Sec. 1, par. (d), e.g., raids on the public treasury in Sec.
1, par. (d), subpar. (1), and fraudulent conveyance of assets belonging to the National Government
under Sec. 1, par. (d), subpar. (3).
On the other hand, to constitute a series" there must be two (2) or more overt or criminal acts falling
under the same category of enumeration found in Sec. 1, par. (d), say, misappropriation, malversation
and raids on the public treasury, all of which fall under Sec. 1, par. (d), subpar. (1). Verily, had the
legislature intended a technical or distinctive meaning for "combination" and "series," it would have
taken greater pains in specifically providing for it in the law.
As for "pattern," we agree with the observations of the Sandiganbayan9 that this term is sufficiently
defined in Sec. 4, in relation to Sec. 1, par. (d), and Sec. 2 -

x x x x under Sec. 1 (d) of the law, a 'pattern' consists of at least a combination or series of overt or
criminal acts enumerated in subsections (1) to (6) of Sec. 1 (d). Secondly, pursuant to Sec. 2 of the law,
the pattern of overt or criminal acts is directed towards a common purpose or goal which is to enable
the public officer to amass, accumulate or acquire ill-gotten wealth. And thirdly, there must either be an
'overall unlawful scheme' or 'conspiracy' to achieve said common goal. As commonly understood, the
term 'overall unlawful scheme' indicates a 'general plan of action or method' which the principal accused
and public officer and others conniving with him follow to achieve the aforesaid common goal. In the
alternative, if there is no such overall scheme or where the schemes or methods used by multiple
accused vary, the overt or criminal acts must form part of a conspiracy to attain a common goal.

Hence, it cannot plausibly be contended that the law does not give a fair warning and sufficient notice of
what it seeks to penalize. Under the circumstances, petitioner's reliance on the "void-for-vagueness"
doctrine is manifestly misplaced. The doctrine has been formulated in various ways, but is most
commonly stated to the effect that a statute establishing a criminal offense must define the offense with
sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited by
the statute. It can only be invoked against that specie of legislation that is utterly vague on its face, i.e.,
that which cannot be clarified either by a saving clause or by construction.

A statute or act may be said to be vague when it lacks comprehensible standards that men of common
intelligence must necessarily guess at its meaning and differ in its application. In such instance, the
statute is repugnant to the Constitution in two (2) respects - it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of what conduct to avoid; and, it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the
Government muscle.10 But the doctrine does not apply as against legislations that are merely couched in
imprecise language but which nonetheless specify a standard though defectively phrased; or to those
that are apparently ambiguous yet fairly applicable to certain types of activities. The first may be "saved"
by proper construction, while no challenge may be mounted as against the second whenever directed
against such activities.11 With more reason, the doctrine cannot be invoked where the assailed statute is
clear and free from ambiguity, as in this case.

The test in determining whether a criminal statute is void for uncertainty is whether the language
conveys a sufficiently definite warning as to the proscribed conduct when measured by common
understanding and practice.12It must be stressed, however, that the "vagueness" doctrine merely
requires a reasonable degree of certainty for the statute to be upheld - not absolute precision or
mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is
permissible as long as the metes and bounds of the statute are clearly delineated. An act will not be held
invalid merely because it might have been more explicit in its wordings or detailed in its provisions,
especially where, because of the nature of the act, it would be impossible to provide all the details in
advance as in all other statutes.

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Moreover, we agree with, hence we adopt, the observations of Mr. Justice Vicente V. Mendoza during
the deliberations of the Court that the allegations that the Plunder Law is vague and overbroad do not
justify a facial review of its validity -

The void-for-vagueness doctrine states that "a statute which either forbids or requires the doing of an
act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ
as to its application, violates the first essential of due process of law."13 The overbreadth doctrine, on the
other hand, decrees that "a governmental purpose may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."14

A facial challenge is allowed to be made to a vague statute and to one which is overbroad because of
possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for rehabilitating the
statutes in a single prosecution, the transcendent value to all society of constitutionally protected
expression is deemed to justify allowing attacks on overly broad statutes with no requirement that the
person making the attack demonstrate that his own conduct could not be regulated by a statute drawn
with narrow specificity."15 The possible harm to society in permitting some unprotected speech to go
unpunished is outweighed by the possibility that the protected speech of others may be deterred and
perceived grievances left to fester because of possible inhibitory effects of overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the State may
well be prevented from enacting laws against socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free speech cases. They
are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it, in an opinion by
Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine outside the limited context of
the First Amendment."16 In Broadrick v. Oklahoma,17 the Court ruled that "claims of facial overbreadth
have been entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words" and, again, that "overbreadth claims, if entertained at all, have been curtailed when invoked
against ordinary criminal laws that are sought to be applied to protected conduct." For this reason, it has
been held that "a facial challenge to a legislative act is the most difficult challenge to mount successfully,
since the challenger must establish that no set of circumstances exists under which the Act would be
valid."18 As for the vagueness doctrine, it is said that a litigant may challenge a statute on its face only if
it is vague in all its possible applications. "A plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of others."19

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed for
testing "on their faces" statutes in free speech cases or, as they are called in American law, First
Amendment cases. They cannot be made to do service when what is involved is a criminal statute. With
respect to such statute, the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken
as applying to other persons or other situations in which its application might be unconstitutional."20 As
has been pointed out, "vagueness challenges in the First Amendment context, like overbreadth
challenges typically produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant."21 Consequently, there is no basis
for petitioner's claim that this Court review the Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground that
they might be applied to parties not before the Court whose activities are constitutionally protected.22 It
constitutes a departure from the case and controversy requirement of the Constitution and permits
decisions to be made without concrete factual settings and in sterile abstract contexts.23 But, as the U.S.
Supreme Court pointed out in Younger v. Harris24

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these
deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The
combination of the relative remoteness of the controversy, the impact on the legislative process of the
relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory for deciding
constitutional questions, whichever way they might be decided.

