Title II-Cases and Laws

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CRIMINAL LAW 2| Part 1: FULL TEXT OF CASES| Part 2: Related Special Laws ESTRELLADO-VIADA 2013-2014

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ARBITRARY DETENTION

EN BANC

G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL,ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and

NICANOR P. DURAL, FELICITAS V. SESE, petitioners,

vs.

FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON

MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents.

R E S O L U T I O N

PER CURIAM:

Before the Court are separate motions filed by the petitioners in the above-

entitled petitions, seeking reconsideration of the Court's decision

promulgated on 9 July 1990 (the decision, for brevity) which dismissed the

petitions, with the following dispositive part:

WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.

85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is

hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with thestatement that the decision did not rule — as many misunderstood it to do

— that mere suspicion that one is Communist Party or New People's Army

member is a valid ground for his arrest without warrant. Moreover, the

decision merely applied long existing lawsto the factual situations obtaining

in the several petitions. Among these laws are th outlawing the Communist

Party of the Philippines (CPP) similar organizations and penalizing

membership therein be dealt with shortly). It is elementary, in this

connection, if these laws no longer reflect the thinking or sentiment of the

people, it is Congress as the elected representative of the people — not the

Court — that should repeal, change or modify them.

In their separate motions for reconsideration, petitioners, in sum, maintain:

1. That the assailed decision, in upholding the validity of the questioned

arrests made without warrant, and in relying on the provisions of the Rules

of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that

such arrests violated the constitutional rights of the persons arrested;

2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan

vs. Enrile 2 should be abandoned;

3. That the decision erred in considering the admissions made by the persons

arrested as to their membership in the Communist Party of the

Philippines/New People's Army, and their ownership of the unlicensed

firearms, ammunitions and subversive documents found in their possession

at the time of arrest, inasmuch as those confessions do not comply with the

requirements on admissibility of extrajudicial admissions;

4. That the assailed decision is based on a misappreciation of facts;

5. That G.R. No. 81567 (the Umil case) should not be deemed moot and

academic.

We find no merit in the motions for reconsideration.

It can not be overlooked that these are petitions for the issuance of the writ

of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ

of habeas corpus exists as a speedy and effective remedy to relieve persons

from unlawful restraint . 4 Therefore, the function of the special proceedings

of habeas corpus is to inquire into the legality of one's detention, 5 so that if

detention is illegal, the detainee may be ordered forthwit released.

In the petitions at bar, to ascertain whether the detention petitioners was

illegal or not, the Court before rendering decision dated 9 July 1990, looked

into whether their questioned arrests without warrant were made in

accordance with law. For, if the arrests were made in accordance with law,

would follow that the detention resulting from such arrests also in

accordance with law.

There can be no dispute that, as a general rule, no peace officer or person

has the power or authority to arrest anyo without a warrant of arrest, except

in those cases express authorized by law . 6 The law expressly allowing arrests




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witho warrant is found in Section 5, Rule 113 of the Rules of Court which

states the grounds upon which a valid arrest, without warrant , can be

conducted.

In the present cases, the focus is understandably on Section 5, paragraphs (a)

and (b) of the said Rule 113, which read:

Sec. 5. Arrest without warrant ; when lawful . — A peace officer or a private

person may, without a warrant , arrest a person:

(a) When, in his presence, the person to he arrested has committed, is

actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal

knowledge of facts indicating that the person to be arrest has committed it;

and

. . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R.No. 81567) without warrant is justified it can be said that, within the

contemplation of Section 5 Rule 113, he (Dural) was committing an offense,

when arrested because Dural was arrested for being a member of the New

People's Army, an outlawed organization, where membership

penalized, 7 and for subversion which, like rebellion is, under the doctrine

of Garcia vs. Enrile, 8 a continuing offense, thus:

The crimes of insurrection or rebellion, subversion, conspiracy or proposal to

commit such crimes, and other crimes and offenses committed in the

furtherance (sic) on the occasion thereof, or incident thereto, or inconnection therewith under Presidential Proclamation No. 2045, are all in the

nature of continuing offenses which set them apart from the common

offenses, aside from their essentially involving a massive conspiracy of

nationwide magnitude. . . .

Given the ideological content of membership in the CPP/NPA which includes

armed struggle for the overthrow of organized government, Dural did not

cease to be, or became less of a subversive, FOR PURPOSES OF ARREST,

simply because he was, at the time of arrest, confined in the St. Agnes

Hospital. Dural was identified as one of several persons who the day before

his arrest, without warrant, at the St. Agnes Hospital, had shot two (2)

CAPCOM policemen in their patrol car. That Dural had shot the two (2)

policemen in Caloocan City as part of his mission as a "sparrow" (NPA

member) did not end there and then. Dural, given another opportunity,

would have shot or would shoot other policemen anywhere as agents or

representatives of organized government. It is in this sense that subversion

like rebellion (or insurrection) is perceived here as a continuing offense.

Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc.,

which generally end upon their commission, subversion and rebellion are

anchored on an ideological base which compels the repetition of the same

acts of lawlessness and violence until the overriding objective of

overthrowing organized government is attained.

Nor can it be said that Dural's arrest was grounded on mere suspicion by the

arresting officers of his membership in the CPP/NPA. His arrest was based on

"probable cause," as supported by actual facts that will be shown hereafter.

Viewed from another but related perspective, it may also be said, under thefacts of the Umil case, that the arrest of Dural falls under Section 5, paragraph

(b), Rule 113 of the Rules of Court, which requires two (2) conditions for a

valid arrestt without warrant: first , that the person to be arrested has just

committed an offense, and second , that the arresting peace officer or private

person has personal knowledge of facts indicating that the person to be

arrested is the one who committed the offense. Section 5(b), Rule 113, it will

be noted, refers to arrests without warrant, based on "personal knowledge

of facts" acquired by the arresting officer or private person.

It has been ruled that "personal knowledge of facts," in arrests withoutwarrant must be based upon probable cause, which means an actual belief or

reasonable grounds of suspicion 9

The grounds of suspicion are reasonable when, in the absence of actual belief

of the arresting officers, the suspicion that the person to be arrested is

probably guilty of committing the offense, is based on actual facts, i.e.,

supported by circumstances sufficiently strong in themselves to create the

probable cause of guilt of the person to be arrested. 10 A reasonable

suspicion therefore must be founded on probable cause, coupled with good

faith on the part of the peace officers making the arrest . 11




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These requisites were complied with in the Umil case and in the other cases

at bar.

In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were

dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify

a confidential information which was received by their office, about a

"sparrow man" (NPA member) who had been admitted to the said hospital

with a gunshot wound; that the information further disclosed that thewounded man in the said hospital was among the five (5) male "sparrows"

who murdered two (2) Capcom mobile patrols the day before, or on 31

January 1988 at about 12:00 o'clock noon, before a road hump along

Macanining St., Bagong Barrio, Caloocan City; that based on the same

information, the wounded man's name was listed by the hospital

management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot

4, South City Homes, Biñan, Laguna. 12

Said confidential information received by the arresting officers, to the effect

that an NPA member ("sparrow unit") was being treated for a gunshot woundin the named hospital, is deemed reasonable and with cause as it was based

on actual facts and supported by circumstances sufficient to engender a

belief that an NPA member was truly in the said hospital. The actual facts

supported by circumstances are: first — the day before, or on 31 January

1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan

City by five (5) "sparrows" including Dural; second — a wounded person listed

in the hospital records as "Ronnie Javellon" was actually then being treated

in St. Agnes Hospital for a gunshot wound; third — as the records of this case

disclosed later, "Ronnie Javellon" and his address entered in the hospital

records were fictitious and the wounded man was in reality Rolando Dural.

In fine, the confidential information received by the arresting officers merited

their immediate attention and action and, in fact, it was found to be true.

Even the petitioners in their motion for reconsideration, 13 believe that the

confidential information of the arresting officers to the effect that Dural was

then being treated in St. Agnes Hospital was actually received from the

attending doctor and hospital management in compliance with the directives

of the law, 14 and, therefore, came from reliable sources.

As to the condition that "probable cause" must also be coupled with actsdone in good faith by the officers who make the arrest, the Court notes that

the peace officers wno arrested Dural are deemed to have conducted the

same in good faith, considering that law enforcers are presumed to regularly

perform their official duties. The records show that the arresting officers did

not appear to have been ill-motivated in arresting Dural. 15 It is therefore

clear that the arrest, without warrant, of Dural was made in compliance with

the requirements of paragraphs (a) and (b) of Section 5, Rule 113.

Parenthetically, it should be mentioned here that a few day after Dural'sarrest, without warrant, an information charging double murder with assault

against agents of persons in authority was filed against Dural in the Regional

Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus

promptly placed under judicial custody (as distinguished fro custody of the

arresting officers). On 31 August 1988, he wa convicted of the crime charged

and sentenced to reclusion perpetua. The judgment of conviction is now on

appeal before this Court in G.R. No. 84921.

As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo

Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No.83162), their arrests, without warrant, are also justified. They were searched

pursuant to search warrants issued by a court of law and were found wit

unlicensed firearms, explosives and/or ammunition in their persons. They

were, therefore, caught in flagrante delicto which justified their outright

arrests without warrant, under Sec 5(a), Rule 113, Rules of Court.

Parenthetically, it should be mentioned here that a few davs after their

arrests without warrant, informations were filed in court against said

petitioners, thereby placing them within judicial custody and disposition.

Furthermore, Buenaobra mooted his own petition fo habeas corpus by

announcing to this Court during the hearing of these petitions that he had

chosen to remain in detention in the custody of the authorities.

More specifically, the antecedent facts in the "in flagrante" cases are:

1. On 27 June 1988, the military agents received information imparted by a

former NPA about the operations of the CPP and NPA in Metro Manila and

that a certain house occupied by one Renato Constantine, located in the

Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila

was being used as their safehouse; that in view of this information, the said

house was placed under military surveillance and on 12 August1988, pursuant to a search warrant duly issued by court , a search of the house




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was conducted; that when Renato Constantine was then confronted he could

not produce any permit to possess the firearms, ammunitions, radio and

other communications equipment, and he admitted that he was a ranking

member of the CPP. 16

2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato

Constantino in the evening of 12 August 1988, and admitted that he was an

NPA courier and he had with him letters to Renato Constantine and othermembers of the rebel group.

3. On the other hand, the arrest of Amelia Roque was a consequence of the

arrest of Buenaobra who had in his possession papers leading to the

whereabouts of Roque; 17 that, at the time of her arrest, the military agents

found subversive documents and live ammunitions, and she admitted then

that the documents belonged to her. 18

4. As regards Domingo Anonuevo and Ramon Casiple they were arrested

without warrant on 13 August 1988, when they arrived at the said house of

Renato Constantine in the evening of said date; that when the agents frisked

them, subversive documents, and loaded guns were found in the latter's

possession but failing to show a permit to possess them. 19

5. With regard to Vicky Ocaya, she was arrested, without warrant when she

arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon

who was believed to be the head of the CPP/NPA, and whose house was

subject of a search warrant duly issued by the court . At the time of her arrest

without warrant the agents of the PC-Intelligence and Investigation found

ammunitions and subversive documents in the car of Ocaya. 20

It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple

and Ocaya) that the reason which compelled the military agents to make the

arrests without warrant was the information given to the military authorities

that two (2) safehouses (one occupied by Renato Constantine and the other

by Benito Tiamzon) were being used by the CPP/NPA for their operations,

with information as to their exact location and the names of Renato

Constantine and Benito Tiamzon as residents or occupants thereof.

And at the time of the actual arrests, the following circumstances surrounded

said arrests (of Roque, Buenaobra, Anonuevo and Casiple),which confirmed the belief of the military agents that the information they

had received was true and the persons to be arrested were probably guilty of

the commission of certain crimes: first : search warrant was duly issued to

effect the search of the Constantine safehouse; second : found in the

safehouse was a person named Renato Constantine, who admitted that he

was a ranking member of the CPP, and found in his possession were

unlicensed firearms and communications equipment; third : at the time of

their arrests, in their possession were unlicensed firearms, ammunitions

and/or subversive documents, and they admitted ownership thereof as well

as their membership in the CPP/NPA. And then, shortly after their arrests,

they were positively identified by their former comrades in the organization

as CPP/NPA members. In view of these circumstances, the corresponding

informations were filed in court against said arrested persons. The records

also show that, as in the case of Dural, the arrests without warrant made by

the military agents in the Constantino safehouse and later in the Amelia

Roque house, do not appear to have been ill-motivated or irregularly

performed.

With all these facts and circumstances existing before, during and after the

arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo,

Casiple and Ocaya), no prudent an can say that it would have been better for

the military agents not to have acted at all and made any arrest. That would

have been an unpardonable neglect of official duty and a cause for

disciplinary action against the peace officers involved.

For, one of the duties of law enforcers is to arrest lawbreakers in order to

place them in the hands of executive and judicial authorities upon whom

devolves the duty to investigate the acts constituting the alleged violation of

law and to prosecute and secure the punishment therefor. 21 An arrest is

therefore in the nature of an administrative measure. The power to arrest

without warrant is without limitation as long as the requirements of Section

5, Rule 113 are met. This rule is founded on an overwhelming public interest

in peace and order in our communities.

In ascertaining whether the arrest without warrant is conducted in

accordance with the conditions set forth in Section 5, Rule 113, this Court

determines not whether the persons arrested are indeed guilty of committing

the crime for which they were arrested. 22 Not evidence of guilt, but

"probable cause" is the reason that can validly compel the peace officers, in




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the performance of their duties and in the interest of public order, to conduct

an arrest without warrant. 23

The courts should not expect of law-enforcers more than what the law

requires of them. Under the conditions set forth in Section 5, Rule 113,

particularly paragraph (b) thereof, even if the arrested persons are later

found to be innocent and acquitted, the arresting officers are not

liable. 24 But if they do not strictly comply with the said conditions, thearresting officers can be held liable for the crime of arbitrary detention, 25 for

damages under Article 32 of the Civil Code 26 and/or for other administrative

sanctions.

In G.R. No. 85727 , Espiritu, on 23 November 1988, was arrested without

warrant, on the basis of the attestation of certain witnesses: that about 5:00

o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay

Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering

of drivers and sympathizers, where he said, among other things:

Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis

supplied)

and that the police authorities were present during the press conference held

at the National Press Club (NPC) on 22 November 1988 where Espiritu called

for a nationwide strike (of jeepney and bus drivers) on 23 November

1988. 28 Espiritu was arrested without warrant, not for subversion or any

"continuing offense," but for uttering the above-quoted language which, in

the perception of the arresting officers, was inciting to sedition.

Many persons may differ as to the validity of such perception and regard thelanguage as falling within free speech guaranteed by the Constitution. But,

then, Espiritu had not lost the right to insist, during the pre-trial or trial on

the merits, that he was just exercising his right to free speech regardless of

the charged atmosphere in which it was uttered. But, the authority of the

peace officers to make the arrest, without warrant, at the time the words

were uttered, or soon thereafter, is still another thing. In the balancing of

authority and freedom, which obviously becomes difficult at times, the Court

has, in this case, tilted the scale in favor of authority but only for purposes of

the arrest (not conviction). Let it be noted that the Court has ordered the bail

for Espiritu's release to be reduced from P60,000.00 to P10,000.00.

Let it also be noted that supervening events have made the Espiritu case moot

and academic. For Espiritu had before arraignment asked the court a quo for

re-investigation, the peace officers did not appear. Because of this

development, the defense asked the court a quo at the resumption of the

hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-

68385) has been provisionally dismissed and his bail bond cancelled.

In G.R. No. 86332 (Nazareno), the records show that in the morning of 14December 1988, Romulo Bunye II was killed by a group of men in Alabang,

Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28

December 1988, Ramil Regala, one of the suspects in the said killing, was

arrested and he pointed to Narciso Nazareno as one of his companions during

the killing of Bunye II; that at 7:20 of the same morning (28 December 1988),

the police agents arrested Nazareno, without warrant, for investigation. 29

Although the killing of Bunye II occurred on 14 December 1988, while

Nazareno's arrest without warrant was made only on 28 December 1988, or

14 days later, the arrest fans under Section 5(b) of Rule 113, since it was onlyon 28 December 1988 that the police authorities came to know that Nazareno

was probably one of those guilty in the killing of Bunye II and the arrest had

to be made promptly, even without warrant, (after the police were alerted)

and despite the lapse of fourteen (14) days to prevent possible flight.

As shown in the decision under consideration, this Court, in upholding the

arrest without warrant of Nazareno noted several facts and events

surrounding his arrest and detention, as follows:

. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an

information charging Narciso Nazareno, Ramil Regala and two (2) others, with

the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati,

Metro Manila. The case is dock eted therein as Criminal Case No. 731.

On 7 January 1989, Narciso Nazareno filed a motion to post bail but the

motion was denied by the trial court in an order dated 10 January 1989, even

as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga,

was granted by the same trial court.

On 13 January 1989, a petition for habeas corpus was filed with this Court on

behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writof habeas corpus, retumable to the Presiding Judge of the Regional Trial Court




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of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30

January 1989 and thereafter resolve the petition.

At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge

of the Regional Trial Court of Biñan, Laguna issued a resolution denying the

petition for habeas corpus, it appearing that the said Narciso Nazareno is in

the custody of the respondents by reason of an information filed against him

with the Regional Trial Court of Makati, Metro Manila which liad takencognizance of said case and had, in fact, denied the motion for bail filed by

said Narciso Nazareno (presumably because of the strength of the evidence

against him).

