G.R. No.119190 January 16, 1997 CHI MING TSOI, petitioner, vs. COURT OF APPEALS and GINA LAO-TSOI, respondents. TORRES, JR., J.: Man has not invented a reliable compass by which to steer a marriage in its journey over troubled waters. Laws are seemingly inadequate. Over time, much reliance has been placed in the works of the unseen hand of Him who created all things. Who is to blame when a marriage fails? This case was originally commenced by a distraught wife against her uncaring husband in the Regional Trial Court of Quezon City (Branch 89) which decreed the annulment of the marriage on the ground of psychological incapacity. Petitioner appealed the decision of the trial court to respondent Court of Appeals (CA-G.R. CV No. 42758) which affirmed the Trial Court's decision November 29, 1994 and correspondingly denied the motion for reconsideration in a resolution dated February 14, 1995. The statement of the case and of the facts made by the trial court and reproduced by the Court of Appeals 1 its decision are as follows: From the evidence adduced, the following acts were preponderantly established: Sometime on May 22, 1988, the plaintiff married the defendant at the Manila Cathedral, . . . Intramuros Manila, as evidenced by their Marriage Contract. (Exh. "A") After the celebration of their marriage and wedding reception at the South Villa, Makati, they went and proceeded to the house of defendant's mother. There, they slept together on the same bed in the same room for the first night of their married life. It is the version of the plaintiff, that contrary to her expectations, that as newlyweds they were supposed to enjoy making love, or having sexual intercourse, with each other, the defendant just went to bed, slept on one side thereof, then turned his back and went to sleep . There was no sexual intercourse between them during the first night. The same thing happened on the second, third and fourth nights. In an effort to have their honeymoon in a private place where they can enjoy together during their first week as husband and wife, they went to Baguio City. But, they did so together with her mother, an uncle, his mother and his nephew. They were all invited by the defendant to join them. [T]hey stayed in Baguio City for four (4) days. But, during this period, there was no sexual intercourse between them, since the defendant avoided her by taking a long walk during siesta time or by just sleeping on a rocking chair located at the living room. They slept together in the same room and on the same bed since May 22, 1988 until March 15, 1989. But during this period, there was no attempt of sexual intercourse between them. [S]he claims, that she did not: even see her husband's private parts nor did he see hers. Because of this, they submitted themselves for medical examinations to Dr. Eufemio Macalalag, a urologist at the Chinese General Hospital, on January 20, 1989. The results of their physical examinations were that she is healthy, normal and still a virgin, while that of her husband's examination was kept confidential up to this time. While no medicine was prescribed for her, the doctor prescribed medications for her husband which was also kept confidential. No treatment was given to her. For her husband, he was asked by the doctor to return but he never did. The plaintiff claims, that the defendant is impotent, a closet homosexual as he did not show his penis. She said, that she had observed the defendant using an eyebrow pencil and sometimes the cleansing cream of his mother. And that, according to her, the defendant married her, a Filipino citizen, to acquire or maintain his residency status here in the country and to publicly maintain the appearance of a normal man. The plaintiff is not willing to reconcile with her husband. On the other hand, it is the claim of the defendant that if their marriage shall be annulled by reason of psychological incapacity, the fault lies with his wife. But, he said that he does not want his marriage with his wife annulled for several reasons, viz: (1) that he loves her very much; (2) that he has no defect on his part and he is physically and psychologically capable; and, (3) since the relationship is still very young and if there is any differences between the two of them, it can still be reconciled and that, according to him, if either one of them has some incapabilities, there is no certainty that this will not be cured. He further claims, that if there is any defect, it can be cured by the intervention of medical technology or science. The defendant admitted that since their marriage on May 22, 1988, until their separation on March 15, 1989, there was no sexual contact between them. But, the reason for this, according to the defendant, was that everytime he wants to have sexual intercourse with his wife, she always avoided him and whenever he caresses her private parts, she always removed his hands. The defendant claims, that he forced his wife to have sex with him only once but he did not continue because she was shaking and she did not like it. So he stopped. There are two (2) reasons, according to the defendant , why the plaintiff filed this case against him, and these are: (1) that she is afraid that she will be forced to return the pieces of jewelry of his mother, and, (2) that her husband, the defendant, will consummate their marriage. The defendant insisted that their marriage will remain valid because they are still very young and there is still a chance to overcome their differences. The defendant submitted himself to a physical examination. His penis was examined by Dr. Sergio Alteza, Jr., for the purpose of finding out whether he is impotent . As a result thereof, Dr. Alteza submitted his Doctor's Medical Report. (Exh. "2"). It is stated there, that there is no evidence of impotency (Exh. "2-B"), and he is capable of erection. (Exh. "2-C") The doctor said, that he asked the defendant to masturbate to find out whether or not he has an erection and he found out that from the original size of two (2) inches, or five (5) centimeters, the penis of the defendant lengthened by one (1) inch and one centimeter. Dr. Alteza said, that the defendant had only a soft erection which is why his penis is not in its full length. But, still is capable of further erection, in that with his soft erection, the defendant is capable of having sexual intercourse with a woman. In open Court, the Trial Prosecutor manifested that there is no collusion between the parties and that the evidence is not fabricated." 