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For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort,"25 and is generally disfavored.26 In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have been
violated in a case must be examined in the light of the conduct with which the defendant is charged.27

In light of the foregoing disquisition, it is evident that the purported ambiguity of the Plunder Law, so
tenaciously claimed and argued at length by petitioner, is more imagined than real. Ambiguity, where
none exists, cannot be created by dissecting parts and words in the statute to furnish support to critics
who cavil at the want of scientific precision in the law. Every provision of the law should be construed in
relation and with reference to every other part. To be sure, it will take more than nitpicking to overturn
the well-entrenched presumption of constitutionality and validity of the Plunder Law. A fortiori, petitioner
cannot feign ignorance of what the Plunder Law is all about. Being one of the Senators who voted for its
passage, petitioner must be aware that the law was extensively deliberated upon by the Senate and its
appropriate committees by reason of which he even registered his affirmative vote with full knowledge
of its legal implications and sound constitutional anchorage.

The parallel case of Gallego v. Sandiganbayan28 must be mentioned if only to illustrate and emphasize
the point that courts are loathed to declare a statute void for uncertainty unless the law itself is so
imperfect and deficient in its details, and is susceptible of no reasonable construction that will support
and give it effect. In that case, petitioners Gallego and Agoncillo challenged the constitutionality of Sec.
3, par. (e), of The Anti-Graft and Corrupt Practices Actfor being vague. Petitioners posited, among
others, that the term "unwarranted" is highly imprecise and elastic with no common law meaning or
settled definition by prior judicial or administrative precedents; that, for its vagueness, Sec. 3, par. (e),
violates due process in that it does not give fair warning or sufficient notice of what it seeks to penalize.
Petitioners further argued that the Information charged them with three (3) distinct offenses, to wit: (a)
giving of "unwarranted" benefits through manifest partiality; (b) giving of "unwarranted" benefits
through evident bad faith; and, (c) giving of "unwarranted" benefits through gross inexcusable
negligence while in the discharge of their official function and that their right to be informed of the
nature and cause of the accusation against them was violated because they were left to guess which of
the three (3) offenses, if not all, they were being charged and prosecuted.

In dismissing the petition, this Court held that Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices
Act does not suffer from the constitutional defect of vagueness. The phrases "manifest partiality,"
"evident bad faith," and "gross and inexcusable negligence" merely describe the different modes by
which the offense penalized in Sec. 3, par. (e), of the statute may be committed, and the use of all
these phrases in the same Information does not mean that the indictment charges three (3) distinct
offenses.

The word 'unwarranted' is not uncertain. It seems lacking adequate or official support; unjustified;
unauthorized (Webster, Third International Dictionary, p. 2514); or without justification or adequate
reason (Philadelphia Newspapers, Inc. v. US Dept. of Justice, C.D. Pa., 405 F. Supp. 8, 12, cited in
Words and Phrases, Permanent Edition, Vol. 43-A 1978, Cumulative Annual Pocket Part, p. 19).

The assailed provisions of the Anti-Graft and Corrupt Practices Act consider a corrupt practice and make
unlawful the act of the public officer in:

x x x or giving any private party any unwarranted benefits, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence, x x x (Section 3 [e], Rep. Act 3019, as amended).

It is not at all difficult to comprehend that what the aforequoted penal provisions penalize is the act of a
public officer, in the discharge of his official, administrative or judicial functions, in giving any private
party benefits, advantage or preference which is unjustified, unauthorized or without justification or
adequate reason, through manifest partiality, evident bad faith or gross inexcusable negligence.

In other words, this Court found that there was nothing vague or ambiguous in the use of the term
"unwarranted" in Sec. 3, par. (e), of The Anti-Graft and Corrupt Practices Act, which was understood in
its primary and general acceptation. Consequently, in that case, petitioners' objection thereto was held
inadequate to declare the section unconstitutional.

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On the second issue, petitioner advances the highly stretched theory that Sec. 4 of the Plunder Law
circumvents the immutable obligation of the prosecution to prove beyond reasonable doubt the
predicate acts constituting the crime of plunder when it requires only proof of a pattern of overt or
criminal acts showing unlawful scheme or conspiracy -

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder, it shall not be necessary to
prove each and every criminal act done by the accused in furtherance of the scheme or conspiracy to
amass, accumulate or acquire ill-gotten wealth, it being sufficient to establish beyond reasonable doubt
a pattern of overt or criminal acts indicative of the overall unlawful scheme or conspiracy.

The running fault in this reasoning is obvious even to the simplistic mind. In a criminal prosecution for
plunder, as in all other crimes, the accused always has in his favor the presumption of innocence which
is guaranteed by the Bill of Rights, and unless the State succeeds in demonstrating by proof beyond
reasonable doubt that culpability lies, the accused is entitled to an acquittal.29 The use of the "reasonable
doubt" standard is indispensable to command the respect and confidence of the community in the
application of criminal law. It is critical that the moral force of criminal law be not diluted by a standard
of proof that leaves people in doubt whether innocent men are being condemned. It is also important in
our free society that every individual going about his ordinary affairs has confidence that his government
cannot adjudge him guilty of a criminal offense without convincing a proper factfinder of his guilt with
utmost certainty. This "reasonable doubt" standard has acquired such exalted stature in the realm of
constitutional law as it gives life to the Due Process Clause which protects the accused against conviction
except upon proof beyond reasonable doubt of every fact necessary to constitute the crime with which
he is charged.30 The following exchanges between Rep. Rodolfo Albano and Rep. Pablo Garcia on this
score during the deliberations in the floor of the House of Representatives are elucidating -

DELIBERATIONS OF THE HOUSE OF REPRESENTATIVES ON RA 7080, 9 October 1990

MR. ALBANO: Now, Mr. Speaker, it is also elementary in our criminal law that what is alleged in the
information must be proven beyond reasonable doubt. If we will prove only one act and find him guilty
of the other acts enumerated in the information, does that not work against the right of the accused
especially so if the amount committed, say, by falsification is less than ₱100 million, but the totality of
the crime committed is ₱100 million since there is malversation, bribery, falsification of public document,
coercion, theft?

