Gr 231989 In their arraignment, Lim and Gorres pleaded not guilty.

5 They were detained in

4 Sept 2018 the city jail during the joint trial of the cases.6
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROMY LIM Y MIRANDA,
Accused-Appellant The prosecution presented Intelligence Officer (IO) 1 Albert Orellan, IO1 Nestle
Carin, IO2 Vincent Orcales, and Police Senior Inspector (PSI) Charity Caceres.
On appeal is the February 23, 2017 Decision1 of the Court of Appeals (CA) in Aside from both accused, Rubenia Gorres testified for the defense.
CA-G.R. CR HC No. 01280-MIN, which affirmed the September 24, 2013
Decision2 of Regional Trial Court (RTC), Branch 25, Cagayan de Oro City, in Version of the Prosecution
Criminal Case Nos. 2010-1073 and 2010-1074, finding accused-appellant
Romy Lim y Miranda (Lim) guilty of violating Sections 11 and 5, respectively, of Around 8:00 p.m. on October 19, 2010, IO1 Orellan and his teammates were at
Article II of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Regional Office X of the Philippine Drug Enforcement Agency (PDEA). Based
Drugs Act of 2002. on a report of a confidential informant (CI) that a certain "Romy" has been
engaged in the sale of prohibited drugs in Zone 7, Cabina, Bonbon, Cagayan
In an Information dated October 21, 2010, Lim was charged with illegal de Oro City, they were directed by their Regional Director, Lt. Col. Edwin
possession of Methamphetamine Hydrochloride (shabu), committed as follows: Layese, to gather for a buy-bust operation. During the briefing, IO2 Orcales,
IO1 Orellan, and IOl Carin were assigned as the team leader, the arresting
That on or about October 19, 2010, at more or less 10:00 o'clock in the officer/back-up/evidence custodian, and the poseur-buyer, respectively. The
evening, at Cagayan de Oro City, Philippines, and within the jurisdiction of this team prepared a P500.00 bill as buy-bust money (with its serial number entered
Honorable Court, the above-named accused, without being authorized by law to in the PDEA blotter), the Coordination Form for the nearest police station, and
possess or use any dangerous drugs, did then and there, willfully, unlawfully, other related documents.
criminally and knowingly have in his possession, custody and control one (1)
heat-sealed transparent plastic sachet containing Methamphetamine Using their service vehicle, the team left the regional office about 15 minutes
hydrochloride, locally known as Shabu, a dangerous drug, with a total weight of before 10:00 p.m. and arrived in the target area at 10:00 p.m., more or less. IO1
0.02 gram, accused well-knowing that the substance recovered from his Carin and the CI alighted from the vehicle near the comer leading to the house
possession is a dangerous drug. of "Romy," while IO1 Orellan and the other team members disembarked a few
meters after and positioned themselves in the area to observe. IO1 Carin and
Contrary to, and in violation of, Section 11, Article II of Republic Act No. 9165.3 the CI turned at the comer and stopped in front of a house. The CI knocked at
On even date, Lim, together with his stepson, Eldie Gorres y Nave (Gorres), the door and uttered, "ayo, nang Romy. " Gorres came out and invited them to
was also indicted for illegal sale of shabu, committed as follows: enter. Inside, Lim was sitting on the sofa while watching the television. When
That on or about October 19, 2010, at more or less 10:00 o'clock in the the CI introduced IO1 Carin as a shabu buyer, Lim nodded and told Gorres to
evening, at Cagayan de Oro City, Philippines, and within the jurisdiction of this get one inside the bedroom. Gorres stood up and did as instructed. After he
Honorable Court, the above-named accused, conspiring, confederating came out, he handed a small medicine box to Lim, who then took one piece of
together and mutually helping one another, without being authorized by law to heat-sealed transparent plastic of shabu and gave it to IO1 Carin. In turn, IO1
sell, trade, administer, dispense, deliver, give away to another, distribute, Carin paid him with the buy-bust money.
dispatch in transit or transport any dangerous drugs, did then and there willfully,
unlawfully, criminally and knowingly sell and/or offer for sale, and give away to After examining the plastic sachet, IO1 Carin executed a missed call to IO1
a PDEA Agent acting as poseur-buyer One (1) heat-sealed transparent plastic Orellan, which was the pre-arranged signal. The latter, with the rest of the team
sachet containing Methamphetamine hydrochloride, locally known as Shabu, a members, immediately rushed to Lim's house. When they arrived, IO1 Carin
dangerous drug, with a total weight of 0.02 gram, accused knowing the same to and the CI were standing near the door. They then entered the house because
be a dangerous drug, in consideration of Five Hundred Pesos (Php500.00) the gate was opened. IO1 Orellan declared that they were PDEA agents and
consisting of one piece five hundred peso bill, with Serial No. FZ386932, which informed Lim and Gorres, who were visibly surprised, of their arrest for selling
was previously marked and recorded for the purpose of the buy-bust operation. dangerous drug. They were ordered to put their hands on their heads and to
squat on the floor. IO1 Orellan recited the Miranda rights to them. Thereafter,
Contrary to Section 5, Paragraph 1, Article II of Republic Act No. 9165.4 IO1 Orellan conducted a body search on both.

1
 Around 10:00 p.m. on October 19, 2010, Lim and Gorres were in their house in
When he frisked Lim, no deadly weapon was found, but something was bulging Cabina, Bonbon, Cagayan de Oro City. Lim was sleeping in the bedroom, while
in his pocket. IOl Orellan ordered him to pull it out. Inside the pocket were the Gorres was watching the television. When the latter heard that somebody
buy-bust money and a transparent rectangular plastic box about 3x4 inches in jumped over their gate, he stood up to verify. Before he could reach the door,
size. They could see that it contained a plastic sachet of a white substance. As however, it was already forced opened by the repeated pulling and kicking of
for Gorres, no weapon or illegal drug was seized. men in civilian clothing. They entered the house, pointed their firearms at him,
instructed him to keep still, boxed his chest, slapped his ears, and handcuffed
IO1 Orellan took into custody the P500.00 bill, the plastic box with the plastic him. They inquired on where the shabu was, but he invoked his innocence.
sachet of white substance, and a disposable lighter. IOl Carin turned over to When they asked the whereabouts of "Romy," he answered that he was
him the plastic sachet that she bought from Lim. While in the house, IO1 sleeping inside the bedroom. So the men went there and kicked the door open.
Orellan marked the two plastic sachets. Despite exerting efforts to secure the Lim was then surprised as a gun was pointed at his head. He questioned them
attendance of the representative from the media and barangay officials, nobody on what was it all about, but he was told to keep quiet. The men let him and
arrived to witness the inventory-taking. Gorres sit on a bench. Lim was apprised of his Miranda rights. Thereafter, the
two were brought to the PDEA Regional Office and the crime laboratory. During
The buy-bust team brought Lim and Gorres to the PDEA Regional Office, with the inquest proceedings, Lim admitted, albeit without the assistance of a
IO1 Orellan in possession of the seized items. Upon arrival, they "booked" the counsel, ownership of the two sachets of shabu because he was afraid that the
two accused and prepared the letters requesting for the laboratory examination police would imprison him. Like Gorres, he was not involved in drugs at the time
on the drug evidence and for the drug test on the arrested suspects as well as of his arrest. Unlike him, however, he was previously arrested by the PDEA
the documents for the filing of the case. Likewise, IO1 Orellan made the agents but was acquitted in the case. Both Lim and Gorres acknowledged that
Inventory Receipt of the confiscated items. It was not signed by Lim and they did not have any quarrel with the PDEA agents and that neither do they
Gorres. Also, there was no signature of an elected public official and the have grudges against them or vice-versa.
representatives of the Department of Justice (DOJ) and the media as
witnesses. Pictures of both accused and the evidence seized were taken. Rubenia, Lim's live-in partner and the mother of Gorres, was at her sister's
house in Pita, Pasil, Kauswagan the night when the arrests were made. The
The day after, IO1 Orellan and IO1 Carin delivered both accused and the drug following day, she returned home and noticed that the door was opened and its
specimens to Regional Crime Laboratory Office 10. IO1 Orellan was in lock was destroyed. She took pictures of the damage and offered the same as
possession of the sachets of shabu from the regional office to the crime lab. exhibits for the defense, which the court admitted as part of her testimony.
PSI Caceres, who was a Forensic Chemist, and Police Officer 2 (PO2) Bajas7
personally received the letter-requests and the two pieces of heat-sealed RTC Ruling
transparent plastic sachet containing white crystalline substance. PSI Caceres
got urine samples from Lim and Gorres and conducted screening and After trial, the RTC handed a guilty verdict on Lim for illegal possession and
confirmatory tests on them. Based on her examination, only Lim was found sale of shabu and acquitted Gorres for lack of sufficient evidence linking him as
positive for the presence of shabu. The result was shown in Chemistry Report a conspirator. The fallo of the September 24, 2013 Decision states:
No. DTCRIM-196 and 197-2010. With respect to the two sachets of white WHEREFORE, premises considered, this Court finds that:
crystalline substance, both were found to be positive of shabu after a
chromatographic examination was conducted by PSI Caceres. Her findings 1. In Criminal Case No. 2010-1073, accused ROMY LIM y MIRANDA is hereby
were reflected in Chemistry Report No. D-228-2010. PSI Caceres, likewise, put found GUILTY of violating Section 11, Article II of R.A. 9165 and is hereby
her own marking on the cellophane containing the two sachets of shabu. After sentenced to suffer the penalty of imprisonment ranging from twelve [12] years
that, she gave them to the evidence custodian. As to the buy-bust money, the and one [1] day to thirteen [13] years, and to pay Fine in the amount of Three
arresting team turned it over to the fiscal's office during the inquest. Hundred Thousand Pesos [P300,000.00] without subsidiary imprisonment in
case of non-payment of Fine;
Version of the Defense
2. In Criminal Case No. 2010-1074, accused ROMY LIM y MIRANDA is hereby
found GUILTY of violating Section 5, Article II of R.A. 9165, and is hereby

2
sentenced to suffer the penalty of LIFE IMPRISONMENT and to pay the Fine in time the seized items were first discovered until they were brought for
the amount of Five Hundred Thousand Pesos [P500,000.00]. examination and offered in evidence in court. Anent Lim's defense of denial and
frame-up, the CA did not appreciate the same due to lack of clear and
3. In Criminal Case No. 2010-1074, accused ELDIE GORRES y NAVE is convincing evidence that the police officers were inspired by an improper
hereby ACQUITTED of the offense charged for failure of the prosecution to motive. Instead. the presumption of regularity in the performance of official duty
prove his guilt beyond reasonable doubt. The Warden of the BJMP having was applied.
custody of ELDIE GORRES y Nave, is hereby directed to immediately release
him from detention unless he is being charged of other crimes which will justify Before Us, both Lim and the People manifested that they would no longer file a
his continued incarceration.8 Supplemental Brief, taking into account the thorough and substantial
With regard to the illegal possession of a sachet of shabu, the RTC held that discussions of the issues in their respective appeal briefs before the CA.9
the weight of evidence favors the positive testimony of IO1 Orellan over the Essentially, Lim maintains that the case records are bereft of evidence showing
feeble and uncorroborated denial of Lim. As to the sale of shabu, it ruled that that the buy-bust team followed the procedure mandated in Section 21(1),
the prosecution was able to establish the identity of the buyer, the seller, the Article II of R.A. No. 9165.
money paid to the seller, and the delivery of the shabu. The testimony of IO1
Carin was viewed as simple, straightforward and without any hesitation or Our Ruling
prevarication as she detailed in a credible manner the buy-bust transaction that
occurred. Between the two conflicting versions that are poles apart, the RTC The judgment of conviction is reversed and set aside, and Lim should be
found the prosecution evidence worthy of credence and no reason to disbelieve acquitted based on reasonable doubt.
in the absence of an iota of malice, ill-will, revenge or resentment preceding
and pervading the arrest of Lim. On the chain of custody of evidence, it was At the time of the commission of the crimes, the law applicable is R.A. No.
accepted with moral certainty that the PDEA operatives were able to preserve 9165.10 Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of
the integrity and probative value of the seized items. 2002, which implements the law, defines chain of custody as-
the duly recorded authorized movements and custody of seized drugs or
In so far as Gorres is concerned, the RTC opined that the evidence presented controlled chemicals or plant sources of dangerous drugs or laboratory
were not strong enough to support the claim that there was conspiracy between equipment of each stage, from the time of seizure/confiscation to receipt in the
him and Lim because it was insufficiently shown that he knew what the box forensic laboratory to safekeeping to presentation in court for destruction. Such
contained. It also noted Chemistry Report No. DTCRIM 196 & 197-2010, record of movements and custody of seized item shall include the identity and
which indicated that Gorres was "NEGATIVE" of the presence of any illicit drug signature of the person who held temporary custody of the seized item, the date
based on his urine sample. and time when such transfer of custody were made in the course of
safekeeping and use in court as evidence, and the final disposition.11
CA Ruling The chain of custody rule is but a variation of the principle that real evidence
must be authenticated prior to its admission into evidence.12 To establish a
On appeal, the CA affirmed the RTC Decision. It agreed with the finding of the chain of custody sufficient to make evidence admissible, the proponent needs
trial court that the prosecution adequately established all the elements of illegal only to prove a rational basis from which to conclude that the evidence is what
sale of a dangerous drug as the collective evidence presented during the trial the party claims it to be.13 In other words, in a criminal case, the prosecution
showed that a valid buy-bust operation was conducted. Likewise, all the must offer sufficient evidence from which the trier of fact could reasonably
elements of illegal possession of a dangerous drug was proven. Lim resorted to believe that an item still is what the government claims it to be.14 Specifically
denial and could not present any proof or justification that he was fully in the prosecution of illegal drugs, the well-established federal evidentiary rule
authorized by law to possess the same. The CA was unconvinced with his in the United States is that when the evidence is not readily identifiable and is
contention that the prosecution failed to prove the identity and integrity of the susceptible to alteration by tampering or contamination, courts require a more
seized prohibited drugs. For the appellate court, it was able to demonstrate that stringent foundation entailing a chain of custody of the item with sufficient
the integrity and evidentiary value of the confiscated drugs were not completeness to render it improbable that the original item has either been
compromised. The witnesses for the prosecution were able to testify on every exchanged with another or been contaminated or tampered with.15 This was
link in the chain of custody, establishing the crucial link in the chain from the

3
adopted in Mallillin v. People,16 where this Court also discussed how, ideally, (a) The apprehending officer/team having initial custody and control of the
the chain of custody of seized items should be established: drugs shall, immediately after seizure and confiscation, physically inventory and
As a method of authenticating evidence, the chain of custody rule requires that photograph the same in the presence of the accused or the person/s from
the admission of an exhibit be preceded by evidence sufficient to support a whom such items were confiscated and/or seized, or his/her representative or
finding that the matter in question is what the proponent claims it to be. It would counsel, a representative from the media and the Department of Justice (DOJ),
include testimony about every link in the chain, from the moment the item was and any elected public official who shall be required to sign the copies of the
picked up to the time it is offered into evidence, in such a way that every person inventory and be given a copy thereof: Provided, that the physical inventory and
who touched the exhibit would describe how and from whom it was received, photograph shall be conducted at the place where the search warrant is served;
where it was and what happened to it while in the witness' possession, the or at the nearest police station or at the nearest office of the apprehending
condition in which it was received and the condition in which it was delivered to officer/team, whichever is practicable, in case of warrantless seizures;
the next link in the chain. These witnesses would then describe the precautions Provided, further, that non-compliance with these requirements under justifiable
taken to ensure that there had been no change in the condition of the item and grounds, as long as the integrity and the evidentiary value of the seized items
no opportunity for someone not in the chain to have possession of the same.17 are properly preserved by the apprehending officer/team, shall not render void
Thus, the links in the chain of custody that must be established are: (1) the and invalid such seizures of and custody over said items.20
seizure and marking, if practicable, of the illegal drug recovered from the On July 15, 2014, R.A. No. 10640 was approved to amend R.A. No. 9165.
accused by the apprehending officer; (2) the turnover of the seized illegal drug Among other modifications, it essentially incorporated the saving clause
by the apprehending officer to the investigating officer; (3) the turnover of the contained in the IRR, thus:
illegal drug by the investigating officer to the forensic chemist for laboratory (1) The apprehending team having initial custody and control of the dangerous
examination; and (4) the turnover and submission of the illegal drug from the drugs, controlled precursors and essential chemicals,
forensic chemist to the court.18 instruments/paraphernalia and/or laboratory equipment shall, immediately after
seizure and confiscation, conduct a phyical inventory of the seized items and
Seizure and marking of the illegal photograph the same in the presence of the accused or the person/s from
drug as well as the turnover by the whom such items were confiscated and/or seized, or his/her representative or
apprehending officer to the counsel, with an elected public official and a representative of the National
investigating officer Prosecution Service or the media who shall be required to sign the copies of
the inventory and be given a copy thereof: Provided, That the physical inventory
Section 21(1), Article II of R.A. No. 9165 states: and photograph shall be conducted at the place where the search warrant is
Sec. 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered served; or at the nearest police station or at the nearest office of the
Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors apprehending officer/team, whichever is practicable, in case of warrantless
and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory seizures: Provided, finally, That noncompliance of these requirements under
Equipment. - The PDEA shall take charge and have custody of all dangerous justifiable grounds, as long as the integrity and the evidentiary value of the
drugs, plant sources of dangerous drugs, controlled precursors and essential seized items are properly preserved by the apprehending officer/team, shall not
chemicals, as well as instruments/paraphernalia and/or laboratory equipment render void and invalid such seizures and custody over said items.
so confiscated, seized and/or surrendered, for proper disposition in the In her Sponsorship Speech on Senate Bill No. 2273, which eventually became
following manner: R.A. No. 10640, Senator Grace Poe admitted that "while Section 21 was
(1) The apprehending team having initial custody and control of the drugs shall, enshrined in the Comprehensive Dangerous Drugs Act to safeguard the
immediately after seizure and confiscation, physically inventory and photograph integrity of the evidence acquired and prevent planting of evidence, the
the same in the presence of the accused or the person/s from whom such items application of said section resulted in the ineffectiveness of the government's
were confiscated and/or seized, or his/her representative or counsel, a campaign to stop increasing drug addiction and also, in the conflicting decisions
representative from the media and the Department of Justice (DOJ), and any of the courts."21 Specifically, she cited that "compliance with the rule on
elected public official who shall be required to sign the copies of the inventory witnesses during the physical inventory is difficult. For one, media
and be given a copy thereof[.]19 representatives are not always available in all comers of the Philippines,
Supplementing the above-quoted provision, Section 21(a) of the Implementing especially in more remote areas. For another, there were instances where
Rules and Regulations (IRR) of R.A. No. 9165 mandates: elected barangay officials themselves were involved in the punishable acts

4
apprehended. "22 In addition, "[t]he requirement that inventory is required to be available and the absence of these witnesses should not automatically
done in police station is also very limiting. Most police stations appeared to be invalidate the drug operation conducted. Even the presence of a public local
far from locations where accused persons were apprehended."23 elected official also is sometimes impossible especially if the elected official is
afraid or scared.25
Similarly, Senator Vicente C. Sotto III manifested that in view of the substantial We have held that the immediate physical inventory and photograph of the
number of acquittals in drug-related cases due to the varying interpretations of confiscated items at the place of arrest may be excused in instances when the
the prosecutors and the judges on Section 21 of R.A. No. 9165, there is a need safety and security of the apprehending officers and the witnesses required by
for "certain adjustments so that we can plug the loopholes in our existing law" law or of the items seized are threatened by immediate or extreme danger such
and "ensure [its] standard implementation."24 In his Co-sponsorship Speech, as retaliatory action of those who have the resources and capability to mount a
he noted: counter-assault.26 The present case is not one of those.
Numerous drug trafficking activities can be traced to operations of highly
organized and powerful local and international syndicates. The presence of Here, IO1 Orellan took into custody the P500.00 bill, the plastic box with the
such syndicates that have the resources and the capability to mount a counter- plastic sachet of white substance, and a disposable lighter. IO1 Carin also
assault to apprehending law enforcers makes the requirement of Section 21(a) turned over to him the plastic sachet that she bought from Lim. While in the
impracticable for law enforcers to comply with. It makes the place of seizure house, IO1 Orellan marked the two plastic sachets. IO1 Orellan testified that he
extremely unsafe for the proper inventory and photograph of seized illegal immediately conducted the marking and physical inventory of the two sachets
drugs. of shabu.27 To ensure that they were not interchanged, he separately marked
the item sold by Lim to IO1 Carin and the one that he recovered from his
xxxx possession upon body search as BB AEO 10-19-10 and AEO-RI 10-19-10,
respectively, with both bearing his initial/signature.28
Section 21(a) of RA 9165 needs to be amended to address the foregoing
situation. We did not realize this in 2002 where the safety of the law enforcers Evident, however, is the absence of an elected public official and
and other persons required to be present in the inventory and photography of representatives of the DOJ and the media to witness the physical inventory and
seized illegal drugs and the preservation of the very existence of seized illegal photograph of the seized items.29 In fact, their signatures do not appear in the
drugs itself are threatened by an immediate retaliatory action of drug syndicates Inventory Receipt.
at the place of seizure. The place where the seized drugs may be inventoried
and photographed has to include a location where the seized drugs as well as The Court stressed in People v. Vicente Sipin y De Castro:30
the persons who are required to be present during the inventory and The prosecution bears the burden of proving a valid cause for non-compliance
photograph are safe and secure from extreme danger. with the procedure laid down in Section 21 of R.A. No. 9165, as amended. It
has the positive duty to demonstrate observance thereto in such a way that
It is proposed that the physical inventory and taking of photographs of seized during the trial proceedings, it must initiate in acknowledging and justifying any
illegal drugs be allowed to be conducted either in the place of seizure or at the perceived deviations from the requirements of law. Its failure to follow the
nearest police station or office of the apprehending law enforcers. The proposal mandated procedure must be adequately explained, and must be proven as a
will provide effective measures to ensure the integrity of seized illegal drugs fact in accordance with the rules on evidence. It should take note that the rules
since a safe location makes it more probable for an inventory and photograph require that the apprehending officers do not simply mention a justifiable
of seized illegal drugs to be properly conducted, thereby reducing the incidents ground, but also clearly state this ground in their sworn affidavit, coupled with a
of dismissal of drug cases due to technicalities. statement on the steps they took to preserve the integrity of the seized items.
Strict adherence to Section 21 is required where the quantity of illegal drugs
Non-observance of the prescribed procedures should not automatically mean seized is miniscule, since it is highly susceptible to planting, tampering or
that the seizure or confiscation is invalid or illegal, as long as the law alteration of evidence.31
enforement officers could justify the same and could prove that the integrity and It must be alleged and proved that the presence of the three witnesses to the
the evidentiary value of the seized items are not tainted. This is the effect of the physical inventory and photograph of the illegal drug seized was not obtained
inclusion in the proposal to amend the phrase "justifiable grounds." There are due to reason/s such as:
instances wherein there are no media people or representatives from the DOJ

5
(1) their attendance was impossible because the place of arrest was a remote that these justifications are unacceptable as there was no genuine and
area; (2) their safety during the inventory and photograph of the seized drugs sufficient attempt to comply with the law.
was threatened by an immediate retaliatory action of the accused or any
person/s acting for and in his/her behalf; (3) the elected official themselves The testimony of team-leader IO2 Orcales negates any effort on the part of the
were involved in the punishable acts sought to be apprehended; (4) earnest buy-bust team to secure the presence of a barangay official during the
efforts to secure the presence of a DOJ or media representative and an elected operation:
public official within the period required under Article 125 of the Revised Penal ATTY. DEMECILLO:
Code prove futile through no fault of the arresting officers, who face the threat xxxx
of being charged with arbitrary detention; or (5) time constraints and urgency of
the anti-drug operations, which often rely on tips of confidential assets, Q
prevented the law enforcers from obtaining the presence of the required x x x Before going to the house of the accused, why did you not contact a
witnesses even before the offenders could escape.32 barangay official to witness the operation?
Earnest effort to secure the attendance of the necessary witnesses must be
proven. People v. Ramos33 requires: A
It is well to note that the absence of these required witnesses does not per se There are reasons why we do not inform a barangay official before our
render the confiscated items inadmissible. However, a justifiable reason for operation, Sir.
such failure or a showing of any genuine and sufficient effort to secure the
required witnesses under Section 21 of RA 9165 must be adduced. In People v. Q
Umipang, the Court held that the prosecution must show that earnest efforts Why?
were employed in contacting the representatives enumerated under the law for
"a sheer statement that representatives were unavailable without so much as A
an explanation on whether serious attempts were employed to look for other We do not contact them because we do not trust them. They might leak our
representatives, given the circumstances is to be regarded as a flimsy excuse." information.38
Verily, mere statements of unavailability, absent actual serious attempts to
contact the required witnesses are unacceptable as justified grounds for non- The prosecution likewise failed to explain why they did not secure the presence
compliance. These considerations arise from the fact that police officers are of a representative from the Department the arresting officer, IO1 Orellan,
ordinarily given sufficient time - beginning from the moment they have received stated in his Affidavit that they only tried to coordinate with the barangay
the information about the activities of the accused until the time of his arrest - to officials and the media, the testimonies of the prosecution witnesses failed to
prepare for a buy-bust operation and consequently, make the necessary show that they tried to contact a DOJ representative.
arrangements beforehand knowing full well that they would have to strictly
comply with the set procedure prescribed in Section 21 of RA 9165. As such, The testimonies of the prosecution witnesses also failed to establish the details
police officers are compelled not only to state reasons for their non-compliance, of an earnest effort to coordinate with and secure presence of the required
but must in fact, also convince the Court that they exerted earnest efforts to witnesses. They also failed to explain why the buy-bust team felt "unsafe" in
comply with the mandated procedure, and that under the given circumstances, waiting for the representatives in Lim's house, considering that the team is
their actions were reasonable.34 composed of at least ten (10) members, and the two accused were the only
In this case, IO1 Orellan testified that no members of the media and barangay persons in the house.
officials arrived at the crime scene because it was late at night and it was
raining, making it unsafe for them to wait at Lim's house.35 IO2 Orcales It bears emphasis that the rule that strict adherence to the mandatory
similarly declared that the inventory was made in the PDEA office considering requirements of Section 21(1) of R.A. No. 9165, as amended, and its IRR may
that it was late in the evening and there were no available media representative be excused as long as the integrity and the evidentiary value of the confiscated
and barangay officials despite their effort to contact them.36 He admitted that items are properly preserved applies not just on arrest and/or seizure by reason
there are times when they do not inform the barangay officials prior to their of a legitimate buy-bust operation but also on those lawfully made in air or sea
operation as they. might leak the confidential information.37 We are of the view port, detention cell or national penitentiary, checkpoint, moving vehicle, local or
international package/parcel/mail, or those by virtue of a consented search,

6
stop and frisk (Terry search), search incident to a lawful arrest, or application of appellant Romy Lim y Miranda guilty of violating Sections 11 and 5,
plain view doctrine where time is of the essence and the arrest and/or seizure respectively, of Article II of Republic Act No. 9165, is REVERSED and SET
is/are not planned, arranged or scheduled in advance. ASIDE. Accordingly, accused-appellant Romy Lim y Miranda is ACQUITTED on
reasonable doubt, and is ORDERED IMMEDIATELY RELEASED from
To conclude, judicial notice is taken of the fact that arrests and seizures related detention, unless he is being lawfully held for another cause. Let an entry of
to illegal drugs are typically made without a warrant; hence, subject to inquest final judgment be issued immediately.
proceedings. Relative thereto, Sections 1 (A.1.10) of the Chain of Custody
Implementing Rules and Regulations directs: Let a copy of this Decision be furnished the Superintendent of the Davao Prison
A.1.10. Any justification or explanation in cases of noncompliance with the and Penal Farm, B.E. Dujali, Davao del Norte, for immediate implementation.
requirements of Section 21 (1) of R.A. No. 9165, as amended, shall be clearly The said Director is ORDERED to REPORT to this Court within five (5) days
stated in the sworn statements/affidavits of the apprehending/seizing officers, from receipt of this Decision the action he has taken.
as well as the steps taken to preserve the integrity and evidentiary value of the
seized/confiscated items. Certification or record of coordination for operating Let copies of this Decision be furnished to the Secretary of the Department of
units other than the PDEA pursuant to Section 86 (a) and (b), Article IX of the Justice, as well as to the Head/Chief of the National Prosecution Service, the
IRR of R.A. No. 9165 shall be presented.39 Office of the Solicitor General, the Public Attorney's Office, the Philippine
While the above-quoted provision has been the rule, it appears that it has not National Police, the Philippine Drug Enforcement Agency, the National Bureau
been practiced in most cases elevated before Us. Thus, in order to weed out of Investigation, and the Integrated Bar of the Philippines for their information
early on from the courts' already congested docket any orchestrated or poorly and guidance. Likewise, the Office of the Court Administrator is DIRECTED to
built up drug-related cases, the following should henceforth be enforced as a DISSEMINATE copies of this Decision to all trial courts, including the Court of
mandatory policy: Appeals.
In the sworn statements/affidavits, the apprehending/seizing officers must state
their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as SO ORDERED
amended, and its IRR.
(Next page)
In case of non-observance of the provision, the apprehending/seizing officers
must state the justification or explanation therefor as well as the steps they
have taken in order to preserve the integrity and evidentiary value of the
seized/confiscated items.

If there is no justification or explanation expressly declared in the sworn

statements or affidavits, the investigating fiscal must not immediately file the
case before the court. Instead, he or she must refer the case for further
preliminary investigation in order to determine the (non) existence of probable
cause.

If the investigating fiscal filed the case despite such absence, the court may
exercise its discretion to either refuse to issue a commitment order (or warrant
of arrest) or dismiss the case outright for lack of probable cause in accordance
with Section 5,40
Rule 112, Rules of Court.
WHEREFORE, premises considered, the February 23, 2017 Decision of the
Court of Appeals in CA-G.R. CR HC No. 01280-MIN, which affirmed the
September 24, 2013 Decision of Regional Trial Court, Branch 25, Cagayan de
Oro City, in Criminal Cases Nos. 2010-1073 and 2010-1074, finding accused-

7
 Before us is a special civil action for certiorari and prohibition with application
for preliminary injunction and temporary restraining order1 under Rule 65 of the
Rules of Court seeking to nullify COMELEC’s Notice to Remove Campaign
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.

The facts are not disputed.

On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first tarpaulin contains the
message "IBASURA RH Law" referring to the Reproductive Health Law of 2012
or Republic Act No. 10354. The second tarpaulin is the subject of the present
case.4 This tarpaulin contains the heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH)
G.R. No. 205728 January 21, 2015 Team Patay" with an "X" mark.5 The electoral candidates were classified
according to their vote on the adoption of Republic Act No. 10354, otherwise
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. known as the RH Law.6 Those who voted for the passing of the law were
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS classified by petitioners as comprising "Team Patay," while those who voted
PERSONAL CAPACITY, Petitioners, against it form "Team Buhay":7
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF TEAM BUHAY TEAM PATAY
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
DECISION Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
LEONEN, J.: Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
"The Philippines is a democratic and republican State. Sovereignty resides in Party List Buhay Legarda, Loren
the people and all government authority emanates from them." – Article II, Party List Ang Pamilya Party List Gabriela
Section 1, Constitution Party List Akbayan
Party List Bayan Muna
All governmental authority emanates from our people. No unreasonable Party List Anak Pawis
restrictions of the fundamental and preferred right to expression of the During oral arguments, respondents conceded that the tarpaulin was neither
electorate during political contests no matter how seemingly benign will be sponsored nor paid for by any candidate. Petitioners also conceded that the
tolerated. tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
This case defines the extent that our people may shape the debates during for that election.
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to limit On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
expressions made by the citizens — who are not candidates — during Election Officer of Bacolod City, issued a Notice to Remove Campaign
elections. Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulin’s removal within three (3) days from

8
receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9 We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
On February 25, 2013, petitioners replied10 requesting, among others, that (1) and credible elections.
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal Thank you and God Bless!
remedies, the tarpaulin be allowed to remain.11
[signed]
On February 27, 2013, COMELEC Law Department issued a letter12 ordering ATTY. ESMERALDA AMORA-LADRA
the immediate removal of the tarpaulin; otherwise, it will be constrained to file Director IV13
an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter Concerned about the imminent threatof prosecution for their exercise of free
provides as follows: speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary restraining
Dear Bishop Navarra: order.14 They question respondents’ notice dated February 22, 2013 and letter
issued on February 27, 2013. They pray that: (1) the petition be given due
It has reached this Office that our Election Officer for this City, Atty. Mavil course; (2) a temporary restraining order (TRO) and/or a writ of preliminary
Majarucon, had already given you notice on February 22, 2013 as regards the injunction be issued restraining respondents from further proceeding in
election propaganda material posted on the church vicinity promoting for or enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after
against the candidates and party-list groups with the following names and notice and hearing, a decision be rendered declaring the questioned orders of
messages, particularly described as follows: respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15
Material size : six feet (6’) by ten feet (10’)
After due deliberation, this court, on March 5, 2013, issued a temporary
Description : FULL COLOR TARPAULIN restraining order enjoining respondents from enforcing the assailed notice and
letter, and set oral arguments on March 19, 2013.16
Image of : SEE ATTACHED PICTURES
On March 13, 2013, respondents filed their comment17 arguing that (1) a
Message : CONSCIENCE VOTE (ANTI RH) TEAM petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and letter of
BUHAY; (PRO RH) TEAM PATAY respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4
Location : POSTED ON THE CHURCH VICINITY of the Constitution. Hence, respondents claim that the issuances ordering its
OF THE DIOCESE OF BACOLOD CITY removal for being oversized are valid and constitutional.18

The three (3) – day notice expired on February 25, 2013. During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
Considering that the above-mentioned material is found to be in violation of consideration the intervening holidays.19
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
the size (even with the subsequent division of the said tarpaulin into two), as The issues, which also served as guide for the oral arguments, are:20
the lawful size for election propaganda material is only two feet (2’) by three
feet (3’), please order/cause the immediate removal of said election I.
propaganda material, otherwise, we shall be constrained to file an election
offense case against you.

9
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL SEPARATION OF CHURCH AND STATE.
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A
REVIEW OF THIS COURT VIA RULE 65 PETITION[;] I
PROCEDURAL ISSUES
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM I.A
COMELEC DECISIONS;
This court’s jurisdiction over COMELEC cases
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE
NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE Respondents ask that this petition be dismissed on the ground that the notice
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES and letter are not final orders, decisions, rulings, or judgments of the
WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE COMELEC En Banc issued in the exercise of its adjudicatory powers,
CASE[;] reviewable via Rule 64 of the Rules of Court.21

II. Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of discretion
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS resulting in the ouster of jurisdiction.22 As a special civil action, there must also
ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" be a showing that there be no plain, speedy, and adequate remedy in the
CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;] ordinary course of the law.

III. Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION rulings and orders of the COMELEC En Banc rendered in the exercise of its
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
ADVERTISEMENT[;] assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr.
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco
TO REGULATE THE SAME[;] v. COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
judicialintervention is limited to final decisions, orders, rulings and judgments of
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;] the COMELEC En Banc.31

IV. These cases are not applicable.

WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE Samar filed the election protest.32 At issue was the validity of the promulgation
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF of a COMELEC Division resolution.33 No motion for reconsideration was filed
SEPARATION OF CHURCH AND STATE[;] [AND] to raise this issue before the COMELEC En Banc. This court declared that it did
not have jurisdiction and clarified:
V.
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final
orders, rulings and decisionsof the COMELEC rendered in the exercise of its

10
adjudicatory or quasi-judicial powers." This decision must be a final decision or general rule that only final orders should be questioned with this court. The
resolution of the Comelec en banc, not of a division, certainly not an ponencia for this court, however, acknowledged the exceptions to the general
interlocutory order of a division.The Supreme Court has no power to review rule in ABS-CBN.44
viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted) Blanco v. COMELEC, another case cited by respondents, was a disqualification
case of one of the mayoralty candidates of Meycauayan, Bulacan.45 The
However, in the next case cited by respondents, Repol v. COMELEC, this court COMELEC Second Division ruled that petitioner could not qualify for the 2007
provided exceptions to this general rule. Repolwas another election protest elections due to the findings in an administrative case that he engaged in vote
case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the buying in the 1995 elections.46 No motion for reconsideration was filed before
case was brought to this court because the COMELEC First Division issued a the COMELEC En Banc. This court, however, took cognizance of this case
status quo ante order against the Regional Trial Court executing its decision applying one of the exceptions in ABS-CBN: The assailed resolution was a
pending appeal.37 This court’s ponencia discussed the general rule enunciated nullity.47
in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38 However, consistent with ABS-CBN Broadcasting Finally, respondents cited Cayetano v. COMELEC, a recent election protest
Corporation v. COMELEC,39 it clarified the exception: case involving the mayoralty candidates of Taguig City.48 Petitioner assailed a
resolution of the COMELEC denying her motion for reconsideration to dismiss
This Court, however, has ruled in the past that this procedural requirement [of the election protest petition for lack of form and substance.49 This court
filing a motion for reconsideration] may be glossed over to prevent miscarriage clarified the general rule and refused to take cognizance of the review of the
of justice, when the issue involves the principle of social justice or the protection COMELEC order. While recognizing the exceptions in ABS-CBN, this court
of labor, when the decision or resolution sought to be set aside is a nullity, or ruled that these exceptions did not apply.50
when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40 Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do
not operate as precedents to oust this court from taking jurisdiction over this
Based on ABS-CBN, this court could review orders and decisions of COMELEC case. All these cases cited involve election protests or disqualification cases
— in electoral contests — despite not being reviewed by the COMELEC En filed by the losing candidate against the winning candidate.
Banc, if:
In the present case, petitioners are not candidates seeking for public office.
1) It will prevent the miscarriage of justice; Their petition is filed to assert their fundamental right to expression.
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor; Furthermore, all these cases cited by respondents pertained to COMELEC’s
4) The decision or resolution sought tobe set aside is a nullity; or exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of
5) The need for relief is extremely urgent and certiorari is the only adequate and COMELEC in the implementation of its regulatory powers. When it issued the
speedy remedy available. notice and letter, the COMELEC was allegedly enforcingelection laws.

Ultimately, this court took jurisdiction in Repoland decided that the status quo I.B
anteorder issued by the COMELEC Division was unconstitutional.
Rule 65, grave abuse of discretion,
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of Muntinlupa and limitations on political speech
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
Division.42 While the petition was pending in this court, the COMELEC First COMELEC’s notice and letter.
Division dismissed the main election protest case.43 Sorianoapplied the

11
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
amounting to lack or excess of jurisdiction in issuing the notice51 dated instrumentality of the Government.56 (Emphasis supplied)
February 22,2013 and letter52 dated February 27, 2013 ordering the removal of
the tarpaulin.53 It is their position that these infringe on their fundamental right On the other hand, respondents relied on its constitutional mandate to decide
to freedom of expression and violate the principle of separation of church and all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
state and, thus, are unconstitutional.54 provides:

The jurisdiction of this court over the subject matter is determined from the Sec. 2. The Commission on Elections shall exercise the following powers and
allegations in the petition. Subject matter jurisdiction is defined as the authority functions:
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes ....
the court and defines its powers."55 Definitely, the subject matter in this case is
different from the cases cited by respondents. (3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
Nothing less than the electorate’s political speech will be affected by the appointment of election officials and inspectors, and registration of voters.
restrictions imposed by COMELEC. Political speech is motivated by the desire
to be heard and understood, to move people to action. It is concerned with the Respondents’ reliance on this provision is misplaced.
sovereign right to change the contours of power whether through the election of
representatives in a republican government or the revision of the basic text of We are not confronted here with the question of whether the COMELEC, in its
the Constitution. The zeal with which we protect this kind of speech does not exercise of jurisdiction, gravely abused it. We are confronted with the question
depend on our evaluation of the cogency of the message. Neither do we assess as to whether the COMELEC had any jurisdiction at all with its acts threatening
whether we should protect speech based on the motives of COMELEC. We imminent criminal action effectively abridging meaningful political speech.
evaluate restrictions on freedom of expression from their effects. We protect
both speech and medium because the quality of this freedom in practice will It is clear that the subject matter of the controversy is the effect of COMELEC’s
define the quality of deliberation in our democratic society. notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are be interpreted to mean that COMELEC has the exclusive power to decide any
capable of repetition. Under the conditions in which it was issued and in view of and allquestions that arise during elections. COMELEC’s constitutional
the novelty of this case,it could result in a "chilling effect" that would affect other competencies during elections should not operate to divest this court of its own
citizens who want their voices heard on issues during the elections. Other jurisdiction.
citizens who wish to express their views regarding the election and other
related issues may choose not to, for fear of reprisal or sanction by the The more relevant provision for jurisdiction in this case is Article VIII, Section
COMELEC. Direct resort to this court is allowed to avoid such proscribed 5(1) of the Constitution.This provision provides for this court’s original
conditions. Rule 65 is also the procedural platform for raising grave abuse of jurisdiction over petitions for certiorari and prohibition. This should be read
discretion. alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
Constitution.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this court’s expanded exercise of certiorari as provided by the Certainly, a breach of the fundamental right of expression by COMELEC is
Constitution as follows: grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this court’s power to review.
Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, During elections, we have the power and the duty to correct any grave abuse of
and to determine whether ornot there has been a grave abuse of discretion discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the COMELEC.

12
Furthermore, it is this court’s constitutional mandate to protect the people The Supreme Court is a court of lastresort, and must so remain if it is to
against government’s infringement of their fundamental rights. This satisfactorily perform the functions assigned to it by the fundamental charter
constitutional mandate out weighs the jurisdiction vested with the COMELEC. and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so-
It will, thus, be manifest injustice if the court does not take jurisdiction over this called extraordinary writs should be exercised only where absolutely necessary
case. or where serious and important reasons exist therefore. Hence, that jurisdiction
should generally be exercised relative to actions or proceedings before the
I.C Court of Appeals, or before constitutional or other tribunals, bodies or agencies
whose acts for some reason or another are not controllable by the Court of
Hierarchy of courts Appeals. Where the issuance of an extraordinary writ is also within the
competence of the Court of Appeals or a Regional Trial Court, it is in either of
This brings us to the issue of whether petitioners violated the doctrine of these courts that the specific action for the writ’s procurement must be
hierarchy of courts in directly filing their petition before this court. presented. This is and should continue to be the policy in this regard, a policy
that courts and lawyers must strictly observe.66 (Emphasis omitted)
Respondents contend that petitioners’ failure to file the proper suit with a lower
court of concurrent jurisdiction is sufficient ground for the dismissal of their The doctrine that requires respect for the hierarchy of courts was created by
petition.57 They add that observation of the hierarchy of courts is compulsory, this court to ensure that every level of the judiciary performs its designated
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while roles in an effective and efficient manner. Trial courts do not only determine the
there are exceptions to the general rule on hierarchy of courts, none of these facts from the evaluation of the evidence presented before them. They are
are present in this case.59 likewise competent to determine issues of law which may include the validity of
an ordinance, statute, or even an executive issuance in relation to the
On the other hand, petitioners cite Fortich v. Corona60 on this court’s Constitution.67 To effectively perform these functions, they are territorially
discretionary power to take cognizance of a petition filed directly to it if organized into regions and then into branches. Their writs generally reach
warranted by "compelling reasons, or [by] the nature and importance of the within those territorial boundaries. Necessarily, they mostly perform the all-
issues raised. . . ."61 Petitioners submit that there are "exceptional and important task of inferring the facts from the evidence as these are physically
compelling reasons to justify a direct resort [with] this Court."62 presented before them. In many instances, the facts occur within their territorial
jurisdiction, which properly present the ‘actual case’ that makes ripe a
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of determination of the constitutionality of such action. The consequences, of
the hierarchy of courts: course, would be national in scope. There are, however, some cases where
resort to courts at their level would not be practical considering their decisions
The Court must enjoin the observance of the policy on the hierarchy of courts, could still be appealed before the higher courts, such as the Court of Appeals.
and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court from The Court of Appeals is primarily designed as an appellate court that reviews
having to deal with causes that are also well within the competence of the lower the determination of facts and law made by the trial courts. It is collegiate in
courts, and thus leave time to the Court to deal with the more fundamental and nature. This nature ensures more standpoints in the review of the actions of the
more essential tasks that the Constitution has assigned to it. The Court may act trial court. But the Court of Appeals also has original jurisdiction over most
on petitions for the extraordinary writs of certiorari, prohibition and mandamus special civil actions. Unlike the trial courts, its writs can have a nationwide
only when absolutely necessary or when serious and important reasons exist to scope. It is competent to determine facts and, ideally, should act on
justify an exception to the policy.64 constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.
In Bañez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65 This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating — in the light of new circumstances or in the light of some
confusions of bench or bar — existing precedents. Rather than a court of first

13
instance or as a repetition of the actions of the Court of Appeals, this court fundamental principle in our Constitution. As such, their right to engage in free
promulgates these doctrinal devices in order that it truly performs that role. expression of ideas must be given immediate protection by this court.

In other words, the Supreme Court’s role to interpret the Constitution and act in A second exception is when the issuesinvolved are of transcendental
order to protect constitutional rights when these become exigent should not be importance.74 In these cases, the imminence and clarity of the threat to
emasculated by the doctrine in respect of the hierarchy of courts. That has fundamental constitutional rights outweigh the necessity for prudence. The
never been the purpose of such doctrine. doctrine relating to constitutional issues of transcendental importance prevents
courts from the paralysis of procedural niceties when clearly faced with the
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court need for substantial protection.
has "full discretionary power to take cognizance and assume jurisdiction [over]
special civil actions for certiorari . . .filed directly with it for exceptionally In the case before this court, there is a clear threat to the paramount right of
compelling reasons69 or if warranted by the nature of the issues clearly and freedom of speech and freedom of expression which warrants invocation of
specifically raised in the petition."70 As correctly pointed out by petitioners,71 relief from this court. The principles laid down in this decision will likely
we have provided exceptions to this doctrine: influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote for
First, a direct resort to this court is allowed when there are genuine issues of one’s chosen candidate, but also the right to vocalize that choice to the public in
constitutionality that must be addressed at the most immediate time. A direct general, in the hope of influencing their votes. It may be said that in an election
resort to this court includes availing of the remedies of certiorari and prohibition year, the right to vote necessarily includes the right to free speech and
toassail the constitutionality of actions of both legislative and executive expression. The protection of these fundamental constitutional rights, therefore,
branches of the government.72 allows for the immediate resort to this court.

In this case, the assailed issuances of respondents prejudice not only Third, cases of first impression75 warrant a direct resort to this court. In cases
petitioners’ right to freedom of expression in the present case, but also of others of first impression, no jurisprudence yet exists that will guide the lower courts on
in future similar cases. The case before this court involves an active effort on this matter. In Government of the United States v. Purganan,76 this court took
the part of the electorate to reform the political landscape. This has become a cognizance of the case as a matter of first impression that may guide the lower
rare occasion when private citizens actively engage the public in political courts:
discourse. To quote an eminent political theorist:
In the interest of justice and to settle once and for all the important issue of bail
[T]he theory of freedom of expression involves more than a technique for in extradition proceedings, we deem it best to take cognizance of the present
arriving at better social judgments through democratic procedures. It case. Such proceedings constitute a matter of first impression over which there
comprehends a vision of society, a faith and a whole way of life. The theory is, as yet, no local jurisprudence to guide lower courts.77
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of This court finds that this is indeed a case of first impression involving as it does
reason, and his prospects of creating a rational and enlightened civilization the issue of whether the right of suffrage includes the right of freedom of
virtually unlimited. It is put forward as a prescription for attaining a creative, expression. This is a question which this court has yet to provide substantial
progressive, exciting and intellectually robust community. It contemplates a answers to, through jurisprudence. Thus, direct resort to this court is allowed.
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative Fourth, the constitutional issues raisedare better decided by this court. In Drilon
of a society that is tyrannical, conformist, irrational and stagnant.73 v. Lim,78 this court held that:

In a democracy, the citizen’s right tofreely participate in the exchange of ideas . . . it will be prudent for such courts, if only out of a becoming modesty, to defer
in furtherance of political decision-making is recognized. It deserves the highest to the higher judgmentof this Court in the consideration of its validity, which is
protection the courts may provide, as public participation in nation-building isa better determined after a thorough deliberation by a collegiate body and with

14
the concurrence of the majority of those who participated in its discussion.79 doctrine of hierarchy of courts included citizens’ right to bear arms,83
(Citation omitted) government contracts involving modernization of voters’ registration lists,84 and
the status and existence of a public office.85
In this case, it is this court, with its constitutionally enshrined judicial power, that
can rule with finality on whether COMELEC committed grave abuse of This case also poses a question of similar, if not greater import. Hence, a direct
discretion or performed acts contrary to the Constitution through the assailed action to this court is permitted.
issuances.
It is not, however, necessary that all of these exceptions must occur at the
Fifth, the time element presented in this case cannot be ignored. This case was same time to justify a direct resort to this court. While generally, the hierarchy of
filed during the 2013 election period. Although the elections have already been courts is respected, the present case falls under the recognized exceptions
concluded, future cases may be filed that necessitate urgency in its resolution. and, as such, may be resolved by this court directly.
Exigency in certain situations would qualify as an exception for direct resort to
this court. I.D

Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a The concept of a political question
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held
that "[i]t is easy to realize the chaos that would ensue if the Court of First Respondents argue further that the size limitation and its reasonableness is a
Instance ofeach and every province were [to] arrogate itself the power to political question, hence not within the ambit of this court’s power of review.
disregard, suspend, or contradict any order of the Commission on Elections: They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to
that constitutional body would be speedily reduced to impotence."81 support their position:

In this case, if petitioners sought to annul the actions of COMELEC through It might be worth mentioning that Section 26, Article II, of the Constitution also
pursuing remedies with the lower courts, any ruling on their part would not have states that the "State shall guarantee equal access to opportunities for public
been binding for other citizens whom respondents may place in the same service, and prohibit political dynasties as may be defined by law." I see neither
situation. Besides, thiscourt affords great respect to the Constitution and the Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that
powers and duties imposed upon COMELEC. Hence, a ruling by this court adversarial or irreconcilably inconsistent with the right of free expression. In any
would be in the best interest of respondents, in order that their actions may be event, the latter, being one of general application, must yield to the specific
guided accordingly in the future. demands of the Constitution. The freedom of expression concededly holds, it is
true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
Seventh, petitioners rightly claim that they had no other plain, speedy, and fundamental rights, it is not without limitations.
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents’ acts in violation of their right to freedom of The case is not about a fight between the "rich" and the "poor" or between the
expression. "powerful" and the "weak" in our society but it is to me a genuine attempt on the
part of Congress and the Commission on Elections to ensure that all candidates
In this case, the repercussions of the assailed issuances on this basic right are given an equal chance to media coverage and thereby be equally perceived
constitute an exceptionally compelling reason to justify the direct resort to this as giving real life to the candidates’ right of free expression rather than being
court. The lack of other sufficient remedies in the course of law alone is viewed as an undue restriction of that freedom. The wisdom in the enactment of
sufficient ground to allow direct resort to this court. the law, i.e., that which the legislature deems to be best in giving life to the
Constitutional mandate, is not for the Court to question; it is a matter that lies
Eighth, the petition includes questionsthat are "dictated by public welfare and beyond the normal prerogatives of the Court to pass upon.87
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the This separate opinion is cogent for the purpose it was said. But it is not in point
appeal was consideredas clearly an inappropriate remedy."82 In the past, in this case.
questions similar to these which this court ruled on immediately despite the

15
The present petition does not involve a dispute between the rich and poor, or petition asks this court to nullify certain acts that are exclusively within the
the powerful and weak, on their equal opportunities for media coverage of domain of their respective competencies, as provided by the Constitution or the
candidates and their right to freedom of expression. This case concerns the law. In such situation, presumptively, this court should act with deference. It will
right of petitioners, who are non-candidates, to post the tarpaulin in their private decline to void an act unless the exercise of that power was so capricious and
property, asan exercise of their right of free expression. Despite the invocation arbitrary so as to amount to grave abuse of discretion.
of the political question doctrine by respondents, this court is not proscribed
from deciding on the merits of this case. The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what or collective right. Even assuming arguendo that the COMELEC did have the
constitutes a political question: discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their Marcos v. Manglapus90 limited the use of the political question doctrine:
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary When political questions are involved, the Constitution limits the determination
power to act.89 (Emphasis omitted) to whether or not there has been a grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the official whose action is being
It is not for this court to rehearse and re-enact political debates on what the text questioned. If grave abuse is not established, the Court will not substitute its
of the law should be. In political forums, particularly the legislature, the creation judgment for that of the official concerned and decide a matter which by its
of the textof the law is based on a general discussion of factual circumstances, nature or by law is for the latter alone to decide.91
broadly construed in order to allow for general application by the executive
branch. Thus, the creation of the law is not limited by particular and specific How this court has chosen to address the political question doctrine has
facts that affect the rights of certain individuals, per se. undergone an evolution since the timethat it had been first invoked in Marcos v.
Manglapus. Increasingly, this court has taken the historical and social context of
Courts, on the other hand, rule on adversarial positions based on existing facts the case and the relevance of pronouncements of carefully and narrowly
established on a specific case-to-case basis, where parties affected by the legal tailored constitutional doctrines. This trend was followed in cases such as Daza
provision seek the courts’ understanding of the law. v. Singson92 and Coseteng v. Mitra Jr.93

The complementary nature of the political and judicial branches of government Daza and Coseteng involved a question as to the application of Article VI,
is essential in order to ensure that the rights of the general public are upheld at Section 18 of the 1987 Constitution involving the removal of petitioners from the
all times. In order to preserve this balance, branches of government must afford Commission on Appointments. In times past, this would have involved a quint
due respectand deference for the duties and functions constitutionally essentially political question as it related to the dominance of political parties in
delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence Congress. However, in these cases, this court exercised its power of judicial
dictates that we are careful not to veto political acts unless we can craft doctrine review noting that the requirement of interpreting the constitutional provision
narrowly tailored to the circumstances of the case. involved the legality and not the wisdom of a manner by which a constitutional
duty or power was exercised. This approach was again reiterated in Defensor
The case before this court does not call for the exercise of prudence or Santiago v. Guingona, Jr.94
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII, In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
Section 1 of the Constitution. the possible existence ofa political question did not bar an examination of
whether the exercise of discretion was done with grave abuse of discretion. In
A political question arises in constitutional issues relating to the powers or that case, this court ruled on the question of whether there was grave abuse of
competence of different agencies and departments of the executive or those of discretion in the President’s use of his power to call out the armed forces to
the legislature. The political question doctrine is used as a defense when the prevent and suppress lawless violence.

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In Estrada v. Desierto,96 this court ruled that the legal question as to whether a Francisco also provides the cases which show the evolution of the political
former President resigned was not a political question even if the question, as applied in the following cases:
consequences would be to ascertain the political legitimacy of a successor
President. In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
Many constitutional cases arise from political crises. The actors in such crises doctrine and broadens the scope of judicial inquiry into areas which the
may use the resolution of constitutional issues as leverage. But the expanded Court,under previous constitutions, would have normally left to the political
jurisdiction of this court now mandates a duty for it to exercise its power of departments to decide. x x x
judicial review expanding on principles that may avert catastrophe or resolve
social conflict. In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla,
this Court declared:
This court’s understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held: The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
While it is true that courts cannot inquire into the manner in which the political question doctrine neither interposes an obstacle to judicial
President's discretionary powers are exercised or into the wisdom for its determination of the rival claims. The jurisdiction to delimit constitutional
exercise, it is also a settled rule that when the issue involved concerns the boundaries has been given to this Court. It cannot abdicate that obligation
validity of such discretionary powers or whether said powers are within the mandated by the 1987 Constitution, although said provision by no means does
limits prescribed by the Constitution, We will not decline to exercise our power away with the applicability of the principle in appropriate cases." (Emphasis and
of judicial review. And such review does not constitute a modification or italics supplied)
correction of the act of the President, nor does it constitute interference with the
functions of the President.98 And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
The concept of judicial power in relation to the concept of the political question
was discussed most extensively in Francisco v. HRET.99 In this case, the In the case now before us, the jurisdictional objection becomes even less
House of Representatives arguedthat the question of the validity of the second tenable and decisive. The reason is that, even if we were to assume that the
impeachment complaint that was filed against former Chief Justice Hilario issue presented before us was political in nature, we would still not be
Davide was a political question beyond the ambit of this court. Former Chief precluded from resolving it under the expanded jurisdiction conferred upon us
Justice Reynato Puno elaborated on this concept in his concurring and that now covers, in proper cases, even the political question.x x x (Emphasis
dissenting opinion: and italics supplied.)

To be sure, the force to impugn the jurisdiction of this Court becomes more ....
feeble in light of the new Constitution which expanded the definition of judicial
power as including "the duty of the courts of justice to settle actual In our jurisdiction, the determination of whether an issue involves a truly political
controversies involving rights which are legally demandable and enforceable, and non-justiciable question lies in the answer to the question of whether there
and to determine whether or not there has been a grave abuse of discretion are constitutionally imposed limits on powers or functions conferred upon
amounting to lack or excess of jurisdiction on the part of any branch or political bodies. If there are, then our courts are duty-bound to examine whether
instrumentality of the Government." As well observed by retired Justice Isagani the branch or instrumentality of the government properly acted within such
Cruz, this expanded definition of judicial power considerably constricted the limits.101 (Citations omitted)
scope of political question. He opined that the language luminously suggests
that this duty (and power) is available even against the executive and legislative As stated in Francisco, a political question will not be considered justiciable if
departments including the President and the Congress, in the exercise of their there are no constitutionally imposed limits on powers or functions conferred
discretionary powers.100 (Emphasis in the original, citations omitted) upon political bodies. Hence, the existence of constitutionally imposed limits

17
justifies subjecting the official actions of the body to the scrutiny and review of Political speech enjoys preferred protection within our constitutional order. In
this court. Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
everthere is a hierarchy of protected expressions, political expression would
In this case, the Bill of Rights gives the utmost deference to the right to free occupy the highest rank, and among different kinds of political expression, the
speech. Any instance that this right may be abridged demands judicial scrutiny. subject of fair and honest elections would be at the top."108 Sovereignty
It does not fall squarely into any doubt that a political question brings. resides in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies yields in
I.E order to protect this fundamental right.

Exhaustion of administrative remedies Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Respondents allege that petitioners violated the principle of exhaustion of Chua v. Ang,110 this court held:
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102 On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
Respondents point out that petitioners failed to comply with the requirement in when there is a violation of due process; (b) when the issue involved is purely a
Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in legal question; (c) when the administrative action is patently illegal amounting to
the ordinary course of law."103 They add that the proper venue to assail the lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
validity of the assailed issuances was in the course of an administrative hearing administrative agency concerned; (e) when there is irreparable injury; (f) when
to be conducted by COMELEC.104 In the event that an election offense is filed the respondent is a department secretary whose acts as analter ego of the
against petitioners for posting the tarpaulin, they claim that petitioners should President bear the implied and assumed approval of the latter; (g) when to
resort to the remedies prescribed in Rule 34 of the COMELEC Rules of require exhaustion of administrative remedies would be unreasonable; (h) when
Procedure.105 it would amount to a nullification of a claim; (i) when the subject matter is a
private land in land case proceedings; (j) whenthe rule does not provide a plain,
The argument on exhaustion of administrative remedies is not proper in this speedy and adequate remedy; or (k) when there are circumstances indicating
case. the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)

Despite the alleged non-exhaustion of administrative remedies, it is clear that The circumstances emphasized are squarely applicable with the present case.
the controversy is already ripe for adjudication. Ripeness is the "prerequisite First, petitioners allegethat the assailed issuances violated their right to freedom
that something had by then been accomplished or performed by either branch of expression and the principle of separation of church and state. This is a
[or in this case, organ of government] before a court may come into the purely legal question. Second, the circumstances of the present case indicate
picture."106 the urgency of judicial intervention considering the issue then on the RH Law as
well as the upcoming elections. Thus, to require the exhaustion of
Petitioners’ exercise of their rightto speech, given the message and their administrative remedies in this case would be unreasonable.
medium, had understandable relevance especially during the elections.
COMELEC’s letter threatening the filing of the election offense against Time and again, we have held that this court "has the power to relax or
petitioners is already an actionable infringement of this right. The impending suspend the rules or to except a case from their operation when compelling
threat of criminal litigation is enough to curtail petitioners’ speech. reasons so warrant, or whenthe purpose of justice requires it, [and when] [w]hat
constitutes [as] good and sufficient cause that will merit suspension of the rules
In the context of this case, exhaustion of their administrative remedies as is discretionary upon the court".112 Certainly, this case of first impression
COMELEC suggested in their pleadings prolongs the violation of their freedom where COMELEC has threatenedto prosecute private parties who seek to
of speech. participate in the elections by calling attention to issues they want debated by
the publicin the manner they feel would be effective is one of those cases.

