Additional Cases answering the charges against her truthfully to assist in the expeditious resolution of

the matter, respondent opted to proceed to a nationwide campaign, conducting

In Re Show Cause Order speeches and accepting interviews, discussing the merits of the case and making
comments thereon to vilify the members of the Congress, cast aspersions on the
EN BANC impartiality of the Members of the Court, degrade the faith of the people to the
Judiciary, and falsely impute ill motives against the government that it is
orchestrating the charges against her. In short, as the Court stated in the said
A.M. No. 18-06-01-SC, July 17, 2018 decision, respondent chose to litigate her case before the public and the media
instead of the Court.1
RE: SHOW CAUSE ORDER IN THE DECISION DATED MAY 11, 2018 IN
G.R. NO. 237428 (REPUBLIC OF THE PHILIPPINES, REPRESENTED BY The Court was disquieted as doubts against the impartiality and dignity of the Court
SOLICITOR GENERAL JOSE C. CALIDA V. MARIA LOURDES P. A. and its Members emerged, and the obfuscation of the issues in the quo
SERENO) warranto proceedings resulted from such out-of-court discussions on the merits of
the case. Worse, the Court was perturbed by the fact that respondent, not only being
DECISION a member of the Bar but one who was asserting her eligibility and right to the
highest position in the Judiciary, significantly participated in such detestable and
blatant disregard of the sub judice rule.2
TIJAM, J.:
Consequently, having great regard of judicial independence and its duty to discipline
The instant administrative matter is an offshoot of G.R. No. 237428 entitled member of the Bar to maintain the dignity of the profession and the institution, the
Republic of the Philippines, represented by Solicitor General Jose C. Calida v. Court in its decision in the quo warranto case, ordered respondent to show cause
Maria Lourdes P. A. Sereno, hereinafter referred to as the quo warranto case or why she should not be sanctioned for violating the Code of Professional
proceedings against Maria Lourdes P. A. Sereno (respondent). A brief statement of Responsibility (CPR) and the New Code of Judicial Conduct for the Philippine
the factual and procedural antecedents of the case is, thus, in order. Judiciary (NCJC) for transgressing the sub judice rule and for casting aspersions and
ill motives to the Members of this Court.3
Factual and Procedural Antecedents
On June 13, 2018, respondent filed her Verified Compliance (To the Show Cause
On August 30, 2017, an impeachment complaint was lodged before the Committee Order dated 11 May 2018) with Respectful Motion for Inhibition (Of Hon.
on Justice of the House of Representatives against respondent for culpable violation Associate Justices Teresita J. Leonardo-De Castro, Diosdado M. Peralta, Noel G.
of the Constitution, corruption, high crimes, and betrayal of public trust. Having Tijam, Francis H. Jardeleza, Lucas P. Bersamin, and Samuel R. Martires), 4arguing
learned of respondent's disqualification as a Chief Justice from the House that the acts imputed against her in the May 11, 2018 Decision do not amount to
Committee on Justice's hearings, the Republic of the Philippines (Republic), through conduct unbecoming of a Justice and a lawyer which would warrant her disbarment
the Office of the Solicitor General, filed a petition for quo warranto against nor warrant any other disciplinary measure.
respondent, basically questioning her eligibility for the Chief Justice position.
Respondent's Explanations/Arguments
The Court observed that since the filing of the impeachment complaint, during the (1) Respondent contends that she should not be judged on the stringent standards set
pendency of the quo warranto case, and even after the conclusion of the quo forth in the CPR and the NCJC, emphasizing that her participation in the quo
warranto proceedings, respondent continuously opted to defend herself in public warranto case is not as counsel or a judge but as a party-litigant. 5
through speaking engagements before students and faculties in different universities,
several public forums, interviews on national television, and public rallies. As the (2) The imputed acts against respondent did not create any serious and imminent
Court noted in its decision in the quo warranto case, respondent initially refused to threat to the administration of justice to warrant the Court's exercise of its power of
participate in the congressional hearings for the impeachment complaint. When the contempt in accordance with the "clear and present danger" rule. 6 Respondent avers
petition for quo warranto was filed, respondent likewise continuously refused to that she cannot be faulted for the attention that the quo warranto case gained from
recognize this Court's jurisdiction. Instead of participating in the judicial process and the public considering that it is a controversial case, which involves issues of
transcendental importance.7
 words or detached from her emotions as a usual legal counsel as she is directly
(3) Assuming arguendo that the CPR and the NCJC apply, respondent argues that in affected by the outcome of the proceedings. Respondent then remarked that just
addressing the matters of impeachment and quo warranto to the public, she was in because she is a lawyer and a judge does not mean that she is less affected by the
fact discharging her duty as a Justice and a lawyer to uphold the Constitution and tribulations of a public trial than an ordinary litigant.
promote respect for the law and legal processes pursuant to the said Codes. 8
Time and again, this Court has emphasized the high sense of morality, honesty, and
(4) Assuming arguendo that respondent violated some provisions of the CPR and the fair dealing expected and required of members of the Bar. Lawyers must conduct
NCJC in her public statements, the same does not warrant the exercise of the Court's themselves with great propriety, and their behavior must be beyond reproach
power to discipline in view of the attendant circumstances, to wit: (a) no less than anywhere and at all times,11 whether they are dealing with their clients or the public
the Solicitor General repeatedly made personal attacks against her and publicly at large.12 Lawyers may be disciplined for acts committed even in their private
discussed the merits of the case, hence, she had to respond to such accusations capacity for acts which tend to bring reproach on the legal profession or to injure it
against her; and (b) she was not given her right to due process despite her repeated in the favorable opinion of the public. There can be no distinction as to whether the
demand.9 transgression is committed in lawyers' private lives or in their professional capacity,
Issue for a lawyer may not divide his personality as an attorney at one time and a mere
citizen at another.13 As eloquently put by the Court in one case: "Any departure from
May respondent be held administratively liable for her actions and public statements the path which a lawyer must follow as demanded by the virtues of his profession
as regards the quo warranto case against her during its pendency? shall not be tolerated by this Court as the disciplining authority for there is perhaps
no profession after that of the sacred ministry in which a high-toned morality is
Ruling of the Court more imperative than that of law."14

Before delving into the merits, We first resolve respondent's motion for inhibition. For the same reasons, judges or Justices are held to a higher standard for they should
As respondent, herself, stated, the grounds for this motion are the same as those be the embodiment of competence, integrity, and independence, hence, their conduct
discussed in her motion for inhibition in the quo warranto case. We find no cogent should be above reproach.15
reason to belabor on this issue and deviate from what has been discussed in the
Court's decision in the quo warranto case. We reiterate that mere imputation of bias The Court is, thus, reluctant to accept respondent's position that she should be
or partiality is not enough ground for inhibition, especially when the charge is treated as an ordinary litigant in judging her actions. The fact that respondent was
without basis.10 not the judge nor the counsel but a litigant in the subject case does not strip her off
of her membership in the Bar, as well as her being a Member and the head of the
Hence, this Court resolves to DENY the Motion for Inhibition of Justices Teresita J. highest court of the land at that time. Her being a litigant does not mean that she was
Leonardo-De Castro, Diosdado M. Peralta, Noel Gimenez Tijam, Francis H. free to conduct herself in less honorable manner than that expected of a lawyer or a
Jardeleza, Lucas P. Bersamin, and Samuel R. Martires. judge.16

Proceeding now to the substantive issue of this administrative matter: May Consequently, any errant behavior on the part of a lawyer and/or a judge, be it in
respondent be held administratively liable for her actions and public statements as their public or private activities, which tends to show said lawyer/judge deficient in
regards the quo warranto case against her during its pendency? moral character, honesty, probity or good demeanor, is sufficient to warrant
suspension or disbarment.17 Respondent should be reminded:
We answer in the affirmative. Of all classes and professions, the lawyer is most sacredly bound to uphold the laws,
as he is their sworn servant; and for him, of all men in the world, to repudiate and
First. This Court cannot subscribe to respondent's position that she was merely a override the laws, to trample them under foot and to ignore the very bonds of
party-litigant in the quo warranto case, not a counsel nor a judge, hence, should not society, argues recreancy to his position and office and sets a pernicious example to
be judged on the exacting standards expected of a member of the Bar or of the the insubordinate and dangerous elements of the body politic.
Court.
[T]he practice of law is a privilege burdened with conditions. Adherence to the rigid
Respondent argues that she had no obligation to be an impartial judge where she standards of mental fitness, maintenance of the highest degree of morality and
does not act as one. Also, she cannot be expected to be as circumspect with her faithful compliance with the rules of the legal profession are the conditions required
for remaining a member of good standing of the bar and for enjoying the privilege to media."24 In fact, sub judice rule finds support in the provision on indirect contempt
practice law. The Supreme Court, as guardian of the legal profession, has ultimate under Section 3, Rule 71 of the Rules of Court, to wit:
disciplinary power over attorneys. This authority to discipline its members is not Sec. 3. Indirect contempt to be punished after charge and hearing. - x x x, a person
only a right but a bounden duty as well x x x. That is why respect and fidelity to guilty of any of the following acts may be punished for indirect contempt:
the Court is demanded of its members.18 (Citations omitted and emphasis ours)
Second. Respondent argues that the public statements attributed to her must have xxxx
created a serious and imminent threat to the administration of justice to warrant
punishment. c) Any abuse of or any unlawful interference with the processes or proceedings of a
court not constituting direct contempt under section 1 of this Rule;
According to respondent, the public utterances in question did not create such effect
of a serious and imminent threat to the administration of justice; did not, in any way, d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or
prevent or delay the Court from rendering its judgment; and criticism and public degrade the administration of justice;
reaction remained within the bounds of proper debate and despite widespread
dissent, no violent protest erupted after the decision was promulgated. Further, xxxx
respondent avers that considering that the quo warranto case in itself was already As can be observed, discussions regarding sub judice often relates to contempt of
controversial and of transcendental importance, her public statements and actions court. In this regard, respondent correctly pointed out that the "clear and present
cannot be blamed for the natural attention that it gained from the public. danger" rule should be applied in determining whether, in a particular situation, the
court's contempt power should be exercised to maintain the independence and
Before proceeding to address these arguments, it is necessary, at this juncture, to integrity of the Judiciary, or the Constitutionally-protected freedom of speech should
discuss the concept of the sub judice rule for which respondent is being charged of be upheld. Indeed, in P/Supt. Marantan v. Atty. Diokno, et al.,25 the Court explained:
violating in this administrative case. The sub judice rule restricts comments and disclosures pertaining to the judicial
proceedings in order to avoid prejudging the issue. influencing the court, or
Sub judice is a Latin term which refers to matters under or before a judge or court; obstructing the administration of justice. A violation of this rule may render one
or matters under judicial consideration.19 In essence, the sub judicerule restricts liable for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court, x x x.
comments and disclosures pertaining to pending judicial proceedings. The restriction
applies to litigants and witnesses, the public in general, and most especially to xxxx
members of the Bar and the Bench.20
The proceedings for punishment of indirect contempt are criminal in nature. This
Historically, the sub judice rule is used by foreign courts to insulate members of the form of contempt is conduct that is directed against the dignity and authority of the
jury from being influenced by prejudicial publicity. 21 It was aimed to prevent court or a judge acting judicially; it is an act obstructing the administration of justice
comment and debate from exerting any influence on juries and prejudicing the which tends to bring the court into disrepute or disrespect. Intent is a necessary
positions of parties and witnesses in court proceedings. 22 Relatedly, in 2010, the late element in criminal contempt, and no one can be punished for a criminal contempt
Senator Miriam Defensor-Santiago, in filing Senate Bill No. 1852, also known as unless the evidence makes it clear that he intended to commit it.
the Judicial Right to Know Act, explained that sub judice is a foreign legal concept,
which originated and is applicable to countries who have adopted a trial by jury For a comment to be considered as contempt of court "it must really appear" that
system. She emphasized the difference between a jury system and the Philippine such does impede, interfere with and embarrass the administration of justice. What
court system, implying the inapplicability of the concept in our jurisdiction. is, thus, sought to be protected is the all important duty of the court to administer
justice in the decision of a pending case. The specific rationale for the sub
Acknowledging the fact that sub judice is a foreign concept, Justice Arturo Brion judice rule is that courts, in the decision of issues of fact and law should be immune
noted in a Separate Opinion that in our jurisdiction, the Rules of Court does not from every extraneous influence; that facts should be decided upon evidence
contain a specific provision imposing the sub judice rule.23 He, however, opined that produced in court; and that the determination of such facts should be uninfluenced
"the fact that the jury system is not adopted in this jurisdiction is not an argument by bias, prejudice or sympathies.
against our observance of the sub judice rule; justices and judges are no different
from members of the jury, they are not immune from the pervasive effects of The power of contempt is inherent in all courts in order to allow them to conduct
their business unhampered by publications and comments which tend to impair the
impartiality of their decisions or otherwise obstruct the administration of justice. As Rule 13.02 - A lawyer shall not make public statements in the media regarding a
important as the maintenance of freedom of speech, is the maintenance of the pending case tending to arouse public opinion for or against a party.
independence of the Judiciary. The "clear and present danger" rule may serve as an
aid in determining the proper constitutional boundary between these two rights. NEW CODE OF JUDICIAL CONDUCT FOR THE PIDLIPPINE
JUDICIARY
The "clear and present danger" rule means that the evil consequence of the comment
must be "extremely serious and the degree of imminence extremely high" before an CANON 1 - INDEPENDENCE
utterance can be punished. There must exist a clear and present danger that the
utterance will harm the administration of justice. Freedom of speech should not be Judicial independence is a pre-requisite to the rule of law and a fundamental
impaired through the exercise of the power of contempt of court unless there is no guarantee of a fair trial. A judge shall therefore uphold and exemplify judicial
doubt that the utterances in question make a serious and imminent threat to the independence in both its individual and institutional aspects.
administration of justice. It must constitute an imminent, not merely a likely,
threat.26 (Citations omitted) SECTION 3. Judges shall refrain from influencing in any manner the outcome of
From the foregoing, respondent may be correct in arguing that there must exist a litigation or dispute pending before any court or administrative agency.
"clear and present danger" to the administration of justice for statements or
utterances covered by the sub judice rule to be considered punishable under the rules SECTION 7. Judges shall encourage and uphold safeguards for the discharge of
of contempt. judicial duties in order to maintain and enhance the institutional and operational
independence of the judiciary.
The case at bar, however, is not a contempt proceeding. The Court, in this case is not
geared towards protecting itself from such prejudicial comments outside of court by SECTION 8. Judges shall exhibit and promote high standards of judicial conduct in
the exercise of its inherent contempt power. Rather, in this administrative matter, the order to reinforce public confidence in the judiciary, which is fundamental to the
Court is discharging its Constitutionally-mandated duty to discipline members of the maintenance of judicial independence.
Bar and judicial officers.
CANON 2 - INTEGRITY
As We have stated in Our decision in the quo warranto case, actions in violation of
the sub judice rule may be dealt with not only through contempt proceedings but Integrity is essentially not only to the proper discharge of the judicial office but also
also through administrative actions. This is because a lawyer speech is subject to to the personal demeanor of judges.
greater regulation for two significant reasons: one, because of the lawyer's
relationship to the judicial process; and two, the significant dangers that a lawyer's SECTION 1. Judges shall ensure that not only is their conduct above reproach, but
speech poses to the trial process.27 Hence, the Court En Banc resolved to treat this that it is perceived to be so in the view of a reasonable observer.
matter in this separate administrative action. 28 Indeed, this Court has the plenary
power to discipline erring lawyers through this kind of proceeding, aimed to purge SECTION 2. The behavior and conduct of judges must reaffirm the people's faith in
the law profession of unworthy members of the Bar and to preserve the nobility and the integrity of the judiciary. Justice must not merely be done but must also be seen
honor of the legal profession.29 to be done.