MR. GARCIA: Mr. Speaker, not everything alleged in the information needs to be proved beyond
reasonable doubt. What is required to be proved beyond reasonable doubt is every element of the crime
charged. For example, Mr. Speaker, there is an enumeration of the things taken by the robber in the
information – three pairs of pants, pieces of jewelry. These need not be proved beyond reasonable
doubt, but these will not prevent the conviction of a crime for which he was charged just because, say,
instead of 3 pairs of diamond earrings the prosecution proved two. Now, what is required to be proved
beyond reasonable doubt is the element of the offense.

MR. ALBANO: I am aware of that, Mr. Speaker, but considering that in the crime of plunder the totality
of the amount is very important, I feel that such a series of overt criminal acts has to be taken singly.
For instance, in the act of bribery, he was able to accumulate only ₱50,000 and in the crime of extortion,
he was only able to accumulate ₱1 million. Now, when we add the totality of the other acts as required
under this bill through the interpretation on the rule of evidence, it is just one single act, so how can we
now convict him?

MR. GARCIA: With due respect, Mr. Speaker, for purposes of proving an essential element of the crime,
there is a need to prove that element beyond reasonable doubt. For example, one essential element of
the crime is that the amount involved is ₱100 million. Now, in a series of defalcations and other acts of
corruption in the enumeration the total amount would be ₱110 or ₱120 million, but there are certain acts
that could not be proved, so, we will sum up the amounts involved in those transactions which were
proved. Now, if the amount involved in these transactions, proved beyond reasonable doubt, is ₱100
million, then there is a crime of plunder (underscoring supplied).

It is thus plain from the foregoing that the legislature did not in any manner refashion the standard
quantum of proof in the crime of plunder. The burden still remains with the prosecution to prove beyond
any iota of doubt every fact or element necessary to constitute the crime.

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The thesis that Sec. 4 does away with proof of each and every component of the crime suffers from a
dismal misconception of the import of that provision. What the prosecution needs to prove beyond
reasonable doubt is only a number of acts sufficient to form a combination or series which would
constitute a pattern and involving an amount of at least ₱50,000,000.00. There is no need to prove each
and every other act alleged in the Information to have been committed by the accused in furtherance of
the overall unlawful scheme or conspiracy to amass, accumulate or acquire ill-gotten wealth. To
illustrate, supposing that the accused is charged in an Information for plunder with having committed
fifty (50) raids on the public treasury. The prosecution need not prove all these fifty (50) raids, it being
sufficient to prove by pattern at least two (2) of the raids beyond reasonable doubt provided only that
they amounted to at least ₱50,000,000.00.31

A reading of Sec. 2 in conjunction with Sec. 4, brings us to the logical conclusion that "pattern of overt
or criminal acts indicative of the overall unlawful scheme or conspiracy" inheres in the very acts of
accumulating, acquiring or amassing hidden wealth. Stated otherwise, such pattern arises where the
prosecution is able to prove beyond reasonable doubt the predicate acts as defined in Sec. 1, par. (d).
Pattern is merely a by-product of the proof of the predicate acts. This conclusion is consistent with
reason and common sense. There would be no other explanation for a combination or series of

overt or criminal acts to stash ₱50,000,000.00 or more, than "a scheme or conspiracy to amass,
accumulate or acquire ill gotten wealth." The prosecution is therefore not required to make a deliberate
and conscious effort to prove pattern as it necessarily follows with the establishment of a series or
combination of the predicate acts.

Relative to petitioner's contentions on the purported defect of Sec. 4 is his submission that "pattern" is
"a very important element of the crime of plunder;" and that Sec. 4 is "two pronged, (as) it contains a
rule of evidence and a substantive element of the crime," such that without it the accused cannot be
convicted of plunder -

JUSTICE BELLOSILLO: In other words, cannot an accused be convicted under the Plunder Law without
applying Section 4 on the Rule of Evidence if there is proof beyond reasonable doubt of the commission
of the acts complained of?
ATTY. AGABIN: In that case he can be convicted of individual crimes enumerated in the Revised Penal
Code, but not plunder.
JUSTICE BELLOSILLO: In other words, if all the elements of the crime are proved beyond reasonable
doubt without applying Section 4, can you not have a conviction under the Plunder Law?
ATTY. AGABIN: Not a conviction for plunder, your Honor.
JUSTICE BELLOSILLO: Can you not disregard the application of Sec. 4 in convicting an accused charged
for violation of the Plunder Law?
ATTY. AGABIN: Well, your Honor, in the first place Section 4 lays down a substantive element of the law
xxxx
JUSTICE BELLOSILLO: What I said is - do we have to avail of Section 4 when there is proof beyond
reasonable doubt on the acts charged constituting plunder?
ATTY. AGABIN: Yes, your Honor, because Section 4 is two pronged, it contains a rule of evidence and it
contains a substantive element of the crime of plunder. So, there is no way by which we can avoid
Section 4.
JUSTICE BELLOSILLO: But there is proof beyond reasonable doubt insofar as the predicate crimes
charged are concerned that you do not have to go that far by applying Section 4?
ATTY. AGABIN: Your Honor, our thinking is that Section 4 contains a very important element of the
crime of plunder and that cannot be avoided by the prosecution.32
We do not subscribe to petitioner's stand. Primarily, all the essential elements of plunder can be culled
and understood from its definition in Sec. 2, in relation to Sec. 1, par. (d), and "pattern" is not one of
them. Moreover, the epigraph and opening clause of Sec. 4 is clear and unequivocal:

SEC. 4. Rule of Evidence. - For purposes of establishing the crime of plunder x x x x

It purports to do no more than prescribe a rule of procedure for the prosecution of a criminal case for
plunder. Being a purely procedural measure, Sec. 4 does not define or establish any substantive right in
favor of the accused but only operates in furtherance of a remedy. It is only a means to an end, an aid
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to substantive law. Indubitably, even without invoking Sec. 4, a conviction for plunder may be had, for
what is crucial for the prosecution is to present sufficient evidence to engender that moral certitude
exacted by the fundamental law to prove the guilt of the accused beyond reasonable doubt. Thus, even
granting for the sake of argument that Sec. 4 is flawed and vitiated for the reasons advanced by
petitioner, it may simply be severed from the rest of the provisions without necessarily resulting in the
demise of the law; after all, the existing rules on evidence can supplant Sec. 4 more than enough.
Besides, Sec. 7 of RA 7080 provides for a separability clause -

Sec. 7. Separability of Provisions. - If any provisions of this Act or the application thereof to any person
or circumstance is held invalid, the remaining provisions of this Act and the application of such provisions
to other persons or circumstances shall not be affected thereby.

Implicit in the foregoing section is that to avoid the whole act from being declared invalid as a result of
the nullity of some of its provisions, assuming that to be the case although it is not really so, all the
provisions thereof should accordingly be treated independently of each other, especially if by doing so,
the objectives of the statute can best be achieved.

As regards the third issue, again we agree with Justice Mendoza that plunder is a malum in se which
requires proof of criminal intent. Thus, he says, in his Concurring Opinion -

x x x Precisely because the constitutive crimes are mala in se the element of mens rea must be proven in
a prosecution for plunder. It is noteworthy that the amended information alleges that the crime of
plunder was committed "willfully, unlawfully and criminally." It thus alleges guilty knowledge on the part
of petitioner.

In support of his contention that the statute eliminates the requirement of mens rea and that is the
reason he claims the statute is void, petitioner cites the following remarks of Senator Tañada made
during the deliberation on S.B. No. 733:

SENATOR TAÑADA . . . And the evidence that will be required to convict him would not be evidence for
each and every individual criminal act but only evidence sufficient to establish the conspiracy or scheme
to commit this crime of plunder.33
However, Senator Tañada was discussing §4 as shown by the succeeding portion of the transcript
quoted by petitioner:
SENATOR ROMULO: And, Mr. President, the Gentleman feels that it is contained in Section 4, Rule of
Evidence, which, in the Gentleman's view, would provide for a speedier and faster process of attending
to this kind of cases?
SENATOR TAÑADA: Yes, Mr. President . . .34
Senator Tañada was only saying that where the charge is conspiracy to commit plunder, the prosecution
need not prove each and every criminal act done to further the scheme or conspiracy, it being enough if
it proves beyond reasonable doubt a pattern of overt or ciminal acts indicative of the overall unlawful
scheme or conspiracy. As far as the acts constituting the pattern are concerned, however, the elements
of the crime must be proved and the requisite mens rea must be shown.
Indeed, §2 provides that -

Any person who participated with the said public officer in the commission of an offense contributing to
the crime of plunder shall likewise be punished for such offense. In the imposition of penalties, the
degree of participation and the attendance of mitigating and extenuating circumstances, as provided by
the Revised Penal Code, shall be considered by the court.

The application of mitigating and extenuating circumstances in the Revised Penal Code to prosecutions
under the Anti-Plunder Law indicates quite clearly that mens rea is an element of plunder since the
degree of responsibility of the offender is determined by his criminal intent. It is true that §2 refers to
"any person who participates with the said public officer in the commission of an offense contributing to
the crime of plunder." There is no reason to believe, however, that it does not apply as well to the public
officer as principal in the crime. As Justice Holmes said: "We agree to all the generalities about not
supplying criminal laws with what they omit, but there is no canon against using common sense in
construing laws as saying what they obviously mean."35

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Finally, any doubt as to whether the crime of plunder is a malum in se must be deemed to have been
resolved in the affirmative by the decision of Congress in 1993 to include it among the heinous crimes
punishable by reclusion perpetua to death. Other heinous crimes are punished with death as a straight
penalty in R.A. No. 7659. Referring to these groups of heinous crimes, this Court held in People v.
Echegaray:36

The evil of a crime may take various forms. There are crimes that are, by their very nature, despicable,
either because life was callously taken or the victim is treated like an animal and utterly dehumanized as
to completely disrupt the normal course of his or her growth as a human being . . . . Seen in this light,
the capital crimes of kidnapping and serious illegal detention for ransom resulting in the death of the
victim or the victim is raped, tortured, or subjected to dehumanizing acts; destructive arson resulting in
death; and drug offenses involving minors or resulting in the death of the victim in the case of other
crimes; as well as murder, rape, parricide, infanticide, kidnapping and serious illegal detention, where
the victim is detained for more than three days or serious physical injuries were inflicted on the victim or
threats to kill him were made or the victim is a minor, robbery with homicide, rape or intentional
mutilation, destructive arson, and carnapping where the owner, driver or occupant of the carnapped
vehicle is killed or raped, which are penalized by reclusion perpetua to death, are clearly heinous by their
very nature.

There are crimes, however, in which the abomination lies in the significance and implications of the
subject criminal acts in the scheme of the larger socio-political and economic context in which the state
finds itself to be struggling to develop and provide for its poor and underprivileged masses. Reeling from
decades of corrupt tyrannical rule that bankrupted the government and impoverished the population, the
Philippine Government must muster the political will to dismantle the culture of corruption, dishonesty,
greed and syndicated criminality that so deeply entrenched itself in the structures of society and the
psyche of the populace. [With the government] terribly lacking the money to provide even the most
basic services to its people, any form of misappropriation or misapplication of government funds
translates to an actual threat to the very existence of government, and in turn, the very survival of the
people it governs over. Viewed in this context, no less heinous are the effects and repercussions of
crimes like qualified bribery, destructive arson resulting in death, and drug offenses involving
government officials, employees or officers, that their perpetrators must not be allowed to cause further
destruction and damage to society.