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II Similar to the media, petitioners in the case at bar are neither franchise holders
SUBSTANTIVE ISSUES nor candidates. II.A.2

II.A Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122
COMELEC had no legal basis to regulate expressions made by private citizens
Sec. 2. The Commission on Elections shall exercise the following powers and
Respondents cite the Constitution, laws, and jurisprudence to support their functions:
position that they had the power to regulate the tarpaulin.113 However, all of
these provisions pertain to candidates and political parties. Petitioners are not ....
candidates. Neither do theybelong to any political party. COMELEC does not
have the authority to regulate the enjoyment of the preferred right to freedom of (7) Recommend to the Congress effective measures to minimize election
expression exercised by a non-candidate in this case. spending, including limitation of places where propaganda materials shall be
posted, and to prevent and penalize all forms of election frauds, offenses,
II.A.1 malpractices, and nuisance candidates. (Emphasis supplied) Based on the
enumeration made on actsthat may be penalized, it will be inferred that this
First, respondents cite Article IX-C, Section 4 of the Constitution, which provision only affects candidates.
provides:
Petitioners assail the "Notice to Remove Campaign Materials" issued by
Section 4. The Commission may,during the election period, supervise or COMELEC. This was followed bythe assailed letter regarding the "election
regulate the enjoyment or utilization of all franchises or permits for the operation propaganda material posted on the church vicinity promoting for or against the
of transportation and other public utilities, media of communication or candidates and party-list groups. . . ."123
information, all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality thereof, including Section 9 of the Fair Election Act124 on the posting of campaign materials only
any government-owned or controlled corporation or its subsidiary. Such mentions "parties" and "candidates":
supervision or regulation shall aim to ensure equal opportunity, time, and
space, and the right to reply, including reasonable, equal rates therefor, for Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
public information campaigns and forums among candidates in connection with parties and party-list groups to erect common poster areas for their candidates
the objective of holding free, orderly, honest, peaceful, and credible in not more than ten (10) public places such as plazas, markets, barangay
elections.114 (Emphasis supplied) centers and the like, wherein candidates can post, display or exhibit election
propaganda: Provided, That the size ofthe poster areas shall not exceed twelve
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during (12) by sixteen (16) feet or its equivalent. Independent candidates with no
the plebiscite for the creation of the Cordillera Autonomous Region.116 political parties may likewise be authorized to erect common poster areas in not
Columnist Pablito V. Sanidad questioned the provision prohibiting journalists more than ten (10) public places, the size of which shall not exceed four (4) by
from covering plebiscite issues on the day before and on plebiscite day.117 six (6) feet or its equivalent. Candidates may post any lawful propaganda
Sanidad argued that the prohibition was a violation of the "constitutional material in private places with the consent of the owner thereof, and in public
guarantees of the freedom of expression and of the press. . . ."118 We held that places or property which shall be allocated equitably and impartially among the
the "evil sought to be prevented by this provision is the possibility that a candidates. (Emphasis supplied)
franchise holder may favor or give any undue advantage to a candidate in
terms of advertising space or radio or television time."119 This court found that Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
"[m]edia practitioners exercising their freedom of expression during plebiscite regulations implementing the Fair Election Act, provides as follows:
periods are neither the franchise holders nor the candidates[,]"120 thus, their
right to expression during this period may not be regulated by COMELEC.121 SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:

19
 the Constitution, to some extent, set a limit on the right to free speech during
a. Authorized common poster areasin public places subject to the requirements election period.127
and/or limitations set forth in the next following section; and
National Press Club involved the prohibition on the sale and donation of space
b. Private places provided it has the consent of the owner thereof. and time for political advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was brought by
The posting of campaign materials in public places outside of the designated representatives of mass media and two candidates for office in the 1992
common poster areas and those enumerated under Section 7 (g) of these elections. They argued that the prohibition on the sale and donation of space
Rules and the like is prohibited. Persons posting the same shall be liable and time for political advertisements is tantamount to censorship, which
together with the candidates and other persons who caused the posting. It will necessarily infringes on the freedom of speech of the candidates.128
be presumed that the candidates and parties caused the posting of campaign
materials outside the common poster areas if they do not remove the same This court upheld the constitutionality of the COMELEC prohibition in National
within three (3) days from notice which shall be issued by the Election Officer of Press Club. However, this case does not apply as most of the petitioners were
the city or municipality where the unlawful election propaganda are posted or electoral candidates, unlike petitioners in the instant case. Moreover, the
displayed. subject matter of National Press Club, Section 11(b) of Republic Act No.
6646,129 only refers to a particular kind of media such as newspapers, radio
Members of the PNP and other law enforcement agencies called upon by the broadcasting, or television.130 Justice Feliciano emphasized that the provision
Election Officeror other officials of the COMELEC shall apprehend the violators did not infringe upon the right of reporters or broadcasters to air their
caught in the act, and file the appropriate charges against them. (Emphasis commentaries and opinions regarding the candidates, their qualifications, and
supplied) program for government. Compared to Sanidadwherein the columnists lost their
ability to give their commentary on the issues involving the plebiscite, National
Respondents considered the tarpaulin as a campaign material in their Press Clubdoes not involve the same infringement.
issuances. The above provisions regulating the posting of campaign materials
only apply to candidates and political parties, and petitioners are neither of the In the case at bar, petitioners lost their ability to give a commentary on the
two. candidates for the 2013 national elections because of the COMELEC notice
and letter. It was not merelya regulation on the campaigns of candidates vying
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states for public office. Thus, National Press Clubdoes not apply to this case.
that these are "allowed for all registered political parties, national, regional,
sectoral parties or organizations participating under the party-list elections and Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
for all bona fide candidates seeking national and local elective positions subject Omnibus Election Code, defines an"election campaign" as follows:
to the limitation on authorized expenses of candidates and political parties. . . ."
Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. ....
These provisions show that election propaganda refers to matter done by or on
behalf of and in coordination with candidates and political parties. Some level of (b) The term "election campaign" or "partisan political activity" refers to an act
coordination with the candidates and political parties for whom the election designed to promote the election or defeat of a particular candidate or
propaganda are released would ensure that these candidates and political candidates to a public office which shall include:
parties maintain within the authorized expenses limitation.
(1) Forming organizations, associations, clubs, committees or other groups of
The tarpaulin was not paid for byany candidate or political party.125 There was persons for the purpose of soliciting votes and/or undertaking any campaign for
no allegation that petitioners coordinated with any of the persons named in the or against a candidate;
tarpaulin regarding its posting. On the other hand, petitioners posted the
tarpaulin as part of their advocacy against the RH Law. Respondents also cite (2) Holding political caucuses, conferences, meetings, rallies, parades, or other
National Press Club v. COMELEC126 in arguing that its regulatory power under similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;

20
(3) Making speeches, announcements or commentaries, or holding interviews Fundamental to the consideration of this issue is Article III, Section 4 of the
for or against the election of any candidate for public office; Constitution:

(4) Publishing or distributing campaign literature or materials designed to Section 4. No law shall be passed abridging the freedom of speech, of
support or oppose the election of any candidate; or expression, or of the press, or the right of the people peaceably to assemble
and petition the government for redress of grievances.132
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate. No law. . .

The foregoing enumerated acts ifperformed for the purpose of enhancing the While it is true that the present petition assails not a law but an opinion by the
chances of aspirants for nomination for candidacy to a public office by a political COMELEC Law Department, this court has applied Article III, Section 4 of the
party, aggroupment, or coalition of parties shall not be considered as election Constitution even to governmental acts.
campaign or partisan election activity. Public expressions or opinions or
discussions of probable issues in a forthcoming electionor on attributes of or In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119
criticisms against probable candidates proposed to be nominated in a of the Revised Ordinances of 1927 of Manila for the public meeting and
forthcoming political party convention shall not be construed as part of any assembly organized by petitioner Primicias.134 Section 1119 requires a
election campaign or partisan political activity contemplated under this Article. Mayor’s permit for the use of streets and public places for purposes such as
(Emphasis supplied) athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the
True, there is no mention whether election campaign is limited only to the holding of petitioner’s public meeting.136 Nevertheless, this court recognized
candidates and political parties themselves. The focus of the definition is that the constitutional right to freedom of speech, to peaceful assembly and to
the act must be "designed to promote the election or defeat of a particular petition for redress of grievances, albeit not absolute,137 and the petition for
candidate or candidates to a public office." mandamus to compel respondent Mayor to issue the permit was granted.138

In this case, the tarpaulin contains speech on a matter of public concern, that is, In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
a statement of either appreciation or criticism on votes made in the passing of Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
the RH law. Thus, petitioners invoke their right to freedom of expression. issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
II.B case and, consequently, the assailed resolution was nullified and set aside.140

The violation of the constitutional right . . . shall be passed abridging. . .

to freedom of speech and expression All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
Petitioners contend that the assailed notice and letter for the removal of the prohibition against regulation. The primary and incidental burden on speech
tarpaulin violate their fundamental right to freedom of expression. must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
On the other hand, respondents contend that the tarpaulin is an election kind of society framed by our Constitution.
propaganda subject to their regulation pursuant to their mandate under Article
IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering . . . of expression. . .
itsremoval for being oversized are valid and constitutional.131
Our Constitution has also explicitly included the freedom of expression,
II.B.1 separate and in addition to the freedom of speech and of the press provided in

21
the US Constitution. The word "expression" was added in the 1987 Constitution
by Commissioner Brocka for having a wider scope: The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction itself as
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On a symbolic manner of communication.
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the change of In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
the word "speech" to EXPRESSION; or if not, add the words AND who were members of the religious sect Jehovah’s Witnesses were to be
EXPRESSION after the word "speech," because it is more expansive, it has a expelled from school for refusing to salute the flag, sing the national anthem,
wider scope, and it would refer to means of expression other than speech. and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz
discussed how the salute is a symbolic manner of communication and a valid
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say? form of expression.150 He adds that freedom of speech includes even the right
to be silent:
FR. BERNAS: "Expression" is more broad than speech. We accept it.
Freedom of speech includes the right to be silent. Aptly has it been said that the
MR. BROCKA: Thank you. Bill of Rights that guarantees to the individual the liberty to utter what is in his
mind also guarantees to him the liberty not to utter what is not in his mind. The
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted? salute is a symbolic manner of communication that conveys its messageas
clearly as the written or spoken word. As a valid form of expression, it cannot
FR. BERNAS: Yes. be compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) deny them the right not to speak when their religion bids them to be silent. This
The Chair hears none; the amendment is approved. coercion of conscience has no place in the free society.

FR. BERNAS: So, that provision will now read: "No law shall be passed The democratic system provides for the accommodation of diverse ideas,
abridging the freedom of speech, expression or of the press . . . ."141 Speech including the unconventional and even the bizarre or eccentric. The will of the
may be said to be inextricably linked to freedom itself as "[t]he right to think is majority prevails, but it cannot regiment thought by prescribing the recitation by
the beginning of freedom, and speech must be protected from the government rote of its opinions or proscribing the assertion of unorthodox or unpopular
because speech is the beginning of thought."142 views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
II.B.2 Constitution. The State cannot make the individual speak when the soul within
rebels.151
Communication is an essential outcome of protected speech.143
Communication exists when "(1) a speaker, seeking to signal others, uses Even before freedom "of expression" was included in Article III, Section 4 of the
conventional actions because he orshe reasonably believes that such actions present Constitution,this court has applied its precedent version to expressions
will be taken by the audience in the manner intended; and (2) the audience so other than verbal utterances.
takes the actions."144 "[I]n communicative action[,] the hearer may respond to
the claims by . . . either accepting the speech act’s claims or opposing them In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to
with criticism or requests for justification."145 the classification of the motion picture "Kapit sa Patalim" as "For Adults Only."
They contend that the classification "is without legal and factual basis and is
Speech is not limited to vocal communication. "[C]onduct is treated as a form of exercised as impermissible restraint of artistic expression."153 This court
speech sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when recognized that "[m]otion pictures are important both as a medium for the
‘speech’ and ‘nonspeech’ elements are combined in the same course of communication of ideas and the expression of the artistic impulse."154 It adds
conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to bring that "every writer,actor, or producer, no matter what medium of expression he
into play the [right to freedom of expression].’"147 may use, should be freed from the censor."155 This court found that "[the

22
Board’s] perception of what constitutes obscenity appears to be unduly These points become more salient when it is the electorate, not the candidates
restrictive."156 However, the petition was dismissed solely on the ground that or the political parties, that speaks. Too often, the terms of public discussion
there were not enough votes for a ruling of grave abuse of discretion in the during elections are framed and kept hostage by brief and catchy but
classification made by the Board.157 meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
II.B.3 celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have
Size does matter the better incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have better incentives to
The form of expression is just as important as the information conveyed that it avoid difficult political standpoints and instead focus on appearances and empty
forms part of the expression. The present case is in point. promises.

It is easy to discern why size matters. Large tarpaulins, therefore, are not analogous to time and place.158 They are
fundamentally part of expression protected under Article III, Section 4 of the
First, it enhances efficiency in communication. A larger tarpaulin allows larger Constitution.
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving II.B.4
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin. The There are several theories and schools of thought that strengthen the need to
larger the fonts and images, the greater the probability that it will catch their protect the basic right to freedom of expression.
attention and, thus, the greater the possibility that they will understand its
message. First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary person’s perspective, those who post Proponents of the political theory on "deliberative democracy" submit that
their messages in larger fonts care more about their message than those who "substantial, open, [and] ethical dialogue isa critical, and indeed defining,
carry their messages in smaller media. The perceived importance given by the feature of a good polity."159 This theory may be considered broad, but it
speakers, in this case petitioners, to their cause is also part of the message. definitely "includes [a] collective decision making with the participation of all
The effectivity of communication sometimes relies on the emphasis put by the who will beaffected by the decision."160 It anchors on the principle that the
speakers and onthe credibility of the speakers themselves. Certainly, larger cornerstone of every democracy is that sovereignty resides in the people.161
segments of the public may tend to be more convinced of the point made by To ensure order in running the state’s affairs, sovereign powers were delegated
authoritative figures when they make the effort to emphasize their messages. and individuals would be elected or nominated in key government positions to
represent the people. On this note, the theory on deliberative democracy may
Third, larger spaces allow for more messages. Larger spaces, therefore, may evolve to the right of the people to make government accountable. Necessarily,
translate to more opportunities to amplify, explain, and argue points which the this includes the right of the people to criticize acts made pursuant to
speakers might want to communicate. Rather than simply placing the names governmental functions.
and images of political candidates and an expression of support, larger spaces
can allow for brief but memorable presentations of the candidates’ platforms for Speech that promotes dialogue on publicaffairs, or airs out grievances and
governance. Larger spaces allow for more precise inceptions of ideas, catalyze political discontent, should thus be protected and encouraged.
reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both Borrowing the words of Justice Brandeis, "it is hazardous to discourage
good governance and accountability in our government. thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety lies

23
in the opportunity to discuss freely supposed grievances and proposed these rights so that he can appeal to the appropriate governmental officers or
remedies."162 agencies for redress and protection as well as for the imposition of the lawful
sanctions on erring public officers and employees.172 (Emphasis supplied)
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public Fourth, expression is a marker for group identity. For one, "[v]oluntary
affairs."163 This court has, thus, adopted the principle that "debate on public associations perform [an] important democratic role [in providing] forums for the
issues should be uninhibited, robust,and wide open . . . [including even] development of civil skills, for deliberation, and for the formation of identity and
unpleasantly sharp attacks on government and public officials."164 community spirit[,] [and] are largely immune from [any] governmental
interference."173 They also "provide a buffer between individuals and the state
Second, free speech should be encouraged under the concept of a market - a free space for the development of individual personality, distinct group
place of ideas. This theory was articulated by Justice Holmes in that "the identity, and dissident ideas - and a potential source of opposition to the
ultimate good desired is better reached by [the] free trade in ideas:"165 state."174 Free speech must be protected as the vehicle to find those who have
similar and shared values and ideals, to join together and forward common
When men have realized that time has upset many fighting faiths, they may goals.
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas - Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals
that the best test of truth is the power of the thought to get itself accepted in the and minorities against majoritarian abuses perpetrated through [the] framework
competition of the market, and that truth is the only ground upon which their [of democratic governance]."175 Federalist framers led by James Madison
wishes safely can be carried out.166 were concerned about two potentially vulnerable groups: "the citizenry at large -
majorities - who might be tyrannized or plundered by despotic federal
The way it works, the exposure to the ideas of others allows one to "consider, officials"176 and the minorities who may be oppressed by "dominant factions of
test, and develop their own conclusions."167 A free, open, and dynamic market the electorate [that] capture [the] government for their own selfish ends[.]"177
place of ideas is constantly shaping new ones. This promotes both stability and According to Madison, "[i]t is of great importance in a republic not only to guard
change where recurring points may crystallize and weak ones may develop. Of the society against the oppression of its rulers, but to guard one part of the
course, free speech is more than the right to approve existing political beliefs society against the injustice of the other part."178 We should strive to ensure
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes, that free speech is protected especially in light of any potential oppression
[the] freedom for the thought that we hate, no less than for the thought that against those who find themselves in the fringes on public issues.
agrees with us."168 In fact, free speech may "best serve its high purpose when
it induces a condition of unrest, creates dissatisfaction with conditions as they Lastly, free speech must be protected under the safety valve theory.179 This
are, or even stirs people to anger."169 It is in this context that we should guard provides that "nonviolent manifestations of dissent reduce the likelihood of
against any curtailment of the people’s right to participate in the free trade of violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a
ideas. menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to avoid
Third, free speech involves self-expression that enhances human dignity. This this situation and prevent people from resorting to violence, there is a need for
right is "a means of assuring individual self-fulfillment,"170 among others. In peaceful methods in making passionate dissent. This includes "free expression
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills and political participation"183 in that they can "vote for candidates who share
Co., Inc,171 this court discussed as follows: their views, petition their legislatures to [make or] change laws, . . . distribute
literature alerting other citizens of their concerns[,]"184 and conduct peaceful
The rights of free expression, free assembly and petition, are not only civil rallies and other similar acts.185 Free speech must, thus, be protected as a
rights but also political rights essential to man's enjoyment of his life, to his peaceful means of achieving one’s goal, considering the possibility that
happiness and to his full and complete fulfillment.Thru these freedoms the repression of nonviolent dissent may spill over to violent means just to drive a
citizens can participate not merely in the periodic establishment of the point.
government through their suffrage but also in the administration of public affairs
as well as in the discipline of abusive public officers. The citizen is accorded II.B.5

24
 ceases to be an efficacious shield against the tyranny of officials, of majorities,
Every citizen’s expression with political consequences enjoys a high degree of ofthe influential and powerful, and of oligarchs - political, economic or
protection. Respondents argue that the tarpaulinis election propaganda, being otherwise.
petitioners’ way of endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to regulation by In the hierarchy of civil liberties, the rights of free expression and of assembly
COMELEC under its constitutional mandate.187 Election propaganda is defined occupy a preferred position as they are essential to the preservation and vitality
under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. of our civil and political institutions; and such priority "gives these liberties the
Definitions . . . sanctity and the sanction not permitting dubious intrusions."195 (Citations
omitted)
....
This primordial right calls for utmost respect, more so "when what may be
4. The term "political advertisement" or "election propaganda" refers to any curtailed is the dissemination of information to make more meaningful the
matter broadcasted, published, printed, displayed or exhibited, in any medium, equally vital right of suffrage."196 A similar idea appeared in our jurisprudence
which contain the name, image, logo, brand, insignia, color motif, initials, and as early as 1969, which was Justice Barredo’s concurring and dissenting
other symbol or graphic representation that is capable of being associated with opinion in Gonzales v. COMELEC:197
a candidate or party, and is intended to draw the attention of the public or a
segment thereof to promote or oppose, directly or indirectly, the election of the I like to reiterate over and over, for it seems this is the fundamental point others
said candidate or candidates to a public office. In broadcast media, political miss, that genuine democracy thrives only where the power and right of the
advertisements may take the form of spots, appearances on TV shows and people toelect the men to whom they would entrust the privilege to run the
radio programs, live or taped announcements, teasers, and other forms of affairs of the state exist. In the language of the declaration of principles of our
advertising messages or announcements used by commercial advertisers. Constitution, "The Philippines is a republican state. Sovereignty resides in the
Political advertising includes matters, not falling within the scope of personal people and all government authority emanates from them" (Section 1, Article II).
opinion, that appear on any Internet website, including, but not limited to, social Translating this declaration into actuality, the Philippines is a republic because
networks, blogging sites, and micro-blogging sites, in return for consideration, and solely because the people in it can be governed only by officials whom they
or otherwise capable of pecuniary estimation. themselves have placed in office by their votes. And in it is on this cornerstone
that I hold it tobe self-evident that when the freedoms of speech, press and
On the other hand, petitioners invoke their "constitutional right to communicate peaceful assembly and redress of grievances are being exercised in relation to
their opinions, views and beliefs about issues and candidates."188 They argue suffrage or asa means to enjoy the inalienable right of the qualified citizen to
that the tarpaulin was their statement of approval and appreciation of the vote, they are absolute and timeless. If our democracy and republicanism are to
named public officials’ act of voting against the RH Law, and their criticism be worthwhile, the conduct of public affairs by our officials must be allowed to
toward those who voted in its favor.189 It was "part of their advocacy campaign suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and
against the RH Law,"190 which was not paid for by any candidate or political at all times. Every holder of power in our government must be ready to undergo
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and exposure any moment of the day or night, from January to December every
curtail[ed] [their] freedom of expression should be declared unconstitutional and year, as it is only in this way that he can rightfully gain the confidence of the
void."192 people. I have no patience for those who would regard public dissection of the
establishment as an attribute to be indulged by the people only at certain
This court has held free speech and other intellectual freedoms as "highly periods of time. I consider the freedoms of speech, press and peaceful
ranked in our scheme of constitutional values."193 These rights enjoy assembly and redress of grievances, when exercised in the name of suffrage,
precedence and primacy.194 In Philippine Blooming Mills, this court discussed as the very means by which the right itself to vote can only be properly
the preferred position occupied by freedom of expression: enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or
Property and property rights can belost thru prescription; but human rights are time.198 (Emphasis supplied)
imprescriptible. If human rights are extinguished by the passage of time, then
the Bill of Rights is a useless attempt to limit the power of government and

25
Not all speech are treated the same. In Chavez v. Gonzales, this court advertisements may take the form of spots, appearances on TV shows and
discussed that some types of speech may be subject to regulation: radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
Some types of speech may be subjected to some regulation by the State under Political advertising includes matters, not falling within the scope of personal
its pervasive police power, in order that it may not be injurious to the equal right opinion, that appear on any Internet website, including, but not limited to, social
of others or those of the community or society. The difference in treatment is networks, blogging sites, and micro-blogging sites, in return for consideration,
expected because the relevant interests of one type of speech, e.g., political or otherwise capable of pecuniary estimation. (Emphasis supplied)
speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation It is clear that this paragraph suggests that personal opinions are not included,
ofthe permissible scope of restrictions on various categories of speech. We while sponsored messages are covered.
have ruled, for example, that in our jurisdiction slander or libel, lewd and
obscene speech, as well as "fighting words" are not entitled to constitutional Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
protection and may be penalized.199 (Citations omitted) states:

We distinguish between politicaland commercial speech. Political speech refers SECTION 1. Definitions - As used in this Resolution:
to speech "both intended and received as a contribution to public deliberation
about some issue,"200 "foster[ing] informed and civicminded deliberation."201 1. The term "election campaign" or "partisan political activity" refers to an act
On the other hand, commercial speech has been defined as speech that does designed to promote the election or defeat of a particular candidate or
"no more than propose a commercial transaction."202 The expression resulting candidates to a public office, and shall include any of the following:
from the content of the tarpaulin is, however, definitely political speech. In
Justice Brion’s dissenting opinion, he discussed that "[t]he content of the ....
tarpaulin, as well as the timing of its posting, makes it subject of the regulations
in RA 9006 and Comelec Resolution No. 9615."203 He adds that "[w]hile Personal opinions, views, and preferences for candidates, contained in blogs
indeed the RH issue, by itself,is not an electoralmatter, the slant that the shall not be considered acts of election campaigning or partisan politicalactivity
petitioners gave the issue converted the non-election issue into a live election unless expressed by government officials in the Executive Department, the
one hence, Team Buhay and Team Patay and the plea to support one and Legislative Department, the Judiciary, the Constitutional Commissions, and
oppose the other."204 members of the Civil Service.

While the tarpaulin may influence the success or failure of the named In any event, this case does not refer to speech in cyberspace, and its effects
candidates and political parties, this does not necessarily mean it is election and parameters should be deemed narrowly tailored only in relation to the facts
propaganda. The tarpaulin was not paid for or posted "in return for and issues in this case. It also appears that such wording in COMELEC
consideration" by any candidate, political party, or party-list group. Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or
the rules and regulations implementing Republic Act No. 9006 as an aid to We should interpret in this manner because of the value of political speech.
interpret the law insofar as the facts of this case requires, states:
As early as 1918, in United States v. Bustos,205 this court recognized the need
4. The term "political advertisement" or "election propaganda" refers to any for full discussion of public affairs. We acknowledged that free speech includes
matter broadcasted, published, printed, displayed or exhibited, in any medium, the right to criticize the conduct of public men:
which contain the name, image, logo, brand, insignia, color motif, initials, and
other symbol or graphic representation that is capable of being associated with The interest of society and the maintenance of good government demand a full
a candidate or party, and is intended to draw the attention of the public or a discussion of public affairs. Complete liberty to comment on the conduct of
segment thereof to promote or oppose, directly or indirectly, the election of the public men is a scalpel in the case of free speech. The sharp incision of its
said candidate or candidates to a public office. In broadcast media, political probe relieves the abscesses of official dom. Men in public life may suffer under

26
a hostile and an unjust accusation; the wound can be assuaged with the balm
of a clear conscience. A public officer must not be too thin-skinned with Thus, in Adiong v. COMELEC,220 this court discussed the importance of
reference to comment upon his official acts. Only thus can the intelligence and debate on public issues, and the freedom of expression especially in relation to
dignity of the individual be exalted.206 information that ensures the meaningful exercise of the right of suffrage:

Subsequent jurisprudence developed the right to petition the government for We have adopted the principle that debate on public issues should be
redress of grievances, allowing for criticism, save for some exceptions.207 In uninhibited, robust, and wide open and that it may well include vehement,
the 1951 case of Espuelas v. People,208 this court noted every citizen’s caustic and sometimes unpleasantly sharp attacks on government and public
privilege to criticize his or her government, provided it is "specific and therefore officials. Too many restrictions will deny to people the robust, uninhibited, and
constructive, reasoned or tempered, and not a contemptuous condemnation of wide open debate, the generating of interest essential if our elections will truly
the entire government set-up."209 be free, clean and honest.

The 1927 case of People v. Titular210 involved an alleged violation of the We have also ruled that the preferred freedom of expression calls all the more
Election Law provision "penaliz[ing] the anonymous criticism of a candidate by for the utmost respect when what may be curtailed is the dissemination of
means of posters or circulars."211 This court explained that it is the poster’s information to make more meaningful the equally vital right of suffrage.221
anonymous character that is being penalized.212 The ponente adds that he (Emphasis supplied, citations omitted)
would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213 Speech with political consequences isat the core of the freedom of expression
and must be protected by this court.
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie in the Justice Brion pointed out that freedomof expression "is not the god of rights to
fact that there may be something worth hearing from the dissenter [and] [t]hat is which all other rights and even government protection of state interest must
to ensurea true ferment of ideas."215 bow."222

Allowing citizens to air grievances and speak constructive criticisms against The right to freedom of expression isindeed not absolute. Even some forms of
their government contributes to every society’s goal for development. It puts protected speech are still subjectto some restrictions. The degree of restriction
forward matters that may be changed for the better and ideas that may be may depend on whether the regulation is content-based or content-neutral.223
deliberated on to attain that purpose. Necessarily, it also makes the Content-based regulations can either be based on the viewpoint of the speaker
government accountable for acts that violate constitutionally protected rights. or the subject of the expression.

In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, II.B.6
which prohibits mass media from selling print space and air time for campaign
except to the COMELEC, to be a democracy-enhancing measure.216 This Content-based regulation
court mentioned how "discussion of public issues and debate on the
qualifications of candidates in an election are essential to the proper functioning COMELEC contends that the order for removal of the tarpaulin is a content-
of the government established by our Constitution."217 neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda.224
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs the On the other hand, petitioners argue that the present size regulation is content-
people what the issues are, and who are supporting what issues."218 At the based as it applies only to political speech and not to other forms of speech
heart of democracy is every advocate’s right to make known what the people such as commercial speech.225 "[A]ssuming arguendo that the size restriction
need to know,219 while the meaningful exercise of one’s right of suffrage sought to be applied . . . is a mere time, place, and manner regulation, it’s still
includes the right of every voter to know what they need to know in order to unconstitutional for lack of a clear and reasonable nexus with a constitutionally
make their choice. sanctioned objective."226

27
 Content-based restraint or censorship refers to restrictions "based on the
The regulation may reasonably be considered as either content-neutral or subject matter of the utterance or speech."232 In contrast, content-neutral
content-based.227 Regardless, the disposition of this case will be the same. regulation includes controls merely on the incidents of the speech such as time,
Generally, compared with other forms of speech, the proposed speech is place, or manner of the speech.233
content-based.
This court has attempted to define "content-neutral" restraints starting with the
As pointed out by petitioners, the interpretation of COMELEC contained in the 1948 case of Primicias v. Fugoso.234 The ordinance in this case was
questioned order applies only to posters and tarpaulins that may affect the construed to grant the Mayor discretion only to determine the public places that
elections because they deliver opinions that shape both their choices. It does may be used for the procession ormeeting, but not the power to refuse the
not cover, for instance, commercial speech. issuance of a permit for such procession or meeting.235 This court explained
that free speech and peaceful assembly are "not absolute for it may be so
Worse, COMELEC does not point to a definite view of what kind of expression regulated that it shall not beinjurious to the equal enjoyment of others having
of non-candidates will be adjudged as "election paraphernalia." There are no equal rights, nor injurious to the rights of the community or society."236
existing bright lines to categorize speech as election-related and those that are
not. This is especially true when citizens will want to use their resources to be The earlier case of Calalang v. Williams237 involved the National Traffic
able to raise public issues that should be tackled by the candidates as what has Commission resolution that prohibited the passing of animal-drawn vehicles
happened in this case. COMELEC’s discretion to limit speech in this case is along certain roads at specific hours.238 This court similarly discussed police
fundamentally unbridled. power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
Size limitations during elections hit ata core part of expression. The content of interest and convenience of the public."239
the tarpaulin is not easily divorced from the size of its medium.
As early as 1907, United States v. Apurado240 recognized that "more or less
Content-based regulation bears a heavy presumption of invalidity, and this disorder will mark the public assembly of the people to protest against
court has used the clear and present danger rule as measure.228 Thus, in grievances whether real or imaginary, because on such occasions feeling is
Chavez v. Gonzales: always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time,
A content-based regulation, however, bears a heavy presumption of invalidity place, and manner of the speech.
and is measured against the clear and present danger rule. The latter will pass
constitutional muster only if justified by a compelling reason, and the restrictions In the landmark case of Reyes v. Bagatsing, this court summarized the steps
imposedare neither overbroad nor vague.229 (Citations omitted) that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
Under this rule, "the evil consequences sought to be prevented must be assembly.242 This would afford the public official time to inform applicants if
substantive, ‘extremely serious and the degree of imminence extremely there would be valid objections, provided that the clear and present danger test
high.’"230 "Only when the challenged act has overcome the clear and present is the standard used for his decision and the applicants are given the
danger rule will it pass constitutional muster, with the government having the opportunity to be heard.243 This ruling was practically codified in Batas
burden of overcoming the presumed unconstitutionality."231 Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

Even with the clear and present danger test, respondents failed to justify the Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
regulation. There is no compelling and substantial state interest endangered by content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
the posting of the tarpaulinas to justify curtailment of the right of freedom of discussed how Batas Pambansa No. 880 does not prohibit assemblies but
expression. There is no reason for the state to minimize the right of non- simply regulates their time, place, and manner.245 In 2010, this court found in
candidate petitioners to post the tarpaulin in their private property. The size of Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
the tarpaulin does not affect anyone else’s constitutional rights. committed grave abuse of discretion when he modified the rally permit by

28
changing the venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247 Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are
necessary to ensure equality of public information campaigns among
We reiterate that the regulation involved at bar is content-based. The tarpaulin candidates, as allowing posters with different sizes gives candidates and their
content is not easily divorced from the size of its medium. supporters the incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an undue advantage
II.B.7 against candidates with more humble financial capabilities."257

Justice Carpio and Justice Perlas-Bernabe suggest that the provisions First, Adiong v. COMELEC has held that this interest is "not as important as the
imposing a size limit for tarpaulins are content-neutral regulations as these right of [a private citizen] to freely express his choice and exercise his right of
"restrict the mannerby which speech is relayed but not the content of what is free speech."258 In any case, faced with both rights to freedom of speech and
conveyed."248 equality, a prudent course would be to "try to resolve the tension in a way that
protects the right of participation."259
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints Second, the pertinent election lawsrelated to private property only require that
on freedom of speech.249 "When the speech restraints take the form of a the private property owner’s consent be obtained when posting election
content-neutral regulation, only a substantial governmental interest is required propaganda in the property.260 This is consistent with the fundamental right
for its validity,"250 and it is subject only to the intermediate approach.251 against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent from
This intermediate approach is based on the test that we have prescribed in the property owner. Thus, this regulation does not apply in this case.
several cases.252 A content-neutral government regulation is sufficiently
justified: Respondents likewise cite the Constitution262 on their authority to recommend
effective measures to minimize election spending. Specifically, Article IX-C,
[1] if it is within the constitutional power of the Government; [2] if it furthers an Section 2(7) provides:
important or substantial governmental interest; [3] if the governmental interest is
unrelated to the suppression of free expression; and [4] if the incident restriction Sec. 2. The Commission on Elections shall exercise the following powers and
on alleged [freedom of speech & expression] is no greater than is essential to functions:
the furtherance of that interest.253
....
On the first requisite, it is not within the constitutional powers of the COMELEC
to regulate the tarpaulin. As discussed earlier, this is protected speech by (7) Recommend to the Congress effective measures to minimize election
petitioners who are non-candidates. On the second requirement, not only must spending, including limitation of places where propaganda materials shall be
the governmental interest be important or substantial, it must also be posted, and to prevent and penalize all forms of election frauds, offenses,
compelling as to justify the restrictions made. malpractices, and nuisance candidates. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify regulation
Compelling governmental interest would include constitutionally declared of the preferred right to freedom of expression.
principles. We have held, for example, that "the welfare of children and the
State’s mandate to protect and care for them, as parens patriae,254 constitute The assailed issuances for the removal of the tarpaulin are based on the two
a substantial and compelling government interest in regulating . . . utterances in feet (2’) by three feet (3’) size limitation under Section 6(c) of COMELEC
TV broadcast."255 Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding This court held in Adiong v. COMELEC that "[c]ompared to the paramount
of a free, orderly, honest, peaceful, and credible election.256 interest of the State in guaranteeing freedom of expression, any financial

29
considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged and On the one extreme, this can take illicit forms such as when endorsement
not curtailed. As petitioners pointed out, the size limitation will not serve the materials in the form of tarpaulins, posters, or media advertisements are made
objective of minimizing election spending considering there is no limit on the ostensibly by "friends" but in reality are really paid for by the candidate or
number of tarpaulins that may be posted.265 political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
The third requisite is likewise lacking. We look not only at the legislative intent
or motive in imposing the restriction, but more so at the effects of such However, as agreed by the parties during the oral arguments in this case, this is
restriction, if implemented. The restriction must not be narrowly tailored to not the situation that confronts us. In such cases, it will simply be a matter for
achieve the purpose. It must be demonstrable. It must allow alternative investigation and proof of fraud on the part of the COMELEC.
avenues for the actor to make speech.
The guarantee of freedom of expression to individuals without any relationship
In this case, the size regulation is not unrelated to the suppression of speech. to any political candidate should not be held hostage by the possibility of abuse
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners’ by those seeking to be elected. It is true that there can be underhanded, covert,
message and violate their right to exercise freedom of expression. or illicit dealings so as to hide the candidate’s real levels of expenditures.
However, labelling all expressions of private parties that tend to have an effect
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of on the debate in the elections as election paraphernalia would be too broad a
dissuading expressions with political consequences. These should be remedy that can stifle genuine speech like in this case. Instead, to address this
encouraged, more so when exercised to make more meaningful the equally evil, better and more effective enforcement will be the least restrictive means to
important right to suffrage. the fundamental freedom.

The restriction in the present case does not pass even the lower test of On the other extreme, moved by the credentials and the message of a
intermediate scrutiny for content-neutral regulations. candidate, others will spend their own resources in order to lend support for the
campaigns. This may be without agreement between the speaker and the
The action of the COMELEC in thiscase is a strong deterrent to further speech candidate or his or her political party. In lieu of donating funds to the campaign,
by the electorate. Given the stature of petitioners and their message, there are they will instead use their resources directly in a way that the candidate or
indicators that this will cause a "chilling effect" on robust discussion during political party would have doneso. This may effectively skirt the constitutional
elections. and statutory limits of campaign spending.

The form of expression is just as important as the message itself. In the words Again, this is not the situation in this case.
of Marshall McLuhan, "the medium is the message."266 McLuhan’s colleague
and mentor Harold Innis has earlier asserted that "the materials on which words The message of petitioners in thiscase will certainly not be what candidates and
were written down have often counted for more than the words political parties will carry in their election posters or media ads. The message of
themselves."267 petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it communicates the desire of Diocese
III that the positions of those who run for a political position on this social issue be
Freedom of expression and equality determinative of how the public will vote. It primarily advocates a stand on a
social issue; only secondarily — even almost incidentally — will cause the
III.A election or non-election of a candidate.

The possibility of abuse The twin tarpaulins consist of satire of political parties. Satire is a "literary form
that employs such devices as sarcasm, irony and ridicule to deride prevailing
Of course, candidates and political parties do solicit the help of private vices or follies,"268 and this may target any individual or group in society,
individuals for the endorsement of their electoral campaigns. private and government alike. It seeks to effectively communicate a greater

30
purpose, often used for "political and social criticism"269 "because it tears However, the Constitution we interpret is not a theoretical document. It contains
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is other provisions which, taken together with the guarantee of free expression,
more thoroughly democratic than to have the high-and-mighty lampooned and enhances each other’s value. Among these are the provisions that
spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire acknowledge the idea of equality. In shaping doctrine construing these
had two defining features: "one is wit or humor founded on fantasy or a sense constitutional values, this court needs to exercise extraordinary prudence and
of the grotesque and absurd, the other is an object of attack."271 Thus, satire produce narrowly tailored guidance fit to the facts as given so as not to
frequently uses exaggeration, analogy, and other rhetorical devices. unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it III.B.
to mean that the entire plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and parodies the Speech and equality:
intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
with the list of "Team Buhay" that further emphasizes the theme of its author: Some considerations We first establish that there are two paradigms of free
Reproductive health is an important marker for the church of petitioners to speech that separate at the point of giving priority to equality vis-à-vis
endorse. liberty.272

The messages in the tarpaulins are different from the usual messages of In an equality-based approach, "politically disadvantaged speech prevails over
candidates. Election paraphernalia from candidates and political parties are regulation[,] but regulation promoting political equality prevails over
more declarative and descriptive and contain no sophisticated literary allusion speech."273 This view allows the government leeway to redistribute or equalize
to any social objective. Thus, they usually simply exhort the public to vote for a ‘speaking power,’ such as protecting, even implicitly subsidizing, unpopular or
person with a brief description of the attributes of the candidate. For example dissenting voices often systematically subdued within society’s ideological
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba ladder.274 This view acknowledges that there are dominant political actors
kami sa Makati." who, through authority, power, resources, identity, or status, have capabilities
that may drown out the messages of others. This is especially true in a
This court’s construction of the guarantee of freedom of expression has always developing or emerging economy that is part of the majoritarian world like ours.
been wary of censorship or subsequent punishment that entails evaluation of
the speaker’s viewpoint or the content of one’s speech. This is especially true The question of libertarian tolerance
when the expression involved has political consequences. In this case, it hopes
to affect the type of deliberation that happens during elections. A becoming This balance between equality and the ability to express so as to find one’s
humility on the part of any human institution no matter how endowed with the authentic self or to participate in the self determination of one’s communities is
secular ability to decide legal controversies with finality entails that we are not not new only to law. It has always been a philosophical problematique.
the keepers of all wisdom.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Humanity’s lack of omniscience, even acting collectively, provides space for the Herbert Marcuse recognized how institutionalized inequality exists as a
weakest dissent. Tolerance has always been a libertarian virtue whose version background limitation, rendering freedoms exercised within such limitation as
is embedded in our Billof Rights. There are occasional heretics of yesterday merely "protect[ing] the already established machinery of discrimination."275 In
that have become our visionaries. Heterodoxies have always given us pause. his view, any improvement "in the normal course of events" within an unequal
The unforgiving but insistent nuance that the majority surely and comfortably society, without subversion, only strengthens existing interests of those in
disregards provides us with the checks upon reality that may soon evolve into power and control.276
creative solutions to grave social problems. This is the utilitarian version. It
could also be that it is just part of human necessity to evolve through being able In other words, abstract guarantees of fundamental rights like freedom of
to express or communicate. expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:

31
 political speech as "both intended and received as a contribution to public
Liberty is self-determination, autonomy—this is almost a tautology, but a deliberation about some issue."286
tautology which results from a whole series of synthetic judgments. It stipulates
the ability to determine one’s own life: to be able to determine what to do and But this is usually related also tofair access to opportunities for such
what not to do, what to suffer and what not. But the subject of this autonomy is liberties.287 Fair access to opportunity is suggested to mean substantive
never the contingent, private individual as that which he actually is or happens equality and not mere formal equalitysince "favorable conditions for realizing
to be; it is rather the individual as a human being who is capable of being free the expressive interest will include some assurance of the resources required
with the others. And the problem of making possible such a harmony between for expression and some guarantee that efforts to express views on matters of
every individual liberty and the other is not that of finding a compromise common concern will not be drowned out by the speech of betterendowed
between competitors, or between freedom and law, between general and citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech with
individual interest, common and private welfare in an established society, but of more speech."289 This view moves away from playing down the danger as
creating the society in which man is no longer enslaved by institutions which merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
vitiate self-determination from the beginning. In other words, freedom is still to expression as the preferred strategy for addressing them."290 However, in
be created even for the freest of the existing societies.277 (Emphasis in the some cases, the idea of more speech may not be enough. Professor Laurence
original) Tribe observed the need for context and "the specification of substantive values
before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
Marcuse suggests that the democratic argument — with all opinions presented that "equality continues to be viewed in a formal rather than a substantive
to and deliberated by the people — "implies a necessary condition, namely, that sense."292 Thus, more speech can only mean more speech from the few who
the people must be capable of deliberating and choosing on the basis of are dominant rather than those who are not.
knowledge, that they must have access to authentic information, and that, on
this basis, their evaluation must be the result of autonomous thought."278 He Our jurisprudence
submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace This court has tackled these issues.
of ideas’ is organized and delimited by those who determine the national and
the individual interest."279 A slant toward left manifests from his belief that Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
"there is a ‘natural right’ of resistance for oppressed and overpowered validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section
minorities to use extralegal means if the legal ones have proved to be "prohibits mass media from selling or giving free of charge print space or air
inadequate."280 Marcuse, thus, stands for an equality that breaks away and time for campaign or other political purposes, except to the Commission on
transcends from established hierarchies, power structures, and indoctrinations. Elections."294 This court explained that this provision only regulates the time
The tolerance of libertarian society he refers to as "repressive tolerance." and manner of advertising in order to ensure media equality among
candidates.295 This court grounded this measure on constitutional provisions
Legal scholars mandating political equality:296 Article IX-C, Section 4

The 20th century also bears witness to strong support from legal scholars for Section 4. The Commission may, during the election period, supervise or
"stringent protections of expressive liberty,"281 especially by political regulate the enjoyment or utilization of all franchises or permits for the operation
egalitarians. Considerations such as "expressive, deliberative, and of transportation and other public utilities, media of communication or
informational interests,"282 costs or the price of expression, and background information, all grants, special privileges, or concessions granted by the
facts, when taken together, produce bases for a system of stringent protections Government or any subdivision, agency, or instrumentality thereof, including
for expressive liberties.283 any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
Many legal scholars discuss the interest and value of expressive liberties. space, and the right to reply, including reasonable, equal rates therefor, for
Justice Brandeis proposed that "public discussion is a political duty."284 Cass public information campaigns and forums among candidates in connection with
Sustein placed political speech on the upper tier of his twotier model for the objective of holding free, orderly, honest, peaceful, and credible elections.
freedom of expression, thus, warranting stringent protection.285 He defined (Emphasis supplied)

32
Article XIII, Section 1 And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation,
Section 1. The Congress shall give highest priorityto the enactment of health, public discussion, private animosities, the weather, the threshold of a
measures that protect and enhance the right of all the people to human dignity, voter’s resistance to pressure — the utmost ventilation of opinion of men and
reducesocial, economic, and political inequalities, and remove cultural issues, through assembly, association and organizations, both by the candidate
inequities by equitably diffusing wealth and political power for the common and the voter, becomes a sine qua non for elections to truly reflect the will of
good. the electorate.302 (Emphasis supplied)

To this end, the State shall regulate the acquisition, ownership, use, and Justice Romero’s dissenting opinion cited an American case, if only to
disposition of property and its increments. (Emphasis supplied) emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political
Article II, Section 26 content,"303 thus:

Section 26. The State shall guarantee equal access to opportunities for public the concept that the government may restrict the speech of some elements in
service, and prohibit political dynasties as may be defined by law. (Emphasis our society in order to enhance the relative voice of the others is wholly foreign
supplied) to the First Amendment which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic sources" and "to
Thus, in these cases, we have acknowledged the Constitution’s guarantee for assure unfettered interchange of ideas for the bringing about of political and
more substantive expressive freedoms that take equality of opportunities into social changes desired by the people."304
consideration during elections.
This echoes Justice Oliver Wendell Holmes’ submission "that the market place
The other view of ideas is still the best alternative to censorship."305

However, there is also the other view. This is that considerations of equality of Parenthetically and just to provide the whole detail of the argument, the majority
opportunity or equality inthe ability of citizens as speakers should not have a of the US Supreme Court in the campaign expenditures case of Buckley v.
bearing in free speech doctrine. Under this view, "members of the public are Valeo "condemned restrictions (even if content-neutral) on expressive liberty
trusted to make their own individual evaluations of speech, and government is imposed in the name of ‘enhanc[ing] the relative voice of others’ and thereby
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas ‘equaliz[ing] access to the political arena."306 The majority did not use the
are best left to a freely competitive ideological market."297 This is consistent equality-based paradigm.
with the libertarian suspicion on the use of viewpoint as well as content to
evaluate the constitutional validity or invalidity of speech. One flaw of campaign expenditurelimits is that "any limit placed on the amount
which a person can speak, which takes out of his exclusive judgment the
The textual basis of this view is that the constitutional provision uses negative decision of when enough is enough, deprives him of his free speech."307
rather than affirmative language. It uses ‘speech’ as its subject and not
‘speakers’.298 Consequently, the Constitution protects free speech per se, Another flaw is how "[a]ny quantitative limitation on political campaigning
indifferent to the types, status, or associations of its speakers.299 Pursuant to inherently constricts the sum of public information and runs counter to our
this, "government must leave speakers and listeners in the private order to their ‘profound national commitment that debate on public issues should be
own devices in sorting out the relative influence of speech."300 uninhibited, robust, and wide-open.’"308

Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this In fact, "[c]onstraining those who have funds or have been able to raise funds
view that freedom of speech includes "not only the right to express one’s views, does not ease the plight of those without funds in the first place . . . [and] even if
but also other cognate rights relevant to the free communication [of] ideas, not one’s main concern isslowing the increase in political costs, it may be more
excluding the right to be informed on matters of public concern."301 She adds: effective torely on market forces toachieve that result than on active legal

33
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not opinions coming from the electorate including those that can catalyze candid,
necessarily to argue that the sky’s the limit [because in] any campaign there are uninhibited, and robust debate in the criteria for the choice of a candidate.
saturation levels and a point where spending no longer pays off in votes per
dollar."310 This does not mean that there cannot be a specie of speech by a private citizen
which will not amount toan election paraphernalia to be validly regulated by law.
III. C.
Regulation of election paraphernalia will still be constitutionally valid if it
When private speech amounts reaches into speech of persons who are not candidates or who do not speak as
members of a political party if they are not candidates, only if what is regulated
to election paraphernalia is declarative speech that, taken as a whole, has for its principal object the
endorsement of a candidate only. The regulation (a) should be provided by law,
The scope of the guarantee of free expression takes into consideration the (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
constitutional respect for human potentiality and the effect of speech. It opportunity of all candidates to be heard and considering the primacy of the
valorizes the ability of human beings to express and their necessity to relate. guarantee of free expression, and (d) demonstrably the least restrictive means
On the other hand, a complete guarantee must also take into consideration the to achieve that object. The regulation must only be with respect to the time,
effects it will have in a deliberative democracy. Skewed distribution of resources place, and manner of the rendition of the message. In no situation may the
as well as the cultural hegemony of the majority may have the effect of speech be prohibited or censored onthe basis of its content. For this purpose, it
drowning out the speech and the messages of those in the minority. In a sense, will notmatter whether the speech is made with or on private property.
social inequality does have its effect on the exercise and effect of the guarantee
of free speech. Those who have more will have better access to media that This is not the situation, however, in this case for two reasons. First, as
reaches a wider audience than those who have less. Those who espouse the discussed, the principal message in the twin tarpaulins of petitioners consists of
more popular ideas will have better reception than the subversive and the a social advocacy.
dissenters of society.To be really heard and understood, the marginalized view
normally undergoes its own degree of struggle. Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
present law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of
The traditional view has been to tolerate the viewpoint of the speaker and the COMELEC Resolution No. 9615 — if applied to this case, will not pass the test
content of his or her expression. This view, thus, restricts laws or regulation that of reasonability. A fixed size for election posters or tarpaulins without any
allows public officials to make judgments of the value of such viewpoint or relation to the distance from the intended average audience will be arbitrary. At
message content. This should still be the principal approach. certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to
However, the requirements of the Constitution regarding equality in opportunity the abridgement of speech with political consequences.
must provide limits to some expression during electoral campaigns.
IV
Thus clearly, regulation of speech in the context of electoral campaigns made Right to property
by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings Other than the right to freedom of expression311 and the meaningful exercise
in Osmeña v. COMELEC and National Press Club v. COMELEC. of the right to suffrage,312 the present case also involves one’s right to
property.313
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party Respondents argue that it is the right of the state to prevent the circumvention
which are, taken as a whole, principally advocacies of a social issue that the of regulations relating to election propaganda by applying such regulations to
public must consider during elections is unconstitutional. Such regulation is private individuals.314 Certainly, any provision or regulation can be
inconsistent with the guarantee of according the fullest possible range of circumvented. But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners. Respondents have

34
also agreed, during the oral arguments, that petitioners were neither poster on his own front dooror on a post in his yard. While the COMELEC will
commissioned nor paid by any candidate or political party to post the material certainly never require the absurd, there are no limits to what overzealous and
on their walls. partisan police officers, armed with a copy of the statute or regulation, may
do.319 Respondents ordered petitioners, who are private citizens, to remove
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the tarpaulin from their own property. The absurdity of the situation is in itself an
the private property of petitioners. Their right to use their property is likewise indication of the unconstitutionality of COMELEC’s interpretation of its powers.
protected by the Constitution.
Freedom of expression can be intimately related with the right to property.
In Philippine Communications Satellite Corporation v. Alcuaz:315 There may be no expression when there is no place where the expression may
be made. COMELEC’s infringement upon petitioners’ property rights as in the
Any regulation, therefore, which operates as an effective confiscation of private present case also reaches out to infringement on their fundamental right to
property or constitutes an arbitrary or unreasonable infringement of property speech.
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted) Respondents have not demonstrated thatthe present state interest they seek to
promote justifies the intrusion into petitioners’ property rights. Election laws and
This court in Adiong held that a restriction that regulates where decals and regulations must be reasonable. It must also acknowledge a private individual’s
stickers should be posted is "so broad that it encompasses even the citizen’s right to exercise property rights. Otherwise, the due process clause will be
private property."317 Consequently, it violates Article III, Section 1 of the violated.
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained: COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the
posting of election propaganda in private property without the consent of the
Property is more than the mere thing which a person owns, it includes the right owners of such private property. COMELEC has incorrectly implemented these
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, regulations. Consistent with our ruling in Adiong, we find that the act of
protects these essential attributes. respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
Property is more than the mere thing which a person owns. It is elementary that property.
it includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. V
ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, Tarpaulin and its message are not religious speech
enjoyment, and disposal of a person’s acquisitions without control or diminution
save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 We proceed to the last issues pertaining to whether the COMELEC in issuing
US 60 [1917])318 the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
This court ruled that the regulation in Adiong violates private property rights:
At the outset, the Constitution mandates the separation of church and state.320
The right to property may be subject to a greater degree of regulation but when This takes many forms. Article III, Section 5 of the Constitution, for instance
this right is joined by a "liberty" interest, the burden of justification on the part of provides:
the Government must be exceptionally convincing and irrefutable. The burden
is not met in this case. Section 5. No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof. The free exercise and enjoyment of
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits religious profession and worship, without discrimination or preference, shall
the posting or display of election propaganda in any place, whether public or forever be allowed. Noreligious test shall be required for the exercise of civil or
private, except inthe common poster areas sanctioned by COMELEC. This political rights.
means that a private person cannot post his own crudely prepared personal

35
There are two aspects of this provision.321 The first is the none stablishment intoaccount not to promote the government’s favored form of religion, but to
clause.322 Second is the free exercise and enjoyment of religious profession allow individuals and groups to exercise their religion without hindrance. Their
and worship.323 purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a person’s or institution’s religion. As Justice Brennan explained, the
The second aspect is atissue in this case. "government [may] take religion into account . . . to exempt, when possible,
from generally applicable governmental regulation individuals whose religious
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or beliefs and practices would otherwise thereby be infringed, or to create without
any other religious make such act immune from any secular regulation.324 The state involvement an atmosphere in which voluntary religious exercise may
religious also have a secular existence. They exist within a society that is flourish."330
regulated by law.
This court also discussed the Lemon test in that case, such that a regulation is
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a constitutional when: (1) it has a secular legislative purpose; (2) it neither
bishop amounts to religious expression. This notwithstanding petitioners’ claim advances nor inhibits religion; and (3) it does not foster an excessive
that "the views and position of the petitioners, the Bishop and the Diocese of entanglement with religion.331
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325 As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of
The difficulty that often presents itself in these cases stems from the reality that the Catholic church appears to coincide with the message of the tarpaulin
every act can be motivated by moral, ethical, and religious considerations. In regarding the RH Law does not, by itself, bring the expression within the ambit
terms of their effect on the corporeal world, these acts range from belief, to of religious speech. On the contrary, the tarpaulin clearly refers to candidates
expressions of these faiths, to religious ceremonies, and then to acts of a classified under "Team Patay" and "Team Buhay" according to their respective
secular character that may, from the point of view of others who do not share votes on the RH Law.
the same faith or may not subscribe to any religion, may not have any religious
bearing. The same may be said of petitioners’ reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter. With
Definitely, the characterizations ofthe religious of their acts are not conclusive all due respect to the Catholic faithful, the church doctrines relied upon by
on this court. Certainly, our powers of adjudication cannot be blinded by bare petitioners are not binding upon this court. The position of the Catholic religion
claims that acts are religious in nature. in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis.
Petitioners erroneously relied on the case of Ebralinag v. The Division The enumeration of candidates on the face of the tarpaulin precludes any
Superintendent of Schools of Cebu326 in claiming that the court "emphatically" doubtas to its nature as speech with political consequences and not religious
held that the adherents ofa particular religion shall be the ones to determine speech.
whether a particular matter shall be considered ecclesiastical in nature.327 This
court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre" Labor Relations Commission333 cited by petitioners finds no application in the
those beliefsmay seem to others."328 This court found a balance between the present case. The posting of the tarpaulin does not fall within the category of
assertion of a religious practice and the compelling necessities of a secular matters that are beyond the jurisdiction of civil courts as enumerated in the
command. It was an early attempt at accommodation of religious beliefs. Austriacase such as "proceedings for excommunication, ordinations of religious
ministers, administration of sacraments and other activities withattached
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality: religious significance."334

With religion looked upon with benevolence and not hostility, benevolent A FINAL NOTE
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically

36
We maintain sympathies for the COMELEC in attempting to do what it thought parishioner’s actions will have very real secular consequences. Certainly,
was its duty in this case. However, it was misdirected. provocative messages do matter for the elections.