2 After trial, the court rendered judgment, the dispositive portion of which reads: ACCORDINGLY, judgment is hereby rendered declaring as VOID the marriage entered into by the plaintiff with the defendant on May 22, 1988 at the Manila Cathedral, Basilica of the Immaculate Conception, Intramuros, Manila, before the Rt. Rev. Msgr. Melencio de Vera. Without costs. Let a copy of this decision be furnished the Local Civil Registrar of Quezon City. Let another copy be furnished the Local Civil Registrar of Manila. SO ORDERED. On appeal, the Court of Appeals affirmed the trial court's decision. Hence, the instant petition. Petitioner alleges that the respondent Court of Appeals erred: I in affirming the conclusions of the lower court that there was no sexual intercourse between the parties without making any findings of fact. II in holding that the refusal of private respondent to have sexual communion with petitioner is a psychological incapacity inasmuch as proof thereof is totally absent. III in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. IV in affirming the annulment of the marriage between the parties decreed by the lower court without fully satisfying itself that there was no collusion between them. We find the petition to be bereft of merit. Petitioner contends that being the plaintiff in Civil Case No. Q-89-3141, private respondent has the burden of proving the allegations in her complaint; that since there was no independent evidence to To prevent collusion between the parties is the reason why. there was no sexual intercourse between them. that the conclusion drawn by the trial court on the admissions and confessions of the parties in their pleadings and in the course of the trial is misplaced since it could have been a product of collusion. the material facts alleged in the complaint shall always be proved. 1988. Rule 19 of the Rules of Court reads: Section 1. there remains no other basis for the court's conclusion except the admission of petitioner. Appellant admitted that he did not have sexual relations with his wife after almost ten months of cohabitation. direct judgment on such pleading. He points out as error the failure of the trial court to make "a categorical finding about the alleged psychological incapacity and an in-depth analysis of the reasons for such refusal which may not be necessarily due to physchological disorders" because there might have been other reasons. he must have been only telling the truth.e. The issue of whether or not the appellant is psychologically incapacitated to discharge a basic marital obligation was resolved upon a review of both the documentary and testimonial evidence on record. The assailed decision was not based on such a judgment on the pleadings. January 4. But in actions for annulment of marriage or for legal separation the material facts alleged in the complaint shall always be proved. Rule 19). 1989. 88 and 101[par. The case has reached this Court because petitioner does not want their marriage to be annulled. until their separation on March 15. No. The foregoing provision pertains to a judgment on the pleadings. 1995). that public policy should aid acts intended to validate marriage and should retard acts intended to invalidate them. This only shows that there is no collusion between the parties. physical disorders. Court of Appeals. 1. the Civil Code provides that no judgment annulling a marriage shall be promulgated upon a stipulation of facts or by confession of judgment (Arts. 112019. After such evidence was presented. or otherwise admits the material allegations of the adverse party's pleading. she thereby presented evidence in form of a testimony. 4 Petitioner further contends that respondent court erred in holding that the alleged refusal of both the petitioner and the private respondent to have sex with each other constitutes psychological incapacity of both. 2]) and the Rules of Court prohibit such annulment without trial (Sec. viz: The judgment of the trial court which was affirmed by this Court is not based on a stipulation of facts. When private respondent testified under oath before the trial court and was cross-examined by oath before the trial court and was cross-examined by the adverse party. — why private . — i. We are reproducing the relevant portion of the challenged resolution denying petitioner's Motion for Reconsideration.. G. pains or other discomforts. Judgment on the pleadings. penned with magisterial lucidity by Associate Justice Minerva Gonzaga-Reyes. the court may. Such abnormal reluctance or unwillingness to consummate his marriage is strongly indicative of a serious personality disorder which to the mind of this Court clearly demonstrates an 'utter insensitivity or inability to give meaning and significance to the marriage' within the meaning of Article 36 of the Family Code (See Santos vs. and that in actions for annulment of marriage. it be came incumbent upon petitioner to present his side. What said provision seeks to prevent is annulment of marriage without trial. He admitted that since their marriage on May 22. When petitioner admitted that he and his wife (private respondent) have never had sexual contact with each other. and it appears that he is not suffering from any physical disability. as stated by the petitioner. — Where an answer fails to tender an issue.prove the alleged non-coitus between the parties.R. on motion of that party. 3 Section 1. such as aches. Since he was not physically impotent. in a short span of 10 months. even the psychologically incapacitated. that there has never been coitus between them. if it were true that it is the wife was suffering from incapacity. cited in I Paras. An examination of the evidence convinces Us that the husband's plea that the wife did not want carnal intercourse with him does not inspire belief. If a spouse. purely out of symphaty for her feelings.respondent would not want to have sexual intercourse from May 22. Besides. it must be stated that neither the trial court nor the respondent court made a finding on who between petitioner and private respondent refuses to have sexual contact with the other. it became incumbent upon him to prove such a claim. Assuming it to be so. there is nothing in the record to show that he had tried to find out or discover what the problem with his wife could be. the fact that defendant did not go to court and seek the declaration of nullity weakens his claim. Civil Code. We do not agree. petitioner could have discussed with private respondent or asked her what is ailing her. but he refrained from sexual intercourse during the entire time (from May 22. Thus. 6 Evidently. 