The legislative declaration in R.A. No. 7659 that plunder is a heinous offense implies that it is a malum in
se. For when the acts punished are inherently immoral or inherently wrong, they are mala in se37 and it
does not matter that such acts are punished in a special law, especially since in the case of plunder the
predicate crimes are mainly mala in se. Indeed, it would be absurd to treat prosecutions for plunder as
though they are mere prosecutions for violations of the Bouncing Check Law (B.P. Blg. 22) or of an
ordinance against jaywalking, without regard to the inherent wrongness of the acts.

To clinch, petitioner likewise assails the validity of RA 7659, the amendatory law of RA 7080, on
constitutional grounds. Suffice it to say however that it is now too late in the day for him to resurrect
this long dead issue, the same having been eternally consigned by People v. Echegaray38 to the archives
of jurisprudential history. The declaration of this Court therein that RA 7659 is constitutionally valid
stands as a declaration of the State, and becomes, by necessary effect, assimilated in the Constitution
now as an integral part of it.

Our nation has been racked by scandals of corruption and obscene profligacy of officials in high places
which have shaken its very foundation. The anatomy of graft and corruption has become more elaborate
in the corridors of time as unscrupulous people relentlessly contrive more and more ingenious ways to
bilk the coffers of the government. Drastic and radical measures are imperative to fight the increasingly
sophisticated, extraordinarily methodical and economically catastrophic looting of the national treasury.
Such is the Plunder Law, especially designed to disentangle those ghastly tissues of grand-scale
corruption which, if left unchecked, will spread like a malignant tumor and ultimately consume the moral
and institutional fiber of our nation. The Plunder Law, indeed, is a living testament to the will of the
legislature to ultimately eradicate this scourge and thus secure society against the avarice and other
venalities in public office.

These are times that try men's souls. In the checkered history of this nation, few issues of national
importance can equal the amount of interest and passion generated by petitioner's ignominious fall from
the highest office, and his eventual prosecution and trial under a virginal statute. This continuing saga

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has driven a wedge of dissension among our people that may linger for a long time. Only by responding
to the clarion call for patriotism, to rise above factionalism and prejudices, shall we emerge triumphant
in the midst of ferment.

PREMISES CONSIDERED, this Court holds that RA 7080 otherwise known as the Plunder Law, as
amended by RA 7659, is CONSTITUTIONAL. Consequently, the petition to declare the law
unconstitutional is DISMISSED for lack of merit.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and
HON. GUILLERMO CARAGUE, in his capacity as Secretary of Budget and
Management, respondents.

Renato L. Cayetano for and in his own behalf.

Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are
involved, the Court's decision in this case would indubitably have a profound effect on the political
aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who
shall be natural-born citizens of the Philippines and, at the time of their appointment, at least
thirty-five years of age, holders of a college degree, and must not have been candidates for any
elective position in the immediately preceding -elections. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of
law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which
similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight

Commissioners who shall be natural-born citizens of the Philippines and, at the time of their
appointment, at least thirty-five years of age and holders of a college degree. However, a majority
thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the
practice of law for at least ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a

legal qualification to an appointive office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and
technique to serve the interest of another with his consent. It is not limited to appearing in court,
or advising and assisting in the conduct of litigation, but embraces the preparation of pleadings,
and other papers incident to actions and special proceedings, conveyancing, the preparation of
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 legal instruments of all kinds, and the giving of all legal advice to clients. It embraces all advice
to clients and all actions taken for them in matters connected with the law. An attorney engages
in the practice of law by maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal matters, negotiating with
opposing counsel about pending litigation, and fixing and collecting fees for services rendered by
his associate. (Black's Law Dictionary, 3rd ed.)

The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v.
Dworken, 129 Ohio St. 23, 193 N.E. 650) A person is also considered to be in the practice of law when
he:

... for valuable consideration engages in the business of advising person, firms, associations or
corporations as to their rights under the law, or appears in a representative capacity as an
advocate in proceedings pending or prospective, before any court, commissioner, referee, board,
body, committee, or commission constituted by law or authorized to settle controversies and
there, in such representative capacity performs any act or acts for the purpose of obtaining or
defending the rights of their clients under the law. Otherwise stated, one who, in a
representative capacity, engages in the business of advising clients as to their rights under the
law, or while so engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co., 102
S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the
preparation of pleadings and other papers incident to actions and special proceedings, the
management of such actions and proceedings on behalf of clients before judges and courts, and
in addition, conveying. In general, all advice to clients, and all action taken for them in
matters connected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement
of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in
attachment, and in matters of estate and guardianship have been held to constitute law practice,
as do the preparation and drafting of legal instruments, where the work done involves the
determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p.
262, 263). (Emphasis supplied)

Practice of law under modem conditions consists in no small part of work performed outside of
any court and having no immediate relation to proceedings in court. It embraces conveyancing,
the giving of legal advice on a large variety of subjects, and the preparation and execution of
legal instruments covering an extensive field of business and trust relations and other
affairs. Although these transactions may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They require in many aspects a high degree
of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult
and complex situations. These customary functions of an attorney or counselor at law bear an
intimate relation to the administration of justice by the courts. No valid distinction, so far as
concerns the question set forth in the order, can be drawn between that part of the work of the
lawyer which involves appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that these manifold
customary functions be performed by persons possessed of adequate learning and skill, of sound
moral character, and acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953 ed.] , p. 665-666,
citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v.
Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-
1975) listed the dimensions of the practice of law in even broader terms as advocacy, counselling and
public service.