Thus, contrary to respondent's argument, the "clear and present danger" rule does CANON 3 - IMPARTIALITY
not find application in this case. What applies in this administrative matter is the
CPR and NCJC, which mandate the strict observance of the sub judice rule both Impartiality is essential to the proper discharge of the judicial office. It applies not
upon members of the Bar and the Bench, specifically: only to the decision itself but also to the process by which the decision is made.
CODE OF PROFESSIONAL RESPONSIBILITY
SECTION 2. Judges shall ensure that his or her conduct, both in and out of court,
CANON 13 - A LAWYER SHALL RELY UPON THE MERITS OF HIS CAUSE maintains and enhances the confidence of the public, the legal profession, and
AND REFRAIN FROM ANY IMPROPRIETY WHICH TENDS TO INFLUENCE, litigants in the impartiality of the judge and of the judiciary.
OR GIVES THE APPEARANCE OF INFLUENCING THE COURT.
SECTION 4. Judges shall not knowingly, while a proceeding is before or could
come before them, make any comment that might reasonably be expected to affect
the outcome of such proceeding or impair the manifest fairness of the process. Nor
shall judges make any comment in public or otherwise that might affect the fair trial
of any person or issue.

CANON 4 - PROPRIETY Corpuz v. People

SECTION 2. As a subject of constant public scrutiny, judges must accept personal

restrictions that might be viewed as burdensome by the ordinary citizen and should Republic of the Philippines
do so freely and willingly. In particular, judges shall conduct themselves in a way SUPREME COURT
that is consistent with the dignity of the judicial office. Baguio City
SECTION 6. Judges, like any other Citizen, are entitled to freedom of expression,
belief, association and assembly, but in exercising such rights, they shall always EN BANC
conduct themselves in such a manner as to preserve the dignity of the judicial office
and the impartiality and independence of the judiciary. G.R. No. 180016               April 29, 2014
Besides, as We have stated in the quo warranto case decision, the Court takes
judicial notice of the undeniably manifest detrimental effect of this open and blatant LITO CORPUZ, Petitioner, 
disregard of the sub judice rule, which is a clear manifestation of the evil sought to vs.
be prevented by the said rule, i.e., "to avoid prejudging the issue, influencing the PEOPLE OF THE PHILIPPINES, Respondent.
court, or obstructing the administration of justice."30 In the said decision, We cited
the May 2, 2018 issue of the Philippine Daily Inquirer, wherein certain individuals
from different sectors of the society, lawyers included, not only pre-judged the case DECISION
but worse, accused certain Members of the Court of being unable to act with justice,
and threatening that the people will not accept any decision of such Members of the PERALTA, J.:
Court as the same is tainted by gross injustice. To be sure, these statements do not
only "tend to" but categorically force and attempt to influence the deliberative and
This is to resolve the Petition for Review on Certiorari, under Rule 45 of the Rules
decision-making process of this Court.31
of Court, dated November 5, 2007, of petitioner Lito Corpuz (petitioner), seeking to
reverse and set aside the Decision1 dated March 22, 2007 and Resolution2 dated
Albeit advancing explanations of her actions, respondent undoubtedly violated the
September 5, 2007 of the Court of Appeals (CA), which affirmed with modification
above-cited provisions of the CPR and the NCJC. The Court, in the quo
the Decision3 dated July 30, 2004 of the Regional Trial Court (RTC), Branch 46,
warranto case, enumerated some of the instances where respondent openly and
San Fernando City, finding the petitioner guilty beyond reasonable doubt of the
blatantly violated the sub judice rule:32
crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of the Revised
Penal Code.

The antecedent facts follow.

Private complainant Danilo Tangcoy and petitioner met at the Admiral Royale
Casino in Olongapo City sometime in 1990. Private complainant was then engaged
in the business of lending money to casino players and, upon hearing that the former
had some pieces of jewelry for sale, petitioner approached him on May 2, 1991 at
the same casino and offered to sell the said pieces of jewelry on commission basis.
Private complainant agreed, and as a consequence, he turned over to petitioner the
following items: an 18k diamond ring for men; a woman's bracelet; one (1) men's
necklace and another men's bracelet, with an aggregate value of ₱98,000.00, as However, he admitted obtaining a loan from Balajadia sometime in 1989 for which
evidenced by a receipt of even date. They both agreed that petitioner shall remit the he was made to sign a blank receipt. He claimed that the same receipt was then
proceeds of the sale, and/or, if unsold, to return the same items, within a period of 60 dated May 2, 1991 and used as evidence against him for the supposed agreement to
days. The period expired without petitioner remitting the proceeds of the sale or sell the subject pieces of jewelry, which he did not even see.
returning the pieces of jewelry. When private complainant was able to meet
petitioner, the latter promised the former that he will pay the value of the said items After trial, the RTC found petitioner guilty beyond reasonable doubt of the crime
entrusted to him, but to no avail. charged in the Information. The dispositive portion of the decision states:

Thus, an Information was filed against petitioner for the crime of estafa, which reads WHEREFORE, finding accused LITO CORPUZ GUILTY beyond reasonable doubt
as follows: of the felony of Estafa under Article 315, paragraph one (1), subparagraph (b) of the
Revised Penal Code;
That on or about the fifth (5th) day of July 1991, in the City of Olongapo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named there being no offsetting generic aggravating nor ordinary mitigating circumstance/s
accused, after having received from one Danilo Tangcoy, one (1) men's diamond to vary the penalty imposable;
ring, 18k, worth ₱45,000.00; one (1) three-baht men's bracelet, 22k, worth
₱25,000.00; one (1) two-baht ladies' bracelet, 22k, worth ₱12,000.00, or in the total
amount of Ninety-Eight Thousand Pesos (₱98,000.00), Philippine currency, under accordingly, the accused is hereby sentenced to suffer the penalty of deprivation of
expressed obligation on the part of said accused to remit the proceeds of the sale of liberty consisting of an imprisonment under the Indeterminate Sentence Law of
the said items or to return the same, if not sold, said accused, once in possession of FOUR (4) YEARS AND TWO (2) MONTHS of Prision Correccional in its medium
the said items, with intent to defraud, and with unfaithfulness and abuse of period AS MINIMUM, to FOURTEEN (14) YEARS AND EIGHT (8) MONTHS of
confidence, and far from complying with his aforestated obligation, did then and Reclusion Temporal in its minimum period AS MAXIMUM; to indemnify private
there wilfully, unlawfully and feloniously misappropriate, misapply and convert to complainant Danilo Tangcoy the amount of ₱98,000.00 as actual damages, and to
his own personal use and benefit the aforesaid jewelries (sic) or the proceeds of the pay the costs of suit.
sale thereof, and despite repeated demands, the accused failed and refused to return
the said items or to remit the amount of Ninety- Eight Thousand Pesos SO ORDERED.
(₱98,000.00), Philippine currency, to the damage and prejudice of said Danilo
Tangcoy in the aforementioned amount. The case was elevated to the CA, however, the latter denied the appeal of petitioner
and affirmed the decision of the RTC, thus:
CONTRARY TO LAW.
WHEREFORE, the instant appeal is DENIED. The assailed Judgment dated July 30,
On January 28, 1992, petitioner, with the assistance of his counsel, entered a plea of 2004 of the RTC of San Fernando City (P), Branch 46, is hereby AFFIRMED with
not guilty. Thereafter, trial on the merits ensued. MODIFICATION on the imposable prison term, such that accused-appellant shall
suffer the indeterminate penalty of 4 years and 2 months of prision correccional, as
The prosecution, to prove the above-stated facts, presented the lone testimony of minimum, to 8 years of prision mayor, as maximum, plus 1 year for each additional
Danilo Tangcoy. On the other hand, the defense presented the lone testimony of ₱10,000.00, or a total of 7 years. The rest of the decision stands.
petitioner, which can be summarized, as follows:
SO ORDERED.
Petitioner and private complainant were collecting agents of Antonio Balajadia, who
is engaged in the financing business of extending loans to Base employees. For Petitioner, after the CA denied his motion for reconsideration, filed with this Court
every collection made, they earn a commission. Petitioner denied having transacted the present petition stating the following grounds:
any business with private complainant.
A. THE HONORABLE COURT OF APPEALS ERRED IN CONFIRMING THE In its Comment dated May 5, 2008, the Office of the Solicitor General (OSG) stated
ADMISSION AND APPRECIATION BY THE LOWER COURT OF the following counter-arguments:
PROSECUTION EVIDENCE, INCLUDING ITS EXHIBITS, WHICH ARE MERE
MACHINE COPIES, AS THIS VIOLATES THE BEST EVIDENCE RULE; The exhibits were properly admitted inasmuch as petitioner failed to object to their
admissibility.
B. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT THE CRIMINAL INFORMATION FOR The information was not defective inasmuch as it sufficiently established the
ESTAFA WAS NOT FATALLY DEFECTIVE ALTHOUGH THE SAME DID designation of the offense and the acts complained of.
NOT CHARGE THE OFFENSE UNDER ARTICLE 315 (1) (B) OF THE
REVISED PENAL CODE IN THAT -
The prosecution sufficiently established all the elements of the crime charged.
1. THE INFORMATION DID NOT FIX A PERIOD WITHIN WHICH
THE SUBJECT [PIECES OF] JEWELRY SHOULD BE RETURNED, IF This Court finds the present petition devoid of any merit.
UNSOLD, OR THE MONEY TO BE REMITTED, IF SOLD;
The factual findings of the appellate court generally are conclusive, and carry even
2. THE DATE OF THE OCCURRENCE OF THE CRIME ALLEGED IN more weight when said court affirms the findings of the trial court, absent any
THE INFORMATION AS OF 05 JULY 1991 WAS MATERIALLY showing that the findings are totally devoid of support in the records, or that they are
DIFFERENT FROM THE ONE TESTIFIED TO BY THE PRIVATE so glaringly erroneous as to constitute grave abuse of discretion. 4 Petitioner is of the
COMPLAINANT WHICH WAS 02 MAY 1991; opinion that the CA erred in affirming the factual findings of the trial court. He now
comes to this Court raising both procedural and substantive issues.
C. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE
LOWER COURT'S FINDING THAT DEMAND TO RETURN THE SUBJECT According to petitioner, the CA erred in affirming the ruling of the trial court,
[PIECES OF] JEWELRY, IF UNSOLD, OR REMIT THE PROCEEDS, IF SOLD – admitting in evidence a receipt dated May 2, 1991 marked as Exhibit "A" and its
AN ELEMENT OF THE OFFENSE – WAS PROVED; submarkings, although the same was merely a photocopy, thus, violating the best
evidence rule. However, the records show that petitioner never objected to the
admissibility of the said evidence at the time it was identified, marked and testified
D. THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE upon in court by private complainant. The CA also correctly pointed out that
LOWER COURT'S FINDING THAT THE PROSECUTION'S CASE WAS petitioner also failed to raise an objection in his Comment to the prosecution's
PROVEN BEYOND REASONABLE DOUBT ALTHOUGH - formal offer of evidence and even admitted having signed the said receipt. The
established doctrine is that when a party failed to interpose a timely objection to
1. THE PRIVATE COMPLAINANT TESTIFIED ON TWO (2) evidence at the time they were offered in evidence, such objection shall be
VERSIONS OF THE INCIDENT; considered as waived.5