1989. although physically capable but simply refuses to perform his or her essential marriage obligations.. he deserves to be doubted for not having asserted his right seven though she balked (Tompkins vs. At least. 1989) that he occupied the same bed with his wife. First. and the refusal is senseless and constant. the senseless and protracted refusal of one of the parties to fulfill the above marital obligation is equivalent to psychological incapacity. 5 Since it is petitioner's claim that the reason is not psychological but perhaps physical disorder on the part of private respondent. 1988 to March 15. i. and why she balks and avoids him everytime he wanted to have sexual intercourse with her. What he presented in evidence is his doctor's Medical Report that there is no evidence of his impotency and he is capable of erection. The fact remains. This case was instituted by the wife whose normal expectations of her marriage were frustrated by her husband's inadequacy. Tompkins. 330). Senseless and protracted refusal is equivalent to psychological incapacity. Catholic marriage tribunals attribute the causes to psychological incapacity than to stubborn refusal. 599. the prolonged refusal of a spouse to have sexual intercourse with his or her spouse is considered a sign of psychological incapacity. In the case at bar.e. the question of who refuses to have sex with the other becomes immaterial. 1988 to March 15." Constant non. . 111 Atl. that the reason for private respondent's refusal may not be psychological but physical disorder as stated above. Petitioner also claims that he wanted to have sex with private respondent. Petitioner claims that there is no independent evidence on record to show that any of the parties is suffering from phychological incapacity. Considering the innate modesty of the Filipino woman. at p.fulfillment of this obligation will finally destroy the integrity or wholeness of the marriage. As aptly stated by the respondent court. At any rate. it is hard to believe that she would expose her private life to public scrutiny and fabricate testimony against her husband if it were not necessary to put her life in order and put to rest her marital status. one of the essential marital obligations under the Family Code is "To procreate children based on the universal principle that procreation of children through sexual cooperation is the basic end of marriage. however. He never did. since the action to declare the marriage void may be filed by either party. can do no less but sustain the studied judgment of respondent appellate court. Sexual intimacy is a gift and a participation in the mystery of creation. This Court. Family Code). the sanction therefor is actually the "spontaneous. It is a function which enlivens the hope of procreation and ensures the continuation of family relations. It appears that there is absence of empathy between petitioner and private respondent. sacrifice and a continuing commitment to compromise. is indicative of a hopeless situation. 68. respect. SO ORDERED. and who has not posed any insurmountable resistance to his alleged approaches." After almost ten months of cohabitation. 1974 IN RE: FLORENCIO MALLARE. 1994 is hereby AFFIRMED in all respects and the petition is hereby DENIED for lack of merit. Republic of the Philippines SUPREME COURT Manila EN BANC A. finding the gravity of the failed relationship in which the parties found themselves trapped in its mire of unfulfilled vows and unconsummated marital obligations. Cuaderno 120 Phil. Marriage is definitely not for children but for two consenting adults who view the relationship with love amor gignit amorem.M. RESOLUTION . No. 533 September 12. which is not phychological incapacity. Love is useless unless it is shared with another. and which can be achieved "through proper motivation. We are not impressed by defendant's claim that what the evidence proved is the unwillingness or lack of intention to perform the sexual act. observe mutual love. 7 While the law provides that the husband and the wife are obliged to live together. 1298). respect and fidelity (Art. IN VIEW OF THE FOREGOING PREMISES . In the natural order. The egoist has nothing but himself. the admission that the husband is reluctant or unwilling to perform the sexual act with his wife whom he professes to love very dearly. conscious of its value as a sublime social institution. the assailed decision of the Court of Appeals dated November 29. Indeed. the cruelest act of a partner in marriage is to say "I could not have cared less. Marital union is a two-way process. respondent. An expressive interest in each other's feelings at a time it is needed by the other can go a long way in deepening the marital relationship." This is so because an ungiven self is an unfulfilled self. it is sexual intimacy which brings spouses wholeness and oneness. and of a serious personality disorder that constitutes psychological incapacity to discharge the basic marital covenants within the contemplation of the Family Code. no man is an island. That is — a shared feeling which between husband and wife must be experienced not only by having spontaneous sexual intimacy but a deep sense of spiritual communion. mutual affection between husband and wife and not any legal mandate or court order" (Cuaderno vs. as a duly admitted member of the bar. The proofs taken at the original investigation shall not be retaken. and his mother admittedly being a Chinese. J. (b) Esteben Mallare. Respondent moved for reconsideration of the decision. Martiniano P. Thereafter. and denying him the practice of his chosen profession which he has honorably discharged as far as the records show: The Court Resolved to set aside the decision of April 29. is premised upon three basic arguments. 1969. his admission to the bar was revoked. Quezon. the son of a Filipino mother. respondent petitioned the Court for the reopening of the case and for new trial on the ground. of newly discovered evidence. a legitimate son of Esteban Mallare. was a Filipino citizen. which was denied by the Court in its resolution of January 10. should be given ample opportunity to establish the true facts about his citizenship and that no effort should be spared to ascertain the truth before strippling him of the privilege granted to him by this Court since 1962. Esteban Mallare. 