COMELEC’s general role includes a mandate to ensure equal opportunities and What is involved in this case is the most sacred of speech forms: expression by
reduce spending among candidates and their registered political parties. It is the electorate that tends to rouse the public to debate contemporary issues.
not to regulate or limit the speech of the electorate as it strives to participate This is not speechby candidates or political parties to entice votes. It is a portion
inthe electoral exercise. of the electorate telling candidates the conditions for their election. It is the
substantive content of the right to suffrage.
The tarpaulin in question may be viewed as producing a caricature of those
who are running for public office.Their message may be construed This. is a form of speech hopeful of a quality of democracy that we should all
generalizations of very complex individuals and party-list organizations. deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves our
They are classified into black and white: as belonging to "Team Patay" or protection.
"Team Buhay."
WHEREFORE, the instant petition is GRANTED. The temporary restraining
But this caricature, though not agreeable to some, is still protected speech. order previously issued is hereby made permanent. The act of the COMELEC
in issuing the assailed notice dated February 22, 2013 and letter dated
That petitioners chose to categorize them as purveyors of death or of life on the February 27, 2013 is declared unconstitutional.
basis of a single issue — and a complex piece of legislation at that — can
easily be interpreted as anattempt to stereo type the candidates and party-list SO ORDERED.
organizations. Not all may agree to the way their thoughts were expressed, as
in fact there are other Catholic dioceses that chose not to follow the example of
petitioners. (Next page)

Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility. G.R. No. 231658

But, the Bill of Rights enumerated in our Constitution is an enumeration of our REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO S. VILLARIN, GARY
fundamental liberties. It is not a detailed code that prescribes good conduct. It C. ALEJANO, EMMANUEL A. BILLONES, AND TEDDY BRAWNER
provides space for all to be guided by their conscience, not only in the act that BAGUILAT, JR., Petitioners
they do to others but also in judgment of the acts of others. vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE SECRETARY; HON. DELFIN
Freedom for the thought we can disagree with can be wielded not only by those N. LORENZANA, SECRETARY OF THE DEPARTMENT OF NATIONAL
in the minority. This can often be expressed by dominant institutions, even DEF'ENSE AND MARTIAL LAW ADMINISTRATOR; AND GEN. EDUARDO
religious ones. That they made their point dramatically and in a large way does ANO, CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES
not necessarily mean that their statements are true, or that they have basis, or AND MARTIAL LAW IMPLEMENTOR, Respondents
that they have been expressed in good taste.
x-----------------------x
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is
a specie of expression protected by our fundamental law. It is an expression G.R. No. 231771
designed to invite attention, cause debate, and hopefully, persuade. It may be
motivated by the interpretation of petitioners of their ecclesiastical duty, but their EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN CUNA, ATELIANA U.
HIJOS, ROLAND A. COBRADO, CARL ANTHONY D. OLALO, ROY JIM

37
BALANGIDG, RENATO REYES, JR., CRISTIN A E. PALABAY, AMARYLLIS H.
ENRIQUEZ, ACT TEACHERS' REPRESENTATIVE ANTONIO L. TINIO, WHEREAS, Section 18, Article VII of the Constitution provides that 'x x x In
GABRIELA WOMEN'S PARTY REPRESENTATIVE case of invasion or rebellion, when the public safety requires it, he (the
i\RLENED.BROSAS,KABATAAN PARTY-LIST REPRESENTATIVE SARAH President) may, for a period not exceeding sixty days, suspend the privilege of
JANE I. ELAGO, MAE PANER, GABRIELA KRISTA DALENA, ANNA the writ of habeas corpus or place the Philippines or any part thereof under
ISABELLE ESTEIN, MARK VINCENT D. LIM, VENCER MARI CRISOSTOMO, martial law x x x';
JOVITA MONTES, Petitioners,
vs. WHEREAS, Article 134 of the Revised Penal Code, as amended by R.A. No.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE SECRETARY SALVADOR 6968, provides that 'the crime of rebellion or insurrection is committed by rising
MEDIALDEA, DEFENSE SECRETARY DELFIN LORENZANA, ARMED and taking arms against the Government for the purpose of removing from the
FORCES OF THE PHILIPPINES CHIEF OF STAFF LT. GENERAL EDUARDO allegiance to said Government or its laws, the territory of the Republic of the
ANO, PHILIPPINE NATIONAL POLICE DIRECTOR-GENERAL RONALD Philippines or any part thereof, of any body of land, naval or other armed
DELA ROSA, Respondents forces, or depriving the Chief Executive or the Legislature, wholly or partially, of
any of their powers or prerogatives';
x-----------------------x
WHEREAS, part of the reasons for the issuance of Proclamation No. 55 was
G.R. No. 231774 the series of violent acts committed by the Maute terrorist group such as the
attack on the military outpost in Butig, Lanao del Sur in February 2016, killing
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S. MOHAMAD, and wounding several soldiers, and the mass jailbreak in Marawi City in August
NORAISAH S. SANI, ZAHRIA P. MUTI-MAPANDI, Petitioners, 2016, freeing their arrested comrades and other detainees;
vs.
EXECUTIVE SECRETARY SALVADOR C. MEDIALDEA, DEPARTMENT OF WHEREAS, today 23 May 2017, the same Maute terrorist group has taken over
NATIONAL DEFENSE (DND) SECRETARY DELFIN N. LORENZANA, a hospital in Marawi City, Lanao del Sur, established several checkpoints within
DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT (DILG) the City, burned down certain government and private facilities and inflicted
SECRETARY (OFFICER-INCHARGE) CATALINO S. CUY, ARMED FORCES casualties on the part of Government forces, and started flying the flag of the
OF THE PHILIPPINES (AFP) CHEF OF STAFF GEN. EDUARDO M. AÑO, Islamic State of Iraq and Syria (ISIS) in several areas, thereby openly
PHILIPPINE NATIONAL POLICE (PNP) CHIEF DIRECTOR GENERAL attempting to remove from the allegiance to the Philippine Government this part
RONALD M. DELA ROSA, NATIONAL SECURITY ADVISER HERMOGENES of Mindanao and deprive the Chief Executive of his powers and prerogatives to
C. ESPERON, JR., Respondents. enforce the laws of the land and to maintain public order and safety in
Mindanao, constituting the crime of rebellion; and
DECISION
WHEREAS, this recent attack shows the capability of the Maute group and
DEL CASTILLO, J.: other rebel groups to sow terror, and cause death and damage to property not
only in Lanao del Sur but also in other parts of Mindanao.
Effective May 23, 2017, and for a period not exceeding 60 days, President
Rodrigo Roa Duterte issued Proclamation No. 216 declaring a state of martial NOW, THEREFORE, I, RODRIGO ROA DUTERTE, President of the Republic
law and suspending the privilege of the writ of habeas corpus in the whole of of the Philippines, by virtue of the powers vested in me by the Constitution and
Mindanao. by law, do hereby proclaim as follows:

The full text of Proclamation No. 216 reads as follows: SECTION 1. There is hereby declared a state of martial law in the Mindanao
group of islands for a period not exceeding sixty days, effective as of the date
WHEREAS, Proclamation No. 55, series of 2016, was issued on 04 September hereof.
2016 declaring a state of national emergency on account of lawless violence in
Mindanao;

38
SECTION 2. The privilege of the writ of habeas corpus shall likewise be foreign and local armed groups such as the Jemaah Islamiyah, Mujahidin
suspended in the aforesaid area for the duration of the state of martial law. Indonesia Timur and the ASG. It adheres to the ideals being espoused by the
DAESH, as evidenced by, among others, its publication of a video footage
DONE in the Russian Federation, this 23rd day of May in the year of our Lord, declaring its allegiance to the DAESH. Reports abound that foreign-based
Two Thousand and Seventeen. terrorist groups, the ISIS (Islamic State of Iraq and Syria) in particular, as well
as illegal drug money, provide financial and logistical support to the Maute
Within the timeline set by Section 18, Article VII of the Constitution, the Group.
President submitted to Congress on May 25, 2017, a written Report on the
factual basis of Proclamation No. 216. The events commencing on 23 May 2017 put on public display the groups'
clear intention to establish an Islamic State and their capability to deprive the
The Report pointed out that for decades, Mindanao has been plagued with duly constituted authorities - the President, foremost - of their powers and
rebellion and lawless violence which only escalated and worsened with the prerogatives.2
passing of time.
In particular, the President chronicled in his Report the events which took place
Mindanao has been the hotbed of violent extremism and a brewing rebellion for on May 23, 2017 in Marawi City which impelled him to declare a state of martial
decades. In more recent years, we have witnessed the perpetration of law and suspend the privilege of writ of habeas corpus, to wit:
numerous acts of violence challenging the authority of the duly constituted
authorities, i.e., the Zamboanga siege, the Davao bombing, the Mamasapano • At 1400H members of the Maute Group and ASG, along with their
carnage, and the bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, sympathizers, commenced their attack on various facilities - government and
among others. Two armed groups have figured prominently in all these, privately owned - in the City of Marawi.
namely, the Abu Sayaff Group (ASG) and the ISIS-backed Maute Group.1
• At 1600H around fifty (50) armed criminals assaulted Marawi City Jail being
The President went on to explain that on May 23, 2017, a government manage by the Bureau of Jail Management and Penology (BJMP).
operation to capture the high-ranking officers of the Abu Sayyaf Group (ASG)
and the Maute Group was conducted. These groups, which have been • The Maute Group forcibly entered the jail facilities, destroyed its main gate,
unleashing havoc in Mindanao, however, confronted the government operation and assaulted on-duty personnel. BJMP personnel were disarmed, tied, and/or
by intensifying their efforts at sowing violence aimed not only against the locked inside the cells.
government authorities and its facilities but likewise against civilians and their
properties. As narrated in the President's Report: • The group took cellphones, personnel-issued firearms, and vehicles (i.e., two
[2] prisoner vans and private vehicles).
On 23 May 2017, a government operation to capture Isnilon Hapilon, a senior
leader of the ASG, and Maute Group operational leaders, Abdullah and • By 1630H, the supply of power into Marawi City had been interrupted, and
Omarkhayam Maute, was confronted with armed resistance which escalated sporadic gunfights were heard and felt everywhere. By evening, the power
into open hostility against the government. Through these groups' armed siege outage had spread citywide. (As of 24 May 2017, Marawi City's electric supply
and acts of violence directed towards civilians and government authorities, was still cut off, plunging the city into total black-out.)
institutions and establishments, they were able to take control of major social,
economic, and political foundations of Marawi City which led to its paralysis. • From 1800H to 1900H, the same members of the Maute Group ambushed
This sudden taking of control was intended to lay the groundwork for the and burned the Marawi Police Station. A patrol car of the Police Station was
eventual establishment of a DAESH wilayat or province in Mindanao. also taken.

Based on verified intelligence reports, the Maute Group, as of the end of 2016, • A member of the Provincial Drug Enforcement Unit was killed during the
consisted of around two hundred sixty-three (263) members, fully armed and takeover of the Marawi City Jail. The Maute Group facilitated the escape of at
prepared to wage combat in furtherance of its aims. The group chiefly operates least sixty-eight (68) inmates of the City Jail.
in the province of Lanao del Sur, but has extensive networks and linkages with

39
• The BJMP directed its personnel at the Marawi City Jail and other affected • There are reports that these lawless armed groups are searching for Christian
areas to evacuate. communities in Marawi City to execute Christians. They are also preventing
Maranaos from leaving their homes and forcing young male Muslims to join
• By evening of 23 May 2017, at least three (3) bridges in Lanao del Sur, their groups.
namely, Lilod, Bangulo, and Sauiaran, fell under the control of these groups.
They threatened to bomb the bridges to pre-empt military reinforcement. • Based on various verified intelligence reports from the AFP and the PNP,
there exists a strategic mass action of lawless armed groups in Marawi City,
• As of 2222H, persons connected with the Maute Group had occupied several seizing public and private facilities, perpetrating killings of government
areas in Marawi City, including Naga Street, Bangolo Street, Mapandi, and personnel, and committing armed uprising against and open defiance of the
Camp Keithly, as well as the following barangays: Basak Malutlot, Mapandi, government.3
Saduc, Lilod Maday, Bangon, Saber, Bubong, Marantao, Caloocan, Banggolo,
Barionaga, and Abubakar. The unfolding of these events, as well as the classified reports he received, led
the President to conclude that -
• These lawless armed groups had likewise set up road blockades and
checkpoints at the Iligan City-Marawi City junction. These activities constitute not simply a display of force, but a clear attempt to
establish the groups' seat of power in Marawi City for their planned
• Later in the evening, the Maute Group burned Dansalan College Foundation, establishment of a DAESH wilayat or province covering the entire Mindanao.
Cathedral of Maria Auxiliadora, the nun's quarters in the church, and the Shia
Masjid Moncado Colony. Hostages were taken from the church. The cutting of vital lines for transportation and power; the recruitment of young
Muslims to further expand their ranks and strengthen their force; the armed
• About five (5) faculty members of Dansalan College Foundation had been consolidation of their members throughout Marawi City; the decimation of a
reportedly killed by the lawless groups. segment of the city population who resist; and the brazen display of DAESH
flags constitute a clear, pronounced, and unmistakable intent to remove Marawi
• Other educational institutions were also burned, namely, Senator Ninoy City, and eventually the rest of Mindanao, from its allegiance to the
Aquino College Foundation and the Marawi Central Elementary Pilot School. Government.

• The Maute Group also attacked Amai Pakpak Hospital and hoisted the There exists no doubt that lawless armed groups are attempting to deprive the
DAESH flag there, among other several locations. As of 0600H of 24May 2017, President of his power, authority, and prerogatives within Marawi City as a
members of the Maute Group were seen guarding the entry gates of Amai precedent to spreading their control over the entire Mindanao, in an attempt to
Pakpak Hospital. They held hostage the employees of the Hospital and took undermine his control over executive departments, bureaus, and offices in said
over the PhilHealth office located thereat. area; defeat his mandate to ensure that all laws are faithfully executed; and
remove his supervisory powers over local govemments.4
• The groups likewise laid siege to another hospital, Filipino-Libyan Friendship
Hospital, which they later set ablaze. According to the Report, the lawless activities of the ASG, Maute Group, and
other criminals, brought about undue constraints and difficulties to the military
• Lawless armed groups likewise ransacked the Landbank of the Philippines and government personnel, particularly in the performance of their duties and
and commandeered one of its armored vehicles. functions, and untold hardships to the civilians, viz.:

• Latest information indicates that about seventy-five percent (75%) of Marawi Law enforcement and other government agencies now face pronounced
City has been infiltrated by lawless armed groups composed of members of the difficulty sending their reports to the Chief Executive due to the city-wide power
Maute Group and the ASG. As of the time of this Report, eleven (11) members outages. Personnel from the BJMP have been prevented from performing their
of the Armed Forces and the Philippine National Police have been killed in functions. Through the attack and occupation of several hospitals, medical
action, while thirty-five (35) others have been seriously wounded. services in Marawi City have been adversely affected. The bridge and road
blockades set up by the groups effectively deprive the government of its ability

40
to deliver basic services to its citizens. Troop reinforcements have been found "no compelling reason to revoke the same". The Senate thus resolved as
hampered, preventing the government from restoring peace and order in the follows:
area. Movement by both civilians and government personnel to and from the
city is likewise hindered. NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, by way of the
sense of the Senate, that the Senate finds the issuance of Proclamation No.
The taking up of arms by lawless armed groups in the area, with support being 216 to be satisfactory, constitutional and in accordance with the law. The
provided by foreign-based terrorists and illegal drug money, and their blatant Senate hereby supports fully Proclamation No. 216 and finds no compelling
acts of defiance which embolden other armed groups in Mindanao, have reason to revoke the sarne.9
resulted in the deterioration of public order and safety in Marawi City; they have
likewise compromised the security of the entire Island of Mindanao.5 The Senate's counterpart in the lower house shared the same sentiments. The
House of Representatives likewise issued House Resolution No. 105010
The Report highlighted the strategic location of Marawi City and the crucial and "EXPRESSING THE FULL SUPPORT OF THE HOUSE OF
significant role it plays in Mindanao, and the Philippines as a whole. In addition, REPRESENTATIVES TO PRESIDENT RODRIGO DUTERTE AS IT FINDS NO
the Report pointed out the possible tragic repercussions once Marawi City falls REASON TO REVOKE PROCLAMATION NO. 216, ENTITLED 'DECLARING A
under the control of the lawless groups. STATE OF MARTIAL LAW AND SUSPENDING THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS IN THE WHOLE OF MINDANAO"'.
The groups' occupation of Marawi City fulfills a strategic objective because of
its terrain and the easy access it provides to other parts of Mindanao. Lawless The Petitions
armed groups have historically used provinces adjoining Marawi City as escape
routes, supply lines, and backdoor passages. A) G.R. No. 231658 (Lagman Petition)

Considering the network and alliance-building activities among terrorist groups, On June 5, 2017, Representatives Edcel C. Lagman, Tomasito s. Villarin, Gary
local criminals, and lawless armed men, the siege of Marawi City is a vital cog C. Alejano, Emmanuel A. Billones, and Teddy Brawner Baguilat, Jr. filed a
in attaining their long-standing goal: absolute control over the entirety of Petition11 Under the Third Paragraph of Section 18 of Article VII of the 1987
Mindanao. These circumstances demand swift and decisive action to ensure Constitution.
the safety and security of the Filipino people and preserve our national
integrity.6 First, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis because there is no rebellion or invasion in Marawi City
The President ended his Report in this wise: or in any part of Mindanao. It argues that acts of terrorism in Mindanao do not
constitute rebellion12 since there is no proof that its purpose is to remove
While the government is presently conducting legitimate operations to address Mindanao or any part thereof from allegiance to the Philippines, its laws, or its
the on-going rebellion, if not the seeds of invasion, public safety necessitates territory.13 It labels the flying of ISIS flag by the Maute Group in Marawi City
the continued implementation of martial law and the suspension of the privilege and other outlying areas as mere propaganda114 and not an open attempt to
of the writ of habeas corpus in the whole of Mindanao until such time that the remove such areas from the allegiance to the Philippine Government and
rebellion is completely quelled.7 deprive the Chief Executive of the assertion and exercise of his powers and
prerogatives therein. It contends that the Maute Group is a mere private army,
In addition to the Report, representatives from the Executive Department, the citing as basis the alleged interview of Vera Files with Joseph Franco wherein
military and police authorities conducted briefings with the Senate and the the latter allegedly mentioned that the Maute Group is more of a "clan's private
House of Representatives relative to the declaration of martial law. militia latching into the IS brand theatrically to inflate perceived capability".15
The Lagman Petition insists that during the briefing, representatives of the
After the submission of the Report and the briefings, the Senate issued P.S. military and defense authorities did not categorically admit nor deny the
Resolution No. 3888 expressing full support to the martial law proclamation and presence of an ISIS threat in the country but that they merely gave an evasive
finding Proclamation No. 216 "to be satisfactory, constitutional and in answer16 that "there is ISIS in the Philippines".17 The Lagman Petition also
accordance with the law". In the same Resolution, the Senate declared that it avers that Lt. Gen. Salvador Mison, Jr. himself admitted that the current armed

41
conflict in Marawi City was precipitated or initiated by the government in its bid consult the military establishment or any ranking official27 before making the
to capture Hapilon.18 Based on said statement, it concludes that the objective proclamation.
of the Maute Group's armed resistance was merely to shield Hapilon and the
Maute brothers from the government forces, and not to lay siege on Marawi Finally, the Lagman Petition claims that the President's proclamation of martial
City and remove its allegiance to the Philippine Republic.19 It then posits that if law lacks sufficient factual basis owing to the fact that during the presentation
at all, there is only a threat of rebellion in Marawi City which is akin to "imminent before the Committee of the Whole of the House of Representatives, it was
danger" of rebellion, which is no longer a valid ground for the declaration of shown that the military was even successful in pre-empting the ASG and the
martial law.20 Maute Group's plan to take over Marawi City and other parts of Mindanao;
there was absence of any hostile plan by the Moro Islamic Liberation Front; and
Second, the Lagman Petition claims that the declaration of martial law has no the number of foreign fighters allied with ISIS was "undetermined"28 which
sufficient factual basis because the President's Report containef "false, indicates that there are only a meager number of foreign fighters who can lend
inaccurate, contrived and hyperbolic accounts".21 support to the Maute Group.29

It labels as false the claim in the President's Report that the Maute Group Based on the foregoing argumentation, the Lagman Petition asks the Court to:
attacked Amai Pakpak Medical Center. Citing online reports on the interview of (1)"exercise its specific and special jurisdiction to review the sufficiency of the
Dr. Amer Saber (Dr. Saber), the hospital's Chief, the Lagman Petition insists factual basis of Proclamation No. 216"; and (2) render "a Decision voiding and
that the Maute Group merely brought an injured member to the hospital for nullifying Proclamation No. 216" for lack of sufficient factual basis.30
treatment but did not overrun the hospital or harass the hospital personnel. 22
The Lagman Petition also refutes the claim in the President's Report that a In a Resolution31 dated June 6, 2017, the Court required respondents to
branch of the Landbank of the Philippines was ransacked and its armored comment on the Lagman Petition and set the case for oral argument on June
vehicle commandeered. It alleges that the bank employees themselves clarified 13, 14, and 15, 2017.
that the bank was not ransacked while the armored vehicle was owned by a
third party and was empty at the time it was commandeered.23 It also labels as On June 9, 2017, two other similar petitions docketed as G.R. Nos. 231771 and
false the report on the burning of the Senator Ninoy Aquino College Foundation 231774 were filed and eventually consolidated with G.R. No. 231658.32
and the Marawi Central Elementary Pilot School. It avers that the Senator Ninoy
Aquino College Foundation is intact as of May 24, 2017 and that according to B) G.R. No. 231771 (Cullamat Petition)
Asst. Superintendent Ana Alonto, the Marawi Central Elementary Pilot School
was not burned by the terrorists.24 Lastly, it points out as false the report on the The Cullamat Petition, "anchored on Section 18, Article VII"33 of the
beheading of the police chief of Malabang, Lanao del Sur, and the occupation Constitution, likewise seeks the nullification of Proclamation No. 216 for being
of the Marawi City Hall and part of the Mindanao State University.25 unconstitutional because it lacks sufficient factual basis that there is rebellion in
Mindanao and that public safety warrants its declaration. 34
Third, the Lagman Petition claims that the declaration of martial law has no
sufficient factual basis since the President's Report mistakenly included the In particular, it avers that the supposed rebellion described in Proclamation No.
attack on the military outpost in Butig, Lanao del Sur in February 2016, the 216 relates to events happening in Marawi City only an not in the entire region
mass jail break in Marawi City in August 2016, the Zamboanga siege, the of Mindanao. It concludes that Proclamation No 216 "failed to show any factual
Davao market bombing, the Mamasapano carnage and other bombing basis for the imposition of martial law in the entire Mindanao,"35 "failed to
incidents in Cotabato, Sultan Kudarat, and Basilan, as additional factual bases allege any act of rebellion outside Marawi City, much less x x x allege that
for the proclamation of martial law. It contends that these events either took public safety requires the imposition o martial law in the whole of Mindanao".36
place long before the conflict in Marawi City began, had long been resolved, or
with the culprits having already been arrested.26 The Cullamat Petition claims that the alleged "capability of the Maute Group
and other rebel groups to sow terror and cause death and damage to
Fourth, the Lagman Petition claims that the declaration of martial law has no property"37 does not rise to the level of rebellion sufficient to declare martial
sufficient factual basis considering that the President acted alone and did not law in the whole of Mindanao.38 It also posits that there is no lawless violence
in other parts of Mindanao similar to that in Marawi City.39

42
Moreover, the Cullamat Petition assails the inclusion of the phrase "other rebel Moreover, it alleges that the statements contained in the President's Report to
groups" in the last Whereas Clause of Proclamation No. 216 for being vague as the Congress, to wit: that the Maute Group intended to establish an Islamic
it failed to identify these rebel groups and specify the acts of rebellion that they State; that they have the capability to deprive the duly constituted authorities of
were supposedly waging.40 their powers and prerogatives; and that the Marawi armed hostilities is merely a
prelude to a grander plan of taking over the whole of Mindanao, are conclusions
In addition, the Cullamat Petition cites alleged inaccuracies, exaggerations, and bereft of substantiation.53
falsities in the Report of the President to Congress, particularly the attack at the
Amai Pakpak Hospital, the ambush and burning of the Marawi Police Station, The Mohamad Petition posits that immediately after the declaration of martial
the killing of five teachers of Dansalan College Foundation, and the attacks on law, and without waiting for a congressional action, a suit may already be
various government facilities.41 brought before the Court to assail the sufficiency of the factual basis of
Proclamation No. 216.
In fine, the Cullamat Petition prays for the Court to declare Proclamation No.
216 as unconstitutional or in the alternative, should the Court find justification Finally, in invoking this Court's power to review the sufficiency ofthe factual
for the declaration of martial law and suspension of the privilege of the writ of basis for the declaration of martial law and the suspension of the privilege of the
habeas corpus in Marawi City, to declare the same as unconstitutional insofar writ of habeas corpus, the Mohamad Petition insists that the Court may "look
as its inclusion of the other parts of Mindanao.42 into the wisdom of the [President's] actions, [and] not just the presence of
arbitrariness".54 Further, it asserts that since it is making a negative assertion,
C) G.R. No. 231774 (Mohamad Petition) then the burden to prove the sufficiency of the factual basis is shifted to and lies
on the respondents.55 It thus asks the Court "to compel the [r]espondents to
The Mohamad Petition, denominated as a "Petition for Review of the divulge relevant information"56 in order for it to review the sufficiency of the
Sufficiency of [the] Factual Basis of [the] Declaration of Martial Law and [the] factual basis.
Suspension of the Privilege of the Writ of Habeas Corpus,"43 labels itself as "a
special proceeding"44 or an "appropriate proceeding filed by any citizen"45 In closing, the Mohamad Petition prays for the Court to exercise its power to
authorized under Section 18, Article VII of the Constitution. review, "compel respondents to present proof on the factual basis [of] the
declaration of martial law and the suspension of the privilege of the writ of
The Mohamad Petition posits that martial law is a measure of last resort46 and habeas corpus in Mindanao"57 and declare as unconstitutional Proclamation
should be invoked by the President only after exhaustion of less severe No. 216 for lack of sufficient factual basis.
remedies.47 It contends that the extraordinary powers of the President should
be dispensed sequentially, i.e., first, the power to call out the armed forces; The Consolidated Comment
second, the power to suspend the privilege of the writ of habeas corpus; and
finally, the power to declare martial law.48 It maintains that the President has The respondents' Consolidated Comment58 was filed on June 12, 2017, as
no discretion to choose which extraordinary power to use; moreover, his choice required by the Court. Noting that the same coincided with the celebration of
must be dictated only by, and commensurate to, the exigencies of the the 119th anniversary of the independence of this Republic, the Office of the
situation.49 Solicitor General (OSG) felt that "defending the constitutionality of Proclamation
No. 216" should serve as "a rallying call for every Filipino to unite behind one
According to the Mohamad Petition, the factual situation in Marawi is not so true flag and defend it against all threats from within and outside our shores".59
grave as to require the imposition of martial law.50 It asserts that the Marawi
incidents "do not equate to the existence of a public necessity brought about by The OSG acknowledges that Section 18, Article VII of the Constitution vests the
an actual rebellion, which would compel the imposition of martial law or the Court with the authority or power to review the sufficiency of the factual basis of
suspension of the privilege of the writ of habeas corpus".51 It proposes that the declaration of martial law.60 The OSG, however, posits that although
"[m]artial law can only be justified if the rebellion or invasion has reached such Section 18, Article VII lays the basis for the exercise of such authority or power,
gravity that [its] imposition x x x is compelled by the needs of public safety"52 the same constitutional provision failed to specify the vehicle, mode or remedy
which, it believes, is not yet present in Mindanao. through which the "appropriate proceeding" mentioned therein may be resorted

43
to. The OSG suggests that the "appropriate proceeding" referred to in Section recommendation from the Defense Secretary, or any official for that matter, will
18, Article VII may be availed of using the vehicle, mode or remedy of a not nullify the said declaration, or affect its validity, or compromise the
certiorari petition, either under Section 1 or 5, of Article VIII.61 Corollarily, the sufficiency of the factual basis.
OSG maintains that the review power is not mandatory, but discretionary only,
on the part of the Court. 62 The Court has the discretion not to give due course Moreover, the OSG opines that the petitioners miserably failed to validly refute
to the petition.63 the facts cited by the President in Proclamation No. 216 and in his Report to the
Congress by merely citing news reports that supposedly contradict the facts
Prescinding from the foregoing, the OSG contends that the sufficiency of the asserted therein or by criticizing in piecemeal the happenings in Marawi. For
factual basis of Proclamation No. 216 should be reviewed by the Court "under the OSG, the said news articles are "hearsay evidence, twice removed,"75 and
the lens of grave abuse of discretion"64 and not the yardstick of correctness of thus inadmissible and without probative value, and could not overcome the
the facts.65 Arbitrariness, not correctness, should be the standard in reviewing "legal presumption bestowed on governmental acts".76
the sufficiency of factual basis.
Finally, the OSG points out that it has no duty or burden to prove that
The OSG maintains that the burden lies not with the respondents but with the Proclamation No. 216 has sufficient factual basis. It maintains that the burden
petitioners to prove that Proclamation No. 216 is bereft of factual basis.1âwphi1 rests with the petitioners. However, the OSG still endeavors to lay out the
It thus takes issue with petitioners' attempt to shift the burden of proof when factual basis relied upon by the President "if only to remove any doubt as to the
they asked the Court "to compel [the] respondents to present proof on the constitutionality of Proclamation No. 216".77
factual basis"66 of Proclamation No. 216. For the OSG, "he who alleges must
prove"67 and that governmental actions are presumed to be valid and The facts laid out by the OSG in its Consolidated Comment will be discussed in
constitutional.68 detail in the Court's Ruling.

Likewise, the OSG posits that the sufficiency of the factual basis must be ISSUES
assessed from the trajectory or point of view of the President and base on the
facts available to him at the time the decision was made.69 It argues that the The issues as contained in the revised Advisory78 are as follows:
sufficiency of the factual basis should be examined not based on the facts
discovered after the President had made his decision to declare martial law 1. Whether or not the petitions docketed as G.R. Nos. 231658, 231771, and
because to do so would subject the exercise of the President's discretion to an 231774 are the "appropriate proceeding" covered by Paragraph 3, Section 18,
impossible standard.70 It reiterates that the President's decision should be Article VII of the Constitution sufficient to invoke the mode of review required of
guided only by the information and data available to him at the time he made this Court when a declaration of martial law or the suspension of the privilege of
the determination.71 The OSG thus asserts that facts that were established the writ of habeas corpus is promulgated;
after the declaration of martial law should not be considered in the review of the
sufficiency of the factual basis of the proclamation of martial law. The OSG 2. Whether or not the President in declaring martial law and suspending the
suggests that the assessment of after-proclamation facts lies with the President privilege of the writ of habeas corpus:
and Congress for the purpose of determining the propriety of revoking or
extending the martial law. The OSG fears that if the Court considers after- a. is required to be factually correct or only not arbitrary in his appreciation of
proclamation-facts in its review of the sufficiency of the factual basis for the facts;
proclamation, it would in effect usurp the powers of the Congress to determine
whether martial law should be revoked or extended.72 b. is required to obtain the favorable recommendation thereon of the Secretary
of National Defense;
It is also the assertion of the OSG that the President could validly rely on
intelligence reports coming from the Armed Forces of the Philippines;73 and c. is required to take into account only the situation at the time of the
that he could not be expected to personally determine the veracity of proclamation, even if subsequent events prove the situation to have not been
thecontents of the reports.74 Also, since the power to impose martial law is accurately reported;
vested solely on the President as Commander-in-Chief, the lack of

44
3. Whether or not the power of this Court to review the sufficiency of the factual b. also nullify the acts of the President in calling out the armed forces to quell
basis [of] the proclamation of martial law or the suspension of the privilege of lawless violence in Marawi and other parts of the Mindanao region.
the writ of habeas corpus is independent of the actual actions that have been
taken by Congress jointly or separately; After the oral argument, the parties submitted their respective memoranda and
supplemental memoranda.
4. Whether or not there were sufficient factual [basis] for the proclamation of
martial law or the suspension of the privilege of the writ of habeas corpus; OUR RULING

a. What are the parameters for review? I. Locus standi of petitioners.

b. Who has the burden of proof? One of the requisites for judicial review is locus standi, i.e., "the constitutional
question is brought before [the Court] by a party having the requisite 'standing'
c. What is the threshold of evidence? to challenge it."79 As a general rule, the challenger must have "a personal and
substantial interest in the case such that he has sustained, or will sustain, direct
5. Whether the exercise of the power of judicial review by this Court involves injury as a result of its enforcement."80 Over the years, there has been a trend
the calibration of graduated powers granted the President as Commander-in- towards relaxation of the rule on legal standing, a prime example of which is
Chief, namely calling out powers, suspension of the privilege of the writ of found in Section 18 of Article VII which provides that any citizen may file the
habeas corpus, and declaration of martial law; appropriate proceeding to assail the sufficiency of the factual basis of the
declaration of martial law or the suspension of the privilege of the writ of habeas
6. Whether or not Proclamation No. 216 of 23 May 2017 may be considered, corpus. "[T]he only requisite for standing to challenge the validity of the
vague and thus null and void: suspension is that the challenger be a citizen. He need not even be a
taxpayer."81
a. with its inclusion of "other rebel groups;" or
Petitioners in the Cullamat Petition claim to be "suing in their capacities as
b. since it has no guidelines specifying its actual operational parameters within citizens of the Republic;"82 similarly, petitioners in the Mohamad Petition all
the entire Mindanao region; claim to be "Filipino citizens, all women, all of legal [age], and residents of
Marawi City".83 In the Lagman Petition, however, petitioners therein did not
7. Whether or not the armed hostilities mentioned in Proclamation No. 216 and categorically mention that they are suing's citizens but merely referred to
in the Report of the President to Congress are sufficient [bases]: themselves as duly elected Representatives.84 That they are suing in their
official capacities as Members of Congress couLd have elicited a vigorous
a. for the existence of actual rebellion; or discussion considering the issuance by the House of Representatives of House
Resolution No. 1050 expressing full support to President Duterte and finding no
b. for a declaration of martial law or the suspension of the privilege of the writ of reason to revoke Proclamation No. 216. By such resolution, the House of
habeas corpus in the entire Mindanao 1 region; Representatives is declaring that it finds no reason to review the sufficiency of
the factual basis of the martial law declaration, which is in direct contrast to the
8. Whether or not terrorism or acts attributable to terrorism are equivalent to views and arguments being espoused by the petitioners in the Lagman Petition.
actual rebellion and the requirements of public safety sufficient to declare Considering, however, the trend towards relaxation of the rules on legal
martial law or suspend the privilege of the writ of habeas corpus; and standing, as well as the transcendental issues involved in the present Petitions,
the Court will exercise judicial self-restraint85 and will not venture into this
9. Whether or not nullifying Proclamation No. 216 of 23 May 2017 will: matter. After all, "the Court is not entirely without discretion to accept a suit
which does not satisfy the requirements of a [bona fide] case or of standing.
a. have the effect of recalling Proclamation No. 55 s. 2016; or Considerations paramount to [the requirement of legal standing] could compel
assumption of jurisdiction."86 In any case, the Court can take judicial
cognizance of the fact that petitioners in the Lagman Petition are all citizens of

45
the Philippines since Philippine citizenship is a requirement for them to be b) "In an appropriate
elected as representatives. We will therefore consider them as suing in their proceeding" does not refer to a
own behalf as citizens of this country. Besides, respondents did not question petition for certiorari filed under
petitioners' legal standing. Section 1 or 5 of Article VIII

II. Whether or not the petitions are the It could not have been the intention of the framers of the Constitution that the
"appropriate proceeding" covered by paragraph phrase "in an appropriate proceeding" would refer to a Petition for Certiorari
3, Section 18, Article VII of the Constitution pursuant to Section 1 or Section 5 of Article VIII. The standard of review in a
sufficient to invoke the mode of review required petition for certiorari is whether the respondent has committed any grave abuse
by the Court. of discretion amounting to lack or excess of jurisdiction in the performance of
his or her functions. Thus, it is not the proper tool to review the sufficiency of
All three petitions beseech the cognizance of this Court based on the third the factual basis of the proclamationor suspension. It must be emphasized that
paragraph of Section 18, Article VII (Executive Department) of the 1987 under Section 18, Article VII, the Court is tasked to review the sufficiency of the
Constitution which provides: factual basis of the President's exercise of emergency powers. Put differently, if
this Court applies the standard of review used in a petition for certiorari, the
The Supreme Court may review, in an appropriate proceeding filed by any same would emasculate its constitutional task under Section 18, Article VII.
citizen, the sufficiency of the factual basis of the proclamation of martial law or
the suspension of the privilege of the writ or the extension thereof, and must c) Purpose/significance of
promulgate its decision thereon within thirty days from its filing. Section 18, Article VII is to
constitutionalize the pre-Marcos
During the oral argument, the petitioners theorized that the jurisdiction of this martial law ruling in In the Matter of
Court under the third paragraph of Section 18, Article VII is sui generis.87 It is a the Petition for Habeas Corpus of Lansang.
special and specific jurisdiction of the Supreme Court different from those
enumerated in Sections 1 and 5 of Article VIII.88 The third paragraph of Section 18, Article VII was inserted by the framers of the
1987 Constitution to constitutionalize the pre-Marcos martial law ruling of this
The Court agrees. Court in In the Matter of the Petition for Habeas Corpus of Lansang,92 to wit:
that the factual basis of the declaration of martial law or the suspension of the
a) Jurisdiction must be privilege of the writ of habeas corpus is not a political question but precisely
specifically conferred by the within the ambit of judicial review.
Constitution or by law.
"In determining the meaning, intent, and purpose of a law or constitutional
It is settled that jurisdiction over the subject matter is conferred only by the provision, the history of the times out of which it grew and to which it may be
Constitution or by the law.89 Unless jurisdiction has been specifically conferred rationally supposed to bear some direct relationship, the evils intended to be
by the Constitution or by some legislative act, no body or tribunal has the power remedied, and the good to be accomplished are proper subjects of inquiry."93
to act or pass upon a matter brought before it for resolution. It is likewise settled Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional
that in the absence of a clear legislative intent, jurisdiction cannot be implied Commission that drafted the 1987 Constitution, explained:
from the language of the Constitution or a statute.90 It must appear clearly from
the law or it will not be held to exist.91 The Commander-in-Chief provisions of the 1935 Constitution had enabled
President Ferdinand Marcos to impose authoritarian rule on the Philippines
A plain reading of the afore-quoted Section 18, Article VII reveals that it from 1972 to 1986. Supreme Court decisions during that period upholding the
specifically grants authority to the Court to determine the sufficiency of the actions taken by Mr. Marcos made authoritarian rule part of Philippine
factual basis of the proclamation of martial law or suspension of the privilege of constitutional jurisprudence. The members of the Constitutional Commission,
the writ of habeas corpus. very much aware of these facts, went about reformulating the Commander-in-
Chief powers with a view to dismantling what had been constructed during the

46
authoritarian years. The new formula included revised grounds for the activation in seeking to delete this particular, phrase. May we be informed of his good and
of emergency powers, the manner of activating them, the scope of the powers, substantial reasons?
and review of presidential action.94 (Emphasis supplied)
MR. MONSOD. This situation arises in cases of invasion or rebellion. And in
To recall, the Court held in the 1951 case of Montenegro v. Castaneda95 that previous interpellations regarding this phrase, even during the discussions on
the authority to decide whether there is a state of rebellion requiring the the Bill of Rights, as I understand it, the interpretation is a situation of actual
suspension of the privilege of the writ of habeas corpus is lodged with the invasion or rebellion. In these situations, the President has to act quickly.
President and his decision thereon is final and conclusive upon the courts. This Secondly, this declaration has a time fuse. It is only good for a maximum of 60
ruling was reversed in the 1971 case of Lansang where it was held that the days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
factual basis of the declaration of martial law and the suspension of the judiciary to inquire into the sufficiency of the factual basis of the proclamation
privilege of the writ of habeas corpus is not a political question and is within the always exists, even during those first 60 days.
ambit of judicial review.96 However, in 1983, or after the declaration of martial
law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v. MR. SUAREZ. Given our traumatic experience during the past administration, if
Enrile,97 abandoned the ruling in Lansang and reverted to Montenegro. we give exclusive right to the President to determine these factors, especially
According to the Supreme Court, the constitutional power of the President to the existence of an invasion or rebellion and the second factor of determining
suspend the privilege of the writ of habeas corpus is not subject to judicial whether the public safety requires it or not, may I call the attention of the
inquiry.98 Gentleman to what happened to us during the past administration.
Proclamation No. 1081 was issued by Ferdinand E. Marcos in his capacity as
Thus, by inserting Section 18 in Article VII which allows judicial review of the President of the Philippines by virtue of the powers vested upon him
declaration of martial law and suspension of the privilege of the writ of habeas purportedly under Article VII, Section 10 (2) of the Constitution, wherein he
corpus, the framers of the 1987 Constitution in effect constitutionalized and made this predicate under the "Whereas" provision:
reverted to the Lansang doctrine.
Whereas, the rebellion and armed action undertaken by these lawless elements
d) Purpose of Section 18, of the Communists and other armed aggrupations organized to overthrow the
Article VII is to provide additional Republic of the Philippines by armed violence and force have assumed the
safeguard against possible abuse by magnitude of an actual state of war against our people and the Republic of the
the President on the exercise of the Philippines.
extraordinary powers.
And may I also call the attention of the Gentleman to General Order No. 3, also
Section 18, Article VII is meant to provide additional safeguard against possible promulgated by Ferdinand E. Marcos, in his capacity as Commander-in-Chief of
abuse by the President in the exercise of his power to declare martial law or all the Armed Forces of the Philippines and pursuant to Proclamation No. 1081
suspend the privilege of the writ of habeas corpus. Reeling from the aftermath dated September 21, 1972 wherein he said, among other things:
of the Marcos martial law, the framers of the Constitution deemed it wise to
insert the now third paragraph of Section 18 of Article VII.99 This is clear from Whereas, martial law having been declared because of wanton destruction of
the records of the Constitutional Commission when its members were lives and properties, widespread lawlessness and anarchy and chaos and
deliberating on whether the President could proclaim martial law even without disorder now prevailing throughout the country, which condition has been
the concurrence of Congress. Thus: brought about by groups of men who are actively engaged in a criminal
conspiracy to seize political and state power in the Philippines in order to take
MR. SUAREZ. Thank you, Madam President. over the government by force and violence, the extent of which has now
assumed the proportion of an actual war against our people and the legitimate
The Commissioner is proposing a very substantial amendment because this government ...
means that he is vesting exclusively unto the President the right to determine
the factors which may lead to the declaration of martial law and the suspension And he gave all reasons in order to suspend the privilege of the writ of habeas
of the writ of habeas corpus. I suppose he has strong and compelling reasons corpus and declare martial law in our country without justifiable reason. Would

47
the Gentleman still insist on the deletion of the phrase 'and, with the
concurrence of at least a majority of all the members of the Congress'? The executive power is vested in the President of the Philippines elected by the
people for a six-year term with no reelection for the duration of his/her life.
MR. MONSOD. Yes, Madam President, in the case of Mr.Marcos, he is While traditional powers inherent in the office of the President are granted,
undoubtedly an aberration in our history and national consciousness. But given nonetheless for the first time, there are specific provisions which curtail the
the possibility that there would be another Marcos, our Constitution now has extent of such powers. Most significant is the power of the Chief Executive to
sufficient safeguards. As I said, it is not really true, as the Gentleman has suspend the privilege of the writ of habeas corpus or proclaim martial law.
mentioned, that there is an exclusive right to determine the factual basis
because the paragraph beginning on line 9 precisely tells us that the Supreme The flagrant abuse of that power of the Commander-in-Chief by Mr. Marcos
Court may review, in an appropriate proceeding filed by any citizen, the caused the imposition of martial law for more than eight years and the
sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ even after the lifting of martial law in
suspension of the privilege of the writ or the extension thereof and must 1981. The new Constitution now provides that those powers can be exercised
promulgate its decision on the same within 30 days from its filing. only in two cases, invasion or rebellion when public safety demands it, only for
a period not exceeding 60 days, and reserving to Congress the power to revoke
I believe that there are enough safeguards. The Constitution is supposed to such suspension or proclamation of martial law which congressional action may
balance the interests of the country. And here we are trying to balance the not be revoked by the President. More importantly, the action of the President is
public interest in case of invasion or rebellion as against the rights of citizens. made subject to judicial review, thereby again discarding jurisprudence which
And I am saying that there are enough safeguards, unlike in 1972 when Mr. render[s] the executive action a political question and beyond the jurisdiction of
Marcos was able to do all those things mentioned.100 the courts to adjudicate.

To give more teeth to this additional safeguard, the framers of the 1987 For the first time, there is a provision that the state of martial law does not
Constitution not only placed the President's proclamation of martial law or suspend the operation of the Constitution nor abolish civil courts or legislative
suspension of the privilege of the writ of habeas corpus within the ambit of assemblies, or vest jurisdiction to military tribunals over civilians, or suspend
judicial review, it also relaxed the rule on standing by allowing any citizen to the privilege of the writ. Please forgive me if, at this point, I state that this
question before this Court the sufficiency of the factual basis of such constitutional provision vindicates the dissenting opinions I have written during
proclamation or suspension. Moreover, the third paragraph of Section 18, my tenure in the Supreme Court in the martial law cases.101
Article VII veritably conferred upon any citizen a demandable right to challenge
the sufficiency of the factual basis of said proclamation or suspension. It further f) To interpret "appropriate
designated this Court as the reviewing tribunal to examine, in an appropriate proceeding" as filed under Section 1
proceeding, the sufficiency of the factual basis and to render its decision of Article VIII would be contrary to
thereon within a limited period of 30 days from date of filing. the intent of the Constitution.

e) Purpose of Section 18, To conclude that the "appropriate proceeding" refers to a Petition for Certiorari
Article VII is to curtail the extent of filed under the expanded jurisdiction of this Court would, therefore, contradict
the powers of the President. the clear intention of the framers of the Constitution to place additional
safeguards against possible martial law abuse for, invariably, the third
The most important objective, however, of Section 18, Article VII is the paragraph of Section 18, Article VII would be subsumed under Section 1 of
curtailment of the extent of the powers of the Commander-in-Chief. This is the Article VIII. In other words, the framers of the Constitution added the safeguard
primary reason why the provision was not placed in Article VIII or the Judicial under the third paragraph of Section 18, Article VII on top of the expanded
Department but remained under Article VII or the Executive Department. jurisdiction of this Court.

During the closing session of the Constitutional Commission's deliberations, g) Jurisdiction of the Court is
President Cecilia Muñoz Palma expressed her sentiments on the 1987 not restricted to those enumerated in
Constitution. She said: Sections I and 5 of Article VIII

48
 declare martial law and suspend the privilege of the writ of habeas corpus; and
The jurisdiction of this Court is not restricted to those enumerated in Sections 1 on the part of Congress, in giving its imprimatur to Proclamation No. 216 and
and 5 of Article VIII. For instance, its jurisdiction to be the sole judge of all not revoking the same.
contests relating to the election, returns, and qualifications of the President or
Vice-President can be found in the last paragraph of Section 4, Article VII.102 The framers of the 1987 Constitution reformulated the scope of the
The power of the Court to review on certiorari the decision, order, or ruling of extraordinary powers of the President as Commander-in-Chief and the review
the Commission on Elections and Commission on Audit can be found in Section of the said presidential action. In particular, the President's extraordinary
7, Article IX(A).103 powers of suspending the privilege of the writ of habeas corpus and imposing
martial law are subject to the veto powers of the Court and Congress.
h) Unique features of the third
paragraph of Section 18, Article VII a) The judicial power to review
make it sui generis. versus the congressional power to
revoke.
The unique features of the third paragraph of Section 18, Article VII clearly
indicate that it should be treated as sui generis separate and different from The Court may strike down the presidential proclamation in an appropriate
those enumerated in Article VIII. Under the third paragraph of Section 18, proceeding filed by any citizen on the ground of lack of sufficient factual basis.
Article VII, a petition filed pursuant therewith will follow a different rule on On the other hand, Congress may revoke the proclamation or suspension,
standing as any citizen may file it. Said provision of the Constitution also limits which revocation shall not be set aside by the President.
the issue to the sufficiency of the factual basis of the exercise by the Chief
Executive of his emergency powers. The usual period for filing pleadings in In reviewing the sufficiency of the factual basis of the proclamation or
Petition for Certiorari is likewise not applicable under the third paragraph of suspension, the Court considers only the information and data available to the
Section 18, Article VII considering the limited period within which this Court has President prior to or at the time of the declaration; it is not allowed td "undertake
to promulgate its decision. an independent investigation beyond the pleadings."106 On the other hand,
Congress may take into consideration not only data available prior to, but
A proceeding "[i]n its general acceptation, [is] the form in which actions are to likewise events supervening the declaration. Unlike the Court I which does not
be brought and defended, the manner of intervening in suits, of conducting look into the absolute correctness of the factual basis as will be discussed
them, the mode of deciding them, of opposing judgments, and of below, Congress could probe deeper and further; it can delve into the accuracy
executing."104 In fine, the phrase "in an appropriate proceeding" appearing on of the facts presented before it.
the third paragraph of Section 18, Article VII refers to any action initiated by a
citizen for the purpose of questioning the sufficiency of the factual basis of the In addition, the Court's review power is passive; it is only initiated by the filing of
exercise of the Chief Executive's emergency powers, as in these cases. It could a petition "in an appropriate proceeding" by a citizen. On the other hand,
be denominated as a complaint, a petition, or a matter to be resolved by the Congress' review mechanism is automatic in the sense that it may be activated
Court. by Congress itself at any time after the proclamation or suspension was made.

III. The power of the Court to review the Thus, the power to review by the Court and the power to revoke by Congress
sufficiency of the factual basis of the are not only totally different but likewise independent from each other although
proclamation of martial law or the suspension of concededly, they have the same trajectory, which is, the nullification of the
the privilege of the writ of habeas corpus under presidential proclamation. Needless to say, the power of the Court to review
Section 18, Article VII of the 1987 Constitution is can be exercised independently from the power of revocation of Congress.
independent of the actions taken by Congress.
b) The framers of the 1987
During the oral argument,105 the OSG urged the Court to give! deference to Constitution intended the judicial
the actions of the two co-equal branches of the Government: on' the part of the power to review to be exercised
President as Commander-in-Chief, in resorting to his extraordinary powers to independently from the congressional

49
power to revoke. can step in, hear the petitions challenging the President's action, and ascertain
if it has a factual basis. x x x110
If only to show that the intent of the framers of the 1987 Constitution was to vest
the Court and Congress with veto powers independently from each other, we By the above pronouncement, the Court willingly but unwittingly clipped its own
quote the following exchange: power and surrendered the same to Congress as well as: abdicated from its
bounden duty to review. Worse, the Court considered' itself just on stand-by,
MS. QUESADA. Yesterday, the understanding of many was that there would be waiting and willing to act as a substitute in case Congress "defaults." It is an
safeguards that Congress will be able to revoke such proclamation. aberration, a stray declaration, which must be rectified and set aside in this
proceeding.111
MR. RAMA. Yes.
We, therefore, hold that the Court can simultaneously exercise its power of
MS. QUESADA. But now, if they cannot meet because they have been arrested review with, and independently from, the power to revoke by Congress.
or that the Congress has been padlocked, then who is going to declare that Corollary, any perceived inaction or default on the part of Congress does not
such a proclamation was not warranted? deprive or deny the Court of its power to review.

xxxx IV. The judicial power to review the sufficiency

of factual basis of the declaration of martial law
MR. REGALADO. May I also inform Commissioner Quesada that the judiciary or the suspension of the privilege of the writ of
is not exactly just standing by. A petition for a writ of habeas corpus, if the habeas corpus does not extend to the calibration
Members are detained, can immediately be applied for, and the Supreme Court of the President's decision of which among his
shall also review the factual basis. x x x107 graduated powers he will avail of in a given
situation.
c) Re-examination of the
Court's pronouncement in Fortun v. The President as the Commander-in-Chief wields the extraordinary powers of:
President Macapagal-Arroyo a) calling out the armed forces; b) suspending the privilege of the writ of habeas
corpus; and c) declaring martial law.112 These powers may be resorted to only
Considering the above discussion, the Court finds it imperative to re-examine, under specified conditions.
reconsider, and set aside its pronouncement in Fortun v. President Macapagal-
Arroyo108 to the effect that: The framers of the 1987 Constitution reformulated the powers of the
Commander-in-Chief by revising the "grounds for the activation of emergency
Consequently, although the Constitution reserves to the Supreme Court the powers, the manner of activating them, the scope of the powers, and review of
power to review the sufficiency of the factual basis of the proclamation or presidential action."113
suspension in a proper suit, it is implicit that the Court must allow Congress to
exercise its own review powers, which is automatic rather than initiated. Only a) Extraordinary powers of the
when Congress defaults in its express duty to defend the Constitution through President distinguished.
such review should the Supreme Court step in as its final rampart. The
constitutional validity of the President's proclamation of martial law or Among the three extraordinary powers, the calling out power is the most benign
suspension of the writ of habeas corpus is first a political question in the hands and involves ordinary police action.114 The President may resort to this
of Congress before it becomes a justiciable one in the hands of the Court.109 extraordinary power whenever it becomes necessary to prevent or suppress
lawless violence, invasion, or rebellion. "[T]he power to call is fully discretionary
xxxx to the President;"115 the only limitations being that he acts within permissible
constitutional boundaries or in a manner not constituting grave abuse of
If the Congress procrastinates or altogether fails to fulfill its duty respecting the discretion.116 In fact, "the actual use to which the President puts the armed
proclamation or suspension within the short time expected of it, then the Court forces is x x x not subject to judicial review."117

50
 suspend the operation of the Constitution; therefore, it does not suspend the
The extraordinary powers of suspending the privilege of the writ of habeas principle of separation of powers.
corpus and/or declaring martial law may be exercised only when there is actual
invasion or rebellion, and public safety requires it. The 1987 Constitution The question now is: During martial law, can the President issue decrees? The
imposed the following limits in the exercise of these powers: "(1) a time limit of answer we gave to that question in the Committee was: During martial law, the
sixty days; (2) review and possible revocation by Congress; [and] (3) review President may have the powers of a commanding general in a theatre of war. In
and possible nullification by the Supreme Court."118 actual war when there is fighting in an area, the President as the commanding
general has the authority to issue orders which have the effect of law but strictly
The framers of the 1987 Constitution eliminated insurrection, and the phrase in a theater of war, not in the situation we had during the period of martial law.
"imminent danger thereof' as grounds for the suspension of the privilege of the In other words, there is an effort here to return to the traditional concept of
writ of habeas corpus or declaration of martial law.119 They perceived the martial law as it was developed especially in American jurisprudence, where
phrase "imminent danger" to be "fraught with possibilities of abuse;"120 martial law has reference to the theater of war.124
besides, the calling out power of the President "is sufficient for handling
imminent danger."121 xxxx

The powers to declare martial law and to suspend the privilege of the writ of FR. BERNAS. This phrase was precisely put here because we have clarified
habeas corpus involve curtailment and suppression of civil rights and individual the meaning of martial law; meaning, limiting it to martial law as it has existed in
freedom. Thus, the declaration of martial law serves as a warning to citizens the jurisprudence in international law, that it is a law for the theater of war. In a
that the Executive Department has called upon the military to assist in the theater of war, civil courts are unable to function. If in the actual theater of war
maintenance of law and order, and while the emergency remains, the citizens civil courts, in fact, are unable to function, then the military commander is
must, under pain of arrest and punishment, not act in a manner that will render authorized to give jurisdiction even over civilians to military courts precisely
it more difficult to restore order and enforce the law.122 As such, their exercise because the civil courts are closed in that area. But in the general area where
requires more stringent safeguards by the Congress, and review by the the civil courts are open then in no case can the military courts be given
Court.123 jurisdiction over civilians. This is in reference to a theater of war where the civil
courts, in fact, are unable to function.
b) What really happens during martial law?
MR. FOZ. It is a state of things brought about by the realities of the situation in
During the oral argument, the following questions cropped up: What really that specified critical area.
happens during the imposition of martial law? What powers could the President
exercise during martial law that he could not exercise if there is no martial law? FR. BERNAS. That is correct.
Interestingly, these questions were also discussed by the framers of the 1987
Constitution, viz.: MR. FOZ. And it is not something that is brought about by a declaration of the
Commander-in-Chief.
FR. BERNAS. That same question was asked during the meetings of the
Committee: What precisely does martial law add to the power of the President FR. BERNAS. It is not brought about by a declaration of the Commander-in-
to call on the armed forces? The first and second lines in this provision state: Chief. The understanding here is that the phrase 'nor authorize the conferment
of jurisdiction on military courts and agencies over civilians' has reference to the
A state of martial law does not suspend the operation of the Constitution, nor practice under the Marcos regime where military courts were given jurisdiction
supplant the functioning of the civil courts or legislative assemblies... over civilians. We say here that we will never allow that except in areas where
civil courts are, in fact, unable to function and it becomes necessary for some
The provision is put there, precisely, to reverse the doctrine of the Supreme kind of court to function.125
Court. I think it is the case of Aquino v. COMELEC where the Supreme Court
said that in times of martial law, the President automatically has legislative A state of martial law is peculiar because the President, at such a time,
power. So these two clauses denied that. A state of martial law does not exercises police power, which is normally a function of the Legislature. In

51
particular, the President exercises police power, with the military’s assistance, These extraordinary powers are conferred by the Constitution with the
to ensure public safety and in place of government agencies which for the time President as Commander-in-Chief; it therefore necessarily follows that the
being are unable to cope with the condition in a locality, which remains under power and prerogative to determine whether the situation warrants a mere
the control of the State.126 exercise of the calling out power; or whether the situation demands suspension
of the privilege of the writ of habeas corpus; or whether it calls for the
In David v. President Macapagal-Arroyo,127 the Court, quoting Justice Vicente declaration of martial law, also lies, at least initially, with the President. The
V. Mendoza's (Justice Mendoza) Statement before the Senate Committee on power to choose, initially, which among these extraordinary powers to wield in a
Justice on March 13, 2006, stated that under a valid declaration of martial law, given set of conditions is a judgment call on the part of the President. As
the President as Commander-in-Chief may order the "(a) arrests and seizures Commander-in-Chief, his powers are broad enough to include his prerogative to
without judicial warrants; (b) ban on public assemblies; (c) [takeover] of news address exigencies or threats that endanger the government, and the very
media and agencies and press censorship; and (d) issuance of Presidential integrity of the State.132
Decrees x x x".128
It is thus beyond doubt that the power of judicial review does not extend to
Worthy to note, however, that the above-cited acts that the President may calibrating the President's decision pertaining to which extraordinary power to
perform do not give him unbridled discretion to infringe on the rights of civilians avail given a set of facts or conditions. To do so would be tantamount to an
during martial law. This is because martial law does not suspend the operation incursion into the exclusive domain of the Executive and an infringement on the
of the Constitution, neither does it supplant the operation of civil courts or prerogative that solely, at least initially, lies with the President.
legislative assemblies. Moreover, the guarantees under the Bill of Rights
remain in place during its pendency. And in such instance where the privilege of d) The framers of the 1987
the writ of habeas corpus is also suspended, such suspension applies only to Constitution intended the Congress
those judicially charged with rebellion or offenses connected with invasion.129 not to interfere a priori in the
decision-making process of the
Clearly, from the foregoing, while martial law poses the most severe threat to President.
civil liberties,130 the Constitution has safeguards against the President's
prerogative to declare a state of martial law. The elimination by the framers of the 1987 Constitution of the requirement of
prior concurrence of the Congress in the initial imposition of martial law or
c) "Graduation" of powers suspension of the privilege of the writ of habeas corpus further supports the
refers to hierarchy based on scope conclusion that judicial review does not include the calibration of the President's
and effect; it does not refer to a decision of which of his graduated powers will be availed of in a given situation.
sequence, order, or arrangement by Voting 28 to 12, the framers of the 1987 Constitution removed the requirement
which the Commander-in-Chief must of congressional concurrence in the first imposition of martial law and
adhere to. suspension of the privilege.133

Indeed, the 1987 Constitution gives the "President, as Commander-in- Chief, a MR. PADILLA.x x x
'sequence' of 'graduated power[s]'. From the most to the least benign, these
are: the calling out power, the power to suspend the privilege of the writ of We all agree with the suspension of the writ or the proclamation of martial law
habeas corpus, and the power to declare martial law."131 It must be stressed, should not require beforehand the concurrence of the majority of the Members
however, that the graduation refers only to hierarchy based on scope and of the Congress. However, as provided by the Committee, the Congress may
effect. It does not in any manner refer to a sequence, arrangement, or order revoke, amend, or shorten or even increase the period of such suspension.134
which the Commander-in-Chief must follow. This so-called "graduation of
powers" does not dictate or restrict the manner by which the President decides xxxx
which power to choose.
MR. NATIVIDAD. First and foremost, we agree with the Commissioner's thesis
that in the first imposition of martial law there is no need for concurrence of the

52
Members of Congress because the provision says 'in case of actual invasion or in seeking to delete this particular phrase. May we be informed of his good and
rebellion.' If there is actual invasion and rebellion, as Commissioner Crispino de substantial reasons?
Castro said, there is a need for immediate response because there is an attack.
Second, the fact of securing a concurrence may be impractical because the MR. MONSOD. This situation arises in cases of invasion or rebellion. And in
roads might be blocked or barricaded. x x x So the requirement of an initial previous interpellations regarding this phrase, even during the discussions on
concurrence of the majority of all Members of the Congress in case of an the Bill of Rights, as I understand it, the interpretation is a situation of actual
invasion or rebellion might be impractical as I can see it. invasion or rebellion. In these situations, the President has to act quickly.
Secondly, this declaration has a time fuse. It is only good for a maximum of 60
Second, Section 15 states that the Congress may revoke the declaration or lift days. At the end of 60 days, it automatically terminates. Thirdly, the right of the
the suspension. judiciary to inquire into the sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
And third, the matter of declaring martial law is already a justiciable question
and no longer a political one in that it is subject to judicial review at any point in xxxx
time. So on that basis, I agree that there is no need for concurrence as a
prerequisite to declare martial law or to suspend the privilege of the writ of MR. MONSOD. Yes, Madam President, in the case of Mr. Marcos[,] he is
habeas corpus. x x x135 undoubtedly an aberration in our history and national consciousness. But given
the possibility that there would be another Marcos, our Constitution now has
xxxx sufficient safeguards. As I said, it is not really true, as the Gentleman
mentioned, that there is an exclusive right to determine the factual basis
MR. SUAREZ. Thank you. because the paragraph being on line 9 precisely tells us that the Supreme court
may review, in an appropriate proceeding filed by any citizen, the sufficiency of
The Commissioner is suggesting that in connection with Section 15, we delete the factual basis of the proclamation of martial law or the suspension of the
the phrase 'and, with the concurrence of at least a majority of all the Members privilege of the writ or the extension thereof and must promulgate its decision
of the Congress...' on the same within 30 days from its filing.

MR. PADILLA. That is correct especially for the initial suspension of the I believe that there are enough safeguards. The Constitution is supposed to
privilege of the writ of habeas corpus or also the declaration of martial law. balance the interests of the country. And here we are trying to balance the
public interest in case of invasion or rebellion as against the rights of citizens. x
MR. SUAREZ. So in both instances, the Commissioner is suggesting that this xx
would be an exclusive prerogative of the President?
MR. SUAREZ. Will that prevent a future President from doing what Mr. Marcos
MR. PADILLA. At least initially, for a period of 60 days. But even that period of had done?
60 days may be shortened by the Congress or the Senate because the next
sentence says that the Congress or the Senate may even revoke the MR. MONSOD. There is nothing absolute in this world, and there may be
proclamation.136 another Marcos. What we are looking for are safeguards that arereasonable
and, I believe, adequate at this point. On the other hand, in case of invasion or
xxxx rebellion, even during the first 60 days when the intention here is to protect the
country in that situation, it would be unreasonable to ask that there should be a
MR. SUAREZ. x x x concurrence on the part of the Congress, which situation is automatically
terminated at the end of such 60 days.
The Commissioner is proposing a very substantial amendment because this
means that he is vesting exclusively unto the President the right to determine xxxx
the factors which may lead to the declaration of martial law and the suspension
of the writ of habeas corpus. I suppose he has strong and compelling reasons

53
MR. SUAREZ. Would the Gentleman not feel more comfortable if we provide President the same leeway by not wading into the realm that is reserved
for a legislative check on this awesome power of the Chief Executive acting as exclusively by the Constitution to the Executive Department.
Commander-in-Chief?
j) The recommendation of the
MR. MONSOD. I would be less comfortable if we have a presidency that cannot Defense Secretary is not a condition
act under those conditions. for the declaration of martial law or
suspension of the privilege of the writ
MR. SUAREZ. But he can act with the concurrence of the proper or appropriate of habeas corpus.
authority?
Even the recommendation of, or consultation with, the Secretary of National
MR. MONSOD. Yes. But when those situations arise, it is very unlikely that the Defense, or other high-ranking military officials, is not a condition for the
concurrence of Congress would be available; and, secondly, the President will President to declare martial law. A plain reading of Section 18, Article VII of the
be able to act quickly in order to deal with the circumstances. Constitution shows that the President's power to declare martial law is not
subject to any condition except for the requirements of actual invasion or
MR. SUAREZ. So, we would be subordinating actual circumstances to rebellion and that public safety requires it. Besides, it would be contrary to
expediency? common sense if the decision of the President is made dependent on the
recommendation of his mere alter ego. Rightly so, it is only on the President
MR. MONSOD. I do not believe it is expediency when one is trying to protect and no other that the exercise of the powers of the Commander-in-Chief under
the country in the event of an invasion or a rebellion.137 Section 18, Article VII of the Constitution is bestowed.