This Court reiterates that shortly after the arrests

of Espiritu and Nazareno, the corresponding informations against them were

filed in court. The arrests of Espiritu and Nazareno were based on probable

cause and supported by factual circumstances. They complied with

conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or

whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been

convicted by the court a quo for murder and sentenced to reclusion perpetua.

He has appealed the judgment of conviction to the Court of Appeals where it

is pending as of this date ( CA-G.R. No. still undocketed).

Petitioners contend that the decision of 9 July 1990 ignored the contitution

requisiteds for admissibility of an extrajudicial admission.

In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was

an NPA courier. On the other hand, in the case of Amelia Roque, sheadmitted 31 that the unlicensed firearms, ammunition and subversive

documents found in her possession during her arrest, belonged to her.

The Court, it is true, took into account the admissions of the arrested persons

of their membership in the CPP/NPA, as well as their ownership of the

unlicensed firearms, ammunitions and documents in their possession. But

again, these admissions, as revealed by the records, strengthen the Court's

perception that truly the grounds upon which the arresting officers based

their arrests without warrant, are supported by probable cause, i.e. that the

persons arrested were probably guilty of the commission of certain offenses,in compliance with Section 5, Rule 113 of the Rules of Court. To note these

admissions, on the other hand, is not to rule that the persons arrested are

already guilty of the offenses upon which their warrantless arrests were

predicated. The task of determining the guilt or innocence of persons

arrested without warrant is not proper in a petition for habeas corpus. It

pertains to the trial of the case on the merits.

As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan

vs. Enrile should be abandoned, this Court finds no compelling reason at thistime to disturb the same, particularly ln the light of prevailing conditions

where national security and liability are still directly challenged perhaps with

greater vigor from the communist rebels. What is important is that everv

arrest without warrant be tested as to its legality via habeas

corpus proceeding. This Court. will promptly look into — and all other

appropriate courts are enjoined to do the same — the legality of the arrest

without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of

Court, as elucidated in this Resolution, are not met, then the detainee shall

forthwith be ordered released; but if such conditions are met, then the

detainee shall not be made to languish in his detention but must be promptly

tried to the end that he may be either acquitted or convicted, with the least

delay, as warranted by the evidence.

A Final Word

This Resolution ends as it began, reiterating that mere suspicion of being a

Communist Party member or a subversive is absolutely not a ground for the

arrest without warrant of the suspect. The Court predicated the validity of

the questioned arrests without warrant in these petitions, not on mere

unsubstantiated suspicion, but on compliance with the conditions set forth inSection 5, Rule 113, Rules of Court, a long existing law, and which, for stress,

are probable cause and good faith of the arresting peace officers, and,

further, on the basis of, as the records show, the actual facts and

circumstances supporting the arrests. More than the allure of popularity or

palatability to some groups, what is important is that the Court be right .

ACCORDINGLY, the motions for reconsideration of the decision dated 9 July

1990, are DENIED. This denial is FINAL.

SO ORDERED.






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Immediately, upon receipt of said information, a joint team of PC-INP units,

composed of fifteen (15) members, headed by Captain Melchesideck Bargio,

(PC), on the following day, May 13, 1982, was dispatched at Tiguman; Davao

del Sur, to arrest accused Ruben Burgos. The team left the headquarter at

1:30 P.M., and arrived at Tiguman, at more or less 2:00 o'clock PM where

through the help of Pedro Burgos, brother of accused, the team was able to

locate accused, who was plowing his field. (TSN, pages 6-7, Hearing-October

14, 1982).

Right in the house of accused, the latter was caned by the team and Pat. Bioco

asked accused about his firearm, as reported by Cesar Masamlok. At first

accused denied possession of said firearm but later, upon question

profounded by Sgt. Alejandro Buncalan with the wife of the accused, the

latter pointed to a place below their house where a gun was buried in the

ground. (TSN, page 8, Hearing-October 14, 1982).

Pat. Bioco then verified the place pointed by accused's wife and dug the

grounds, after which he recovered the firearm, Caliber .38 revolver, markedas Exhibit "A" for the prosecution.

After the recovery of the firearm, accused likewise pointed to the team,

subversive documents which he allegedly kept in a stock pile of qqqcogon at

a distance of three (3) meters apart from his house. Then Sgt. Taroy

accordingly verified beneath said cogon grass and likewise recovered

documents consisting of notebook colored maroon with spiral bound, Exhibit

"B" for the prosecution; a pamphlet consisting of eight (8) leaves, including

the front and back covers entitled Ang Bayan, Pahayagan ng Partido

Komunista ng Pilipinas, Pinapatnubayan ng Marxismo, Leninismo KaisipangMao qqqZedong dated December 31, 1980, marked as Exhibit "C", and

another pamphlet Asdang Pamantalaang Masa sa Habagatang Mindanao,

March and April 1981 issue, consisting of ten (10) pages, marked as Exhibit

"D" for the prosecution.

Accused, when confronted with the firearm Exhibit "A", after its recovery,

readily admitted the same as issued to him by Nestor Jimenez, otherwise

known as a certain Alias Pedipol, allegedly team leader of the sparrow unit of

New People's Army, responsible in the liquidation of target personalities,

opposed to NPA Ideological movement, an example was the killing of the late

Mayor Llanos and Barangay Captain of Tienda Aplaya Digos, Davao del Sur.

(TSN, pages 1-16, Hearing-October 14,1982).

To prove accused's subversive activities, Cesar Masamlok, a former NPA

convert was presented, who declared that on March 7, 1972, in his former

residence at Tiguman Digos, Davao del Sur, accused Ruben Burgos,

accompanied by his companions Landrino Burgos, Oscar Gomez and Antonio

Burgos, went to his house at about 5:00 o'clock P.M. and called himdownstair. Thereupon, accused told Masamlok, their purpose was to ask rice

and one (1) peso from him, as his contribution to their companions, the NPA

of which he is now a member. (TSN, pages 70, 71, 72, Hearing-January 4,

1983).

Accused and his companions told Masamlok, he has to join their group

otherwise, he and his family will be killed. He was also warned not to reveal

anything with the government authorities. Because of the threat to his life

and family, Cesar Masamlok joined the group. Accused then told him, he

should attend a seminar scheduled on April 19, 1982. Along with thisinvitation, accused pulled gut from his waistline a .38 caliber revolver which

Masamlok really saw, being only about two (2) meters away from accused,

which make him easily Identified said firearm, as that marked as Exhibit "A"

for the prosecution. (TSN, pages 72, 73, and 74, Hearing-January 4, 1983).

On April 19, 1982, as previously invited, Masamlok, accompanied by his

father, Matuguil Masamlok, Isabel Ilan and Ayok Ides went to the house of

accused and attended the seminar, Those present in the seminar were:

accused Ruben Burgos, Antonio Burgos, Oscar Gomez, Landrino Burgos, alias

Pedipol and one alias Jamper.

The first speaker was accused Ruben Burgos, who said very distinctly that he

is an NPA together with his companions, to assure the unity of the civilian.

That he encouraged the group to overthrow the government, emphasizing

that those who attended the seminar were already members of the NPA, and

if they reveal to the authorities, they will be killed.

Accused, while talking, showed to the audience pamphlets and documents,

then finally shouted, the NPA will be victorious. Masamlok likewise Identified

the pamphlets as those marked as Exh. exhibits "B", "C", and "D" for the

prosecution. (TSN, pages 75, 76 and 77, Hearing-January 4, 1983)




9

Other speakers in said meeting were Pedipol, Jamper and Oscar Gomez, who

likewise expounded their own opinions about the NPA. It was also announced

in said seminar that a certain Tonio Burgos, will be responsible for the

collection of the contribution from the members. (TSN, pages 78-79, Hearing-

January 4, 1983)

On May 12, 1982, however, Cesar Masamlok surrendered to Captain Bargio

of the Provincial Headquarters of the Philippine Constabulary, Digos, Davaodel Sur.

Assistant Provincial Fiscal Panfilo Lovitos was presented t prove that on May

19, 1982, he administered the subscription of th extra-judicial confession of

accused Ruben Burgos, marked as Exhibit "E " for the prosecution, consisting

of five (5) pages.

Appearing voluntarily in said office, for the subscription of his confession,

Fiscal Lovitos, realizing that accused was not represented by counsel,

requested the services of Atty. Anyog, whose office is adjacent to the Fiscal's

Office, to assist accused in the subscription of his extra-judicial statement.

Atty. Anyog assisted accused in the reading of his confession from English to

Visayan language, resulting to the deletion of question No. 19 of the

document, by an inserted certification of Atty. Anyog and signature of

accused, indicating his having understood, the allegations of his extra-judicial

statement.

Fiscal Lovitos, before accused signed his statement, explained to him his

constitutional rights to remain silent, right to counsel and right to answer any

question propounded or not.

With the aid of Atty. Anyog, accused signed his confession in the presence of

Atty. Anyog and Fiscal Lovitos, without the presence of military authorities,

who escorted the accused, but were sent outside the cubicle of Fiscal Lovitos

while waiting for the accused. (TSN, pages 36-40, nearing November 15,

1982)

Finally, in order to prove illegal possession by accused of the subject firearm,

Sgt. Epifanio Comabig in-charge of firearms and explosives, NCO

Headquarter, Philippine Constabulary, Digos, Davao del Sur, was presented

and testified, that among the lists of firearm holders in Davao del Sur, nothing

was listed in the name of accused Ruben Burgos, neither was his name

included among the lists of persons who applied for the licensing of the

firearm under Presidential Decree No. 1745.

After the above-testimony the prosecution formally closed its case and

offered its exhibits, which were all admitted in evidence, despite objection

interposed by counsel for accused, which was accordingly overruled.

On the other hand, the defendant-appellant's version of the case against him

is stated in the decision as follows:

From his farm, the military personnel, whom he said he cannot recognize,

brought him to the PC Barracks at Digos, Davao del Sur, and arrived there at

about 3:00 o'clock, on the same date. At about 8:00 o'clock P.M., in the

evening, he was investigated by soldiers, whom he cannot Identify because

they were wearing a civilian attire. (TSN, page 14 1, Hearing-June 15, 1983)

The investigation was conducted in the PC barracks, where he was detained

with respect to the subject firearm, which the investigator, wished him toadmit but accused denied its ownership. Because of his refusal accused was

mauled, hitting him on the left and right side of his body which rendered him

unconscious. Accused in an atmosphere of tersed solemnity, crying and with

emotional attachment, described in detail how he was tortured and the

ordeals he was subjected.

He said, after recovery of his consciousness, he was again confronted with

subject firearm, Exhibit "A", for him to admit and when he repeatedly refused

to accept as his own firearm, he was subjected to further prolong (sic) torture

and physical agony. Accused said, his eyes were covered with wet black clothwith pungent effect on his eyes. He was undressed, with only blindfold,

pungent water poured in his body and over his private parts, making his

entire body, particularly his penis and testicle, terribly irritating with pungent

pain.

All along, he was investigated to obtain his admission, The process of beating,

mauling, pain and/or ordeal was repeatedly done in similar cycle, from May

13 and 14, 1982. intercepted only whenever he fell unconscious and again

repeated after recovery of his senses,




10

Finally on May 15, 1982, after undergoing the same torture and physical

ordeal he was seriously warned, if he will still adamantly refuse to accept

ownership of the subject firearm, he will be salvaged, and no longer able to

bear any further the pain and agony, accused admitted ownership of subject

firearm.

After his admission, the mauling and torture stopped, but accused was made

to sign his affidavit marked as Exhibit "E" for the prosecution, consisting offive (5) pages, including the certification of the administering officer, (TSN,

pages 141-148, Hearing-June 15, 1983)

In addition to how he described the torture inflicted on him, accused, by way

of explanation and commentary in details, and going one by one, the

allegations and/or contents of his alleged extrajudicial statement, attributed

his answers to those questions involuntarily made only because of fear,

threat and intimidation of his person and family, as a result of unbearable

excruciating pain he was subjected by an investigator, who, unfortunately he

cannot Identify and was able to obtain his admission of the subject firearm,by force and violence exerted over his person.

To support denial of accused of being involved in any subversive activities,

and also to support his denial to the truth of his alleged extra-judicial

confession, particularly questions Nos. 35, 38, 41, 42, 43, 44, 45, 46 and 47,

along with qqqs answers to those questions, involving Honorata Arellano

ahas Inday Arellano, said Honorata Arellano appeared and declared

categorically, that the above-questions embraced in the numbers allegedly

stated in the extrajudicial confession of accused, involving her to such NPA

personalities, as Jamper, Pol, Anthony, etc., were not true because on thedate referred on April 28, 1982, none of the persons mentioned came to her

house for treatment, neither did she meet the accused nor able to talk with

him. (TSN, pages 118- 121, Hearing-May 18, 1983)

She, however, admitted being familiar with one Oscar Gomez, and that she

was personally charged with subversion in the Office of the Provincial

Commander, Philippine Constabulary, Digos, Davao del Sur, but said charge

was dismissed without reaching the Court. She likewise stated that her son,

Rogelio Arellano, was likewise charged for subversion filed in the Municipal

Trial Court of Digos, Davao del Sur, but was likewise dismissed for lack of

sufficient evidence to sustain his conviction. (TSN, pages 121-122, in relation

to her cross-examination, Hearing-May 18, 1983)

To support accused's denial of the charge against him, Barangay Captain of

Tiguman, Digos, Davao del Sur, Salvador qqqGalaraga was presented, who

declared, he was not personally aware of any subversive activities of accused,

being his neighbor and member of his barrio. On the contrary, he can

personally attest to his good character and reputation, as a law abiding citizenof his barrio, being a carpenter and farmer thereat. (TSl pages 128-129,

Hearing-May 18, 1983)

He however, admitted in cross-examination, that there were a lot of arrests

made by the authorities in his barrio involving subversive activities but they

were released and were not formally charged in Court because they publicly

took their oath of allegiance with the government. (TSN, pages 133-134, in

relation to page 136, Hearing-May 18, 1983)

Finally, to support accused's denial of the subject firearm, his wife, Urbana

Burgos, was presented and who testified that the subject firearm was left in

their house by Cesar Masamlok and one Pedipol on May 10, 1982. It was night

time, when the two left the gun, alleging that it was not in order, and that

they will leave it behind, temporarily for them to claim it later. They were the

ones who buried it. She said, her husband, the accused, was not in their house

at that time and that she did not inform him about said firearm neither did

she report the matter to the authorities, for fear of the life of her husband.

(TSN, page 24, November 22, 1983)

On cross-examination, she said, even if Masamlok during the recovery of the

firearm, was wearing a mask, she can still Identify him. (TSN, page 6, Hearing-

November 22, 1983)

After the above-testimony, accused through counsel formally rested his case

in support of accused's through counsel manifestation for the demurrer to

evidence of the prosecution, or in the alternative for violation merely of

simple illegal possession of firearm, 'under the Revised Administrative Code,

as amended by Republic Act No. 4, reflected in the manifestation of counsel

for accused. (TSN, pages 113-114, Hearing-May 18, 1983)

Accused-appellant Ruben Burgos now raises the following assignments oferror, to wit:




11

I THE TRIAL COURT ERRED IN HOLDING THAT (SIC) THE ARREST OF ACCUSED-

APPELLANT WITHOUT VALID WARRANT TO BE LAWFUL.

II THE TRIAL COURT ERRED IN HOLDING THE SEARCH IN THE HOUSE OF

ACCUSED-APPELLANT FOR FIREARM WITHOUT VALID WARRANT TO BE

LAWFUL.

III THE TRIAL COURT ERRED IN HOLDING ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT FOR VIOLATION OF P.D. No. 9 IN RELATION TO

GENERAL ORDERS NOS. 6 AND 7

Was the arrest of Ruben Burgos lawful? Were the search of his house and the

subsequent confiscation of a firearm and documents allegedly found therein

conducted in a lawful and valid manner? Does the evidence sustaining the

crime charged meet the test of proving guilt beyond reasonable doubt?

The records of the case disclose that when the police authorities went to the

house of Ruben Burgos for the purpose of arresting him upon information

given by Cesar Masamlok that the accused allegedly recruited him to join theNew People's Army (NPA), they did not have any warrant of arrest or search

warrant with them (TSN, p. 25, October 14, 1982; and TSN, p. 61, November

15, 1982).

Article IV, Section 3 of the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures of whatever nature and

for any purpose shall not be violated, and no search warrant or warrant of

arrest shall issue except upon probable cause to be determined by the judge,

or such other responsible officer as may be authorized by law, after

examination under oath or affirmation of the complainant and the witnesses

he may produce, and particularly describing the place to be searched, and the

persons or things to be seized.

The constitutional provision is a safeguard against wanton and unreasonable

invasion of the privacy and liberty of a citizen as to his person, papers and

effects. This Court explained in Villanueva vs. Querubin (48 SCRA 345) why

this right is so important:

It is deference to one's personality that lies at the core of this right, but it

could be also looked upon as a recognition of a constitutionally protected

area, primarily one's home, but not necessarily thereto confined. (Cf. Hoffa v.

United States, 385 US 293 [19661) What is sought to be guarded is a man's

prerogative to choose who is allowed entry to his residence. In that haven of

refuge, his individuality can assert itself not only in the choice of who shall be

welcome but likewise in the kind of objects he wants around him. There the

state, however powerful, does not as such have access except under the

circumstances above noted, for in the traditional formulation, his house,

however humble, is his castle. Thus is outlawed any unwarranted intrusion

by government, which is called upon to refrain from any invasion of his

dwelling and to respect the privacies of his life, (Cf. Schmerber v. California,

384 US 757 [1966], Brennan, J. and Boyd v. United States, 116 US 616, 630

[1886]). In the same vein, Landynski in his authoritative work (Search and

Seizure and the Supreme Court [1966], could fitly characterize this

constitutional right as the embodiment of a 'spiritual concept: the belief that

to value the privacy of home and person and to afford its constitutionalprotection against the long reach of government is no legs than to value

human dignity, and that his privacy must not be disturbed except in case of

overriding social need, and then only under stringent procedural safeguards.'