2. THE VERSION OF THE PETITIONER – ACCUSED IS MORE Another procedural issue raised is, as claimed by petitioner, the formally defective
STRAIGHTFORWARD AND LOGICAL, CONSISTENT WITH Information filed against him. He contends that the Information does not contain the
HUMAN EXPERIENCE; period when the pieces of jewelry were supposed to be returned and that the date
when the crime occurred was different from the one testified to by private
3. THE EQUIPOISE RULE WAS NOT APPRECIATED IN AND complainant. This argument is untenable. The CA did not err in finding that the
APPLIED TO THIS CASE; Information was substantially complete and in reiterating that objections as to the
matters of form and substance in the Information cannot be made for the first time
on appeal. It is true that the gravamen of the crime of estafa under Article 315,
4. PENAL STATUTES ARE STRICTLY CONSTRUED AGAINST THE paragraph 1, subparagraph (b) of the RPC is the appropriation or conversion of
STATE. money or property received to the prejudice of the owner6 and that the time of
occurrence is not a material ingredient of the crime, hence, the exclusion of the guaranteed by a bond; or by denying having received such money, goods, or other
period and the wrong date of the occurrence of the crime, as reflected in the property; x x x
Information, do not make the latter fatally defective. The CA ruled:
The elements of estafa with abuse of confidence are as follows: (a) that money,
x x x An information is legally viable as long as it distinctly states the statutory goods or other personal property is received by the offender in trust, or on
designation of the offense and the acts or omissions constitutive thereof. Then commission, or for administration, or under any other obligation involving the duty
Section 6, Rule 110 of the Rules of Court provides that a complaint or information is to make delivery of, or to return the same; (b) that there be misappropriation or
sufficient if it states the name of the accused; conversion of such money or property by the offender or denial on his part of such
receipt; (c) that such misappropriation or conversion or denial is to the prejudice of
the designation of the offense by the statute; the acts or omissions complained of as another; and (d) that there is a demand made by the offended party on the offender. 8
constituting the offense; the name of the offended party; the approximate time of the
commission of the offense, and the place wherein the offense was committed. In the Petitioner argues that the last element, which is, that there is a demand by the
case at bar, a reading of the subject Information shows compliance with the offended party on the offender, was not proved. This Court disagrees. In his
foregoing rule. That the time of the commission of the offense was stated as " on or testimony, private complainant narrated how he was able to locate petitioner after
about the fifth (5th) day of July, 1991" is not likewise fatal to the prosecution's cause almost two (2) months from the time he gave the pieces of jewelry and asked
considering that Section 11 of the same Rule requires a statement of the precise time petitioner about the same items with the latter promising to pay them. Thus:
only when the same is a material ingredient of the offense. The gravamen of the
crime of estafa under Article 315, paragraph 1 (b) of the Revised Penal Code (RPC) PROS. MARTINEZ
is the appropriation or conversion of money or property received to the prejudice of
the offender. Thus, aside from the fact that the date of the commission thereof is not
an essential element of the crime herein charged, the failure of the prosecution to q Now, Mr. Witness, this was executed on 2 May 1991, and this transaction could
specify the exact date does not render the Information ipso facto defective. have been finished on 5 July 1991, the question is what happens (sic) when the
Moreover, the said date is also near the due date within which accused-appellant deadline came?
should have delivered the proceeds or returned the said [pieces of jewelry] as
testified upon by Tangkoy, hence, there was sufficient compliance with the rules. a I went looking for him, sir.
Accused-appellant, therefore, cannot now be allowed to claim that he was not
properly apprised of the charges proferred against him. 7 q For whom?

It must be remembered that petitioner was convicted of the crime of Estafa under a Lito Corpuz, sir.
Article 315, paragraph 1 (b) of the RPC, which reads:

q Were you able to look (sic) for him?

ART. 315. Swindling (estafa). – Any person who shall defraud another by any of the
means mentioned hereinbelow.
a I looked for him for a week, sir.
1. With unfaithfulness or abuse of confidence, namely:
q Did you know his residence?
xxxx
a Yes, sir.
(b) By misappropriating or converting, to the prejudice of another, money, goods, or
any other personal property received by the offender in trust or on commission, or q Did you go there?
for administration, or under any other obligation involving the duty to make delivery
of or to return the same, even though such obligation be totally or partially a Yes, sir.
q Did you find him? interpreted in its general meaning as to include both written and oral demand. Thus,
the failure of the prosecution to present a written demand as evidence is not fatal.
a No, sir.
In Tubb v. People, where the complainant merely verbally inquired about the money
q Were you able to talk to him since 5 July 1991? entrusted to the accused, we held that the query was tantamount to a demand, thus:

a I talked to him, sir. x x x [T]he law does not require a demand as a condition precedent to the existence
of the crime of embezzlement. It so happens only that failure to account, upon
demand for funds or property held in trust, is circumstantial evidence of
q How many times? misappropriation. The same way, however, be established by other proof, such as
that introduced in the case at bar.14
a Two times, sir.
In view of the foregoing and based on the records, the prosecution was able to prove
q What did you talk (sic) to him? the existence of all the elements of the crime. Private complainant gave petitioner
the pieces of jewelry in trust, or on commission basis, as shown in the receipt dated
a About the items I gave to (sic) him, sir. May 2, 1991 with an obligation to sell or return the same within sixty (60) days, if
unsold. There was misappropriation when petitioner failed to remit the proceeds of
those pieces of jewelry sold, or if no sale took place, failed to return the same pieces
q Referring to Exhibit A-2? of jewelry within or after the agreed period despite demand from the private
complainant, to the prejudice of the latter.
a Yes, sir, and according to him he will take his obligation and I asked him where
the items are and he promised me that he will pay these amount, sir. Anent the credibility of the prosecution's sole witness, which is questioned by
petitioner, the same is unmeritorious. Settled is the rule that in assessing the
q Up to this time that you were here, were you able to collect from him partially or credibility of witnesses, this Court gives great respect to the evaluation of the trial
full? court for it had the unique opportunity to observe the demeanor of witnesses and
their deportment on the witness stand, an opportunity denied the appellate courts,
which merely rely on the records of the case. 15 The assessment by the trial court is
a No, sir.9
even conclusive and binding if not tainted with arbitrariness or oversight of some
fact or circumstance of weight and influence, especially when such finding is
No specific type of proof is required to show that there was demand. 10 Demand need affirmed by the CA.16 Truth is established not by the number of witnesses, but by the
not even be formal; it may be verbal.11 The specific word "demand" need not even quality of their testimonies, for in determining the value and credibility of evidence,
be used to show that it has indeed been made upon the person charged, since even a the witnesses are to be weighed not numbered.17
mere query as to the whereabouts of the money [in this case, property], would be
tantamount to a demand.12 As expounded in Asejo v. People:13
As regards the penalty, while this Court's Third Division was deliberating on this
case, the question of the continued validity of imposing on persons convicted of
With regard to the necessity of demand, we agree with the CA that demand under crimes involving property came up. The legislature apparently pegged these
this kind of estafa need not be formal or written. The appellate court observed that penalties to the value of the money and property in 1930 when it enacted the
the law is silent with regard to the form of demand in estafa under Art. 315 1(b), Revised Penal Code. Since the members of the division reached no unanimity on
thus: this question and since the issues are of first impression, they decided to refer the
case to the Court en banc for consideration and resolution. Thus, several amici
When the law does not qualify, We should not qualify. Should a written demand be curiae were invited at the behest of the Court to give their academic opinions on the
necessary, the law would have stated so. Otherwise, the word "demand" should be matter. Among those that graciously complied were Dean Jose Manuel Diokno,
Dean Sedfrey M. Candelaria, Professor Alfredo F. Tadiar, the Senate President, and
the Speaker of the House of Representatives. The parties were later heard on oral Again, the court is tasked to inform the Chief Executive, this time, of the need for a
arguments before the Court en banc, with Atty. Mario L. Bautista appearing as legislation to provide the proper penalty.
counsel de oficio of the petitioner.
In his book, Commentaries on the Revised Penal Code, 19 Guillermo B. Guevara
After a thorough consideration of the arguments presented on the matter, this Court opined that in Article 5, the duty of the court is merely to report to the Chief
finds the following: Executive, with a recommendation for an amendment or modification of the legal
provisions which it believes to be harsh. Thus:
There seems to be a perceived injustice brought about by the range of penalties that
the courts continue to impose on crimes against property committed today, based on This provision is based under the legal maxim "nullum crimen, nulla poena sige
the amount of damage measured by the value of money eighty years ago in 1932. lege," that is, that there can exist no punishable act except those previously and
However, this Court cannot modify the said range of penalties because that would specifically provided for by penal statute.
constitute judicial legislation. What the legislature's perceived failure in amending
the penalties provided for in the said crimes cannot be remedied through this Court's No matter how reprehensible an act is, if the law-making body does not deem it
decisions, as that would be encroaching upon the power of another branch of the necessary to prohibit its perpetration with penal sanction, the Court of justice will be
government. This, however, does not render the whole situation without any entirely powerless to punish such act.
remedy. It can be appropriately presumed that the framers of the Revised Penal
Code (RPC) had anticipated this matter by including Article 5, which reads:
Under the provisions of this article the Court cannot suspend the execution of a
sentence on the ground that the strict enforcement of the provisions of this Code
ART. 5. Duty of the court in connection with acts which should be repressed but would cause excessive or harsh penalty. All that the Court could do in such
which are not covered by the law, and in cases of excessive penalties. - Whenever a eventuality is to report the matter to the Chief Executive with a recommendation for
court has knowledge of any act which it may deem proper to repress and which is an amendment or modification of the legal provisions which it believes to be harsh. 20
not punishable by law, it shall render the proper decision, and shall report to the
Chief Executive, through the Department of Justice, the reasons which induce the
court to believe that said act should be made the subject of penal legislation. Anent the non-suspension of the execution of the sentence, retired Chief Justice
Ramon C. Aquino and retired Associate Justice Carolina C. Griño-Aquino, in their
book, The Revised Penal Code,21 echoed the above-cited commentary, thus:
In the same way, the court shall submit to the Chief Executive, through the
Department of Justice, such statement as may be deemed proper, without suspending
the execution of the sentence, when a strict enforcement of the provisions of this The second paragraph of Art. 5 is an application of the humanitarian principle that
Code would result in the imposition of a clearly excessive penalty, taking into justice must be tempered with mercy. Generally, the courts have nothing to do with
consideration the degree of malice and the injury caused by the offense. 18 the wisdom or justness of the penalties fixed by law. "Whether or not the penalties
prescribed by law upon conviction of violations of particular statutes are too severe
or are not severe enough, are questions as to which commentators on the law may
The first paragraph of the above provision clearly states that for acts bourne out of a fairly differ; but it is the duty of the courts to enforce the will of the legislator in all
case which is not punishable by law and the court finds it proper to repress, the cases unless it clearly appears that a given penalty falls within the prohibited class of
remedy is to render the proper decision and thereafter, report to the Chief Executive, excessive fines or cruel and unusual punishment." A petition for clemency should be
through the Department of Justice, the reasons why the same act should be the addressed to the Chief Executive.22
subject of penal legislation. The premise here is that a deplorable act is present but is
not the subject of any penal legislation, thus, the court is tasked to inform the Chief
Executive of the need to make that act punishable by law through legislation. The There is an opinion that the penalties provided for in crimes against property be
second paragraph is similar to the first except for the situation wherein the act is based on the current inflation rate or at the ratio of ₱1.00 is equal to ₱100.00 .
already punishable by law but the corresponding penalty is deemed by the court as However, it would be dangerous as this would result in uncertainties, as opposed to
excessive. The remedy therefore, as in the first paragraph is not to suspend the the definite imposition of the penalties. It must be remembered that the economy
execution of the sentence but to submit to the Chief Executive the reasons why the fluctuates and if the proposed imposition of the penalties in crimes against property
court considers the said penalty to be non-commensurate with the act committed. be adopted, the penalties will not cease to change, thus, making the RPC, a self-
amending law. Had the framers of the RPC intended that to be so, it should have 5. Arresto mayor to its full extent, if such value is over 5 pesos but does
provided the same, instead, it included the earlier cited Article 5 as a remedy. It is not exceed 50 pesos.
also improper to presume why the present legislature has not made any moves to
amend the subject penalties in order to conform with the present times. For all we 6. Arresto mayor in its minimum and medium periods, if such value does
know, the legislature intends to retain the same penalties in order to deter the further not exceed 5 pesos.
commission of those punishable acts which have increased tremendously through
the years. In fact, in recent moves of the legislature, it is apparent that it aims to
broaden the coverage of those who violate penal laws. In the crime of Plunder, from 7. Arresto menor or a fine not exceeding 200 pesos, if the theft is
its original minimum amount of ₱100,000,000.00 plundered, the legislature lowered committed under the circumstances enumerated in paragraph 3 of the next
it to ₱50,000,000.00. In the same way, the legislature lowered the threshold amount preceding article and the value of the thing stolen does not exceed 5 pesos.
upon which the Anti-Money Laundering Act may apply, from ₱1,000,000.00 to If such value exceeds said amount, the provision of any of the five
₱500,000.00. preceding subdivisions shall be made applicable.