The foregoing exchange clearly manifests the intent of the Constitution not to g) In any event, the President
allow Congress to interfere a priori in the President's choice of extraordinary initially employed the most benign
powers. action - the calling out power -
before he declared martial law and
e) The Court must similarly suspended the privilege of the writ of
and necessarily refrain from habeas corpus.
calibrating the President's decision of
which among his extraordinary At this juncture, it must be stressed that prior to Proclamation No. 216 or the
powers to avail given a certain declaration of martial law on May 23, 201 7, the President had already issued
situation or condition. Proclamation No. 55 on September 4, 2016, declaring a state of national
emergency on account of lawless violence in Mindanao. This, in fact, is extant
It cannot be overemphasized that time is paramount in situations necessitating in the first Whereas Clause of Proclamation No. 216. Based on the foregoing
the proclamation of martial law or suspension of the privilege of the writ of presidential actions, it can be gleaned that although there is no obligation or
habeas corpus. It was precisely this time element that prompted the requirement on his part to use his extraordinary powers on a graduated or
Constitutional Commission to eliminate the requirement of 1 concurrence of the sequential basis, still the President made the conscious anddeliberate effort to
Congress in the initial imposition by the President of martial law or suspension first employ the most benign from among his extraordinary powers. As the initial
of the privilege of the writ of habeas corpus. and preliminary step towards suppressing and preventing the armed hostilities
in Mindanao, the President decided to use his calling out power first.
Considering that the proclamation of martial law or suspension of the privilege Unfortunately, the situation did not improve; on the contrary, it only worsened.
of the writ of habeas corpus is now anchored on actual invasion or rebellion and Thus, exercising his sole and exclusive prerogative, the President decided to
when public safety requires it, and is no longer under threat or in imminent impose martial law and suspend the privilege of the writ of habeas corpus on
danger thereof, there is a necessity and urgency for the President to act quickly the belief that the armed hostilities in Mindanao already amount to actual
to protect the country.138 The Court, as Congress does, must thus accord the rebellion and public safety requires it.

54
V. Whether or not Proclamation No. 216 may
be considered vague and thus void because of (a) A facial challenge is allowed to be made to a vague statute and to one which is
its inclusion of "other rebel groups"; and (b) the overbroad because of possible 'chilling effect' upon protected speech. The
absence of any guideline specifying its actual theory is that ' [w]hen statutes regulate or proscribe speech and no readily
operational parameters within the entire apparent construction suggests itself as a vehicle for rehabilitating the statutes
Mindanao region. in a single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad
Proclamation No. 216 is being facially challenged on the ground of "vagueness" statutes with no requirement that the person making the attack demonstrate
by the insertion of the phrase "other rebel groups"139 in its Whereas Clause that his own conduct could not be regulated by a statute drawn with narrow
and for lack of available guidelines specifying its actual operational parameters specificity.' The possible harm to society in permitting some unprotected
within the entire Mindanao region, making the proclamation susceptible to speech to go unpunished is outweighed by the possibility that the protected
broad interpretation, misinterpretation, or confusion. speech of others may be deterred and perceived grievances left to fester
because of possible inhibitory effects of overly broad statutes.
This argument lacks legal basis.
This rationale does not apply to penal statutes. Criminal statutes have general
a) Void-for-vagueness doctrine. in terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting
The void-for-vagueness doctrine holds that a law is facially invalid if "men of laws against socially harmful conduct. In the area of criminal law, the law
common intelligence must necessarily guess at its meaning and differ as to its cannot take chances as in the area of free speech.
application."140 "[A] statute or act may be said to be vague when it lacks
comprehensible standards that men of common intelligence must necessarily xxxx
guess at its meaning and differ in its application. [In such instance, the statute]
is repugnant to the Constitution in two respects: (1) it violates due process for In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are
failure to accord persons, especially the parties targeted by it, fair notice of the analytical tools developed for testing 'on their faces' statutes in free speech
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in carrying cases or, as they are called in American law, First Amendment cases. They
out its provisions and becomes an arbitrary flexing of the Government cannot be made to do service when what is involved is a criminal statute. With
muscle."141 respect to such statute, the established rule is that'one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that
b) Vagueness doctrine applies impliedly it might also be taken as applying to other persons or other situations
only in free speech cases. in which its application might be unconstitutional.' As has been pointed out,
'vagueness challenges in the First Amendment context, like overbreadth
The vagueness doctrine is an analytical tool developed for testing "on their challenges typically produce facial invalidation, while statutes found vague as a
faces" statutes in free speech cases or, as they are called in American law, matter of due process typically are invalidated [only] 'as applied' to a particular
First Amendment cases.142 A facial challenge is allowed to be made to a defendant.' x x x145
vague statute and also to one which is overbroad because of possible "'chilling
effect' on protected speech that comes from statutes violating free speech. A Invalidation of statutes "on its face" should be used sparingly because it results
person who does not know whether his speech constitutes a crime under an in striking down statutes entirely on the ground that they might beapplied to
overbroad or vague law may simply restrain himself from speaking in order to parties not before the Court whose activities are constitutionally protected.146
avoid being charged of a crime. The overbroad or vague law thus chills him into "Such invalidation would constitute a departure from the usual requirement of
silence."143 'actual case and controversy' and permit decisions to be made in a sterile
abstract context having no factual concreteness."147
It is best to stress that the vagueness doctrine has a special application only to
free-speech cases. They are not appropriate for testing the validity of penal c) Proclamation No. 216
statutes.144 Justice Mendoza explained the reason as follows: cannot be facially challenged using

55
the vagueness doctrine. Coates highlights what has been referred to as a 'perfectly vague' act whose
obscurity is evident on its face. It is to be distinguished, however, from
Clearly, facial review of Proclamation No. 216 on the grounds of vagueness is legislation couched in imprecise language - but which nonetheless specifies a
unwarranted. Proclamation No. 216 does not regulate speech, religious standard though defectively phrased - in which case, it may be 'saved' by
freedom, and other fundamental rights that may be facially challenged.148 proper construction.151
What it seeks to penalize is conduct, not speech.
The term "other rebel groups" in Proclamation No. 216 is not at all vague when
As held by the Court in David v. President Macapagal-Arroyo,149 the facial viewed in the context of the words that accompany it. Verily, the text of
review of Proclamation No. 1017, issued by then President Gloria Macapagal- Proclamation No. 216 refers to "other rebel groups" found in Proclamation No.
Arroyo declaring a state of national emergency, on ground o vagueness is 55, which it cited by way of reference in its Whereas clauses.
uncalled for since a plain reading of Proclamation No. 10171 shows that it is not
primarily directed at speech or even speech-related1 conduct. It is actually a e) Lack of guidelines/
call upon the Armed Forces of the Philippines (AFP) to prevent or suppress all operational parameters does not
forms of lawless violence. Like Proclamation No. 1017, Proclamation No. 216 make Proclamation No. 216 vague.
pertains to a spectrum of conduct, not free speech, which is manifestly subject
to state regulation. Neither could Proclamation No. 216 be described as vague, and thus void, on
the ground that it has no guidelines specifying its actual operational parameters
d) Inclusion of "other rebel within the entire Mindanao region. Besides, operational guidelines will serve
groups " does not make Proclamation only as mere tools for the implementation of the proclamation. In Part III, we
No.216 vague. declared that judicial review covers only the sufficiency of information or data
available to or known to the President prior to, or at the time of, the declaration
The contention that the phrase "other rebel groups" leaves Proclamation No. or suspension. And, as will be discussed exhaustively in Part VII, the review will
216 open to broad interpretation, misinterpretation, and confusion, cannot be be confined to the proclamation itself and the Report submitted to Congress.
sustained.
Clearly, therefore, there is no need for the Court to determine the
In People v. Nazario,150 the Court enunciated that: constitutionality of the implementing and/or operational guidelines, general
orders, arrest orders and other orders issued after the proclamation for being
As a rule, a statute or act may be said to be vague when it lacks irrelevant to its review. Thus, any act committed under the said orders in
comprehensible standards that men 'of common intelligence must necessarily violation of the Constitution and the laws, such as criminal acts or human rights
guess at its meaning and differ as to its application.' It is repugnant to the violations, should be resolved in a separate proceeding. Finally, there is a risk
Constitution in two respects: (1) it violates due process for failure to accord that if the Court wades into these areas, it would be deemed as trespassing into
persons, especially the parties targetted by it, fair notice of the conduct to avoid; the sphere that is reserved exclusively for Congress in the exercise of its power
and (2) it leaves law enforcers unbridled discretion in carrying out its provisions to revoke.
and becomes an arbitrary flexing of the Government muscle.
VI. Whether or not nullifying Proclamation No.
But the act must be utterly vague on its face, that is to say, it cannot be clarified 216 will (a) have the effect of recalling
by either a saving clause or by construction. Thus, in Coates v. City of Proclamation No. 55; or (b) also nullify the acts
Cincinnati, the U.S. Supreme Court struck down an ordinance that had made it of the President in calling out the armed forces to
illegal for 'three or more persons to assemble on any sidewalk and there quell lawless violence in Marawi and other parts
conduct themselves in a manner annoying to persons passing by.' Clearly, the of the Mindanao region.
ordinance imposed no standard at all 'because one may never know in advance
what annoys some people but does not annoy others.' a) The calling out power is in a
different category from the power to
declare martial law and the power to

56
suspend the privilege of the writ of as it was not able to show any specific injury which it had suffered or could
habeas corpus; nullification of suffer by virtue of President Joseph Estrada's order deploying the Philippine
Proclamation No. 216 will not affect Marines to join the PNP in visibility patrols around the metropolis.156
Proclamation No. 55.
This locus standi requirement, however, need not be complied with in so far as
The Court's ruling in these cases will not, in any way, affect the President's the Court's jurisdiction to review the sufficiency of the factual basis of the
declaration of a state of national emergency on account of lawless violence in President's declaration of martial law or suspension of the privilege ofthe writ of
Mindanao through Proclamation No. 55 dated September 4, 2016, where he habeas corpus is concerned. In fact, by constitutional design, such review may
called upon the Armed Forces and the Philippine National 1 Police (PNP) to be instituted by any citizen before the Court,157 without the need to prove that
undertake such measures to suppress any and all forms of lawless violence in he or she stands to sustain a direct and personal injury as a consequence of
the Mindanao region, and to prevent such lawless violence from spreading and the questioned Presidential act/s.
escalating elsewhere in the Philippines.
But, even assuming arguendo that the Court finds no sufficient basis for the
In Kulayan v. Tan,152 the Court ruled that the President's calling out power is in declaration of martial law in this case, such ruling could not affect the
a different category from the power to suspend the privilege of the writ of President's exercise of his calling out power through Proclamation No. 55.
habeas corpus and the power to declare martial law:
b) The operative fact doctrine.
x x x Congress may revoke such proclamation or suspension and the Court
may review the sufficiency of the factual basis thereof. However, there is no Neither would the nullification of Proclamation No. 216 result in the nullification
such equivalent provision dealing with the revocation or review of the of the acts of the President done pursuant thereto. Under the "operative fact
President's action to call out the armed forces. The distinction places the calling doctrine," the unconstitutional statute is recognized as an "operative fact"
out power in a different category from the power to declare martial law and the before it is declared unconstitutional.158
power to suspend the privilege of the writ of habeas corpus, otherwise, the
framers of the Constitution would have simply lumped together the three Where the assailed legislative or executive act is found by the judiciary to be
powers and provided for their revocation and review without any contrary to the Constitution, it is null and void. As the new Civil Code puts it:
qualification.153 'When the courts declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern. Administrative or executive
In other words, the President may exercise the power to call out the Armed acts, orders and regulations shall be valid only when they are not contrary to
Forces independently of the power to suspend the privilege of the writ of the laws or the Constitution.' The above provision of the Civil Code reflects the
habeas corpus and to declare martial law, although, of course, it may also be a orthodox view that an unconstitutional act, whether legislative or executive, is
prelude to a possible future exercise of the latter powers, as in this case. not a law, confers no rights, imposes no duties, and affords no protection. This
doctrine admits of qualifications, however. As the American Supreme Court
Even so, the Court's review of the President's declaration of martial law and his stated: 'The actual existence of a statute prior to such a determination [of
calling out the Armed Forces necessarily entails separate proceedings constitutionality], is an operative fact and may have consequences which
instituted for that particular purpose. cannot always be erased by a new judicial declaration. The effect of the
subsequent ruling as to the invalidity may have to be considered in various
As explained in Integrated Bar of the Philippines v. Zamora,154 the President's aspects, - with respect to particular regulations, individual and corporate, and
exercise of his power to call out the armed forces to prevent or suppress particular conduct, private and official.
lawless violence, invasion or rebellion may only be examined by the Court as to
whether such power was exercised within permissible constitutional limits or in The orthodox view finds support in the well-settled doctrine that the Constitution
a manner constituting grave abuse of discretion.155 is supreme and provides the measure for the validity of legislative or executive
acts. Clearly then, neither the legislative nor the executive branch, and for that
In Zamora, the Court categorically ruled that the Integrated Bar of the ' matter much less, this Court, has power under the Constitution to act contrary
Philippines had failed to sufficiently comply with the requisites of locus standi,

57
to its terms. Any attempted exercise of power in violation of its provisions is to powers of the courtof origin,' nor to its power of quasi-judicial administrative
that extent unwarranted and null. decisions where the Court is limited to asking whether 'there is some
evidentiary basis' for the administrative finding. Instead, the Court accepted the
The growing awareness of the role of the judiciary as the governmental organ Solicitor General's suggestion that it 'go no further than to satisfy [itself] not that
which has the final say on whether or not a legislative or executive measure is the President's decision is correct and that public safety was endangered by the
valid leads to a more appreciative attitude of theemerging concept that a rebellion and justified the suspension of the writ, but that in suspending the writ,
declaration of nullity may have legal consequences which the more orthodox the President did not act arbitrarily.'164
view would deny. That for a period of time such a statute, treaty, executive
order, or ordinance was in 'actual existence' appears to be indisputable. What is Lansang, however, was decided under the 1935 Constitution. The 1987
more appropriate and logical then than to consider it as 'an operative fact?' Constitution, by providing only for judicial review based on the determination of
(Emphasis supplied)159 the sufficiency of the factual bases, has in fact done away with the test of
arbitrariness as provided in Lansang.
However, it must also be stressed that this "operative fact doctrine" is not a
fool-proof shield that would repulse any challenge to acts performed during the b) The "sufficiency of factual
effectivity of martial law or suspension of the privilege of the writ of habeas basis test".
corpus, purportedly in furtherance of quelling rebellion or invasion, and
promotion of public safety, when evidence shows otherwise. Similarly, under the doctrine of contemporaneous construction, the framers of
the 1987 Constitution are presumed to know the prevailing jurisprudence at the
VII. The Scope of the Power to Review. time they were drafting the Constitution. Thus, the phrase "sufficiency of factual
basis" in Section 18, Article VII of the Constitution should be understood as the
a) The scope of the power of only test for judicial review of the President's power to declare martial law and
review under the 1987 Constitution suspend the privilege of the writ of habeas corpus under Section 18, Article VII
refers only to the determination of the of the Constitution. The Court does not need to satisfy itself that the President's
sufficiency of the factual basis of the decision is correct, rather it only needs to determine whether the President's
declaration of martial law and decision had sufficient factual bases.
suspension of the privilege of habeas
corpus. We conclude, therefore, that Section 18, Article VII limits the scope of judicial
review by the introduction of the "sufficiency of the factual basis" test.
To recall, the Court, in the case of In the Matter of the Petition for Habeas
Corpus of Lansang,160 which was decided under the 1935 Constitution,161 As Commander-in-Chief, the President has the sole discretion to declare
held that it can inquire into, within proper bounds, whether there has been martial law and/or to suspend the privilege of the writ of habeas corpus, subject
adherence to or compliance with the constitutionally-imposed limitations on the to the revocation of Congress and the review of this Court. Since the exercise
Presidential power to suspend the privilege of the writ of habeas corpus.162 of these powers is a judgment call of the President, the determination of this
"Lansang limited the review function of the Court to a very prudentially narrow Court as to whether there is sufficient factual basis for the exercise of such,
test of arbitrariness."163 Fr. Bernas described the "proper bounds" in Lansang must be based only on facts or information known by or available to the
as follows: President at the time he made the declaration or suspension, which facts or
information are found in the proclamation as well as the written Report
What, however, are these 'proper bounds' on the power of the courts? The submitted by him to Congress. These may be based on the situation existing at
Court first gave the general answer that its power was 'merely to check - not to the time the declaration was made or past events. As to how far the past events
supplant - the Executive, or to ascertain merely whether he has gone beyond should be from the present depends on the President.
the constitutional limits of his jurisdiction, not to exercise the power vested in
him or to determine the wisdom of his act. More specifically, the Court said that Past events may be considered as justifications for the declaration and/or
its power was not 'even comparable with its power over civil or criminal cases suspension as long as these are connected or related to the current situation
elevated thereto by appeal...in which cases the appellate court has all the existing at the time of the declaration.

58
 President Arroyo cannot be blamed for relying upon the information given to her
As to what facts must be stated in the proclamation and the written Report is up by the Armed Forces of the Philippines and the Philippine National Police,
to the President.165 As Commander-in-Chief, he has sole discretion to considering that the matter of the supposed armed uprising was within their
determine what to include and what not to include in the proclamation and the realm of competence, and that a state of emergency has also been declared in
written Report taking into account the urgency of the situation as well as Central Mindanao to prevent lawless violence similar to the 'Maguindanao
national security. He cannot be forced to divulge intelligence reports and massacre,' which may be an indication that there is a threat to the public safety
confidential information that may prejudice the operations and the safety of the warranting a declaration of martial law or suspension of the writ.
military.
Certainly, the President cannot be expected to risk being too late before
Similarly, events that happened after the issuance of the proclamation, which declaring martial law or suspending the writ of habeas corpus. The Constitution,
are included in the written report, cannot be considered in determining the as couched, does not require precision in establishing the fact of rebellion. The
sufficiency of the factual basis of the declaration of martial law and/or the President is called to act as public safety requires.168
suspension of the privilege of the writ of habeas corpus since these happened
after the President had already issued the proclamation. If at all, they may be Corollary, as the President is expected to decide quickly on whether there is a
used only as tools, guides or reference in the Court's determination of the need to proclaim martial law even only on the basis of intelligence reports, it is
sufficiency of factual basis, but not as part or component of the portfolio of the irrelevant, for purposes of the Court's review, if subsequent events prove that
factual basis itself. the situation had not been accurately reported to him.

In determining the sufficiency of the factual basis of the declaration and/or the After all, the Court's review is confined to the sufficiency, not accuracy, of the
suspension, the Court should look into the full complement or totality of the information at hand during the declaration or suspension; subsequent events do
factual basis, and not piecemeal or individually. Neither should the Court expect not have any bearing insofar as the Court's review is concerned. In any event,
absolute correctness of the facts stated in the proclamation and in the written safeguards under Section 18, Article VII of the Constitution are in place to cover
Report as the President could not be expected to verify the accuracy and such a situation, e.g., the martial law period is good only for 60 days; Congress
veracity of all facts reported to him due to the urgency of the situation. To may choose to revoke it even immediately after the proclamation is made; and,
require precision in the President's appreciation of facts would unduly burden this Court may investigate the factual background of the declaration.169
him and therefore impede the process of his decision-making. Such a
requirement will practically necessitate the President to be on the ground to Hence, the maxim falsus in uno, falsus in omnibus finds no application in this
confirm the correctness of the reports submitted to him within a period that only case. Falsities of and/or inaccuracies in some of the facts stated in the
the circumstances obtaining would be able to dictate. Such a scenario, of proclamation and the written report are not enough reasons for the Court to
course, would not only place the President in peril but would also defeat the invalidate the declaration and/or suspension as long as there are other facts in
very purpose of the grant of emergency powers upon him, that is, to borrow the the proclamation and the written Report that support the conclusion that there is
words of Justice Antonio T. Carpio in Fortun, to "immediately put an end to the an actual invasion or rebellion and that public safety requires the declaration
root cause of the emergency".166 Possibly, by the time the President is and/or suspension.
satisfied with the correctness of the facts in his possession, it would be too late
in the day as the invasion or rebellion could have already escalated to a level In sum, the Court's power to review is limited to the determination of whether
that is hard, if not impossible, to curtail. the President in declaring martial law and suspending the privilege of the writ of
habeas corpus had sufficient factual basis. Thus, our review would be limited to
Besides, the framers of the 1987 Constitution considered intelligence reports of an examination on whether the President acted within the bounds set by the
military officers as credible evidence that the President ca appraise and to Constitution, i.e., whether the facts in his possession prior to and at the time of
which he can anchor his judgment,167 as appears to be the case here. the declaration or suspension are sufficient for him to declare martial law or
suspend the privilege of the writ of habeas corpus.
At this point, it is wise to quote the pertinent portions of the Dissenting Opinion
of Justice Presbitero J. Velasco Jr. in Fortun: VIII. The parameters for determining the
sufficiency of the/actual basis/or the declaration

59
of martial law and/or the suspension of the Art. 134. Rebellion or insurrection; How committed. - The crime of rebellion or
privilege of the writ of habeas corpus. insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said
a) Actual invasion or rebellion, Government or its laws, the territory of the Philippine Islands or any part
and public safety requirement. thereof, of any body of land, naval or other armed forces, depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or
Section 18, Article VII itself sets the parameters for determining the sufficiency prerogatives.
of the factual basis for the declaration of martial law and/or the suspension of
the privilege of the writ of habeas corpus, "namely (1) actual invasion or Thus, for rebellion to exist, the following elements must be present, to wit: "(l)
rebellion, and (2) public safety requires the exercise of such power."170 there is a (a) public uprising and (b) taking arms against the Government; and
Without the concurrence of the two conditions, the President's declaration of (2) the purpose of the uprising or movement is either (a) to remove from the
martial law and/or suspension of the privilege of the writ of habeas corpus must allegiance to the Government or its laws: (i) the territory of the Philippines or
be struck down. any part thereof; or (ii) any body of land, naval, or other armed forces; or (b) to
deprive the Chief Executive or Congress, wholly or partially, of any of their
As a general rule, a word used in a statute which has a technical or legal powers and prerogatives."175
meaning, is construed to have the same technical or legal meaning.171 Since
the Constitution did not define the term "rebellion," it must be understood to b) Probable cause is the
have the same meaning as the crime of "rebellion" in the Revised Penal Code allowable standard of proof for the
(RPC).172 President.

During the July 29, 1986 deliberation of the Constitutional Commission of 1986, In determining the existence of rebellion, the President only needs to convince
then Commissioner Florenz D. Regalado alluded to actual rebellion as one himself that there is probable cause or evidence showing that more likely than
defined under Article 134 of the RPC: not a rebellion was committed or is being committed.176 To require him to
satisfy a higher standard of proof would restrict the exercise of his emergency
MR. DE LOS REYES. As I see it now, the Committee envisions actual rebellion powers. Along this line, Justice Carpio, in his Dissent in Fortun v. President
and no longer imminent rebellion. Does the Committee mean that there should Macapagal-Arroyo, concluded that the President needs only to satisfy probable
be actual shooting or actual attack on the legislature or Malacañang, for cause as the standard of proof in determining the existence of either invasion or
example? Let us take for example a contemporary event - this Manila Hotel rebellion for purposes of declaring martial law, and that probable cause is the
incident, everybody knows what happened. Would the Committee consider that most reasonable, most practical and most expedient standard by which the
an actual act of rebellion? President can fully ascertain the existence or non-existence of rebellion
necessary for a declaration of martial law or suspension of the writ. This is
MR. REGALADO. If we consider the definition of rebellion under Articles 134 because unlike other standards of proof, which, in order to be met, would
and 135 of the Revised Penal Code, that presupposes an actual assemblage of require much from the President and therefore unduly restrain his exercise of
men in an armed public uprising for the purposes mentioned in Article 134 and emergency powers, the requirement of probable cause is much simpler. It
by the means employed under Article 135. x x x173 merely necessitates an "average man [to weigh] the facts and circumstances
without resorting to the calibration of the rules of evidence of which he has no
Thus, rebellion as mentioned in the Constitution could only refer to rebellion as technical knowledge. He [merely] relies on common sense [and] x x x needs
defined under Article 134 of the RPC. To give it a different definition would not only to rest on evidence showing that, more likely than not, a crime has been
only create confusion but would also give the President wide latitude of committed x x x by the accused."177
discretion, which may be abused - a situation that the Constitution see k s to
prevent.174 To summarize, the parameters for determining the sufficiency of factual basis
are as follows: l) actual rebellion or invasion; 2) public safety requires it; the first
Article 134 of the RPC states: two requirements must concur; and 3) there is probable cause for the President
to believe that there is actual rebellion or invasion.

60
 martial law and suspend the privilege
Having laid down the parameters for review, the Court shall nowproceed to the of the writ of habeas corpus.
core of the controversy - whether Proclamation No. 216,Declaring a State of
Martial Law and Suspending the Privilege of the Writ of Habeas Corpus in the Since the President supposedly signed Proclamation No. 216 on May 23, 2017
whole of Mindanao, lacks sufficient factual basis. at 10:00 PM,180 the Court will consider only those facts and/or events which
were known to or have transpired on or before that time, consistent with the
IX. There is sufficient factual basis for the scope of judicial review. Thus, the following facts and/or events were deemed
declaration of martial law and the suspension of to have been considered by the President in issuing Proclamation No. 216, as
the writ of habeas corpus. plucked from and extant in Proclamation No. 216 itself:

At this juncture, it bears to emphasize that the purpose of judicial review is not 1. Proclamation No. 55 issued on September 4, 2016, declaring a state of
the determination of accuracy or veracity of the facts upon which the President national emergency on account of lawless violence in Mindanao;181
anchored his declaration of martial law or suspension of the privilege of the writ
of habeas corpus; rather, only the sufficiency of the factual basis as to convince 2. Series of violent acts182 committed by the Maute terrorist group including:
the President that there is probable cause that rebellion exists. It must also be
reiterated that martial law is a matter ofurgency and much leeway and flexibility a) Attack on the military outpost in Butig, Lanao del Sur m February 2016,
should be accorded the President. As such, he is not expected to completely killing and wounding several soldiers;
validate all the information he received before declaring martial law or
suspending the privilege of the writ of habeas corpus. b) Mass jailbreak in Marawi City in August 2016 of the arrested comrades of the
Maute Group and other detainees;
We restate the elements of rebellion for reference:
3. On May 23, 2017:183
1. That there be (a) public uprising, and (b) taking up arms against the
Government; and a) Takeover of a hospital in Marawi;

2. That the purpose of the uprising or movement is either: (a) to remove from b) Establishment of several checkpoints within Marawi;
the allegiance to said Government or its laws the territory of the Philippines or
any part thereof, or any body of land, naval or other armed forces or (b) to c) Burning of certain government and private facilities;
deprive the Chief Executive or Congress, wholly or partially, of any of their
powers or prerogatives.178 d) Mounting casualties on the part of the government;

Petitioners concede that there is an armed public uprising in Marawi City.179 e) Hoisting the flag of ISIS in several areas; and
However, they insist that the armed hostilities do not constitute rebellion in the
absence of the element of culpable political purpose, i.e., the removal from the f) Capability of the Maute Group and other rebel groups to sow terror, and
allegiance to the Philippine Government or its laws: (i) the territory of the cause death and damage to property not only in Lanao del Sur but also in other
Philippines or any part thereof; or (ii) any body of land, naval, or other armed parts of Mindanao; and the Report184 submitted to Congress:
forces; or (b) to deprive the Chief Executive or Congress, wholly or partially, of
any of their powers and prerogatives. 1. Zamboanga siege;185

The contention lacks merit. 2. Davao bombing;186

a) Facts, events and 3. Mamasapano carnage;187

information upon which the President
anchored his decision to declare 4. Cotabato bombings;188

61
 c) by 4:30 PM, intem1ption of power supply; sporadic gunfights; city-wide power
5. Sultan Kudarat bombings;189 outage by evening;204

6. Sulu bombings;190 d) from 6:00 PM to 7:00 PM, Maute Group ambushed and burned the Marawi
Police Station; commandeered a police car;205
7. Basilan bombings;191
e) BJMP personnel evacuated the Marawi City Jail and other affected
8. Attempt to capture Hapilon was confronted with armed resistance by areas;206
combined forces of ASG and the Maute Group;192
f) control over three bridges in Lanao del Sur, namely, Lilod, Bangulo, and
9. Escalation of armed hostility against the government troops;193 Sauiaran, was taken by the rebels;207

10. Acts of violence directed not only against government authorities and g) road blockades and checkpoints set up by lawless armed groups at the
establishments but civilians as well;194 Iligan-Marawi junction;208

11. Takeover of major social, economic and political foundations which h) burning of Dansalan College Foundation, Cathedral of Maria Auxiliadora, the
paralyzed Marawi City;195 nuns' quarters in the church, and the Shia Masjid Moncado Colony;209

12. The object of the armed hostilities was to lay the groundwork for the i) taking of hostages from the church;210
establishment of a DAESH/ISIS wilayat or province;196
j) killing of five faculty members of Dansalan College foundation;211
13. Maute Group has 263 active members, armed and combat-ready;197
k) burning of Senator Ninoy Aquino College Foundation and Marawi Central
14. Extensive networks or linkages of the Maute Group with foreign and local Elementary Pilot School;212
armed groups;198
1) overrunning of Amai Pakpak Hospital;213
15. Adherence of the Maute Group to the ideals espoused by ISIS;199
m) hoisting the ISIS flag in several areas;214
16. Publication of a video showing Maute Group's declaration of allegiance to
ISIS;200 n) attacking and burning of the Filipino-Libyan Friendship Hospital;215

17. Foreign-based terrorist groups provide financial and logistical support to the o) ransacking of a branch of Landbank of the Philippines and commandeering
Maute Group;201 an armored vehicle;216

18. Events on May 23, 2017 in Marawi City, particularly: p) reports regarding Maute Group's plan to execute Christians;217

a) at 2:00 PM, members and sympathizers of the Maute Group and ASG q) preventing Maranaos from leaving their homes;218
attacked various government and privately-owned facilities;202
r) forcing young Muslims to join their group;219 and
b) at 4:00 PM, around fifty (50) armed criminals forcibly entered the Marawi City
Jail; facilitated the escape of inmates; killed a member of PDEA; assaulted and s) intelligence reports regarding the existence of strategic mass action of
disarmed on-duty personnel and/or locked them inside the cells; confiscated lawless armed groups in Marawi City, seizing public and private facilities,
cellphones, personnel-issued firearms, and vehicles;203 perpetrating killings of government personnel1 , and committing armed uprising
against and open defiance of the Government.220

62
 7) "Law enforcement and other government agencies now face pronounced
b) The President's Conclusion difficulty sending their reports to the Chief Executive due to the city-wide power
outages. Personnel from the BJMP have been prevented from performing their
After the assessment by the President of the aforementioned facts, he arrived functions. Through the attack and occupation of several hospitals, medical
at the following conclusions, as mentioned in Proclamation No. 216 and the services in Marawi City have been adversely affected. The bridge and road
Report: blockades set up by the groups effectively deprive the government of its ability
to deliver basic services to its citizens. Troop reinforcements have been
1) The Maute Group is "openly attempting to remove from the allegiance to the hampered, preventing the government from restoring peace and order in the
Philippine Government this part of Mindanao and deprive the Chief Executive of area. Movement by both civilians and government personnel to and from the
his powers and prerogatives to enforce the laws of the land and to maintain city is likewise hindered."227
public order and safety in Mindanao, constituting the crime of rebellion."221
8) "The taking up of arms by lawless armed groups in the area, with support
2) "[L]awless armed groups have taken up arms and committed public uprising being provided by foreign-based terrorists and illegal drug money, and their
against the duly constituted government and against the people of Mindanao, blatant acts of defiance which embolden other armed groups in Mindanao, have
for the purpose of removing Mindanao - starting with the City of Marawi, Lanao resulted in the deterioration of public order and safety in Marawi City; they have
del Sur - from its allegiance to the Government and its laws and depriving the likewise compromised the security of the entire Island of Mindanao."228
Chief Executive of his powers and prerogatives to enforce the laws of the land
and to maintain public order and safety in Mindanao, to the great damage, 9) "Considering the network and alliance-building activities among terrorist
prejudice, and detriment of the people therein and the nation as a whole."222 groups, local criminals, and lawless armed men, the siege f Marawi City is a
vital cog in attaining their long-standing goal: absolute control over the entirety
3) The May 23, 2017 events "put on public display the groups' clear intention to of Mindanao. These circumstances demand swift and decisive action to ensure
establish an Islamic State and their capability to deprive the duly constituted the safety and security of the Filipino people and preserve our national
authorities - the President, foremost - of their powers and prerogatives. "223 integrity."229

4) "These activities constitute not simply a display of force, but a clear attempt Thus, the President deduced from the facts available to him that there was an
to establish the groups' seat of power in Marawi City for their planned armed public uprising, the culpable purpose of which was to remove from the
establishment of a DAESH wilayat or province covering the entire allegiance to the Philippine Government a portion of its territory and to deprive
Mindanao."224 the Chief Executive of any of his powers and prerogatives, leading the
President to believe that there was probable cause that the crime of rebellion
5) "The cutting of vital lines for transportation and power; the recruitment of was and is being committed and that public safety requires the imposition of
young Muslims to further expand their ranks and strengthen their force; the martial law and suspension of the privilege of the writ of habeas corpus.
armed consolidation of their members throughout Marawi City; the decimation
of a segment of the city population who resist; and the brazen display of A review of the aforesaid facts similarly leads the Court to conclude that the
DAESH flags constitute a clear, pronounced, and unmistakable intent to President, in issuing Proclamation No. 216, had sufficient factual bases tending
remove Marawi City, and eventually the rest of Mindanao, from its allegiance to to show that actual rebellion exists. The President's conclusion, that there was
the Government."225 an armed public uprising, the culpable purpose of which was the removal from
the allegiance of the Philippine Government a portion of its territory and the
6) "There exists no doubt that lawless armed groups are attempting to deprive deprivation of the President from performing his powers and prerogatives, was
the President of his power, authority, and prerogatives within Marawi City as a reached after a tactical consideration of the facts. In fine, the President
precedent to spreading their control over the entire Mindanao, in an attempt to satisfactorily discharged his burden of proof.
undermine his control over executive departments, bureaus, and offices in said
area; defeat his mandate to ensure that all laws are faithfully executed; and After all, what the President needs to satisfy is only the standard of probable
remove his supervisory powers over local governments."226 cause for a valid declaration of martial law and suspension of the privilege of
the writ of habeas corpus. As Justice Carpio decreed in his Dissent in Fortun:

63
 Probable cause is the same amount of proof required for the filing of a criminal
x x x [T]he Constitution does not compel the President to produce such amount information by the prosecutor and for the issuance of an arrest warrant by a
of proof as to unduly burden and effectively incapacitate her from exercising judge. Probable cause has been defined as a 'set of facts and circumstances
such powers. as would lead a reasonably discreet and prudent man to believe that the
offense charged in the Information or any offense included therein has been
Definitely, the President need not gather proof beyond reasonable doubt, which committed by the person sought to be arrested.'
is the standard of proof required for convicting an accused charged with a
criminal offense.x x x In determining probable cause, the average man weighs the facts and
circumstances without resorting to the calibrations of the rules of evidence of
xxxx which he has no technical knowledge. He relies on common sense. A finding of
probable cause needs only to rest on evidence showing that, more likely than
Proof beyond reasonable doubt is the highest quantum of evidence, and to not, a crime has been committed and that it was committed by the accused.
require the President to establish the existence of rebellion or invasion with Probable cause demands more than suspicion; it requires less than evidence
such amount of proof before declaring martial law or suspending the writ that would justify conviction.
amounts to an excessive restriction on 'the President's power to act as to
practically tie her hands and disable her from effectively protecting the nation Probable cause, basically premised on common sense, is the most reasonable,
against threats to public safety.' most practical, and most expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion, necessary for a
Neither clear and convincing evidence, which is employed in either criminal or declaration of martial law x x x230
civil cases, is indispensable for a lawful declaration of martial law or suspension
of the writ. This amount of proof likewise unduly restrains the President in c) Inaccuracies, simulations,
exercising her emergency powers, as it requires proof greater than falsities, and hyperboles.
preponderance of evidence although not beyond reasonable doubt.
The allegation in the Lagman Petition that the facts stated in Proclamation No.
Not even preponderance of evidence, which is the degree of proof necessary in 216 and the Report are false, inaccurate, simulated, and/or hyperbolic, does not
civil cases, is demanded for a lawful declaration of martial law. persuade. As mentioned, the Court is not concerned about absolute
correctness, accuracy, or precision of the facts because to do so would unduly
xxxx tie the hands of the President in responding to an urgent situation.

Weighing the superiority of the evidence on hand, from at least two opposing Specifically, it alleges that the following facts are not true as shown by its
sides, before she can act and impose martial law or suspend the writ counter-evidence.231
unreasonably curtails the President's emergency powers.
FACTUAL STATEMENTS COUNTER-EVIDENCE
Similarly, substantial evidence constitutes an unnecessary restriction on the (1) that the Maute group attacked Amai Pakpak Hospital and hoisted the
President's use of her emergency powers. Substantial evidence is the amount DAESH flag there, among several locations. As of 0600H of 24 May 2017,
of proof required in administrative or quasi-judicial cases, or that amount of members of the Maute Group were seen guarding the entry gates of the Amai
relevant evidence which a reasonable mind might accept as adequate to justify Pakpak Hospital and that they held hostage the employees of the Hospital and
a conclusion. took over the PhilHealth office located thereat (Proclamation No. 216 and
Report); Statements made by:
I am of the view that probable cause of the existence of either invasion or (a) Dr. Amer Saber, Chief of the Hospital
rebellion suffices and satisfies the standard of proof for a valid declaration of (b) Health Secretary Paulyn Ubial;
martial law and suspension of the writ. (c) PNP Spokesperson Senior Supt. Dionardo Carlos;
(d) AFP Public Affairs Office Chief Co. Edgard Arevalo; and

64
(e) Marawi City Mayor Majul Gandamra denying that the hospital was attacked Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds
by the Maute Group citing online news articles of Philstar, Sunstar, Inquirer, no application in these cases. As long as there are other facts in the
and Bombo Radyo.232 proclamation and the written Report indubitably showing the presence of an
2. that the Maute Group ambushed and burned the Marawi Police Station actual invasion or rebellion and that public safety requires the declaration
(Proclamation No. 216 and the Report); and/or suspension, the finding of sufficiency of factual basis, stands.

Statements made by PNP Director General Ronald dela Rosa and Marawi City d) Ruling in Bedol v.
Mayor Majul Gandamra in the online news reports of ABS-CBN News and CNN Commission on Elections not
Philippines233 denying that the Maute group occupied the Marawi Police Applicable.
Station.
Petitioners, however, insist that in Bedol v. Commission on Elections,239 news
3. that lawless armed groups likewise ransacked the Landbank of the reports may be admitted on grounds of relevance, trustworthiness, and
Philippines and commandeered one of its armored vehicles (Report); necessity. Petitioners' reliance on this case is misplaced. The Court in Bedol
made it clear that the doctrine of independent relevant statement, which is an
Statement made by the bank officials in the on-line news article of Philstar234 ·exception to the hearsay rule, applies in cases "where only the fact that such
that the Marawi City branch was not ransacked but sustained damages from statements were made is relevant, and the truth or falsity thereof is
the attacks. immaterial."240 Here, the question is not whether such statements were made
by Saber, et. al., but rather whether what they said are true. Thus, contrary to
4. that the Marawi Central Elementary Pilot School was burned (Proclamation the view of petitioners, the exception in Bedol finds no application here.
No. 216 and the Report);
e) There are other independent
Statements in the on-line news article of Philstar235 made by the Marawi City facts which support the finding that,
Schools Division Assistant Superintendent Ana Alonto denying that the school more likely than not, rebellion exists
was burned and Department of Education Assistant Secretary Tonisito Umali and that public safety requires it.
stating that they have not received any report of damage.
Moreover, the alleged false and/or inaccurate statements are just pieces and
5. that the Maute Group attacked various government facilities (Proclamation parcels of the Report; along with these alleged false data is an arsenal of other
No. 216 and the Report). independent facts showing that more likely than not, actua1 rebellion exists,
and public safety requires the declaration of martial law or suspension of the
Statement in the on-line news article of Inquirer236 made by Marawi City Mayor privilege of the writ of habeas corpus. To be precise, the alleged false and/or
Majul Gandamra stating that the ASG and the Maute Terror Groups have not inaccurate statements are only five out of the severa1 statements bulleted in
taken over any government facility in Marawi City. the President's Report. Notably, in the interpellation by Justice Francis H.
Jardeleza during the second day of the oral argument, petitioner Lagman
However, the so-called counter-evidence were derived solely from unverified admitted that he was not aware or that he had no personal knowledge of the
news articles on the internet, with neither the authors nor the sources shown to other incidents cited.241 As it thus stands, there is no question or challenge
have affirmed the contents thereof It was not even shown that efforts were with respect to the reliability of the other incidents, which by themselves are
made to secure such affirmation albeit the circumstances proved futile. As the ample to preclude the conclusion that the President's report is unreliable and
Court has consistently ruled, news articles are hearsay evidence, twice that Proclamation No. 216 was without sufficient factual basis.
removed, and are thus without any probative value, unless offered for a
purpose other than proving the truth of the matter asserted.237 This Verily, there is no credence to petitioners' claim that the bases for the
pronouncement applies with equal force to the Cullamat Petition which likewise President's imposition of martial law and suspension of the writ of habeas
submitted online news articles238 as basis for their claim of insufficiency of corpus were mostly inaccurate, simulated, false and/or hyperbolic.
factual basis.
X. Public safety requires the declaration of

65
martial law and the suspension of the privilege of public.
the writ of habeas corpus in the whole of
Mindanao. Considering the nation's and its people's traumatic experience martial law
under the Marcos regime, one would expect the framers of the 1987
Invasion or rebellion alone may justify resort to the calling out power but Constitution to stop at nothing from not resuscitating the law. Yet it would
definitely not the declaration of martial law or suspension of the privilege of the appear that the constitutional writers entertained no doubt about the necessity
writ of habeas corpus. For a declaration of martial law or suspension of the and practicality of such specie of extraordinary power and thus, once again,
privilege of the writ of habeas corpus to be valid, there must be a concurrence bestowed on the Commander-in-Chief the power to declare martial law albeit in
of actual rebellion or invasion and the public safety requirement. In his Report, its diluted form.
the President noted that the acts of violence perpetrated by the ASG and the
Maute Group were directed not only against government forces or Indeed, martial law and the suspension of the privilege of the writ of habeas
establishments but likewise against civilians and their properties.242 In addition corpus are necessary for the protection of the security of the nation; suspension
and in relation to the armed hostilities, bomb threats were issued;243 road of the privilege of the writ of habeas corpus is "precautionary , and although it
blockades and checkpoints were set up;244 schools and churches were might [curtail] certain rights of individuals, [it] is for the purpose of defending
burned;245 civilian hostages were taken and killed;246 non-Muslims or and protecting the security of the state or the entire country and our sovereign
Christians were targeted;247 young male Muslims were forced to join their people".253 Commissioner Ople referred to the suspension of the privilege of
group;248 medical services and delivery of basic services were hampered;249 the writ of habeas corpus as a "form of immobilization" or "as a means of
reinforcements of government troops and civilian movement were hindered;250 immobilizing potential internal enemies" "especially in areas like Mindanao."254
and the security of the entire Mindanao Island was compromised.251
Aside from protecting the security of the country, martial law also guarantees
These particular scenarios convinced the President that the atrocities had and promotes public safety. It is worthy of mention that rebellion alone does not
already escalated to a level that risked public safety and thus impelled him to justify the declaration of martial law or suspension of the privilege of the writ of
declare martial law and suspend the privilege of the writ of habeas corpus. In habeas corpus; the public safety requirement must likewise be present.
the last paragraph of his Report, the President declared:
b) As Commander-in-Chief, the
While the government is presently conducting legitimate operations to address President receives vital, relevant,
the on-going rebellion, if not the seeds of invasion, public safety necessitates classified, and live information which
the continued implementation of martial law and the suspension of the privilege equip and assist him in making
of the writ of habeas corpus in the whole of Mindanao until such time that the decisions.
rebellion is completely quelled.252
In Parts IX and X, the Court laid down the arsenal of facts and events that
Based on the foregoing, we hold that the parameters for the declaration of formed the basis for Proclamation No. 216. For the President, the totality of
martial law and suspension of the privilege of the writ f habeas corpus have facts and events, more likely than not, shows that actual rebellion exists and
been properly and fully complied with. Proclamation No. 216 has sufficient that public safety requires the declaration of martial law and suspension of the
factual basis there being probable cause to believe that rebellion exists and that privilege of the writ of habeas corpus. Otherwise stated, the President believes
public safety requires the martial law declaration and the suspension of the that there is probable cause that actual rebellion exists and public safety
privilege of the writ of habeas corpus. warrants the issuance of Proclamation No. 216. In turn, the Court notes that the
President, in arriving at such a conclusion, relied on the facts and events
XI. Whole of Mindanao included in the Report, which we find sufficient.

a) The overriding and To be sure, the facts mentioned in the Proclamation and the Report are far from
paramount concern of martial law is being exhaustive or all-encompassing. At this juncture, it may not be amiss to
the protection of the security of the state that as Commander-in-Chief, the President has possession of documents
nation and the good and safety of the and information classified as "confidential", the contents of which cannot be

66
included in the Proclamation or Report for reasons of national security. These grants to the President, as
documents may contain information detailing the position of government troops Commander-in-Chief, the discretion
and rebels, stock of firearms or ammunitions, ground commands and to determine the territorial coverage
operations, names of suspects and sympathizers, etc. , In fact, during the or application of martial law or
closed door session held by the Court, some information came to light, although suspension of the privilege of the writ
not mentioned in the Proclamation or Report. But then again, the discretion of habeas corpus.
whether to include the same in the Proclamation or Report is the judgment call
of the President. In fact, petitioners concede to this. During the oral argument, Section 18, Article VII of the Constitution states that "[i]n case of invasion or
petitioner Lagman admitted that "the assertion of facts [in the Proclamation and rebellion, when the public safety requires it, [the President] may x x x suspend
Report] is the call of the President."255 the privilege of writ of habeas corpus or place the Philippines or any part
thereof under martial law." Clearly, the Constitution grants to the President the
It is beyond cavil that the President can rely on intelligence reports and discretion to determine the territorial coverage of martial law and the
classified documents. "It is for the President as [C]ommander-in[C]hief of the suspension of the privilege of the writ of habeas corpus. He may put the entire
Armed Forces to appraise these [classified evidence or documents/]reports and Philippines or only a part thereof under martial law.
be satisfied that the public safety demands the suspension of the writ."256
Significantly, respect to these so-called classified documents is accorded even This is both an acknowledgement and a recognition that it is the Executive
"when [the] authors of or witnesses to these documents may not be Department, particularly the President as Commander-in-Chief, who is the
revealed."257 repository of vital, classified, and live information necessary for and relevant in
calibrating the territorial application of martial law and the suspension of the
In fine, not only does the President have a wide array of information before him, privilege of the writ of habeas corpus. It, too, is a concession that the President
he also has the right, prerogative, and the means to access vital, relevant, and has the tactical and military support, and thus has a more informed
confidential data, concomitant with his position as Commander-in-Chief of the understanding of what is happening on the ground. Thus, the Constitution
Armed Forces. imposed a limitation on the period of application, which is 60 days, unless
sooner nullified, revoked or extended, but not on the territorial scope or area of
c) The Court has no machinery coverage; it merely stated "the Philippines or any part thereof," depending on
or tool equal to that of the the assessment of the President.
Commander-in-Chief to ably and
properly assess the ground e) The Constitution has
conditions. provided sufficient safeguards against
possible abuses of Commander-in-
In contrast, the Court does not have the same resources available to the Chief's powers; further curtailment of
President. However, this should not be considered as a constitutiona1 lapse. Presidential powers should not only
On the contrary, this is in line with the function of the Court, particularly in this be discouraged but also avoided.
instance, to determine the sufficiency of factual basis of Proclamation No. 216.
As thoroughly discussed in Part VIII, the determination by the Court of the Considering the country's history, it is understandable that the resurgence of
sufficiency of factual basis must be limited only to the facts and information martial law would engender apprehensions among the citizenry. Even the Court
mentioned in the Report and Proclamation. In fact, the Court, in David v. as an institution cannot project a stance of nonchalance. However, the
President Macapagal-Arroyo,258 cautioned not to "undertake an independent importance of martial law in the context of our society should outweigh one's
investigation beyond the pleadings." In this regard, "the Court will have to rely prejudices and apprehensions against it. The significance of martial law should
on the fact-finding capabilities of the [E]xecutive [D]epartment;"259 in turn, the not be undermined by unjustified fears and past experience. After all, martial
Executive Department will have to open its findings to the Court,260 which it did law is critical and crucial to the promotion of public safety, the preservation of
during the closed door session last June 15, 2017. the nation's sovereignty and ultimately, the survival of our country. It is vital for
the protection of the country not only against internal enemies but also against
d) The 1987 Constitution those enemies lurking from beyond our shores. As such, martial law should not

67
be cast aside, or its scope and potency limited and diluted, based on bias and
unsubstantiated assumptions. x x x The power of the President to impose martial law is doubtless of a very
high and delicate nature. A free people are naturally jealous of the exercise of
Conscious of these fears and apprehensions, the Constitution placed several military power, and the power to impose martial law is certainly felt to be one of
safeguards which effectively watered down the power to declare martial law. no ordinary magnitude. But as presented by the Committee, there are many
The 1987 Constitution "[clipped] the powers of [the] Commander-in-Chief safeguards: 1) it is limited to 60 days; 2) Congress can revoke it; 3) the
because of [the] experience with the previous regime."261 Not only were the Supreme Court can still review as to the sufficiency of factual basis; and 4) it
grounds limited to actual invasion or rebellion, but its duration was likewise does not suspend the operation of the Constitution. To repeat what I have
fixed at 60 days, unless sooner revoked, nullified, or extended; at the same quoted when I interpellated Commissioner Monsod, it is said that the power to
time, it is subject to the veto powers of the Court and Congress. impose martial law is dangerous to liberty and may be abused. All powers may
be abused if placed in unworthy hands. But it would be difficult, we think, to
Commissioner Monsod, who, incidentally, is a counsel for the Mohamad point out any other hands in which this power will be more safe and at the same
Petition, even exhorted his colleagues in the Constitutional Convention to look time equally effectual. When citizens of the State are in arms against each
at martial law from a new perspective by elaborating on the sufficiency of the other and the constituted authorities are unable to execute the laws, the action
proposed safeguards: of the President must be prompt or it is of little value. x x x264 (Emphasis
supplied)
MR. MONSOD. x x x
At this juncture, it bears to stress that it was the collective sentiment of the
Second, we have been given a spectre of non sequitur, that the mere framers of the 1987 Constitution that sufficient safeguards against possible
declaration of martial law for a fixed period not exceeding 60 days, which is misuse and abuse by the Commander-in-Chief of his extraordinary powers are
subject to judicial review, is going to result in numerous violations of human already in place and that no further emasculation of the presidential powers is
rights, the predominance of the military forever and in untold sufferings. Madam called for in the guise of additional safeguards. The Constitution recognizes that
President, we are talking about invasion and rebellion. We may not have any any further curtailment, encumbrance, or emasculation of the presidential
freedom to speak of after 60 days, if we put as a precondition the concurrence powers would not generate any good among the three co-equal branches, and
of Congress. That might prevent the President from acting at that time in order to the country and its citizens as a whole. Thus:
to meet the problem. So I would like to suggest that, perhaps, we should look at
this in its proper perspective. We are only looking at a very specific case. We MR. OPLE. The reason for my concern, Madam President, is that when we put
are only looking at a case of the first 60 days at its maximum. And we are all of these encumbrances on the President and Commander-in-Chief during an
looking at actual invasion and rebellion, and there are other safeguards in those actual invasion or rebellion, given an intractable Congress that may be
cases.262 dominated by opposition parties, we may be actually impelling the President to
use the sword of Alexander to cut the Gordian knot by just declaring a
Even Bishop Bacani was convinced that the 1987 Constitution has enough revolutionary government that sets him free to deal with the invasion or the
safeguards against presidential abuses and commission of human rights insurrection. x x x265 (Emphasis supplied)
violations. In voting yes for the elimination of the requirement of prior
concurrence of Congress, Bishop Bacani stated, viz.: f) Rebellion and public safety;
nature, scope, and range.
BISHOP BACANI. Yes, just two sentences. The reason I vote II yes is that
despite my concern for human rights, I believe that a good President can also It has been said that the "gravamen of the crime of rebellion is an armed public
safeguard human rights and human lives as well. And I do not want to unduly uprising against the government;"266 and that by nature, "rebellion is x x x a
emasculate the powers of the President. Xxx263 crime of masses or multitudes, involving crowd action, that cannot be confined
a priori, within predetermined bounds."267 We understand this to mean that the
Commissioner Delos Reyes shared the same sentiment, to wit: precise extent or range of the rebellion could not be measured by exact metes
and bounds.
MR. DE LOS REYES. May I explain my vote, Madam President.

68
To illustrate: A contingent armed with high-powered firearms publicly and survival. As such, the President has to respond quickly. After the rebellion
assembled in Padre Faura, Ermita, Manila where the Court's compound is in the Court's compound, he need not wait for another rebellion to be mounted
situated. They overpowered the guards, entered the Court's premises, and in Quezon City before he could impose martial law thereat. If that is the case,
hoisted the ISIS flag. Their motive was political, i.e., they want to remove from then the President would have to wait until every remote corner in the country is
the allegiance to the Philippine government a part of the territory of the infested with rebels before he could declare martial law in the entire Philippines.
Philippines, particularly the Court's compound and establish it as an ISIS- For sure, this is not the scenario envisioned by the Constitution.
territory.
Going back to the illustration above, although the President is not required to
Based on the foregoing illustration, and vis-a-vis the nature of the crime of impose martial law only within the Court's compound because it is where the
rebellion, could we validly say that the rebellion is confined only within the armed public uprising actually transpired, he may do so if he sees fit. At the
Court's compound? Definitely not. The possibility that there are other rebels same time, however, he is not precluded from expanding the coverage of
positioned in the nearby buildings or compound of the Philippine General martial law beyond the Court's compound. After all, rebellion is not confined
Hospital (PGH) or the Manila Science High Schoo1 (MSHS) could not be within predetermined bounds.
discounted. There is no way of knowing that all participants in the rebellion went
and stayed inside the Court's compound. Public safety, which is another component element for the declaration of martial
law, "involves the prevention of and protection from events that could endanger
Neither could it be validly argued that the armed contingent positioned in PGH the safety of the general public from significant danger, injury/harm, or damage,
or MSHS is not engaged in rebellion because there is no publicity in their acts such as crimes or disasters."268 Public safety is an abstract term; it does not
as, in fact, they were merely lurking inside the compound of PGH and MSHS. take any physical form. Plainly, its range, extent or scope could not be
However, it must be pointed out that for the crime of rebellion to be physically measured by metes and bounds.
consummated, it is not required that all armed participants should congregate in
one place, in this case, the Court's compound, and publicly rise in arms against Perhaps another reason why the territorial scope of martial law should not
the government for the attainment of their culpable purpose. It suffices that a necessarily be limited to the particular vicinity where the armed public uprising
portion of the contingent gathered and formed a mass or a crowd and engaged actually transpired, is because of the unique characteristic of rebellion as a
in an armed public uprising against the government. Similarly, it cannot be crime. "The crime of rebellion consists of many acts. It is a vast movement of
validly concluded that the grounds on which the armed public uprising actually men and a complex net of intrigues and plots. Acts committed in furtherance of
to6k place should be the measure of the extent, scope or range, of the actual I rebellion[,] though crimes in themselves[,] are deemed absorbed in one single
rebellion. This is logical since the other rebels positioned in PGH, MSHS, I or crime of rebellion."269 Rebellion absorbs "other acts committed in its
elsewhere, whose participation did not involve the publicity aspect of rebellion, pursuance".270 Direct assault,271 murder,272 homicide,273 arson,274
may also be considered as engaging in the crime of rebellion. robbery,275 and kidnapping,276 just to name a few, are absorbed in the crime
of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a basis
Proceeding from the same illustration, suppose we say that the President, after of a separate charge."277 Jurisprudence also teaches that not only common
finding probable cause that there exists actual rebellion and that public safety crimes may be absorbed in rebellion but also "offenses under special laws
requires it, declares martial law and suspends the writ of habeas corpus in the [such as Presidential Decree No. 1829]278 which are perpetrated in
whole of Metro Manila, could we then say that the territorial coverage of the furtherance of the political offense".279 "All crimes, whether punishable under a
proclamation is too expansive? special law or general law, which are me e components or ingredients, or
committed in furtherance thereof, become absorbed in the crime of rebellion
To answer this question, we revert back to the premise that the discretion to and cannot be isolated and charged as separate crimes in themselves.280
determine the territorial scope of martial law lies with the President. The
Constitution grants him the prerogative whether to put the entire Philippines or Thus, by the theory of absorption, the crime of murder committed in Makati City,
any part thereof under martial law. There is no constitutional edict that martial if committed in furtherance of the crime of rebellion being hypothetically staged
law should be confined only in the particular place where the armed public in Padre Faura, Ermita, Manila, is stripped of its common complexion and is
uprising actually transpired. This is not only practical but also logical. Martial absorbed in the crime of rebellion. This all the more makes it difficult to confine
law is an urgent measure since at stake is the nation's territorial sovereignty the application of martial law only to the place where the armed public uprising

69
is actually taking place. In the illustration above, Padre Faura could only be the same manner, the Court lacks the technical capability to determine which part
nerve center of the rebellion but at the same time rebellion is also happening in of Mindanao would best serve as forward operating base of the military in their
Makati City. present endeavor in Mindanao. Until now the Court is in a quandary and can
only speculate whether the 60-day lifespan of Proclamation No. 216 could
In fine, it is difficult, if not impossible, to fix the territorial scope of martial law in outlive the present hostilities in Mindanao. It is on this score that the Court
direct proportion to the "range" of actual rebellion and public safety simply should give the President sufficient leeway to address the peace and order
because rebellion and public safety have no fixed physical dimensions. Their problem in Mindanao.
transitory and abstract nature defies precise measurements; hence, the
determination of the territorial scope of martial law could only be drawn from Thus, considering the current situation, it will not serve any purpose if the
arbitrary, not fixed, variables. The Constitution must have considered these President is goaded into using "the sword of Alexander to cut the Gordian
limitations when it granted the President wide leeway and flexibility in knot"282 by attempting to impose another encumbrance; after all "the
determining the territorial scope of martial law. declaration of martial law or the suspension of the privilege of the writ of habeas
corpus is essentially an executive act."283
Moreover, the President's duty to maintain peace and public safety is not
limited only to the place where there is actual rebellion; it extends to other areas Some sectors, impelled perhaps by feelings of patriotism, may wish to subdue,
where the present hostilities are in danger of spilling over. It is not intended rein in, or give the President a nudge, so to speak, as some sort of reminder of
merely to prevent the escape of lawless elements from Marawi City, but also to the nation's experience under the Marcos-styled martial law. However, it is not
avoid enemy reinforcements and to cut their supply lines coming from different fair to judge President Duterte based on the ills some of us may have
parts of Mindanao. Thus, limiting the proclamation and/or suspension to the experienced during the Marcos-martial law era. At this point, the Court quotes
place where there is actual rebellion would not only defeat the purpose of the insightful discourse of Commissioner Ople:
declaring martial law, it will make the exercise thereof ineffective and useless.
MR. OPLE. x x x
g) The Court must stay within
the confines of its power. xxxx

The Court can only act within the confines of its power.1âwphi1 For the Court to Madam President, there is a tendency to equate patriotism with rendering the
overreach is to infringe upon another's territory. Clearly, the power to determine executive branch of the government impotent, as though by reducing drastically
the scope of territorial application belongs to the President. "The Court cannot the powers of the executive, we are rendering a service to human welfare. I
indulge in judicial legislation without violating the principle of separation of think it is also important to understand that the extraordinary measures
powers, and, hence, undermining the foundation of our republican system."281 contemplated in the Article on the Executive pertain to a practical state of war
existing in this country when national security will become a common bond of
To reiterate, the Court is not equipped with the competence and logistical patriotism of all Filipinos, especially if it is an actual invasion or an actual
machinery to determine the strategical value of other places in the military's rebellion, and the President may have to be given a minimum flexibility to cope
efforts to quell the rebellion and restore peace. It would be engaging in an act of with such unprecedented threats to the survival of a nation. I think the
adventurism if it dares to embark on a mission of deciphering the territorial Commission has done so but at the same time has not, in any manner,
metes and bounds of martial law. To be blunt about it, hours after the shunned the task of putting these powers under a whole system of checks and
proclamation of martial law none of the members of this Court could have balances, including the possible revocation at any time of a proclamation of
divined that more than ten thousand souls would be forced to evacuate to Iligan martial law by the Congress, and in any case a definite determination of these
and Cagayan de Oro and that the military would have to secure those places extraordinary powers, subject only to another extension to be determined by
also; none of us could have predicted that Cayamora Maute would be arrested Congress in the event that it is necessary to do so because the emergency
in Davao City or that his wife Ominta Romato Maute would be apprehended in persists.
Masiu, Lanao del Sur; and, none of us had an inkling that the Bangsamoro
Islamic Freedom Fighters (BIFF) would launch an attack in Cotabato City. The So, I think this Article on the Executive for which I voted is completely
Court has no military background and technical expertise to predict that. In the responsible; it is attuned to the freedom and the rights of the citizenry. It does

70
not render the presidency impotent and, at the same time, it allows for a d. From March to May 2017, there were eleven (11) separate instances of IED
vigorous representation of the people through their Congress when an explosions by the BIFF in Mindanao. These resulted in the death and wounding
emergency measure is in force and effect.284 of several personalities.293

h) Several local armed groups e. On February 26, 2017, the ASG beheaded its kidnap victim, Juergen Kantner
have formed linkages aimed at in Sulu.294
committing rebellion and acts in
furtherance thereof in the whole of f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol resulting in firefights
Mindanao. between rebels and government troops.295

With a predominantly Muslim population, Marawi City is "the only Islamic City of g. On April 13, 2017, the ASG beheaded Filipino kidnap victim Noel
the South."285 On April 15, 1980, it was conferred the official title of "Islamic Besconde.296
City of Marawi."286 The city's first name, "Dansalan," "was derived from the
word 'dansal', meaning a destination point or rendezvous. Literally, it also h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji and beheaded him
means arrival or coming."287 Marawi lies in the heart of Mindanao. In fact, the three days later.297
Kilometer Zero marker in Mindanao is found in Marawi City thereby making
Marawi City the point of reference of all roads in Mindanao. There were also intelligence reports from the military about offensives
committed by the ASG and other local rebel groups. All these suggest that the
Thus, there is reasonable basis to believe that Marawi is only the staging point rebellion in Marawi has already spilled over to other parts of Mindanao.
of the rebellion, both for symbolic and strategic reasons. Marawi may not be the
target but the whole of Mindanao. As mentioned in the Report, "[l]awless armed Moreover, considering the widespread atrocities in Mindanao and the linkages
groups have historically used provinces adjoining Marawi City as escape established among rebel groups, the armed uprising that was initially staged in
routes, supply lines, and backdoor passages;"288 there is also the plan to Marawi cannot be justified as confined only to Marawi. The Court therefore will
establish a wilayat in Mindanao by staging the siege of Marawi. The report that not simply disregard the events that happened during the Davao City bombing,
prior to May 23, 2017, Abdullah Maute had already dispatched some of his men the Mamasapano massacre, the Zamboanga City siege, and the countless
to various places in Mindanao, such as Marawi, Iligan, and Cagayan de Oro for bombings in Cotabato, Sultan Kudarat, Sulu, and Basilan, among others.298
bombing operations, carnapping, and the murder of military and police The Court cannot simply take the battle of Marawi in isolation. As a crime
personnel,289 must also be considered. Indeed, there is some semblance of without predetermined bounds, the President has reasonable basis to believe
truth to the contention that Marawi is only the start, and Mindanao the end. that the declaration of martial law, as well as the suspension of the privilege of
the writ of habeas corpus in the whole of Mindanao, is most necessary,
Other events also show that the atrocities were not concentrated in Marawi effective, and called for by the circumstances.
City. Consider these:
i) Terrorism neither negates
a. On January 13, 2017, an improvised explosive device (IED) exploded in nor absorbs rebellion.
Barangay Campo Uno, Lamita City, Basilan. A civilian was killed while another
was wounded.290 It is also of judicial notice that the insurgency in Mindanao has been ongoing for
decades. While some groups have sought legal and peaceful means, others
b. On January 19, 2017, the ASG kidnapped three Indonesians near Bakungan have resorted to violent extremism and terrorism. Rebellion may be subsumed
Island, Taganak, Tawi-Tawi.291 under the crime of terrorism, which has a broader scope covering a wide range
of predicate crimes. In fact, rebellion is only one of the various means by which
c. On January 29, 2017, the ASG detonated an IED in Barangay Danapah, terrorism can be committed.299 However, while the scope of terrorism may be
Albarka, Basilan resulting in the death of two children and the wounding of comprehensive, its purpose is distinct and well-defined. The objective of a
three others.292 "'terrorist" is to sow and create a condition of widespread fear among the
populace in order to coerce the government to give in to an unlawful demand.