One may be a practicing attorney in following any line of employment in the profession. If what
he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active
practice of their profession, and he follows some one or more lines of employment such as this

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 he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW
312)

Practice of law means any activity, in or out of court, which requires the application of law, legal
procedure, knowledge, training and experience. "To engage in the practice of law is to perform those
acts which are characteristics of the profession. Generally, to practice law is to give notice or render any
kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111
ALR 23)

The following records of the 1986 Constitutional Commission show that it has adopted a liberal
interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do
during our review of the provisions on the Commission on Audit. May I be allowed to make a very
brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit.
Among others, the qualifications provided for by Section I is that "They must be Members of the
Philippine Bar" — I am quoting from the provision — "who have been engaged in the practice of
law for at least ten years".

To avoid any misunderstanding which would result in excluding members of the Bar who are now
employed in the COA or Commission on Audit, we would like to make the clarification that this provision
on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of
law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in
the COA are using their legal knowledge or legal talent in their respective work within COA, then they
are qualified to be considered for appointment as members or commissioners, even chairman, of the
Commission on Audit.

This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it
important to take it up on the floor so that this interpretation may be made available whenever this
provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law
for at least ten years is taken up.

MR. OPLE. Will Commissioner Foz yield to just one question.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in the Article on the Commission on Audit?

MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily
involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA
now would have the necessary qualifications in accordance with the Provision on qualifications
under our provisions on the Commission on Audit. And, therefore, the answer is yes.

MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of
law.

MR. FOZ. Yes, Mr. Presiding Officer.

MR. OPLE. Thank you.

... ( Emphasis supplied)

Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two
Commissioners of the Commission on Audit (COA) should either be certified public accountants with not
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less than ten years of auditing practice, or members of the Philippine Bar who have been engaged in
the practice of law for at least ten years. (emphasis supplied)

Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word
"lawyer." Today, although many lawyers do not engage in private practice, it is still a fact that the
majority of lawyers are private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM Career
Horizons: Illinois], [1986], p. 15).

At this point, it might be helpful to define private practice. The term, as commonly understood, means
"an individual or organization engaged in the business of delivering legal services." (Ibid.). Lawyers who
practice alone are often called "sole practitioners." Groups of lawyers are called "firms." The firm is
usually a partnership and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the members of the firm
are the experienced attorneys. In most firms, there are younger or more inexperienced salaried
attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially
tautologous, unhelpful defining the practice of law as that which lawyers do. (Charles W.
Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The practice of law is
defined as the performance of any acts . . . in or out of court, commonly understood to be the practice
of law. (State Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958]
[quoting Grievance Comm. v. Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers
perform almost every function known in the commercial and governmental realm, such a definition
would obviously be too global to be workable.(Wolfram, op. cit.).

The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for
lawyers as well as an uncommon role for the average lawyer. Most lawyers spend little time in
courtrooms, and a large percentage spend their entire practice without litigating a case. (Ibid., p. 593).
Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of both the
public image and the self perception of the legal profession. (Ibid.).

In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.).
Why is this so? Recall that the late Alexander SyCip, a corporate lawyer, once articulated on the
importance of a lawyer as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases before the courts. The members
of the bench and bar and the informed laymen such as businessmen, know that in most developed
societies today, substantially more legal work is transacted in law offices than in the courtrooms. General
practitioners of law who do both litigation and non-litigation work also know that in most cases they find
themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in
trying cases. The business lawyer has been described as the planner, the diagnostician and the trial
lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

In the course of a working day the average general practitioner wig engage in a number of legal tasks,
each involving different legal doctrines, legal skills, legal processes, legal institutions, clients, and other
interested parties. Even the increasing numbers of lawyers in specialized practice wig usually perform at
least some legal services outside their specialty. And even within a narrow specialty such as tax practice,
a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such
as representing a client before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types
— a litigator who specializes in this work to the exclusion of much else. Instead, the work will require the
lawyer to have mastered the full range of traditional lawyer skills of client counselling, advice-giving,
document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation and
mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very
important ways, at least theoretically, so as to remove from it some of the salient features of adversarial
litigation. Of these special roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in which the lawyer is organized

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into a social unit to perform that work. The most common of these roles are those of corporate practice
and government legal service. (Ibid.).

In several issues of the Business Star, a business daily, herein below quoted are emerging trends in
corporate law practice, a departure from the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate
law practice. Lawyers and other professional groups, in particular those members participating in
various legal-policy decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate

understanding of the nature and implications of the corporate law research function accompanied
by an accelerating rate of information accumulation. The recognition of the need for such
improved corporate legal policy formulation, particularly "model-making" and "contingency
planning," has impressed upon us the inadequacy of traditional procedures in many decisional
contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of
significant conditional factors, the appraisal of major trends, the necessity of estimating the
consequences of given courses of action, and the need for fast decision and response in
situations of acute danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic computing equipment.
Understandably, an improved decisional structure must stress the predictive component of the
policy-making process, wherein a "model", of the decisional context or a segment thereof is
developed to test projected alternative courses of action in terms of futuristic effects flowing
therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the
trends of the law, the subject of corporate finance law has received relatively little organized and
formalized attention in the philosophy of advancing corporate legal education. Nonetheless, a
cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the
law can be improved through an early introduction to multi-variable decisional context and the
various approaches for handling such problems. Lawyers, particularly with either a master's or
doctorate degree in business administration or management, functioning at the legal policy level
of decision-making now have some appreciation for the concepts and analytical techniques of
other professions which are currently engaged in similar types of complex decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of
an astute attorney because of the complex legal implications that arise from each and every
necessary step in securing and maintaining the business issue raised. (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de

campanilla." He is the "big-time" lawyer, earning big money and with a clientele composed of the
tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that
a corporate lawyer does. For one, the number of attorneys employed by a single corporation will
vary with the size and type of the corporation. Many smaller and some large corporations farm
out all their legal problems to private law firms. Many others have in-house counsel only for
certain matters. Other corporation have a staff large enough to handle most legal problems in-
house.