1969. the parties submitted their respective additional evidences before the Court's investigator. purporting to show that Estaben Mallare (respondent's father) is the natural son of Ana Mallare. who was admitted to the Philippine Bar on March 5. 1968. . On February 4. the Court Investigator shall submit his report on this Tribunal. Consequently respondent Florencio Mallare was declared excluded from the practice of law. to wit: (a) Respondent's father. had chosen Philippine citizenship. inter alia. 1968 and to grant the re- opening and new trial prayed for. holding that by preponderance of evidence. By resolution of July 31. Respondent's petition to set aside the decision of this Court of April 29. Esteban Mallare. the introduction of which could alter the decision previously promulgated. which shall take place before the Court's Investigating Officer on the days specified by him upon notice to respondent Mallare. was a Chinese up to his death. (Emphasis supplied) Accordingly. being the natural son of Ana Mallare. wherein said parties may adduce all proper additional evidence that they may desire to present. but considered as part of the evidence in the new trial. this Court ruled: Considering that the respondent. the lawyer's diploma previously issued to him. The evidence proposed to be presented consisted of (1) an entry in the registry of baptism of the Immaculate Concepcion Church at Macalelon. as well as the resolution of January 10. After an investigation conducted by this Court's Legal Officer Investigator. for the purpose of determining whether his name should be stricken from the roll of persons authorized to practice law in the Philippines. and he was ordered to return to this Court. 1969. the Commissioner of Immigration and the Solicitor General. and (2) testimonies of certain persons who had a known Esteban Mallare and his mother during their lifetime.:p On complaint of then Acting Immigration Commissioner. 1969. a Filipino. respondent is likewise a Chinese national. by his own overt acts. this Court ordered the investigation of the matter of citizenship of Florencio Mallare. a Filipino. 1968.FERNANDEZ. a decision was rendered by this Court on April 29. 1962. is a Filipino citizen. it appeared that respondent Mallare's father. Vivo. and (c) respondent. To support his contention that respondent Florencio Mallare is not a Filipino. Quezon. the birth certificates of respondent. dated November 28. Exhibit "3". respondent's alien certificate of registration. the latter axiomatically would also be a Filipino and the objection against his inclusion in the Roll of Attorneys in the Philippines would lose legal basis. Opinions Nos. 1959. wherein he was reported to be of Chinese nationality. "E". therefore. Exhibit "4". dated October 23. October 26. 329-G. and February 10. Quezon. final order of the Court of First Instance of Quezon. 1943. upholding the validity of a contract of sale. 1939. identification certificate No. revolves around the citizenship of respondent's father. Exhibit "2". dated August 25. his brothers and sisters. the vendees therein (including respondent) being citizens of the Philippines. respectively. declaring respondent "as a citizen of the Philippines by birth being the legitimate son of Esteban Mallare. 1955 and July 10. 1961 showing him to be a registered voter of Macalelon. Exhibits "D". respectively. the death certificate of Esteban Mallare dated June 7. 1968. 11712 issued by the Bureau of Immigration. 90 and 166 of the Secretary of Justice dated March 31. respondent submitted — Exhibit "1". 1960. ordering the Municipal Treasurer of Macalelon. an order by the Acting Commissioner of Immigration. After a painstaking study of the original and additional evidences herein presented.The determinative issue in this controversy. 329-G. a Filipino citizen as 'per order of this office dated 8 June 1960 CEBNO 4223-R'". to the effect that respondent and his brothers and sisters had failed to establish their claim to Philippine citizenship. 3925. . Quezon. 1932. and wherein respondent was reported to be a Chinese. "F" and "G". 1929. born in Macalelon. November 8. and a definitive declaration that respondent Florencio Mallare is a Filipino citizen and therefore with qualification and right to continue the practice of law in the Philippines. 329-G and Special Proceeding No. stating that their father was a Chinese citizen. the decision of the Court of First Instance of Quezon in Civil Case No. in Special Proceedings No. Exhibits "H" to "M" — the records of Civil Case No. and Exhibit "N". respondent's affidavit dated October 7. Exhibit "C". canceling respondent's alien certificate of registration on the strength of the court's decision in Civil Case No. to correct the entry in the Registry of Birth book of the municipality by changing respondent's nationality from "Chinese" to "Filipino". China. 1945. 1959. Esteban Mallare. for if Esteban were a Filipino as respondent claims. 1950. both of the Court of First Instance of Quezon. the Court finds sufficient grounds to warrant a definite setting aside of Our decision of April 29. Exhibit "5". the Commissioner of Immigration presented: Exhibits "A" and "B". 3925. dated November 18. born in Amoy. Upon the other hand. Te Na. whose house was only about five houses away from theirs. 5 that Esteban was then living with his mother.I. and that the affidavit of Esteban Mallare. Quezon that Esteban Mallare was registered in the Registry List of Voters on April 14. who was cohabiting with a Chinese. certification by the municipal treasurer of Macalelon. 80 years old who — declared that she was with her mother. citizen". when Esteban Mallare was born. who declared that he was a classmate and playmate of Esteban Mallare. Exhibit "K-9". 1 that she was present when Esteban was baptized. to the effect that he had chosen to follow the citizenship of his Filipino mother was not only self-serving. purporting to show that Esteban Mallare was the natural child of Ana Mallare. citizen". 1962. a Filipina. when Esteban campaigned for a rival candidate against him. dated July 7. 4 (b) Rafael Catarroja 77 years old and former mayor of Macalelon who declared that he knew Esteban Mallare even as a child. 1968. It was ruled that Ana Mallare (Esteban's mother) can not be considered a Filipino. was based upon an ex parte determination of the evidence presented by therein applicant and consequently carries little evidentiary weight as to the citizenship of her said husband. respondent's passport issued on March 5. 