71
This condition of widespread fear is traditionally achieved through bombing, we, the Filipino people, are confronted with a crisis of such magnitude and
kidnapping, mass killing, and beheading, among others. In contrast, the proportion that we all need to summon the spirit of unity and act as one
purpose of rebellion, as previously discussed, is political, i.e., (a) to remove undivided nation, if we are to overcome and prevail in the struggle at hand.
from the allegiance to the Philippine Government or its laws: (i) the territory of
the Philippines or any part thereof; (ii) any body of land, naval, or armed forces; Let us face up to the fact that the siege in Marawi City has entered the second
or (b) to deprive the Chief Executive or Congress, wholly or partially, of any of month and only God or Allah knows when it would end. Let us take notice of the
their powers and prerogatives. fact that the casualties of the war are mounting. To date, 418 have died. Out of
that were 303 Maute rebels as against 71 government troops and 44 civilians.
In determining what crime was committed, we have to look into the main
objective of the malefactors. If it is political, such as for the purpose of severing Can we not sheathe our swords and pause for a while to bury our dead,
the allegiance of Mindanao to the Philippine Government to establish a wilayat including our differences and prejudices?
therein, the crime is rebellion. If, on the other hand, the primary objective is to
sow and create a condition of widespread and extraordinary fear and panic WHEREFORE, the Court FINDS sufficient factual bases for the issuance of
among the populace in order to coerce the government to give in to an unlawful Proclamation No. 216 and DECLARES it as CONSTITUTIONAL. Accordingly,
demand, the crime is terrorism. Here, we have already explained and ruled that the consolidated Petitions are hereby DISMISSED.
the President did not err in believing that what is going on in Marawi City is one
contemplated under the crime of rebellion.

In any case, even assuming that the insurgency in Marawi City can also be
characterized as terrorism, the same will not in any manner affect Proclamation
No. 216. Section 2 of Republic Act (RA) No. 9372, otherwise known as the
Human Security Act of 2007 expressly provides that "[n]othing in this Act shall
be interpreted as a curtailment, restriction or diminution of constitutionally
recognized powers of the executive branch of the government." Thus, as long
as the President complies with all the requirements of Section 18, Article VII,
the existence of terrorism cannot prevent him from exercising his extraordinary
power of proclaiming martial ' law or suspending the privilege of the writ of
habeas corpus. After all, the extraordinary powers of the President are
bestowed on him by the Constitution. No act of Congress can, therefore, curtail
or diminish such powers.

Besides, there is nothing in Art. 134 of the RPC and RA 9372 which states that
rebellion and terrorism are mutuallty exclusive of each other or that they cannot
co-exist together. RA 9372 does not expressly or impliedly repeal Art. 134 of
the RPC. And while rebellion is one of the predicate crimes of terrorism, one
cannot absorb the other as they have different elements.300

Verily, the Court upholds the validity of the declaration of martial law and
suspension of the privilege of the writ of habeas corpus in the entire Mindanao
region.

At the end of the day, however ardently and passionately we may believe in the
validity or correctness of the varied and contentious causes or principles that
we espouse, advocate or champion, let us not forget that at this point in time

72
 AÑO, IN HIS CAPACITY AS COMMANDING OFFICER OF THE
INTELLIGENCE SERVICE OF THE ARMED FORCES OF THE PHILIPPINES
(ISAFP), GEN. HERNANDO IRIBERRI, IN HIS CAPACITY AS COMMANDING
GENERAL OF THE PHILIPPINE ARMY, GEN. BENITO ANTONIO T. DE
LEON, IN HIS CAPACITY AS COMMANDING GENERAL OF THE 5TH
INFANTRY DIVISION, AND PC/SUPT. MIGUEL DE MAYO LAUREL, IN HIS
CAPACITY AS CHIEF OF THE ISABELA PROVINCIAL POLICE OFFICE,
Petitioners, v. ATTY. MARIA CATHERINE DANNUG-SALUCON, Respondent.

DECISION

BERSAMIN, J.:

The privilege of the writ of amparo may be granted on the basis of the
application of the totality of evidence standard. Such application may extend to
the use of relevant circumstantial evidence. Hearsay testimony that is
consistent with the admissible evidence adduced may also be admitted and
appreciated. The flexibility in the admission of evidence derives from the
recognition of the State's often virtual, monopoly of access to pertinent
evidence, as well as from the recognition of the deliberate use of the State's
power to destroy pertinent evidence being inherent in the practice of enforced
disappearances.

The Case

By petition for review on certiorari,1 the petitioners, namely: Gen. Emmanuel

Bautista, Gen. Eduardo Año, Gen. Hernando Iriberri, Gen. Benito Antonio T. De
Leon, and Chief Supt. Miguel De Mayo Laurel, hereby assail the decision
promulgated on March 12, 2015 in CA-G.R. SP No. 00053-W/A,2 whereby the
Court of Appeals (CA) granted the privilege of the writs of amparo and habeas
data in favor of respondent Atty. Maria Catherine Dannug-Salucon (Atty.
Salucon), the petitioner thereat, as well as the resolution promulgated on
December 2, 2015,3 whereby the CA denied their motion for reconsideration.

Antecedents

SO ORDERED. After her admission to the Philippine Bar, Atty. Salucon initially worked for the
Public Attorney's Office (PAO) before resigning to be become a human rights
(Next page) advocate. She co-founded the National Union of People's Lawyers (NUPL), a
national association of human rights advocates, law students and paralegals
G.R. No. 221862, January 23, 2018 principally engaged in public interest cases and human rights advocacy. She
also established her own law firm, and undertook the defense of several
GEN. EMMANUEL BAUTISTA, IN HIS CAPACITY AS THE CHIEF OF STAFF political detainees, most of whom were leaders or members of peasant and
OF THE ARMED FORCES OF THE PHILIPPINES (AFP), GEN. EDUARDO other sectoral organizations and people's organizations, including human rights

73
defenders labeled or suspected to be members of the Communist Party of the Bautista, and why she was always the lawyer of several suspected communist
Philippines (CPP) or the New People's Army (NPA) who had been harassed terrorists.
with allegedly trumped-up charges by the agents of the Government.
Upon further investigation, respondent discovered the following things:
For purposes of this adjudication, we adopt the CA's summary of the factual
antecedents derived from Atty. Salucon's petition for the issuance of the writs of 1)
amparo and habeas data, to wit: On or about March 12, 19 and 21, 2014, when [respondent] had out-of-town
hearings, different individuals riding on motorcycles and appearing to be
On March 24, 2014, [respondent] was at a lunch meeting with the relatives of a soldiers approached one of the buko and tupig vendors in front of
detained political prisoner client who was allegedly among several leaders of [respondent's] office. Each of them similarly questioned the vendors as to
people's organizations/sectoral organizations who were falsely charged in a where [respondent] went, with whom, what time she usually returned to the
murder and frustrated murder case pending before the Regional Trial Court office and who stayed behind in the office whenever she left. The vendor was
(RTC) of Lagawe, Ifugao. As they were discussing the security risks involved in surprised because the questions of the individuals were uniform on all
the handling of the case, William Bugatti, her paralegal who was working with occasions and they did not go into [respondent's] office despite the vendor's
her on said case and who was also an activist and human rights defender, advice for them to talk to [respondent's] secretary. The above incidents were
informed her that he had personally observed that surveillance was being narrated to [respondent] by her driver, Regie Lutao Gamongan, who had gotten
conducted on them, including the respondent, especially during hearings for the the information from the vendor.
above case. Thus, he suggested certain security measures for her own
protection. [Respondent] realized the significance of Bugatti's advice when he 2)
was fatally gunned down later that evening. Parenthetically, [respondent] had On March 31, 2014, a member of the Criminal Investigation Service (CIS) of the
asked him (sic) early that very day to identify the names, ranks and addresses Criminal Investigation Detection Group (CIDG) came to the law office, asking
of the handler/s of the prosecution witness in the Lagawe case, whom for the [respondent], but without telling her secretary why he was looking for
[respondent] suspected of lying on the witness stand. her. Upon learning that she was not there, he left, then returned again in the
afternoon. However, he left again upon finding out that [respondent] had
That same evening, [respondent] was informed by a client x x x working as a decided to stay at the Hall of Justice longer than expected.
civilian asset for the PNP Intelligence Section that the Regional Intelligence of
the PNP, through the PNP Isabela Provincial Police Office, had issued a 3)
directive to PNP Burgos, Isabela, [respondent's] hometown, to conduct a On the same day, [respondent] received a text message from the Chief
background investigation on her and to confirm whether she was a "Red Investigator of the CIDG, asking for a copy of the records of a human rights
Lawyer". She also learned that she was being secretly followed by agents of case involving three Bayan Muna members who were allegedly arbitrarily
the Intelligence Service of the Armed Forces of the Philippines (ISAFP) and that arrested on the basis of trumped up charges for two counts of frustrated murder
person looking like military/policemen had been asking people around her office and tortured in the hands of the 86th Infantry Battalion intelligence operatives.
about her whereabouts and routine. Further, respondent's name was reportedly Said case was dismissed by the Office of the Provincial Prosecutor during
included in the military's Watch List of so-called communist terrorist supporters preliminary investigation. [Respondent] was surprised at the request because it
rendering legal services. was the third time that the investigator was requesting for a copy of the records
and he could have easily secured the same from the Provincial Prosecutor's
On March 31, 2014, [respondent] again received a call from her confidential Office. Thus, [respondent] ignored the text message.
informant, confirming that she was indeed the subject of surveillance and that,
in fact, he was tailed by ISAFP operatives when he came to [respondent's] 4)
office a few nights earlier. The day before, the confidential informant was On or about 7:30 AM on April 3, 2014, while [respondent's] driver, Gamongan,
allegedly cornered by three ISAFP operatives who interrogated him on the was waiting for her in front of her residence at Poblacion, Burgos, Isabela, a red
purpose of his visit to respondent's office. They also asked him why respondent "Wave" motorcycle with its plate number cased inside a tinted plastic cover,
was acquainted with known NPA members such as Randy Malayao and Grace making it impossible to read the same, passed by their house. The motorcycle
driver, who was of medium height, with dark complexion, a haircut and
74
demeanor of a military/policeman, with a tattoo on his left, wearing a white Advancement of People's Rights), who agreed to help her in filing the instant
sando shirt and with a pistol bag slung around his shoulder, looked intently at petition. She also tried reporting the incidents to the National Bureau of
Gamongan as he passed by, "as if he wanted to do something wrong". After Investigation (NBI) in Isabela, but, as of present, no positive report had been
passing by the [respondent's] compound, the motorcycle rider suddenly made a made identifying the individuals who conducted the alleged surveillance,
u-turn and stared intently at Gamongan as he passed by. As he headed although available information specifically pointed to the military and police
towards the highway, Gamongan noticed that the man was continually units as the ones doing the surveillance.5
observing him through the side mirror. In relation to this incident, witness
Gamongan executed a Judicial Affidavit and testified during the trial We also adopt the CA's summary of the petitioners' averments, as follows:
proceedings.
[Petitioners] categorically denied [respondent's] allegations that she was ever
5) under surveillance by the military and/or police under the command of
On or about April 7 and 10, 2013, soldiers came to [respondent's] office in the [petitioners'] officials. x x x
guise of asking her to notarize documents. Since [respondent] was on out-of-
town hearings, her secretary suggested names of other available notaries xxx [Petitioners] also objected to the impleading of other [petitioners] in their
public. However, instead of leaving right away, the military men asked where official capacities, allegedly under the doctrine of command responsibility.
[respondent] went and with whom, and insisted on leaving the document and [Petitioners] maintained that the doctrine of command responsibility is a
picking it up later on when [respondent] arrived. substantive rule that establishes criminal or administrative liability that is
different from the purpose and approach under the Rule on the Writ of Amparo.
6) Thus, it can only be invoked in a full-blown criminal or administrative case and
On April 10, 2014, a known civilian asset of the Military Intelligence Group not in a summary amparo proceeding.
(MIG) in Isabela, who also happened to be the "close-in" secretary and part-
time driver of an uncle who was a municipal circuit judge, came to xxxx
[respondent's] office, trying to convince her to meet with the head of the MIG
Isabela so that the latter could explain why [respondent] was being watched. [Petitioners] [also] alleged that upon receipt of the CA Resolution promulgated
However, [respondent] declined. The following day, the civilian asset returned on April 22, 2014 x x x, they immediately exerted efforts to conduct an inquiry
and told her that she was being watched by the MIG because of a land dispute and to gather information about the purported threats on the life, liberty and
which she was handling at a court in Roxas, Isabela. [Respondent] did not security of the [respondent], to wit:
believe him because, just a couple of days prior to that date, the MIG
operatives had talked to the client/confidential informant who had first informed [Respondent] Secretary Gazmin maintained that, aside from sweeping
[respondent] of the purported surveillance operations on her, asking for allegations of surveillance and gathering of information made by alleged
[respondent's] phone number and inviting him to join them as civilian asset in unidentified operatives from the military and the police on [respondent], the
their anti-insurgency operations.4 latter failed to particularize the instances of [petitioner] Sec. Gazmin's
In her petition, thus, [respondent] posited that the above-described acts, taking involvement in said surveillance and information gathering that would warrant
into consideration previous incidents where human rights lawyers, human rights his inclusion as party [respondent] in the case;
defenders, political activists and defenders, were killed or abducted after being
labeled as "communists" and being subjected to military surveillance, may be Upon receipt of the CA's April 22, 2014 Resolution, [petitioner] Gen. Emmanuel
interpreted as preliminary acts leading to the abduction and/or killing of T. Bautista issued a directive to the ISAFP Chief and Commander of the 5th
[respondent]. Moreover, while [respondent] admitted that the purported military Infantry Division to verify the alleged surveillance operations conducted on
and police operatives who conducted, and were still conducting, surveillance [respondent]. In addition, he enjoined the concerned unit/s to immediately
and harassments on [respondent] were still unidentified, she maintained that investigate and/or submit to the Higher Headquarters pertinent investigation
the same were identified as members of the ISAFP, the Philippine Army and results already conducted, if any, relative to the complained acts. Finally,
the police, and that there was no doubt that they all acted upon orders of their [petitioner] Gen. Bautista affirmed the continuation of efforts to establish the
superiors within the chain of command. [Respondent] reported the incidents to surrounding circumstances of [respondent's] allegations and to bring those
the NUPL and the human rights group KARAPATAN (Alliance for the responsible, including any military personnel, if shown to have participated or to

75
have had complicity in the commission of the alleged acts, to the court of negative. In addition, he averred that he immediately sent out radio messages
justice. to his subordinates to be law-abiding and that human rights violations have no
place in the military.
[Petitioner] Major Gen. Eduardo M. Año denied the ISAFP's involvement in the
alleged surveillance operations on and harassment of [respondent], and the [Petitioner] PCSupt. Miguel de Mayo Laurel clarified that he was currently the
inclusion of [petitioner's] name in an alleged watchlist. In fact, petitioner Major Acting Regional Director of the Police Regional Office 2, and not the Chief of
Gen. Ano claimed that he only came to know of [respondent's] name upon the Isabela Provincial Police Office, as indicated in the Petition. Said Petition
receipt of the Petition, which he described as a mere product of a fabricated was only emailed by the Legal Service of Camp Crame to the Office of the
story intended to discredit him, in particular, and the ISAFP as a whole. Regional Legal Service, which provided [petitioner] PCSupt. Laurel a copy of
Nonetheless, upon obtaining a copy of the Petition from the Judge Advocate the same. [Petitioner] PCSupt. Laurel maintained that their Office had no
General and the AFP Radio Message directing his unit to submit results of the memorandum order relating to [respondent's] allegations, nor are there any
verification and inquiry on the Petition, [petitioner] Major Gen. Ano immediately documents in their possession concerning [respondent]. Thus, PCSupt. Laurel
instructed the Group Commanders of the MIG 1 and 2 to coordinate closely immediately sent a Memorandum directing the Provincial Director of the Isabela
with the military and the PNP in the area to ensure that no harassment or Police Provincial Office and the Chief of the Regional Intelligence Division of
surveillance will be conducted on [respondent]. Police Regional Office 2, two of the units mentioned in the Petition which were
under his operational control, to submit their comments and all relevant
Upon receipt of [the CA Resolution], [petitioner] Lt. Gen. Hernando DCA Iriberri information and pertinent documents relative to the allegations made by
immediately informed the Army Judge Advocate, the legal arm of the Philippine [respondent] and to identify the persons who are responsible for the alleged
Army, of the same. Having no information on the nature and circumstances harassment and threats on [respondent's] life, liberty and security. In response
surrounding the case, he coordinated with his staff to look into the matter. Even thereto, PSSupt. Ramos, Jr., the Provincial Director of the Isabela Provincial
prior to the radio message from the Chief of Staff dated April 25, 2014, directing Police Office, reported that no directive was ever issued to PNP Burgos,
him to conduct verification on the alleged surveillance on [respondent], Isabela, to conduct a background investigation and to confirm [respondent's]
[petitioner] Lt. Gen. Iriberri had already taken the initiative to issue a directive to alleged status as a "Red Lawyer", or to threaten, intimidate or harass, and
the Commanding General of the 5th Infantry Division in Gamu, lsabela, to verify conduct continuous surveillance on her. He likewise denied that his office was
and inquire into the allegations in the Petitioner pertaining to any operation in possession of any data or information which may or would likely violate
which may have been conducted or which was in anyway (sic) related to the [respondent's] right to privacy or be used as a justification to harass or
transgression of human rights of [respondent]. Finally, he undertook that, intimidate her. Meanwhile, the Chief of the Regional Intelligence Division
should there be any finding that any army personnel was involved or had likewise denied the existence of any order or directive to conduct a background
committed any of the allegations in the Petition, such personnel shall be dealt investigation and to confirm [respondent] as a "Red Lawyer", or that their office
with accordingly pursuant to existing laws and AFP regulations. was in possession of any data or information on [respondent]. Finally,
[petitioner] PCSupt. Laurel ordered the Isabela Provincial Police Office and the
[Petitioner] Major Gen. Benito Antonio T. De Leon pointed out that he assumed PSSupt. Ramos, Jr. to investigate the alleged threats on the life, liberty and
command of the 5th Infantry (STAR) Division only on April 4, 2014, thus, the security of [respondent], and to identify the persons, if any, who are responsible
alleged surveillance operations would have been conducted prior to his for the same.
assumption of said office. Since he assumed command of said unit, he had not [Petitioners] also noted that [respondent's] testimony consisted of mere
given any orders to his men to conduct surveillance or "casing" operations unverified accounts from an unknown person whose identity [respondent] did
against any persons within the unit's area of operation, nor did he receive any not want to reveal. Moreover, [respondent's] allegations against [petitioners]
similar orders from his superiors. Nonetheless, even prior to the receipt of the and their respective offices were, at best, mere conclusions on her part, a mere
directive from the higher headquarters and a copy of the Petition, [petitioner] impression that [respondent] had based on the physical appearance of the men
Major Gen. De Leon, on his own volition and upon gaining information through looking for her, as described by her staff and according to her own personal
print media of the filing of the petition, exerted efforts to verify with the assessment of the circumstances. However, [respondent] could not
intelligence unit commanders under his command whether there was any categorically identify and link any of the said individuals to [petitioners], claiming
standing instruction or order for them to conduct "casing" or surveillance only that they were military-looking men.6
operations against [respondent], to which the commanders responded in the

76
In substantiation of her petition, Atty. Salucon and her driver, Reggie Lutao identify and find the person/s responsible for said violations and bring them to
Gamongan, testified. She also submitted documentary evidence consisting of competent court. The foregoing respondents are likewise DIRECTED to
the several criminal informations filed in various courts against her clients who SUBMIT a quarterly report of their actions to this Court, as a way of PERIODIC
were either political detainees, leaders or members of peasant and other REVIEW to enable this Court to monitor the action of respondents.
sectoral and people's organizations, human rights defenders or suspected NPA
members, and the complainants were either military or police officers and The above-named respondents are likewise DIRECTED to produce and
personnel. disclose to this Court any and all facts, information, statements, records,
photographs, dossiers, and all other evidence, documentary or otherwise,
On the part of the petitioners, Maj. Gen. De Leon and Sr. Supt. Ramos, Jr. pertaining to petitioner Atty. Maria Catherine Dannug-Salucon, for possible
testified. Submitted as additional evidence by the petitioners were relevant destruction upon order of this Court.
memoranda, letters, and radio messages.
In the event that herein respondents no longer occupy their respective posts,
On March 12, 2015, the CA rendered the assailed decision granting the the directives mandated in this Decision are enforceable against the incumbent
privilege of the writs of amparo and habeas data,7 disposing thusly: officials holding the relevant positions. Failure to comply with the foregoing shall
constitute contempt of court.
Considering the foregoing, we find that petitioner has substantially proven by
substantial evidence her entitlement to the writs of amparo and habeas data. Finally, the instant petition is hereby DISMISSED with respect to the following
Moreover, she was able to substantially establish that respondents PCSupt. respondents: President Benigno Simeon C. Aquino III, on the ground of
Laurel, Lt. Gen. Irriberi, Major Gen. Ano and Gen. Bautista are responsible and immunity from suits; Secretary of National Defense Voltaire Gazmin, for lack of
accountable for the violation of respondent's rights to life, liberty and security on merit; and PNP Gen. Alan Purisima, for being moot and academic.
the basis of the unjustified surveillance operations and acts of harassment and
intimidation committed against petitioner and/or lack of any fair and effective SO ORDERED.8
official investigation as to her allegations. On the other hand, while it is true that
respondent Major Gen. De Leon assumed his office only after the occurrence of On December 2, 2015, the CA denied the petitioners' motion for
the subject incidents, he is still currently in the best position to conduct the reconsideration filed by the Office of the Solicitor General,9 ruling:
necessary investigation and perform all other responsibilities or obligations
required, if any, by the writ of amparo and habeas data. However, the instant WHEREFORE, the instant Motion for Reconsideration is DENIED.
petition should be dismissed as against respondent President Aquino on the
ground of immunity from suit, against respondent Secretary Gazmin for lack of The undated Manifestation of the Solicitor General is NOTED. Accordingly, let
merit and against former PNP Dir. Gen. Purisima for being moot and academic. the pleadings, orders and notices be sent to the incumbent officials holding the
relevant positions in this case.
WHEREFORE, the instant Petition for the Issuance of the Writs of Amparo and
Habeas Data is GRANTED. SO ORDERED.10

Accordingly, respondents PCSupt. Miguel De Mayo Laurel, in his capacity as Hence, this appeal.
Acting Regional Director of the Police Regional Office 2; Gen. Hernando Irriberi,
in his capacity as the Commanding General of the Philippine Army; Gen. Issues
Eduardo Año, in his capacity as the Commanding Officer of the ISAFP; and
Gen. Emmanuel Bautista, in his capacity as the Chief of Staff of the AFP, are The petitioners submit in support of their appeal that the issues to be
hereby DIRECTED to exert extraordinary diligence and efforts, not only to considered and resolved by the Court are the following:
protect the life, liberty and security of petitioner Atty. Maria Catherine Dannug-
Salucon and the immediate members of her family, but also to conduct further Whether or not the CA erred in admitting and considering Atty. Salucon's
investigation to determine the veracity of the alleged surveillance operation and evidence despite being largely based on hearsay information;
acts of harassment and intimidation committed against petitioner, as well as to

77
Whether or not the CA erred in finding Atty. Salucon's evidence sufficient to
justify the granting of the privilege of the writs of amparo and habeas data; We note in this regard that the use of flexibility in the consideration of evidence
is not at all novel in the Philippine legal system. In child abuse cases, Section
Whether or not the CA erred in ruling that the hearsay evidence of Atty. 28 of the Rule on Examination of a Child Witness is expressly recognized as an
Salucon, assuming its admissibility for the sake of argument, satisfied the exception to the hearsay rule. This Rule allows the admission of the hearsay
requirement of substantial evidence; testimony of a child describing any act or attempted act of sexual abuse in any
criminal or non-criminal proceeding, subject to certain prerequisites and the
Whether or not the CA erred in granting the privilege of the writ of habeas data right of cross-examination by the adverse party. The admission of the statement
despite the failure of Atty. Salucon to produce evidence showing that the is determined by the court in light of specified subjective and objective
petitioners were in possession of facts, information, statements, photographs or considerations that provide sufficient indicia of reliability of the child witness.
documents pertaining to her; and These requisites for admission find their counterpart in the present case under
the above-described conditions for the exercise of flexibility in the consideration
Whether or not the CA erred in directing the petitioners to exert extraordinary of evidence, including hearsay evidence, in extrajudicial killings and enforced
diligence and efforts to conduct further investigation in order to determine the disappearance cases.13
veracity of Atty. Salucon's alleged harassment and surveillance.11
Ruling of the Court Razon, Jr. v. Tagitis cited the ruling in Velasquez Rodriguez,14 wherein the
Inter-American Court of Human Rights (IACHR) took note that enforced
The appeal lacks merit. disappearances could generally be proved only through circumstantial or
indirect evidence or by logical inference; and that it would be impossible
I. otherwise to prove that an individual had been made to disappear because of
The CA properly admitted Atty. Salucon's the State's virtual monopoly of access to pertinent evidence, or because the
proof even if it supposedly consisted deliberate use of the State's power to destroy pertinent evidence was inherent
of circumstantial evidence and hearsay testimonies in the practice of enforced disappearances. Hence, the reliance on
circumstantial evidence and hearsay testimony of witnesses is permissible. In
In Razon, Jr. v. Tagitis,12 the Court adopted the standard of totality of evidence this respect, Razon, Jr. v. Tagitis observed that Velasquez Rodriguez rendered
for granting the privilege of the writ of amparo, explaining: an informative discussion on the appreciation of evidence to establish enforced
disappearances, to wit:
Not to be forgotten in considering the evidentiary aspects of Amparo petitions
are the unique difficulties presented by the nature of enforced disappearances, Velasquez stresses the lesson that flexibility is necessary under the unique
heretofore discussed, which difficulties this Court must frontally meet if the circumstances that enforced disappearance cases pose to the courts; to have
Amparo Rule is to be given a chance to achieve its objectives. These an effective remedy, the standard of evidence must be responsive to the
evidentiary difficulties compel the Court to adopt standards appropriate and evidentiary difficulties faced. On the one hand, we cannot be arbitrary in the
responsive to the circumstances, without transgressing the due process admission and appreciation of evidence, as arbitrariness entails violation of
requirements that underlie every proceeding. rights and cannot be used as an effective counter-measure; we only compound
the problem if a wrong is addressed by the commission of another wrong. On
xxxx the other hand, we cannot be very strict in our evidentiary rules and cannot
consider evidence the way we do in the usual criminal and civil cases;
The fair and proper rule, to our mind, is to consider all the pieces of evidence precisely, the proceedings before us are administrative in nature where, as a
adduced in their totality, and to consider any evidence otherwise inadmissible rule, technical rules of evidence are not strictly observed. Thus, while we must
under our usual rules to be admissible if it is consistent with the admissible follow the substantial evidence rule, we must observe flexibility in considering
evidence adduced. In other words, we reduce our rules to the most basic test of the evidence we shall take into account.15
reason — i.e., to the relevance of the evidence to the issue at hand and its
consistency with all other pieces of adduced evidence. Thus, even hearsay Under the totality of evidence standard, hearsay testimony may be admitted
evidence can be admitted if it satisfies this basic minimum test. and appreciated depending on the facts and circumstances unique to each

78
petition for the issuance of the writ of amparo provided such hearsay testimony d)
is consistent with the admissible evidence adduced. Yet, such use of the On the same day Bugatti was gunned down, a client of hers who was working
standard does not unquestioningly authorize the automatic admissibility of as a civilian asset for the PNP Intelligence Section reported to her that the
hearsay evidence in all amparo proceedings. The matter of the admissibility of Regional Intelligence Unit of the PNP, through the PNP Isabela Provincial
evidence should still depend on the facts and circumstances peculiar to each Office, issued a directive to conduct a background investigation to confirm if she
case. Clearly, the flexibility in the admissibility of evidence adopted and was a "Red Lawyer;"
advocated in Razon, Jr. v. Tagitis is determined on a case-to-case basis.
e)
II. Said civilian asset also informed her that she was being secretly followed by
The respondent presented substantial ISAFP agents, and that individuals who appeared to be military or police
evidence sufficient to justify personnel had been asking people around her office regarding her routine and
the issuance of the writ of amparo whereabouts;

The petition for the writ of amparo partakes of a summary proceeding that f)
requires only substantial evidence to make the appropriate interim and Her secretary informed her that a member of the CIS-CIDG and some
permanent reliefs available to the petitioner. The Rules of Court and purported military personnel had gone to her law office on several occasions
jurisprudence have long defined substantial evidence as such relevant inquiring on her whereabouts;
evidence as a reasonable mind might accept as adequate to support a
conclusion.16 It is to be always borne in mind that such proceeding is not an g)
action to determine criminal guilt requiring proof beyond reasonable doubt, or to On the same day said CIS-CIDG member went to her law office, she received a
allocate liability for damages based on preponderance of evidence, or to text message from the Chief Investigator of the CIDG requesting, for the third
adjudge administrative responsibility requiring substantial evidence.17 time, a copy of the records of a case she was handling;
The facts and circumstances enumerated by the respondent's petition h)
consisted of the following: Gamongan, her driver who testified in support of the petition, notified her that a
vendor outside her law office had told him that several motorcycle-riding
a) personnel of the military had approached said vendor on separate instances
She was a human rights lawyer who had taken criminal cases in which the asking about her whereabouts and the persons she was with, her routine and
accused were political detainees, including human rights defenders or schedule, as well as the persons who were left at the law office whenever she
suspected members of the CPP-NPA, and the complainants were military or went out;
police officials or personnel;
i)
b) Gamongan also testified about an incident that occurred while he was waiting
Her paralegal William Bugatti informed her that he had personally observed outside her house in which a motorcycle-riding man, who looked like he was
various individuals conducting surveillance operations of their movements (i.e., military or police based on his haircut and demeanor, had driven by her house
the respondent and Bugatti) specially during the trial of a case in Ifugao twice intently observing him and the house "as if he wanted to do something
involving a political detainee who was a leader of a people's or sectoral bad;"
organization;
j)
c) A known civilian asset of the Military Intelligence Group (MIG) tried to convince
On the day Bugatti informed her about his observation, and she instructed him her to have a meeting with MIG Isabela so that he could explain why she was
to discover the names, ranks, and addresses of the handlers of the Prosecution being watched; and
witness in the Ifugao case, he was fatally gunned down;
k)
79
Upon her refusal of the invitation to meet, the civilian asset returned the next Verily, proceedings related to the petition for the issuance of the writ of amparo
day telling her that she was being watched by the MIG because of a land should allow not only direct evidence, but also circumstantial evidence. The
dispute case she was then handling for a client.18 Rules of Court has made no distinction between direct evidence of a fact and
Upon due consideration of the foregoing, the CA opined that it would be all the evidence of circumstances from which the existence of a fact may be
more difficult to obtain direct evidence to prove the respondent's entitlement to inferred.21 One kind of evidence is not superior to the other, for the trier of facts
the privilege of the writ of amparo because no extrajudicial killing or enforced must weigh the evidence upon admission. Only in the event of a conviction in a
disappearance had yet occurred. Indeed, her petition referred to acts that criminal case does the Rules of Court require that the circumstantial evidence
merely threatened to violate her rights to life, liberty and security, or that could should consist of a combination of several circumstances that "produce a
be appreciated only as preliminary steps to her probable extrajudicial killing or conviction beyond reasonable doubt."22 Yet, under Razon, Jr. v. Tagitis, even
enforced disappearance. Even so, it would be uncharacteristic for the courts, hearsay testimony may be considered by the amparo court provided such
especially this Court, to simply fold their arms and ignore the palpable threats to testimony can lead to conclusions consistent with the admissible evidence
her life, liberty and security and just wait for the irreversible to happen to her. adduced.23 What the respondent obviously established is that the threats to
The direct evidence might not come at all, given the abuse of the State's power her right to life, liberty and security were neither imaginary nor contrived, but
to destroy evidence being inherent in enforced disappearances or extrajudicial real and probable. The gunning down of her paralegal Bugatti after he had
killings. relayed to her his observation that they had been under surveillance was the
immediate proof of the threat. The purpose and noble objectives of the special
There was no question about the relevance of the hearsay testimony with which rules on the writ of amparo may be rendered inutile if the rigid standards of
the respondent sought to establish some of the facts and circumstances she evidence applicable in ordinary judicial proceedings were not tempered with
alleged. Flexibility needed to be adopted in the appreciation and consideration such flexibility.
of such facts and circumstances despite hearsay being inadmissible under
other judicial situations. Such flexibility accorded with the following instruction in III.
Razon, Jr. v. Tagitis,19 to wit: The CA had sufficient basis to issue the writ
of habeas data at the respondent's behest
x x x In an Amparo petition, however, this requirement must be read in light of
the nature and purpose of the proceeding, which addresses a situation of The writ of habeas data is a remedy available to any person whose right to
uncertainty; the petitioner may not be able to describe with certainty how the privacy in life, liberty or security is violated or threatened by an unlawful act or
victim exactly disappeared, or who actually acted to kidnap, abduct or arrest omission of a public official or employee, or of a private individual or entity
him or her, or where the victim is detained, because these information may engaged in the gathering, collecting or storing of data or information regarding
purposely be hidden or covered up by those who caused the disappearance. In the person, family, home and correspondence of the aggrieved party.24 It is an
this type of situation, to require the level of specificity, detail and precision that independent and summary remedy designed to protect the image, privacy,
the petitioners apparently want to read into the Amparo Rule is to make this honor, information, and freedom of information of an individual, and to provide a
Rule a token gesture of judicial concern for violations of the constitutional rights forum to enforce one's right to the truth and to informational privacy.25 It seeks
to life, liberty and security. to protect a person's right to control information regarding oneself, particularly
in instances in which such information is being collected through unlawful
To read the Rules of Court requirement on pleadings while addressing the means in order to achieve unlawful ends.26
unique Amparo situation, the test in reading the petition should be to determine
whether it contains the details available to the petitioner under the In its decision, the CA, issuing the privilege of the writ of habeas data, directed
circumstances, while presenting a cause of action showing a violation of the the petitioners "to produce and disclose to this Court any and all facts,
victim's rights to life, liberty and security through State or private party action. information, statements, records, photographs, dossiers, and all other evidence,
The petition should likewise be read in its totality, rather than in terms of its documentary or otherwise, pertaining to petitioner Atty. Maria Catherine
isolated component parts, to determine if the required elements — namely, of Dannug-Salucon, for possible destruction upon order of this Court.''
the disappearance, the State or private action, and the actual or threatened
violations of the rights to life, liberty or security — are present.20 The directive was factually and procedurally warranted. There was no question
that the civilian asset of the PNP Intelligence Section relayed to the respondent

80
that there was a standing order issued by the PNP Isabela Provincial Police The respondent public official or employee cannot invoke the presumption that
Office to the PNP office in Burgos, Isabela to conduct a background official duty has been regularly performed to evade the responsibility or liability.
investigation in order to confirm if she was a "Red Lawyer." She was also under
actual surveillance by different individuals who looked like they were members In Razon, Jr. v. Tagitis,27 the Court spelled out the two-fold burden that the
of the military or police establishments. The objective of these moves taken public authorities had to discharge in situations of extrajudicial killings and
against her was unquestionably to establish a pattern of her movements and enforced disappearances, viz.:
activities, as well as to obtain the records of the cases she was handling for her
various clients. These and other established circumstances fully warranted Our intervention is in determining whether an enforced disappearance has
within the context of the Rule on the Writ of Habeas Data the directive of the CA taken place and who is responsible or accountable for this disappearance, and
for the handing over and destruction of all information and data on her in order to define and impose the appropriate remedies to address it. The burden for the
to protect her privacy and security. public authorities to discharge in these situations, under the Rule on the Writ of
Amparo, is twofold. The first is to ensure that all efforts at disclosure and
IV. investigation are undertaken under pain of indirect contempt from this Court
The directive of the CA for the petitioners when governmental efforts are less than what the individual situations require.
to exert extraordinary diligence in conducting The second is to address the disappearance, so that the life of the victim is
further investigations was valid and proper preserved and his or her liberty and security restored. In these senses, our
orders and directives relative to the writ are continuing efforts that are not truly
Section 9 of the Rule on the Writ of Amparo requires the amparo respondent to terminated until the extrajudicial killing or enforced disappearance is fully
state in the return the actions that have been or will still be taken: (a) to verify addressed by the complete determination of the fate and the whereabouts of
the identity of the aggrieved party; (b) to recover and preserve evidence related the victim, by the production of the disappeared person and the restoration of
to the death or disappearance of the person identified in the petition which may his or her liberty and security, and, in the proper case, by the commencement
aid in the prosecution of the person or persons responsible; (c) to identify of criminal action against the guilty parties.28
witnesses and obtain statements from them concerning the death or
disappearance; (d) to determine the cause, manner, location and time of death In Ladaga v. Mapagu,29 the Court precisely indicated that the failure of an
or disappearance as well as any pattern or practice that may have brought amparo petitioner to establish by substantial evidence the involvement of
about the death or disappearance; (e) to identify and apprehend the person or military or police forces was not a hindrance to the Court ordering the conduct
persons involved in the death or disappearance; and (f) to bring the suspected of further investigations, to wit:
offenders before a competent court.
Emphasizing the extraordinary character of the amparo remedy, the Court ruled
Section 17 of the Rule on the Writ of Amparo ordains the diligence required of a in the cases of Roxas and Razon, Jr. that an amparo petitioner's failure to
public official or employee who is named as a respondent in the petition for the establish by substantial evidence the involvement of government forces in the
writ of amparo, to wit: alleged violation of rights is never a hindrance for the Court to order the conduct
of further investigation where it appears that the government did not observe
Section 17. Burden of Proof and Standard of Diligence Required. -The parties extraordinary diligence in the performance of its duty to investigate the
shall establish their claims by substantial evidence. complained abduction and torture or enforced disappearance. The Court
directed further investigation in the case of Roxas because the modest efforts
The respondent who is a private individual or entity must prove that ordinary of police investigators were effectively putting petitioner's right to security in
diligence as required by applicable laws, rules and regulations was observed in danger with the delay in identifying and apprehending her abductors. In Razon,
the performance of duty. Jr., the Court found it necessary to explicitly order the military and police
officials to pursue with extraordinary diligence the investigation into the
The respondent who is a public official or employee must prove that abduction and disappearance of a known activist because not only did the
extraordinary diligence as required by applicable laws, rules and regulations police investigators conduct an incomplete and one-sided investigation but they
was observed in the performance of duty. blamed their ineffectiveness to the reluctance and unwillingness of the relatives
to cooperate with the authorities.30

81
 say that the investigation, if conducted by them, would be biased or one-sided.
It should not be a surprise at all, therefore, that the CA commanded the They could not escape the responsibility of conducting the investigation with
petitioners as the amparo respondents “to exert extraordinary diligence and extraordinary diligence by deflecting the responsibility to other investigatory
efforts, not only to protect the life, liberty and security of petitioner Atty. Maria agencies of the Government. The duty of extraordinary diligence pertains to
Catherine Dannug-Salucon and the immediate members of her family, but also them, and to no other. Moreover, their higher ranks or positions in the AFP and
to conduct further investigation to determine the veracity of the alleged PNP hierarchies put them in the best position to obtain or acquire information
surveillance operation and acts of harassment and intimidation committed and to ensure that the investigation to be conducted would quickly yield results
against petitioner, as well as to identify and find the person/s responsible for in view of the investigation going to focus on their subordinate personnel.
said violations and bring them to competent court." Needless to stress, the
directive was unassailable. It would be within the context of Section 9 of the Rule on the Writ of Amparo if
the petitioners and their successors in office should instead exhibit a readiness
The petitioners (and their successors in office), by merely issuing orders to their and willingness to undertake the investigations if only to shed light soon enough
subordinates under their respective commands and relying on the latter's on whether or not their subordinates and personnel over whom they exercised
reports without conducting independent investigations on their own to authority and control had been involved at all in the surveillance of the
determine the veracity of the respondent's allegations, did not discharge the respondent and the making of threats against her personal security.
two-fold burden. Thereby, they did not exercise extraordinary diligence. They
are reminded of the following dictum regarding the conduct of investigations WHEREFORE, the Court DENIES the petition for review on certiorari for its lack
that the Court pronounced in In the Matter of the Petition for the Writ of Amparo of merit; AFFIRMS the decision and resolution promulgated by the Court of
and Habeas Data in favor of Noriel Rodriguez:31 Appeals on March 12, 2015 and December 2, 2015, respectively, in CA-G.R.
SP No. 00053-W/A; and REMANDS this case to the Court of Appeals for the
More importantly, respondents also neglect to address our ruling that the failure monitoring of the investigation to be hereafter undertaken in accordance with
to conduct a fair and effective investigation similarly amounted to a violation of the decision promulgated by the Court of Appeals on March 12, 2015, and for
or threat to Rodriguez's rights to life, liberty, and security. The writ's curative the validation of the results of the investigation.
role is an acknowledgment that the violation of the right to life, liberty, and
security may be caused not only by a public official's act, but also by his SO ORDERED.
omission. Accountability may attach to respondents who are imputed with
knowledge relating to the enforced disappearance and who carry the burden of
disclosure; or those who carry, but have failed to discharge, the burden of (Next page)
extraordinary diligence in the investigation of the enforced disappearance. The
duty to investigate must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective.32

The petitioners' recommendation for the creation of an independent body to

investigate both the harassments suffered by the respondent and the
surveillance conducted against her is rejected as an act of evasion. The military
and police establishments certainly had the competence and resources to
conduct such investigation. Although they have predicated the recommendation
on what transpired in Roxas v. Arroyo,33 the awkward situation sought to be
avoided under Roxas v. Arroyo -"wherein the very persons alleged to be
involved in an enforced disappearance or extrajudicial killing are, at the same
time, the very ones tasked by law to investigate the matter"34 - did not obtain
herein. For one, there was no conclusive proof of the actual authorship of the
unauthorized surveillance conducted against the respondent. Thus, it was
speculative on the part of the petitioners and their successors in office to simply

82
 G.R. No. 210759 June 23, 2015

CHAIRPERSON SIEGFRED B. MISON, in his capacity as Chairperson1 of

Bureau of Immigration and Deportation,2 Petitioner,
vs.
HON. PAULINO Q. GALLEGOS, in his capacity as Presiding Judge of the
Regional Trial Court-Manila, Branch 47 and JA HOON KU, Respondents.

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

G.R. No. 211403

CHAIRPERSON SIEGFRED B. MISON, as the Chairperson of Bureau of

Immigration and Deportation, Petitioner,
vs.
HON. PAULINO Q. GALLEGOS, as Presiding Judge of the Regional Trial
Court-Manila, Branch 47 and JAHOONKU, Respondents.

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

G.R. No. 211590

CHAIRPERSON SIEGFRED B. MISON, in his capacity as the Chairperson of

Bureau of Immigration and Deportation, Petitioner,
vs.
JA HOON KU, Respondent.

DECISION

PEREZ, J.:

The privilege of the writ of amparo is .an extraordinary remedy adopted to

address the special concerns of extra-legal killings and enforced
disappearances. Accordingly, the remedy ought to be resorted to and granted
judiciously, lest the ideal sought by the Amparo Rule be diluted and undermined
by the indiscriminate filing of Amparo petitions for purposes less than the desire
to secure amparo reliefs and protection and/or on the basis of unsubstantiated
allegations.3

83
For the consideration of the Court are three consolidated petitions assailing the Petitioner then filed an Opposition to the Motion for Issuance of TPO on 28
Orders dated 28 January 2014,4 29 January 2014,5 and 18 February 2014,6 as January 2014.23
well as the Resolution dated 14 March 2014,7 all issued by respondent
Presiding Judge Paulino Gallegos (Judge Gallegos) of the Regional Trial Court- On 28 January 2014, Judge Gallegos issued the first assailed Order granting
Manila, Branch 47 in SP. PROC. No. 14-131282. the motion for issuance of TPO, entrusting Ku’s custody to the Philippine
National Red Cross and/or its Chairman CEO Richard Gordon, and directing
The records show that on 23 December 2013, the International Criminal Police the Philippine National Police-Police Security and Protection Group (PNP-
Organization (Interpol) of Seoul, Republic of Korea sent a Notice8 to Interpol PSPG) to protect Ku and his immediate family.24 On 29 January 2014, Judge
Manila requesting assistance in the location and deportation of respondent Ja Gallegos issued the second assailed Order directing the transfer of custody and
Hoon Ku (Ku) for arbitrarily spending money allotted as reserve fund of Phildip protection of Ku to the PNP-PSPG.25 Petitioner challenged these orders before
Korea Co., Ltd. Consequently, the Embassy of the Republic of Korea wrote a the Court via a Petition for Certiorari26 docketed as G.R. No. 210759.
Letter-Request9 to petitioner, Hon. Siegfred Mison, Chairperson of the Bureau
of Immigration (BI), for the immediate arrest and deportatio n of Ku to Korea for On 4 February 2014, the Court issued a Resolution in G.R. No. 210759 issuing
being an undesirable alien. a Temporary Restraining Order (TRO) enjoining the enforcement of the Orders
dated 28 and 29 January 2014 and directing the BI to retain custody of Ku, as
Meanwhile, on 1 January 2014, Ku’s visa expired.10 well as requiring Ku to comment on the petition.27 In issuing this resolution, the
Court intimated the possibility of misuse by Ku of the writ of amparo given that
On 3 January 2014, Special Prosecutor Maria Antonette Bucasas-Mangrobang he was validly arrested and placed under the jurisdiction and custody of the BI;
charged Ku for being a risk to public interest pursuant to Sec. 69, Act No. thus the case cannot be categorized as one of extralegal killing or enforced
2711.11This finding was approved by the BI Board of Commissioners which, on disappearance.28
16 January 2014, issued a Summary Deportation Order.12
Owing to the Court’s Resolution dated 4 February 2014, in the hearing set on
On the same day, 16 January 2014, BI officers, with the assistance of the 11 February 2014 before the trial court, petitioner verbally moved for the
Manila Police District-Warrant and Subpoena Section, arrested Ku. Upon arrival dismissal of the amparo petition.29On 18 February 2014, however, Judge
at the BI detention center, Ku was detained.13 Gallegos issued the third assailed order denying the motion to dismiss for lack
of merit.30Thus, petitioner appealed the matter to the Court via the Petition for
On 17 January 2014, the Republic of Korea voided Ku’s passport.14 Certiorari and Prohibition31 docketed as G.R. No. 211403.

Also on 17 January 2014, Ku filed a Petition for the Issuance of a Writ of On 25 February 2014, Ku filed an appeal memorandum on his deportation
Amparo with Interim Remedies, docketed as SP PROC. No. 14- 131282.15 On order addressed to the Office of the President (OP).32
22 January 2014, he also filed a Supplemental Petition for the Issuance of a
Writ of Amparo.16 On 14 March 2014, Judge Gallegos issued the assailed Resolution granting the
privilege of the writ of amparo, to wit:
Finding said supple mental petition to be sufficient in form and substance,
Judge Gallegos, in an Order dated 22 January 2014, issued a Writ of WHEREFORE, the privilege of the Writ of Amparo is hereby GRANTED. [Ku] is
Amparo.17 On 24 January 2014, Ku filed a Motion for the Issuance of a ordered immediately released from [petitioner’s] custody without prejudice to
Temporary Protection Order (TPO).18 Judge Gallegos then set the hearing on the institution of the proper remedy to extradition. Moreover, the [petitioner]
the TPO on 27 January 2014 at 8:30 a.m.,19 while he set the hearing on the and/or agents are ordered to cease and desist from further violating the right to
petition for the issuance of a writ of amparo on 29 January 2014 at 8:30 a.m.20 liberty of [Ku] and the members of his family by filing cases to legitimize his
detention.33
In the afternoon of 27 January 2014, petitioner filed his Return of the Writ.21 He
was then notified that a hearing on the TPO was held earlier in the morning and
that the same was already submitted for resolution.22

84
Meanwhile, in the Resolution dated 18 March 2014 in G.R. No. 211403, the detention or abduction of a person by a government official or organized groups
Court issued a TRO enjoining the RTC from enforcing the Order dated 18 or private individuals acting with the direct or indirect acquiescence of the
February 2014 and from further proceeding with the case.34 government; the refusal of the State to disclose the fate or where about s of the
person concerned or a refusal to acknowledge the deprivation of liberty which
On 19 March 2014, the OP granted Ku provisional liberty only until 31 August places such persons outside the protection of law."40
2014 or until his appeal was resolved, whichever came first.35Ku then moved
for the release of his passport before the RTC, which petitioner opposed and to This pronouncement on the coverage of the writ was further cemented in the
which he filed a counter-motion for the RTC to release said passport to the BI, latter case of Lozada, Jr. v. Macapagal-Arroyo41 where this Court explicitly
given that such was one of the conditions for the OP’s grant of provisional declared that as it stands, the writ of amparo is confined only to cases of
liberty to Ku.36 In the Order dated 26 March 2014, however, Judge Gallegos extrajudicial killings and enforced disappearances, or to threats thereof. As to
merely noted petitioner’s motion for being moot, considering that he already what constitutes "enforced disappearance," the Court in Navia v. Pardico42
released Ku’s passport on 20 March 2014, upon the personal request of Ku.37 enumerated the elements constituting "enforced disappearances" as the term is
statutorily defined in Section 3(g) of Republic Act (R.A.) No. 9851,43 to wit:
Due to the complexities involved, petitioner filed the Petition for Review on
Certiorari in G.R. No. 211590, essentially assailing the Resolution dated 14 (a) that there be an arrest, detention, abduction or any form of deprivation of
March 2014. liberty;

Condensing the various issues raised in these petitions,38 we come to the (b) that it be carried out by, or with the authorization, support or acquiescence
central question of whether or not the privilege of the writ of amparo was of, the State or a political organization;
properly granted in the case at bar.
(c) that it be followed by the State or political organization’s refusal to
We rule in the negative. acknowledge or give information on the fate or whereabouts of the person
subject of the amparo petition; and
Section 1 of the Rule on the Writ of Amparo (Amparo Rule)39 provides:
(d) that the intention for such refusal is to remove the subject person from the
SECTION 1. Petition. – The petition for a writ of amparo is a remedy available protection of the law for a prolonged period of time.44
to any person whose right to life, liberty and security is violated or threatened
with violation by an unlawful act or omission of a public official or employee, or As clarified in Navia, with the enactment of R.A. No. 9851, the Amparo Rule is
of a private individual or entity. now a procedural law anchored, not only on the constitutional rights to life,
liberty and security, but on a concrete statutory definition as well of what an
The writ shall cover extralegal killings and enforced disappearances or threats ‘enforced or involuntary disappearance’ is. Therefore, A.M. No. 07-9-12-SC’s
thereof. reference to enforced disappearances should be construed to mean the
enforced or involuntary disappearance of persons contemplated in Section 3(g)
On 25 September 2007, the Court promulgated the Amparo Rule "in light of the of R.A. No. 9851. Meaning, in probing enforced disappearance cases, courts
prevalence of extralegal killings and enforced disappearances." It was an should read A.M. No. 07-9-12-SC in relation to R.A. No. 9851.45
exercise for the first time of the Court’s expanded power to promulgate rules to
protect our people’ s constitutional rights, which made its maiden appearance in Guided by the parameters of R.A. No. 9851, we can readily discern that Ku’s
the 1987 Constitution in response to the Filipino experience of the martial law circumstance does not come under the statutory definition of an enforced or
regime. As the Amparo Rule was intended to address the intractable problem of involuntary disappearance. Indeed, Ku was arrested by agents of the BI, but
"extralegal killings" and "enforced disappearances," its coverage, in its present there was no refusal on the part of the BI to acknowledge such arrest nor was
form, is confined to these two instances or to threats thereof. "Extralegal there any refusal to give information on the whereabouts of Ku. Neither can it
killings" are ‘killings committed without due process of law, i.e., without legal be said that the BI had any intention to remove Ku from the protection of the
safeguards or judicial proceedings." On the other hand, "enforced law for a prolonged time.
disappearances" are "attended by the following characteristics: an arrest,

85
Although Ku claims that he was arbitrarily arrested and detained by agents of how such threat or violation is committed with the attendant circumstances
the BI, that he was not read his rights under the constitution and was not detailed in supporting affidavits;
informed of the reason for hi s arrest, nor provided a copy of any document
leading to his arrest and detention,46 the arresting officers are all consistent in (d) The investigation conducted, if any, specifying the names, personal
testifying that, upon Ku’s arrest, they introduced themselves as agents of the circumstances, and addresses of the investigating authority or individuals, as
BI, presented to Ku the Warrant of Deportation, and informed him of his well as the manner and conduct of the investigation, together with any report;
constitutional rights as well as the expiration of his visa.47
(e) The actions and recourses taken by the petitioner to determine the fate or
More importantly, there was no attempt on the part of the BI to conceal Ku or whereabouts of the aggrieved party and the identity of the person responsible
his whereabouts. Within the Bureau, Ku’s arrest and the fact that he was in their for the threat, act or omission; and
custody was not obscured as, in fact, these were well-documented as
evidenced by the Return of Warrant of Deportation dated 20 January 201448 (f) The relief prayed for.
and the After-Mission Report dated 17 January 2014.49
The petition may include a general prayer for other just and equitable reliefs.
More importantly, in the Return of the Writ, petitioner readily disclosed to the
trial court that Ku was in the custody of the BI pursuant to a Warrant of Ku claims that he fears for his life and feels the serious danger of being
Deportation and a Summary Deportation Order.50 detained for a long period of time without any cause, and that he fears that the
BI will fabricate criminal cases against him to hold him under detention.53
These documents and pleading show that there was never any intention on the
part of the BI to re move Ku from the protection of the law for a prolonged time. According to Ku, what he seeks to obtain in filing an amparo petition is the
Besides, when Ku was arrested at 9:30 p.m. on 16 January 2014, and received protection it will give to his person against the actions of some government
at the BI Detention Center at 11:30 p.m. also on 16 January 2014,51 the officials who will likely take advantage of their positions and use the power of
following day or on 17 January 2014, Ku’s counsel was immediately able to file the government at their command. Ku adds that the longer he stays in
his Entry of Appearance with Motion for Reconsideration before the BI,52 confinement the more he is exposed to life-threatening situations and the
thereby showing that Ku’s legal rights were amply guarded and that he was further the violation of his guaranteed rights.54
never removed from the protection of the law.
The allegations of Ku, though, are specious. It is to be noted that the Amparo
Section 5 of the Amparo Rule enumerates what an amparo petition should Rule requires the parties to establish their claims by substantial evidence.55
contain, among which is the right to life, liberty and security of the aggrieved Other than making unfounded claims, however, Ku was not able to present
party violated or threatened with violation by an unlawful act or omission of the evidence that he was exposed to "life-threatening situations" while confined at
respondent, and how such threat or violation is committed with the attendant the BI Detention Center. On the contrary, the records show that he is afforded
circumstances detailed in supporting affidavits, to wit: visitorial rights and that he has access to his counsel.

SEC. 5. Contents of Petition. – The petition shall be signed and verified and Moreover, his primary fear, which prompted him to file the amparo petition, was
shall allege the following: that the BI would trump up charges against him so as to justify his detention.
The fact remains, however, that even before his arrest, deportation charges
(a) The personal circumstances of the petitioner; against him were already duly filed and ruled upon by the BI.