A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a
corporation. His areas of concern or jurisdiction may include, inter alia: corporate legal research,
tax laws research, acting out as corporate secretary (in board meetings), appearances in both
courts and other adjudicatory agencies (including the Securities and Exchange Commission), and
in other capacities which require an ability to deal with the law.
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At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the
business of the corporation he is representing. These include such matters as determining policy
and becoming involved in management. ( Emphasis supplied.)

In a big company, for example, one may have a feeling of being isolated from the action, or not
understanding how one's work actually fits into the work of the orgarnization. This can be
frustrating to someone who needs to see the results of his work first hand. In short, a corporate
lawyer is sometimes offered this fortune to be more closely involved in the running of the
business.

Moreover, a corporate lawyer's services may sometimes be engaged by a multinational

corporation (MNC). Some large MNCs provide one of the few opportunities available to corporate
lawyers to enter the international law field. After all, international law is practiced in a relatively
small number of companies and law firms. Because working in a foreign country is perceived by
many as glamorous, tills is an area coveted by corporate lawyers. In most cases, however, the
overseas jobs go to experienced attorneys while the younger attorneys do their "international
practice" in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).

This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the
lines of Harvard-educated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot
problems, a good lawyer is one who perceives the difficulties, and the excellent lawyer is one
who surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).

Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No
longer are we talking of the traditional law teaching method of confining the subject study to the
Corporation Code and the Securities Code but an incursion as well into the intertwining modern
management issues.

Such corporate legal management issues deal primarily with three (3) types of learning: (1)
acquisition of insights into current advances which are of particular significance to the corporate
counsel; (2) an introduction to usable disciplinary skins applicable to a corporate counsel's
management responsibilities; and (3) a devotion to the organization and management of the
legal function itself.

These three subject areas may be thought of as intersecting circles, with a shared area linking
them. Otherwise known as "intersecting managerial jurisprudence," it forms a unifying theme for
the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter,
the corporate lawyer reviews the globalization process, including the resulting strategic
repositioning that the firms he provides counsel for are required to make, and the need to think
about a corporation's; strategy at multiple levels. The salience of the nation-state is being
reduced as firms deal both with global multinational entities and simultaneously with sub-national
governmental units. Firms increasingly collaborate not only with public entities but with each
other — often with those who are competitors in other arenas.

Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly
changing. The modem corporate lawyer has gained a new role as a stakeholder — in some cases
participating in the organization and operations of governance through participation on boards
and other decision-making roles. Often these new patterns develop alongside existing legal
institutions and laws are perceived as barriers. These trends are complicated as corporations
organize for global operations. ( Emphasis supplied)

The practising lawyer of today is familiar as well with governmental policies toward the
promotion and management of technology. New collaborative arrangements for promoting
specific technologies or competitiveness more generally require approaches from industry that
differ from older, more adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other countries. In
Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and
business Japan's MITI is world famous. (Emphasis supplied)

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Following the concept of boundary spanning, the office of the Corporate Counsel comprises a
distinct group within the managerial structure of all kinds of organizations. Effectiveness of both
long-term and temporary groups within organizations has been found to be related to
indentifiable factors in the group-context interaction such as the groups actively revising their
knowledge of the environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of team
performance than internal group processes.

In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the
managerial mettle of corporations are challenged. Current research is seeking ways both to
anticipate effective managerial procedures and to understand relationships of financial liability
and insurance considerations. (Emphasis supplied)

Regarding the skills to apply by the corporate counsel, three factors are apropos:

First System Dynamics. The field of systems dynamics has been found an effective tool for new
managerial thinking regarding both planning and pressing immediate problems. An
understanding of the role of feedback loops, inventory levels, and rates of flow, enable users to
simulate all sorts of systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the system dynamics principles more
accessible to managers — including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and
uncertainty. In the context of a law department, it can be used to appraise the settlement value
of litigation, aid in negotiation settlement, and minimize the cost and risk involved in managing a
portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by
parties and mediators in all lands of negotiations. All integrated set of such tools provide
coherent and effective negotiation support, including hands-on on instruction in these
techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three
pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of
the general counsel's responsibilities. They differ from those of remedial law. Preventive
lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for
such legal entities at that time when transactional or similar facts are being considered and
made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of
the firm to which legal consequences attach. It needs to be directly supportive of this nation's
evolving economic and organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not adequate today to facilitate
the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has
emerged in the last decade as one of the most vibrant subsets of the legal profession. The
corporate counsel hear responsibility for key aspects of the firm's strategic issues, including
structuring its global operations, managing improved relationships with an increasingly diversified
body of employees, managing expanded liability exposure, creating new and varied interactions
with public decision-makers, coping internally with more complex make or by decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make
one a good general corporate counsel nor to give him a full sense of how the legal system
shapes corporate activities. And even if the corporate lawyer's aim is not the understand all of
the law's effects on corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel,"
April 10, 1991, p. 4).
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 The challenge for lawyers (both of the bar and the bench) is to have more than a passing
knowledge of financial law affecting each aspect of their work. Yet, many would admit to
ignorance of vast tracts of the financial law territory. What transpires next is a dilemma of
professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign
understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of
Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on
April 25, 1991. Petitioner opposed the nomination because allegedly Monsod does not possess the
required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of
the COMELEC. On June 18, 1991, he took his oath of office. On the same day, he assumed office as
Chairman of the COMELEC.