It is also worth noting that in the crimes of Theft and Estafa, the present penalties do 8. Arresto menor in its minimum period or a fine not exceeding 50 pesos,
not seem to be excessive compared to the proposed imposition of their when the value of the thing stolen is not over 5 pesos, and the offender
corresponding penalties. In Theft, the provisions state that: shall have acted under the impulse of hunger, poverty, or the difficulty of
earning a livelihood for the support of himself or his family.
Art. 309. Penalties. — Any person guilty of theft shall be punished by:
In a case wherein the value of the thing stolen is ₱6,000.00, the above-provision
states that the penalty is prision correccional in its minimum and medium periods (6
1. The penalty of prision mayor in its minimum and medium periods, if months and 1 day to 4 years and 2 months). Applying the proposal, if the value of
the value of the thing stolen is more than 12,000 pesos but does not exceed the thing stolen is ₱6,000.00, the penalty is imprisonment of arresto mayor in its
22,000 pesos, but if the value of the thing stolen exceeds the latter amount medium period to prision correccional minimum period (2 months and 1 day to 2
the penalty shall be the maximum period of the one prescribed in this years and 4 months). It would seem that under the present law, the penalty imposed
paragraph, and one year for each additional ten thousand pesos, but the is almost the same as the penalty proposed. In fact, after the application of the
total of the penalty which may be imposed shall not exceed twenty years. Indeterminate Sentence Law under the existing law, the minimum penalty is still
In such cases, and in connection with the accessory penalties which may lowered by one degree; hence, the minimum penalty is arresto mayor in its medium
be imposed and for the purpose of the other provisions of this Code, the period to maximum period (2 months and 1 day to 6 months), making the offender
penalty shall be termed prision mayor or reclusion temporal, as the case qualified for pardon or parole after serving the said minimum period and may even
may be. apply for probation. Moreover, under the proposal, the minimum penalty after
applying the Indeterminate Sentence Law is arresto menor in its maximum period to
2. The penalty of prision correccional in its medium and maximum arresto mayor in its minimum period (21 days to 2 months) is not too far from the
periods, if the value of the thing stolen is more than 6,000 pesos but does minimum period under the existing law. Thus, it would seem that the present penalty
not exceed 12,000 pesos. imposed under the law is not at all excessive. The same is also true in the crime of
Estafa.23
3. The penalty of prision correccional in its minimum and medium
periods, if the value of the property stolen is more than 200 pesos but does Moreover, if we apply the ratio of 1:100, as suggested to the value of the thing
not exceed 6,000 pesos. stolen in the crime of Theft and the damage caused in the crime of Estafa, the gap
between the minimum and the maximum amounts, which is the basis of determining
4. Arresto mayor in its medium period to prision correccional in its the proper penalty to be imposed, would be too wide and the penalty imposable
minimum period, if the value of the property stolen is over 50 pesos but would no longer be commensurate to the act committed and the value of the thing
does not exceed 200 pesos. stolen or the damage caused:
I. Article 309, or the penalties for the crime of Theft, the value would be modified 4th. ₱200.00 will become ₱20,000.00, punishable by arresto mayor
but the penalties are not changed: maximum (4 months and 1 day to 6 months).

1. ₱12,000.00 to ₱22,000.00 will become ₱1,200,000.00 to An argument raised by Dean Jose Manuel I. Diokno, one of our esteemed amici
₱2,200,000.00, punished by prision mayor minimum to prision mayor curiae, is that the incremental penalty provided under Article 315 of the RPC
medium (6 years and 1 day to 10 years). violates the Equal Protection Clause.

2. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to ₱1,200,000.00, The equal protection clause requires equality among equals, which is determined
punished by prision correccional medium and to prision correccional according to a valid classification. The test developed by jurisprudence here and
maximum (2 years, 4 months and 1 day to 6 years).24 yonder is that of reasonableness,27 which has four requisites:

3. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00, (1) The classification rests on substantial distinctions;
punishable by prision correccional minimum to prision correccional
medium (6 months and 1 day to 4 years and 2 months). (2) It is germane to the purposes of the law;

4. ₱50.00 to ₱200.00 will become ₱5,000.00 to ₱20,000.00, punishable (3) It is not limited to existing conditions only; and
by arresto mayor medium to prision correccional minimum (2 months and
1 day to 2 years and 4 months).
(4) It applies equally to all members of the same class. 28
5. ₱5.00 to ₱50.00 will become ₱500.00 to ₱5,000.00, punishable by
arresto mayor (1 month and 1 day to 6 months). According to Dean Diokno, the Incremental Penalty Rule (IPR) does not rest on
substantial distinctions as ₱10,000.00 may have been substantial in the past, but it is
not so today, which violates the first requisite; the IPR was devised so that those
6. ₱5.00 will become ₱500.00, punishable by arresto mayor minimum to who commit estafa involving higher amounts would receive heavier penalties;
arresto mayor medium. however, this is no longer achieved, because a person who steals ₱142,000.00
would receive the same penalty as someone who steals hundreds of millions, which
x x x x. violates the second requisite; and, the IPR violates requisite no. 3, considering that
the IPR is limited to existing conditions at the time the law was promulgated,
II. Article 315, or the penalties for the crime of Estafa, the value would also be conditions that no longer exist today.
modified but the penalties are not changed, as follows:
Assuming that the Court submits to the argument of Dean Diokno and declares the
1st. ₱12,000.00 to ₱22,000.00, will become ₱1,200,000.00 to incremental penalty in Article 315 unconstitutional for violating the equal protection
₱2,200,000.00, punishable by prision correccional maximum to prision clause, what then is the penalty that should be applied in case the amount of the
mayor minimum (4 years, 2 months and 1 day to 8 years).25 thing subject matter of the crime exceeds ₱22,000.00? It seems that the proposition
poses more questions than answers, which leads us even more to conclude that the
appropriate remedy is to refer these matters to Congress for them to exercise their
2nd. ₱6,000.00 to ₱12,000.00 will become ₱600,000.00 to inherent power to legislate laws.
₱1,200,000.00, punishable by prision correccional minimum to prision
correccional medium (6 months and 1 day to 4 years and 2 months). 26
Even Dean Diokno was of the opinion that if the Court declares the IPR
unconstitutional, the remedy is to go to Congress. Thus:
3rd. ₱200.00 to ₱6,000.00 will become ₱20,000.00 to ₱600,000.00,
punishable by arresto mayor maximum to prision correccional minimum
(4 months and 1 day to 2 years and 4 months). xxxx
JUSTICE PERALTA: JUSTICE PERALTA:

Now, your position is to declare that the incremental penalty should be struck down Ah ...
as unconstitutional because it is absurd.
DEAN DIOKNO:
DEAN DIOKNO:
If the Court will say that they can go beyond the literal wording of the law...
Absurd, it violates equal protection, Your Honor, and cruel and unusual punishment.
JUSTICE PERALTA:
JUSTICE PERALTA:
But if we de ... (interrupted)
Then what will be the penalty that we are going to impose if the amount is more
than Twenty-Two Thousand (₱22,000.00) Pesos. DEAN DIOKNO:

DEAN DIOKNO: ....then....

Well, that would be for Congress to ... if this Court will declare the incremental JUSTICE PERALTA:
penalty rule unconstitutional, then that would ... the void should be filled by
Congress.
Ah, yeah. But if we declare the incremental penalty as unsconstitutional, the court
cannot fix the amount ...
JUSTICE PERALTA:
DEAN DIOKNO:
But in your presentation, you were fixing the amount at One Hundred Thousand
(₱100,000.00) Pesos ...
No, Your Honor.
DEAN DIOKNO:
JUSTICE PERALTA:
Well, my presen ... (interrupted)
... as the equivalent of one, as an incremental penalty in excess of Twenty-Two
Thousand (₱22,000.00) Pesos.
JUSTICE PERALTA:
DEAN DIOKNO:
For every One Hundred Thousand (₱100,000.00) Pesos in excess of Twenty-Two
Thousand (₱22,000.00) Pesos you were suggesting an additional penalty of one (1)
year, did I get you right? No, Your Honor.

DEAN DIOKNO: JUSTICE PERALTA:

Yes, Your Honor, that is, if the court will take the route of statutory interpretation. The Court cannot do that.
DEAN DIOKNO: x x x x29

Could not be. Dean Diokno also contends that Article 315 of the Revised Penal Code constitutes
cruel and unusual punishment. Citing Solem v. Helm,30 Dean Diokno avers that the
JUSTICE PERALTA: United States Federal Supreme Court has expanded the application of a similar
Constitutional provision prohibiting cruel and unusual punishment, to the duration
of the penalty, and not just its form. The court therein ruled that three things must be
The only remedy is to go to Congress... done to decide whether a sentence is proportional to a specific crime, viz.; (1)
Compare the nature and gravity of the offense, and the harshness of the penalty; (2)
DEAN DIOKNO: Compare the sentences imposed on other criminals in the same jurisdiction, i.e.,
whether more serious crimes are subject to the same penalty or to less serious
Yes, Your Honor. penalties; and (3) Compare the sentences imposed for commission of the same crime
in other jurisdictions.

JUSTICE PERALTA:
However, the case of Solem v. Helm cannot be applied in the present case, because
in Solem what respondent therein deemed cruel was the penalty imposed by the state
... and determine the value or the amount. court of South Dakota after it took into account the latter’s recidivist statute and not
the original penalty for uttering a "no account" check. Normally, the maximum
DEAN DIOKNO: punishment for the crime would have been five years imprisonment and a $5,000.00
fine. Nonetheless, respondent was sentenced to life imprisonment without the
possibility of parole under South Dakota’s recidivist statute because of his six prior
Yes, Your Honor.
felony convictions. Surely, the factual antecedents of Solem are different from the
present controversy.
JUSTICE PERALTA:
With respect to the crime of Qualified Theft, however, it is true that the imposable
That will be equivalent to the incremental penalty of one (1) year in excess of penalty for the offense is high. Nevertheless, the rationale for the imposition of a
Twenty-Two Thousand (₱22,000.00) Pesos. higher penalty against a domestic servant is the fact that in the commission of the
crime, the helper will essentially gravely abuse the trust and confidence reposed
DEAN DIOKNO: upon her by her employer. After accepting and allowing the helper to be a member
of the household, thus entrusting upon such person the protection and safekeeping of
the employer’s loved ones and properties, a subsequent betrayal of that trust is so
Yes, Your Honor.
repulsive as to warrant the necessity of imposing a higher penalty to deter the
commission of such wrongful acts.
JUSTICE PERALTA:
There are other crimes where the penalty of fine and/or imprisonment are dependent
The amount in excess of Twenty-Two Thousand (₱22,000.00) Pesos. on the subject matter of the crime and which, by adopting the proposal, may create
serious implications. For example, in the crime of Malversation, the penalty imposed
Thank you, Dean. depends on the amount of the money malversed by the public official, thus:

DEAN DIOKNO: Art. 217. Malversation of public funds or property; Presumption of malversation. —
Any public officer who, by reason of the duties of his office, is accountable for
public funds or property, shall appropriate the same or shall take or misappropriate
Thank you. or shall consent, through abandonment or negligence, shall permit any other person
to take such public funds, or property, wholly or partially, or shall otherwise be The said inequity is also apparent in the crime of Robbery with force upon things
guilty of the misappropriation or malversation of such funds or property, shall (inhabited or uninhabited) where the value of the thing unlawfully taken and the act
suffer: of unlawful entry are the bases of the penalty imposable, and also, in Malicious
Mischief, where the penalty of imprisonment or fine is dependent on the cost of the
1. The penalty of prision correccional in its medium and maximum damage caused.
periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos. In Robbery with force upon things (inhabited or uninhabited), if we increase the
value of the thing unlawfully taken, as proposed in the ponencia, the sole basis of
2. The penalty of prision mayor in its minimum and medium periods, if the penalty will now be the value of the thing unlawfully taken and no longer the
the amount involved is more than two hundred pesos but does not exceed element of force employed in entering the premises. It may likewise cause an
six thousand pesos. inequity between the crime of Qualified Trespass to Dwelling under Article 280, and
this kind of robbery because the former is punishable by prision correccional in its
medium and maximum periods (2 years, 4 months and 1 day to 6 years) and a fine
3. The penalty of prision mayor in its maximum period to reclusion not exceeding ₱1,000.00 (₱100,000.00 now if the ratio is 1:100) where entrance to
temporal in its minimum period, if the amount involved is more than six the premises is with violence or intimidation, which is the main justification of the
thousand pesos but is less than twelve thousand pesos. penalty. Whereas in the crime of Robbery with force upon things, it is punished with
a penalty of prision mayor (6 years and 1 day to 12 years) if the intruder is unarmed
4. The penalty of reclusion temporal, in its medium and maximum periods, without the penalty of Fine despite the fact that it is not merely the illegal entry that
if the amount involved is more than twelve thousand pesos but is less than is the basis of the penalty but likewise the unlawful taking.
twenty-two thousand pesos. If the amount exceeds the latter, the penalty
shall be reclusion temporal in its maximum period to reclusion perpetua. Furthermore, in the crime of Other Mischiefs under Article 329, the highest penalty
that can be imposed is arresto mayor in its medium and maximum periods (2 months
In all cases, persons guilty of malversation shall also suffer the penalty of perpetual and 1 day to 6 months) if the value of the damage caused exceeds ₱1,000.00, but
special disqualification and a fine equal to the amount of the funds malversed or under the proposal, the value of the damage will now become ₱100,000.00 (1:100),
equal to the total value of the property embezzled. and still punishable by arresto mayor (1 month and 1 day to 6 months). And, if the
value of the damaged property does not exceed ₱200.00, the penalty is arresto
The failure of a public officer to have duly forthcoming any public funds or property menor or a fine of not less than the value of the damage caused and not more than
with which he is chargeable, upon demand by any duly authorized officer, shall be ₱200.00, if the amount involved does not exceed ₱200.00 or cannot be estimated.
prima facie evidence that he has put such missing funds or property to personal use. Under the proposal, ₱200.00 will now become ₱20,000.00, which simply means
that the fine of ₱200.00 under the existing law will now become ₱20,000.00. The
amount of Fine under this situation will now become excessive and afflictive in
The above-provisions contemplate a situation wherein the Government loses money nature despite the fact that the offense is categorized as a light felony penalized with
due to the unlawful acts of the offender. Thus, following the proposal, if the amount a light penalty under Article 26 of the RPC.33 Unless we also amend Article 26 of
malversed is ₱200.00 (under the existing law), the amount now becomes the RPC, there will be grave implications on the penalty of Fine, but changing the
₱20,000.00 and the penalty is prision correccional in its medium and maximum same through Court decision, either expressly or impliedly, may not be legally and
periods (2 years 4 months and 1 day to 6 years). The penalty may not be constitutionally feasible.
commensurate to the act of embezzlement of ₱20,000.00 compared to the acts
committed by public officials punishable by a special law, i.e., Republic Act No.
3019 or the Anti-Graft and Corrupt Practices Act, specifically Section 3, 31 wherein There are other crimes against property and swindling in the RPC that may also be
the injury caused to the government is not generally defined by any monetary affected by the proposal, such as those that impose imprisonment and/or Fine as a
amount, the penalty (6 years and 1 month to 15 years)32 under the Anti-Graft Law penalty based on the value of the damage caused, to wit: Article 311 (Theft of the
will now become higher. This should not be the case, because in the crime of property of the National Library and National Museum), Article 312 (Occupation of
malversation, the public official takes advantage of his public position to embezzle real property or usurpation of real rights in property), Article 313 (Altering
the fund or property of the government entrusted to him. boundaries or landmarks), Article 316 (Other forms of swindling), Article 317
(Swindling a minor), Article 318 (Other deceits), Article 328 (Special cases of
malicious mischief) and Article 331 (Destroying or damaging statues, public Verily, the primordial duty of the Court is merely to apply the law in such a way that
monuments or paintings). Other crimes that impose Fine as a penalty will also be it shall not usurp legislative powers by judicial legislation and that in the course of
affected, such as: Article 213 (Frauds against the public treasury and similar such application or construction, it should not make or supervise legislation, or
offenses), Article 215 (Prohibited Transactions), under the guise of interpretation, modify, revise, amend, distort, remodel, or rewrite
the law, or give the law a construction which is repugnant to its terms. 38 The Court
Article 216 (Possession of prohibited interest by a public officer), Article 218 should apply the law in a manner that would give effect to their letter and spirit,
(Failure of accountable officer to render accounts), Article 219 (Failure of a especially when the law is clear as to its intent and purpose. Succinctly put, the
responsible public officer to render accounts before leaving the country). Court should shy away from encroaching upon the primary function of a co-equal
branch of the Government; otherwise, this would lead to an inexcusable breach of
the doctrine of separation of powers by means of judicial legislation.
In addition, the proposal will not only affect crimes under the RPC. It will also
affect crimes which are punishable by special penal laws, such as Illegal Logging or
Violation of Section 68 of Presidential Decree No. 705, as amended. 34The law treats Moreover, it is to be noted that civil indemnity is, technically, not a penalty or a
cutting, gathering, collecting and possessing timber or other forest products without Fine; hence, it can be increased by the Court when appropriate. Article 2206 of the
license as an offense as grave as and equivalent to the felony of qualified Civil Code provides:
theft.35 Under the law, the offender shall be punished with the penalties imposed
under Articles 309 and 31036 of the Revised Penal Code, which means that the Art. 2206. The amount of damages for death caused by a crime or quasi-delict shall
penalty imposable for the offense is, again, based on the value of the timber or forest be at least three thousand pesos, even though there may have been mitigating
products involved in the offense. Now, if we accept the said proposal in the crime of circumstances. In addition:
Theft, will this particular crime of Illegal Logging be amended also in so far as the
penalty is concerned because the penalty is dependent on Articles 309 and 310 of the (1) The defendant shall be liable for the loss of the earning capacity of the
RPC? The answer is in the negative because the soundness of this particular law is deceased, and the indemnity shall be paid to the heirs of the latter; such
not in question. indemnity shall in every case be assessed and awarded by the court, unless
the deceased on account of permanent physical disability not caused by
With the numerous crimes defined and penalized under the Revised Penal Code and the defendant, had no earning capacity at the time of his death;
Special Laws, and other related provisions of these laws affected by the proposal, a
thorough study is needed to determine its effectivity and necessity. There may be (2) If the deceased was obliged to give support according to the provisions
some provisions of the law that should be amended; nevertheless, this Court is in no of Article 291, the recipient who is not an heir called to the decedent's
position to conclude as to the intentions of the framers of the Revised Penal Code by inheritance by the law of testate or intestate succession, may demand
merely making a study of the applicability of the penalties imposable in the present support from the person causing the death, for a period not exceeding five
times. Such is not within the competence of the Court but of the Legislature which is years, the exact duration to be fixed by the court;
empowered to conduct public hearings on the matter, consult legal luminaries and
who, after due proceedings, can decide whether or not to amend or to revise the
questioned law or other laws, or even create a new legislation which will adopt to (3) The spouse, legitimate and illegitimate descendants and ascendants of
the times. the deceased may demand moral damages for mental anguish by reason of
the death of the deceased.
Admittedly, Congress is aware that there is an urgent need to amend the Revised
Penal Code. During the oral arguments, counsel for the Senate informed the Court In our jurisdiction, civil indemnity is awarded to the offended party as a kind of
that at present, fifty-six (56) bills are now pending in the Senate seeking to amend monetary restitution or compensation to the victim for the damage or infraction that
the Revised Penal Code,37 each one proposing much needed change and updates to was done to the latter by the accused, which in a sense only covers the civil aspect.
archaic laws that were promulgated decades ago when the political, socio-economic, Precisely, it is civil indemnity. Thus, in a crime where a person dies, in addition to
and cultural settings were far different from today’s conditions. the penalty of imprisonment imposed to the offender, the accused is also ordered to
pay the victim a sum of money as restitution. Clearly, this award of civil indemnity
due to the death of the victim could not be contemplated as akin to the value of a
thing that is unlawfully taken which is the basis in the imposition of the proper
penalty in certain crimes. Thus, the reasoning in increasing the value of civil Even if the imposable penalty amounts to cruel punishment, the Court cannot
indemnity awarded in some offense cannot be the same reasoning that would sustain declare the provision of the law from which the proper penalty emanates
the adoption of the suggested ratio. Also, it is apparent from Article 2206 that the unconstitutional in the present action. Not only is it violative of due process,
law only imposes a minimum amount for awards of civil indemnity, which is considering that the State and the concerned parties were not given the opportunity
₱3,000.00. The law did not provide for a ceiling. Thus, although the minimum to comment on the subject matter, it is settled that the constitutionality of a statute
amount for the award cannot be changed, increasing the amount awarded as civil cannot be attacked collaterally because constitutionality issues must be pleaded
indemnity can be validly modified and increased when the present circumstance directly and not collaterally,43 more so in the present controversy wherein the issues
warrants it. Corollarily, moral damages under Article 2220 39 of the Civil Code also never touched upon the constitutionality of any of the provisions of the Revised
does not fix the amount of damages that can be awarded. It is discretionary upon the Penal Code.
court, depending on the mental anguish or the suffering of the private offended
party. The amount of moral damages can, in relation to civil indemnity, be adjusted Besides, it has long been held that the prohibition of cruel and unusual punishments
so long as it does not exceed the award of civil indemnity. is generally aimed at the form or character of the punishment rather than its severity
in respect of duration or amount, and applies to punishments which public sentiment
In addition, some may view the penalty provided by law for the offense committed has regarded as cruel or obsolete, for instance, those inflicted at the whipping post,
as tantamount to cruel punishment. However, all penalties are generally harsh, being or in the pillory, burning at the stake, breaking on the wheel, disemboweling, and the
punitive in nature. Whether or not they are excessive or amount to cruel punishment like. Fine and imprisonment would not thus be within the prohibition. 44
is a matter that should be left to lawmakers. It is the prerogative of the courts to
apply the law, especially when they are clear and not subject to any other It takes more than merely being harsh, excessive, out of proportion, or severe for a
interpretation than that which is plainly written. penalty to be obnoxious to the Constitution. The fact that the punishment authorized
by the statute is severe does not make it cruel and unusual. Expressed in other terms,
Similar to the argument of Dean Diokno, one of Justice Antonio Carpio’s opinions is it has been held that to come under the ban, the punishment must be "flagrantly and
that the incremental penalty provision should be declared unconstitutional and that plainly oppressive," "wholly disproportionate to the nature of the offense as to shock
the courts should only impose the penalty corresponding to the amount of the moral sense of the community."45
₱22,000.00, regardless if the actual amount involved exceeds ₱22,000.00. As
suggested, however, from now until the law is properly amended by Congress, all Cruel as it may be, as discussed above, it is for the Congress to amend the law and
crimes of Estafa will no longer be punished by the appropriate penalty. A adapt it to our modern time.
conundrum in the regular course of criminal justice would occur when every
accused convicted of the crime of estafa will be meted penalties different from the
proper penalty that should be imposed. Such drastic twist in the application of the The solution to the present controversy could not be solved by merely adjusting the
law has no legal basis and directly runs counter to what the law provides. questioned monetary values to the present value of money based only on the current
inflation rate. There are other factors and variables that need to be taken into
consideration, researched, and deliberated upon before the said values could be
It should be noted that the death penalty was reintroduced in the dispensation of accurately and properly adjusted. The effects on the society, the injured party, the
criminal justice by the Ramos Administration by virtue of Republic Act No. accused, its socio-economic impact, and the likes must be painstakingly evaluated
765940 in December 1993. The said law has been questioned before this Court. There and weighed upon in order to arrive at a wholistic change that all of us believe
is, arguably, no punishment more cruel than that of death. Yet still, from the time the should be made to our existing law. Dejectedly, the Court is ill-equipped, has no
death penalty was re-imposed until its lifting in June 2006 by Republic Act No. resources, and lacks sufficient personnel to conduct public hearings and sponsor
9346,41 the Court did not impede the imposition of the death penalty on the ground studies and surveys to validly effect these changes in our Revised Penal Code. This
that it is a "cruel punishment" within the purview of Section 19 (1), 42 Article III of function clearly and appropriately belongs to Congress. Even Professor Tadiar
the Constitution. Ultimately, it was through an act of Congress suspending the concedes to this conclusion, to wit:
imposition of the death penalty that led to its non-imposition and not via the
intervention of the Court.
xxxx

JUSTICE PERALTA:
Yeah, Just one question. You are suggesting that in order to determine the value of There are many ways by which the value of the Philippine Peso can be determined
Peso you have to take into consideration several factors. utilizing all of those economic terms.

PROFESSOR TADIAR: JUSTICE PERALTA:

Yes. Yeah, but ...