(b) The name and personal circumstances of the respondent responsible for the As such, it can readily be discerned that the RTC’s grant of the privilege of the
threat, act or omission, or, if the name is unknown or uncertain, the respondent writ of amparo was improper in this case as Ku and his whereabouts were
may be described by an assumed appellation; never concealed, and as the alleged threats to his life, liberty and security were
unfounded and unsubstantiated. It is to be emphasized that the fundamental
(c) The right to life, liberty and security of the aggrieved party violated or function of the writ of amparo is to cause the disclosure of details concerning
threatened with violation by an unlawful act or omission of the respondent, and the extrajudicial killing or the enforced disappearance of an aggrieved party. As

86
Ku and his whereabouts were never hidden, there was no need for the On a final note, the Court observes that Judge Gallegos knowingly disregarded
issuance of the privilege of the writ of amparo in the case at bar. the Court’s directives as regards this case. The records show that the Court’s
Resolution dated 4 February 2014, wherein we issued a TRO enjoining the
It is to be additionally observed that Ku is guilty of forum shopping. Being the enforcement of the Orders dated 28 and 29 January 2014 and intimated the
subject of a Warrant of Deportation and a Summary Deportation Order, Ku’s impropriety of the amparo petition, was received by the RTC on 5 February
proper recourse is with the BI and, thereafter, with the DOJ and the OP.56 2014.60 This should have alerted Judge Gallegos to proceed with caution and
restraint in granting the privilege of the writ of amparo. And yet, despite having
Ku knows this and, in fact, he filed a Motion for Reconsideration before the BI knowledge of the Court’s pronouncements, Judge Gallegos proceeded to grant
and an Appeal before the OP. When Ku, however, injudiciously filed a Petition the said privilege.
and a Supplemental Petition for the Issuance of a Writ of Amparo, he
committed forum shopping by seeking a remedy which he had already solicited Also, the records show that the Court’s Resolution dated 18 March 2014,
from another tribunal. wherein we issued a TRO enjoining the enforcement of the Order dated 18
February 2014 and enjoining the RTC from further proceeding with the case,
In Kiani v. BID,57 where petitioner therein file d before the trial court a petition was received by the RTC on 20 March 2014 at 9:00 a.m.61
for a writ of habeas corpus seeking to have the detention of her husband
declared as illegal and to order the latter’s release, and where her husband filed Although by then, Judge Gallegos already issued the Resolution dated 14
before the Bureau of Immigration and Deportation (BID) an omnibus motion March 2014 which granted the privilege of the writ of amparo, his receipt of the
seeking to question the summary deportation order issued against him, the Court’s Resolution dated 18 Marc h 2014 should have forewarned him against
Court held that petitioner indulged in forum shopping. releasing Ku’s passport. That he did so demonstrates his resistance and
unwillingness to follow the Court’s edicts.
The Court clarified that under Section 8, Chapter 3, Title I, Book III of Executive
Order No. 292, the power to deport aliens is vested in the President of the It is well to note that a resolution of the Supreme Court should not be construed
Philippines, subject to the requirements of due process. The Immigration as a mere request, and should be complied with promptly and
Commissioner is vested with authority to deport aliens under Section 37 of the completely.1âwphi1 Such failure to comply accordingly betrays not only a
Philippine Immigration Act of 1940, as amended. Thus, a party aggrieved by a recalcitrant streak in character, but al so disrespect for the Court’s lawful order
Deportation Order issued by the BOC is proscribed from assailing said Order in and directive.62
the RTC even via a petition for a writ of habeas corpus . Conformably with
ruling of the Court in Domingo v. Scheer , such party may file a motion for the Judge Gallegos should know that judges must respect the orders and decisions
reconsideration thereof before the BOC.58 of higher tribunals, especially the Supreme Court from which all other courts
take their bearings. A resolution of the Supreme Court is not to be construed as
Citing Balite v. Court of Appeals,59 the Court held that there is forum shopping a mere request nor should it be complied with partially, inadequately or
when a party seeks to obtain remedies in an action in one court, which had selectively.63
already been solicited, and in other courts and other proceedings in other
tribunals. While a party may avail of the remedies prescribed by the Rules of In the Judiciary, moral integrity is more than a cardinal virtue, it is a necessity.
Court, such party is not free to resort to them simultaneously or at his/her The exacting standards of conduct demanded from judges are designed to
pleasure or caprice. A party should not be allowed to present simultaneous promote public confidence in the integrity and impartiality of the judiciary. When
remedies in two different forums, for it degrades and wreaks havoc to the rule the judge himself becomes the transgressor of the law which he is sworn to
on orderly procedure. A party must follow the sequence and hierarchical order apply, he places his office in disrepute, encourages disrespect for the law and
in availing of such remedies and not resort to shortcuts in procedure or playing impairs public confidence in the integrity of the judiciary itself.64
fast and loose with the said rules. Forum shopping, an act of malpractice, is
considered as trifling with the courts and abusing their processes. It is improper WHEREFORE, premises considered, the Court hereby resolves to:
conduct and degrades the administration of justice.

87
a) GRANT the present petitions, and REVERSE and SET ASIDE the
Resolution dated 14 March 2014 of the Regional Trial Court which granted the
privilege of the Writ of Amparo;

b) DENY the privilege of the Writ of Amparo sought via the Petition for the
Issuance of a Writ of Amparo and the Supplemental Petition for the Issuance of
Writ of Amparo in SP. PROC.No. 14131282 before the Regional Trial of Manila,
Branch 47; and

c) DIRECT the Office of the Court Administrator to file the appropriate

administrative charge/s against Judge Paulino Q. Gallegos in accordance with
the tenor of this Decision, and to forthwith submit to the Court its report and
recommendation thereon.

SO ORDERED.

(Next page)

G.R. No. 184467 June 19, 2012

EDGARDO NAVIA,1 RUBEN DIO,2 and ANDREW BUISING, Petitioners,

vs.
VIRGINIA PARDICO, for and in behalf and in representation of BENHUR V.
PARDICO Respondent.

DECISION

DEL CASTILLO, J.:

For the protective writ of amparo to issue in enforced disappearance cases,

allegation and proof that the persons subject thereof are missing are not
enough. It must also be shown by the required quantum of proof that their
disappearance was carried out by, "or with the authorization, support or
acquiescence of, [the government] or a political organization, followed by a
refusal to acknowledge [the same or] give information on the fate or
whereabouts of [said missing] persons."3

This petition for review on certiorari4 filed in relation to Section 19 of A.M. No.
07-9-12-SC5 challenges the July 24, 2008 Decision6 of the Regional Trial Court
(RTC), Branch 20, Malolos City which granted the Petition for Writ of Amparo7
filed by herein respondent against the petitioners.

Factual Antecedents

88
On March 31, 2008, at around 8:30 p.m., a vehicle of Asian Land Strategies Ben was left behind as Navia was still talking to him about those who might be
Corporation8 (Asian Land) arrived at the house of Lolita M. Lapore (Lolita) involved in the reported loss of electric wires and lamps within the subdivision.
located at 7A Lot 9, Block 54, Grand Royale Subdivision, Barangay Lugam, After a brief discussion though, Navia allowed Ben to leave. Ben also affixed his
Malolos City. The arrival of the vehicle awakened Lolita’s son, Enrique Lapore signature on the logbook to affirm the statements entered by the guards that he
(Bong), and Benhur Pardico (Ben), who were then both staying in her house. was released unharmed and without any injury.14
When Lolita went out to investigate, she saw two uniformed guards
disembarking from the vehicle. One of them immediately asked Lolita where Upon Navia’s instructions, Dio and Buising went back to the house of Lolita to
they could find her son Bong. Before Lolita could answer, the guard saw Bong make her sign the logbook as witness that they indeed released Ben from their
and told him that he and Ben should go with them to the security office of Asian custody. Lolita asked Buising to read aloud that entry in the logbook where she
Land because a complaint was lodged against them for theft of electric wires was being asked to sign, to which Buising obliged. Not contented, Lolita put on
and lamps in the subdivision.9 her reading glasses and read the entry in the logbook herself before affixing her
signature therein. After which, the guards left.
Shortly thereafter, Bong, Lolita and Ben were in the office of the security
department of Asian Land also located in Grand Royale Subdivision.10 The Subsequently, petitioners received an invitation15 from the Malolos City Police
supervisor of the security guards, petitioner Edgardo Navia (Navia), also arrived Station requesting them to appear thereat on April 17, 2008 relative to the
thereat. complaint of Virginia Pardico (Virginia) about her missing husband Ben. In
compliance with the invitation, all three petitioners appeared at the Malolos City
As to what transpired next, the parties’ respective versions diverge. Police Station. However, since Virginia was not present despite having received
the same invitation, the meeting was reset to April 22, 2008.16
Version of the Petitioners
On April 22, 2008, Virginia attended the investigation. Petitioners informed her
Petitioners alleged that they invited Bong and Ben to their office because they that they released Ben and that they have no information as to his present
received a report from a certain Mrs. Emphasis, a resident of Grand Royale whereabouts.17 They assured Virginia though that they will cooperate and help
Subdivision, that she saw Bong and Ben removing a lamp from a post in said in the investigation of her missing husband.18
subdivision.11 The reported unauthorized taking of the lamp was relayed thru
radio to petitioners Ruben Dio (Dio) and Andrew Buising (Buising), who both Version of the Respondent
work as security guards at the Asian Land security department. Following their
department’s standard operating procedure, Dio and Buising entered the report According to respondent, Bong and Ben were not merely invited. They were
in their logbook and proceeded to the house of Mrs. Emphasis. It was there unlawfully arrested, shoved into the Asian Land vehicle and brought to the
where Dio and Buising were able to confirm who the suspects were. They thus security office for investigation. Upon seeing Ben at the security office, Navia
repaired to the house of Lolita where Bong and Ben were staying to invite the lividly grumbled "Ikaw na naman?"19 and slapped him while he was still seated.
two suspects to their office. Bong and Ben voluntarily went with them. Ben begged for mercy, but his pleas were met with a flurry of punches coming
from Navia hitting him on different parts of his body.20 Navia then took hold of
At the security office, Dio and Buising interviewed Bong and Ben. The suspects his gun, looked at Bong, and said, "Wala kang nakita at wala kang narinig,
admitted that they took the lamp but clarified that they were only transferring it papatayin ko na si Ben."21
to a post nearer to the house of Lolita.12 Soon, Navia arrived and Buising
informed him that the complainant was not keen in participating in the Bong admitted that he and Ben attempted to take the lamp. He explained that
investigation. Since there was no complainant, Navia ordered the release of the area where their house is located is very dark and his father had long been
Bong and Ben. Bong then signed a statement to the effect that the guards asking the administrator of Grand Royale Subdivision to install a lamp to
released him without inflicting any harm or injury to him.13 His mother Lolita illumine their area. But since nothing happened, he took it upon himself to take
also signed the logbook below an entry which states that she will never again a lamp from one of the posts in the subdivision and transfer it to a post near
harbor or entertain Ben in her house. Thereafter, Lolita and Bong left the their house. However, the lamp Bong got was no longer working. Thus, he
security office.

89
reinstalled it on the post from which he took it and no longer pursued his plan. (1) ORDERING [petitioners] Edgardo Navia, Ruben Dio and Andrew Buising of
22 the Asian Land Security Agency to produce before the Court the body of
aggrieved party Benhur Pardico, on Monday, June 30, 2008, at 10:30 a.m.;
Later on, Lolita was instructed to sign an entry in the guard’s logbook where
she undertook not to allow Ben to stay in her house anymore.23 Thereafter, (2) ORDERING the holding of a summary hearing of the petition on the
Navia again asked Lolita to sign the logbook. Upon Lolita’s inquiry as to why aforementioned date and time, and DIRECTING the [petitioners] to personally
she had to sign again, Navia explained that they needed proof that they appear thereat;
released her son Bong unharmed but that Ben had to stay as the latter’s case
will be forwarded to the barangay. Since she has poor eyesight, Lolita obligingly (3) COMMANDING [petitioners] Edgardo Navia, Ruben Dio and Andrew
signed the logbook without reading it and then left with Bong.24 At that Buising to file, within a non-extendible period of seventy-two (72) hours from
juncture, Ben grabbed Bong and pleaded not to be left alone. However, since service of the writ, a verified written return with supporting affidavits which shall,
they were afraid of Navia, Lolita and Bong left the security office at once leaving among other things, contain the following:
Ben behind.25
a) The lawful defenses to show that the [petitioners] did not violate or threaten
Moments after Lolita and Bong reached their house, Buising arrived and asked with violation the right to life, liberty and security of the aggrieved party, through
Lolita to sign the logbook again. Lolita asked Buising why she had to sign again any act or omission;
when she already twice signed the logbook at the headquarters. Buising
assured her that what she was about to sign only pertains to Bong’s release. b) The steps or actions taken by the [petitioners] to determine the fate or
Since it was dark and she has poor eyesight, Lolita took Buising’s word and whereabouts of the aggrieved party and the person or persons responsible for
signed the logbook without, again, reading what was written in it. 26 the threat, act or omission; and

The following morning, Virginia went to the Asian Land security office to visit c) All relevant information in the possession of the [petitioners] pertaining to the
her husband Ben, but only to be told that petitioners had already released him threat, act or omission against the aggrieved party.
together with Bong the night before. She then looked for Ben, asked around,
and went to the barangay. Since she could not still find her husband, Virginia (4) GRANTING, motu proprio, a Temporary Protection Order prohibiting the
reported the matter to the police. [petitioners], or any persons acting for and in their behalf, under pain of
contempt, from threatening, harassing or inflicting any harm to [respondent], his
In the course of the investigation on Ben’s disappearance, it dawned upon immediate family and any [member] of his household.
Lolita that petitioners took advantage of her poor eyesight and naivete. They
made her sign the logbook as a witness that they already released Ben when in The Branch Sheriff is directed to immediately serve personally on the
truth and in fact she never witnessed his actual release. The last time she saw [petitioners], at their address indicated in the petition, copies of the writ as well
Ben was when she left him in petitioners’ custody at the security office.27 as this order, together with copies of the petition and its annexes.30

Exasperated with the mysterious disappearance of her husband, Virginia filed a A Writ of Amparo31 was accordingly issued and served on the petitioners on
Petition for Writ of Amparo28 before the RTC of Malolos City. Finding the June 27, 2008.32 On June 30, 2008, petitioners filed their Compliance33
petition sufficient in form and substance, the amparo court issued an Order29 praying for the denial of the petition for lack of merit.
dated June 26, 2008 directing, among others, the issuance of a writ of amparo
and the production of the body of Ben before it on June 30, 2008. Thus: A summary hearing was thereafter conducted. Petitioners presented the
testimony of Buising, while Virginia submitted the sworn statements34 of Lolita
WHEREFORE, conformably with Section 6 of the Supreme Court Resolution and Enrique which the two affirmed on the witness stand.
[in] A.M. No. 07-[9]-12-SC, also known as "The Rule On The Writ Of Amparo",
let a writ of amparo be issued, as follows: Ruling of the Regional Trial Court

90
On July 24, 2008, the trial court issued the challenged Decision35 granting the 4.1.3. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT
petition. It disposed as follows: THE ALLEGED DISAPPEARANCE OF BENHUR PARDICO WAS AT THE
INSTANCE OF HEREIN PETITIONERS.39
WHEREFORE, the Court hereby grants the privilege of the writ of amparo, and
deems it proper and appropriate, as follows: Petitioners’ Arguments

(a) To hereby direct the National Bureau of Investigation (NBI) to immediately Petitioners essentially assail the sufficiency of the amparo petition. They
conduct a deep and thorough investigation of the [petitioners] Edgardo Navia, contend that the writ of amparo is available only in cases where the factual and
Ruben Dio and Andrew Buising in connection with the circumstances legal bases of the violation or threatened violation of the aggrieved party’s right
surrounding the disappearance of [Benhur] Pardico, utilizing in the process, as to life, liberty and security are clear. Petitioners assert that in the case at bench,
part of the investigation, the documents forming part of the records of this case; Virginia miserably failed to establish all these. First, the petition is wanting on its
face as it failed to state with some degree of specificity the alleged unlawful act
(b) To hereby direct the NBI to extend to the family of [Benhur] Pardico and the or omission of the petitioners constituting a violation of or a threat to Ben’s right
witnesses who testified in this case protection as it may deem necessary to to life, liberty and security. And second, it cannot be deduced from the evidence
secure their safety and security; and Virginia adduced that Ben is missing; or that petitioners had a hand in his
alleged disappearance. On the other hand, the entries in the logbook which
(c) To hereby direct the Office of the Provincial Prosecutor of Bulacan to bear the signatures of Ben and Lolita are eloquent proof that petitioners
investigate the circumstances concerning the legality of the arrest of [Benhur] released Ben on March 31, 2008 at around 10:30 p.m. Petitioners thus posit
Pardico by the [petitioners] in this case, utilizing in the process, as part of said that the trial court erred in issuing the writ and in holding them responsible for
investigation, the pertinent documents and admissions forming part of the Ben’s disappearance.
record of this case, and take whatever course/s of action as may be warranted.
Our Ruling
Furnish immediately copies of this decision to the NBI, through the Office of
Director Nestor Mantaring, and to the Provincial Prosecutor of Bulacan. Virginia’s Petition for Writ of Amparo is fatally defective and must perforce be
dismissed, but not for the reasons adverted to by the petitioners.
SO ORDERED.36
A.M. No. 07-9-12-SC or The Rule on the Writ of Amparo was promulgated to
Petitioners filed a Motion for Reconsideration37 which was denied by the trial arrest the rampant extralegal killings and enforced disappearances in the
court in an Order38 dated August 29, 2008. country. Its purpose is to provide an expeditious and effective relief "to any
person whose right to life, liberty and security is violated or threatened with
Hence, this petition raising the following issues for our consideration: violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity." 40
4.1. WHETHER X X X THE HONORABLE TRIAL COURT GRAVELY ERRED
IN RULING THAT RESPONDENT IS ENTITLED TO THE PRIVILEGE OF THE Here, Ben’s right to life, liberty and security is firmly settled as the parties do not
WRIT OF AMPARO. dispute his identity as the same person summoned and questioned at
petitioners’ security office on the night of March 31, 2008. Such uncontroverted
4.1.1. WHETHER X X X RESPONDENT WAS ABLE TO ESTABLISH THAT fact ipso facto established Ben’s inherent and constitutionally enshrined right to
PETITIONERS HAVE COMMITTED OR ARE COMMITTING ACTS IN life, liberty and security. Article 641 of the International Covenant on Civil and
VIOLATION OF HER HUSBAND’S RIGHT TO LIFE, LIBERTY, OR SECURITY. Political Rights42 recognizes every human being’s inherent right to life, while
Article 943 thereof ordains that everyone has the right to liberty and security.
4.1.2. WHETHER X X X RESPONDENT SUFFICIENTLY ESTABLISHED THE The right to life must be protected by law while the right to liberty and security
FACT OF THE DISAPPEARANCE OF BENHUR PARDICO. cannot be impaired except on grounds provided by and in accordance with law.
This overarching command against deprivation of life, liberty and security
without due process of law is also embodied in our fundamental law.44

91
The pivotal question now that confronts us is whether Ben’s disappearance as Then came Rubrico v. Macapagal-Arroyo49 where Justice Arturo D. Brion
alleged in Virginia’s petition and proved during the summary proceedings wrote in his Separate Opinion that with the enactment of RA No. 9851, "the
conducted before the court a quo, falls within the ambit of A.M. No. 07-9-12-SC Rule on the Writ of Amparo is now a procedural law anchored, not only on the
and relevant laws. constitutional rights to the rights to life, liberty and security, but on a concrete
statutory definition as well of what an ‘enforced or involuntary disappearance’
It does not. Section 1 of A.M. No. 07-9-12-SC provides: is."50 Therefore, A.M. No. 07-9-12-SC’s reference to enforced disappearances
should be construed to mean the enforced or involuntary disappearance of
SECTION 1. Petition. – The petition for a writ of amparo is a remedy available persons contemplated in Section 3(g) of RA No. 9851. Meaning, in probing
to any person whose right to life, liberty and security is violated or threatened enforced disappearance cases, courts should read A.M. No. 07-9-12-SC in
with violation by an unlawful act or omission of a public official or employee, or relation to RA No. 9851.
of a private individual or entity.
From the statutory definition of enforced disappearance, thus, we can derive
The writ shall cover extralegal killings and enforced disappearances or threats the following elements that constitute it:
thereof. (Emphasis ours.)
(a) that there be an arrest, detention, abduction or any form of deprivation of
While Section 1 provides A.M. No. 07-9-12-SC’s coverage, said Rules does liberty;
not, however, define extralegal killings and enforced disappearances. This
omission was intentional as the Committee on Revision of the Rules of Court (b) that it be carried out by, or with the authorization, support or acquiescence
which drafted A.M. No. 07-9-12-SC chose to allow it to evolve through time and of, the State or a political organization;
jurisprudence and through substantive laws as may be promulgated by
Congress.45 Then, the budding jurisprudence on amparo blossomed in Razon, (c) that it be followed by the State or political organization’s refusal to
Jr. v. Tagitis46 when this Court defined enforced disappearances. The Court in acknowledge or give information on the fate or whereabouts of the person
that case applied the generally accepted principles of international law and subject of the amparo petition; and,
adopted the International Convention for the Protection of All Persons from
Enforced Disappearance’s definition of enforced disappearances, as "the (d) that the intention for such refusal is to remove subject person from the
arrest, detention, abduction or any other form of deprivation of liberty by agents protection of the law for a prolonged period of time.
of the State or by persons or groups of persons acting with the authorization,
support or acquiescence of the State, followed by a refusal to acknowledge the As thus dissected, it is now clear that for the protective writ of amparo to issue,
deprivation of liberty or by concealment of the fate or whereabouts of the allegation and proof that the persons subject thereof are missing are not
disappeared person, which place such a person outside the protection of the enough. It must also be shown and proved by substantial evidence that the
law."47 disappearance was carried out by, or with the authorization, support or
acquiescence of, the State or a political organization, followed by a refusal to
Not long thereafter, another significant development affecting A.M. No. 07-9-12- acknowledge the same or give information on the fate or whereabouts of said
SC came about after Congress enacted Republic Act (RA) No. 985148 on missing persons, with the intention of removing them from the protection of the
December 11, 2009. Section 3(g) thereof defines enforced or involuntary law for a prolonged period of time. Simply put, the petitioner in an amparo case
disappearances as follows: has the burden of proving by substantial evidence the indispensable element of
government participation.
(g) "Enforced or involuntary disappearance of persons" means the arrest,
detention, or abduction of persons by, or with the authorization, support or In the present case, we do not doubt Bong’s testimony that Navia had a
acquiescence of, a State or a political organization followed by a refusal to menacing attitude towards Ben and that he slapped and inflicted fistic blows
acknowledge that deprivation of freedom or to give information on the fate or upon him. Given the circumstances and the pugnacious character of Navia at
whereabouts of those persons, with the intention of removing from the that time, his threatening statement, "Wala kang nakita at wala kang narinig,
protection of the law for a prolonged period of time. papatayin ko na si Ben," cannot be taken lightly. It unambiguously showed his

92
predisposition at that time. In addition, there is nothing on record which would
support petitioners’ assertion that they released Ben on the night of March 31,
2008 unscathed from their wrath. Lolita sufficiently explained how she was
prodded into affixing her signatures in the logbook without reading the entries
therein. And so far, the information petitioners volunteered are sketchy at best,
like the alleged complaint of Mrs. Emphasis who was never identified or
presented in court and whose complaint was never reduced in writing.1âwphi1

But lest it be overlooked, in an amparo petition, proof of disappearance alone is

not enough. It is likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization, support or acquiescence of
the government. This indispensable element of State participation is not present
in this case. The petition does not contain any allegation of State complicity,
and none of the evidence presented tend to show that the government or any of
its agents orchestrated Ben’s disappearance. In fact, none of its agents,
officials, or employees were impleaded or implicated in Virginia’s amparo
petition whether as responsible or accountable persons.51 Thus, in the
absence of an allegation or proof that the government or its agents had a hand
in Ben’s disappearance or that they failed to exercise extraordinary diligence in
investigating his case, the Court will definitely not hold the government or its
agents either as responsible or accountable persons.

We are aware that under Section 1 of A.M. No. 07-9-12-SC a writ of amparo
may lie against a private individual or entity. But even if the person sought to be
held accountable or responsible in an amparo petition is a private individual or
entity, still, government involvement in the disappearance remains an
indispensable element. Here, petitioners are mere security guards at Grand
Royale Subdivision in Brgy. Lugam, Malolos City and their principal, the Asian
Land, is a private entity. They do not work for the government and nothing has
been presented that would link or connect them to some covert police, military
or governmental operation. As discussed above, to fall within the ambit of A.M.
No. 07-9-12-SC in relation to RA No. 9851, the disappearance must be
attended by some governmental involvement. This hallmark of State
participation differentiates an enforced disappearance case from an ordinary G.R. No. 189689
case of a missing person.
IN MATTER OF PETITION FOR ISSUANCE OF A
WHEREFORE, the July 24, 2008 Decision of the Regional Trial Court, Branch
20, Malolos City, is REVERSED and SET ASIDE. The Petition for Writ of
WRIT OF AMPARO IN FAVOR OF LILIBETH O.
Amparo filed by Virginia Pardico is hereby DISMISSED. LADAGA: LILIBETH O. LADAGA v. MAJ. GEN.
SO ORDERED. REYNALDO MAPAGU
(Next page)
PERLAS-BERNABE, J.:
93
The Cases

In each of these three (3) consolidated petitions for review, the Court is tasked
to evaluate the substantially similar but separately issued Orders of the ISSUES:
Regional Trial Court (RTC) of Davao City, Branch 10, dated August 14,
2009[1] in the three (3) writ of amparo cases, as well as, the Order dated
September 22, 2009[2] denying the joint motion for reconsideration thereof.

The Facts 1. OUTREACH PROGRAMS/ MEDICAL MISSION IN RURAL

AREAS;
Petitioners share the common circumstance of having their names included in 2. OUT OF SCHOOL YOUTH RECRUITMENT;
what is alleged to be a JCICC "AGILA" 3rd Quarter 2007 Order of Battle 3. P125 DAILY WAGE HIKE OR P3,000 ACROSS THE BOARD
Validation Result of the Philippine Army's 10th Infantry Division (10th ID), HIKE;
[3]
 which is a list containing the names of organizations and personalities in 4. SCRAP ANTI-TERRORISM BILL;
Southern Mindanao, particularly Davao City, supposedly connected to the 5. OIL DE-REGULATION LAW;
Communist Party of the Philippines (CPP) and its military arm, the New 6. ANTI-LARGE SCALE MINING;
People's Army (NPA).  They perceive that by the inclusion of their names in the 7. CORRUPTION AND ANTI-POVERTY/ZTE ISSUES AND
said Order of Battle (OB List), they become easy targets of unexplained BRIBERY;
disappearances or extralegal killings a real threat to their life, liberty and 8. ANTI-POLITICAL AND EXTRA JUDICIAL KILLINGS;
security. 9. CARP ISSUES AND LAND DISPUTES; AND
10. LATEST GLORIETA BOMBING
The petitioner in G.R. No. 189689, ATTY. LILIBETH O. LADAGA (Atty.
Ladaga), first came to know of the existence of the OB List from an undisclosed
source on May 21, 2009.  This was after the PowerPoint presentation made COMPOSITION: CIVIC, RELIGIOUS, TRANSPORT, LABOR AND
public by Bayan Muna Party-List Representative Satur Ocampo (Representative PEASANT, YOUTH SECTOR, PROGRESSIVE GROUPS, BUSINESS
Ocampo) on May 18, 2009 during the conclusion of the International Solidarity SECTOR, ANTI-PGMA, BLACK AND WHITE MOVEMENT AND
Mission (ISM) conducted by various organizations.  The following entries ANTI-POVERTY MOVEMENT.
bearing specific reference to her person were reflected therein:
ULTIMATE GOAL: TRY TO OUST PGMA ON 30 NOV 07[4]

In her Affidavit,[5] Atty. Ladaga substantiated the threats against her life, liberty
7. ON 12 NOV 07, MEETING AT SHIMRIC BEACH RESORT, TALOMO, and security by narrating that since 2007, suspicious-looking persons have been
DC PRESIDED BY ATTY LILIBETH LADAGA SEC GEN, UNION OF visiting her Davao City law office during her absence, posing either as members
PEOPLE'S LAWYER MOVEMENT (UPLM) AND KELLY DELGADO of the military or falsely claiming to be clients inquiring on the status of their
SEC GEN, KARAPATAN: cases.  These incidents were attested to by her law office partner, Atty. Michael
P. Pito, through an Affidavit[6] dated June 16, 2009.
-   PRESENTED THE NATL GOAL/THEME WHICH STATES THAT
"THE STAGE IS SET, TIME TO UNITE AGAINST ARROYO, STEP UP On the other hand, the petitioner in G.R. No. 189690, Davao City Councilor
PROTESTS AND ARMED OFFENSIVE." ATTY. ANGELA LIBRADO-TRINIDAD (Atty. Librado-Trinidad), delivered a
Privilege Speech[7] before the members of the Sangguniang Panglungsod of
-   DISCUSSED THE FOLLOWING ISSUES WHICH WILL BE Davao City on May 19, 2009 to demand the removal of her name from said OB
CAPITALIZED ON THEIR PLANNED ACTIVITIES ON 30 NOV 07: List.  Subsequently, the Davao City Council ordered a formal investigation into
the existence of the alleged OB List.  The Commission on Human Rights (CHR),
for its part, announced the conduct of its own investigation into the matter,
94
having been presented a copy of the PowerPoint presentation during its public "connected" to the Communist Party of the Philippines (CPP) and its military
hearing in Davao City on May 22, 2009. arm, the New People's Army (NPA);

According to her, in the course of the performance of her duties and functions 8.  The name of the herein petitioner was listed in the categories of "human
as a lawyer, as a member of the Sangguniang Panglungsod of Davao, as well as, rights" and "Broad Alliance"  x x x;[11] (Emphasis in the original)
of Bayan Muna, she has not committed any act against national security that
would justify the inclusion of her name in the said OB List.  In her Affidavit, Asserting that the inclusion of his name in the OB List was due to his advocacies
[8]
 she recounted that sometime in May 2008, two suspicious-looking men on a as a public interest or human rights lawyer, Atty. Zarate vehemently and
motorcycle tailed her vehicle as she went about her day going to different categorically denied that he was fronting for, or connected with, the CPP-NPA.
[12]
places.  She also recalled that on June 23, 2008, while she was away from home,
three unidentified men tried to barge into their house and later left on board a
plate-less, stainless "owner type-vehicle."   Both incidents were duly reported to In fine, petitioners were one in asserting that the OB List is really a military hit-
the police.[9] list as allegedly shown by the fact that there have already been three victims of 
extrajudicial killing whose violent deaths can be linked directly to the OB List,
Meanwhile, the petitioner in G.R. No. 189691, current Secretary General of the to wit: Celso B. Pojas, who was assassinated in May 2008[13] purportedly
Union of Peoples' Lawyers in Mindanao (UPLM) and Davao City Coordinator of because he was Secretary General of the Farmers Association of Davao
the Free Legal Assistance Group (FLAG), ATTY. CARLOS ISAGANI T. ZARATE City[14] and Spokesperson of the Kilusang Magbubukid sa Pilipinas (KMP),
[15]
(Atty. Zarate), was informed sometime in May 2009 that his name was also  which organizations were identified as communist fronts in the subject OB
among those included in the OB List made public by Representative Ocampo at List; Lodenio S. Monzon, who was a victim of a shooting incident in April
a forum concerning human rights violations in Southern Mindanao.  In Atty. 2009[16] due to his supposed connection to the known activist party-list group
Zarate's petition,[10] he alleged that: Bayan Muna[17] as Coordinator in the Municipality of Boston, Davao Oriental;
and Dr. Rogelio Peñera, who was shot to death in June 2009 allegedly because
he was a member of RX Against Erap (RAGE),[18] a sectoral group also identified
5.  On May 19, 2009, during a press conference marking the conclusion of an in the OB List.
International Solidarity Mission (ISM) attended by both local and international
delegates and organized to investigate alleged human rights violations in Petitioners further alleged that respondents' inconsistent statements and
Southern Mindanao by state's forces Bayan Muna Party-list Representative obvious prevarication sufficiently prove their authorship of the subject OB List. 
Satur Ocampo revealed the existence of a "watch list," officially known in Supposedly sourced from their own Press Releases,[19] respondents have been
military parlance as "Order of Battle" prepared by the intelligence arm of quoted in several newspapers as saying: 1) that the "10th ID has its Order of
Philippine Army's 10th ID, headed by respondent Maj. Gen. Reynaldo Mapagu. Battle, and, it is not for public consumption";  2) that the Order of Battle
x x x; "requires thorough confirmation and validation from different law enforcement
agencies, and from various sectors and stakeholders who are the ones providing
6.  The said "Order of Battle" was contained in a [PowerPoint] presentation the information about the people and organizations that may in one way or the
marked "SECRET" and captioned "3rd Quarter 2007 OB Validation other, wittingly or unwittingly, become involved in the CPP's grand design"; 3)
Result"; it was supposedly prepared by the "JCICC 'Agila'" under the [O]ffice that an "order of battle does not target individuals; it is mainly an assessment of
of the Assistant Chief of Staff for Intelligence of the 10th Infantry Division of the the general threat to national security"; 4) that Representative Ocampo "utilized
Philippine Army.  It also mentioned a certain "JTICC 'LAWIN'" with the the material to disrupt the ongoing government efforts in the area by raising
following as members: Task Force Davao Chairman; Team Leader, issues and propaganda against the military";  5) that "[t]he public viewing of the
SPOT11-3, MIG11, ISAFP, NISU-Davao, NISG-EM, PN, 305th AISS, "falsified" document of the OB was a deliberate act of Representative Ocampo x
PAF, TL, ISU 11, PA, S2, RCDG, PA; M2, DCPO; NICA XI; S2, 104th x x to mar the image of the military forces, gain media mileage and regain the
DRC, PA, and, WACOM-Researcher/Analyst MIG11, ISAFP[;] support of the masses and local executives"; 6) that Reperesentative Ocampo
"'twisted' the data and insinuated names as targets of the AFP/10ID when in
7.  The said [PowerPoint] presentation (which Representative Ocampo said was fact these are targets (for infiltration) by the CPP/NPA"; and 7) that this
"leaked" by a "conscientious soldier"), revealed the names of organizations and "attempt of the CPP to attribute human rights violations to the Philippine
personalities in Southern Mindanao, particularly Davao City, supposedly government is a cover to mask their record of killing people."  According to
95
petitioners, there is no question that these Press Releases came from the substantial evidence to show that the perceived threat to petitioners' life, liberty
10th ID.  Its source email address, [email protected], has been identified by and security was attributable to the unlawful act or omission of the
regular correspondent of the Philippine Daily Inquirer Jeffrey Tupas as the respondents, thus disposing of each of the three cases in this wise:
same one used by respondent Lt. Col. Decapia in sending to him previous
official press statements of the 10th ID, including the Press Release entitled,
"CPP/NPA demoralized, ISM on the rescue."[20] Prescinding therefrom, and in x x x light of all the pieces of evidence presented,
this Court is of the considered views [sic] that petitioner failed to prove, by
On June 16, 2009, petitioners separately filed before the RTC a Petition for the substantial evidence, that indeed, (her/his) perceived threat to (her/his) life,
Issuance of a Writ of Amparo with Application for a Production Order, liberty and security is attributable to the unlawful act or omission of the
[21]
 docketed as Special Proceeding Nos. 004-09,[22] 005-09[23] and 006-09.[24]  respondents.  Accordingly, this Court has no other recourse but to deny the
On June 22, 2009, the RTC issued separate Writs of Amparo[25] in each of the instant petition.
three (3) cases, directing respondents to file a verified written return within
seventy-two (72) hours and setting the case for summary hearing on June 29, WHEREFORE, the privilege of the Writ is hereby denied.
2009.
SO ORDERED.[32]
In their Returns,[26] respondents denied authorship of the document being
adverted to and distributed by Representative Ocampo to the media.  They The RTC rejected the sworn statement of Representative Ocampo for being
claimed that petitioners miserably failed to show, by substantial evidence, that hearsay, holding that with no direct or personal knowledge of the authenticity
they were responsible for the alleged threats perceived by petitioners.  Instead, of the subject OB List, even an oral testimony from him on the circumstances
they asserted that petitioners' allegations are based solely on hearsay, surrounding its obtention through a "conscientious soldier" would still be of no
speculation, beliefs, impression and feelings, which are insufficient to warrant probative weight.  It likewise found that the violent deaths of Celso Pojas,
the issuance of the writ and, ultimately, the grant of the privilege of the writ Lodenio Monzon and Dr. Rogelio Peñera, and other incidents of threat have no
of amparo. direct relation at all to the existence of the present OB List.

In her Reply,[27] Atty. Librado-Trinidad averred that the present petition In their Joint Motion for Reconsideration,[33] petitioners argued that the
substantially conformed with the requirements of the Amparo Rule, as it existence and veracity of the OB List had already been confirmed by
alleged ultimate facts on the participation of respondents in the preparation of respondents themselves through their statements to the media, hence,
the OB List, which naturally requires utmost secrecy.  The petition likewise respondents' personal authorship thereof need not be proven by substantial
alleged how the inclusion of their names in the said OB List substantiates the evidence, as it is, after all, "not the crux of the issue."  Petitioners explicated that
threat of becoming easy targets of unexplained disappearances and extrajudicial since respondents were being impleaded as the responsible officers of the 10th
killings.  On the other hand, Attys. Zarate and Ladaga commonly ID the military unit that supposedly prepared the OB List PowerPoint
asserted[28] that the totality of the events, which consists of respondents' virtual presentation, their general denials on the existence of the OB List without
admission to the media of the existence of the OB List, as well as, the fact that taking serious steps to find the persons actually responsible for the threat could
known victims of past extrajudicial killings have been likewise labeled as not discharge respondents from the standard of diligence required of them
communist fronts in similar orders of battle, more than satisfies the standard under the Amparo Rule.
required to prove that petitioners' life, liberty and security are at risk.
The RTC, however, rejected petitioners' arguments in the September 22, 2009
During the scheduled summary hearing on June 22, 2009, Representative Order, hence, these petitions for review on certiorari raising the following
Ocampo's oral testimony on the circumstances surrounding his obtention of the issues:
alleged military document was dispensed with and, instead, the Affidavit [29] he
executed on June 30, 2009 was presented in the hearing held on July 1, 2009 to
form part of the documentary exhibits of petitioners. [30]
I. The trial court erred in ruling that Petitioner failed to adduce
After submission of the parties' respective Position Papers, [31] the RTC issued on
substantial evidence to warrant the grant of the privilege of the writ,
August 14, 2009 the three separate but similarly-worded Orders finding no
96
 i.e., protection; detailed in supporting affidavits;

II. The trial court erred in failing to consider that the Respondents likewise (d) The investigation conducted, if any, specifying the names, personal
failed to discharge the diligence required by the Amparo Rules by their circumstances, and addresses of the investigating authority or individuals, as
sweeping and general denials; AND well as the manner and conduct of the investigation, together with any report;

III. The trial court erred in appreciating the nature and concept of the (e) The actions and recourses taken by the petitioner to determine the fate or
privilege of the writ.[34] whereabouts of the aggrieved party and the identity of the person responsible
for the threat, act or omission; and

(f) The relief prayed for. The petition may include a general prayer for other just
Commenting on the petitions, respondents argue[35] that the purported OB List
and equitable reliefs.[39]  (Underscoring supplied)
could not have come from the military because it does not have the "distinctive
marks and security classifications" of military documents.  They quickly defend
the correctness of the RTC's denial of the privilege of the writ and the interim
The sole and common issue presented in these petitions is whether the totality
relief of a protection order as petitioners have not presented any adequate and
of evidence satisfies the degree of proof required under the Amparo Rule. 
competent evidence, much less substantial evidence, to establish that public
Sections 17 and 18 of the Rule on the Writ of Amparo provide as follows:
respondents are threatening to violate their rights to life, liberty and security or
that, at the very least, were involved in the preparation of the OB List.

We deny the petitions. SEC. 17. Burden of Proof and Standard of Diligence Required. The parties shall
establish their claims by substantial evidence.
The writ of amparo was promulgated by the Court pursuant to its rule-making
powers in response to the alarming rise in the number of cases of enforced xxxx
disappearances and extrajudicial killings.[36]  It plays the preventive role of
breaking the expectation of impunity in the commission of extralegal killings SEC. 18.  Judgment. The court shall render judgment within ten (10) days from
and enforced disappearances, as well as the curative role of facilitating the the time the petition is submitted for decision.  If the allegations in the petition
subsequent punishment of the perpetrators.[37]  In Tapuz v. Del Rosario,[38] the are proven by substantial evidence, the court shall grant the privilege of the
Court has previously held that the writ of amparo is an extraordinary remedy writ and such reliefs as may be proper and appropriate; otherwise, the privilege
intended to address violations of, or threats to, the rights to life, liberty or shall be denied. (Emphasis supplied)
security and that, being a remedy of extraordinary character, it is not one to
issue on amorphous or uncertain grounds but only upon reasonable certainty.  Substantial evidence is that amount of relevant evidence which a reasonable
Hence, every petition for the issuance of the writ is required to be supported by mind might accept as adequate to support a conclusion.  It is more than a mere
justifying allegations of fact on the following matters: imputation of wrongdoing or violation that would warrant a finding of liability
against the person charged.[40]  The summary nature of amparo proceedings, as
well as, the use of substantial evidence as standard of proof shows the intent of
the framers of the rule to address situations of enforced disappearance and
(a) The personal circumstances of the petitioner;
extrajudicial killings, or threats thereof, with what is akin to administrative
proceedings.[41]
(b) The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent
Suitable to, and consistent with this incipiently unique and informal treatment
may be described by an assumed appellation;
of amparo cases, the Court eventually recognized the evidentiary difficulties
that beset amparo petitioners, arising as they normally would from the fact that
(c)    The right to life, liberty and security of the aggrieved party violated or
the State itself, through its own agents, is involved in the enforced
threatened with violation by an unlawful act or omission of the respondent, and
disappearance or extrajudicial killing that it is supposedly tasked by law to
how such threat or violation is committed with the attendant circumstances
investigate.  Thus, in Razon, Jr. v. Tagitis, the Court laid down a new standard
97
of relaxed admissibility of evidence to enable amparo petitioners to meet the the existence of a military-prepared Order of Battle, the affidavits of petitioners
required amount of proof showing the State's direct or indirect involvement in attesting to the threatening visits and tailing of their vehicles by menacing
the purported violations and found it a fair and proper rule in amparo cases "to strangers, as well as the violent deaths of alleged militant personalities, leads to
consider all the pieces of evidence adduced in their totality" and "to the conclusion that the threat to petitioners' security has not be adequately
consider any evidence otherwise inadmissible under our usual rules proven.
to be admissible if it is consistent with the admissible evidence
adduced."[42]  Put simply, evidence is not to be rejected outright because it is Petitioners sought to prove that the inclusion of their names in the OB List
inadmissible under the rules for as long as it satisfies "the most basic test of presented a real threat to their security by attributing the violent deaths of
reason i.e., relevance of the evidence to the issue at hand and its known activists Celso Pojas, Lodenio Monzon and Dr. Rogelio Peñera to the
consistency with all other pieces of adduced evidence."[43] inclusion of the latter's names or the names of their militant organizations in
the subject OB List.  Petitioner Atty. Librado-Trinidad even attributed the
This measure of flexibility in the admissibility of evidence, however, does not do alleged tailing of her vehicle by motorcycle-riding men and the attempted entry
away with the requirement of substantial evidence in showing the State's by suspicious men into her home to the inclusion of her name in the OB List. 
involvement in the enforced disappearance, extrajudicial killing or threats The RTC, however, correctly dismissed both arguments, holding that the
thereof.  It merely permits, in the absence of hard-to-produce direct evidence, a existence of the OB List could not be directly associated with the menacing
closer look at the relevance and significance of every available evidence, behavior of suspicious men or the violent deaths of certain personalities, thus:
[44]
 including those that are, strictly speaking, hearsay where the circumstances
of the case so require, and allows the consideration of the  evidence adduced in
terms of their consistency with the totality of the evidence. [45] "Anent petitioner's revelation that sometime in 2008, a number of unidentified
men attempted to forcibly enter the premises of her dwelling and that at one
As emphasized by Justice Arturo D. Brion (Justice Brion) during the occasion, the vehicle she was riding was tailed by motorcycle-riding men, the
deliberations on this case, in cases of enforced disappearance, the evidence that same could not led [sic] to the conclusion that indeed, those incidents were
would directly establish a violation of the right to life, liberty and security is related to the existence of the "OB List."  There appears not even an iota of
indubitably in the State's possession.  The same is not equally true in cases evidence upon which the same assumption can be anchored on.[46]
where the amparo petitioner alleges (as in this case) a threatened violation of
his/her rights since the facts, circumstances and the link between these that This Court likewise sees no direct relation between the violent deaths of Celso
create an actual threat to his/her life are measurably within the ability of Pojas, Ludenio Monzon and Dr. Rogelio Peñera and the subject "OB List." 
the amparo petitioner to prove.  These include, among others, the alleged There is no evidence pointing to the claim that they were killed because their
documented human rights violations by the military in Mindanao; documentary names or the organizations they were involved in were mentioned in the same
and/or testimonial evidence on the military's counter-insurgency operations; "OB List."  More importantly, there is no official finding by the proper
corroborative evidence to support the allegations on the presence of suspicious authorities that their deaths were precipitated by their involvement in
men; and presumptive evidence linking the deaths of Celso Pojas, Ludenio organizations sympathetic to, or connected with, the Communist Party of the
Monzon and Dr. Rogelio Peñera to their political affiliation and the similarity of Philippines, or its military arm, the New People's Army.  Lastly, and more
their situation to those of petitioners.  A mere inclusion of one's name in the OB telling, the existence of the subject "OB List" has not been adequately proven, as
List, without more, does not suffice to discharge the burden to establish actual discussed heretofore, hence, reference to the same finds no basis." [47]
threat to one's right to life, liberty and security by substantial evidence.
The Court holds that the imputed pattern of targeting militants for execution by
The statement of Representative Ocampo that the respondents are the real way of systematically identifying and listing them in an Order of Battle cannot
source of the OB List is unquestionably hearsay evidence because, except for the be inferred simply from the Press Releases admitting the existence of a military
fact that he himself received the OB List from an unnamed source merely document known as an Order of Battle and the fact that activists Celso Pojas,
described as "a conscientious soldier," he had no personal knowledge Lodenio Monzon and Dr. Rogelio Peñera have become supposed victims of
concerning its preparation.  But even if the Court were to apply the appropriate extralegal killings.  The adduced evidence tends to bear strongly against the
measure of flexibility in the instant cases by admitting the hearsay testimony of proposition because, except for Celso Pojas, the names of the supposed victims
Representative Ocampo, a consideration of this piece of evidence to the totality of extrajudicial killings are manifestly absent in the subject OB List and the
of those adduced, namely, the Press Releases issued by the 10th ID admitting supposed connection of the victims to the militant groups explicitly identified in
98
the OB List is nothing short of nebulous. violate, amparo petitioners' right to life, liberty or security. No substantial
evidence of an actual threat to petitioners' life, liberty and security has been
Moreover, while respondents may have admitted through various statements to shown to exist in this case.  For, even if the existence of the OB List or, indeed,
the media that the military has its own Order of Battle, such an admission is not the inclusion of petitioners' names therein, can be properly inferred from the
equivalent to proof that the subject OB List, which was publicly disclosed by totality of the evidence presented, still, no link has been sufficiently established
Representative Ocampo by way of a PowerPoint presentation, is one and the to relate the subject OB List either to the threatening visits received by
same with the Order of Battle that the military has in its keeping.  And, petitioners from unknown men or to the violent deaths of the three (3)
assuming that the Press Releases do amount to an admission not only of the mentioned personalities and other known activists, which could strongly
existence but also the authenticity of the subject OB List, the inclusion of suggest that, by some identifiable pattern of military involvement, the inclusion
petitioners' names therein does not, by itself, constitute an actual threat to their of one's name in an Order of Battle would eventually result to enforced
rights to life, liberty and security as to warrant the issuance of a writ of amparo. disappearance and murder of those persons tagged therein as militants.

In the case of Secretary of National Defense v. Manalo,[48] the Court ruled that Emphasizing the extraordinary character of the amparo remedy, the Court
a person's right to security is, in one sense, "freedom from fear" and that any ruled in the cases of Roxas and Razon, Jr. that an amparo petitioner's failure to
threat to the rights to life, liberty or security is an actionable wrong.  The term establish by substantial evidence the involvement of government forces in the
"any threat," however, cannot be taken to mean every conceivable threat in the alleged violation of rights is never a hindrance for the Court to order the
mind that may cause one to fear for his life, liberty or security.  The Court conduct of further investigation where it appears that the government did not
explicated therein that "[f]ear is a state of mind, a reaction; threat is a stimulus, observe extraordinary diligence in the performance of its duty to investigate the
a cause of action.  Fear caused by the same stimulus can range from being complained abduction and torture or enforced disappearance.  The Court
baseless to well-founded as people react differently.  The degree of fear can vary directed further investigation in the case of Roxas because the modest efforts of
from one person to another with the variation of the prolificacy of their police investigators were effectively putting petitioner's right to security in
imagination, strength of character or past experience with the stimulus."  danger with the delay in identifying and apprehending her abductors. 
Certainly, given the uniqueness of individual psychological mindsets, In Razon, Jr., the Court found it necessary to explicitly order the military and
perceptions of what is fearful will necessarily vary from one person to another. police officials to pursue with extraordinary diligence the investigation into the
abduction and disappearance of a known activist because not only did the police
The alleged threat to herein petitioners' rights to life, liberty and security must investigators conduct an incomplete and one-sided investigation but they
be actual, and not merely one of supposition or with the likelihood of blamed their ineffectiveness to the reluctance and unwillingness of the relatives
happening.  And, when the evidence adduced establishes the threat to be to cooperate with the authorities.   In both of these cases, the incidents of
existent, as opposed to a potential one, then, it goes without saying that the abduction and torture were undisputed and they provided the evidentiary
threshold requirement of substantial evidence in amparo proceedings has also support for the finding that the right to security was violated and the necessity
been met.  Thus, in the words of Justice Brion, in the context of for further investigation into such violation.  Unlike Roxas and Razon, Jr.,
the Amparo rule, only actual threats, as may be established from all the facts however, the present petitions do not involve actual cases of abduction or
and circumstances of the case, can qualify as a violation that may be addressed disappearance that can be the basis of an investigation.  Petitioners would insist
under the Rule on the Writ of Amparo. that respondents be investigated and directed to produce the Order of Battle
that they have admitted to be in their safekeeping and justify the inclusion of
Petitioners cannot assert that the inclusion of their names in the OB List is as petitioners' names therein.  However, without substantial evidence of an actual
real a threat as that which brought ultimate harm to victims Celso Pojas, threat to petitioners' rights to life, liberty and security that consists more than
Lodenio Monzon and Dr. Rogelio Peñera without corroborative evidence from just the inclusion of their names in an OB List, an order for further
which it can be presumed that the suspicious deaths of these three people were, investigation into, or production of, the military's Order of Battle, would have
in fact, on account of their militant affiliations or that their violent fates had no concrete basis.
been actually planned out by the military through its Order of Battle.
WHEREFORE, premises considered, the petitions are hereby DENIED. The
The Court may be more yielding to the use of circumstantial or indirect assailed Orders dated August 14, 2009 and September 22, 2009 of the Regional
evidence and logical inferences, but substantial evidence is still the rule to Trial Court of Davao City, Branch 10, are AFFIRMED.
warrant a finding that the State has violated, is violating, or is threatening to
99
 within the reach of Juan dela Cruz. Seemingly distant is the judicial branch,
SO ORDERED. oftentimes regarded as an inert governmental body that merely casts its
watchful eyes on clashing stakeholders until it is called upon to adjudicate.
Passive, yet reflexive when called into action, the Judiciary then willingly
G.R. No. 204819               April 8, 2014 embarks on its solemn duty to interpret legislation vis-a-vis the most vital
and enduring principle that holds Philippine society together - the
JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and supremacy of the Philippine Constitution.
in behalf of their minor children, LUCIA CARLOS IMBONG and
BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD Nothing has polarized the nation more in recent years than the issues of
DEVELOPMENT CENTER, INC., Petitioners, population growth control, abortion and contraception. As in every
vs. democratic society, diametrically opposed views on the subjects and their
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. perceived consequences freely circulate in various media. From television
FLORENCIO B. ABAD, Secretary, Department of Budget and debates  to sticker campaigns,  from rallies by socio-political activists to
2 3

Management, HON. ENRIQUE T. ONA, Secretary, Department of mass gatherings organized by members of the clergy  - the clash between
4

Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education, the seemingly antithetical ideologies of the religious conservatives and
Culture and Sports and HON. MANUELA. ROXAS II, Secretary, progressive liberals has caused a deep division in every level of the society.
Department of Interior and Local Government, Respondents. Despite calls to withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood and Reproductive
DECISION Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
MENDOZA, J.:
Shortly after the President placed his imprimatur on the said law,
Freedom of religion was accorded preferred status by the framers of our challengers from various sectors of society came knocking on the doors of
fundamental law. And this Court has consistently affirmed this preferred the Court, beckoning it to wield the sword that strikes down constitutional
status, well aware that it is "designed to protect the broadest possible liberty disobedience. Aware of the profound and lasting impact that its decision
of conscience, to allow each man to believe as his conscience directs, to may produce, the Court now faces the iuris controversy, as presented in
profess his beliefs , and to live as he believes he ought to live, consistent fourteen (14) petitions and two (2) petitions- in-intervention, to wit:
with the liberty of others and with the common good." 1

(1) Petition for Certiorari and Prohibition,  filed by spouses Attys.