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's

nomination, petitioner as a citizen and taxpayer, filed the instant petition for certiorari and Prohibition
praying that said confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960
with a grade of 86-55%. He has been a dues paying member of the Integrated Bar of the Philippines
since its inception in 1972-73. He has also been paying his professional license fees as lawyer for more
than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the
law office of his father. During his stint in the World Bank Group (1963-1970), Monsod worked as an
operations officer for about two years in Costa Rica and Panama, which involved getting acquainted with
the laws of member-countries negotiating loans and coordinating legal, economic, and project work of
the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business conglomerate, and since 1986,
has rendered services to various companies as a legal and economic consultant or chief executive
officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. Monsod's work
involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings
before the Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-
Chairman of the Bishops Businessmen's Conference for Human Development, has worked with the under
privileged sectors, such as the farmer and urban poor groups, in initiating, lobbying for and engaging in
affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which
conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987),
and Chairman of its Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile
government functions with individual freedoms and public accountability and the party-list system for the
House of Representative. (pp. 128-129 Rollo) ( Emphasis supplied)

Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.

In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately
constituted to meet the various contingencies that arise during a negotiation. Besides top officials
of the Borrower concerned, there are the legal officer (such as the legal counsel), the finance
manager, and an operations officer (such as an official involved in negotiating the contracts) who
comprise the members of the team. (Guillermo V. Soliven, "Loan Negotiating Strategies for
Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila, 1982,
p. 11). (Emphasis supplied)

After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as
the loan transaction is concerned. Thus, the meat of any Loan Agreement can be
compartmentalized into five (5) fundamental parts: (1) business terms; (2) borrower's
representation; (3) conditions of closing; (4) covenants; and (5) events of default. (Ibid., p. 13).

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 In the same vein, lawyers play an important role in any debt restructuring program. For aside
from performing the tasks of legislative drafting and legal advising, they score national
development policies as key factors in maintaining their countries' sovereignty. (Condensed from
the work paper, entitled "Wanted: Development Lawyers for Developing Nations," submitted by
L. Michael Hager, regional legal adviser of the United States Agency for International
Development, during the Session on Law for the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31,
1973). ( Emphasis supplied)

Loan concessions and compromises, perhaps even more so than purely renegotiation policies,
demand expertise in the law of contracts, in legislation and agreement drafting and in
renegotiation. Necessarily, a sovereign lawyer may work with an international business specialist
or an economist in the formulation of a model loan agreement. Debt restructuring contract
agreements contain such a mixture of technical language that they should be carefully drafted
and signed only with the advise of competent counsel in conjunction with the guidance of
adequate technical support personnel. (See International Law Aspects of the Philippine External
Debts, an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321). ( Emphasis
supplied)

A critical aspect of sovereign debt restructuring/contract construction is the set of terms and
conditions which determines the contractual remedies for a failure to perform one or more
elements of the contract. A good agreement must not only define the responsibilities of both
parties, but must also state the recourse open to either party when the other fails to discharge
an obligation. For a compleat debt restructuring represents a devotion to that principle which in
the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law
in domestic and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell
Holmes, Jr. once said: "They carry no banners, they beat no drums; but where they are, men
learn that bustle and bush are not the equal of quiet genius and serene mastery." (See Ricardo J.
Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the Philippine Journal,
Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).

Interpreted in the light of the various definitions of the term Practice of law". particularly the modern
concept of law practice, and taking into consideration the liberal construction intended by the framers of
the Constitution, Atty. Monsod's past work experiences as a lawyer-economist, a lawyer-manager, a
lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both the rich
and the poor — verily more than satisfy the constitutional requirement — that he has been engaged in
the practice of law for at least ten years.

Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:

Appointment is an essentially discretionary power and must be performed by the officer in which
it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only the appointing authority can
decide. (emphasis supplied)

No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744)
where it stated:

It is well-settled that when the appointee is qualified, as in this case, and all the other legal
requirements are satisfied, the Commission has no alternative but to attest to the appointment in
accordance with the Civil Service Law. The Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position. It also
has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is
essentially within the discretionary power of whomsoever it is vested, subject to the only
condition that the appointee should possess the qualifications required by law. ( Emphasis
supplied)

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The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1)
nomination; (2) confirmation by the Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its certificate of confirmation, the
President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc.
. . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as
Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C, Article IX of the
Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the
Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the
practice of law is the traditional or stereotyped notion of law practice, as distinguished from the
modern concept of the practice of law, which modern connotation is exactly what was intended
by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three times a week and would
outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from
the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I
made use of a definition of law practice which really means nothing because the definition says that law
practice " . . . is what people ordinarily mean by the practice of law." True I cited the definition but only
by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas
of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being
defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals,
in making use of the law, or in advising others on what the law means, are actually practicing law. In
that sense, perhaps, but we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of
the Philippine Bar, who has been practising law for over ten years. This is different from the acts of
persons practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines,
say, on the ground that he lacks one or more qualifications. This matter, I greatly doubt. For one thing,
how can an action or petition be brought against the President? And even assuming that he is indeed
disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's
confirmation, implicitly determined that he possessed the necessary qualifications as required by law.
The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack
or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion
is clearly shown shall the Court interfere with the Commission's judgment. In the instant case, there is
no occasion for the exercise of the Court's corrective power, since no abuse, much less a grave abuse of
discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the
writs prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme
Court reverse the Commission, and thus in effect confirm the appointment? Clearly, the answer is
in the negative.

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 (2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed?
The answer is likewise clear.

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides
to confirm a Presidential nominee, it would be incredible that the U.S. Supreme Court would
still reverse the U.S. Senate.

Finally, one significant legal maxim is:

We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who
was Samson's beloved) for help in capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning
white-hot two or three inches away from in front of Samson's eyes. This blinded the man. Upon hearing
of what had happened to her beloved, Delilah was beside herself with anger, and fuming with righteous
fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade
touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not
the spirit of the agreement.

In view of the foregoing, this petition is hereby DISMISSED.

SO ORDERED.

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