69 years old. executed on February 20. 1962. 2 that Ana Mallare had lived continuously in Macalelon and was reputed to be unmarried. Exhibit "L". 7 (c) Salomon Gimenez. when witness was municipal mayor. recognizing respondent Florencio Mallare as a Filipino citizen. showing that he is a citizen of the Philippines. Esteban Mallare. eighteen hundred and ninety-nine".I. who declared having known Esteban Mallare. he (the witness) wanted to seek for Esteban's disqualification. 6 that Esteban started voting in 1934. and became one of his (the witness') campaign leaders when he ran for the mayor ship in 1934. 8 that as of 1940. Exhibit "7". P. the "hilot" who attended to Ana Mallare during her delivery. as "wife of Dy Esteban. respondent's claim that he is a Filipino was denied for lack of evidence proving the Philippine citizenship of his father. 1928. Ana Mallare. that the landing certificate issued by the Bureau of Immigration which referred to respondent's mother. who advised him that a disqualification move would not prosper because Esteban's mother was not married to Esteban's Chinese father. and The entry in the baptismal registry of the Immaculate Concepcion Church at Macalelon. there being no proof that she was "an inhabitant of the Philippines continuing to reside therein who was a Spanish subject on the eleventh day of April. Quezon: (a) Damiana Cabangon. 3 that she had never met (seen) Esteban's father. a certain Mr. dated July 25. 12 In Our decision of April 29.Exhibit "6". Quezon. wherein she was certified as "wife of P. . a Tagala. 9 (d) Joaquin Enobal. that he sought the counsel of Judge Gaudencio Eleazar (a relative of the witness). Dy. that in the elections of l925. opinion of the Solicitor General. 1926. Respondent also presented the following residents of Macalelon. 11 that Ana was a Tagalog who had lived in Macalelon. there were only about 3. 10 that he had not seen the husband of Ana Mallare. 75 years old and former mayor of Macalelon. 1939. but also it can not be considered a re-affirmation of the alleged election of citizenship since no previous election of such citizenship has been proved to exist. landing certificate of Te Na (respondent's mother).000 residents in Macalelon. who had personal knowledge of the person. vs. Government of the Philippine Islands. the public reputation in Macalelon that Esteban was Ana's natural child. and that as early as 1925 (when he was about 22 years old). 16. every region possesses certain characteristics all its own. L-5111. And it would be straining the imagination to perceive that this situation was purposedly sought by Esteban's parents to suit some ulterior motives. The declarations were not only based on the reputation in the community regarding her race or race-ancestry. natural child of Ana Mallare. . Such declarations constitute admissible evidence of the birth and illegitimacy of Esteban Mallare. were one in their declaration that Ana Mallare is a Tagalog who had continuously resided in the place. Considering that the witnesses testified having known. 15 Indeed. was reputedly born out of wedlock. subsection 4. In 1903.13 The principle could not have been more true than in a Philippine rural community where relationships not in conformity with established contentions become the subject of criticisms and public cynosure. Thus. it would be unfair to expect the presentation of a formal deed to that effect considering that prior to the enactment of Commonwealth Act 625 on June 7. no particular proceeding was required to exercise the option to elect Philippine citizenship. her son. the aforementioned void in the proof of respondent's citizenship has been duly filled. would constitute proof of the illegitimacy of the former. cannot be assailed as being mere conclusions devoid of evidentiary value. granted to the proper party by Section 1. Thus. Serra vs. but they must have certain factual basis. which have not been controverted. Neither could any act taken on the erroneous belief that he is a non-Filipino divest him of the citizenship privileges to which he is rightfully entitled. 1941. Republic. that Ana Mallare is a Tagalog (and. The assertion of the witnesses. 42 Phil. 29 Phil. birth. a Filipino citizen). June 28. "K-9"). These acts are sufficient to show his preference for Philippine citizenship. L-4223. Unlike that of matters of pedigree. Reputation has been held admissible as evidence of age. or race- ancestry. 1952. birth and residency of both Ana Mallare and her son Esteban. testified to by the witness. their declaration that she is a Tagalog should receive a high degree of credibility. race. and on the question of whether a child was born alive. Ong Tianse. 332. Santos Co vs. Republic. Esteban was already participating in the elections and campaigning for certain candidate. Sy Quimsuan vs. and lived with. a Tagalog would normally detect if a person hails from the same region even from the way the latter speaks. May 12. all natives of Macalelon. For it must be realized that in this Philippine society. 1954). and that Esteban. The witnesses. is therefore himself a Filipino. 14 And even assuming arguendo that Ana Mallare were legally married to an alien. which is admissible in evidence. if Estaban were really born out of legal union. It has been established that Esteban Mallare was a registered voter as of April 14.With the additional evidence submitted by respondent pursuant to the authority granted by this Court. therefore. 1928 (Exh. Republic. and no other act would be necessary to confer on him all the rights and privileges attached to Philippine citizenship (U. general reputation of marriage may proceed from persons who are not members of the family — the reason for the distinction is the public interest that is taken in the question of the existence of marital relations. 1953. Ana Mallare in Macalelon. Feb. Pitallano vs. Besides. instead of adopting that of his father. we can not concede that alien inhabitants of his country were that sophisticated or legally-oriented. 543. Esteban's exercise of the right of suffrage when he came of age. Esteban Mallare.S. it is highly improbable that he would be keeping the surname "Mallare" after his mother. constitutes a positive act of election of Philippine citizenship. Article IV of the 1935 Philippine Constitution. a Filipina. L-4693. even assuming that said documents were prepared with actual knowledge and consent by respondent or by his parents. At any rate. No. and the complaint in this case is DISMISSED. on the erroneous belief that Esteban was a non-Filipino. 