5

To this day, poverty is still a major stumbling block to the nation's James M. Imbong and Lovely Ann C. Imbong, in their personal
emergence as a developed country, leaving our people beleaguered in a capacities as citizens, lawyers and taxpayers and on behalf of their
state of hunger, illiteracy and unemployment. While governmental policies minor children; and the Magnificat Child Leaming Center, Inc., a
have been geared towards the revitalization of the economy, the domestic, privately-owned educational institution (Jmbong);
bludgeoning dearth in social services remains to be a problem that
concerns not only the poor, but every member of society. The government (2) Petition for Prohibition,  filed by the Alliance for the Family
6

continues to tread on a trying path to the realization of its very purpose, that Foundation Philippines, Inc., through its president, Atty. Maria
is, the general welfare of the Filipino people and the development of the Concepcion S. Noche  and several others  in their personal
7 8

country as a whole. The legislative branch, as the main facet of a capacities as citizens and on behalf of the generations unborn
representative government, endeavors to enact laws and policies that aim (ALFI);
to remedy looming societal woes, while the executive is closed set to fully
implement these measures and bring concrete and substantial solutions

100
 (3) Petition for Certiorari,  filed by the Task Force for Family and Life
9
(13) Petition for Certiorari and Prohibition,  filed by Couples for
30

Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens Christ Foundation, Inc. and several others,  in their capacities as
31

and taxpayers (Task Force Family); citizens (CFC);

(4) Petition for Certiorari and Prohibition,  filed by Serve Life

10
(14) Petition for Prohibition  filed by Almarim Centi Tillah and
32

Cagayan De Oro City, Inc.,  Rosevale Foundation, Inc.,  a

11 12
Abdulhussein M. Kashim in their capacities as citizens and
domestic, privately-owned educational institution, and several taxpayers (Tillah); and
others,  in their capacities as citizens (Serve Life);
13

(15) Petition-In-Intervention,  filed by Atty. Samson S. Alcantara in

33

(5) Petition,  filed by Expedito A. Bugarin, Jr. in his capacity as a

14
his capacity as a citizen and a taxpayer (Alcantara); and
citizen (Bugarin);
(16) Petition-In-Intervention,  filed by Buhay Hayaang Yumabong (B
34

(6) Petition for Certiorari and Prohibition,  filed by Eduardo Olaguer

15
UHAY) , an accredited political party.
and the Catholic Xybrspace Apostolate of the Philippines,  in their 16

capacities as a citizens and taxpayers (Olaguer); A perusal of the foregoing petitions shows that the petitioners are assailing
the constitutionality of RH Law on the following GROUNDS:
(7) Petition for Certiorari and Prohibition,  filed by the Philippine
17

Alliance of Xseminarians Inc.,  and several others  in their

18 19
• The RH Law violates the right to life of the unborn. According to
capacities as citizens and taxpayers (PAX); the petitioners, notwithstanding its declared policy against abortion,
the implementation of the RH Law would authorize the purchase of
(8) Petition,  filed by Reynaldo J. Echavez, M.D. and several
20
hormonal contraceptives, intra-uterine devices and injectables
others,  in their capacities as citizens and taxpayers (Echavez);
21
which are abortives, in violation of Section 12, Article II of the
Constitution which guarantees protection of both the life of the
(9) Petition for Certiorari and Prohibition,  filed by spouses
22 mother and the life of the unborn from conception. 35

Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia, in

their capacities as citizens, taxpayers and on behalf of those yet • The RH Law violates the right to health and the right to protection
unborn. Atty. Alan F. Paguia is also proceeding in his capacity as a against hazardous products. The petitioners posit that the RH Law
member of the Bar (Tatad); provides universal access to contraceptives which are hazardous to
one's health, as it causes cancer and other health problems. 36

(10) Petition for Certiorari and Prohibition,  filed by Pro-Life

23

Philippines Foundation Inc.  and several others,  in their capacities

24 25
• The RH Law violates the right to religious freedom. The petitioners
as citizens and taxpayers and on behalf of its associates who are contend that the RH Law violates the constitutional guarantee
members of the Bar (Pro-Life); respecting religion as it authorizes the use of public funds for the
procurement of contraceptives. For the petitioners, the use of public
(11) Petition for Prohibition,  filed by Millennium Saint Foundation,
26 funds for purposes that are believed to be contrary to their beliefs is
Inc.,  Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella
27 included in the constitutional mandate ensuring religious freedom. 37

Acedera, and Berteni Catalufia Causing, in their capacities as

citizens, taxpayers and members of the Bar (MSF); It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
(12) Petition for Certiorari and Prohibition,  filed by John Walter B.
28 compels medical practitioners 1] to refer patients who seek advice on
Juat and several others,  in their capacities as citizens (Juat) ;
29 reproductive health programs to other doctors; and 2] to provide full and
101
correct information on reproductive health programs and service, although it contraceptives that would effectively reduce the number of the
is against their religious beliefs and convictions.
38
poor.45

In this connection, Section 5 .23 of the Implementing Rules and Regulations • The RH Law is "void-for-vagueness" in violation of the due
of the RH Law (RH-IRR),  provides that skilled health professionals who are
39
process clause of the Constitution. In imposing the penalty of
public officers such as, but not limited to, Provincial, City, or Municipal imprisonment and/or fine for "any violation," it is vague because it
Health Officers, medical officers, medical specialists, rural health does not define the type of conduct to be treated as "violation" of
physicians, hospital staff nurses, public health nurses, or rural health the RH Law. 46

midwives, who are specifically charged with the duty to implement these
Rules, cannot be considered as conscientious objectors. 40
In this connection, it is claimed that "Section 7 of the RH Law violates the
right to due process by removing from them (the people) the right to
It is also argued that the RH Law providing for the formulation of mandatory manage their own affairs and to decide what kind of health facility they shall
sex education in schools should not be allowed as it is an affront to their be and what kind of services they shall offer."  It ignores the management
47

religious beliefs.
41
prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.
While the petit10ners recognize that the guarantee of religious freedom is
not absolute, they argue that the RH Law fails to satisfy the "clear and • The RH Law violates the right to free speech. To compel a person
present danger test" and the "compelling state interest test" to justify the to explain a full range of family planning methods is plainly to curtail
regulation of the right to free exercise of religion and the right to free his right to expound only his own preferred way of family planning.
speech. 42
The petitioners note that although exemption is granted to
institutions owned and operated by religious groups, they are still
• The RH Law violates the constitutional provision on involuntary forced to refer their patients to another healthcare facility willing to
servitude. According to the petitioners, the RH Law subjects perform the service or procedure. 48

medical practitioners to involuntary servitude because, to be

accredited under the PhilHealth program, they are compelled to • The RH Law intrudes into the zone of privacy of one's family
provide forty-eight (48) hours of pro bona services for indigent protected by the Constitution. It is contended that the RH Law
women, under threat of criminal prosecution, imprisonment and providing for mandatory reproductive health education intrudes
other forms of punishment. 43
upon their constitutional right to raise their children in accordance
with their beliefs.
49

The petitioners explain that since a majority of patients are covered by

PhilHealth, a medical practitioner would effectively be forced to render It is claimed that, by giving absolute authority to the person who will
reproductive health services since the lack of PhilHealth accreditation would undergo reproductive health procedure, the RH Law forsakes any real
mean that the majority of the public would no longer be able to avail of the dialogue between the spouses and impedes the right of spouses to
practitioners services.
44
mutually decide on matters pertaining to the overall well-being of their
family. In the same breath, it is also claimed that the parents of a child who
• The RH Law violates the right to equal protection of the law. It is has suffered a miscarriage are deprived of parental authority to determine
claimed that the RH Law discriminates against the poor as it makes whether their child should use contraceptives. 50

them the primary target of the government program that promotes

contraceptive use. The petitioners argue that, rather than promoting • The RH Law violates the constitutional principle of non-delegation
reproductive health among the poor, the RH Law seeks to introduce of legislative authority. The petitioners question the delegation by
Congress to the FDA of the power to determine whether a product
102
 is non-abortifacient and to be included in the Emergency Drugs List On May 30, 2013, the Court held a preliminary conference with the
(EDL). 51
counsels of the parties to determine and/or identify the pertinent issues
raised by the parties and the sequence by which these issues were to be
• The RH Law violates the one subject/one bill rule provision under discussed in the oral arguments. On July 9 and 23, 2013, and on August 6,
Section 26( 1 ), Article VI of the Constitution. 52 13, and 27, 2013, the cases were heard on oral argument. On July 16,
2013, the SQAO was ordered extended until further orders of the Court. 63

• The RH Law violates Natural Law. 53

Thereafter, the Court directed the parties to submit their respective

• The RH Law violates the principle of Autonomy of Local memoranda within sixty (60) days and, at the same time posed several
Government Units (LGUs) and the Autonomous Region of Muslim questions for their clarification on some contentions of the parties.
64

Mindanao {ARMM). It is contended that the RH Law, providing for

reproductive health measures at the local government level and the The Status Quo Ante
ARMM, infringes upon the powers devolved to LGUs and the
ARMM under the Local Government Code and R.A . No. 9054. 54
(Population, Contraceptive and Reproductive Health Laws

Various parties also sought and were granted leave to file their respective Prior to the RH Law
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on Long before the incipience of the RH Law, the country has allowed the sale,
the petitions in behalf of the respondents,  Congressman Edcel C.
55
dispensation and distribution of contraceptive drugs and devices. As far
Lagman,  former officials of the Department of Health Dr. Esperanza I.
56
back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,  the Filipino
57
to Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive
Catholic Voices for Reproductive Health (C4RH),  Ana Theresa "Risa"
58
Drugs and Devices." Although contraceptive drugs and devices were
Hontiveros,  and Atty. Joan De Venecia  also filed their respective
59 60
allowed, they could not be sold, dispensed or distributed "unless such sale,
Comments-in-Intervention in conjunction with several others. On June 4, dispensation and distribution is by a duly licensed drug store or
2013, Senator Pia Juliana S. Cayetano was also granted leave to pharmaceutical company and with the prescription of a qualified medical
intervene. 61
practitioner."
65

The respondents, aside from traversing the substantive arguments of the In addition, R.A. No. 5921,  approved on June 21, 1969, contained
66

petitioners, pray for the dismissal of the petitions for the principal reasons provisions relative to "dispensing of abortifacients or anti-conceptional
that 1] there is no actual case or controversy and, therefore, the issues are substances and devices." Under Section 37 thereof, it was provided that
not yet ripe for judicial determination.; 2] some petitioners lack standing to "no drug or chemical product or device capable of provoking abortion or
question the RH Law; and 3] the petitions are essentially petitions for preventing conception as classified by the Food and Drug Administration
declaratory relief over which the Court has no original jurisdiction. shall be delivered or sold to any person without a proper prescription by a
duly licensed physician."
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect. On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be
On March 19, 2013, after considering the issues and arguments raised, the considered as the principal element for long-term economic development,
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and enacted measures that promoted male vasectomy and tubal ligation to
implementation of the assailed legislation for a period of one hundred and mitigate population growth.  Among these measures included R.A. No.
67

twenty (120) days, or until July 17, 2013.62

6365, approved on August 16, 1971, entitled "An Act Establishing a
103
National Policy on Population, Creating the Commission on Population and Stated differently, the RH Law is an enhancement measure to fortify and
for Other Purposes. " The law envisioned that "family planning will be made make effective the current laws on contraception, women's health and
part of a broad educational program; safe and effective means will be population control.
provided to couples desiring to space or limit family size; mortality and
morbidity rates will be further reduced." Prayer of the Petitioners - Maintain the Status Quo

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos The petitioners are one in praying that the entire RH Law be declared
issued Presidential Decree. (P.D.) No. 79,  dated December 8, 1972,
68
unconstitutional. Petitioner ALFI, in particular, argues that the government
which, among others, made "family planning a part of a broad educational sponsored contraception program, the very essence of the RH Law,
program," provided "family planning services as a part of over-all health violates the right to health of women and the sanctity of life, which the State
care," and made "available all acceptable methods of contraception, except is mandated to protect and promote. Thus, ALFI prays that "the status quo
abortion, to all Filipino citizens desirous of spacing, limiting or preventing ante - the situation prior to the passage of the RH Law - must be
pregnancies." maintained."  It explains:
73

Through the years, however, the use of contraceptives and family planning x x x. The instant Petition does not question contraception and
methods evolved from being a component of demographic management, to contraceptives per se. As provided under Republic Act No. 5921 and
one centered on the promotion of public health, particularly, reproductive Republic Act No. 4729, the sale and distribution of contraceptives are
health.  Under that policy, the country gave priority to one's right to freely
69
prohibited unless dispensed by a prescription duly licensed by a physician.
choose the method of family planning to be adopted, in conformity with its What the Petitioners find deplorable and repugnant under the RH Law is the
adherence to the commitments made in the International Conference on role that the State and its agencies - the entire bureaucracy, from the
Population and Development.  Thus, on August 14, 2009, the country
70
cabinet secretaries down to the barangay officials in the remotest areas of
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among the country - is made to play in the implementation of the contraception
others, mandated the State to provide for comprehensive health services program to the fullest extent possible using taxpayers' money. The State
and programs for women, including family planning and sex education. 71
then will be the funder and provider of all forms of family planning methods
and the implementer of the program by ensuring the widespread
The RH Law dissemination of, and universal access to, a full range of family planning
methods, devices and supplies. 74

Despite the foregoing legislative measures, the population of the country

kept on galloping at an uncontrollable pace. From a paltry number of just ISSUES
over 27 million Filipinos in 1960, the population of the country reached over
76 million in the year 2000 and over 92 million in 2010.  The executive and
72
After a scrutiny of the various arguments and contentions of the parties, the
the legislative, thus, felt that the measures were still not adequate. To rein Court has synthesized and refined them to the following principal issues:
in the problem, the RH Law was enacted to provide Filipinos, especially the
poor and the marginalized, access and information to the full range of I. PROCEDURAL: Whether the Court may exercise its power of judicial
modem family planning methods, and to ensure that its objective to provide review over the controversy.
for the peoples' right to reproductive health be achieved. To make it more
effective, the RH Law made it mandatory for health providers to provide
1] Power of Judicial Review
information on the full range of modem family planning methods, supplies
and services, and for schools to provide reproductive health education. To
put teeth to it, the RH Law criminalizes certain acts of refusals to carry out 2] Actual Case or Controversy
its mandates.
3] Facial Challenge
104
 4] Locus Standi In its attempt to persuade the Court to stay its judicial hand, the OSG
asserts that it should submit to the legislative and political wisdom of
5] Declaratory Relief Congress and respect the compromises made in the crafting of the RH
Law, it being "a product of a majoritarian democratic process"  and
75

6] One Subject/One Title Rule "characterized by an inordinate amount of transparency."  The OSG posits
76

that the authority of the Court to review social legislation like the RH Law by
certiorari is "weak," since the Constitution vests the discretion to implement
II. SUBSTANTIVE: Whether the RH law is unconstitutional:
the constitutional policies and positive norms with the political departments,
in particular, with Congress.  It further asserts that in view of the Court's
77

1] Right to Life ruling in Southern Hemisphere v. Anti-Terrorism Council,  the remedies of

78

certiorari and prohibition utilized by the petitioners are improper to assail the
2] Right to Health validity of the acts of the legislature.
79

3] Freedom of Religion and the Right to Free Speech Moreover, the OSG submits that as an "as applied challenge," it cannot
prosper considering that the assailed law has yet to be enforced and
4] The Family applied to the petitioners, and that the government has yet to distribute
reproductive health devices that are abortive. It claims that the RH Law
5] Freedom of Expression and Academic Freedom cannot be challenged "on its face" as it is not a speech-regulating
measure. 80

6] Due Process
In many cases involving the determination of the constitutionality of the
7] Equal Protection actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom
8] Involuntary Servitude of its co-equal branch on the basis of the principle of separation of powers.
To be clear, the separation of powers is a fundamental principle in our
system of government, which obtains not through express provision but by
9] Delegation of Authority to the FDA actual division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within
10] Autonomy of Local Govemments/ARMM its own sphere. 81

DISCUSSION Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;  (b) the executive power shall be
82

Before delving into the constitutionality of the RH Law and its implementing vested in the President of the Philippines;  and (c) the judicial power shall
83

rules, it behooves the Court to resolve some procedural impediments. be vested in one Supreme Court and in such lower courts as may be
established by law.  The Constitution has truly blocked out with deft strokes
84

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of and in bold lines, the allotment of powers among the three branches of
judicial review over the controversy. government. 85

The Power of Judicial Review In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born
of the nature of their functions and of their respect for the other branches of

105
government, in striking down the acts of the Executive or the Legislature as As far back as Tanada v. Angara,  the Court has unequivocally declared
91

unconstitutional. Verily, the policy is a harmonious blend of courtesy and that certiorari, prohibition and mandamus are appropriate remedies to raise
caution.86
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials, as there is no other plain, speedy or
It has also long been observed, however, that in times of social disquietude adequate remedy in the ordinary course of law. This ruling was later on
or political instability, the great landmarks of the Constitution are apt to be applied in Macalintal v. COMELEC,  Aldaba v. COMELEC,  Magallona v.
92 93

forgotten or marred, if not entirely obliterated.  In order to address this, the
87 Ermita,  and countless others. In Tanada, the Court wrote:
94

Constitution impresses upon the Court to respect the acts performed by a

co-equal branch done within its sphere of competence and authority, but at In seeking to nullify an act of the Philippine Senate on the ground that it
the same time, allows it to cross the line of separation - but only at a very contravenes the Constitution, the petition no doubt raises a justiciable
limited and specific point - to determine whether the acts of the executive controversy. Where an action of the legislative branch is seriously alleged
and the legislative branches are null because they were undertaken with to have infringed the Constitution, it becomes not only the right but in fact
grave abuse of discretion.  Thus, while the Court may not pass upon
88
the duty of the judiciary to settle the dispute. "The question thus posed is
questions of wisdom, justice or expediency of the RH Law, it may do so judicial rather than political. The duty (to adjudicate) remains to assure that
where an attendant unconstitutionality or grave abuse of discretion the supremacy of the Constitution is upheld. " Once a "controversy as to the
results.  The Court must demonstrate its unflinching commitment to protect
89
application or interpretation of constitutional provision is raised before this
those cherished rights and principles embodied in the Constitution. Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind In the scholarly estimation of former Supreme Court Justice Florentino
of legislation that may be subject to judicial scrutiny, be it in the form of Feliciano, "judicial review is essential for the maintenance and enforcement
social legislation or otherwise. The reason is simple and goes back to the of the separation of powers and the balancing of powers among the three
earlier point. The Court may pass upon the constitutionality of acts of the great departments of government through the definition and maintenance of
legislative and the executive branches, since its duty is not to review their the boundaries of authority and control between them. To him, judicial
collective wisdom but, rather, to make sure that they have acted in review is the chief, indeed the only, medium of participation - or instrument
consonance with their respective authorities and rights as mandated of of intervention - of the judiciary in that balancing operation.
95

them by the Constitution. If after said review, the Court finds no

constitutional violations of any sort, then, it has no more authority of Lest it be misunderstood, it bears emphasizing that the Court does not have
proscribing the actions under review.  This is in line with Article VIII, Section
90
the unbridled authority to rule on just any and every claim of constitutional
1 of the Constitution which expressly provides: violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
Section 1. The judicial power shall be vested in one Supreme Court and in case or controversy; (b) the petitioners must possess locus standi; (c) the
such lower courts as may be established by law. question of constitutionality must be raised at the earliest opportunity; and
(d) the issue of constitutionality must be the lis mota of the case.
96

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and Actual Case or Controversy
enforceable, and to determine whether or not there has been a grave abuse
of discretion amounting to lack or excess of jurisdiction on the part of any Proponents of the RH Law submit that the subj ect petitions do not present
branch or instrumentality of the Government. [Emphases supplied] any actual case or controversy because the RH Law has yet to be
implemented.  They claim that the questions raised by the petitions are not
97

yet concrete and ripe for adjudication since no one has been charged with

106
violating any of its provisions and that there is no showing that any of the In this case, the Court is of the view that an actual case or controversy
petitioners' rights has been adversely affected by its operation.  In short, it
98
exists and that the same is ripe for judicial determination. Considering that
is contended that judicial review of the RH Law is premature. the RH Law and its implementing rules have already taken effect and that
budgetary measures to carry out the law have already been passed, it is
An actual case or controversy means an existing case or controversy that is evident that the subject petitions present a justiciable controversy. As stated
appropriate or ripe for determination, not conjectural or anticipatory, lest the earlier, when an action of the legislative branch is seriously alleged to have
decision of the court would amount to an advisory opinion.  The rule is that
99 infringed the Constitution, it not only becomes a right, but also a duty of the
courts do not sit to adjudicate mere academic questions to satisfy scholarly Judiciary to settle the dispute.
104

interest, however intellectually challenging. The controversy must be

justiciable-definite and concrete, touching on the legal relations of parties Moreover, the petitioners have shown that the case is so because medical
having adverse legal interests. In other words, the pleadings must show an practitioners or medical providers are in danger of being criminally
active antagonistic assertion of a legal right, on the one hand, and a denial prosecuted under the RH Law for vague violations thereof, particularly
thereof, on the other; that is, it must concern a real, tangible and not merely public health officers who are threatened to be dismissed from the service
a theoretical question or issue. There ought to be an actual and substantial with forfeiture of retirement and other benefits. They must, at least, be
controversy admitting of specific relief through a decree conclusive in heard on the matter NOW.
nature, as distinguished from an opinion advising what the law would be
upon a hypothetical state of facts.100
Facial Challenge

Corollary to the requirement of an actual case or controversy is the The OSG also assails the propriety of the facial challenge lodged by the
requirement of ripeness.  A question is ripe for adjudication when the act
101
subject petitions, contending that the RH Law cannot be challenged "on its
being challenged has had a direct adverse effect on the individual face" as it is not a speech regulating measure. 105

challenging it. For a case to be considered ripe for adjudication, it is a

prerequisite that something has then been accomplished or performed by The Court is not persuaded.
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
In United States (US) constitutional law, a facial challenge, also known as a
a result of the challenged action. He must show that he has sustained or is
First Amendment Challenge, is one that is launched to assail the validity of
immediately in danger of sustaining some direct injury as a result of the act
statutes concerning not only protected speech, but also all other rights in
complained of 102

the First Amendment.  These include religious freedom, freedom of the

106

press, and the right of the people to peaceably assemble, and to petition
In The Province of North Cotabato v. The Government of the Republic of the Government for a redress of grievances.  After all, the fundamental
107

the Philippines,  where the constitutionality of an unimplemented

103
right to religious freedom, freedom of the press and peaceful assembly are
Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in but component rights of the right to one's freedom of expression, as they
question, it was argued that the Court has no authority to pass upon the are modes which one's thoughts are externalized.
issues raised as there was yet no concrete act performed that could
possibly violate the petitioners' and the intervenors' rights. Citing
In this jurisdiction, the application of doctrines originating from the U.S. has
precedents, the Court ruled that the fact of the law or act in question being
been generally maintained, albeit with some modifications. While this Court
not yet effective does not negate ripeness. Concrete acts under a law are
has withheld the application of facial challenges to strictly penal statues,  it
108

not necessary to render the controversy ripe. Even a singular violation of

has expanded its scope to cover statutes not only regulating free speech,
the Constitution and/or the law is enough to awaken judicial duty.
but also those involving religious freedom, and other fundamental
rights.  The underlying reason for this modification is simple. For unlike its
109

counterpart in the U.S., this Court, under its expanded jurisdiction, is

107
mandated by the Fundamental Law not only to settle actual controversies constitutionality of the statute grounded on a violation of the rights of third
involving rights which are legally demandable and enforceable, but also to persons not before the court. This rule is also known as the prohibition
determine whether or not there has been a grave abuse of discretion against third-party standing. 115

amounting to lack or excess of jurisdiction on the part of any branch or

instrumentality of the Government.  Verily, the framers of Our Constitution
110
Transcendental Importance
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution. Notwithstanding, the Court leans on the doctrine that "the rule on standing
is a matter of procedure, hence, can be relaxed for non-traditional plaintiffs
Consequently, considering that the foregoing petitions have seriously like ordinary citizens, taxpayers, and legislators when the public interest so
alleged that the constitutional human rights to life, speech and religion and requires, such as when the matter is of transcendental importance, of
other fundamental rights mentioned above have been violated by the overreaching significance to society, or of paramount public interest." 116

assailed legislation, the Court has authority to take cognizance of these

kindred petitions and to determine if the RH Law can indeed pass In Coconut Oil Refiners Association, Inc. v. Torres,  the Court held that in
117

constitutional scrutiny. To dismiss these petitions on the simple expedient cases of paramount importance where serious constitutional questions are
that there exist no actual case or controversy, would diminish this Court as involved, the standing requirement may be relaxed and a suit may be
a reactive branch of government, acting only when the Fundamental Law allowed to prosper even where there is no direct injury to the party claiming
has been transgressed, to the detriment of the Filipino people. the right of judicial review. In the first Emergency Powers Cases,  ordinary
118

citizens and taxpayers were allowed to question the constitutionality of

Locus Standi several executive orders although they had only an indirect and general
interest shared in common with the public.
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by With these said, even if the constitutionality of the RH Law may not be
the petitioners cannot prosper as the assailed law has yet to be enforced assailed through an "as-applied challenge, still, the Court has time and
and applied against them,  and the government has yet to distribute
111
again acted liberally on the locus s tandi requirement. It has accorded
reproductive health devices that are abortive. 112
certain individuals standing to sue, not otherwise directly injured or with
material interest affected by a Government act, provided a constitutional
The petitioners, for their part, invariably invoke the "transcendental issue of transcendental importance is invoked. The rule on locus standi is,
importance" doctrine and their status as citizens and taxpayers in after all, a procedural technicality which the Court has, on more than one
establishing the requisite locus standi. occasion, waived or relaxed, thus allowing non-traditional plaintiffs, such as
concerned citizens, taxpayers, voters or legislators, to sue in the public
Locus standi or legal standing is defined as a personal and substantial interest, albeit they may not have been directly injured by the operation of a
interest in a case such that the party has sustained or will sustain direct law or any other government act. As held in Jaworski v. PAGCOR: 119

injury as a result of the challenged governmental act.  It requires a

113

personal stake in the outcome of the controversy as to assure the concrete Granting arguendo that the present action cannot be properly treated as a
adverseness which sharpens the presentation of issues upon which the petition for prohibition, the transcendental importance of the issues involved
court so largely depends for illumination of difficult constitutional in this case warrants that we set aside the technical defects and take
questions.114
primary jurisdiction over the petition at bar. One cannot deny that the issues
raised herein have potentially pervasive influence on the social and moral
In relation to locus standi, the "as applied challenge" embodies the rule that well being of this nation, specially the youth; hence, their proper and just
one can challenge the constitutionality of a statute only if he asserts a determination is an imperative need. This is in accordance with the well-
violation of his own rights. The rule prohibits one from challenging the entrenched principle that rules of procedure are not inflexible tools designed

108
to hinder or delay, but to facilitate and promote the administration of justice. To belittle the challenge, the respondents insist that the RH Law is not a
Their strict and rigid application, which would result in technicalities that birth or population control measure,  and that the concepts of "responsible
124

tend to frustrate, rather than promote substantial justice, must always be parenthood" and "reproductive health" are both interrelated as they are
eschewed. (Emphasis supplied) inseparable. 125

In view of the seriousness, novelty and weight as precedents, not only to Despite efforts to push the RH Law as a reproductive health law, the Court
the public, but also to the bench and bar, the issues raised must be sees it as principally a population control measure. The corpus of the RH
resolved for the guidance of all. After all, the RH Law drastically affects the Law is geared towards the reduction of the country's population. While it
constitutional provisions on the right to life and health, the freedom of claims to save lives and keep our women and children healthy, it also
religion and expression and other constitutional rights. Mindful of all these promotes pregnancy-preventing products. As stated earlier, the RH Law
and the fact that the issues of contraception and reproductive health have emphasizes the need to provide Filipinos, especially the poor and the
already caused deep division among a broad spectrum of society, the Court marginalized, with access to information on the full range of modem family
entertains no doubt that the petitions raise issues of transcendental planning products and methods. These family planning methods, natural or
importance warranting immediate court adjudication. More importantly, modem, however, are clearly geared towards the prevention of pregnancy.
considering that it is the right to life of the mother and the unborn which is
primarily at issue, the Court need not wait for a life to be taken away before For said reason, the manifest underlying objective of the RH Law is to
taking action. reduce the number of births in the country.

The Court cannot, and should not, exercise judicial restraint at this time It cannot be denied that the measure also seeks to provide pre-natal and
when rights enshrined in the Constitution are being imperilled to be violated. post-natal care as well. A large portion of the law, however, covers the
To do so, when the life of either the mother or her child is at stake, would dissemination of information and provisions on access to medically-safe,
lead to irreparable consequences. non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to
Declaratory Relief prevent pregnancy.

The respondents also assail the petitions because they are essentially The Court, thus, agrees with the petitioners' contention that the whole idea
petitions for declaratory relief over which the Court has no original of contraception pervades the entire RH Law. It is, in fact, the central idea
jurisdiction.  Suffice it to state that most of the petitions are praying for
120
of the RH Law.  Indeed, remove the provisions that refer to contraception
126

injunctive reliefs and so the Court would just consider them as petitions for or are related to it and the RH Law loses its very foundation.  As earlier
127

prohibition under Rule 65, over which it has original jurisdiction. Where the explained, "the other positive provisions such as skilled birth attendance,
case has far-reaching implications and prays for injunctive reliefs, the Court maternal care including pre-and post-natal services, prevention and
may consider them as petitions for prohibition under Rule 65. 121
management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women." 128

One Subject-One Title

Be that as it may, the RH Law does not violate the one subject/one bill rule.
The petitioners also question the constitutionality of the RH Law, claiming In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
that it violates Section 26(1 ), Article VI of the Constitution,  prescribing the
122 Francis Joseph G Escudero, it was written:
one subject-one title rule. According to them, being one for reproductive
health with responsible parenthood, the assailed legislation violates the It is well-settled that the "one title-one subject" rule does not require the
constitutional standards of due process by concealing its true intent - to act Congress to employ in the title of the enactment language of such precision
as a population control measure. 123
as to mirror, fully index or catalogue all the contents and the minute details
109
therein. The rule is sufficiently complied with if the title is comprehensive The petitioners assail the RH Law because it violates the right to life and
enough as to include the general object which the statute seeks to effect, health of the unborn child under Section 12, Article II of the Constitution.
and where, as here, the persons interested are informed of the nature, The assailed legislation allowing access to abortifacients/abortives
scope and consequences of the proposed law and its operation. Moreover, effectively sanctions abortion.130

this Court has invariably adopted a liberal rather than technical construction
of the rule "so as not to cripple or impede legislation." [Emphases supplied] According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the
In this case, a textual analysis of the various provisions of the law shows fertilized ovum to reach and be implanted in the mother's womb as an
that both "reproductive health" and "responsible parenthood" are abortifacient; thus, sanctioning contraceptives that take effect after
interrelated and germane to the overriding objective to control the fertilization and prior to implantation, contrary to the intent of the Framers of
population growth. As expressed in the first paragraph of Section 2 of the the Constitution to afford protection to the fertilized ovum which already has
RH Law: life.

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the They argue that even if Section 9 of the RH Law allows only "non-
human rights of all persons including their right to equality and abortifacient" hormonal contraceptives, intrauterine devices, injectables and
nondiscrimination of these rights, the right to sustainable human other safe, legal, non-abortifacient and effective family planning products
development, the right to health which includes reproductive health, the and supplies, medical research shows that contraceptives use results in
right to education and information, and the right to choose and make abortion as they operate to kill the fertilized ovum which already has life. 131

decisions for themselves in accordance with their religious convictions,

ethics, cultural beliefs, and the demands of responsible parenthood. As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
The one subject/one title rule expresses the principle that the title of a law natural law and is an affront to the dignity of man. 132

must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its Finally, it is contended that since Section 9 of the RH Law requires the
contents, or which is misleading, either in referring to or indicating one Food and Drug Administration (FDA) to certify that the product or supply is
subject where another or different one is really embraced in the act, or in not to be used as an abortifacient, the assailed legislation effectively
omitting any expression or indication of the real subject or scope of the confirms that abortifacients are not prohibited. Also considering that the
act." 129
FDA is not the agency that will actually supervise or administer the use of
these products and supplies to prospective patients, there is no way it can
Considering the close intimacy between "reproductive health" and truthfully make a certification that it shall not be used for abortifacient
"responsible parenthood" which bears to the attainment of the goal of purposes. 133

achieving "sustainable human development" as stated under its terms, the

Court finds no reason to believe that Congress intentionally sought to Position of the Respondents
deceive the public as to the contents of the assailed legislation.
For their part, the defenders of the RH Law point out that the intent of the
II - SUBSTANTIVE ISSUES: Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said
1-The Right to Life law emphasizes that only "non-abortifacient" reproductive health care
Position of the Petitioners services, methods, devices products and supplies shall be made accessible
to the public. 134

110
According to the OSG, Congress has made a legislative determination that Through the years, however, the use of contraceptives and other family
contraceptives are not abortifacients by enacting the RH Law. As the RH planning methods evolved from being a component of demographic
Law was enacted with due consideration to various studies and management, to one centered on the promotion of public health,
consultations with the World Health Organization (WHO) and other experts particularly, reproductive health.140

in the medical field, it is asserted that the Court afford deference and
respect to such a determination and pass judgment only when a particular This has resulted in the enactment of various measures promoting women's
drug or device is later on determined as an abortive. 135
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
For his part, respondent Lagman argues that the constitutional protection of Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta
one's right to life is not violated considering that various studies of the WHO of Women" were legislated. Notwithstanding this paradigm shift, the
show that life begins from the implantation of the fertilized ovum. Philippine national population program has always been grounded two
Consequently, he argues that the RH Law is constitutional since the law cornerstone principles: "principle of no-abortion" and the "principle of non-
specifically provides that only contraceptives that do not prevent the coercion."  As will be discussed later, these principles are not merely
141

implantation of the fertilized ovum are allowed. 136

grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
The Court's Position guarantee religious freedom.

It is a universally accepted principle that every human being enjoys the right When Life Begins*
to life.
137

Majority of the Members of the Court are of the position that the question of
Even if not formally established, the right to life, being grounded on natural when life begins is a scientific and medical issue that should not be
law, is inherent and, therefore, not a creation of, or dependent upon a decided, at this stage, without proper hearing and evidence. During the
particular law, custom, or belief. It precedes and transcends any authority or deliberation, however, it was agreed upon that the individual members of
the laws of men. the Court could express their own views on this matter.

In this jurisdiction, the right to life is given more than ample protection. In this regard, the ponente, is of the strong view that life begins at
Section 1, Article III of the Constitution provides: fertilization.

Section 1. No person shall be deprived of life, liberty, or property without In answering the question of when life begins, focus should be made on the
due process of law, nor shall any person be denied the equal protection of particular phrase of Section 12 which reads:
the laws.
Section 12. The State recognizes the sanctity of family life and shall protect
As expounded earlier, the use of contraceptives and family planning and strengthen the family as a basic autonomous social institution. It shall
methods in the Philippines is not of recent vintage. From the enactment of equally protect the life of the mother and the life of the unborn from
R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or conception. The natural and primary right and duty of parents in the rearing
Distribution of Contraceptive Drugs and Devices "on June 18, 1966, of the youth for civic efficiency and the development of moral character
prescribing rules on contraceptive drugs and devices which prevent shall receive the support of the Government.
fertilization,  to the promotion of male vasectomy and tubal ligation,  and
138 139

the ratification of numerous international agreements, the country has long Textually, the Constitution affords protection to the unborn from conception.
recognized the need to promote population control through the use of This is undisputable because before conception, there is no unborn to
contraceptives in order to achieve long-term economic development. speak of. For said reason, it is no surprise that the Constitution is mute as
111
to any proscription prior to conception or when life begins. The problem has Webster's Third New International Dictionary describes it as the act of
arisen because, amazingly, there are quarters who have conveniently becoming pregnant, formation of a viable zygote; the fertilization that results
disregarded the scientific fact that conception is reckoned from fertilization. in a new entity capable of developing into a being like its parents. 145

They are waving the view that life begins at implantation. Hence, the issue
of when life begins. Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in
In a nutshell, those opposing the RH Law contend that conception is human life capable of survival and maturation under normal conditions. 146

synonymous with "fertilization" of the female ovum by the male sperm.  On142

the other side of the spectrum are those who assert that conception refers Even in jurisprudence, an unborn child has already a legal personality. In
to the "implantation" of the fertilized ovum in the uterus.
143
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,  it was written:
147

Plain and Legal Meaning

Life is not synonymous with civil personality. One need not acquire civil
It is a canon in statutory construction that the words of the Constitution personality first before he/she could die. Even a child inside the womb
should be interpreted in their plain and ordinary meaning. As held in the already has life. No less than the Constitution recognizes the life of the
recent case of Chavez v. Judicial Bar Council: 144
unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even
One of the primary and basic rules in statutory construction is that where prior to the child being delivered, qualifies as death. [Emphases in the
the words of a statute are clear, plain, and free from ambiguity, it must be original]
given its literal meaning and applied without attempted interpretation. It is a
well-settled principle of constitutional construction that the language In Gonzales v. Carhart,  Justice Anthony Kennedy, writing for the US
148

employed in the Constitution must be given their ordinary meaning except Supreme Court, said that the State "has respect for human life at all stages
where technical terms are employed. As much as possible, the words of the in the pregnancy" and "a legitimate and substantial interest in preserving
Constitution should be understood in the sense they have in common use. and promoting fetal life." Invariably, in the decision, the fetus was referred
What it says according to the text of the provision to be construed compels to, or cited, as a baby or a child. 149

acceptance and negates the power of the courts to alter it, based on the
postulate that the framers and the people mean what they say. Verba legis Intent of the Framers
non est recedendum - from the words of a statute there should be no
departure. Records of the Constitutional Convention also shed light on the intention of
the Framers regarding the term "conception" used in Section 12, Article II of
The raison d' etre for the rule is essentially two-fold: First, because it is the Constitution. From their deliberations, it clearly refers to the moment of
assumed that the words in which constitutional provisions are couched "fertilization." The records reflect the following:
express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
"The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception."
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
When is the moment of conception?
sources, means that life begins at fertilization.

112
 xxx Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum
is fertilized by the sperm that there is human life. x x x.150
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the
purpose of writing a Constitution, without specifying "from the moment of
xxx conception."

As to why conception is reckoned from fertilization and, as such, the Mr. Davide: I would not subscribe to that particular view because according
beginning of human life, it was explained: to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six
Mr. Villegas: I propose to review this issue in a biological manner. The first months after fertilization; and that would really be very, very, dangerous. It
question that needs to be answered is: Is the fertilized ovum alive? is now determined by science that life begins from the moment of
Biologically categorically says yes, the fertilized ovum is alive. First of all, conception. There can be no doubt about it. So we should not give any
like all living organisms, it takes in nutrients which it processes by itself. It doubt to Congress, too. 153

begins doing this upon fertilization. Secondly, as it takes in these nutrients,

it grows from within. Thirdly, it multiplies itself at a geometric rate in the Upon further inquiry, it was asked:
continuous process of cell division. All these processes are vital signs of
life. Therefore, there is no question that biologically the fertilized ovum has Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that
life. point. Actually, that is one of the questions I was going to raise during the
period of interpellations but it has been expressed already. The provision,
The second question: Is it human? Genetics gives an equally categorical as proposed right now states:
"yes." At the moment of conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the ovum combine with 23 The State shall equally protect the life of the mother and the life of the
chromosomes of the sperm to form a total of 46 chromosomes. A unborn from the moment of conception.
chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human. When it speaks of "from the moment of conception," does this mean when
the egg meets the sperm?
Since these questions have been answered affirmatively, we must conclude
that if the fertilized ovum is both alive and human, then, as night follows Mr. Villegas: Yes, the ovum is fertilized by the sperm.
day, it must be human life. Its nature is human. 151

Mr. Gascon: Therefore that does not leave to Congress the right to
Why the Constitution used the phrase "from the moment of conception" and determine whether certain contraceptives that we know today are
not "from the moment of fertilization" was not because of doubt when abortifacient or not because it is a fact that some of the so-called
human life begins, but rather, because: contraceptives deter the rooting of the ovum in the uterus. If fertilization has
already occurred, the next process is for the fertilized ovum to travel
Mr. Tingson: x x x x the phrase from the moment of conception" was towards the uterus and to take root. What happens with some
described by us here before with the scientific phrase "fertilized ovum" may contraceptives is that they stop the opportunity for the fertilized ovum to
be beyond the comprehension of some people; we want to use the simpler reach the uterus. Therefore, if we take the provision as it is proposed, these
phrase "from the moment of conception." 152
so called contraceptives should be banned.

113
Mr. Villegas: Yes, if that physical fact is established, then that is what is afternoon when I interjected in the interpellation of Commissioner
called abortifacient and, therefore, would be unconstitutional and should be Regalado. I would like to ask that question again for a categorical answer.
banned under this provision.
I mentioned that if we institutionalize the term "the life of the unborn from
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to the moment of conception" we are also actually saying "no," not "maybe," to
state whether or not these certain contraceptives are abortifacient. certain contraceptives which are already being encouraged at this point in
Scientifically and based on the provision as it is now proposed, they are time. Is that the sense of the committee or does it disagree with me?
already considered abortifacient. 154

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be

From the deliberations above-quoted, it is apparent that the Framers of the preventive. There is no unborn yet. That is yet unshaped.
Constitution emphasized that the State shall provide equal protection to
both the mother and the unborn child from the earliest opportunity of life, Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about
that is, upon fertilization or upon the union of the male sperm and the some contraceptives, such as the intra-uterine device which actually stops
female ovum. It is also apparent is that the Framers of the Constitution the egg which has already been fertilized from taking route to the uterus. So
intended that to prohibit Congress from enacting measures that would allow if we say "from the moment of conception," what really occurs is that some
it determine when life begins. of these contraceptives will have to be unconstitutionalized.

Equally apparent, however, is that the Framers of the Constitution did not Mr. Azcuna: Yes, to the extent that it is after the fertilization.
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a Mr. Gascon: Thank you, Mr. Presiding Officer. 156

constitutional provision on the right to life, recognized that the determination

of whether a contraceptive device is an abortifacient is a question of fact
The fact that not all contraceptives are prohibited by the 1987 Constitution
which should be left to the courts to decide on based on established
is even admitted by petitioners during the oral arguments. There it was
evidence. 155

conceded that tubal ligation, vasectomy, even condoms are not classified
as abortifacients. 157

From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
Atty. Noche:
contraceptives that actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible. Before the union of the eggs, egg and the sperm, there is no life yet.

As emphasized by the Framers of the Constitution: Justice Bersamin:

x x x           x x x          x x x There is no life.

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am Atty. Noche:

pro-life, to the point that I would like not only to protect the life of the
unborn, but also the lives of the millions of people in the world by fighting for So, there is no life to be protected.
a nuclear-free world. I would just like to be assured of the legal and
pragmatic implications of the term "protection of the life of the unborn from Justice Bersamin:
the moment of conception." I raised some of these implications this
114
To be protected. It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops." 160

Atty. Noche:
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),  used
161

Under Section 12, yes. by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the
Justice Bersamin: egg and the sperm resulting in the formation of a new individual, with a
unique genetic composition that dictates all developmental stages that
ensue.
So you have no objection to condoms?
Similarly, recent medical research on the matter also reveals that: "Human
Atty. Noche:
development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a
Not under Section 12, Article II. sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei
Justice Bersamin: (the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote,
Even if there is already information that condoms sometimes have porosity? is a large diploid cell that is the beginning, or primordium, of a human
being."162

Atty. Noche:
The authors of Human Embryology & Teratology  mirror the same position.
163

Well, yes, Your Honor, there are scientific findings to that effect, Your They wrote: "Although life is a continuous process, fertilization is a critical
Honor, but I am discussing here Section 12, Article II, Your Honor, yes. landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23
Justice Bersamin: chromosomes present in each pronucleus results in 46 chromosomes in the
zygote. Thus the diploid number is restored and the embryonic genome is
Alright. formed. The embryo now exists as a genetic unity."

Atty. Noche: In support of the RH Bill, The Philippine Medical Association came out with
a "Paper on the Reproductive Health Bill (Responsible Parenthood Bill)"
and therein concluded that:
And it's not, I have to admit it's not an abortifacient, Your Honor. 158

CONCLUSION
Medical Meaning
The PMA throws its full weight in supporting the RH Bill at the same time
That conception begins at fertilization is not bereft of medical foundation. that PMA maintains its strong position that fertilization is sacred because it
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception is at this stage that conception, and thus human life, begins. Human lives
as "the beginning of pregnancy usually taken to be the instant a are sacred from the moment of conception, and that destroying those new
spermatozoon enters an ovum and forms a viable zygote." 159
lives is never licit, no matter what the purported good outcome would be. In
terms of biology and human embryology, a human being begins
immediately at fertilization and after that, there is no point along the
115
continuous line of human embryogenesis where only a "potential" human fetus at the uterine wall. It would be provocative and further aggravate
being can be posited. Any philosophical, legal, or political conclusion cannot religious-based divisiveness.
escape this objective scientific fact.
It would legally permit what the Constitution proscribes - abortion and
The scientific evidence supports the conclusion that a zygote is a human abortifacients.
organism and that the life of a new human being commences at a
scientifically well defined "moment of conception." This conclusion is The RH Law and Abortion
objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human The clear and unequivocal intent of the Framers of the 1987 Constitution in
embryos. 164
protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that
Conclusion: The Moment of Conception is Reckoned from even the Court cannot interpret it otherwise. This intent of the Framers was
Fertilization captured in the record of the proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas, the principal proponent of
In all, whether it be taken from a plain meaning, or understood under the protection of the unborn from conception, explained:
medical parlance, and more importantly, following the intention of the
Framers of the Constitution, the undeniable conclusion is that a zygote is a The intention .. .is to make sure that there would be no pro-abortion laws
human organism and that the life of a new human being commences at a ever passed by Congress or any pro-abortion decision passed by the
scientifically well-defined moment of conception, that is, upon fertilization. Supreme Court. 169

For the above reasons, the Court cannot subscribe to the theory advocated A reading of the RH Law would show that it is in line with this intent and
by Hon. Lagman that life begins at implantation.  According to him,
165
actually proscribes abortion. While the Court has opted not to make any
"fertilization and conception are two distinct and successive stages in the determination, at this stage, when life begins, it finds that the RH Law itself
reproductive process. They are not identical and synonymous."  Citing a
166
clearly mandates that protection be afforded from the moment of
letter of the WHO, he wrote that "medical authorities confirm that the fertilization. As pointed out by Justice Carpio, the RH Law is replete with
implantation of the fertilized ovum is the commencement of conception and provisions that embody the policy of the law to protect to the fertilized ovum
it is only after implantation that pregnancy can be medically detected." 167
and that it should be afforded safe travel to the uterus for implantation. 170

This theory of implantation as the beginning of life is devoid of any legal or Moreover, the RH Law recognizes that abortion is a crime under Article 256
scientific mooring. It does not pertain to the beginning of life but to the of the Revised Penal Code, which penalizes the destruction or expulsion of
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - the fertilized ovum. Thus:
it is a living human being complete with DNA and 46
chromosomes.  Implantation has been conceptualized only for
168
1] xx x.
convenience by those who had population control in mind. To adopt it would
constitute textual infidelity not only to the RH Law but also to the
Section 4. Definition of Terms. - For the purpose of this Act, the following
Constitution.
terms shall be defined as follows:
Not surprisingly, even the OSG does not support this position.
xxx.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation of the
116
(q) Reproductive health care refers to the access to a full range of methods, Section 4. Definition of Terms - x x x x
facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also (a) Abortifacient refers to any drug or device that induces abortion or the
includes sexual health, the purpose of which is the enhancement of life and destruction of a fetus inside the mother's womb or the prevention of the
personal relations. The elements of reproductive health care include the fertilized ovum to reach and be implanted in the mother's womb upon
following: determination of the FDA.

xxx. As stated above, the RH Law mandates that protection must be afforded
from the moment of fertilization. By using the word " or," the RH Law
(3) Proscription of abortion and management of abortion complications; prohibits not only drugs or devices that prevent implantation, but also those
that induce abortion and those that induce the destruction of a fetus inside
xxx. the mother's womb. Thus, an abortifacient is any drug or device that either:

2] xx x. (a) Induces abortion; or

Section 4. x x x. (b) Induces the destruction of a fetus inside the mother's womb; or

(s) Reproductive health rights refers to the rights of individuals and couples, (c) Prevents the fertilized ovum to reach and be implanted in the
to decide freely and responsibly whether or not to have children; the mother's womb, upon determination of the FDA.
number, spacing and timing of their children; to make other decisions
concerning reproduction, free of discrimination, coercion and violence; to Contrary to the assertions made by the petitioners, the Court finds that the
have the information and means to do so; and to attain the highest standard RH Law, consistent with the Constitution, recognizes that the fertilized
of sexual health and reproductive health: Provided, however, That ovum already has life and that the State has a bounden duty to protect it.
reproductive health rights do not include abortion, and access to The conclusion becomes clear because the RH Law, first, prohibits any
abortifacients. drug or device that induces abortion (first kind), which, as discussed
exhaustively above, refers to that which induces the killing or the
3] xx x. destruction of the fertilized ovum, and, second, prohibits any drug or device
the fertilized ovum to reach and be implanted in the mother's womb (third
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, kind).
any law, presidential decree or issuance, executive order, letter of
instruction, administrative order, rule or regulation contrary to or is By expressly declaring that any drug or device that prevents the fertilized
inconsistent with the provisions of this Act including Republic Act No. 7392, ovum to reach and be implanted in the mother's womb is an abortifacient
otherwise known as the Midwifery Act, is hereby repealed, modified or (third kind), the RH Law does not intend to mean at all that life only begins
amended accordingly. only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners
The RH Law and Abortifacients likewise suggest. Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches
In carrying out its declared policy, the RH Law is consistent in prohibiting
and implants in the mother's womb. After all, if life is only recognized and
abortifacients. To be clear, Section 4(a) of the RH Law defines an
afforded protection from the moment the fertilized ovum implants - there is
abortifacient as:

117
nothing to prevent any drug or device from killing or destroying the fertilized At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
ovum prior to implantation. gravely abused their office when they redefined the meaning of
abortifacient. The RH Law defines "abortifacient" as follows:
From the foregoing, the Court finds that inasmuch as it affords protection to
the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is SEC. 4. Definition of Terms. - For the purpose of this Act, the following
the Court's position that life begins at fertilization, not at implantation. When terms shall be defined as follows:
a fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started (a) Abortifacient refers to any drug or device that induces abortion or the
earlier. And as defined by the RH Law, any drug or device that induces destruction of a fetus inside the mother's womb or the prevention of the
abortion, that is, which kills or destroys the fertilized ovum or prevents the fertilized ovum to reach and be implanted in the mother's womb upon
fertilized ovum to reach and be implanted in the mother's womb, is an determination of the FDA.
abortifacient.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Proviso Under Section 9 of the RH Law
Section 3.01 For purposes of these Rules, the terms shall be defined as
This notwithstanding, the Court finds that the proviso under Section 9 of the follows:
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made a) Abortifacient refers to any drug or device that primarily induces abortion
available on the condition that it is not to be used as an abortifacient" as or the destruction of a fetus inside the mother's womb or the prevention of
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that the fertilized ovum to reach and be implanted in the mother's womb upon
a drug or device will not all be used as an abortifacient, since the agency determination of the Food and Drug Administration (FDA). [Emphasis
cannot be present in every instance when the contraceptive product or supplied]
supply will be used. 171

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

Pursuant to its declared policy of providing access only to safe, legal and
non-abortifacient contraceptives, however, the Court finds that the proviso
j) Contraceptive refers to any safe, legal, effective and scientifically proven
of Section 9, as worded, should bend to the legislative intent and mean that
modern family planning method, device, or health product, whether natural
"any product or supply included or to be included in the EDL must have a
or artificial, that prevents pregnancy but does not primarily destroy a
certification from the FDA that said product and supply is made available on
fertilized ovum or prevent a fertilized ovum from being implanted in the
the condition that it cannot be used as abortifacient." Such a construction is
mother's womb in doses of its approved indication as determined by the
consistent with the proviso under the second paragraph of the same section
Food and Drug Administration (FDA).
that provides:
The above-mentioned section of the RH-IRR allows "contraceptives" and
Provided, further, That the foregoing offices shall not purchase or acquire
recognizes as "abortifacient" only those that primarily induce abortion or the
by any means emergency contraceptive pills, postcoital pills, abortifacients
destruction of a fetus inside the mother's womb or the prevention of the
that will be used for such purpose and their other forms or equivalent.
fertilized ovum to reach and be implanted in the mother's womb. 172

Abortifacients under the RH-IRR

This cannot be done.

118
In this regard, the observations of Justice Brion and Justice Del Castillo are To repeat and emphasize, in all cases, the "principle of no abortion"
well taken. As they pointed out, with the insertion of the word "primarily," embodied in the constitutional protection of life must be upheld.
Section 3.0l(a) and G) of the RH-IRR  must be struck down for being ultra
173

vires. 2-The Right to Health

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) The petitioners claim that the RH Law violates the right to health because it
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH requires the inclusion of hormonal contraceptives, intrauterine devices,
Law and should, therefore, be declared invalid. There is danger that the injectables and family products and supplies in the National Drug Formulary
insertion of the qualifier "primarily" will pave the way for the approval of and the inclusion of the same in the regular purchase of essential
contraceptives which may harm or destroy the life of the unborn from medicines and supplies of all national hospitals.  Citing various studies on
176

conception/fertilization in violation of Article II, Section 12 of the the matter, the petitioners posit that the risk of developing breast and
Constitution. With such qualification in the RH-IRR, it appears to insinuate cervical cancer is greatly increased in women who use oral contraceptives
that a contraceptive will only be considered as an "abortifacient" if its sole as compared to women who never use them. They point out that the risk is
known effect is abortion or, as pertinent here, the prevention of the decreased when the use of contraceptives is discontinued. Further, it is
implantation of the fertilized ovum. contended that the use of combined oral contraceptive pills is associated
with a threefold increased risk of venous thromboembolism, a twofold
For the same reason, this definition of "contraceptive" would permit the increased risk of ischematic stroke, and an indeterminate effect on risk of
approval of contraceptives which are actually abortifacients because of their myocardial infarction.  Given the definition of "reproductive health" and
177

fail-safe mechanism. 174

"sexual health" under Sections 4(p)  and (w)  of the RH Law, the
178 179

petitioners assert that the assailed legislation only seeks to ensure that
Also, as discussed earlier, Section 9 calls for the certification by the FDA women have pleasurable and satisfying sex lives. 180

that these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its The OSG, however, points out that Section 15, Article II of the Constitution
declared policy against abortion, the undeniable conclusion is that is not self-executory, it being a mere statement of the administration's
contraceptives to be included in the PNDFS and the EDL will not only be principle and policy. Even if it were self-executory, the OSG posits that
those contraceptives that do not have the primary action of causing abortion medical authorities refute the claim that contraceptive pose a danger to the
or the destruction of a fetus inside the mother's womb or the prevention of health of women. 181

the fertilized ovum to reach and be implanted in the mother's womb, but
also those that do not have the secondary action of acting the same way. The Court's Position

Indeed, consistent with the constitutional policy prohibiting abortion, and in A component to the right to life is the constitutional right to health. In this
line with the principle that laws should be construed in a manner that its regard, the Constitution is replete with provisions protecting and promoting
constitutionality is sustained, the RH Law and its implementing rules must the right to health. Section 15, Article II of the Constitution provides:
be consistent with each other in prohibiting abortion. Thus, the word "
primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. Section 15. The State shall protect and promote the right to health of the
To uphold the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit people and instill health consciousness among them.
only those contraceptives that have the primary effect of being an abortive
would effectively "open the floodgates to the approval of contraceptives
A portion of Article XIII also specifically provides for the States' duty to
which may harm or destroy the life of the unborn from
provide for the health of the people, viz:
conception/fertilization in violation of Article II, Section 12 of the
Constitution."175

HEALTH
119
Section 11. The State shall adopt an integrated and comprehensive meaningless by simply refusing to pass the needed implementing statute.
approach to health development which shall endeavor to make essential (Emphases supplied)
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged, This notwithstanding, it bears mentioning that the petitioners, particularly
sick, elderly, disabled, women, and children. The State shall endeavor to ALFI, do not question contraception and contraceptives per se.  In fact,
184

provide free medical care to paupers. ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729,
the sale and distribution of contraceptives are not prohibited when they are
Section 12. The State shall establish and maintain an effective food and dispensed by a prescription of a duly licensed by a physician - be
drug regulatory system and undertake appropriate health, manpower maintained. 185

development, and research, responsive to the country's health needs and

problems. The legislative intent in the enactment of the RH Law in this regard is to
leave intact the provisions of R.A. No. 4729. There is no intention at all to
Section 13. The State shall establish a special agency for disabled person do away with it. It is still a good law and its requirements are still in to be
for their rehabilitation, self-development, and self-reliance, and their complied with. Thus, the Court agrees with the observation of respondent
integration into the mainstream of society. Lagman that the effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and dispensation
Finally, Section 9, Article XVI provides: of contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate
Section 9. The State shall protect consumers from trade malpractices and safeguards to ensure the public that only contraceptives that are safe are
from substandard or hazardous products. made available to the public. As aptly explained by respondent Lagman:

Contrary to the respondent's notion, however, these provisions are self- D. Contraceptives cannot be
executing. Unless the provisions clearly express the contrary, the provisions dispensed and used without
of the Constitution should be considered self-executory. There is no need prescription
for legislation to implement these self-executing provisions.  In Manila
182

Prince Hotel v. GSIS,  it was stated:

183 108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
x x x Hence, unless it is expressly provided that a legislative act is
necessary to enforce a constitutional mandate, the presumption now is that 109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
all provisions of the constitution are self-executing. If the constitutional and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
provisions are treated as requiring legislation instead of self-executing, the No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
legislature would have the power to ignore and practically nullify the Standards of Pharmaceutical Education in the Philippines and for Other
mandate of the fundamental law. This can be cataclysmic. That is why the Purposes" are not repealed by the RH Law and the provisions of said Acts
prevailing view is, as it has always been, that – are not inconsistent with the RH Law.

... in case of doubt, the Constitution should be considered self-executing 110. Consequently, the sale, distribution and dispensation of contraceptive
rather than non-self-executing. . . . Unless the contrary is clearly intended, drugs and devices are particularly governed by RA No. 4729 which
the provisions of the Constitution should be considered self-executing, as a provides in full:
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to "Section 1. It shall be unlawful for any person, partnership, or corporation,
the will of the lawmaking body, which could make them entirely to sell, dispense or otherwise distribute whether for or without
120
consideration, any contraceptive drug or device, unless such sale, In Re: Section 10 of the RH Law:
dispensation or distribution is by a duly licensed drug store or
pharmaceutical company and with the prescription of a qualified medical The foregoing safeguards should be read in connection with Section 10 of
practitioner. the RH Law which provides:

"Sec. 2 . For the purpose of this Act: SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion planning supplies for the whole country. The DOH shall coordinate with all
which is used exclusively for the purpose of preventing fertilization appropriate local government bodies to plan and implement this
of the female ovum: and procurement and distribution program. The supply and budget allotments
shall be based on, among others, the current levels and projections of the
"(b) "Contraceptive device" is any instrument, device, material, or following:
agent introduced into the female reproductive system for the
primary purpose of preventing conception. (a) Number of women of reproductive age and couples who want to
space or limit their children;
"Sec. 3 Any person, partnership, or corporation, violating the provisions of
this Act shall be punished with a fine of not more than five hundred pesos or (b) Contraceptive prevalence rate, by type of method used; and
an imprisonment of not less than six months or more than one year or both
in the discretion of the Court. (c) Cost of family planning supplies.

"This Act shall take effect upon its approval. Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
"Approved: June 18, 1966" guidelines of the DOH.

111. Of the same import, but in a general manner, Section 25 of RA No. Thus, in the distribution by the DOH of contraceptive drugs and devices, it
5921 provides: must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No licensed drug store or pharmaceutical company and that the actual
medicine, pharmaceutical, or drug of whatever nature and kind or device dispensation of these contraceptive drugs and devices will done following a
shall be compounded, dispensed, sold or resold, or otherwise be made prescription of a qualified medical practitioner. The distribution of
available to the consuming public except through a prescription drugstore or contraceptive drugs and devices must not be indiscriminately done. The
hospital pharmacy, duly established in accordance with the provisions of public health must be protected by all possible means. As pointed out by
this Act. Justice De Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may be
112. With all of the foregoing safeguards, as provided for in the RH Law held accountable for any injury, illness or loss of life resulting from or
and other relevant statutes, the pretension of the petitioners that the RH incidental to their use.
187

Law will lead to the unmitigated proliferation of contraceptives, whether

harmful or not, is completely unwarranted and baseless.  [Emphases in the
186 At any rate, it bears pointing out that not a single contraceptive has yet
Original. Underlining supplied.] been submitted to the FDA pursuant to the RH Law. It behooves the Court
to await its determination which drugs or devices are declared by the FDA
as safe, it being the agency tasked to ensure that food and medicines
121
available to the public are safe for public consumption. Consequently, the "contraception is gravely opposed to marital chastity, it is contrary to the
Court finds that, at this point, the attack on the RH Law on this ground is good of the transmission of life, and to the reciprocal self-giving of the
premature. Indeed, the various kinds of contraceptives must first be spouses; it harms true love and denies the sovereign rule of God in the
measured up to the constitutional yardstick as expounded herein, to be transmission of Human life." 188

determined as the case presents itself.

The petitioners question the State-sponsored procurement of
At this point, the Court is of the strong view that Congress cannot legislate contraceptives, arguing that the expenditure of their taxes on contraceptives
that hormonal contraceptives and intra-uterine devices are safe and non- violates the guarantee of religious freedom since contraceptives contravene
abortifacient. The first sentence of Section 9 that ordains their inclusion by their religious beliefs.
189

the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and 2. On Religious Accommodation and
approved by the FDA. The FDA, not Congress, has the expertise to The Duty to Refer
determine whether a particular hormonal contraceptive or intrauterine
device is safe and non-abortifacient. The provision of the third sentence Petitioners Imbong and Luat note that while the RH Law attempts to
concerning the requirements for the inclusion or removal of a particular address religious sentiments by making provisions for a conscientious
family planning supply from the EDL supports this construction. objector, the constitutional guarantee is nonetheless violated because the
law also imposes upon the conscientious objector the duty to refer the
Stated differently, the provision in Section 9 covering the inclusion of patient seeking reproductive health services to another medical practitioner
hormonal contraceptives, intra-uterine devices, injectables, and other safe, who would be able to provide for the patient's needs. For the petitioners,
legal, non-abortifacient and effective family planning products and supplies this amounts to requiring the conscientious objector to cooperate with the
by the National Drug Formulary in the EDL is not mandatory. There must very thing he refuses to do without violating his/her religious beliefs. 190

first be a determination by the FDA that they are in fact safe, legal, non-
abortifacient and effective family planning products and supplies. There can They further argue that even if the conscientious objector's duty to refer is
be no predetermination by Congress that the gamut of contraceptives are recognized, the recognition is unduly limited, because although it allows a
"safe, legal, non-abortifacient and effective" without the proper scientific conscientious objector in Section 23 (a)(3) the option to refer a patient
examination. seeking reproductive health services and information - no escape is
afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against
3 -Freedom of Religion a patient seeking reproductive health procedures. They claim that the right
and the Right to Free Speech of other individuals to conscientiously object, such as: a) those working in
public health facilities referred to in Section 7; b) public officers involved in
Position of the Petitioners: the implementation of the law referred to in Section 23(b ); and c) teachers
in public schools referred to in Section 14 of the RH Law, are also not
1. On Contraception recognize. 191

While contraceptives and procedures like vasectomy and tubal ligation are Petitioner Echavez and the other medical practitioners meanwhile, contend
not covered by the constitutional proscription, there are those who, because that the requirement to refer the matter to another health care service
of their religious education and background, sincerely believe that provider is still considered a compulsion on those objecting healthcare
contraceptives, whether abortifacient or not, are evil. Some of these are service providers. They add that compelling them to do the act against their
medical practitioners who essentially claim that their beliefs prohibit not only will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the use of contraceptives but also the willing participation and cooperation the law are too secular that they tend to disregard the religion of Filipinos.
in all things dealing with contraceptive use. Petitioner PAX explained that Authorizing the use of contraceptives with abortive effects, mandatory sex

122
education, mandatory pro-bono reproductive health services to indigents what the law only prohibits are those acts or practices, which deprive others
encroach upon the religious freedom of those upon whom they are of their right to reproductive health.  They assert that the assailed law only
198

required.192
seeks to guarantee informed choice, which is an assurance that no one will
be compelled to violate his religion against his free will.
199

Petitioner CFC also argues that the requirement for a conscientious

objector to refer the person seeking reproductive health care services to The respondents add that by asserting that only natural family planning
another provider infringes on one's freedom of religion as it forces the should be allowed, the petitioners are effectively going against the
objector to become an unwilling participant in the commission of a serious constitutional right to religious freedom, the same right they invoked to
sin under Catholic teachings. While the right to act on one's belief may be assail the constitutionality of the RH Law.  In other words, by seeking the
200

regulated by the State, the acts prohibited by the RH Law are passive acts declaration that the RH Law is unconstitutional, the petitioners are asking
which produce neither harm nor injury to the public. 193
that the Court recognize only the Catholic Church's sanctioned natural
family planning methods and impose this on the entire citizenry. 201

Petitioner CFC adds that the RH Law does not show compelling state
interest to justify regulation of religious freedom because it mentions no With respect to the duty to refer, the respondents insist that the same does
emergency, risk or threat that endangers state interests. It does not explain not violate the constitutional guarantee of religious freedom, it being a
how the rights of the people (to equality, non-discrimination of rights, carefully balanced compromise between the interests of the religious
sustainable human development, health, education, information, choice and objector, on one hand, who is allowed to keep silent but is required to refer
to make decisions according to religious convictions, ethics, cultural beliefs -and that of the citizen who needs access to information and who has the
and the demands of responsible parenthood) are being threatened or are right to expect that the health care professional in front of her will act
not being met as to justify the impairment of religious freedom.194
professionally. For the respondents, the concession given by the State
under Section 7 and 23(a)(3) is sufficient accommodation to the right to
Finally, the petitioners also question Section 15 of the RH Law requiring freely exercise one's religion without unnecessarily infringing on the rights
would-be couples to attend family planning and responsible parenthood of others.
202

seminars and to obtain a certificate of compliance. They claim that the

provision forces individuals to participate in the implementation of the RH Whatever burden is placed on the petitioner's religious freedom is minimal
Law even if it contravenes their religious beliefs.  As the assailed law
195
as the duty to refer is limited in duration, location and impact.
203

dangles the threat of penalty of fine and/or imprisonment in case of non-

compliance with its provisions, the petitioners claim that the RH Law forcing Regarding mandatory family planning seminars under Section 15 , the
them to provide, support and facilitate access and information to respondents claim that it is a reasonable regulation providing an opportunity
contraception against their beliefs must be struck down as it runs afoul to for would-be couples to have access to information regarding parenthood,
the constitutional guarantee of religious freedom. family planning, breastfeeding and infant nutrition. It is argued that those
who object to any information received on account of their attendance in the
The Respondents' Positions required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with
The respondents, on the other hand, contend that the RH Law does not and retain the freedom to decide on matters of family life without
provide that a specific mode or type of contraceptives be used, be it natural intervention of the State.
204

or artificial. It neither imposes nor sanctions any religion or belief.  They

196

point out that the RH Law only seeks to serve the public interest by For their part, respondents De Venecia et al., dispute the notion that natural
providing accessible, effective and quality reproductive health services to family planning is the only method acceptable to Catholics and the Catholic
ensure maternal and child health, in line with the State's duty to bring to hierarchy. Citing various studies and surveys on the matter, they highlight
reality the social justice health guarantees of the Constitution,  and that
197
the changing stand of the Catholic Church on contraception throughout the

123
years and note the general acceptance of the benefits of contraceptives by Verily, the principle of separation of Church and State is based on mutual
its followers in planning their families. respect.  Generally, the State cannot meddle in the internal affairs of the
1âwphi1

church, much less question its faith and dogmas or dictate upon it. It cannot
The Church and The State favor one religion and discriminate against another. On the other hand, the
church cannot impose its beliefs and convictions on the State and the rest
At the outset, it cannot be denied that we all live in a heterogeneous of the citizenry. It cannot demand that the nation follow its beliefs, even if it
society. It is made up of people of diverse ethnic, cultural and religious sincerely believes that they are good for the country.
beliefs and backgrounds. History has shown us that our government, in law
and in practice, has allowed these various religious, cultural, social and Consistent with the principle that not any one religion should ever be
racial groups to thrive in a single society together. It has embraced minority preferred over another, the Constitution in the above-cited provision utilizes
groups and is tolerant towards all - the religious people of different sects the term "church" in its generic sense, which refers to a temple, a mosque,
and the non-believers. The undisputed fact is that our people generally an iglesia, or any other house of God which metaphorically symbolizes a
believe in a deity, whatever they conceived Him to be, and to whom they religious organization. Thus, the "Church" means the religious
call for guidance and enlightenment in crafting our fundamental law. Thus, congregations collectively.
the preamble of the present Constitution reads:
Balancing the benefits that religion affords and the need to provide an
We, the sovereign Filipino people, imploring the aid of Almighty God, in ample barrier to protect the State from the pursuit of its secular objectives,
order to build a just and humane society, and establish a Government that the Constitution lays down the following mandate in Article III, Section 5 and
shall embody our ideals and aspirations, promote the common good, Article VI, Section 29 (2), of the 1987 Constitution:
conserve and develop our patrimony, and secure to ourselves and our
posterity, the blessings of independence and democracy under the rule of Section. 5. No law shall be made respecting an establishment of religion, or
law and a regime of truth, justice, freedom, love, equality, and peace, do prohibiting the free exercise thereof. The free exercise and enjoyment of
ordain and promulgate this Constitution. religious profession and worship, without discrimination or preference, shall
forever be allowed. No religious test shall be required for the exercise of
The Filipino people in "imploring the aid of Almighty God " manifested their civil or political rights.
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it Section 29.
means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality.  Moreover, in
205
xxx.
recognition of the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and accommodating provisions No public money or property shall be appropriated, applied, paid, or
towards religions such as tax exemption of church property, salary of employed, directly or indirectly, for the use, benefit, or support of any sect,
religious officers in government institutions, and optional religious church, denomination, sectarian institution, or system of religion, or of any
instructions in public schools. priest, preacher, minister, other religious teacher, or dignitary as such,
except when such priest, preacher, minister, or dignitary is assigned to the
The Framers, however, felt the need to put up a strong barrier so that the armed forces, or to any penal institution, or government orphanage or
State would not encroach into the affairs of the church, and vice-versa. The leprosarium.
principle of separation of Church and State was, thus, enshrined in Article
II, Section 6 of the 1987 Constitution, viz: In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
Section 6. The separation of Church and State shall be inviolable.
124
The establishment clause "principally prohibits the State from sponsoring prohibits government from inhibiting religious belief with rewards for
any religion or favoring any religion as against other religions. It mandates a religious beliefs and practices. In other words, the two religion clauses were
strict neutrality in affairs among religious groups."  Essentially, it prohibits
206
intended to deny government the power to use either the carrot or the stick
the establishment of a state religion and the use of public resources for the to influence individual religious beliefs and practices.
210

support or prohibition of a religion.