JUSTICE PERALTA: PROFESSOR TADIAR:

Per capita income. And I don’t think it is within the power of the Supreme Court to pass upon and peg
the value to One Hundred (₱100.00) Pesos to ...
PROFESSOR TADIAR:
JUSTICE PERALTA:
Per capita income.
Yeah.
JUSTICE PERALTA:
PROFESSOR TADIAR:
Consumer price index.
... One (₱1.00.00) Peso in 1930.
PROFESSOR TADIAR:
JUSTICE PERALTA:
Yeah.
That is legislative in nature.
JUSTICE PERALTA:
PROFESSOR TADIAR:
Inflation ...
That is my position that the Supreme Court ...
PROFESSOR TADIAR:
JUSTICE PERALTA:
Yes.
Yeah, okay.
JUSTICE PERALTA:
PROFESSOR TADIAR:
... and so on. Is the Supreme Court equipped to determine those factors?
... has no power to utilize the power of judicial review to in order to adjust, to make
PROFESSOR TADIAR: the adjustment that is a power that belongs to the legislature.

JUSTICE PERALTA:
Thank you, Professor. In computing the penalty for this type of estafa, this Court's ruling in Cosme, Jr. v.
People48 is highly instructive, thus:
PROFESSOR TADIAR:
With respect to the imposable penalty, Article 315 of the Revised Penal Code
Thank you. 46 provides:

Finally, the opinion advanced by Chief Justice Maria Lourdes P. A. Sereno echoes ART. 315 Swindling (estafa). - Any person who shall defraud another by any of the
the view that the role of the Court is not merely to dispense justice, but also the means mentioned hereinbelow shall be punished by:
active duty to prevent injustice. Thus, in order to prevent injustice in the present
controversy, the Court should not impose an obsolete penalty pegged eighty three 1st. The penalty of prision correccional in its maximum period to prision mayor in
years ago, but consider the proposed ratio of 1:100 as simply compensating for its minimum period, if the amount of the fraud is over 12,000 but does not exceed
inflation. Furthermore, the Court has in the past taken into consideration "changed 22,000 pesos, and if such amount exceeds the latter sum, the penalty provided in this
conditions" or "significant changes in circumstances" in its decisions. paragraph shall be imposed in its maximum period, adding one year for each
additional 10,000 pesos; but the total penalty which may be imposed shall not
Similarly, the Chief Justice is of the view that the Court is not delving into the exceed twenty years. In such case, and in connection with the accessory penalties
validity of the substance of a statute. The issue is no different from the Court’s which may be imposed and for the purpose of the other provisions of this Code, the
adjustment of indemnity in crimes against persons, which the Court had previously penalty shall be termed prision mayor or reclusion temporal, as the case may be.
adjusted in light of current times, like in the case of People v. Pantoja. 47 Besides,
Article 10 of the Civil Code mandates a presumption that the lawmaking body The penalty prescribed by Article 315 is composed of only two, not three, periods,
intended right and justice to prevail. in which case, Article 65 of the same Code requires the division of the time included
in the penalty into three equal portions of time included in the penalty prescribed,
With due respect to the opinions and proposals advanced by the Chief Justice and forming one period of each of the three portions. Applying the latter provisions, the
my Colleagues, all the proposals ultimately lead to prohibited judicial legislation. maximum, medium and minimum periods of the penalty prescribed are:
Short of being repetitious and as extensively discussed above, it is truly beyond the
powers of the Court to legislate laws, such immense power belongs to Congress and Maximum - 6 years, 8 months, 21 days to 8 years
the Court should refrain from crossing this clear-cut divide. With regard to civil
indemnity, as elucidated before, this refers to civil liability which is awarded to the Medium - 5 years, 5 months, 11 days to 6 years, 8 months, 20 days
offended party as a kind of monetary restitution. It is truly based on the value of
money. The same cannot be said on penalties because, as earlier stated, penalties are
not only based on the value of money, but on several other factors. Further, since the Minimum - 4 years, 2 months, 1 day to 5 years, 5 months, 10 days49
law is silent as to the maximum amount that can be awarded and only pegged the
minimum sum, increasing the amount granted as civil indemnity is not proscribed. To compute the maximum period of the prescribed penalty, prisión correccional
Thus, it can be adjusted in light of current conditions. maximum to prisión mayor minimum should be divided into three equal portions of
time each of which portion shall be deemed to form one period in accordance with
Now, with regard to the penalty imposed in the present case, the CA modified the Article 6550 of the RPC.51 In the present case, the amount involved is ₱98,000.00,
ruling of the RTC. The RTC imposed the indeterminate penalty of four (4) years and which exceeds ₱22,000.00, thus, the maximum penalty imposable should be within
two (2) months of prision correccional in its medium period, as minimum, to the maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor.
fourteen (14) years and eight (8) months of reclusion temporal in its minimum Article 315 also states that a period of one year shall be added to the penalty for
period, as maximum. However, the CA imposed the indeterminate penalty of four every additional ₱10,000.00 defrauded in excess of ₱22,000.00, but in no case shall
(4) years and two (2) months of prision correccional, as minimum, to eight (8) years the total penalty which may be imposed exceed 20 years.
of prision mayor, as maximum, plus one (1) year for each additional ₱10,000.00, or
a total of seven (7) years. Considering that the amount of ₱98,000.00 is ₱76,000.00 more than the ₱22,000.00
ceiling set by law, then, adding one year for each additional ₱10,000.00, the
maximum period of 6 years, 8 months and 21 days to 8 years of prision mayor
minimum would be increased by 7 years. Taking the maximum of the prescribed
penalty, which is 8 years, plus an additional 7 years, the maximum of the
indeterminate penalty is 15 years.

Applying the Indeterminate Sentence Law, since the penalty prescribed by law for
the estafa charge against petitioner is prision correccional maximum to prision
mayor minimum, the penalty next lower would then be prision correccional in its
minimum and medium periods.

Thus, the minimum term of the indeterminate sentence should be anywhere from 6
months and 1 day to 4 years and 2 months.

One final note, the Court should give Congress a chance to perform its primordial
duty of lawmaking. The Court should not pre-empt Congress and usurp its inherent
powers of making and enacting laws. While it may be the most expeditious
approach, a short cut by judicial fiat is a dangerous proposition, lest the Court dare
trespass on prohibited judicial legislation.

WHEREFORE, the Petition for Review on Certiorari dated November 5, 2007 of

petitioner Lito Corpuz is hereby DENIED. Consequently, the Decision dated March
22, 2007 and Resolution dated September 5, 2007 of the Court of Appeals, which
affirmed with modification the Decision dated July 30, 2004 of the Regional Trial
Court, Branch 46, San Fernando City, finding petitioner guilty beyond reasonable
doubt of the crime of Estafa under Article 315, paragraph (1), sub-paragraph (b) of
the Revised Penal Code, are hereby AFFIRMED with MODIFICATION that the
penalty imposed is the indeterminate penalty of imprisonment ranging from THREE
(3) YEARS, TWO (2) MONTHS and ELEVEN DAYS of prision correccional, as
minimum, to FIFTEEN (15) YEARS of reclusion temporal as maximum.

Pursuant to Article 5 of the Revised Penal Code, let a Copy of this Decision be
furnished the President of the Republic of the Philippines, through the Department
of Justice.

Also, let a copy of this Decision be furnished the President of the Senate and the
Speaker of the House of Representatives.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice
 Republic of the Philippines Movement of Concerned Citizens for Civil Liberties (MCCCL), Confederation for
SUPREME COURT Unity, Recognition and Advancement of Government Employees (COURAGE),
Manila Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite Workers
(SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng
EN BANC Kilusang Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers
(ACT), Migrante, Health Alliance for Democracy (HEAD), and Agham, represented
by their respective officers,4 and joined by concerned citizens and taxpayers Teofisto
G.R. No. 178552               October 5, 2010 Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino, Jr., Sister Mary John
Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco, Retired Col. Gerry
SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato Reyes,
the South-South Network (SSN) for Non-State Armed Group Engagement, and Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a
ATTY. SOLIMAN M. SANTOS, JR., Petitioners,  petition for certiorari and prohibition docketed as G.R. No. 178581.
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE On August 6, 2007, Karapatan and its alliance member organizations Hustisya,
SECRETARY OF JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa
THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF THE Amnestiya (SELDA), Ecumenical Movement for Justice and Peace (EMJP), and
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF Promotion of Church People’s Response (PCPR), which were represented by their
FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF respective officers5who are also bringing action on their own behalf, filed a petition
STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE for certiorari and prohibition docketed as G.R. No. 178890. 
CHIEF OF THE PHILIPPINE NATIONAL POLICE, Respondents
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
DECISION Defense of Liberty (CODAL),6Senator Ma. Ana Consuelo A.S. Madrigal, Sergio
Osmeña III, and Wigberto E. Tañada filed a petition for certiorari and prohibition
CARPIO MORALES, J.: docketed as G.R. No. 179157. 