74457 March 20. "D". Antonio. petitioner. Fernando. The discrepancy in the testimonies of said witnesses. Gonzales for petitioner.. With respect to the registration of respondent as a citizen of China in 1950 (Exh. the informant appeared to be Esteban Mallare himself. Esteban Mallare. He declared that he was merely 16 years old when his father met his death in an accident in 1945. on the other hand. REGION IV.It is true that in the death certificate of Esteban Mallare (Exh. INTEGRATED NATIONAL POLICE.. Upon the foregoing considerations. the father. Ramon A. it was Maria Arana a "hilot". While said documents are public and the entries therein are. 1987 RESTITUTO YNOT. it was explained that this was secured by respondent's mother. she and her children reverted to Chinese citizenship. 16 The entries in the birth certificates (Exhs. the informant was neither his father or mother. JJ. C. they were declared to be of Chinese nationality. ILOILO CITY. .. Complainant places much emphasis on the convicting testimonies of the expert witnesses on the entry in the baptismal registry of the Immaculate Concepcion church. Muñoz Palma and Aquino. and on the basis of the original and additional evidence herein adduced the decision of this Court dated April 29. born to her in 1903 at Macalelon. Esguerra. concur. based on other evidence that Esteban Mallare is the natural child of Ana Mallare. without pronouncement as to costs. J. Esteban's eldest son and who supposedly supplied the data appearing in Exhibit "C". THE STATION COMMANDER. respondents. Makasiar. INTERMEDIATE APPELLATE COURT. and he came to know of it only when he was brought to the funeral parlor on the following day. Respondent likewise appeared to have applied for alien registration on August 25.J. Makalintal. denied having any hand in the funeral arrangements and the preparation of the said death certification of his father. Quezon. and in the case of respondent Florencio Mallare.R. BAROTAC NUEVO. BUREAU OF ANIMAL INDUSTRY. appeared to have been prepared upon information given by the nurse or midwife who attended to respondent's mother during her deliveries and who would have no knowledge of the actual fact of the place of birth and the citizenship of Esteban. ILOILO and THE REGIONAL DIRECTOR. "C"). however. took no part G. "F"). And any error on his part can not affect respondent Florencio Mallare. Barredo. 1968. he was referred to as a Chinese national. It is noted. Teehankee. and "G"). "N"). presumed to be correct. such acts would not cause the loss or forfeiture of Philippine citizenship 17 which Esteban acquired from his Filipino mother. on the belief that upon the death of her husband. however. is hereby definitely set aside. "N"). "E". and in the birth certificates of respondent and his brothers and sister (Exhs. Castro. Zaldivar. vs. "E". In the case of the birth certificate of Esperanza Mallare (Exh. consequently. Artemio Mallare. "D". "F" and "G"). that no proof has been presented to show that it was Esteban Mallare who personally gave the information that the child's and parents' nationality is Chinese. loses significance in the face of the finding. such presumption is merely disputable and will have to yield to more positive evidence establishing their inaccuracy. 1950 (Exh. 626 particularly with respect to age. nineteen hundred and eighty.) FERDINAND E. it has been observed that despite such orders the violators still manage to circumvent the prohibition against inter-provincial movement of carabaos by transporting carabeef instead. FERDINAND E. SECTION 2. in the case of carabeef. President of the Philippines. (SGD. WHEREAS. in the year of Our Lord. physical condition or purpose and no carabeef shall be transported from one province to another. do hereby promulgate the following: SECTION 1. it is necessary to strengthen the said Executive Order and provide for the disposition of the carabaos and carabeef subject of the violation. no carabao regardless of age. MARCOS. in the case of carabaos. to be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may ay see fit. The said executive order reads in full as follows: WHEREAS. 626-A. Done in the City of Manila. and to deserving farmers through dispersal as the Director of Animal Industry may see fit. sex. and WHEREAS. J. THEREFORE. MARCOS Preside nt Republic of the Philippines . Executive Order No. 626 and the prohibition against interprovincial movement of carabaos. in order to achieve the purposes and objectives of Executive Order No. The carabao or carabeef transported in violation of this Executive Order as amended shall be subject to confiscation and forfeiture by the government. 626 is hereby amended such that henceforth.: The essence of due process is distilled in the immortal cry of Themistocles to Alcibiades "Strike — but hear me first!" It is this cry that the petitioner in effect repeats here as he challenges the constitutionality of Executive Order No. by virtue of the powers vested in me by the Constitution. This Executive Order shall take effect immediately. the President has given orders prohibiting the interprovincial movement of carabaos and the slaughtering of carabaos not complying with the requirements of Executive Order No. I.CRUZ. this 25th day of October. NOW. The challenged measure is denominated an executive order but it is really presidential decree. as the law or rules of court may provide. 9 and so heal the wound or excise the affliction. modify or affirm on appeal or certiorari. 1984. 6 We have jurisdiction under the Constitution to "review. and of the need to declare them so. It was provided thereunder that whenever in his judgment there existed a grave emergency or a threat or imminence thereof or whenever the legislature failed or was unable to act adequately on any matter that in his judgment required immediate action. if there be a clear showing of their invalidity. all cases involving the constitutionality of certain measures. promulgating a new rule instead of merely implementing an existing law. he could. orders or letters of instruction that were to have the force and effect of law. or popular censure. reverse. 