Corollary to the guarantee of free exercise of one's religion is the principle
On the other hand, the basis of the free exercise clause is the respect for that the guarantee of religious freedom is comprised of two parts: the
the inviolability of the human conscience.  Under this part of religious
207
freedom to believe, and the freedom to act on one's belief. The first part is
freedom guarantee, the State is prohibited from unduly interfering with the absolute. As explained in Gerona v. Secretary of Education: 211

outside manifestations of one's belief and faith.  Explaining the concept of

208

religious freedom, the Court, in Victoriano v. Elizalde Rope Workers The realm of belief and creed is infinite and limitless bounded only by one's
Union  wrote:
209
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
The constitutional provisions not only prohibits legislation for the support of however strange, bizarre and unreasonable the same may appear to
any religious tenets or the modes of worship of any sect, thus forestalling others, even heretical when weighed in the scales of orthodoxy or doctrinal
compulsion by law of the acceptance of any creed or the practice of any standards. But between the freedom of belief and the exercise of said
form of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also belief, there is quite a stretch of road to travel.
212

assures the free exercise of one's chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the The second part however, is limited and subject to the awesome power of
Constitution are all designed to protect the broadest possible liberty of the State and can be enjoyed only with proper regard to the rights of others.
conscience, to allow each man to believe as his conscience directs, to It is "subject to regulation where the belief is translated into external acts
profess his beliefs, and to live as he believes he ought to live, consistent that affect the public welfare."
213

with the liberty of others and with the common good. Any legislation whose
effect or purpose is to impede the observance of one or all religions, or to Legislative Acts and the
discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner,
Free Exercise Clause
374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates
conduct by enacting, within its power, a general law which has for its
purpose and effect to advance the state's secular goals, the statute is valid Thus, in case of conflict between the free exercise clause and the State, the
despite its indirect burden on religious observance, unless the state can Court adheres to the doctrine of benevolent neutrality. This has been clearly
accomplish its purpose without imposing such burden. (Braunfeld v. Brown, decided by the Court in Estrada v. Escritor, (Escritor)  where it was stated
214

366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 "that benevolent neutrality-accommodation, whether mandatory or
U.S. 420, 444-5 and 449). permissive, is the spirit, intent and framework underlying the Philippine
Constitution."  In the same case, it was further explained that"
215

As expounded in Escritor,
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
The establishment and free exercise clauses were not designed to serve
promote the government's favored form of religion, but to allow individuals
contradictory purposes. They have a single goal-to promote freedom of
and groups to exercise their religion without hindrance. "The purpose of
individual religious beliefs and practices. In simplest terms, the free
accommodation is to remove a burden on, or facilitate the exercise of, a
exercise clause prohibits government from inhibiting religious beliefs with
person's or institution's religion."  "What is sought under the theory of
216

penalties for religious beliefs and practice, while the establishment clause
accommodation is not a declaration of unconstitutionality of a facially
125
neutral law, but an exemption from its application or its 'burdensome effect,' whole gamut of human conduct has different effects on the state's interests:
whether by the legislature or the courts." 217
some effects may be immediate and short-term while others delayed and
far-reaching. A test that would protect the interests of the state in preventing
In ascertaining the limits of the exercise of religious freedom, the compelling a substantive evil, whether immediate or delayed, is therefore necessary.
state interest test is proper.  Underlying the compelling state interest test is
218 However, not any interest of the state would suffice to prevail over the right
the notion that free exercise is a fundamental right and that laws burdening to religious freedom as this is a fundamental right that enjoys a preferred
it should be subject to strict scrutiny.  In Escritor, it was written:
219 position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an
Philippine jurisprudence articulates several tests to determine these limits. invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
Beginning with the first case on the Free Exercise Clause, American Bible The entire constitutional order of limited government is premised upon an
Society, the Court mentioned the "clear and present danger" test but did not acknowledgment of such higher sovereignty, thus the Filipinos implore the
employ it. Nevertheless, this test continued to be cited in subsequent cases "aid of Almighty God in order to build a just and humane society and
on religious liberty. The Gerona case then pronounced that the test of establish a government." As held in Sherbert, only the gravest abuses,
permissibility of religious freedom is whether it violates the established endangering paramount interests can limit this fundamental right. A mere
institutions of society and law. The Victoriano case mentioned the balancing of interests which balances a right with just a colorable state
"immediate and grave danger" test as well as the doctrine that a law of interest is therefore not appropriate. Instead, only a compelling interest of
general applicability may burden religious exercise provided the law is the the state can prevail over the fundamental right to religious liberty. The test
least restrictive means to accomplish the goal of the law. The case also requires the state to carry a heavy burden, a compelling one, for to do
used, albeit inappropriately, the "compelling state interest" test. After otherwise would allow the state to batter religion, especially the less
Victoriano , German went back to the Gerona rule. Ebralinag then powerful ones until they are destroyed. In determining which shall prevail
employed the "grave and immediate danger" test and overruled the Gerona between the state's interest and religious liberty, reasonableness shall be
test. The fairly recent case of Iglesia ni Cristo went back to the " clear and the guide. The "compelling state interest" serves the purpose of revering
present danger" test in the maiden case of A merican Bible Society. Not religious liberty while at the same time affording protection to the paramount
surprisingly, all the cases which employed the "clear and present danger" or interests of the state. This was the test used in Sherbert which involved
"grave and immediate danger" test involved, in one form or another, conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state
religious speech as this test is often used in cases on freedom of interest" test, by upholding the paramount interests of the state, seeks to
expression. On the other hand, the Gerona and German cases set the rule protect the very state, without which, religious liberty will not be preserved.
that religious freedom will not prevail over established institutions of society [Emphases in the original. Underlining supplied.]
and law. Gerona, however, which was the authority cited by German has
been overruled by Ebralinag which employed the "grave and immediate The Court's Position
danger" test . Victoriano was the only case that employed the "compelling
state interest" test, but as explained previously, the use of the test was In the case at bench, it is not within the province of the Court to determine
inappropriate to the facts of the case. whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint
The case at bar does not involve speech as in A merican Bible Society, or whether the same is right or wrong according to one's dogma or belief.
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and For the Court has declared that matters dealing with "faith, practice,
"grave and immediate danger" tests were appropriate as speech has easily doctrine, form of worship, ecclesiastical law, custom and rule of a church ...
discernible or immediate effects. The Gerona and German doctrine, aside are unquestionably ecclesiastical matters which are outside the province of
from having been overruled, is not congruent with the benevolent neutrality the civil courts."  The jurisdiction of the Court extends only to public and
220

approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the secular morality. Whatever pronouncement the Court makes in the case at
present case involves purely conduct arising from religious belief. The bench should be understood only in this realm where it has authority.
"compelling state interest" test is proper where conduct is involved for the Stated otherwise, while the Court stands without authority to rule on
126
ecclesiastical matters, as vanguard of the Constitution, it does have affordable to them and in accordance with existing laws, public morals and
authority to determine whether the RH Law contravenes the guarantee of their religious convictions. [Section 3CDJ
religious freedom.
5. The State shall respect individuals' preferences and choice of family
At first blush, it appears that the RH Law recognizes and respects religion planning methods that are in accordance with their religious convictions and
and religious beliefs and convictions. It is replete with assurances the no cultural beliefs, taking into consideration the State's obligations under
one can be compelled to violate the tenets of his religion or defy his various human rights instruments. [Section 3(h)]
religious convictions against his free will. Provisions in the RH Law
respecting religious freedom are the following: 6. Active participation by nongovernment organizations (NGOs) , women's
and people's organizations, civil society, faith-based organizations, the
1. The State recognizes and guarantees the human rights of all persons religious sector and communities is crucial to ensure that reproductive
including their right to equality and nondiscrimination of these rights, the health and population and development policies, plans, and programs will
right to sustainable human development, the right to health which includes address the priority needs of women, the poor, and the marginalized.
reproductive health, the right to education and information, and the right to [Section 3(i)]
choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of 7. Responsible parenthood refers to the will and ability of a parent to
responsible parenthood. [Section 2, Declaration of Policy] respond to the needs and aspirations of the family and children. It is
likewise a shared responsibility between parents to determine and achieve
2 . The State recognizes marriage as an inviolable social institution and the the desired number of children, spacing and timing of their children
foundation of the family which in turn is the foundation of the nation. according to their own family life aspirations, taking into account
Pursuant thereto, the State shall defend: psychological preparedness, health status, sociocultural and economic
concerns consistent with their religious convictions. [Section 4(v)]
(a) The right of spouses to found a family in accordance with their religious (Emphases supplied)
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy] While the Constitution prohibits abortion, laws were enacted allowing the
use of contraceptives. To some medical practitioners, however, the whole
3. The State shall promote and provide information and access, without idea of using contraceptives is an anathema. Consistent with the principle
bias, to all methods of family planning, including effective natural and of benevolent neutrality, their beliefs should be respected.
modern methods which have been proven medically safe, legal, non-
abortifacient, and effective in accordance with scientific and evidence- The Establishment Clause
based medical research standards such as those registered and approved
by the FDA for the poor and marginalized as identified through the NHTS- and Contraceptives
PR and other government measures of identifying marginalization:
Provided, That the State shall also provide funding support to promote In the same breath that the establishment clause restricts what the
modern natural methods of family planning, especially the Billings Ovulation government can do with religion, it also limits what religious sects can or
Method, consistent with the needs of acceptors and their religious cannot do with the government. They can neither cause the government to
convictions. [Section 3(e), Declaration of Policy] adopt their particular doctrines as policy for everyone, nor can they not
cause the government to restrict other groups. To do so, in simple terms,
4. The State shall promote programs that: (1) enable individuals and would cause the State to adhere to a particular religion and, thus,
couples to have the number of children they desire with due consideration establishing a state religion.
to the health, particularly of women, and the resources available and
127
Consequently, the petitioners are misguided in their supposition that the The Court is of the view that the obligation to refer imposed by the RH Law
State cannot enhance its population control program through the RH Law violates the religious belief and conviction of a conscientious objector. Once
simply because the promotion of contraceptive use is contrary to their the medical practitioner, against his will, refers a patient seeking information
religious beliefs. Indeed, the State is not precluded to pursue its legitimate on modem reproductive health products, services, procedures and
secular objectives without being dictated upon by the policies of any one methods, his conscience is immediately burdened as he has been
religion. One cannot refuse to pay his taxes simply because it will cloud his compelled to perform an act against his beliefs. As Commissioner Joaquin
conscience. The demarcation line between Church and State demands that A. Bernas (Commissioner Bernas) has written, "at the basis of the free
one render unto Caesar the things that are Caesar's and unto God the exercise clause is the respect for the inviolability of the human
things that are God's.221
conscience. 222

The Free Exercise Clause and the Duty to Refer Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
While the RH Law, in espousing state policy to promote reproductive health complicit in the performance of an act that they find morally repugnant or
manifestly respects diverse religious beliefs in line with the Non- offensive. They cannot, in conscience, do indirectly what they cannot do
Establishment Clause, the same conclusion cannot be reached with respect directly. One may not be the principal, but he is equally guilty if he abets the
to Sections 7, 23 and 24 thereof. The said provisions commonly mandate offensive act by indirect participation.
that a hospital or a medical practitioner to immediately refer a person
seeking health care and services under the law to another accessible Moreover, the guarantee of religious freedom is necessarily intertwined with
healthcare provider despite their conscientious objections based on the right to free speech, it being an externalization of one's thought and
religious or ethical beliefs. conscience. This in turn includes the right to be silent. With the
constitutional guarantee of religious freedom follows the protection that
In a situation where the free exercise of religion is allegedly burdened by should be afforded to individuals in communicating their beliefs to others as
government legislation or practice, the compelling state interest test in line well as the protection for simply being silent. The Bill of Rights guarantees
with the Court's espousal of the Doctrine of Benevolent Neutrality in the liberty of the individual to utter what is in his mind and the liberty not to
Escritor, finds application. In this case, the conscientious objector's claim to utter what is not in his mind.  While the RH Law seeks to provide freedom
223

religious freedom would warrant an exemption from obligations under the of choice through informed consent, freedom of choice guarantees the
RH Law, unless the government succeeds in demonstrating a more liberty of the religious conscience and prohibits any degree of compulsion
compelling state interest in the accomplishment of an important secular or burden, whether direct or indirect, in the practice of one's religion.
224

objective. Necessarily so, the plea of conscientious objectors for exemption

from the RH Law deserves no less than strict scrutiny. In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to
In applying the test, the first inquiry is whether a conscientious objector's provide access and information on reproductive health products, services,
right to religious freedom has been burdened. As in Escritor, there is no procedures and methods to enable the people to determine the timing,
doubt that an intense tug-of-war plagues a conscientious objector. One side number and spacing of the birth of their children, the Court is of the strong
coaxes him into obedience to the law and the abandonment of his religious view that the religious freedom of health providers, whether public or
beliefs, while the other entices him to a clean conscience yet under the pain private, should be accorded primacy. Accordingly, a conscientious objector
of penalty. The scenario is an illustration of the predicament of medical should be exempt from compliance with the mandates of the RH Law. If he
practitioners whose religious beliefs are incongruent with what the RH Law would be compelled to act contrary to his religious belief and conviction, it
promotes. would be violative of "the principle of non-coercion" enshrined in the
constitutional right to free exercise of religion.

128
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of disapproval. The punishment of a healthcare service provider, who fails
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow and/or refuses to refer a patient to another, or who declines to perform
and Clyde Health Board,  that the midwives claiming to be conscientious
225
reproductive health procedure on a patient because incompatible religious
objectors under the provisions of Scotland's Abortion Act of 1967, could not beliefs, is a clear inhibition of a constitutional guarantee which the Court
be required to delegate, supervise or support staff on their labor ward who cannot allow.
were involved in abortions.  The Inner House stated "that if 'participation'
226

were defined according to whether the person was taking part 'directly' or ' The Implementing Rules and Regulation (RH-IRR)
indirectly' this would actually mean more complexity and uncertainty." 227

The last paragraph of Section 5.24 of the RH-IRR reads:

While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be Provided, That skilled health professional such as provincial, city or
against their conscience or will. municipal health officers, chiefs of hospital, head nurses, supervising
midwives, among others, who by virtue of their office are specifically
Institutional Health Providers charged with the duty to implement the provisions of the RPRH Act and
these Rules, cannot be considered as conscientious objectors.
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service This is discriminatory and violative of the equal protection clause. The
providers. Considering that Section 24 of the RH Law penalizes such conscientious objection clause should be equally protective of the religious
institutions should they fail or refuse to comply with their duty to refer under belief of public health officers. There is no perceptible distinction why they
Section 7 and Section 23(a)(3), the Court deems that it must be struck should not be considered exempt from the mandates of the law. The
down for being violative of the freedom of religion. The same applies to protection accorded to other conscientious objectors should equally apply to
Section 23(a)(l) and (a)(2) in relation to Section 24, considering that in the all medical practitioners without distinction whether they belong to the public
dissemination of information regarding programs and services and in the or private sector. After all, the freedom to believe is intrinsic in every
performance of reproductive health procedures, the religious freedom of individual and the protective robe that guarantees its free exercise is not
health care service providers should be respected. taken off even if one acquires employment in the government.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the It should be stressed that intellectual liberty occupies a place inferior to
Executive Secretary  it was stressed:
228
none in the hierarchy of human values. The mind must be free to think what
it wills, whether in the secular or religious sphere, to give expression to its
Freedom of religion was accorded preferred status by the framers of our beliefs by oral discourse or through the media and, thus, seek other candid
fundamental law. And this Court has consistently affirmed this preferred views in occasions or gatherings or in more permanent aggrupation.
status, well aware that it is "designed to protect the broadest possible liberty Embraced in such concept then are freedom of religion, freedom of speech,
of conscience, to allow each man to believe as his conscience directs, to of the press, assembly and petition, and freedom of association. 229

profess his beliefs, and to live as he believes he ought to live, consistent

with the liberty of others and with the common good." 10
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
The Court is not oblivious to the view that penalties provided by law protection clause in the Constitution. Quoting respondent Lagman, if there
endeavour to ensure compliance. Without set consequences for either an is any conflict between the RH-IRR and the RH Law, the law must prevail.
active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law Justice Mendoza:
is a constitutionally-protected right the Court firmly chooses to stamp its
129
I'll go to another point. The RH law .. .in your Comment- in-Intervention on The foregoing discussion then begets the question on whether the
page 52, you mentioned RH Law is replete with provisions in upholding the respondents, in defense of the subject provisions, were able to: 1]
freedom of religion and respecting religious convictions. Earlier, you demonstrate a more compelling state interest to restrain conscientious
affirmed this with qualifications. Now, you have read, I presumed you have objectors in their choice of services to render; and 2] discharge the burden
read the IRR-Implementing Rules and Regulations of the RH Bill? of proof that the obligatory character of the law is the least intrusive means
to achieve the objectives of the law.
Congressman Lagman:
Unfortunately, a deep scrutiny of the respondents' submissions proved to
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have be in vain. The OSG was curiously silent in the establishment of a more
not thoroughly dissected the nuances of the provisions. compelling state interest that would rationalize the curbing of a
conscientious objector's right not to adhere to an action contrary to his
Justice Mendoza: religious convictions. During the oral arguments, the OSG maintained the
same silence and evasion. The Transcripts of the Stenographic Notes
disclose the following:
I will read to you one provision. It's Section 5.24. This I cannot find in the
RH Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses, Justice De Castro:
supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH Let's go back to the duty of the conscientious objector to refer. ..
Act and these Rules, cannot be considered as conscientious objectors." Do
you agree with this? Senior State Solicitor Hilbay:

Congressman Lagman: Yes, Justice.

I will have to go over again the provisions, Your Honor. Justice De Castro:

Justice Mendoza: ... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
In other words, public health officers in contrast to the private practitioners objector which refuses to do so because of his religious belief?
who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not Senior State Solicitor Hilbay:
against the constitutional right to the religious belief?
Ahh, Your Honor, ..
Congressman Lagman:
Justice De Castro:
Your Honor, if there is any conflict between the IRR and the law, the law
must prevail.230
What is the compelling State interest to impose this burden?

Compelling State Interest Senior State Solicitor Hilbay:

130
In the first place, Your Honor, I don't believe that the standard is a practitioners who may perform reproductive health-related procedures with
compelling State interest, this is an ordinary health legislation involving open willingness and motivation. Suffice it to say, a person who is forced to
professionals. This is not a free speech matter or a pure free exercise perform an act in utter reluctance deserves the protection of the Court as
matter. This is a regulation by the State of the relationship between medical the last vanguard of constitutional freedoms.
doctors and their patients.231

At any rate, there are other secular steps already taken by the Legislature
Resultantly, the Court finds no compelling state interest which would limit to ensure that the right to health is protected. Considering other legislations
the free exercise clause of the conscientious objectors, however few in as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365
number. Only the prevention of an immediate and grave danger to the or "The Population Act of the Philippines" and R.A. No. 9710, otherwise
security and welfare of the community can justify the infringement of known as "The Magna Carta of Women," amply cater to the needs of
religious freedom. If the government fails to show the seriousness and women in relation to health services and programs. The pertinent provision
immediacy of the threat, State intrusion is constitutionally unacceptable.232
of Magna Carta on comprehensive health services and programs for
women, in fact, reads:
Freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. And Section 17. Women's Right to Health. - (a) Comprehensive Health Services.
this freedom is violated when one is compelled to act against one's belief or - The State shall, at all times, provide for a comprehensive, culture-
is prevented from acting according to one's belief.233
sensitive, and gender-responsive health services and programs covering all
stages of a woman's life cycle and which addresses the major causes of
Apparently, in these cases, there is no immediate danger to the life or women's mortality and morbidity: Provided, That in the provision for
health of an individual in the perceived scenario of the subject provisions. comprehensive health services, due respect shall be accorded to women's
After all, a couple who plans the timing, number and spacing of the birth of religious convictions, the rights of the spouses to found a family in
their children refers to a future event that is contingent on whether or not accordance with their religious convictions, and the demands of responsible
the mother decides to adopt or use the information, product, method or parenthood, and the right of women to protection from hazardous drugs,
supply given to her or whether she even decides to become pregnant at all. devices, interventions, and substances.
On the other hand, the burden placed upon those who object to
contraceptive use is immediate and occurs the moment a patient seeks Access to the following services shall be ensured:
consultation on reproductive health matters.
(1) Maternal care to include pre- and post-natal services to
Moreover, granting that a compelling interest exists to justify the address pregnancy and infant health and nutrition;
infringement of the conscientious objector's religious freedom, the
respondents have failed to demonstrate "the gravest abuses, endangering (2) Promotion of breastfeeding;
paramount interests" which could limit or override a person's fundamental
right to religious freedom. Also, the respondents have not presented any (3) Responsible, ethical, legal, safe, and effective methods
government effort exerted to show that the means it takes to achieve its of family planning;
legitimate state objective is the least intrusive means.  Other than the
234

assertion that the act of referring would only be momentary, considering

(4) Family and State collaboration in youth sexuality
that the act of referral by a conscientious objector is the very action being
education and health services without prejudice to the
contested as violative of religious freedom, it behooves the respondents to
primary right and duty of parents to educate their children;
demonstrate that no other means can be undertaken by the State to
achieve its objective without violating the rights of the conscientious
objector. The health concerns of women may still be addressed by other

131
 (5) Prevention and management of reproductive tract of morality and rectitude for the enrichment and
infections, including sexually transmitted diseases, HIV, and strengthening of character;
AIDS;
(2) The formation of a person's sexuality that affirms human
(6) Prevention and management of reproductive tract dignity; and
cancers like breast and cervical cancers, and other
gynecological conditions and disorders; (3) Ethical, legal, safe, and effective family planning
methods including fertility awareness.
(7) Prevention of abortion and management of pregnancy-
related complications; As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
(8) In cases of violence against women and children, thousands of unintended pregnancies, lives changed, x x x."  He, however,
235

women and children victims and survivors shall be provided failed to substantiate this point by concrete facts and figures from reputable
with comprehensive health services that include sources.
psychosocial, therapeutic, medical, and legal interventions
and assistance towards healing, recovery, and The undisputed fact, however, is that the World Health Organization
empowerment; reported that the Filipino maternal mortality rate dropped to 48 percent from
1990 to 2008,   although there was still no RH Law at that time. Despite
236

(9) Prevention and management of infertility and sexual such revelation, the proponents still insist that such number of maternal
dysfunction pursuant to ethical norms and medical deaths constitute a compelling state interest.
standards;
Granting that there are still deficiencies and flaws in the delivery of social
(10) Care of the elderly women beyond their child-bearing healthcare programs for Filipino women, they could not be solved by a
years; and measure that puts an unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
(11) Management, treatment, and intervention of mental
health problems of women and girls. In addition, healthy Exception: Life Threatening Cases
lifestyle activities are encouraged and promoted through
programs and projects as strategies in the prevention of All this notwithstanding, the Court properly recognizes a valid exception set
diseases. forth in the law. While generally healthcare service providers cannot be
forced to render reproductive health care procedures if doing it would
(b) Comprehensive Health Information and Education. - The State shall contravene their religious beliefs, an exception must be made in life-
provide women in all sectors with appropriate, timely, complete, and threatening cases that require the performance of emergency procedures.
accurate information and education on all the above-stated aspects of In these situations, the right to life of the mother should be given
women's health in government education and training programs, with due preference, considering that a referral by a medical practitioner would
regard to the following: amount to a denial of service, resulting to unnecessarily placing the life of a
mother in grave danger. Thus, during the oral arguments, Atty. Liban,
(1) The natural and primary right and duty of parents in the representing CFC, manifested: "the forced referral clause that we are
rearing of the youth and the development of moral character objecting on grounds of violation of freedom of religion does not
and the right of children to be brought up in an atmosphere contemplate an emergency." 237

132
In a conflict situation between the life of the mother and the life of a child, Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
the doctor is morally obliged always to try to save both lives. If, however, it violates the provisions of the Constitution by intruding into marital privacy
is impossible, the resulting death to one should not be deliberate. Atty. and autonomy. It argues that it cultivates disunity and fosters animosity in
Noche explained: the family rather than promote its solidarity and total development. 240

Principle of Double-Effect. - May we please remind the principal author of The Court cannot but agree.
the RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never The 1987 Constitution is replete with provisions strengthening the family as
justified to bring about a "good" effect. In a conflict situation between the life it is the basic social institution. In fact, one article, Article XV, is devoted
of the child and the life of the mother, the doctor is morally obliged always entirely to the family.
to try to save both lives. However, he can act in favor of one (not
necessarily the mother) when it is medically impossible to save both, ARTICLE XV
provided that no direct harm is intended to the other. If the above principles THE FAMILY
are observed, the loss of the child's life or the mother's life is not intentional
and, therefore, unavoidable. Hence, the doctor would not be guilty of
Section 1. The State recognizes the Filipino family as the foundation of the
abortion or murder. The mother is never pitted against the child because
nation. Accordingly, it shall strengthen its solidarity and actively promote its
both their lives are equally valuable. 238

total development.
Accordingly, if it is necessary to save the life of a mother, procedures
Section 2. Marriage, as an inviolable social institution, is the foundation of
endangering the life of the child may be resorted to even if is against the
the family and shall be protected by the State.
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save. Section 3. The State shall defend:

Family Planning Seminars The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
Anent the requirement imposed under Section 15  as a condition for the
239

issuance of a marriage license, the Court finds the same to be a reasonable The right of children to assistance, including proper care and nutrition, and
exercise of police power by the government. A cursory reading of the special protection from all forms of neglect, abuse, cruelty, exploitation and
assailed provision bares that the religious freedom of the petitioners is not other conditions prejudicial to their development;
at all violated. All the law requires is for would-be spouses to attend a
seminar on parenthood, family planning breastfeeding and infant nutrition. It The right of the family to a family living wage and income; and
does not even mandate the type of family planning methods to be included
in the seminar, whether they be natural or artificial. As correctly noted by The right of families or family assoc1at1ons to participate in the planning
the OSG, those who receive any information during their attendance in the and implementation of policies and programs that affect them.
required seminars are not compelled to accept the information given to
them, are completely free to reject the information they find unacceptable, In this case, the RH Law, in its not-so-hidden desire to control population
and retain the freedom to decide on matters of family life without the growth, contains provisions which tend to wreck the family as a solid social
intervention of the State. institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
4-The Family and the Right to Privacy

133
deprives the parents of their authority over their minor daughter simply whether or not to undergo the procedure belongs exclusively to, and shared
because she is already a parent or had suffered a miscarriage. by, both spouses as one cohesive unit as they chart their own destiny. It is
a constitutionally guaranteed private right. Unless it prejudices the State,
The Family and Spousal Consent which has not shown any compelling interest, the State should see to it that
they chart their destiny together as one family.
Section 23(a) (2) (i) of the RH Law states:
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
The following acts are prohibited: 9710, otherwise known as the "Magna Carta for Women," provides that
women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their
(a) Any health care service provider, whether public or private, who shall: ...
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
(2) refuse to perform legal and medically-safe reproductive health RH Law should not be allowed to betray the constitutional mandate to
procedures on any person of legal age on the ground of lack of consent or protect and strengthen the family by giving to only one spouse the absolute
authorization of the following persons in the following instances: authority to decide whether to undergo reproductive health procedure. 242

(i) Spousal consent in case of married persons: provided, That in case of The right to chart their own destiny together falls within the protected zone
disagreement, the decision of the one undergoing the procedures shall of marital privacy and such state intervention would encroach into the zones
prevail. [Emphasis supplied] of spousal privacy guaranteed by the Constitution. In our jurisdiction, the
right to privacy was first recognized in Marje v. Mutuc,  where the Court,
243

The above provision refers to reproductive health procedures like tubal speaking through Chief Justice Fernando, held that "the right to privacy as
litigation and vasectomy which, by their very nature, should require mutual such is accorded recognition independently of its identification with liberty;
consent and decision between the husband and the wife as they affect in itself, it is fully deserving of constitutional protection."  Marje adopted the
244

issues intimately related to the founding of a family. Section 3, Art. XV of ruling of the US Supreme Court in Griswold v. Connecticut,  where Justice
245

the Constitution espouses that the State shall defend the "right of the William O. Douglas wrote:
spouses to found a family." One person cannot found a family. The right,
therefore, is shared by both spouses. In the same Section 3, their right "to We deal with a right of privacy older than the Bill of Rights -older than our
participate in the planning and implementation of policies and programs that political parties, older than our school system. Marriage is a coming
affect them " is equally recognized. together for better or for worse, hopefully enduring, and intimate to the
degree of being sacred. It is an association that promotes a way of life, not
The RH Law cannot be allowed to infringe upon this mutual decision- causes; a harmony in living, not political faiths; a bilateral loyalty, not
making. By giving absolute authority to the spouse who would undergo a commercial or social projects. Yet it is an association for as noble a
procedure, and barring the other spouse from participating in the decision purpose as any involved in our prior decisions.
would drive a wedge between the husband and wife, possibly result in bitter
animosity, and endanger the marriage and the family, all for the sake of Ironically, Griswold invalidated a Connecticut statute which made the use of
reducing the population. This would be a marked departure from the policy contraceptives a criminal offense on the ground of its amounting to an
of the State to protect marriage as an inviolable social institution.
241
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by
Decision-making involving a reproductive health procedure is a private couples. Justice Douglas in Grisworld wrote that "specific guarantees in the
matter which belongs to the couple, not just one of them. Any decision they Bill of Rights have penumbras, formed by emanations from those
would reach would affect their future as a family because the size of the
family or the number of their children significantly matters. The decision
134
guarantees that help give them life and substance. Various guarantees To insist on a rule that interferes with the right of parents to exercise
create zones of privacy." 246
parental control over their minor-child or the right of the spouses to mutually
decide on matters which very well affect the very purpose of marriage, that
At any rate, in case of conflict between the couple, the courts will decide. is, the establishment of conjugal and family life, would result in the violation
of one's privacy with respect to his family. It would be dismissive of the
The Family and Parental Consent unique and strongly-held Filipino tradition of maintaining close family ties
and violative of the recognition that the State affords couples entering into
the special contract of marriage to as one unit in forming the foundation of
Equally deplorable is the debarment of parental consent in cases where the
the family and society.
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
SEC. 7. Access to Family Planning. – x x x.
already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not be
First Exception: Access to Information
allowed access to modern methods of family planning without written
consent from their parents or guardian/s except when the minor is already a
parent or has had a miscarriage. Whether with respect to the minor referred to under the exception provided
in the second paragraph of Section 7 or with respect to the consenting
spouse under Section 23(a)(2)(i), a distinction must be made. There must
There can be no other interpretation of this provision except that when a
be a differentiation between access to information about family planning
minor is already a parent or has had a miscarriage, the parents are
services, on one hand, and access to the reproductive health procedures
excluded from the decision making process of the minor with regard to
and modern family planning methods themselves, on the other. Insofar as
family planning. Even if she is not yet emancipated, the parental authority is
access to information is concerned, the Court finds no constitutional
already cut off just because there is a need to tame population growth.
objection to the acquisition of information by the minor referred to under the
exception in the second paragraph of Section 7 that would enable her to
It is precisely in such situations when a minor parent needs the comfort, take proper care of her own body and that of her unborn child. After all,
care, advice, and guidance of her own parents. The State cannot replace Section 12, Article II of the Constitution mandates the State to protect both
her natural mother and father when it comes to providing her needs and the life of the mother as that of the unborn child. Considering that
comfort. To say that their consent is no longer relevant is clearly anti-family. information to enable a person to make informed decisions is essential in
It does not promote unity in the family. It is an affront to the constitutional the protection and maintenance of ones' health, access to such information
mandate to protect and strengthen the family as an inviolable social with respect to reproductive health must be allowed. In this situation, the
institution. fear that parents might be deprived of their parental control is unfounded
because they are not prohibited to exercise parental guidance and control
More alarmingly, it disregards and disobeys the constitutional mandate that over their minor child and assist her in deciding whether to accept or reject
"the natural and primary right and duty of parents in the rearing of the youth the information received.
for civic efficiency and the development of moral character shall receive the
support of the Government."  In this regard, Commissioner Bernas wrote:
247
Second Exception: Life Threatening Cases

The 1987 provision has added the adjective "primary" to modify the right of As in the case of the conscientious objector, an exception must be made in
parents. It imports the assertion that the right of parents is superior to that life-threatening cases that require the performance of emergency
of the State.  [Emphases supplied]
248

135
procedures. In such cases, the life of the minor who has already suffered a At any rate, Section 12, Article II of the 1987 Constitution provides that the
miscarriage and that of the spouse should not be put at grave risk simply for natural and primary right and duty of parents in the rearing of the youth for
lack of consent. It should be emphasized that no person should be denied civic efficiency and development of moral character shall receive the
the appropriate medical care urgently needed to preserve the primordial support of the Government. Like the 1973 Constitution and the 1935
right, that is, the right to life. Constitution, the 1987 Constitution affirms the State recognition of the
invaluable role of parents in preparing the youth to become productive
In this connection, the second sentence of Section 23(a)(2)(ii)  should be
249 members of society. Notably, it places more importance on the role of
struck down. By effectively limiting the requirement of parental consent to parents in the development of their children by recognizing that said role
"only in elective surgical procedures," it denies the parents their right of shall be "primary," that is, that the right of parents in upbringing the youth is
parental authority in cases where what is involved are "non-surgical superior to that of the State. 252

procedures." Save for the two exceptions discussed above, and in the case
of an abused child as provided in the first sentence of Section 23(a)(2)(ii), It is also the inherent right of the State to act as parens patriae to aid
the parents should not be deprived of their constitutional right of parental parents in the moral development of the youth. Indeed, the Constitution
authority. To deny them of this right would be an affront to the constitutional makes mention of the importance of developing the youth and their
mandate to protect and strengthen the family. important role in nation building.  Considering that Section 14 provides not
253

only for the age-appropriate-reproductive health education, but also for

5 - Academic Freedom values formation; the development of knowledge and skills in self-protection
against discrimination; sexual abuse and violence against women and
It is asserted that Section 14 of the RH Law, in relation to Section 24 children and other forms of gender based violence and teen pregnancy;
thereof, mandating the teaching of Age-and Development-Appropriate physical, social and emotional changes in adolescents; women's rights and
Reproductive Health Education under threat of fine and/or imprisonment children's rights; responsible teenage behavior; gender and development;
violates the principle of academic freedom . According to the petitioners, and responsible parenthood, and that Rule 10, Section 11.01 of the RH-IRR
these provisions effectively force educational institutions to teach and Section 4(t) of the RH Law itself provides for the teaching of
reproductive health education even if they believe that the same is not responsible teenage behavior, gender sensitivity and physical and
suitable to be taught to their students.  Citing various studies conducted in
250 emotional changes among adolescents - the Court finds that the legal
the United States and statistical data gathered in the country, the petitioners mandate provided under the assailed provision supplements, rather than
aver that the prevalence of contraceptives has led to an increase of out-of- supplants, the rights and duties of the parents in the moral development of
wedlock births; divorce and breakdown of families; the acceptance of their children.
abortion and euthanasia; the "feminization of poverty"; the aging of society;
and promotion of promiscuity among the youth. 251 Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-
At this point, suffice it to state that any attack on the validity of Section 14 of teacher-community associations, school officials and other interest groups,
the RH Law is premature because the Department of Education, Culture it could very well be said that it will be in line with the religious beliefs of the
and Sports has yet to formulate a curriculum on age-appropriate petitioners. By imposing such a condition, it becomes apparent that the
reproductive health education. One can only speculate on the content, petitioners' contention that Section 14 violates Article XV, Section 3(1) of
manner and medium of instruction that will be used to educate the the Constitution is without merit. 254

adolescents and whether they will contradict the religious beliefs of the
petitioners and validate their apprehensions. Thus, considering the While the Court notes the possibility that educators might raise their
premature nature of this particular issue, the Court declines to rule on its objection to their participation in the reproductive health education program
constitutionality or validity. provided under Section 14 of the RH Law on the ground that the same
violates their religious beliefs, the Court reserves its judgment should an
actual case be filed before it.
136
6 - Due Process (n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to
The petitioners contend that the RH Law suffers from vagueness and, thus the maintenance and operation of facilities for health promotion, disease
violates the due process clause of the Constitution. According to them, prevention, diagnosis, treatment and care of individuals suffering from
Section 23 (a)(l) mentions a "private health service provider" among those illness, disease, injury, disability or deformity, or in need of obstetrical or
who may be held punishable but does not define who is a "private health other medical and nursing care; (2) public health care professional, who is a
care service provider." They argue that confusion further results since doctor of medicine, a nurse or a midvvife; (3) public health worker engaged
Section 7 only makes reference to a "private health care institution." in the delivery of health care services; or (4) barangay health worker who
has undergone training programs under any accredited government and
The petitioners also point out that Section 7 of the assailed legislation NGO and who voluntarily renders primarily health care services in the
exempts hospitals operated by religious groups from rendering reproductive community after having been accredited to function as such by the local
health service and modern family planning methods. It is unclear, however, health board in accordance with the guidelines promulgated by the
if these institutions are also exempt from giving reproductive health Department of Health (DOH) .
information under Section 23(a)(l), or from rendering reproductive health
procedures under Section 23(a)(2). Further, the use of the term "private health care institution" in Section 7 of
the law, instead of "private health care service provider," should not be a
Finally, it is averred that the RH Law punishes the withholding, restricting cause of confusion for the obvious reason that they are used
and providing of incorrect information, but at the same time fails to define synonymously.
"incorrect information."
The Court need not belabor the issue of whether the right to be exempt
The arguments fail to persuade. from being obligated to render reproductive health service and modem
family planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health
A statute or act suffers from the defect of vagueness when it lacks
procedures. Clearly, subject to the qualifications and exemptions earlier
comprehensible standards that men of common intelligence must
discussed, the right to be exempt from being obligated to render
necessarily guess its meaning and differ as to its application. It is repugnant
reproductive health service and modem family planning methods,
to the Constitution in two respects: (1) it violates due process for failure to
necessarily includes exemption from being obligated to give reproductive
accord persons, especially the parties targeted by it, fair notice of the
health information and to render reproductive health procedures. The terms
conduct to avoid; and (2) it leaves law enforcers unbridled discretion in
"service" and "methods" are broad enough to include the providing of
carrying out its provisions and becomes an arbitrary flexing of the
information and the rendering of medical procedures.
Government muscle.  Moreover, in determining whether the words used in
255

a statute are vague, words must not only be taken in accordance with their
plain meaning alone, but also in relation to other parts of the statute. It is a The same can be said with respect to the contention that the RH Law
rule that every part of the statute must be interpreted with reference to the punishes health care service providers who intentionally withhold, restrict
context, that is, every part of it must be construed together with the other and provide incorrect information regarding reproductive health programs
parts and kept subservient to the general intent of the whole enactment. 256 and services. For ready reference, the assailed provision is hereby quoted
as follows:
As correctly noted by the OSG, in determining the definition of "private
health care service provider," reference must be made to Section 4(n) of the SEC. 23. Prohibited Acts. - The following acts are prohibited:
RH Law which defines a "public health service provider," viz:
(a) Any health care service provider, whether public or private, who shall:

137
(1) Knowingly withhold information or restrict the dissemination thereof, Constitution. The equal protection of the laws is embraced in the concept of
and/ or intentionally provide incorrect information regarding programs and due process, as every unfair discrimination offends the requirements of
services on reproductive health including the right to informed choice and justice and fair play. It has been embodied in a separate clause, however,
access to a full range of legal, medically-safe, non-abortifacient and to provide for a more specific guaranty against any form of undue favoritism
effective family planning methods; or hostility from the government. Arbitrariness in general may be challenged
on the basis of the due process clause. But if the particular act assailed
From its plain meaning, the word "incorrect" here denotes failing to agree partakes of an unwarranted partiality or prejudice, the sharper weapon to
with a copy or model or with established rules; inaccurate, faulty; failing to cut it down is the equal protection clause.
agree with the requirements of duty, morality or propriety; and failing to
coincide with the truth.   On the other hand, the word "knowingly" means
257
"According to a long line of decisions, equal protection simply requires that
with awareness or deliberateness that is intentional.  Used together in
258
all persons or things similarly situated should be treated alike, both as to
relation to Section 23(a)(l), they connote a sense of malice and ill motive to rights conferred and responsibilities imposed." It "requires public bodies and
mislead or misrepresent the public as to the nature and effect of programs inst itutions to treat similarly situated individuals in a similar manner." "The
and services on reproductive health. Public health and safety demand that purpose of the equal protection clause is to secure every person within a
health care service providers give their honest and correct medical state's jurisdiction against intentional and arbitrary discrimination, whether
information in accordance with what is acceptable in medical practice. occasioned by the express terms of a statue or by its improper execution
While health care service providers are not barred from expressing their through the state's duly constituted authorities." "In other words, the
own personal opinions regarding the programs and services on concept of equal justice under the law requires the state to govern
reproductive health, their right must be tempered with the need to provide impartially, and it may not draw distinctions between individuals solely on
public health and safety. The public deserves no less. differences that are irrelevant to a legitimate governmental objective."

7-Egual Protection The equal protection clause is aimed at all official state actions, not just
those of the legislature. Its inhibitions cover all the departments of the
The petitioners also claim that the RH Law violates the equal protection government including the political and executive departments, and extend
clause under the Constitution as it discriminates against the poor because it to all actions of a state denying equal protection of the laws, through
makes them the primary target of the government program that promotes whatever agency or whatever guise is taken.
contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would It, however, does not require the universal application of the laws to all
effectively reduce the number of the poor. Their bases are the various persons or things without distinction. What it simply requires is equality
provisions in the RH Law dealing with the poor, especially those mentioned among equals as determined according to a valid classification. Indeed, the
in the guiding principles  and definition of terms  of the law.
259 260
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
They add that the exclusion of private educational institutions from the requisites: (1) The classification rests on substantial distinctions; (2) It is
mandatory reproductive health education program imposed by the RH Law germane to the purpose of the law; (3) It is not limited to existing conditions
renders it unconstitutional. only; and (4) It applies equally to all members of the same class.
"Superficial differences do not make for a valid classification."
In Biraogo v. Philippine Truth Commission,  the Court had the occasion to
261

expound on the concept of equal protection. Thus: For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. "The
One of the basic principles on which this government was founded is that of classification will be regarded as invalid if all the members of the class are
the equality of right which is embodied in Section 1, Article III of the 1987 not similarly treated, both as to rights conferred and obligations imposed. It

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is not necessary that the classification be made with absolute symmetry, in children. While the petitioners surmise that the assailed law seeks to charge
the sense that the members of the class should possess the same couples with the duty to have children only if they would raise them in a
characteristics in equal degree. Substantial similarity will suffice; and as truly humane way, a deeper look into its provisions shows that what the law
long as this is achieved, all those covered by the classification are to be seeks to do is to simply provide priority to the poor in the implementation of
treated equally. The mere fact that an individual belonging to a class differs government programs to promote basic reproductive health care.
from the other members, as long as that class is substantially
distinguishable from all others, does not justify the non-application of the With respect to the exclusion of private educational institutions from the
law to him." mandatory reproductive health education program under Section 14, suffice
it to state that the mere fact that the children of those who are less fortunate
The classification must not be based on existing circumstances only, or so attend public educational institutions does not amount to substantial
constituted as to preclude addition to the number included in the class. It distinction sufficient to annul the assailed provision. On the other hand,
must be of such a nature as to embrace all those who may thereafter be in substantial distinction rests between public educational institutions and
similar circumstances and conditions. It must not leave out or private educational institutions, particularly because there is a need to
"underinclude" those that should otherwise fall into a certain classification. recognize the academic freedom of private educational institutions
[Emphases supplied; citations excluded] especially with respect to religious instruction and to consider their
sensitivity towards the teaching of reproductive health education.
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection 8-Involuntary Servitude
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the The petitioners also aver that the RH Law is constitutionally infirm as it
underprivileged by providing that they be given priority in addressing the violates the constitutional prohibition against involuntary servitude. They
health development of the people. Thus: posit that Section 17 of the assailed legislation requiring private and non-
government health care service providers to render forty-eight (48) hours of
Section 11. The State shall adopt an integrated and comprehensive pro bono reproductive health services, actually amounts to involuntary
approach to health development which shall endeavor to make essential servitude because it requires medical practitioners to perform acts against
goods, health and other social services available to all the people at their will.
262

affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to The OSG counters that the rendition of pro bono services envisioned in
provide free medical care to paupers. Section 17 can hardly be considered as forced labor analogous to slavery,
as reproductive health care service providers have the discretion as to the
It should be noted that Section 7 of the RH Law prioritizes poor and manner and time of giving pro bono services. Moreover, the OSG points out
marginalized couples who are suffering from fertility issues and desire to that the imposition is within the powers of the government, the accreditation
have children. There is, therefore, no merit to the contention that the RH of medical practitioners with PhilHealth being a privilege and not a right.
Law only seeks to target the poor to reduce their number. While the RH
Law admits the use of contraceptives, it does not, as elucidated above, The point of the OSG is well-taken.
sanction abortion. As Section 3(1) explains, the "promotion and/or
stabilization of the population growth rate is incidental to the advancement It should first be mentioned that the practice of medicine is undeniably
of reproductive health." imbued with public interest that it is both a power and a duty of the State to
control and regulate it in order to protect and promote the public welfare.
Moreover, the RH Law does not prescribe the number of children a couple Like the legal profession, the practice of medicine is not a right but a
may have and does not impose conditions upon couples who intend to have privileged burdened with conditions as it directly involves the very lives of
139
the people. A fortiori, this power includes the power of Congress  to
263
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No.
prescribe the qualifications for the practice of professions or trades which 9711 reads:
affect the public welfare, the public health, the public morals, and the public
safety; and to regulate or control such professions or trades, even to the SEC. 4. To carry out the provisions of this Act, there is hereby created an
point of revoking such right altogether. 264
office to be called the Food and Drug Administration (FDA) in the
Department of Health (DOH). Said Administration shall be under the Office
Moreover, as some petitioners put it, the notion of involuntary servitude of the Secretary and shall have the following functions, powers and duties:
connotes the presence of force, threats, intimidation or other similar means
of coercion and compulsion.  A reading of the assailed provision, however,
265
"(a) To administer the effective implementation of this Act and of the
reveals that it only encourages private and non- government reproductive rules and regulations issued pursuant to the same;
healthcare service providers to render pro bono service. Other than non-
accreditation with PhilHealth, no penalty is imposed should they choose to "(b) To assume primary jurisdiction in the collection of samples of
do otherwise. Private and non-government reproductive healthcare service health products;
providers also enjoy the liberty to choose which kind of health service they
wish to provide, when, where and how to provide it or whether to provide it
"(c) To analyze and inspect health products in connection with the
all. Clearly, therefore, no compulsion, force or threat is made upon them to
implementation of this Act;
render pro bono service against their will. While the rendering of such
service was made a prerequisite to accreditation with PhilHealth, the Court
does not consider the same to be an unreasonable burden, but rather, a "(d) To establish analytical data to serve as basis for the preparation
necessary incentive imposed by Congress in the furtherance of a perceived of health products standards, and to recommend standards of
legitimate state interest. identity, purity, safety, efficacy, quality and fill of container;

Consistent with what the Court had earlier discussed, however, it should be "(e) To issue certificates of compliance with technical requirements
emphasized that conscientious objectors are exempt from this provision as to serve as basis for the issuance of appropriate authorization and
long as their religious beliefs and convictions do not allow them to render spot-check for compliance with regulations regarding operation of
reproductive health service, pro bona or otherwise. manufacturers, importers, exporters, distributors, wholesalers, drug
outlets, and other establishments and facilities of health products,
as determined by the FDA;
9-Delegation of Authority to the FDA
"x x x
The petitioners likewise question the delegation by Congress to the FDA of
the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL). 266 "(h) To conduct appropriate tests on all applicable health products
prior to the issuance of appropriate authorizations to ensure safety,
efficacy, purity, and quality;
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover
health services and methods. It is the only government entity empowered to "(i) To require all manufacturers, traders, distributors, importers,
render such services and highly proficient to do so. It should be understood exporters, wholesalers, retailers, consumers, and non-consumer
that health services and methods fall under the gamut of terms that are users of health products to report to the FDA any incident that
associated with what is ordinarily understood as "health products." reasonably indicates that said product has caused or contributed to
the death, serious illness or serious injury to a consumer, a patient,
or any person;

140
 "(j) To issue cease and desist orders motu propio or upon verified of Muslim Mindanao (ARMM)
complaint for health products, whether or not registered with the
FDA Provided, That for registered health products, the cease and As for the autonomy of local governments, the petitioners claim that the RH
desist order is valid for thirty (30) days and may be extended for Law infringes upon the powers devolved to local government units (LGUs)
sixty ( 60) days only after due process has been observed; under Section 17 of the Local Government Code. Said Section 17 vested
upon the LGUs the duties and functions pertaining to the delivery of basic
"(k) After due process, to order the ban, recall, and/or withdrawal of services and facilities, as follows:
any health product found to have caused death, serious illness or
serious injury to a consumer or patient, or is found to be imminently SECTION 17. Basic Services and Facilities. –
injurious, unsafe, dangerous, or grossly deceptive, and to require all
concerned to implement the risk management plan which is a (a) Local government units shall endeavor to be self-reliant and
requirement for the issuance of the appropriate authorization; shall continue exercising the powers and discharging the duties and
functions currently vested upon them. They shall also discharge the
x x x. functions and responsibilities of national agencies and offices
devolved to them pursuant to this Code. Local government units
As can be gleaned from the above, the functions, powers and duties of the shall likewise exercise such other powers and discharge such other
FDA are specific to enable the agency to carry out the mandates of the law. functions and responsibilities as are necessary, appropriate, or
Being the country's premiere and sole agency that ensures the safety of incidental to efficient and effective provision of the basic services
food and medicines available to the public, the FDA was equipped with the and facilities enumerated herein.
necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to (b) Such basic services and facilities include, but are not limited to,
ensure public health and safety by permitting only food and medicines that x x x.
are safe includes "service" and "methods." From the declared policy of the
RH Law, it is clear that Congress intended that the public be given only While the aforementioned provision charges the LGUs to take on
those medicines that are proven medically safe, legal, non-abortifacient, the functions and responsibilities that have already been devolved
and effective in accordance with scientific and evidence-based medical upon them from the national agencies on the aspect of providing for
research standards. The philosophy behind the permitted delegation was basic services and facilities in their respective jurisdictions,
explained in Echagaray v. Secretary of Justice,  as follows:
267
paragraph (c) of the same provision provides a categorical
exception of cases involving nationally-funded projects, facilities,
The reason is the increasing complexity of the task of the government and programs and services.  Thus:
268

the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its (c) Notwithstanding the provisions of subsection (b) hereof, public
activities and created peculiar and sophisticated problems that the works and infrastructure projects and other facilities, programs and
legislature cannot be expected reasonably to comprehend. Specialization services funded by the National Government under the annual
even in legislation has become necessary. To many of the problems General Appropriations Act, other special laws, pertinent executive
attendant upon present day undertakings, the legislature may not have the orders, and those wholly or partially funded from foreign sources,
competence, let alone the interest and the time, to provide the required are not covered under this Section, except in those cases where the
direct and efficacious, not to say specific solutions. local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and
10- Autonomy of Local Governments and the Autonomous Region services. [Emphases supplied]

141
The essence of this express reservation of power by the national imposed on it by the Constitution, Congress cannot be restricted to exercise
government is that, unless an LGU is particularly designated as the its inherent and plenary power to legislate on all subjects which extends to
implementing agency, it has no power over a program for which funding has all matters of general concern or common interest. 275

been provided by the national government under the annual general

appropriations act, even if the program involves the delivery of basic 11 - Natural Law
services within the jurisdiction of the LGU.  A complete relinquishment of
269

central government powers on the matter of providing basic facilities and With respect to the argument that the RH Law violates natural law,  suffice
276

services cannot be implied as the Local Government Code itself weighs it to say that the Court does not duly recognize it as a legal basis for
against it.
270
upholding or invalidating a law. Our only guidepost is the Constitution.
While every law enacted by man emanated from what is perceived as
In this case, a reading of the RH Law clearly shows that whether it pertains natural law, the Court is not obliged to see if a statute, executive issuance
to the establishment of health care facilities,  the hiring of skilled health
271
or ordinance is in conformity to it. To begin with, it is not enacted by an
professionals,  or the training of barangay health workers,  it will be the
272 273
acceptable legitimate body. Moreover, natural laws are mere thoughts and
national government that will provide for the funding of its implementation. notions on inherent rights espoused by theorists, philosophers and
Local autonomy is not absolute. The national government still has the say theologists. The jurists of the philosophical school are interested in the law
when it comes to national priority programs which the local government is as an abstraction, rather than in the actual law of the past or
called upon to implement like the RH Law. present.  Unless, a natural right has been transformed into a written law, it
277

cannot serve as a basis to strike down a law. In Republic v.

Moreover, from the use of the word "endeavor," the LG Us are merely Sandiganbayan,  the very case cited by the petitioners, it was explained
278

encouraged to provide these services. There is nothing in the wording of that the Court is not duty-bound to examine every law or action and whether
the law which can be construed as making the availability of these services it conforms with both the Constitution and natural law. Rather, natural law is
mandatory for the LGUs. For said reason, it cannot be said that the RH Law to be used sparingly only in the most peculiar of circumstances involving
amounts to an undue encroachment by the national government upon the rights inherent to man where no law is applicable. 279

autonomy enjoyed by the local governments.

At any rate, as earlier expounded, the RH Law does not sanction the taking
The ARMM away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
The fact that the RH Law does not intrude in the autonomy of local information and making non-abortifacient contraceptives more readily
governments can be equally applied to the ARMM. The RH Law does not available to the public, especially to the poor.
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Facts and Fallacies
Tillah to justify the exemption of the operation of the RH Law in the
autonomous region, refer to the policy statements for the guidance of the and the Wisdom of the Law
regional government. These provisions relied upon by the petitioners simply
delineate the powers that may be exercised by the regional government, In general, the Court does not find the RH Law as unconstitutional insofar
which can, in no manner, be characterized as an abdication by the State of as it seeks to provide access to medically-safe, non-abortifacient, effective,
its power to enact legislation that would benefit the general welfare. After legal, affordable, and quality reproductive healthcare services, methods,
all, despite the veritable autonomy granted the ARMM, the Constitution and devices, and supplies. As earlier pointed out, however, the religious
the supporting jurisprudence, as they now stand, reject the notion of freedom of some sectors of society cannot be trampled upon in pursuit of
imperium et imperio in the relationship between the national and the what the law hopes to achieve. After all, the Constitutional safeguard to
regional governments.  Except for the express and implied limitations
274

142
religious freedom is a recognition that man stands accountable to an not the same as saying what the law should be or what is the correct rule in
authority higher than the State. a given set of circumstances. It is not the province of the judiciary to look
into the wisdom of the law nor to question the policies adopted by the
In conformity with the principle of separation of Church and State, one legislative branch. Nor is it the business of this Tribunal to remedy every
religious group cannot be allowed to impose its beliefs on the rest of the unjust situation that may arise from the application of a particular law. It is
society. Philippine modem society leaves enough room for diversity and for the legislature to enact remedial legislation if that would be necessary in
pluralism. As such, everyone should be tolerant and open-minded so that the premises. But as always, with apt judicial caution and cold neutrality,
peace and harmony may continue to reign as we exist alongside each the Court must carry out the delicate function of interpreting the law, guided
other. by the Constitution and existing legislation and mindful of settled
jurisprudence. The Court's function is therefore limited, and accordingly,
As healthful as the intention of the RH Law may be, the idea does not must confine itself to the judicial task of saying what the law is, as enacted
escape the Court that what it seeks to address is the problem of rising by the lawmaking body. 281

poverty and unemployment in the country. Let it be said that the cause of
these perennial issues is not the large population but the unequal Be that as it may, it bears reiterating that the RH Law is a mere compilation
distribution of wealth. Even if population growth is controlled, poverty will and enhancement of the prior existing contraceptive and reproductive
remain as long as the country's wealth remains in the hands of the very few. health laws, but with coercive measures. Even if the Court decrees the RH
Law as entirely unconstitutional, there will still be the Population Act (R.A.
At any rate, population control may not be beneficial for the country in the No. 6365), the Contraceptive Act (R.A. No. 4729) and the reproductive
long run. The European and Asian countries, which embarked on such a health for women or The Magna Carta of Women (R.A. No. 9710), sans the
program generations ago , are now burdened with ageing populations. The coercive provisions of the assailed legislation. All the same, the principle of
number of their young workers is dwindling with adverse effects on their "no-abortion" and "non-coercion" in the adoption of any family planning
economy. These young workers represent a significant human capital which method should be maintained.
could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
struggling. For one, Singapore, even with incentives, is failing. Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
And in this country, the economy is being propped up by remittances from UNCONSTITUTIONAL:
our Overseas Filipino Workers. This is because we have an ample supply
of young able-bodied workers. What would happen if the country would be 1) Section 7 and the corresponding provision in the RH-IRR insofar
weighed down by an ageing population and the fewer younger generation as they: a) require private health facilities and non-maternity
would not be able to support them? This would be the situation when our specialty hospitals and hospitals owned and operated by a religious
total fertility rate would go down below the replacement level of two (2) group to refer patients, not in an emergency or life-threatening case,
children per woman. 280 as defined under Republic Act No. 8344, to another health facility
which is conveniently accessible; and b) allow minor-parents or
Indeed, at the present, the country has a population problem, but the State minors who have suffered a miscarriage access to modem methods
should not use coercive measures (like the penal provisions of the RH Law of family planning without written consent from their parents or
against conscientious objectors) to solve it. Nonetheless, the policy of the guardian/s;
Court is non-interference in the wisdom of a law.
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
x x x. But this Court cannot go beyond what the legislature has laid down. particularly Section 5 .24 thereof, insofar as they punish any
Its duty is to say what the law is as enacted by the lawmaking body. That is healthcare service provider who fails and or refuses to disseminate

143
 information regarding programs and services on reproductive health the provisions of R.A. No. 10354 which have been herein declared as
regardless of his or her religious beliefs. constitutional.

3) Section 23(a)(2)(i) and the corresponding provision in the RH- SO ORDERED.

IRR insofar as they allow a married individual, not in an emergency
or life-threatening case, as defined under Republic Act No. 8344, to
undergo reproductive health procedures without the consent of the
spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-

IRR insofar as they limit the requirement of parental consent only to
elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR,

particularly Section 5.24 thereof, insofar as they punish any
healthcare service provider who fails and/or refuses to refer a
patient not in an emergency or life-threatening case, as defined
under Republic Act No. 8344, to another health care service
provider within the same facility or one which is conveniently
accessible regardless of his or her religious beliefs;

6) Section 23(b) and the corresponding provision in the RH-IRR,

particularly Section 5 .24 thereof, insofar as they punish any public
officer who refuses to support reproductive health programs or shall
do any act that hinders the full implementation of a reproductive
health program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR

regarding the rendering of pro bona reproductive health service in
so far as they affect the conscientious objector in securing
PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added

the qualifier "primarily" in defining abortifacients and contraceptives,
as they are ultra vires and, therefore, null and void for contravening
Section 4(a) of the RH Law and violating Section 12, Article II of the
Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as
extended by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as

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