(Ibid , p. 47).

The trial court justified the arrest of the accused-appelant without any

warrant as falling under one of the instances when arrests may be validly

made without a warrant. Rule 113, Section 6 * of the Rules of Court, provides

the exceptions as follows:

a) When the person to be arrested has committed, is actually committing, or

is about to commit an offense in his presence;

b) When an offense has in fact been committed, and he has reasonable

ground to believe that the person to be arrested has committed it;

c) When the person to be arrested is a prisoner who has escaped from a penal

establishment or place where he is serving final judgment or temporarily

confined while his case is pending or has escaped while being transferred

from one confinement to another.




12

The Court stated that even if there was no warrant for the arrest of Burgos,

the fact that "the authorities received an urgent report of accused's

involvement in subversive activities from a reliable source (report of Cesar

Masamlok) the circumstances of his arrest, even without judicial warrant, is

lawfully within the ambit of Section 6-A of Rule 113 of the Rules of Court and

applicable jurisprudence on the matter."

If the arrest is valid, the consequent search and seizure of the firearm and thealleged subversive documents would become an incident to a lawful arrest as

provided by Rule 126, Section 12, which states:

A person charged with an offense may be searched for dangerous weapons

or anything which may be used as proof of the commission of the offense.

The conclusions reached by the trial court are erroneous.

Under Section 6(a) of Rule 113, the officer arresting a person who has just

committed, is committing, or is about to commit an offense must

have personal knowledge of that fact. The offense must also be committed inhis presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859).

There is no such personal knowledge in this case. Whatever knowledge was

possessed by the arresting officers, it came in its entirety from the

information furnished by Cesar Masamlok. The location of the firearm was

given by the appellant's wife.

At the time of the appellant's arrest, he was not in actual possession of any

firearm or subversive document. Neither was he committing any act which

could be described as subversive. He was, in fact, plowing his field at the time

of the arrest.

The right of a person to be secure against any unreasonable seizure of his

body and any deprivation of his liberty is a most basic and fundamental one.

The statute or rule which allows exceptions to the requirement of warrants

of arrest is strictly construed. Any exception must clearly fall within the

situations when securing a warrant would be absurd or is manifestly

unnecessary as provided by the Rule. We cannot liberally construe the rule

on arrests without warrant or extend its application beyond the cases

specifically provided by law. To do so would infringe upon personal liberty

and set back a basic right so often violated and so deserving of full protection.

The Solicitor General is of the persuasion that the arrest may still be

considered lawful under Section 6(b) using the test of reasonableness. He

submits that. the information given by Cesar Masamlok was sufficient to

induce a reasonable ground that a crime has been committed and that the

accused is probably guilty thereof.

In arrests without a warrant under Section 6(b), however, it is not enough

that there is reasonable ground to believe that the person to be arrested hascommitted a crime. A crime must in fact or actually have been committed

first. That a crime has actually been committed is an essential precondition.

It is not enough to suspect that a crime may have been committed. The fact

of the commission of the offense must be undisputed. The test of reasonable

ground applies only to the identity of the perpetrator.

In this case, the accused was arrested on the sole basis of Masamlok's verbal

report. Masamlok led the authorities to suspect that the accused had

committed a crime. They were still fishing for evidence of a crime not yet

ascertained. The subsequent recovery of the subject firearm on the basis ofinformation from the lips of a frightened wife cannot make the arrest lawful,

If an arrest without warrant is unlawful at the moment it is made, generally

nothing that happened or is discovered afterwards can make it lawful. The

fruit of a poisoned tree is necessarily also tainted.

More important, we find no compelling reason for the haste with which the

arresting officers sought to arrest the accused. We fail to see why they failed

to first go through the process of obtaining a warrant of arrest, if indeed they

had reasonable ground to believe that the accused had truly committed a

crime. There is no showing that there was a real apprehension that theaccused was on the verge of flight or escape. Likewise, there is no showing

that the whereabouts of the accused were unknown,

The basis for the action taken by the arresting officer was the verbal report

made by Masamlok who was not required to subscribe his allegations under

oath. There was no compulsion for him to state truthfully his charges under

pain of criminal prosecution. (TSN, p. 24, October 14, 1982). Consequently,

the need to go through the process of securing a search warrant and a

warrant of arrest becomes even more clear. The arrest of the accused while

he was plowing his field is illegal. The arrest being unlawful, the search and




13

seizure which transpired afterwards could not likewise be deemed legal as

being mere incidents to a valid arrest.

Neither can it be presumed that there was a waiver, or that consent was given

by the accused to be searched simply because he failed to object. To

constitute a waiver, it must appear first that the right exists; secondly, that

the person involved had knowledge, actual or constructive, of the existence

of such a right; and lastly, that said person had an actual intention torelinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 689). The fact

that the accused failed to object to the entry into his house does not amount

to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770).

As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia V. Locsin

(supra)

xxx xxx xxx

. . . As the constitutional guaranty is not dependent upon any affirmative act

of the citizen, the courts do not place the citizen in the position of either

contesting an officer's authority by force, or waiving his constitutional rights;

but instead they hold that a peaceful submission to a search or seizure is not

a consent or an invitation thereto, but is merely a demonstration of regard

for the supremacy of the law. (56 C.J., pp. 1180, 1181).

We apply the rule that: "courts indulge every reasonable

presumptionagainst waiver of fundamental constitutional rights and that we

do not presume acquiescence in the loss of fundamental rights." (Johnson v.

Zerbst 304 U.S. 458).

That the accused-appellant was not apprised of any of his constitutionalrights at the time of his arrest is evident from the records:

A CALAMBA:

Q When you went to the area to arrest Ruben Burgos, you were not armed

with an arrest warrant?

A None Sir.

Q Neither were you armed with a search warrant?

A No Sir.

Q As a matter of fact, Burgos was not present in his house when you went

there?

A But he was twenty meters away from his house.

Q Ruben Burgos was then plowing his field?

A Yes Sir.

Q When you called for Ruben Burgos you interviewed him?

A Yes Sir.

Q And that you told him that Masamlok implicated him?

A No Sir.

Q What did you tell him?

A That we received information that you have a firearm, you surrender that

firearm, first he denied but when Sgt. Buncalan interviewed his wife, his wifetold him that it is buried, I dug the firearm which was wrapped with a

cellophane.

Q In your interview of Burgos you did not remind him of his rights under the

constitution considering that he was purposely under arrest?

A I did not.

Q As a matter of fact, he denied that he has ever a gun?

A Yes Sir.

Q As a matter of fact, the gun was not in his possession?

A It was buried down in his horse.

Q As a matter of fact, Burgos did not point to where it was buried?

A Yes Sir.

(TSN, pp. 25-26, Hearing-October 14, 1982)

Considering that the questioned firearm and the alleged subversive

documents were obtained in violation of the accused's constitutional rights




14

against unreasonable searches and seizures, it follows that they are

inadmissible as evidence.

There is another aspect of this case.

In proving ownership of the questioned firearm and alleged subversive

documents, the prosecution presented the two arresting officers who

testified that the accused readily admitted ownership of the gun after qqqs

wife pointed to the place where it was buried. The officers stated that it was

the accused himself who voluntarily pointed to the place where the alleged

subversive documents were hidden.

Assuming this to be true, it should be recalled that the accused was never

informed of his constitutional rights at the time of his arrest. So that when

the accused allegedly admitted ownership of the gun and pointed to the

location of the subversive documents after questioning, the admissions were

obtained in violation of the constitutional right against self-incrimination

under Sec. 20 of Art. IV of the Bill of Rights winch provides:

No person shall be compelled to be a witness against himself. Any person

under investigation for the commission of an offense shall have the right to

remain silent and to counsel, and to be informed of such right.. . .

The Constitution itself mandates that any evidence obtained in violation of

this right is inadmissible in evidence. Consequently, the testimonies of the

arresting officers as to the admissions made by the appellant cannot be used

against him.

The trial court validly rejected the extra-judicial confession of the accused as

inadmissible in evidence. The court stated that the appellant's having been

exhaustively subjected to physical terror, violence, and third degree

measures may not have been supported by reliable evidence but the failure

to present the investigator who conducted the investigation gives rise to the

"provocative presumption" that indeed torture and physical violence may

have been committed as stated.

The accused-appellant was not accorded his constitutional right to be

assisted by counsel during the custodial interrogation. The lower court

correctly pointed out that the securing of counsel, Atty. Anyog, to help the

accused when he subscribed under oath to his statement at the Fiscal's Office

was too late. It could have no palliative effect. It cannot cure the absence of

counsel at the time of the custodial investigation when the extrajudicial

statement was being taken.

With the extra-judicial confession, the firearm, and the alleged subversive

documents inadmissible in evidence against the accused-appellant, the only

remaining proof to sustain the charge of Illegal Possession of Firearm in

Furtherance of Subversion is the testimony of Cesar Masamlok.

We find the testimony of Masamlok inadequate to convict Burgos beyond

reasonable doubt. It is true that the trial court found Masamlok's testimony

credible and convincing. However, we are not necessarily bound by the

credibility which the trial court attaches to a particular witness. As stated

in People vs.. Cabrera (100 SCRA 424):

xxx xxx xxx

. . .Time and again we have stated that when it comes to question of

credibility the findings of the trial court are entitled to great respect uponappeal for the obvious reason th+at it was able to observe the demeanor,

actuations and deportment of the witnesses during the trial. But we have also

said that this rule is not absolute for otherwise there would be no reversals

of convictions upon appeal. We must reject the findings of the trial court

where the record discloses circumstances of weight and substance which

were not properly appreciated by the trial court.

The situation under which Cesar Masamlok testified is analogous to that

found in People vs. Capadocia (17 SCRA 98 1):

. . . The case against appellant is built on Ternura's testimony, and the issue

hinges on how much credence can be accorded to him. The first consideration

is that said testimony stands uncorroborated. Ternura was the only witness

who testified on the mimeographing incident. . . .

xxx xxx xxx

. . .He was a confessed Huk under detention at the time. He knew his fate

depended upon how much he cooperated with the authorities, who were

then engaged in a vigorous anti-dissident campaign. As in the case of Rodrigo

de Jesus, whose testimony We discounted for the same reason, that of




15

Ternura cannot be considered as proceeding from a totally unbiased source.

. . .

In the instant case, Masamlok's testimony was totally uncorroborated.

Considering that Masamlok surrendered to the military certainly his fate

depended on how eagerly he cooperated with the authorities. Otherwise, he

would also be charged with subversion. The trade-off appears to be his

membership in the Civil Home Defense Force. (TSN, p. 83, January 4, 1983).Masamlok may be considered as an interested witness. It can not be said that

his testimony is free from the opportunity and temptation to be exaggerated

and even fabricated for it was intended to secure his freedom.

Despite the fact that there were other persons present during the alleged

NPA seminar of April 19, 1982 i.e., Masamlok's father ,Matuguil Masamlok,

Isabel Ilan and Ayok Ides (TSN, p. 74, January 4, 1983) who could have

corroborated Cesar Masamlok's testimony that the accused used the gun in

furtherance of subversive activities or actually engaged in subversive acts, the

prosecution never presented any other witness.

This Court is, therefore, constrained to rule that the evidence presented by

the prosecution is insufficient to prove the guilt of the accused beyond

reasonable doubt.

As held in the case of People vs. Baia (34 SCRA 347):

It is evident that once again, reliance can be placed on People v. Dramayo (42

SCRA 59), where after stressing that accusation is not, according to the

fundamental law, synonymous with guilt, it was made c lear: 'Only if the judge

below and the appellate tribunal could arrive at a conclusion that the crimehad been committed precisely by the person on trial under such an exacting

test should the sentence be one of conviction. It is thus required that every

circumstance favoring his innocence be duly taken into account. The proof

against him must survive the test of reason; the strongest suspicion must not

be permitted to sway judgment. The conscience must be satisfied that on the

defendant could be laid the responsibility for the offense charged; that not

only did he perpetrate the act but that it amounted to a crime. What is

required then is moral certainty.' (Ibid, 64. Cf. People v. Alvarez, 55 SCRA 81;

People v. Joven, 64 SCRA 126; People vs. Ramirez, 69 SCRA 144; People vs.

Godov 72 SCRA 69; People v. Lopez, 74 SCRA 205; People v. Poblador, 76 SCRA

634; People v. Quiazon, 78 SCRA 513; People v. Nazareno, 80 SCRA 484;

People vs. Gabilan 115 SCRA 1; People v. Gabiana, 117 SCRA 260; and People

vs. Ibanga 124 SCRA 697).

We are aware of the serious problems faced by the military in Davao del Sur

where there appears to be a well-organized plan to overthrow the

Government through armed struggle and replace it with an alien system

based on a foreign ideology. The open defiance against duly constitutedauthorities has resulted in unfortunate levels of violence and human suffering

publicized all over the country and abroad. Even as we reiterate the need for

all freedom loving citizens to assist the military authorities in their legitimate

efforts to maintain peace and national security, we must also remember the

dictum in Morales vs. Enrile (1 21 SCRA 538, 569) when this Court stated:

While the government should continue to repel the communists, the

subversives, the rebels, and the lawless with an the means at its command, it

should always be remembered that whatever action is taken must always be

within the framework of our Constitution and our laws.

Violations of human rights do not help in overcoming a rebellion. A cavalier

attitude towards constitutional liberties and protections will only fan the

increase of subversive activities instead of containing and suppressing them.

WHEREFORE, the judgment of conviction rendered by the trial court is

REVERSED and SET ASIDE. The accused-appellant is hereby ACQUITTED, on

grounds of reasonable doubt, of the crime with which he has been charged.

The subject firearm involved in this case (homemade revolver, caliber .38,

Smith and Wesson, with Serial No. 8.69221) and the alleged subversivedocuments are ordered disposed of in accordance with law.

Cost de oficio.

SO ORDERED.




16

EXPULSION

EN BANC

G.R. No. L-14639 March 25, 1919

ZACARIAS VILLAVICENCIO, ET AL., petitioners,vs.

JUSTO LUKBAN, ET AL., respondents.

Alfonso Mendoza for petitioners.

City Fiscal Diaz for respondents.

MALCOLM, J.:

The annals of juridical history fail to reveal a case quite as remarkable as the

one which this application forhabeas corpus submits for decision. While

hardly to be expected to be met with in this modern epoch of triumphantdemocracy, yet, after all, the cause presents no great difficulty if there is kept

in the forefront of our minds the basic principles of popular government, and

if we give expression to the paramount purpose for which the courts, as an

independent power of such a government, were constituted. The primary

question is — Shall the judiciary permit a government of the men instead of

a government of laws to be set up in the Philippine Islands?

Omitting much extraneous matter, of no moment to these proceedings, but

which might prove profitable reading for other departments of the

government, the facts are these: The Mayor of the city of Manila, JustoLukban, for the best of all reasons, to exterminate vice, ordered the

segregated district for women of ill repute, which had been permitted for a

number of years in the city of Manila, closed. Between October 16 and

October 25, 1918, the women were kept confined to their houses in the

district by the police. Presumably, during this period, the city authorities

quietly perfected arrangements with the Bureau of Labor for sending the

women to Davao, Mindanao, as laborers; with some government office for

the use of the coastguard cutters Corregidor and Negros, and with the

Constabulary for a guard of soldiers. At any rate, about midnight of October

25, the police, acting pursuant to orders from the chief of police, Anton

Hohmann and the Mayor of the city of Manila, Justo Lukban, descended upon

the houses, hustled some 170 inmates into patrol wagons, and placed them

aboard the steamers that awaited their arrival. The women were given no

opportunity to collect their belongings, and apparently were under the

impression that they were being taken to a police station for an investigation.

They had no knowledge that they were destined for a life in Mindanao. They

had not been asked if they wished to depart from that region and had neither

directly nor indirectly given their consent to the deportation. The involuntary

guests were received on board the steamers by a representative of the

Bureau of Labor and a detachment of Constabulary soldiers. The two

steamers with their unwilling passengers sailed for Davao during the night of

October 25.

The vessels reached their destination at Davao on October 29. The women

were landed and receipted for as laborers by Francisco Sales, provincial

governor of Davao, and by Feliciano Yñigo and Rafael Castillo. The governor

and the hacendero Yñigo, who appear as parties in the case, had no previous

notification that the women were prostitutes who had been expelled from

the city of Manila. The further happenings to these women and the serious

charges growing out of alleged ill-treatment are of public interest, but are not

essential to the disposition of this case. Suffice it to say, generally, that some

of the women married, others assumed more or less clandestine relations

with men, others went to work in different capacities, others assumed a life

unknown and disappeared, and a goodly portion found means to return to

Manila.