6 of the 1973 Constitution. this Court did not. The court also declined to rule on the constitutionality of the executive order. The thrust of his petition is that the executive order is unconstitutional insofar as it authorizes outright confiscation of the carabao or carabeef being transported across provincial boundaries. and so sustained. or loss of favor. The question raised there was the necessity of the previous publication of the measure in the Official Gazette before it could be considered enforceable. they should probe the issue more deeply. there should be no shirking of the task for fear of retaliation. 626-A. This Court has declared that while lower courts should observe a becoming modesty in examining constitutional questions. issue decrees. 2 The petitioner appealed the decision to the Intermediate Appellate Court." 8 to recall Justice Laurel's trenchant warning. That is an entirely different matter. the case of Pesigan v.* 3 which upheld the trial court. ordered the confiscation of the bond. He complains that the measure should not have been presumed. since they could no longer be produced. subject only to review by the highest tribunal. when they were confiscated by the police station commander of Barotac Nuevo.The petitioner had transported six carabaos in a pump boat from Masbate to Iloilo on January 13. and heavily. Judicial power authorizes this. then "will be the time to make the hammer fall. indeed." final judgments and orders of lower courts in. the court sustained the confiscation of the carabaos and. or any other similar inhibition unworthy of the bench. to relieve the abscess. And while it is true that laws are presumed to be constitutional. to question . courts should not follow the path of least resistance by simply presuming the constitutionality of a law when it is questioned. In doing so. impliedly affirm the constitutionality of Executive Order No. in order to meet the exigency. Iloilo. and the Regional Trial Court of Iloilo City issued a writ of replevin upon his filing of a supersedeas bond of P12. and when the exercise is demanded. On the contrary. His claim is that the penalty is invalid because it is imposed without according the owner a right to be heard before a competent and impartial court as guaranteed by due process. 6. the petitioner has reason. It was issued by President Marcos not for the purpose of taking care that the laws were faithfully executed but in the exercise of his legislative authority under Amendment No. especially this Court. revise. among others. Indeed. Angeles 5 is not applicable here. that presumption is not by any means conclusive and in fact may be rebutted. for lack of authority and also for its presumed validity. After considering the merits of the case. As there is no showing of any exigency to justify the exercise of that extraordinary power then. as contended by the Solicitor General. We imposed the requirement then on the basis of due process of law. they are nonetheless not prevented from resolving the same whenever warranted. as raise by the petitioner. 7 This simply means that the resolution of such cases may be made in the first instance by these lower courts. 4 While also involving the same executive order. Stated otherwise. however.00. There is also a challenge to the improper exercise of the legislative power by the former President under Amendment No. ** and he has now come before us in this petition for review on certiorari. paraphrasing another distinguished jurist.000. 1 The petitioner sued for recovery. as constitutional. for violation of the above measure. on the pretext that a hearing is unnecessary or useless. is tainted with the vice of bias or intolerance or ignorance. The solemn vow that King John made at Runnymede in 1215 has since then resounded through the ages. Instead. is entitled to have his say in a fair and open hearing of his cause. in leading to the correct ruling after examination of the problem not from one or the other perspective only but in its totality. benevolent or base. when confronted by the stern visage of the law. the insolence of power. we confine ourselves to the more fundamental question of due process. is entitled to "the law of the land. He was sustained by the body. That is the Ideal. for example. A judgment based on less that this full appraisal." 11 Thus. It is a gratifying commentary on our judicial system that the jurisprudence of this country is rich with applications of this guaranty as proof of our fealty to the rule of law and the ancient rudiments of fair play. out of mistaken zeal or plain arrogance. generally speaking. they have preferred to leave the import of the protection open-ended. since the determination of the grounds was supposed to have been made by the President "in his judgment. It is part of the sporting Idea of fair play to hear "the other side" before an opinion is formed or a decision is made by those who sit in judgment. would go no farther than to define due process — and in so doing sums it all up — as nothing more and nothing less than "the embodiment of the sporting Idea of fair play. we reserve resolution of this matter until a more appropriate occasion. who forcefully argued against it. In fact. . 14 as "the law which hears before it condemns. the courts have also hesitated to adopt their own specific description of due process lest they confine themselves in a legal straitjacket that will deprive them of the elbow room they may need to vary the meaning of the clause whenever indicated. We have consistently declared that every person. however. in repressive regimes. would degrade the due process clause into a worn and empty catchword. but it was rejected by Delegate Jose P. This was felt necessary because due process is not. like some provisions of the fundamental law. It is part of the art of constitution-making that the provisions of the charter be cast in precise and unmistakable language to avoid controversies that might arise on their correct interpretation. Flexibility must be the best virtue of the guaranty. one side is only one-half of the question. Nevertheless. faced by the awesome power of the State. this rule was deliberately not followed and the wording was purposely kept ambiguous. the other half must also be considered if an impartial verdict is to be reached based on an informed appreciation of the issues in contention. The minimum requirements of due process are notice and hearing 13 which. to be "gradually ascertained by the process of inclusion and exclusion in the course of the decision of cases as they arise. as it were. Obviously. as unto the bow the arrow. they thereby won for themselves and their progeny that splendid guaranty of fairness that is now the hallmark of the free society. Justice Felix Frankfurter of the U. The very elasticity of the due