Before the Court are six petitions challenging the constitutionality of Republic Act Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional
No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from chapters and organizations mostly based in the Southern Tagalog Region, 7 and
Terrorism," otherwise known as the Human Security Act of 2007, 1signed into law individuals8 followed suit by filing on September 19, 2007 a petition for certiorari
on March 6, 2007.  and prohibition docketed as G.R. No. 179461 that replicates the allegations raised in
the BAYAN petition in G.R. No. 178581. 
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern
Hemisphere Engagement Network, Inc., a non-government organization, and Atty. Impleaded as respondents in the various petitions are the Anti-Terrorism
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for Council9 composed of, at the time of the filing of the petitions, Executive Secretary
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions- Chairperson, and Foreign Affairs Secretary Alberto Romulo, Acting Defense
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Secretary and National Security Adviser Norberto Gonzales, Interior and Local
Rights (CTUHR), represented by their respective officers 3 who are also bringing the Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
action in their capacity as citizens, filed a petition for certiorari and prohibition members. All the petitions, except that of the IBP, also impleaded Armed Forces of
docketed as G.R. No. 178554.  the Philippines (AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine
National Police (PNP) Chief Gen. Oscar Calderon. 
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan
(BAYAN), General Alliance Binding Women for Reforms, Integrity, Equality, The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President
Leadership and Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Gloria Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council
like the National Intelligence Coordinating Agency, National Bureau of of issues upon which the court so largely depends for illumination of difficult
Investigation, Bureau of Immigration, Office of Civil Defense, Intelligence Service constitutional questions.11
of the AFP, Anti-Money Laundering Center, Philippine Center on Transnational
Crime, and the PNP intelligence and investigative elements.  Anak Mindanao Party-List Group v. The Executive Secretary 12 summarized the rule
on locus standi, thus:
The petitions fail.
Locus standi or legal standing has been defined as a personal and substantial interest
Petitioners’ resort to certiorari is improper in a case such that the party has sustained or will sustain direct injury as a result of
the governmental act that is being challenged. The gist of the question on standing is
Preliminarily, certiorari does not lie against respondents who do not exercise judicial whether a party alleges such personal stake in the outcome of the controversy as to
or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is clear: assure that concrete adverseness which sharpens the presentation of issues upon
which the court depends for illumination of difficult constitutional questions. 
Section 1. Petition for certiorari.—When any tribunal, board or
officer exercising judicial or quasi-judicial functionshas acted without or in excess [A] party who assails the constitutionality of a statute must have a direct and
of its or his jurisdiction, or with grave abuse of discretion amounting to lack or personal interest. It must show not only that the law or any governmental act is
excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate invalid, but also that it sustained or is in immediate danger of sustaining some direct
remedy in the ordinary course of law, a person aggrieved thereby may file a verified injury as a result of its enforcement, and not merely that it suffers thereby in some
petition in the proper court, alleging the facts with certainty and praying that indefinite way. It must show that it has been or is about to be denied some right or
judgment be rendered annulling or modifying the proceedings of such tribunal, privilege to which it is lawfully entitled or that it is about to be subjected to some
board or officer, and granting such incidental reliefs as law and justice may require. burdens or penalties by reason of the statute or act complained of.
(Emphasis and underscoring supplied) 
For a concerned party to be allowed to raise a constitutional question, it must show
Parenthetically, petitioners do not even allege with any modicum of particularity that (1) it has personally suffered some actual or threatened injury as a result of the
how respondents acted without or in excess of their respective jurisdictions, or with allegedly illegal conduct of the government, (2) the injury is fairly traceable to the
grave abuse of discretion amounting to lack or excess of jurisdiction.  challenged action, and (3) the injury is likely to be redressed by a favorable action.
(emphasis and underscoring supplied.)
The impropriety of certiorari as a remedy aside, the petitions fail just the same. 
Petitioner-organizations assert locus standi on the basis of being suspected
"communist fronts" by the government, especially the military; whereas individual
In constitutional litigations, the power of judicial review is limited by four exacting petitioners invariably invoke the "transcendental importance" doctrine and their
requisites, viz: (a) there must be an actual case or controversy; (b) petitioners must status as citizens and taxpayers. 
possess locus standi; (c) the question of constitutionality must be raised at the
earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the
case.10 While Chavez v. PCGG13 holds that transcendental public importance dispenses with
the requirement that petitioner has experienced or is in actual danger of suffering
direct and personal injury, cases involving the constitutionality of penal legislation
In the present case, the dismal absence of the first two requisites, which are the most belong to an altogether different genus of constitutional litigation. Compelling State
essential, renders the discussion of the last two superfluous. and societal interests in the proscription of harmful conduct, as will later be
elucidated, necessitate a closer judicial scrutiny of locus standi. 
Petitioners lack locus standi
Petitioners have not presented any personal stake in the outcome of the controversy.
Locus standi or legal standing requires a personal stake in the outcome of the None of them faces any charge under RA 9372.
controversy as to assure that concrete adverseness which sharpens the presentation
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in of particular facts have been judicially noticed as being matters of common
G.R. No. 178890, allege that they have been subjected to "close security knowledge. But a court cannot take judicial notice of any fact which, in part, is
surveillance by state security forces," their members followed by "suspicious dependent on the existence or non-existence of a fact of which the court has no
persons" and "vehicles with dark windshields," and their offices monitored by "men constructive knowledge.16 (emphasis and underscoring supplied.)
with military build." They likewise claim that they have been branded as "enemies
of the [S]tate."14 No ground was properly established by petitioners for the taking of judicial notice.
Petitioners’ apprehension is insufficient to substantiate their plea. That no specific
Even conceding such gratuitous allegations, the Office of the Solicitor General charge or proscription under RA 9372 has been filed against them, three years after
(OSG) correctly points out that petitioners have yet to show its effectivity, belies any claim of imminence of their perceived threat emanating
any connection between the purported "surveillance" and the implementation of RA from the so-called tagging. 
9372. 
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554,
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, who merely harp as well on their supposed "link" to the CPP and NPA. They fail to
Anakbayan, PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner- particularize how the implementation of specific provisions of RA 9372 would
organizations in G.R. No. 178581, would like the Court to take judicial notice of result in direct injury to their organization and members. 
respondents’ alleged action of tagging them as militant organizations fronting for the
Communist Party of the Philippines (CPP) and its armed wing, the National While in our jurisdiction there is still no judicially declared terrorist organization,
People’s Army (NPA). The tagging, according to petitioners, is tantamount to the the United States of America17 (US) and the European Union18 (EU) have both
effects of proscription without following the procedure under the law. 15 The petition classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist organizations.
of BAYAN-ST, et al. in G.R. No. 179461 pleads the same allegations.  The Court takes note of the joint statement of Executive Secretary Eduardo Ermita
and Justice Secretary Raul Gonzales that the Arroyo Administration would adopt the
The Court cannot take judicial notice of the alleged "tagging" of petitioners.  US and EU classification of the CPP and NPA as terrorist organizations. 19 Such
statement notwithstanding, there is yet to be filed before the courts an application to
Generally speaking, matters of judicial notice have three material requisites: (1) the declare the CPP and NPA organizations as domestic terrorist or outlawed
matter must be one of common and general knowledge; (2) it must be well and organizations under RA 9372. Again, RA 9372 has been in effect for three years
authoritatively settled and not doubtful or uncertain; and (3) it must be known to now. From July 2007 up to the present, petitioner-organizations have conducted
be within the limits of the jurisdiction of the court. The principal guide in their activities fully and freely without any threat of, much less an actual,
determining what facts may be assumed to be judicially known is that of notoriety. prosecution or proscription under RA 9372. 
Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact must be Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list
one not subject to a reasonable dispute in that it is either: (1) generally known within Representatives Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and
the territorial jurisdiction of the trial court; or (2) capable of accurate and ready Luzviminda Ilagan,20 urged the government to resume peace negotiations with the
determination by resorting to sources whose accuracy cannot reasonably be NDF by removing the impediments thereto, one of which is the adoption of
questionable.  designation of the CPP and NPA by the US and EU as foreign terrorist
organizations. Considering the policy statement of the Aquino Administration21 of
Things of "common knowledge," of which courts take judicial matters coming to the resuming peace talks with the NDF, the government is not imminently disposed to
knowledge of men generally in the course of the ordinary experiences of life, or they ask for the judicial proscription of the CPP-NPA consortium and its allied
may be matters which are generally accepted by mankind as true and are capable of organizations. 
ready and unquestioned demonstration. Thus, facts which are universally known,
and which may be found in encyclopedias, dictionaries or other publications, are More important, there are other parties not before the Court with direct and specific
judicially noticed, provided, they are of such universal notoriety and so generally interests in the questions being raised.22 Of recent development is the filing of
understood that they may be regarded as forming part of the common knowledge of the first case for proscription under Section 1723 of RA 9372 by the Department of
every person. As the common knowledge of man ranges far and wide, a wide variety Justice before the Basilan Regional Trial Court against the Abu Sayyaf
Group.24 Petitioner-organizations do not in the least allege any link to the Abu Osmeña III, who cite their being respectively a human rights advocate and an
Sayyaf Group.  oppositor to the passage of RA 9372. Outside these gratuitous statements, no
concrete injury to them has been pinpointed. 
Some petitioners attempt, in vain though, to show the imminence of a prosecution
under RA 9372 by alluding to past rebellion charges against them.  Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr.
in G.R. No. 178552 also conveniently state that the issues they raise are of
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in transcendental importance, "which must be settled early" and are of "far-reaching
2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano of implications," without mention of any specific provision of RA 9372 under which
Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casiño and they have been charged, or may be charged. Mere invocation of human rights
Saturnino Ocampo of Bayan Muna. Also named in the dismissed rebellion charges advocacy has nowhere been held sufficient to clothe litigants with locus standi.
were petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Petitioners must show an actual, or immediate danger of sustaining, direct injury as
Rita Baua, Emerencia de Jesus and Danilo Ramos; and accused of being front a result of the law’s enforcement. To rule otherwise would be to corrupt the settled
organizations for the Communist movement were petitioner-organizations KMU, doctrine of locus standi, as every worthy cause is an interest shared by the general
BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and public. 
COURAGE.26
Neither can locus standi be conferred upon individual petitioners as taxpayers and
The dismissed rebellion charges, however, do not save the day for petitioners. For citizens. A taxpayer suit is proper only when there is an exercise of the spending or
one, those charges were filed in 2006, prior to the enactment of RA 9372, and taxing power of Congress,28 whereas citizen standing must rest on direct and
dismissed by this Court. For another, rebellion is defined and punished under the personal interest in the proceeding.29
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a RA 9372 is a penal statute and does not even provide for any appropriation from
person with rebellion, its elements not having been altered.  Congress for its implementation, while none of the individual petitioner-citizens has
alleged any direct and personal interest in the implementation of the law. 
Conversely, previously filed but dismissed rebellion charges bear no relation to
prospective charges under RA 9372. It cannot be overemphasized that three years It bears to stress that generalized interests, albeit accompanied by the assertion of a
after the enactment of RA 9372, none of petitioners has been charged. public right, do not establish locus standi. Evidence of a direct and personal interest
is key.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on
their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA Petitioners fail to present an actual case or controversy
9372 directing it to render assistance to those arrested or detained under the law. 
By constitutional fiat, judicial power operates only when there is an actual case or
The mere invocation of the duty to preserve the rule of law does not, however, controversy. 
suffice to clothe the IBP or any of its members with standing. 27 The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against Section 1. The judicial power shall be vested in one Supreme Court and in such
its constitutional rights and duties. Moreover, both the IBP and CODAL have not lower courts as may be established by law. 
pointed to even a single arrest or detention effected under RA 9372. 
Judicial power includes the duty of the courts of justice to settle actual
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of controversies involving rights which are legally demandable and enforceable, and to
"political surveillance," also lacks locus standi. Prescinding from the veracity, let determine whether or not there has been a grave abuse of discretion amounting to
alone legal basis, of the claim of "political surveillance," the Court finds that she has lack or excess of jurisdiction on the part of any branch or instrumentality of the
not shown even the slightest threat of being charged under RA 9372. Similarly Government.30(emphasis and underscoring supplied.) 
lacking in locus standi are former Senator Wigberto Tañada and Senator Sergio
As early as Angara v. Electoral Commission,31 the Court ruled that the power of The Court is not unaware that a reasonable certainty of the occurrence of a perceived
judicial review is limited to actual cases or controversies to be exercised after full threat to any constitutional interest suffices to provide a basis for mounting a
opportunity of argument by the parties. Any attempt at abstraction could only lead to constitutional challenge. This, however, is qualified by the requirement that there
dialectics and barren legal questions and to sterile conclusions unrelated to must be sufficient facts to enable the Court to intelligently adjudicate the issues. 38
actualities. 
Very recently, the US Supreme Court, in Holder v. Humanitarian Law
An actual case or controversy means an existing case or controversy that is Project,39 allowed the pre-enforcement review of a criminal statute, challenged on
appropriate or ripe for determination, not conjectural or anticipatory, lest the vagueness grounds, since plaintiffs faced a "credible threat of prosecution" and
decision of the court would amount to an advisory opinion.32 "should not be required to await and undergo a criminal prosecution as the sole
means of seeking relief."40 The plaintiffs therein filed an action before a federal
Information Technology Foundation of the Philippines v. COMELEC33 cannot be court to assail the constitutionality of the material support statute, 18 U.S.C. §2339B
more emphatic:  (a) (1),41 proscribing the provision of material support to organizations declared by
the Secretary of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of two such
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly organizations. 
interest, however intellectually challenging. The controversy must be justiciable—
definite and concrete, touching on the legal relations of parties having adverse legal
interests. In other words, the pleadings must show an active antagonistic assertion of Prevailing American jurisprudence allows an adjudication on the merits when an
a legal right, on the one hand, and a denial thereof on the other hand; that is, it must anticipatory petition clearly shows that the challenged prohibition forbids the
concern a real and not merely a theoretical question or issue. There ought to conduct or activity that a petitioner seeks to do, as there would then be a justiciable
be an actual and substantial controversy admitting of specific relief through a decree controversy.42
conclusive in nature, as distinguished from an opinion advising what the law would
be upon a hypothetical state of facts. (Emphasis and underscoring supplied) Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that
the challenged provisions of RA 9372 forbid constitutionally protected conduct or
Thus, a petition to declare unconstitutional a law converting the Municipality of activity that they seek to do. No demonstrable threat has been established, much less
Makati into a Highly Urbanized City was held to be premature as it was tacked on a real and existing one. 
uncertain, contingent events.34 Similarly, a petition that fails to allege that an
application for a license to operate a radio or television station has been denied or Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being
granted by the authorities does not present a justiciable controversy, and merely tagged as "communist fronts" in no way approximate a credible threat of
wheedles the Court to rule on a hypothetical problem. 35 prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.43
The Court dismissed the petition in Philippine Press Institute v. Commission on
Elections36 for failure to cite any specific affirmative action of the Commission on Without any justiciable controversy, the petitions have become pleas for declaratory
Elections to implement the assailed resolution. It refused, in Abbas v. Commission relief, over which the Court has no original jurisdiction. Then again, declaratory
on Elections,37 to rule on the religious freedom claim of the therein petitioners based actions characterized by "double contingency," where both the activity the
merely on a perceived potential conflict between the provisions of the Muslim Code petitioners intend to undertake and the anticipated reaction to it of a public official
and those of the national law, there being no actual controversy between real are merely theorized, lie beyond judicial review for lack of ripeness. 44
litigants. 
The possibility of abuse in the implementation of RA 9372 does not avail to take the
The list of cases denying claims resting on purely hypothetical or anticipatory present petitions out of the realm of the surreal and merely imagined. Such
grounds goes on ad infinitum. possibility is not peculiar to RA 9372 since the exercise of any power granted by
law may be abused.45 Allegations of abuse must be anchored on real events before
courts may step in to settle actual controversies involving rights which are legally
demandable and enforceable. 
A facial invalidation of a statute is allowed only in free speech cases, wherein The position taken by Justice Mendoza in Estrada relates these two doctrines to the
certain rules of constitutional litigation are rightly excepted  concept of a "facial" invalidation as opposed to an "as-applied" challenge. He
basically postulated that allegations that a penal statute is vague and overbroad do
Petitioners assail for being intrinsically vague and impermissibly broad the not justify a facial review of its validity. The pertinent portion of the Concurring
definition of the crime of terrorism46under RA 9372 in that terms like "widespread Opinion of Justice Mendoza, which was quoted at length in the main Estrada
and extraordinary fear and panic among the populace" and "coerce the government decision, reads:
to give in to an unlawful demand" are nebulous, leaving law enforcement agencies
with no standard to measure the prohibited acts.  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
Respondents, through the OSG, counter that the doctrines of void-for-vagueness that "[w]hen statutes regulate or proscribe speech and no readily apparent
and overbreadth find no application in the present case since these doctrines construction suggests itself as a vehicle for rehabilitating the statutes in a single
apply only to free speech cases; and that RA 9372 regulates conduct, not prosecution, the transcendent value to all society of constitutionally protected
speech.  expression is deemed to justify allowing attacks on overly broad statutes with no
requirement that the person making the attack demonstrate that his own conduct
could not be regulated by a statute drawn with narrow specificity." The possible
For a jurisprudentially guided understanding of these doctrines, it is imperative to harm to society in permitting some unprotected speech to go unpunished is
outline the schools of thought on whether the void-for-vagueness and overbreadth outweighed by the possibility that the protected speech of others may be deterred
doctrines are equally applicable grounds to assail a penal statute.  and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting
the application of the two doctrines to free speech cases. They particularly This rationale does not apply to penal statutes. Criminal statutes have
cite Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48 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
The Court clarifies. enacting laws against socially harmful conduct. In the area of criminal law, the
law cannot take chances as in the area of free speech.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in
Section 549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and The overbreadth and vagueness doctrines then have special application only to free
impermissibly broad. The Court stated that "the overbreadth and the vagueness speech cases. They are inapt for testing the validity of penal statutes. As the U.S.
doctrines have special application only to free-speech cases," and are "not Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
appropriate for testing the validity of penal statutes." 50 It added that, at any rate, the recognized an 'overbreadth' doctrine outside the limited context of the First
challenged provision, under which the therein petitioner was charged, is not vague. 51 Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms,
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court seek to regulate only spoken words" and, again, that "overbreadth claims, if
stated that a facial invalidation of criminal statutes is not appropriate, it nonetheless entertained at all, have been curtailed when invoked against ordinary criminal laws
proceeded to conduct a vagueness analysis, and concluded that the therein subject that are sought to be applied to protected conduct." For this reason, it has been held
election offense53 under the Voter’s Registration Act of 1996, with which the therein that "a facial challenge to a legislative act is the most difficult challenge to mount
petitioners were charged, is couched in precise language. 54 successfully, since the challenger must establish that no set of circumstances exists
under which the Act would be valid." As for the vagueness doctrine, it is said that
a litigant may challenge a statute on its face only if it is vague in all its possible
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente applications. "A plaintiff who engages in some conduct that is clearly
V. Mendoza in the Estradacase, where the Court found the Anti-Plunder Law proscribed cannot complain of the vagueness of the law as applied to the
(Republic Act No. 7080) clear and free from ambiguity respecting the definition of conduct of others."
the crime of plunder. 
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate
tools developed for testing "on their faces" statutes in free speech cases or, as they on the same plane. 
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 A statute or act suffers from the defect of vagueness when it lacks comprehensible
established rule is that "one to whom application of a statute is constitutional will standards that men of common intelligence must necessarily guess at its meaning
not be heard to attack the statute on the ground that impliedly it might also be taken and differ as to its application. It is repugnant to the Constitution in two respects: (1)
as applying to other persons or other situations in which its application might be it violates due process for failure to accord persons, especially the parties targeted by
unconstitutional." As has been pointed out, "vagueness challenges in the First it, fair notice of the conduct to avoid; and (2) it leaves law enforcers unbridled
Amendment context, like overbreadth challenges typically produce facial discretion in carrying out its provisions and becomes an arbitrary flexing of the
invalidation, while statutes found vague as a matter of due process typically are Government muscle.57 The overbreadth doctrine, meanwhile, decrees that a
invalidated [only] 'as applied' to a particular defendant." Consequently, there is no governmental purpose to control or prevent activities constitutionally subject to state
basis for petitioner's claim that this Court review the Anti-Plunder Law on its face regulations may not be achieved by means which sweep unnecessarily broadly and
and in its entirety. thereby invade the area of protected freedoms. 58