To turn back in our narrative, just about the time the Corregidor and

the Negros were putting in to Davao, the attorney for the relatives and friendsof a considerable number of the deportees presented an application

forhabeas corpus to a member of the Supreme Court. Subsequently, the

application, through stipulation of the parties, was made to include all of the

women who were sent away from Manila to Davao and, as the same

questions concerned them all, the application will be considered as including

them. The application set forth the salient facts, which need not be repeated,

and alleged that the women were illegally restrained of their liberty by Justo

Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the

city of Manila, and by certain unknown parties. The writ was made returnable

before the full court. The city fiscal appeared for the respondents, Lukban and




17

Hohmann, admitted certain facts relative to sequestration and deportation,

and prayed that the writ should not be granted because the petitioners were

not proper parties, because the action should have been begun in the Court

of First Instance for Davao, Department of Mindanao and Sulu, because the

respondents did not have any of the women under their custody or control,

and because their jurisdiction did not extend beyond the boundaries of the

city of Manila. According to an exhibit attached to the answer of the fiscal,

the 170 women were destined to be laborers, at good salaries, on

the haciendas of Yñigo and Governor Sales. In open court, the fiscal admitted,

in answer to question of a member of the court, that these women had been

sent out of Manila without their consent. The court awarded the writ, in an

order of November 4, that directed Justo Lukban, Mayor of the city of Manila,

Anton Hohmann, chief of police of the city of Manila, Francisco Sales,

governor of the province of Davao, and Feliciano Yñigo, an hacendero of

Davao, to bring before the court the persons therein named, alleged to be

deprived of their liberty, on December 2, 1918.

Before the date mentioned, seven of the women had returned to Manila attheir own expense. On motion of counsel for petitioners, their testimony was

taken before the clerk of the Supreme Court sitting as commissioners. On the

day named in the order, December 2nd, 1918, none of the persons in whose

behalf the writ was issued were produced in court by the respondents. It has

been shown that three of those who had been able to come back to Manila

through their own efforts, were notified by the police and the secret service

to appear before the court. The fiscal appeared, repeated the facts more

comprehensively, reiterated the stand taken by him when pleading to the

original petition copied a telegram from the Mayor of the city of Manila to

the provincial governor of Davao and the answer thereto, and telegrams that

had passed between the Director of Labor and the attorney for that Bureau

then in Davao, and offered certain affidavits showing that the women were

contained with their life in Mindanao and did not wish to return to Manila.

Respondents Sales answered alleging that it was not possible to fulfill the

order of the Supreme Court because the women had never been under his

control, because they were at liberty in the Province of Davao, and because

they had married or signed contracts as laborers. Respondent Yñigo

answered alleging that he did not have any of the women under his control

and that therefore it was impossible for him to obey the mandate. The court,

after due deliberation, on December 10, 1918, promulgated a second order,

which related that the respondents had not complied with the original order

to the satisfaction of the court nor explained their failure to do so, and

therefore directed that those of the women not in Manila be brought before

the court by respondents Lukban, Hohmann, Sales, and Yñigo on January 13,

1919, unless the women should, in written statements voluntarily made

before the judge of first instance of Davao or the clerk of that court, renounce

the right, or unless the respondents should demonstrate some other legal

motives that made compliance impossible. It was further stated that the

question of whether the respondents were in contempt of court would later

be decided and the reasons for the order announced in the f inal decision.

Before January 13, 1919, further testimony including that of a number of the

women, of certain detectives and policemen, and of the provincial governor

of Davao, was taken before the clerk of the Supreme Court sitting as

commissioner and the clerk of the Court of First Instance of Davao acting in

the same capacity. On January 13, 1919, the respondents technically

presented before the Court the women who had returned to the city throughtheir own efforts and eight others who had been brought to Manila by the

respondents. Attorneys for the respondents, by their returns, once again

recounted the facts and further endeavored to account for all of the persons

involved in the habeas corpus. In substance, it was stated that the

respondents, through their representatives and agents, had succeeded in

bringing from Davao with their consent eight women; that eighty-one women

were found in Davao who, on notice that if they desired they could return to

Manila, transportation fee, renounced the right through sworn statements;

that fifty-nine had already returned to Manila by other means, and that

despite all efforts to find them twenty-six could not be located. Both counsel

for petitioners and the city fiscal were permitted to submit memoranda. The

first formally asked the court to find Justo Lukban, Mayor of the city of

Manila, Anton Hohmann, chief of police of the city of Manila, Jose Rodriguez

and Fernando Ordax, members of the police force of the city of Manila,

Feliciano Yñigo, an hacendero of Davao, Modesto Joaquin, the attorney for

the Bureau of Labor, and Anacleto Diaz, fiscal of the city of Manila, in

contempt of court. The city fiscal requested that the replica al memorandum

de los recurridos, (reply to respondents' memorandum) dated January 25,

1919, be struck from the record.




18

In the second order, the court promised to give the reasons for granting the

writ of habeas corpus in the final decision. We will now proceed to do so.

One fact, and one fact only, need be recalled — these one hundred and

seventy women were isolated from society, and then at night, without their

consent and without any opportunity to consult with friends or to defend

their rights, were forcibly hustled on board steamers for transportation to

regions unknown. Despite the feeble attempt to prove that the women leftvoluntarily and gladly, that such was not the case is shown by the mere fact

that the presence of the police and the constabulary was deemed necessary

and that these officers of the law chose the shades of night to cloak their

secret and stealthy acts. Indeed, this is a fact impossible to refute and

practically admitted by the respondents.

With this situation, a court would next expect to resolve the question — By

authority of what law did the Mayor and the Chief of Police presume to act in

deporting by duress these persons from Manila to another distant locality

within the Philippine Islands? We turn to the statutes and we find —

Alien prostitutes can be expelled from the Philippine Islands in conformity

with an Act of congress. The Governor-General can order the eviction of

undesirable aliens after a hearing from the Islands. Act No. 519 of the

Philippine Commission and section 733 of the Revised Ordinances of the city

of Manila provide for the conviction and punishment by a court of justice of

any person who is a common prostitute. Act No. 899 authorizes the return of

any citizen of the United States, who may have been convicted of vagrancy,

to the homeland. New York and other States have statutes providing for the

commitment to the House of Refuge of women convicted of being commonprostitutes. Always a law! Even when the health authorities compel

vaccination, or establish a quarantine, or place a leprous person in the Culion

leper colony, it is done pursuant to some law or order. But one can search in

vain for any law, order, or regulation, which even hints at the right of the

Mayor of the city of Manila or the chief of police of that city to force citizens

of the Philippine Islands — and these women despite their being in a sense

lepers of society are nevertheless not chattels but Philippine citizens

protected by the same constitutional guaranties as are other citizens — to

change their domicile from Manila to another locality. On the contrary,

Philippine penal law specifically punishes any public officer who, not being

expressly authorized by law or regulation, compels any person to change his

residence.

In other countries, as in Spain and Japan, the privilege of domicile is deemed

so important as to be found in the Bill of Rights of the Constitution. Under the

American constitutional system, liberty of abode is a principle so deeply

imbedded in jurisprudence and considered so elementary in nature as not

even to require a constitutional sanction. Even the Governor-General of thePhilippine Islands, even the President of the United States, who has often

been said to exercise more power than any king or potentate, has no such

arbitrary prerogative, either inherent or express. Much less, therefore, has

the executive of a municipality, who acts within a sphere of delegated

powers. If the mayor and the chief of police could, at their mere behest or

even for the most praiseworthy of motives, render the liberty of the citizen

so insecure, then the presidents and chiefs of police of one thousand other

municipalities of the Philippines have the same privilege. If these officials can

take to themselves such power, then any other official can do the same. And

if any official can exercise the power, then all persons would have just asmuch right to do so. And if a prostitute could be sent against her wishes and

under no law from one locality to another within the country, then

officialdom can hold the same club over the head of any citizen.

Law defines power. Centuries ago Magna Charta decreed that — "No

freeman shall be taken, or imprisoned, or be disseized of his freehold, or

liberties, or free customs, or be outlawed, or exiled, or any other wise

destroyed; nor will we pass upon him nor condemn him, but by lawful

judgment of his peers or by the law of the land. We will sell to no man, we

will not deny or defer to any man either justice or right." (Magna Charta, 9Hen., 111, 1225, Cap. 29; 1 eng. stat. at Large, 7.) No official, no matter how

high, is above the law. The courts are the forum which functionate to

safeguard individual liberty and to punish official transgressors. "The law,"

said Justice Miller, delivering the opinion of the Supreme Court of the United

States, "is the only supreme power in our system of government, and every

man who by accepting office participates in its functions is only the more

strongly bound to submit to that supremacy, and to observe the limitations

which it imposes upon the exercise of the authority which it gives."

(U.S. vs. Lee [1882], 106 U.S., 196, 220.) "The very idea," said Justice

Matthews of the same high tribunal in another case, "that one man may be




19

compelled to hold his life, or the means of living, or any material right

essential to the enjoyment of life, at the mere will of another, seems to be

intolerable in any country where freedom prevails, as being the essence of

slavery itself." (Yick Wo vs. Hopkins [1886], 118 U.S., 356, 370.) All this

explains the motive in issuing the writ of habeas corpus, and makes clear why

we said in the very beginning that the primary question was whether the

courts should permit a government of men or a government of laws to be

established in the Philippine Islands.

What are the remedies of the unhappy victims of official oppression? The

remedies of the citizen are three: (1) Civil action; (2) criminal action, and

(3) habeas corpus.

The first is an optional but rather slow process by which the aggrieved party

may recoup money damages. It may still rest with the parties in interest to

pursue such an action, but it was never intended effectively and promptly to

meet any such situation as that now before us.

As to criminal responsibility, it is true that the Penal Code in force in these

Islands provides:

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

general character in force in the Philippines who shall banish any person to a

place more than two hundred kilometers distant from his domicile, except it

be by virtue of the judgment of a court, shall be punished by a fine of not less

than three hundred and twenty-five and not more than three thousand two

hundred and fifty pesetas.

Any public officer not thereunto expressly authorized by law or by regulationof a general character in force in the Philippines who shall compel any person

to change his domicile or residence shall suffer the penalty of destierro and a

fine of not less than six hundred and twenty-five and not more than six

thousand two hundred and fifty pesetas. (Art. 211.)

We entertain no doubt but that, if, after due investigation, the proper

prosecuting officers find that any public officer has violated this provision of

law, these prosecutors will institute and press a criminal prosecution just as

vigorously as they have defended the same official in this action.

Nevertheless, that the act may be a crime and that the persons guilty thereofcan be proceeded against, is no bar to the instant proceedings. To quote the

words of Judge Cooley in a case which will later be referred to — "It would be

a monstrous anomaly in the law if to an application by one unlawfully

confined, ta be restored to his liberty, it could be a sufficient answer that the

confinement was a crime, and therefore might be continued indefinitely until

the guilty party was tried and punished therefor by the slow process of

criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.)

The writ of habeas corpus was devised and exists as a speedy and effectual

remedy to relieve persons from unlawful restraint, and as the best and only

sufficient defense of personal freedom. Any further rights of the parties are

left untouched by decision on the writ, whose principal purpose is to set the

individual at liberty.

Granted that habeas corpus is the proper remedy, respondents have raised

three specific objections to its issuance in this instance. The fiscal has argued

(l) that there is a defect in parties petitioners, (2) that the Supreme Court

should not a assume jurisdiction, and (3) that the person in question are not

restrained of their liberty by respondents. It was finally suggested that the

jurisdiction of the Mayor and the chief of police of the city of Manila onlyextends to the city limits and that perforce they could not bring the women

from Davao.

The first defense was not presented with any vigor by counsel. The

petitioners were relatives and friends of the deportees. The way the

expulsion was conducted by the city officials made it impossible for the

women to sign a petition for habeas corpus. It was consequently proper for

the writ to be submitted by persons in their behalf. (Code of Criminal

Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous

regard for personal liberty, even makes it the duty of a court or judge to granta writ of habeas corpus if there is evidence that within the court's jurisdiction

a person is unjustly imprisoned or restrained of his liberty, though no

application be made therefor. (Code of Criminal Procedure, sec. 93.)

Petitioners had standing in court.

The fiscal next contended that the writ should have been asked for in the

Court of First Instance of Davao or should have been made returnable before

that court. It is a general rule of good practice that, to avoid unnecessary

expense and inconvenience, petitions for habeas corpus should be presented

to the nearest judge of the court of first instance. But this is not a hard and




20

fast rule. The writ of habeas corpus may be granted by the Supreme Court or

any judge thereof enforcible anywhere in the Philippine Islands. (Code of

Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the

writ shall be made returnable before the Supreme Court or before an inferior

court rests in the discretion of the Supreme Court and is dependent on the

particular circumstances. In this instance it was not shown that the Court of

First Instance of Davao was in session, or that the women had any means by

which to advance their plea before that court. On the other hand, it wasshown that the petitioners with their attorneys, and the two original

respondents with their attorney, were in Manila; it was shown that the case

involved parties situated in different parts of the Islands; it was shown that

the women might still be imprisoned or restrained of their liberty; and it was

shown that if the writ was to accomplish its purpose, it must be taken

cognizance of and decided immediately by the appellate court. The failure of

the superior court to consider the application and then to grant the writ

would have amounted to a denial of the benefits of the writ.

The last argument of the fiscal is more plausible and more difficult to meet.When the writ was prayed for, says counsel, the parties in whose behalf it

was asked were under no restraint; the women, it is claimed, were free in

Davao, and the jurisdiction of the mayor and the chief of police did not extend

beyond the city limits. At first blush, this is a tenable position. On closer

examination, acceptance of such dictum is found to be perversive of the first

principles of the writ of habeas corpus.

A prime specification of an application for a writ of habeas corpus is restraint

of liberty. The essential object and purpose of the writ of habeas corpus is to

inquire into all manner of involuntary restraint as distinguished fromvoluntary, and to relieve a person therefrom if such restraint is illegal. Any

restraint which will preclude freedom of action is sufficient. The forcible

taking of these women from Manila by officials of that city, who handed them

over to other parties, who deposited them in a distant region, deprived these

women of freedom of locomotion just as effectively as if they had been

imprisoned. Placed in Davao without either money or personal belongings,

they were prevented from exercising the liberty of going when and where

they pleased. The restraint of liberty which began in Manila continued until

the aggrieved parties were returned to Manila and released or until they

freely and truly waived his right.

Consider for a moment what an agreement with such a defense would mean.

The chief executive of any municipality in the Philippines could forcibly and

illegally take a private citizen and place him beyond the boundaries of the

municipality, and then, when called upon to defend his official action, could

calmly fold his hands and claim that the person was under no restraint and

that he, the official, had no jurisdiction over this other municipality. We

believe the true principle should be that, if the respondent is within the

jurisdiction of the court and has it in his power to obey the order of the courtand thus to undo the wrong that he has inflicted, he should be compelled to

do so. Even if the party to whom the writ is addressed has illegally parted with

the custody of a person before the application for the writ is no reason why

the writ should not issue. If the mayor and the chief of police, acting under

no authority of law, could deport these women from the city of Manila to

Davao, the same officials must necessarily have the same means to return

them from Davao to Manila. The respondents, within the reach of process,

may not be permitted to restrain a fellow citizen of her liberty by forcing her

to change her domicile and to avow the act with impunity in the courts, while

the person who has lost her birthright of liberty has no effective recourse.

The great writ of liberty may not thus be easily evaded.

It must be that some such question has heretofore been presented to the

courts for decision. Nevertheless, strange as it may seem, a close examination

of the authorities fails to reveal any analogous case. Certain decisions of

respectable courts are however very persuasive in nature.

A question came before the Supreme Court of the State of Michigan at an

early date as to whether or not a writ of habeas corpus would issue from the

Supreme Court to a person within the jurisdiction of the State to bring intothe State a minor child under guardianship in the State, who has been and

continues to be detained in another State. The membership of the Michigan

Supreme Court at this time was notable. It was composed of Martin, chief

justice, and Cooley, Campbell, and Christiancy, justices. On the question

presented the court was equally divided. Campbell, J., with whom concurred

Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most

distinguished American judges and law-writers, with whom concurred

Christiancy, J., held that the writ should issue. Since the opinion of Justice

Campbell was predicated to a large extent on his conception of the English

decisions, and since, as will hereafter appear, the English courts have taken a




21

contrary view, only the following eloquent passages from the opinion of

Justice Cooley are quoted:

I have not yet seen sufficient reason to doubt the power of this court to issue

the present writ on the petition which was laid before us. . . .

It would be strange indeed if, at this late day, after the eulogiums of six

centuries and a half have been expended upon the Magna Charta, and rivers

of blood shed for its establishment; after its many confirmations, until Coke

could declare in his speech on the petition of right that "Magna Charta was

such a fellow that he will have no sovereign," and after the extension of its

benefits and securities by the petition of right, bill of rights and habeas

corpus acts, it should now be discovered that evasion of that great clause for

the protection of personal liberty, which is the life and soul of the whole

instrument, is so easy as is claimed here. If it is so, it is important that it be

determined without delay, that the legislature may apply the proper remedy,

as I can not doubt they would, on the subject being brought to their notice. .

. .

The second proposition — that the statutory provisions are confined to the

case of imprisonment within the state — seems to me to be based upon a

misconception as to the source of our jurisdiction. It was never the case in

England that the court of king's bench derived its jurisdiction to issue and

enforce this writ from the statute. Statutes were not passed to give the right,

but to compel the observance of rights which existed. . . .

The important fact to be observed in regard to the mode of procedure upon

this writ is, that it is directed to and served upon, not the person confined,

but his jailor. It does not reach the former except through the latter. The

officer or person who serves it does not unbar the prison doors, and set the

prisoner free, but the court relieves him by compelling the oppressor to

release his constraint. The whole force of the writ is spent upon the

respondent, and if he fails to obey it, the means to be resorted to for the

purposes of compulsion are fine and imprisonment. This is the ordinary mode

of affording relief, and if any other means are resorted to, they are only

auxiliary to those which are usual. The place of confinement is, therefore, not

important to the relief, if the guilty party is within reach of process, so that by

the power of the court he can be compelled to release his grasp . The difficulty

of affording redress is not increased by the confinement being beyond the

limits of the state, except as greater distance may affect it. The important

question is, where the power of control exercised? And I am aware of no

other remedy. (In the matter of Jackson [1867], 15 Mich., 416.)

The opinion of Judge Cooley has since been accepted as authoritative by

other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People

[1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.)

The English courts have given careful consideration to the subject. Thus, a

child had been taken out of English by the respondent. A writ of habeas

corpus was issued by the Queen's Bench Division upon the application of the

mother and her husband directing the defendant to produce the child. The

judge at chambers gave defendant until a certain date to produce the child,

but he did not do so. His return stated that the child before the issuance of

the writ had been handed over by him to another; that it was no longer in his

custody or control, and that it was impossible for him to obey the writ. He

was found in contempt of court. On appeal, the court, through Lord Esher, M.

R., said:

A writ of habeas corpus was ordered to issue, and was issued on January 22.

That writ commanded the defendant to have the body of the child before a

judge in chambers at the Royal Courts of Justice immediately after the receipt

of the writ, together with the cause of her being taken and detained. That is

a command to bring the child before the judge and must be obeyed, unless

some lawful reason can be shown to excuse the nonproduction of the child. If

it could be shown that by reason of his having lawfully parted with the

possession of the child before the issuing of the writ, the defendant had no

longer power to produce the child, that might be an answer; but in the

absence of any lawful reason he is bound to produce the child, and, if he does

not, he is in contempt of the Court for not obeying the writ without lawful

excuse. Many efforts have been made in argument to shift the question of

contempt to some anterior period for the purpose of showing that what was

done at some time prior to the writ cannot be a contempt. But the question

is not as to what was done before the issue of the writ. The question is

whether there has been a contempt in disobeying the writ it was issued by

not producing the child in obedience to its commands. (The

Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the




22

Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The

Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.)

A decision coming from the Federal Courts is also of interest. A habeas

corpus was directed to the defendant to have before the circuit court of the

District of Columbia three colored persons, with the cause of their detention.

Davis, in his return to the writ, stated on oath that he had purchased the

negroes as slaves in the city of Washington; that, as he believed, they wereremoved beyond the District of Columbia before the service of the writ

of habeas corpus, and that they were then beyond his control and out of his

custody. The evidence tended to show that Davis had removed the negroes

because he suspected they would apply for a writ of habeas corpus. The court

held the return to be evasive and insufficient, and that Davis was bound to

produce the negroes, and Davis being present in court, and refusing to

produce them, ordered that he be committed to the custody of the marshall

until he should produce the negroes, or be otherwise discharged in due

course of law. The court afterwards ordered that Davis be released upon the

production of two of the negroes, for one of the negroes had run away andbeen lodged in jail in Maryland. Davis produced the two negroes on the last

day of the term. (United States vs. Davis [1839], 5 Cranch C.C. , 622, Fed. Cas.

No. 14926. See also Robb vs. Connolly [1883], 111 U.S., 624; Church on

Habeas, 2nd ed., p. 170.)

We find, therefore, both on reason and authority, that no one of the defense

offered by the respondents constituted a legitimate bar to the granting of the

writ of habeas corpus.

There remains to be considered whether the respondent complied with the

two orders of the Supreme Court awarding the writ of habeas corpus, and if

it be found that they did not, whether the contempt should be punished or

be taken as purged.

The first order, it will be recalled, directed Justo Lukban, Anton Hohmann,

Francisco Sales, and Feliciano Yñigo to present the persons named in the writ

before the court on December 2, 1918. The order was dated November 4,

1918. The respondents were thus given ample time, practically one month,

to comply with the writ. As far as the record discloses, the Mayor of the city

of Manila waited until the 21st of November before sending a telegram to the

provincial governor of Davao. According to the response of the attorney for

the Bureau of Labor to the telegram of his chief, there were then in Davao

women who desired to return to Manila, but who should not be permitted to

do so because of having contracted debts. The half-hearted effort naturally

resulted in none of the parties in question being brought before the court on

the day named.

For the respondents to have fulfilled the court's order, three optional courses

were open: (1) They could have produced the bodies of the persons accordingto the command of the writ; or (2) they could have shown by affidavit that on

account of sickness or infirmity those persons could not safely be brought

before the court; or (3) they could have presented affidavits to show that the

parties in question or their attorney waived the right to be present. (Code of

Criminal Procedure, sec. 87.) They did not produce the bodies of the persons

in whose behalf the writ was granted; they did not show impossibility of

performance; and they did not present writings that waived the right to be

present by those interested. Instead a few stereotyped affidavits purporting

to show that the women were contended with their life in Davao, some of

which have since been repudiated by the signers, were appended to thereturn. That through ordinary diligence a considerable number of the women,

at least sixty, could have been brought back to Manila is demonstrated to be

found in the municipality of Davao, and that about this number either

returned at their own expense or were produced at the second hearing by

the respondents.

The court, at the time the return to its first order was made, would have been

warranted summarily in finding the respondents guilty of contempt of court,

and in sending them to jail until they obeyed the order. Their excuses for the

non-production of the persons were far from sufficient. The, authorities citedherein pertaining to somewhat similar facts all tend to indicate with what

exactitude a habeas corpus writ must be fulfilled. For example, in Gossage's

case, supra, the Magistrate in referring to an earlier decision of the Court,

said: "We thought that, having brought about that state of things by his own

illegal act, he must take the consequences; and we said that he was bound to

use every effort to get the child back; that he must do much more than write

letters for the purpose; that he must advertise in America, and even if

necessary himself go after the child, and do everything that mortal man could

do in the matter; and that the court would only accept clear proof of an

absolute impossibility by way of excuse." In other words, the return did not




23

show that every possible effort to produce the women was made by the

respondents. That the court forebore at this time to take drastic action was

because it did not wish to see presented to the public gaze the spectacle of a

clash between executive officials and the judiciary, and because it desired to

give the respondents another chance to demonstrate their good faith and to

mitigate their wrong.

In response to the second order of the court, the respondents appear to havebecome more zealous and to have shown a better spirit. Agents were

dispatched to Mindanao, placards were posted, the constabulary and the

municipal police joined in rounding up the women, and a steamer with free

transportation to Manila was provided. While charges and counter-charges

in such a bitterly contested case are to be expected, and while a critical

reading of the record might reveal a failure of literal fulfillment with our

mandate, we come to conclude that there is a substantial compliance with it.

Our finding to this effect may be influenced somewhat by our sincere desire

to see this unhappy incident finally closed. If any wrong is now being

perpetrated in Davao, it should receive an executive investigation. If anyparticular individual is still restrained of her liberty, it can be made the object

of separate habeas corpus proceedings.

Since the writ has already been granted, and since we find a substantial

compliance with it, nothing further in this connection remains to be done.

The attorney for the petitioners asks that we find in contempt of court Justo

Lukban, Mayor of the city of Manila, Anton Hohmann, chief of police of the

city of Manila, Jose Rodriguez, and Fernando Ordax, members of the police

force of the city of Manila, Modesto Joaquin, the attorney for the Bureau of

Labor, Feliciano Yñigo, anhacendero of Davao, and Anacleto Diaz, Fiscal of the

city of Manila.

The power to punish for contempt of court should be exercised on the

preservative and not on the vindictive principle. Only occasionally should the

court invoke its inherent power in order to retain that respect without which

the administration of justice must falter or fail. Nevertheless when one is

commanded to produce a certain person and does not do so, and does not

offer a valid excuse, a court must, to vindicate its authority, adjudge the

respondent to be guilty of contempt, and must order him either imprisoned

or fined. An officer's failure to produce the body of a person in obedience to

a writ of habeas corpus when he has power to do so, is a contempt committed

in the face of the court. (Ex parte Sterns [1888], 77 Cal., 156; In re Patterson

[1888], 99 N. C., 407.)

With all the facts and circumstances in mind, and with judicial regard for

human imperfections, we cannot say that any of the respondents, with the

possible exception of the first named, has flatly disobeyed the court by acting

in opposition to its authority. Respondents Hohmann, Rodriguez, Ordax, andJoaquin only followed the orders of their chiefs, and while, under the law of

public officers, this does not exonerate them entirely, it is nevertheless a

powerful mitigating circumstance. The hacendero Yñigo appears to have

been drawn into the case through a misconstruction by counsel of telegraphic

communications. The city fiscal, Anacleto Diaz, would seem to have done no

more than to fulfill his duty as the legal representative of the city

government. Finding him innocent of any disrespect to the court, his counter-

motion to strike from the record the memorandum of attorney for the

petitioners, which brings him into this undesirable position, must be granted.

When all is said and done, as far as this record discloses, the official who wasprimarily responsible for the unlawful deportation, who ordered the police to

accomplish the same, who made arrangements for the steamers and the

constabulary, who conducted the negotiations with the Bureau of Labor, and

who later, as the head of the city government, had it within his power to

facilitate the return of the unfortunate women to Manila, was Justo Lukban,

the Mayor of the city of Manila. His intention to suppress the social evil was

commendable. His methods were unlawful. His regard for the writ of habeas

corpus issued by the court was only tardily and reluctantly acknowledged.

It would be possible to turn to the provisions of section 546 of the Code ofCivil Procedure, which relates to the penalty for disobeying the writ, and in

pursuance thereof to require respondent Lukban to forfeit to the parties

aggrieved as much as P400 each, which would reach to many thousands of

pesos, and in addition to deal with him as for a contempt. Some members of

the court are inclined to this stern view. It would also be possible to find that

since respondent Lukban did comply substantially with the second order of

the court, he has purged his contempt of the first order. Some members of

the court are inclined to this merciful view. Between the two extremes

appears to lie the correct finding. The failure of respondent Lukban to obey

the first mandate of the court tended to belittle and embarrass the




24

administration of justice to such an extent that his later activity may be

considered only as extenuating his conduct. A nominal fine will at once

command such respect without being unduly oppressive — such an amount

is P100.

In resume — as before stated, no further action on the writ of habeas

corpus is necessary. The respondents Hohmann, Rodriguez, Ordax, Joaquin,

Yñigo, and Diaz are found not to be in contempt of court. Respondent Lukbanis found in contempt of court and shall pay into the office of the clerk of the

Supreme Court within five days the sum of one hundred pesos (P100). The

motion of the fiscal of the city of Manila to strike from the record the Replica

al Memorandum de los Recurridos of January 25, 1919, is granted. Costs shall

be taxed against respondents. So ordered.

In concluding this tedious and disagreeable task, may we not be permitted to

express the hope that this decision may serve to bulwark the fortifications of

an orderly government of laws and to protect individual liberty from illegal

encroachment.

Arellano, C.J., Avanceña and Moir, JJ., concur.

Johnson, and Street, JJ., concur in the result.




25

SEARCH WARRANTS MALICIOUSLY OBTAINED

EN BANC

G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARLBECK, petitioners,

vs.

HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE

LUKBAN, in his capacity as Acting Director, National Bureau of Investigation;

SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA and MANUEL

VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN,

Municipal Court of Manila; JUDGE ROMAN CANSINO, Municipal Court of

Manila; JUDGE HERMOGENES CALUAG, Court of First Instance of Rizal-

Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of

Quezon City, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T.

David for petitioners.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General

Pacifico P. de Castro, Assistant Solicitor General Frine C. Zaballero, Solicitor

Camilo D. Quiason and Solicitor C. Padua for respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 —

hereinafter referred to as Respondents-Prosecutors — several judges2 —

hereinafter referred to as Respondents-Judges — issued, on different

dates,3 a total of 42 search warrants against petitioners herein4 and/or the

corporations of which they were officers,5 directed to the any peace officer,

to search the persons above-named and/or the premises of their offices,

warehouses and/or residences, and to seize and take possession of the

following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts,

ledgers, journals, portfolios, credit journals, typewriters, and other

documents and/or papers showing all business transactions including

disbursements receipts, balance sheets and profit and loss statements and

Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of

the offense," or "used or intended to be used as the means of committing the

offense," which is described in the applications adverted to above as

"violation of Central Bank Laws, Tariff and Customs Laws, Internal Revenue

(Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as

contravening the Constitution and the Rules of Court — because, inter alia:

(1) they do not describe with particularity the documents, books and things

to be seized; (2) cash money, not mentioned in the warrants, were actually

seized; (3) the warrants were issued to fish evidence against the

aforementioned petitioners in deportation cases filed against them; (4) the

searches and seizures were made in an illegal manner; and (5) the

documents, papers and cash money seized were not delivered to the courts

that issued the warrants, to be disposed of in accordance with law — on

March 20, 1962, said petitioners filed with the Supreme Court this original

action for certiorari , prohibition, mandamus and injunction, and prayed that,

pending final disposition of the present case, a writ of preliminary injunction

be issued restraining Respondents-Prosecutors, their agents and /or

representatives from using the effects seized as aforementioned or any

copies thereof, in the deportation cases already adverted to, and that, in due

course, thereafter, decision be rendered quashing the contested search

warrants and declaring the same null and void, and commanding the

respondents, their agents or representatives to return to petitioners herein,

in accordance with Section 3, Rule 67, of the Rules of Court, the documents,papers, things and cash moneys seized or confiscated under the search

warrants in question.

In their answer, respondents-prosecutors alleged, 6 (1) that the contested

search warrants are valid and have been issued in accordance with law; (2)

that the defects of said warrants, if any, were cured by petitioners' consent;

and (3) that, in any event, the effects seized are admissible in evidence

against herein petitioners, regardless of the alleged illegality of the

aforementioned searches and seizures.




26

On March 22, 1962, this Court issued the writ of preliminary injunction

prayed for in the petition. However, by resolution dated June 29, 1962, the

writ was partially lifted or dissolved, insofar as the papers, documents and

things seized from the offices of the corporations above mentioned are

concerned; but, the injunction was maintained as regards the papers,

documents and things found and seized in the residences of petitioners

herein.7

Thus, the documents, papers, and things seized under the alleged authority

of the warrants in question may be split into two (2) major groups, namely:

(a) those found and seized in the offices of the aforementioned corporations,

and (b) those found and seized in the residences of petitioners herein.

As regards the first group, we hold that petitioners herein have no cause of

action to assail the legality of the contested warrants and of the seizures

made in pursuance thereof, for the simple reason that said corporations have

their respective personalities, separate and distinct from the personality of

herein petitioners, regardless of the amount of shares of stock or of the

interest of each of them in said corporations, and whatever the offices they

hold therein may be.8 Indeed, it is well settled that the legality of a seizure

can be contested only by the party whose rights have been impaired

thereby,9 and that the objection to an unlawful search and seizure is purely

personal and cannot be availed of by third parties. 10 Consequently,

petitioners herein may not validly object to the use in evidence against them

of the documents, papers and things seized from the offices and premises of

the corporations adverted to above, since the right to object to the admission

of said papers in evidence belongs exclusively to the corporations, to whom

the seized effects belong, and may not be invoked by the corporate officersin proceedings against them in their individual capacity. 11 Indeed, it has been

held:

. . . that the Government's action in gaining possession of papers belonging

to the corporation did not relate to nor did it affect the personal defendants.

If these papers were unlawfully seized and thereby the constitutional rights

of or any one were invaded, they were the rights of the corporation and not

the rights of the other defendants. Next, it is clear that a question of the

lawfulness of a seizure can be raised only by one whose rights have been

invaded . Certainly, such a seizure, if unlawful, could not affect the

constitutional rights of defendants whose property had not been seized or the

privacy of whose homes had not been disturbed ; nor could they claim for

themselves the benefits of the Fourth Amendment, when its violation, if any,

was with reference to the rights of another . Remus vs. United

States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the

admissibility of the evidence based on an alleged unlawful search and seizure

does not extend to the personal defendants but

embraces only the corporation whose property was taken. . . . (AGuckenheimer & Bros. Co. vs. United States, [1925] 3 F. 2d. 786, 789,

Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of

petitioners herein, the aforementioned resolution of June 29, 1962, lifted the

writ of preliminary injunction previously issued by this Court, 12 thereby, in

effect, restraining herein Respondents-Prosecutors from using them in

evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important

questions need be settled, namely: (1) whether the search warrants in

question, and the searches and seizures made under the authority thereof,

are valid or not, and (2) if the answer to the preceding question is in the

negative, whether said documents, papers and things may be used in

evidence against petitioners herein.1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the

nature of general warrants and that accordingly, the seizures effected upon

the authority there of are null and void. In this connection, the

Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and

effects against unreasonable searches and seizures shall not be violated, and

no warrants shall issue but upon probable cause, to be determined by the

judge after examination under oath or affirmation of the complainant and the

witnesses he may produce, and particularly describing the place to be

searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate,

namely: (1) that no warrant shall issue but upon probable cause, to be




27

determined by the judge in the manner set forth in said provision; and (2)

that the warrant shall particularly describe the things to be seized.

None of these requirements has been complied with in the contested

warrants. Indeed, the same were issued upon applications stating that the

natural and juridical person therein named had committed a "violation of

Central Ban Laws, Tariff and Customs Laws, Internal Revenue (Code) and

Revised Penal Code." In other words, nospecific offense had been alleged insaid applications. The averments thereof with respect to the offense

committed were abstract . As a consequence, it was impossible for the judges

who issued the warrants to have found the existence of probable cause, for

the same presupposes the introduction of competent proof that the party

against whom it is sought has performed particular acts, or

committed specific omissions, violating a given provision of our criminal laws.