Indeed, "on its face" invalidation of statutes results in striking them down entirely on As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
the ground that they might be applied to parties not before the Court whose activities individuals will understand what a statute prohibits and will accordingly refrain
are constitutionally protected. It constitutes a departure from the case and from that behavior, even though some of it is protected. 59
controversy requirement of the Constitution and permits decisions to be made
without concrete factual settings and in sterile abstract contexts. But, as the U.S.
Supreme Court pointed out in Younger v. Harris A "facial" challenge is likewise different from an "as-applied" challenge.

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring Distinguished from an as-applied challenge which considers only extant facts
correction of these deficiencies before the statute is put into effect, is rarely if ever affecting real litigants, a facialinvalidation is an examination of the entire law,
an appropriate task for the judiciary. The combination of the relative remoteness of pinpointing its flaws and defects, not only on the basis of its actual operation to the
the controversy, the impact on the legislative process of the relief sought, and above parties, but also on the assumption or prediction that its very existence may cause
all the speculative and amorphous nature of the required line-by-line analysis of others not before the court to refrain from constitutionally protected speech or
detailed statutes, . . . ordinarily results in a kind of case that is wholly unsatisfactory activities.60
for deciding constitutional questions, whichever way they might be decided.
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the
For these reasons, "on its face" invalidation of statutes has been described as vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
"manifestly strong medicine," to be employed "sparingly and only as a last resort," applicable to penal laws. A litigant cannot thus successfully mount a facial challenge
and is generally disfavored. In determining the constitutionality of a statute, against a criminal statute on either vagueness or overbreadth grounds.
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 The allowance of a facial challenge in free speech cases is justified by the aim to
charged.56 (Underscoring supplied.) avert the "chilling effect" on protected speech, the exercise of which should not at all
times be abridged.62 As reflected earlier, this rationale is inapplicable to plain penal
The confusion apparently stems from the interlocking relation of the overbreadth statutes that generally bear an "in terrorem effect" in deterring socially harmful
and vagueness doctrines as grounds for a facial or as-applied challenge against a conduct. In fact, the legislature may even forbid and penalize acts formerly
penal statute (under a claim of violation of due process of law) or a speech considered innocent and lawful, so long as it refrains from diminishing or dissuading
regulation (under a claim of abridgement of the freedom of speech and cognate the exercise of constitutionally protected rights. 63
rights). 
The Court reiterated that there are "critical limitations by which a criminal statute concern with the "chilling;" deterrent effect of the overbroad statute on third parties
may be challenged" and "underscored that an ‘on-its-face’ invalidation of penal not courageous enough to bring suit. The Court assumes that an overbroad law’s
statutes x x x may not be allowed."64 "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed
[T]he rule established in our jurisdiction is, only statutes on free speech, religious to remove that deterrent effect on the speech of those third parties. 66 (Emphasis in
freedom, and other fundamental rights may be facially challenged. Under no case the original omitted; underscoring supplied.) 
may ordinary penal statutes be subjected to a facial challenge. The rationale is
obvious. If a facial challenge to a penal statute is permitted, the prosecution of In restricting the overbreadth doctrine to free speech claims, the Court, in at least
crimes may be hampered. No prosecution would be possible. A strong criticism two cases,67 observed that the US Supreme Court has not recognized an overbreadth
against employing a facial challenge in the case of penal statutes, if the same is doctrine outside the limited context of the First Amendment,68and that claims of
allowed, would effectively go against the grain of the doctrinal requirement of an facial overbreadth have been entertained in cases involving statutes which, by their
existing and concrete controversy before judicial power may be appropriately terms, seek to regulate only spoken words.69 In Virginia v. Hicks,70 it was held that
exercised. A facial challenge against a penal statute is, at best, amorphous and rarely, if ever, will an overbreadth challenge succeed against a law or regulation that
speculative. It would, essentially, force the court to consider third parties who are is not specifically addressed to speech or speech-related conduct. Attacks on overly
not before it. As I have said in my opposition to the allowance of a facial challenge broad statutes are justified by the "transcendent value to all society of
to attack penal statutes, such a test will impair the State’s ability to deal with crime. constitutionally protected expression."71
If warranted, there would be nothing that can hinder an accused from defeating the
State’s power to prosecute on a mere showing that, as applied to third parties, the Since a penal statute may only be assailed for being vague as applied to
penal statute is vague or overbroad, notwithstanding that the law is clear as applied petitioners, a limited vagueness analysis of the definition of "terrorism" in RA 9372
to him.65 (Emphasis and underscoring supplied)  is legally impermissible absent an actual or imminent chargeagainst them

It is settled, on the other hand, that the application of the overbreadth doctrine is While Estrada did not apply the overbreadth doctrine, it did not preclude the
limited to a facial kind of challenge and, owing to the given rationale of a facial operation of the vagueness test on the Anti-Plunder Law as applied to the therein
challenge, applicable only to free speech cases.  petitioner, finding, however, that there was no basis to review the law "on its face
and in its entirety."72 It stressed that "statutes found vague as a matter of due
By its nature, the overbreadth doctrine has to necessarily apply a facial type of process typically are invalidated only 'as applied' to a particular defendant ."73
invalidation in order to plot areas of protected speech, inevitably almost
always under situations not before the court, that are impermissibly swept by the American jurisprudence74 instructs that "vagueness challenges that do not involve
substantially overbroad regulation. Otherwise stated, a statute cannot be properly the First Amendment must be examined in light of the specific facts of the case at
analyzed for being substantially overbroad if the court confines itself only to facts as hand and not with regard to the statute's facial validity." 
applied to the litigants. 
For more than 125 years, the US Supreme Court has evaluated defendants’ claims
The most distinctive feature of the overbreadth technique is that it marks an that criminal statutes are unconstitutionally vague, developing a doctrine hailed as
exception to some of the usual rules of constitutional litigation. Ordinarily, a "among the most important guarantees of liberty under law." 75
particular litigant claims that a statute is unconstitutional as applied to him or her; if
the litigant prevails, the courts carve away the unconstitutional aspects of the law by
invalidating its improper applications on a case to case basis. Moreover, challengers In this jurisdiction, the void-for-vagueness doctrine asserted under the due process
to a law are not permitted to raise the rights of third parties and can only assert their clause has been utilized in examining the constitutionality of criminal statutes. In at
own interests. In overbreadth analysis, those rules give way; challenges are least three cases,76 the Court brought the doctrine into play in analyzing an ordinance
permitted to raise the rights of third parties; and the court invalidates the entire penalizing the non-payment of municipal tax on fishponds, the crime of illegal
statute "on its face," not merely "as applied for" so that the overbroad law becomes recruitment punishable under Article 132(b) of the Labor Code, and the vagrancy
unenforceable until a properly authorized court construes it more narrowly. The provision under Article 202 (2) of the Revised Penal Code. Notably, the petitioners
factor that motivates courts to depart from the normal adjudicatory rules is the in these three cases, similar to those in the two Romualdez and Estrada cases, were
actually charged with the therein assailed penal statute, unlike in the present case. 
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial [I]t is true that the agreements and course of conduct here were as in most instances
analysis of its validity brought about through speaking or writing. But it has never been deemed an
abridgement of freedom of speech or press to make a course of conduct illegal
From the definition of the crime of terrorism in the earlier cited Section 3 of RA merely because the  conduct was, in part, initiated, evidenced, or carried out by
9372, the following elements may be culled: (1) the offender commits an act means of language, either spoken, written, or printed. Such an expansive
punishable under any of the cited provisions of the Revised Penal Code, or under interpretation of the constitutional guaranties of speech and press would make it
any of the enumerated special penal laws; (2) the commission of the predicate crime practically impossible ever to enforce laws against agreements in restraint of trade as
sows and creates a condition of widespread and extraordinary fear and panic among well as many other agreements and conspiracies deemed injurious to
the populace; and (3) the offender is actuated by the desire to coerce the government society.79 (italics and underscoring supplied) 
to give in to an unlawful demand.
Certain kinds of speech have been treated as unprotected conduct, because they
In insisting on a facial challenge on the invocation that the law penalizes speech, merely evidence a prohibited conduct.80 Since speech is not involved here, the Court
petitioners contend that the element of "unlawful demand" in the definition of cannot heed the call for a facial analysis.1avvphi1
terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.  IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as
The argument does not persuade. What the law seeks to penalize is conduct, not they were actually charged with the pertinent crimes challenged on vagueness
speech.  grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety. 
Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
phrases in the other elements of the crime, including the coercion of the government review of a criminal statute, challenged on vagueness grounds, since the therein
to accede to an "unlawful demand." Given the presence of the first element, any plaintiffs faced a "credible threat of prosecution" and "should not be required to
attempt at singling out or highlighting the communicative component of the await and undergo a criminal prosecution as the sole means of seeking relief." 
prohibition cannot recategorize the unprotected conduct into a protected speech. 
As earlier reflected, petitioners have established neither an actual charge nor a
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly credible threat of prosecution under RA 9372. Even a limited vagueness analysis of
focuses on just one particle of an element of the crime. Almost every commission of the assailed definition of "terrorism" is thus legally impermissible. The Court
a crime entails some mincing of words on the part of the offender like in declaring to reminds litigants that judicial power neither contemplates speculative counseling on
launch overt criminal acts against a victim, in haggling on the amount of ransom or a statute’s future effect on hypothetical scenarios nor allows the courts to be used as
conditions, or in negotiating a deceitful transaction. An analogy in one U.S. an extension of a failed legislative lobbying in Congress. 
case78 illustrated that the fact that the prohibition on discrimination in hiring on the
basis of race will require an employer to take down a sign reading "White WHEREFORE, the petitions are DISMISSED.
Applicants Only" hardly means that the law should be analyzed as one regulating
speech rather than conduct.  SO ORDERED.

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