As a matter of fact, the applications involved in this case do not allege any

specific acts performed by herein petitioners. It would be the legal heresy, of

the highest order, to convict anybody of a "violation of Central Bank Laws,

Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code,"— as alleged in the aforementioned applications — without reference to any

determinate provision of said laws or

To uphold the validity of the warrants in question would be to wipe out

completely one of the most fundamental rights guaranteed in our

Constitution, for it would place the sanctity of the domicile and the privacy of

communication and correspondence at the mercy of the whims caprice or

passion of peace officers. This is precisely the evil sought to be remedied by

the constitutional provision above quoted — to outlaw the so-called general

warrants. It is not difficult to imagine what would happen, in times of keenpolitical strife, when the party in power feels that the minority is likely to

wrest it, even though by legal means.

Such is the seriousness of the irregularities committed in connection with the

disputed search warrants, that this Court deemed it fit to amend Section 3 of

Rule 122 of the former Rules of Court 14 by providing in its counterpart, under

the Revised Rules of Court 15 that "a search warrant shall not issue but upon

probable cause in connection with one specific offense." Not satisfied with

this qualification, the Court added thereto a paragraph, directing that "no

search warrant shall issue for more than one specific offense."

The grave violation of the Constitution made in the application for the

contested search warrants was compounded by the description therein made

of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence,

receipts, ledgers, portfolios, credit journals, typewriters, and other

documents and/or papers showing all business transactions including

disbursement receipts, balance sheets and related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining

to all business transactions of petitioners herein, regardless of whether the

transactions were legal or illegal . The warrants sanctioned the seizure of all

records of the petitioners and the aforementioned corporations, whatever

their nature, thus openly contravening the explicit command of our Bill of

Rights — that the things to be seized be particularly described — as well as

tending to defeat its major objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-

Prosecutors maintain that, even if the searches and seizures underconsideration were unconstitutional, the documents, papers and things thus

seized are admissible in evidence against petitioners herein. Upon mature

deliberation, however, we are unanimously of the opinion that the position

taken in the Moncado case must be abandoned. Said position was in line with

the American common law rule, that the criminal should not be allowed to

go free merely "because the constable has blundered," 16 upon the theory

that the constitutional prohibition against unreasonable searches and

seizures is protected by means other than the exclusion of evidence

unlawfully obtained, 17 such as the common-law action for damages against

the searching officer, against the party who procured the issuance of the

search warrant and against those assisting in the execution of an illegal

search, their criminal punishment, resistance, without liability to an unlawful

seizure, and such other legal remedies as may be provided by other laws.

However, most common law jurisdictions have already given up this

approach and eventually adopted the exclusionary rule, realizing that this

is the only practical means of enforcing the constitutional injunction against

unreasonable searches and seizures. In the language of Judge Learned Hand:




28

As we understand it, the reason for the exclusion of evidence competent as

such, which has been unlawfully acquired, is that exclusion is the only

practical way of enforcing the constitutional privilege. In earlier times the

action of trespass against the offending official may have been protection

enough; but that is true no longer. Only in case the prosecution which itself

controls the seizing officials, knows that it cannot profit by their wrong will

that wrong be repressed .18

In fact, over thirty (30) years before, the Federal Supreme Court had already

declared:

If letters and private documents can thus be seized and held and used in

evidence against a citizen accused of an offense, the protection of the 4th

Amendment, declaring his rights to be secure against such searches and

seizures, is of no value, and, so far as those thus placed are concerned, might

as well be stricken from the Constitution. The efforts of the courts and their

officials to bring the guilty to punishment, praiseworthy as they are, are not

to be aided by the sacrifice of those great principles established by years of

endeavor and suffering which have resulted in their embodiment in the

fundamental law of the land .19

This view was, not only reiterated, but, also, broadened in subsequent

decisions on the same Federal Court. 20After reviewing previous decisions

thereon, said Court held, in Mapp vs. Ohio (supra.):

. . . Today we once again examine the Wolf's constitutional documentation of

the right of privacy free from unreasonable state intrusion, and after its dozen

years on our books, are led by it to close the only courtroom door remaining

open to evidence secured by official lawlessness in flagrant abuse of thatbasic right, reserved to all persons as a specific guarantee against that very

same unlawful conduct. We hold that all evidence obtained by searches and

seizures in violation of the Constitution is, by that same authority,

inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable

against the States through the Due Process Clause of the Fourteenth, it is

enforceable against them by the same sanction of exclusion as it used against

the Federal Government. Were it otherwise, then just as without the Weeks

rule the assurance against unreasonable federal searches and seizures would

be "a form of words," valueless and underserving of mention in a perpetual

charter of inestimable human liberties, so too, without that rule the freedom

from state invasions of privacy would be so ephemeral and so neatly severed

from its conceptual nexus with the freedom from all brutish means of coercing

evidence as not to permit this Court's high regard as a freedom "implicit in the

concept of ordered liberty ." At the time that the Court held in Wolf that the

amendment was applicable to the States through the Due Process Clause, the

cases of this Court as we have seen, had steadfastly held that as to federalofficers the Fourth Amendment included the exclusion of the evidence seized

in violation of its provisions. Even Wolf "stoutly adhered" to that proposition.

The right to when conceded operatively enforceable against the States, was

not susceptible of destruction by avulsion of the sanction upon which its

protection and enjoyment had always been deemed dependent under the

Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantive

protections of due process to all constitutionally unreasonable searches —

state or federal — it was logically and constitutionally necessarily that the

exclusion doctrine — an essential part of the right to privacy — be also

insisted upon as an essential ingredient of the right newly recognized by the

Wolf Case. In short, the admission of the new constitutional Right by Wolf

could not tolerate denial of its most important constitutional privilege,

namely, the exclusion of the evidence which an accused had been forced to

give by reason of the unlawful seizure. To hold otherwise is to grant the right

but in reality to withhold its privilege and enjoyment . Only last year the Court

itself recognized that the purpose of the exclusionary rule to "is to deter — to

compel respect for the constitutional guaranty in the only effectively available

way — by removing the incentive to disregard it " . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the

entire system of constitutional restraints on which the liberties of the people

rest. Having once recognized that the right to privacy embodied in the Fourth

Amendment is enforceable against the States, and that the right to be secure

against rude invasions of privacy by state officers is, therefore constitutional

in origin, we can no longer permit that right to remain an empty promise .

Because it is enforceable in the same manner and to like effect as other basic

rights secured by its Due Process Clause, we can no longer permit it to be

revocable at the whim of any police officer who, in the name of law

enforcement itself, chooses to suspend its enjoyment. Our decision, founded




29

on reason and truth, gives to the individual no more than that which the

Constitution guarantees him to the police officer no less than that to which

honest law enforcement is entitled, and, to the courts, that judicial integrity

so necessary in the true administration of justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also,

to the spirit of the constitutional injunction against unreasonable searches

and seizures. To be sure, if the applicant for a search warrant has competent

evidence to establish probable cause of the commission of a given crime by

the party against whom the warrant is intended, then there is no reason why

the applicant should not comply with the requirements of the fundamental

law. Upon the other hand, if he has no such competent evidence, then it is not

possible for the Judge to find that there is probable cause, and, hence, no

justification for the issuance of the warrant. The only possible explanation

(not justification) for its issuance is the necessity of fishing evidence of the

commission of a crime. But, then, this fishing expedition is indicative of the

absence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an

illegal search warrant and/or make unreasonable searches or seizures would

suffice to protect the constitutional guarantee under consideration,

overlooks the fact that violations thereof are, in general, committed By

agents of the party in power, for, certainly, those belonging to the minority

could not possibly abuse a power they do not have. Regardless of the

handicap under which the minority usually — but, understandably — finds

itself in prosecuting agents of the majority, one must not lose sight of the fact

that the psychological and moral effect of the possibility 21 of securing their

conviction, is watered down by the pardoning power of the party for whosebenefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this

Court dated June 29, 1962, petitioners allege that Rooms Nos. 81 and 91 of

Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436,

Colorado Street, and Room No. 304 of the Army-Navy Club, should be

included among the premises considered in said Resolution as residences of

herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl

Beck, respectively, and that, furthermore, the records, papers and other

effects seized in the offices of the corporations above referred to include

personal belongings of said petitioners and other effects under their exclusive

possession and control, for the exclusion of which they have a standing under

the latest rulings of the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged

possession of and control over the aforementioned records, papers and

effects, and the alleged "personal" nature thereof, has Been Advanced, not in

their petition or amended petition herein, but in the Motion for

Reconsideration and Amendment of the Resolution of June 29, 1962. In other

words, said theory would appear to be readjustment of that followed in said

petitions, to suit the approach intimated in the Resolution sought to be

reconsidered and amended. Then, too, some of the affidavits or copies of

alleged affidavits attached to said motion for reconsideration, or submitted

in support thereof, contain either inconsistent allegations, or allegations

inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said

petitions said motion for reconsideration, and the contents of the

aforementioned affidavits and other papers submitted in support of said

motion, have sufficiently established the facts or conditions contemplated in

the cases relied upon by the petitioners; to warrant application of the views

therein expressed, should we agree thereto. At any rate, we do not deem it

necessary to express our opinion thereon, it being best to leave the matter

open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is

hereby, abandoned; that the warrants for the search of three (3) residences of herein

petitioners, as specified in the Resolution of June 29, 1962, are null and void; that the

searches and seizures therein made are illegal; that the writ of preliminary injunction

heretofore issued, in connection with the documents, papers and other effects thus

seized in said residences of herein petitioners is hereby made permanent; that the

writs prayed for are granted, insofar as the documents, papers and other effects so

seized in the aforementioned residences are concerned; that the aforementioned

motion for Reconsideration and Amendment should be, as it i s hereby, denied; and

that the petition herein is dismissed and the writs prayed for denied, as regards the

documents, papers and other effects seized in the twenty-nine (29) places, offices

and other premises enumerated in the same Resolution, without special

pronouncement as to costs.

It is so ordered.




30

SEARCH WARRANTS MALICIOUSLY OBTAINED

EN BANC

G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS

MEDIA SERVICES, INC.,petitioners,

vs.THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF,

PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL

SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET

AL., respondents.

ESCOLIN, J.:

Assailed in this petition for certiorari prohibition and mandamus with

preliminary mandatory and prohibitory injunction is the validity of two [2]

search warrants issued on December 7, 1982 by respondent Judge ErnaniCruz-Pano, Executive Judge of the then Court of First Instance of Rizal

[Quezon City], under which the premises known as No. 19, Road 3, Project 6,

Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon

City, business addresses of the "Metropolitan Mail" and "We Forum"

newspapers, respectively, were searched, and office and printing machines,

equipment, paraphernalia, motor vehicles and other articles used in the

printing, publication and distribution of the said newspapers, as well as

numerous papers, documents, books and other written literature alleged to

be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor

of the "We Forum" newspaper, were seized.

Petitioners further pray that a writ of preliminary mandatory and prohibitory

injunction be issued for the return of the seized articles, and that

respondents, "particularly the Chief Legal Officer, Presidential Security

Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City,

their representatives, assistants, subalterns, subordinates, substitute or

successors" be enjoined from using the articles thus seized as evidence

against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No.

Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose

Burgos, Jr . et al . 1

In our Resolution dated June 21, 1983, respondents were required to answer

the petition. The plea for preliminary mandatory and prohibitory injunction

was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of

the Solicitor General in behalf of respondents.

At the hearing on July 7, 1983, the Solicitor General, while opposing

petitioners' prayer for a writ of preliminary mandatory injunction, manifested

that respondents "will not use the aforementioned articles as evidence in the

aforementioned case until final resolution of the legality of the seizure of the

aforementioned articles. ..." 2 With this manifestation, the prayer for

preliminary prohibitory injunction was rendered moot and academic.

Respondents would have this Court dismiss the petition on the ground that

petitioners had come to this Court without having previously sought the

quashal of the search warrants before respondent judge. Indeed, petitioners,

before impugning the validity of the warrants before this Court, should have

filed a motion to quash said warrants in the court that issued them. 3 But this

procedural flaw notwithstanding, we take cognizance of this petition in view

of the seriousness and urgency of the constitutional issues raised not to

mention the public interest generated by the search of the "We Forum"

offices, which was televised in Channel 7 and widely publicized in all

metropolitan dailies. The existence of this special circumstance justifies this

Court to exercise its inherent power to suspend its rules. In the words of the

revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v.

Raymundo, 4 "it is always in the power of the court [Supreme Court] to

suspend its rules or to except a particular case from its operation, whenever

the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches.

Considerable stress is laid on the fact that while said search warrants were

issued on December 7, 1982, the instant petition impugning the same was

filed only on June 16, 1983 or after the lapse of a period of more than six [6]

months.

Laches is failure or negligence for an unreasonable and unexplained length of

time to do that which, by exercising due diligence, could or should have been

done earlier. It is negligence or omission to assert a right within a reasonable

time, warranting a presumption that the party entitled to assert it either has

abandoned it or declined to assert it. 5




31

Petitioners, in their Consolidated Reply, explained the reason for the delay in

the filing of the petition thus:

Respondents should not find fault, as they now do [p. 1, Answer, p. 3,

Manifestation] with the fact that the Petition was filed on June 16, 1983,

more than half a year after the petitioners' premises had been raided.

The climate of the times has given petitioners no other choice. If they had

waited this long to bring their case to court, it was because they tried at firstto exhaust other remedies. The events of the past eleven fill years had taught

them that everything in this country, from release of public funds to release

of detained persons from custody, has become a matter of executive

benevolence or largesse

Hence, as soon as they could, petitioners, upon suggestion of persons close

to the President, like Fiscal Flaminiano, sent a letter to President Marcos,

through counsel Antonio Coronet asking the return at least of the printing

equipment and vehicles. And after such a letter had been sent, through Col.

Balbino V. Diego, Chief Intelligence and Legal Officer of the PresidentialSecurity Command, they were further encouraged to hope that the latter

would yield the desired results.

After waiting in vain for five [5] months, petitioners finally decided to come

to Court. [pp. 123-124, Rollo]

Although the reason given by petitioners may not be flattering to our judicial

system, We find no ground to punish or chastise them for an error in

judgment. On the contrary, the extrajudicial efforts exerted by petitioners

quite evidently negate the presumption that they had abandoned their right

to the possession of the seized property, thereby refuting the charge of laches

against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had

used and marked as evidence some of the seized documents in Criminal Case

No. Q- 022872, he is now estopped from challenging the validity of the search

warrants. We do not follow the logic of respondents. These documents

lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he

pleases with them, within legal bounds. The fact that he has used them as

evidence does not and cannot in any way affect the validity or invalidity of

the search warrants assailed in this petition.

Several and diverse reasons have been advanced by petitioners to nullify the

search warrants in question.

1. Petitioners fault respondent judge for his alleged failure to conduct an

examination under oath or affirmation of the applicant and his witnesses, as

mandated by the above-quoted constitutional provision as wen as Sec. 4,

Rule 126 of the Rules of Court . 6 This objection, however, may properly be

considered moot and academic, as petitioners themselves conceded during

the hearing on August 9, 1983, that an examination had indeed been

conducted by respondent judge of Col. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two

distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D,

RMS Building, Quezon Avenue, Quezon City, respectively. Objection is

interposed to the execution of Search Warrant No. 20-82[b] at the latter

address on the ground that the two search warrants pinpointed only one

place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing

the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This

assertion is based on that portion of Search Warrant No. 20- 82[b] which

states:

Which have been used, and are being used as instruments and means of

committing the crime of subversion penalized under P.D. 885 as amended

and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon

City.

The defect pointed out is obviously a typographical error. Precisely, two

search warrants were applied for and issued because the purpose and intent

were to search two distinct premises. It would be quite absurd and illogicalfor respondent judge to have issued two warrants intended for one and the

same place. Besides, the addresses of the places sought to be searched were

specifically set forth in the application, and since it was Col. Abadilla himself

who headed the team which executed the search warrants, the ambiguity

that might have arisen by reason of the typographical error is more apparent

than real. The fact is that the place for which Search Warrant No. 20- 82[b]

was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon

City, which address appeared in the opening paragraph of the said

warrant. 7 Obviously this is the same place that respondent judge had in mind

when he issued Warrant No. 20-82 [b].




32

In the determination of whether a search warrant describes the premises to

be searched with sufficient particularity, it has been held "that the executing

officer's prior knowledge as to the place intended in the warrant is relevant.

This would seem to be especially true where the executing officer is the

affiant on whose affidavit the warrant had issued, and when he knows that

the judge who issued the warrant intended the building described in the

affidavit, And it has also been said that the executing officer may look to the

affidavit in the official court file to resolve an ambiguity in the warrant as tothe place to be searched." 8

3. Another ground relied upon to annul the search warrants is the fact that

although the warrants were directed against Jose Burgos, Jr. alone, articles b

belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.

Burgos Media Services, Inc. were seized.

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties

that may be seized under a search warrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued forthe search and seizure of the following personal property:

[a] Property subject of the offense;

[b] Property stolen or embezzled and other proceeds or fruits of the offense;

and

[c] Property used or intended to be used as the means of committing an

offense.

The above rule does not require that the property to be seized should beowned by the person against whom the search warrant is directed. It may or

may not be owned by him. In fact, under subsection [b] of the above-quoted

Section 2, one of the properties that may be seized is stolen property.

Necessarily, stolen property must be owned by one other than the person in

whose possession it may be at the time of the search and seizure. Ownership,

therefore, is of no consequence, and it is sufficient that the person against

whom the warrant is directed has control or possession of the property

sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in

relation to the articles and property seized under the warrants.

4. Neither is there merit in petitioners' assertion that real properties were

seized under the disputed warrants. Under Article 415[5] of the Civil Code of

the Philippines, "machinery, receptables, instruments or implements

intended by the owner of the tenement for an industry or works which may

be carried on in a building or on a piece of land and which tend directly to

meet the needs of the said industry or works" are considered immovable

property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was

invoked, this Court ruled that machinery which is movable by nature becomesimmobilized when placed by the owner of the tenement, property or plant,

but not so when placed by a tenant, usufructuary, or any other person having

only a temporary right, unless such person acted as the agent of the owner.

In the case at bar, petitioners do not claim to be the owners of the land and/or

building on which the machineries were placed. This being the case, the

machineries in question, while in fact bolted to the ground remain movable

property susceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon

application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.

Metrocom. 10 The application was accompanied by the Joint Affidavit of

Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom

Intelligence and Security Group under Col. Abadilla which conducted a

surveillance of the premises prior to the filing of the application for the search

warrants on December 7, 1982.

It is contended by petitioners, however, that the abovementioned

documents could not have provided sufficient basis for the finding of a

probable cause upon which a warrant may validly issue in accordance with

Section 3, Article IV of the 1973 Constitution which provides:

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon

probable cause to be determined by the judge, or such other responsible

officer as may be authorized by law, after examination under oath or

affirmation of the complainant and the witnesses he may produce, and

particularly describing the place to be searched and the persons or things to

be seized.

We find petitioners' thesis impressed with merit. Probable cause for a search

is defined as such facts and circumstances which would lead a reasonably




33

discreet and prudent man to believe that an offense has been committed and

that the objects sought in connection with the offense are in the place sought

to be searched. And when the search warrant applied for is directed against

a newspaper publisher or editor in connection with the publication of

subversive materials, as in the case at bar, the application and/or its

supporting affidavits must contain a specification, stating with particularity

the alleged subversive material he has published or is intending to publish.

Mere generalization will not suffice. Thus, the broad statement in Col.Abadilla's application that petitioner "is in possession or has in his control

printing equipment and other paraphernalia, news publications and other

documents which were used and are all continuously being used as a means

of committing the offense of subversion punishable under Presidential

Decree 885, as amended ..." 12 is a mere conclusion of law and does not

satisfy the requirements of probable cause. Bereft of such particulars as

would justify a finding of the existence of probable cause, said allegation

cannot serve as basis for the issuance of a search warrant and it was a grave

error for respondent judge to have done so.

Equally insufficient as basis for the determination of probable cause is the

statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro

U. Tango, "that the evidence gathered and collated by our unit clearly shows

that the premises abovementioned and the articles and things above-

described were used and are continuously being used for subversive activities

in conspiracy with, and to promote the objective of, illegal organizations such

as the Light-a-Fire Movement, Movement for Free Philippines, and April 6

Movement." 13

In mandating that "no warrant shall issue except upon probable cause to bedetermined by the judge, ... after examination under oath or affirmation of

the complainant and the witnesses he may produce; 14 the Constitution

requires no less than personal knowledge by the complainant or his witnesses

of the facts upon which the issuance of a search warrant may be justified.

In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required

must refer to the truth of the facts within the personal knowledge of the

petitioner or his witnesses, because the purpose thereof is to convince the

committing magistrate, not the individual making the affidavit and seeking

the issuance of the warrant, of the existence of probable cause." As couched,

the quoted averment in said joint affidavit filed before respondent judge

hardly meets the test of sufficiency established by this Court in Alvarez case.

Another factor which makes the search warrants under consideration

constitutionally objectionable is that they are in the nature of general

warrants. The search warrants describe the articles sought to be seized in this

wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment,typewriters, cabinets, tables, communications/recording equipment, tape

recorders, dictaphone and the like used and/or connected in the printing of

the "WE FORUM" newspaper and any and all documents communication,

letters and facsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication

to promote the objectives and piurposes of the subversive organization

known as Movement for Free Philippines, Light-a-Fire Movement and April 6

Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and

other subversive materials and propaganda, more particularly,

1] Toyota-Corolla, colored yellow with Plate No. NKA 892;

2] DATSUN pick-up colored white with Plate No. NKV 969

3] A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking"Bagong Silang."

In Stanford v. State of Texas 16 the search warrant which authorized the

search for "books, records, pamphlets, cards, receipts, lists, memoranda,

pictures, recordings and other written instruments concerning the

Communist Party in Texas," was declared void by the U.S. Supreme Court for

being too general. In like manner, directions to "seize any evidence in

connectionwith the violation of SDC 13-3703 or otherwise" have been held

too general, and that portion of a search warrant which authorized the

seizure of any "paraphernalia which could be used to violate Sec. 54-197 of




34

the Connecticut General Statutes [the statute dealing with the crime of

conspiracy]" was held to be a general warrant, and therefore invalid. 17 The

description of the articles sought to be seized under the search warrants in

question cannot be characterized differently.

In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter

in English history: the era of disaccord between the Tudor Government and

the English Press, when "Officers of the Crown were given roving

commissions to search where they pleased in order to suppress and destroy

the literature of dissent both Catholic and Puritan Reference herein to such

historical episode would not be relevant for it is not the policy of our

government to suppress any newspaper or publication that speaks with "the

voice of non-conformity" but poses no clear and imminent danger to state

security.

As heretofore stated, the premises searched were the business and printing

offices of the "Metropolitan Mail" and the "We Forum newspapers. As a

consequence of the search and seizure, these premises were padlocked and

sealed, with the further result that the printing and publication of said

newspapers were discontinued.

Such closure is in the nature of previous restraint or censorship abhorrent to

the freedom of the press guaranteed under the fundamental law, 18 and

constitutes a virtual denial of petitioners' freedom to express themselves in

print. This state of being is patently anathematic to a democratic framework

where a free, alert and even militant press is essential for the political

enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines onthe ground that they have been sequestered under Section 8 of Presidential

Decree No. 885, as amended, which authorizes "the sequestration of the

property of any person, natural or artificial, engaged in subversive activities

against the government and its duly constituted authorities ... in accordance

with implementing rules and regulations as may be issued by the Secretary of

National Defense." It is doubtful however, if sequestration could validly be

effected in view of the absence of any implementing rules and regulations

promulgated by the Minister of National Defense.

Besides, in the December 10, 1982 issue of the Daily Express, it was reported

that no less than President Marcos himself denied the request of the military

authorities to sequester the property seized from petitioners on December

7, 1982. Thus:

The President denied a request flied by government prosecutors for

sequestration of the WE FORUM newspaper and its printing presses,

according to Information Minister Gregorio S. Cendana.

On the basis of court orders, government agents went to the We Forum

offices in Quezon City and took a detailed inventory of the equipment and all

materials in the premises.

Cendaña said that because of the denial the newspaper and its equipment

remain at the disposal of the owners, subject to the discretion of the court. 19

That the property seized on December 7, 1982 had not been sequestered is

further confirmed by the reply of then Foreign Minister Carlos P. Romulo to

the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall

addressed to President Marcos, expressing alarm over the "WE FORUM "

case. 20 In this reply dated February 11, 1983, Minister Romulo stated:

2. Contrary to reports, President Marcos turned down the recommendation

of our authorities to close the paper's printing facilities and confiscate the

equipment and materials it uses. 21

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b]

issued by respondent judge on December 7, 1982 are hereby declared null

and void and are accordingly set aside. The prayer for a writ of mandatory

injunction for the return of the seized articles is hereby granted and allarticles seized thereunder are hereby ordered released to petitioners. No

costs.

SO ORDERED.




35

OFFENDING THE RELIGIOUS FEELINGS

EN BANC

G.R. No. L-46000 May 25, 1939

THE PEOPLE OF THE PHILIPPINES, appellee,vs.

JOSE M. BAES, appellant.

CONCEPCION, J.:

This appeal was given due course by the Court of First Instance of Laguna by

virtue of a writ of mandamusissued by this court in G.R. No. 45780. The facts

are the following: In the justice of the peace court of the municipality of

Lumban, Province of Laguna, a complaint was filed of the following tenor:

The undersigned Parish Priest of the Roman Catholic Church in the parish andmunicipality of Lumban, Province of Laguna, upon being duly sworn, charges

Enrique Villaroca, Alejandro Lacbay and Bernardo del Rosario with an offense

against religion committed as follows:

That on April 14, 1937, at about 9 o'clock a.m., in this municipality of Lumban,

Province of Laguna, Philippines, and within the jurisdiction of this court, the

aforesaid accused, while holding the funeral of one who in life was called

Antonio Macabigtas, in accordance with the rites of religious sect known as

the "Church of Christ", willfully, unlawfully, and criminally caused the funeral

to pass, as it in fact passed, through the chruchyard fronting the RomanCatholic Church, which churchyard belongs to the said Church, which

churchyard belongs to the said Church and is devoted to the religious worship

thereof, against the opposition of the undersigned complainant who, through

force and threats of physical violence by the accused, was compelled to allow

the funeral to pass through the said churchyard. An act committed in grave

profanation of the place, in open disregard of the religious feelings of the

Catholics of this municipality, and in violation of article 133 of the Revised

Penal Code.

(Sgd.) JOSE M.A. BAES

Parish Priest

Complainant

(Here follow the affidavit and the list of witnesses.)

The accused pleaded not guilty and waived the preliminary investigation.

Before the case was remanded to the Court of First Instance of Laguna, the

complainant filed a sworn statement regarding other points so that theprovincial fiscal may have full knowledge of the facts and of the witnesses

who could testify thereon. Upon the remand of the case to the court, the

fiscal, instead of filing the corresponding information, put in the following

motion for dismissal:

The complainant is the parish priest of the Roman Catholic Church of Lumban,

Laguna. The said priest charges the accused with having caused, through

force, intimidation and threats, the funeral of one belonging to the Church of

Christ to pass through the churchyard of the Church. Apparently, the offense

consists in that the corpse was that of one who belonged to the Church ofChrist.

The undersigned is of the opinion that the fact act imputed to the accused

does not constitute the offense complained of considering the spirit of article

133 of the Revised Penal Code. At most they might be chargeable with having

threatened the parish priest, or with having passed through a private

property without the consent of the owner. Justice Albert, commenting on

the article, has this to say: "An act is said to be notoriously offensive to the

religious feelings of the faithful when a person ridicules or makes light of

anything constituting a religious dogma; works or scoffs at anything devotedto religious ceremonies; plays with or damages or destroys any object of

veneration by the faithful." The mere act of causing the passage through the

churchyard belonging to the Church, of the funeral of one who in life

belonged to the Church of Christ, neither offends nor ridicules the religious

feelings of those who belong to the Roman Catholic Church.

Sustaining the foregoing motion, the court by an order of August 31, 1937,

dismissed the case, reserving, however, to the fiscal the right to file another

information for the crime found to have been committed by the accused.

| | l d i l




36

From this order, the plaintiff appealed, which appeal was denied but

thereafter given due course by the court by virtue of an order of this court.

The appealed order is based upon the motion to dismiss filed by the fiscal.

This officer questions the sufficiency of the facts alleged in the complaint, but

omits an essential part thereof, to wit, that the churchyard belongs to the

church, and is devoted to the religious services of said church, and it is

through this churchyard that the accused, over the objection of the parish

priest and through force and intimidation, caused to pass the funeral of one

under the rites of the religious sect known as the Church of Christ. Had the

fiscal not omitted this essential part, he would not have come to the

conclusion that the acts complained of do not constitute the crime defined

and penalized by article 133 of the Revised Penal Code.

Moreover, the fiscal, in his aforesaid motion, denies that the unlawful act

committed by the accused had offended the religious feelings of the Catholics

of the municipality in which the act complained of took place. We believe that

such ground of the motion is indefensible. As the fiscal was discussing the

sufficiency of the facts alleged in the complaint, he cannot deny any of them,

but must admit them, although hypothetically, as they are alleged. The

motion raises a question of law, not one of fact. In the second place, whether

or of the act complained of is offensive to the religious feelings of the

Catholics, is a question of fact which must be judged only according to the

feelings of the Catholics and not those of other faithful ones, for it is possible

that certain acts may offend the feelings of those who profess a certain

religion, while not otherwise offensive to the feelings of those professing

another faith. We, therefore, take the view that the facts alleged in the

complaint constitute the offense defined and penalized in article 133 of theRevised Penal Code, and should the fiscal file an information alleging the said

facts and a trial be thereafter held at which the said facts should be

conclusively established, the court may find the accused guilty of the offense

complained of, or that of coercion, or that of trespass under article 281 of the

Revised Penal Code, as may be proper, pursuant to section 29 of General

Orders, No. 58.

The appealed order is reversed and the fiscal is ordered to comply with his

duty under the law, without pronouncement as to the costs. So ordered.

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Eighth Congress

Republic Act No. 7438

April 27, 1992

AN ACT DEFINING CERTAIN RIGHTS OF PERSON ARRESTED, DETAINED OR

UNDER CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES OF THEARRESTING, DETAINING AND INVESTIGATING OFFICERS, AND PROVIDING

PENALTIES FOR VIOLATIONS THEREOF

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled::

Section 1. Statement of Policy . – It is the policy of the Senate to value the

dignity of every human being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial

Investigation; Duties of Public Officers. –

(a) Any person arrested detained or under custodial investigation shall at all

times be assisted by counsel.

(b) Any public officer or employee, or anyone acting under his order or his

place, who arrests, detains or investigates any person for the commission of

an offense shall inform the latter, in a language known to and understood by

him, of his rights to remain silent and to have competent and independent

counsel, preferably of his own choice, who shall at all times be allowed to

confer privately with the person arrested, detained or under custodialinvestigation. If such person cannot afford the services of his own counsel, he

must be provided with a competent and independent counsel by the

investigating officer.lawphi1Ÿ

(c) The custodial investigation report shall be reduced to writing by the

investigating officer, provided that before such report is signed, or

thumbmarked if the person arrested or detained does not know how to read

and write, it shall be read and adequately explained to him by his counsel or

by the assisting counsel provided by the investigating officer in the language

or dialect known to such arrested or detained person, otherwise, such

investigation report shall be null and void and of no effect whatsoever.

(d) Any extrajudicial confession made by a person arrested, detained or under

custodial investigation shall be in writing and signed by such person in the

presence of his counsel or in the latter's absence, upon a valid waiver, and in

the presence of any of the parents, elder brothers and sisters, his spouse, the

municipal mayor, the municipal judge, district school supervisor, or priest or

minister of the gospel as chosen by him; otherwise, such extrajudicial

confession shall be inadmissible as evidence in any proceeding.

(e) Any waiver by a person arrested or detained under the provisions of

Article 125 of the Revised Penal Code, or under custodial investigation, shall

be in writing and signed by such person in the presence of his counsel;

otherwise the waiver shall be null and void and of no effect.

(f) Any person arrested or detained or under custodial investigation shall be

allowed visits by or conferences with any member of his immediate family, or

any medical doctor or priest or religious minister chosen by him or by anymember of his immediate family or by his counsel, or by any national non-

governmental organization duly accredited by the Commission on Human

Rights of by any international non-governmental organization duly accredited

by the Office of the President. The person's "immediate family" shall include

his or her spouse, fiancé or fiancée, parent or child, brother or sister,

grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or

ward.

As used in this Act, "custodial investigation" shall include the practice of

issuing an "invitation" to a person who is investigated in connection with anoffense he is suspected to have committed, without prejudice to the liability

of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel . – Assisting counsel is any lawyer, except those

directly affected by the case, those charged with conducting preliminary

investigation or those charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall be entitled to

the following fees;

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38

(a) The amount of One hundred fifty pesos (P150.00) if the suspected person

is chargeable with light felonies

(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person

is chargeable with less grave or grave felonies;

(c) The amount of Three hundred fifty pesos (P350.00) if the suspected

person is chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or municipality

where the custodial investigation is conducted, provided that if the

municipality of city cannot pay such fee, the province comprising such

municipality or city shall pay the fee: Provided, That the Municipal or City

Treasurer must certify that no funds are available to pay the fees of assisting

counsel before the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be conducted

and the suspected person can only be detained by the investigating officer in

accordance with the provisions of Article 125 of the Revised Penal Code.

Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or

any investigating officer, who fails to inform any person arrested, detained or

under custodial investigation of his right to remain silent and to have

competent and independent counsel preferably of his own choice, shall suffer

a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not

less than eight (8) years but not more than ten (10) years, or both. The penalty

of perpetual absolute disqualification shall also be imposed upon the

investigating officer who has been previously convicted of a similar offense.

The same penalties shall be imposed upon a public officer or employee, oranyone acting upon orders of such investigating officer or in his place, who

fails to provide a competent and independent counsel to a person arrested,

detained or under custodial investigation for the commission of an offense if

the latter cannot afford the services of his own counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer, any member

of the immediate family of a person arrested, detained or under custodial

investigation, or any medical doctor or priest or religious minister chosen by

him or by any member of his immediate family or by his counsel, from visiting

and conferring privately with him, or from examining and treating him, or

from ministering to his spiritual needs, at any hour of the day or, in urgent

cases, of the night shall suffer the penalty of imprisonment of not less than

four (4) years nor more than six (6) years, and a fine of four thousand pesos

(P4,000.00).lawphi1©

The provisions of the above Section notwithstanding, any security officer with

custodial responsibility over any detainee or prisoner may undertake such

reasonable measures as may be necessary to secure his safety and prevent

his escape.

Section 5. Repealing Clause. – Republic Act No. No. 857, as amended, is

hereby repealed. Other laws, presidential decrees, executive orders or rules

and regulations, or parts thereof inconsistent with the provisions of this Act

are repealed or modified accordingly.

Section 6. Effectivity . – This Act shall take effect fifteen (15) days following

its publication in the Official Gazette or in any daily newspapers of general

circulation in the Philippines.

Approved: April 27, 1992.

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39

REPUBLIC ACT NO. 10353

AN ACT DEFINING AND PENALIZING ENFORCED OR INVOLUNTARY

DISAPPEARANCE

Be it enacted by the Senate and House of Representatives of the Philippines in

Congress assembled:

SECTION 1. Short Title. –This Act shall be known as the “Anti-Enforced or

Involuntary Disappearance Act of 2012″.

SEC. 2. Declaration of Policy. –The State values the dignity of every human

person and guarantees full respect for human rights for which highest priority

shall be given to the enactment of measures for the enhancement of the right

of all people to human dignity, the prohibition against secret detention

places, solitary confinement, incommunicado, or other similar forms of

detention, the provision for penal and civil sanctions for such violations, andcompensation and rehabilitation for the victims and their families,

particularly with respect to the use of torture, force, violence, threat,

intimidation or any other means which vitiate the free will of persons

abducted, arrested, detained, disappeared or otherwise removed from the

effective protection of the law.

Furthermore, the State adheres to the principles and standards on the

absolute condemnation of human rights violations set by the 1987 Philippine

Constitution and various international instruments such as, but not limited

to, the International Covenant on Civil and Political Rights (ICCPR), and theConvention Against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT), to which the Philippines is a State party.

SEC. 3. Definitions. –For purposes of this Act, the following terms shall be

defined as follows:

(a) Agents of the State refer to persons who, by direct provision of the law,

popular election or appointment by competent authority, shall take part in

the performance of public functions in the government, or shall perform in

the government or in any of its branches public duties as an employee, agent

or subordinate official, of any rank or class.

(b) Enforced or involuntary disappearance refers to the arrest, detention,

abduction or any other form of deprivation of liberty committed by agents 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 deprivation of liberty or by concealment of the fate or whereabouts of

the disappeared person, which places such person outside the protection of

the law.

(c) Order of Battle refers to a document made by the military, police or any

law enforcement agency of the government, listing the names of persons and

organizations that it perceives to be enemies of the State and which it

considers as legitimate targets as combatants that it could deal with, through

the use of means allowed by domestic and international law.

(d) Victim refers to the disappeared person and any individual who has

suffered harm as a direct result of an enforced or involuntary disappearance

as defined in letter (b) of this Section.

SEC. 4. Nonderogability of the Right Against Enforced or InvoluntaryDisappearance. –The right against enforced or involuntary disappearance and

the fundamental safeguards for its prevention shall not be suspended under

any circumstance including political instability, threat of war, state of war or

other public emergencies.

SEC. 5. “Order of Battle” or Any Order of Similar Nature, Not Legal Ground,

for Enforced or Involuntary Disappearance. – An “Order of Battle” or any

order of similar nature, official or otherwise, from a superior officer or a

public authority causing the commission of enforced or involuntary

disappearance is unlawful and cannot be invoked as a justifying or exemptingcircumstance. Any person receiving such an order shall have the right to

disobey it.

SEC. 6. Right of Access to Communication. – It shall be the absolute right of

any person deprived of liberty to have immediate access to any form of

communication available in order for him or her to inform his or her family,

relative, friend, lawyer or any human rights organization on his or her

whereabouts and condition.

SEC. 7. Duty to Report Victims of Enforced or Involuntary Disappearance.

– Any person, not being a principal, accomplice or accessory, who has an





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information of a case of enforced or involuntary disappearance or who shall

learn of such information or that a person is a victim of enforced or

involuntary disappearance, shall immediately report in writing the

circumstances and whereabouts of the victim to any office, detachment or

division of the Department of the Interior and Local Government (DILG), the

Department of National Defense (DND), the Philippine National Police (PNP),

the Armed Forces of the Philippines (AFP), the National Bureau of

Investigation (NBI), the City or Provincial Prosecutor, the Commission onHuman Rights (CHR) or any human rights organization and, if known, the

victim’s family, relative, or lawyer.

SEC. 8. Duty to Certify in Writing on the Results of Inquiry into a Reported

Disappeared Person’s Whereabouts. –In case a family member, relative,

lawyer, representative of a human rights organization or a member of the

media inquires with a member or official of any police or military detention

center, the PNP or any of its agencies, the AFP or any of its agencies, the NBI

or any other agency or instrumentality of the government, as well as any

hospital or morgue, public or private, on the presence or whereabouts of areported victim of enforced or involuntary disappearance, such member or

official shall immediately issue a certification in writing to the inquiring

person or entity on the presence or absence and/or information on the

whereabouts of such disappeared person, stating, among others, in clear and

unequivocal manner the date and time of inquiry, details of the inquiry and

the response to the inquiry.

SEC. 9. Duty of Inquest/Investigating Public Prosecutor or any Judicial or

Quasi-Judicial Official or Employee. –Any inquest or investigating public

prosecutor, or any judicial or quasi-judicial official or employee who learnsthat the person delivered for inquest or preliminary investigation or for any

other judicial process is a victim of enforced or involuntary disappearance

shall have the duty to immediately disclose the victim’s whereabouts to his

or her immediate family, relatives, lawyer/s or to a human rights organization

by the most expedient means.

SEC. 10. Official Up-to-Date Register of All Persons Detained or Confined. - All

persons detained or confined shall be placed solely in officially recognized

and controlled places of detention or confinement where an official up-to-

date register of such persons shall be maintained. Relatives, lawyers, judges,

official bodies and all persons who have legitimate interest in the

whereabouts and condition of the persons deprived of liberty shall have free

access to the register.

The following details, among others, shall be recorded, in the register:

(a) The identity or name, description and address of the person deprived of

liberty;

(b) The date, time and location where the person was deprived of liberty and

the identity of the person who made such deprivation of liberty;

(c) The authority who decided the deprivation of liberty and the reasons for

the deprivation of liberty or the crime or offense committed;

(d) The authority controlling the deprivation of liberty;

(e) The place of deprivation of liberty, the date and time of admission to the

place of deprivation of liberty and the authority responsible for the place of

deprivation of liberty;

(f) Records of physical, mental and psychological condition of the detained or

confined person before and after the deprivation of liberty and the name and

address of the physician who examined him or her physically, mentally and

medically;

(g) The date and time of release or transfer of the detained or confined

person to another place of detention, the destination and the authority

responsible for the transfer;

(h) The date and time of each removal of the detained or confined personfrom his or her cell, the reason or purpose for such removal and the date and

time of his or her return to his or her cell;

(i) A summary of the physical, mental and medical findings of the detained or

confined person after each interrogation;

(j) The names and addresses of the persons who visit the detained or confined

person and the date and time of such visits and the date and time of each

departure;





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(k) In the event of death during the deprivation of liberty, the identity, the

circumstances and cause of death of the victim as well as the destination of

the human remains; and

(1) All other important events bearing on and all relevant details regarding

the treatment of the detained or confined person.

Provided, That the details required under letters (a) to (f) shall be entered

immediately in the register upon arrest and/or detention.

All information contained in the register shall be regularly or upon request

reported to the CHR or any other agency of government tasked to monitor

and protect human rights and shall be made available to the public.

SEC. 11. Submission of List of Government Detention Facilities. –Within six (6)

months from the effectivity of this Act and as may be requested by the CHR

thereafter, all government agencies concerned shall submit an updated

inventory or list of all officially recognized and controlled detention or

confinement facilities, and the list of detainees or persons deprived of liberty

under their respective jurisdictions to the CHR.

SEC. 12. Immediate Issuance and Compliance of the Writs of Habeas Corpus,

Amparo and Habeas Data. – All proceedings pertaining to the issuance of the

writs of habeas corpus, amparo and habeas data shall be dispensed with

expeditiously. As such, all courts and other concerned agencies of

government shall give priority to such proceedings.

Moreover, any order issued or promulgated pursuant to such writs or their

respective proceedings shall be executed and complied with immediately.

SEC. 13. Visitation /Inspection of Places of Detention and, Confinement. –The

CHR or its duly authorized representatives are hereby mandated and

authorized to conduct regular, independent, unannounced and unrestricted

visits to or inspection of all places of detention and confinement.

SEC. 14. Liability of Commanding Officer or Superior. - The immediate

commanding officer of the unit concerned of the AFP or the immediate senior

official of the PNP and other law enforcement agencies shall be held liable as

a principal to the crime of enforced or involuntary disappearance for acts

committed by him or her that shall have led, assisted, abetted or allowed,

whether directly or indirectly, the commission thereof by his or her

subordinates. If such commanding officer has knowledge of or, owing to the

circumstances at the time, should have known that an enforced or

involuntary disappearance is being committed, or has been committed by

subordinates or by others within the officer’s area of responsibility and,

despite such knowledge, did not take preventive or coercive action either

before, during or immediately after its commission, when he or she has the

authority to prevent or investigate allegations of enforced or involuntarydisappearance but failed to prevent or investigate such allegations, whether

deliberately or due to negligence, shall also be held liable as principal.

SEC. 15. Penal Provisions. – (a) The penalty of reclusion perpetua and its

accessory penalties shall be imposed upon the following persons:

(1) Those who directly committed the act of enforced or involuntary

disappearance;

(2) Those who directly forced, instigated, encouraged or induced others to

commit the act of enforced or involuntary disappearance;

(3) Those who cooperated in the act of enforced or involuntary

disappearance by committing another act without which the act of enforced

or involuntary disappearance would not have been consummated;

(4) Those officials who allowed the act or abetted in the consummation of

enforced or involuntary disappearance when it is within their power to stop

or uncover the commission thereof; and

(5) Those who cooperated in the execution of the act of enforced or

involuntary disappearance by previous or simultaneous acts.

(b) The penalty of reclusion temporal and its accessory penalties shall be

imposed upon those who shall commit the act of enforced or involuntary

disappearance in the attempted stage as provided for and defined under

Article 6 of the Revised Penal Code.

(c) The penalty of reclusion temporal and its accessory penalties shall also be

imposed upon persons who, having knowledge of the act of enforced or

involuntary disappearance and without having participated therein, either as





42

principals or accomplices, took part subsequent to its commission in any of

the following manner:

(1) By themselves profiting from or assisting the offender to profit from the

effects of the act of enforced or involuntary disappearance;

(2) By concealing the act of enforced or involuntary disappearance and/or

destroying the effects or instruments thereof in order to prevent its

discovery; or

(3) By harboring, concealing or assisting in the escape of the principal/s in the

act of enforced or involuntary disappearance, provided such accessory acts

are done with the abuse of official functions.

(d) The penalty of prision correctional and its accessory penalties shall be

imposed against persons who defy, ignore or unduly delay compliance with

any order duly issued or promulgated pursuant to the writs of habeas corpus,

amparo and habeas data or their respective proceedings.

(e) The penalty of arresto mayor and its accessory penalties shall be imposedagainst any person who shall violate the provisions of Sections 6, 7, 8, 9 and

10 of this Act.

SEC. 16. Preventive Suspension/Summary Dismissal. –Government officials

and personnel who are found to be perpetrators of or participants in any

manner in the commission of enforced or involuntary disappearance as a

result of a preliminary investigation conducted for that purpose shall be

preventively suspended or summarily dismissed from the service, depending

on the strength of the evidence so presented and gathered in the said

preliminary investigation or as may be recommended by the investigatingauthority.

SEC. 17. Civil Liability. –The act of enforced or involuntary disappearance shall

render its perpetrators and the State agencies which organized, acquiesced

in or tolerated such disappearance liable under civil law.

SEC. 18. Independent Liability. –The criminal liability of the offender under

this Act shall be independent of or without prejudice to the prosecution and

conviction of the said offender for any violation of Republic Act No. 7438,

otherwise known as “An Act Defining Certain Rights of Person Arrested,

Detained or Under Custodial Investigation as well as the Duties of the

Arresting, Detaining, and Investigating Officers, and Providing Penalties for

Violations Thereof’; Republic Act No. 9745, otherwise known as “An Act

Penalizing Torture and Other Cruel, Inhuman and Degrading Treatment or

Punishment, and Prescribing Penalties Therefor”; and applicable provisions

of the Revised Penal Code.

SEC. 19. Nonexclusivity or Double Jeopardy Under International Law . – Any

investigation, trial and decision in any Philippines court, or body for any

violation of this Act shall; be without prejudice to any investigation, trial,

decision or any other legal or administrative process before any appropriate

international court or agency under applicable international human rights

and humanitarian law.

SEC. 20. Exemption from Prosecution. – Any offender who volunteers

information that leads to the discovery of the victim of enforced or

involuntary disappearance or the prosecution of the offenders without the

victim being found shall be exempt from any criminal and/or civil liability

under this Act: Provided , That said offender does not appear to be the most

guilty.

SEC. 21. Continuing Offense. – An act constituting enforced or involuntary

disappearance shall be considered a continuing offense as long as the

perpetrators continue to conceal the fate and whereabouts of the

disappeared person and such circumstances have not been determined with

certainty.

SEC. 22. Statue of Limitations Exemption. – The prosecution of persons

responsible for enforced or involuntary disappearance shall not prescribeunless the victim surfaces alive. In which case, the prescriptive period shall be

twenty-five (25) years from the date of such reappearance.

SEC. 23. Special Amnesty Law Exclusion. – Persons who are changed with

and/or guilty of the act of enforced or involuntary disappearance shall not

benefit from any special amnesty law or other similar executive measures

that shall exempt them from any penal proceedings or sanctions.

SEC. 24. State Protection – The State, through its appropriate agencies, shall

ensure the safety of all persons involved in the search, investigation and

prosecution of enforced or involuntary disappearance including, but not





43

limited to, the victims, their families, complainants, witnesses, legal counsel

and representatives of human rights organizations and media. They shall

likewise be protected from any intimidation or reprisal.

SEC. 25. Applicability of Refouler. –No person shall be expelled, returned or

extradited to another State where there are substantial grounds to believe

that such person shall be in danger of being subjected to enforced or

involuntary disappearance. For purposes of determining whether such

grounds exist, the Secretary of the Department, of Foreign Affairs (DFA) and

the Secretary of the Department of Justice (DOJ) in coordination with the

Chairperson of the CHR, shall take into account all relevant considerations

including where applicable and not limited to, the existence in the requesting

State of a consistent pattern of gross, flagrant or mass violations of human

rights.

SEC. 26. Restitution and Compensation to Victims of Enforced or Involuntary

Disappearance and/or Their Immediate Relatives. –The victims of enforced or

involuntary disappearance who surface alive shall be entitled to monetary

compensation, rehabilitation and restitution of honor and reputation. Such

restitution of honor and reputation shall include immediate expunging or

rectification of any derogatory record, information or public

declaration/statement on his or her person, personal circumstances, status,

and/or organizational affiliation by the appropriate government or private

agency or agencies concerned.

The immediate relatives of a victim of enforced or involuntary disappearance,

within the fourth civil degree of consanguinity or affinity, may also claim for

compensation as provided for under Republic Act No. 7309, entitled “An Act

Creating a Board of Claims under the Department of Justice for Victims of

Unjust Imprisonment or Detention and Victims of Violent Crimes and For

Other Purposes”, and other relief programs of the government.

The package of indemnification for both the victims and the immediate

relatives within the fourth civil degree of consanguinity or affinity shall be

without prejudice to other legal remedies that may be available to them.

SEC. 27. Rehabilitation of Victims and/or Their Immediate Relatives, and

Offenders. – In order that the victims of enforced or involuntary

disappearance who surfaced alive and/or their immediate relatives within

the fourth civil degree of consanguinity or affinity, may be effectively

reintegrated into the mainstream of society and in the process of

development, the State, through the CHR, in coordination with the

Department of Health, the Department of Social Welfare and Development

(DSWD) and the concerned nongovernment organization/s, shall provide

them with appropriate medical care and rehabilitation free of charge.

Toward the attainment of restorative justice, a parallel rehabilitation

program for persons who have committed enforced or involuntary

disappearance shall likewise be implemented without cost to such offenders.

SEC. 28. Implementing Rules and Regulations. – Within thirty (30) days from

the effectivity of this Act, the DOJ, the DSWD, the CHR, the Families of Victims

of Involuntary Disappearance (FIND) and the Families of Desaparecidos for

Justice (Desaparecidos), in consultation with other human rights

organizations, shall jointly promulgate the rules and regulations for the

effective implementation of this Act and shall ensure the full dissemination

of the same to the public.

SEC. 29. Suppletory Applications. – The applicable provisions of the Revised

Penal Code shall have suppletory application insofar as they are consistent

with the provisions of this Act.

SEC. 30. Appropriations. –The amount of Ten million pesos (P10,000,000.00)

is hereby appropriated for the initial implementation of this Act by the CHR.

Subsequent fluids for the continuing implementation of this Act shall be

included in the respective budgets of the CHR and the DOJ in the annual

General Appropriations Act.

SEC. 31. Separability Clause. –If for any reason, any section or provision of this

Act is declared unconstitutional or invalid, such other sections or provisions

not affected thereby shall remain in full force and effect.

SEC. 32. Repealing Clause. – All laws, decrees, executive orders, rules and

regulations and other issuances or parts thereof inconsistent with the

provisions of this Act are hereby repealed, amended or modified accordingly.

SEC. 33. Effectivity Clause. – This Act shall take effect fifteen (15) days after

its publication in at least two (2) newspapers of general circulation or





the Official Gazette, which shall not be later than seven (7) days after the

approval thereof.

APPROVED: December 21, 2012

Documents

Title II-Cases and Laws