process clause was meant to make it adapt easily to every situation. " a phrase that will lead to protracted discussion not really necessary at this time.S. that every person. which proceeds upon inquiry and renders judgment only after trial. as a ringing reminder to all rulers." which Daniel Webster described almost two hundred years ago in the famous Dartmouth College Case." 12 When the barons of England extracted from their sovereign liege the reluctant promise that that Crown would thenceforth not proceed against the life liberty or property of any of its subjects except by the lawful judgment of his peers or the law of the land. may not be dispensed with because they are intended as a safeguard against official arbitrariness. In the case of the due process clause. a proposal to delineate it more clearly was submitted in the Constitutional Convention of 1934. For the nonce. The closed mind has no place in the open society. Aware of this. 10 The due process clause was kept intentionally vague so it would remain also conveniently resilient. Supreme Court. Chairman of the Committee on the Bill of Rights. enlarging or constricting its protection as the changing times and circumstances may require. Laurel. It is indispensable that the two sides complement each other." It has to be so if the rights of every person are to be secured beyond the reach of officials who.the validity of the executive order. an "iron rule" laying down an implacable and immutable command for all seasons and all persons. or worst of all. The individual. Salus populi est suprema lex and Sic utere tuo ut alienum non laedas. require such interference.. which call for the subordination of individual interests to the benefit of the greater number." We affirm at the outset the need for such a measure. as long as the activity or the property has some relevance to the public welfare. or by a desire to enjoy the luxury of animal food. like a mad dog on the loose. . to protect the community from the loss of the services of such animals by their slaughter by improvident owners. its regulation under the police power is not only proper but necessary. From what has been said. Pornographic materials. which were then badly needed by farmers. which in turn had caused an incipient famine. 15 There are instances when the need for expeditions action will justify omission of these requisites. An epidemic had stricken many of these animals and the reduction of their number had resulted in an acute decline in agricultural output. Even so. there are a number of admitted exceptions. for example. as a member of society. The protection of the general welfare is the particular function of the police power which both restraints and is restrained by due process. to be sure. amending the basic rule in Executive Order No. as expressed in one of its Whereases. that the means are reasonably necessary for the accomplishment of the purpose. even when by so doing the productive power of the community may be measurably and dangerously affected. 18 By reason of its function. so long as these animals are fit for agricultural work or draft purposes was a "reasonably necessary" limitation on private ownership. branding and slaughter of large cattle was claimed to be a deprivation of property without due process of law. cattle-rustling had spread alarmingly. 17 In such instances. because of the scarcity of the animals and the consequent increase in their price. It is a ubiquitous and often unwelcome intrusion. 626-A. if it had not taken steps to protect and preserve them. the least limitable and the most demanding of the three inherent powers of the State. The passport of a person sought for a criminal offense may be cancelled without hearing. indeed. Its reach is virtually limitless. And the justification is found in the venerable Latin maxims. prohibiting the slaughter of carabaos except under certain conditions. as in the summary abatement of a nuisance per se. It is this power that is now invoked by the government to justify Executive Order No. tempted either by greed of momentary gain. bars the admission of contrary evidence as long as such presumption is based on human experience or there is a rational connection between the fact proved and the fact ultimately presumed therefrom. The original measure was issued for the reason. The defendant had been convicted thereunder for having slaughtered his own carabao without the required permit. and not unduly oppressive upon individuals. first. and second. Toribio. contaminated meat and narcotic drugs are inherently pernicious and may be summarily destroyed. far outpacing taxation and eminent domain. In the face of the worsening energy crisis and the increased dependence of our farms on these traditional beasts of burden. which may be killed on sight because of the immediate danger it poses to the safety and lives of the people. that the interests of the public generally. as distinguished from those of a particular class. the government would have been remiss. The police power is simply defined as the power inherent in the State to regulate liberty and property for the promotion of the general welfare. The law was sustained as a valid police measure to prevent the indiscriminate killing of carabaos.. we think it is clear that the enactment of the provisions of the statute under consideration was required by "the interests of the public generally. that "present conditions demand that the carabaos and the buffaloes be conserved for the benefit of the small farmers who rely on them for energy needs.This is not to say that notice and hearing are imperative in every case for. The conviction was affirmed. A similar prohibition was challenged in United States v. it extends to all the great public needs and is described as the most pervasive. 16 Filthy restaurants may be summarily padlocked in the interest of the public health and bawdy houses to protect the public morals. Furthermore. to compel his return to the country he has fled. 19 where a law regulating the registration. which affects him even before he is born and follows him still after he is dead — from the womb to beyond the tomb — in practically everything he does or owns. previous judicial hearing may be omitted without violation of due process in view of the nature of the property involved or the urgency of the need to protect the general welfare from a clear and present danger. necessitating more effective measures for the registration and branding of these animals. it must appear. is hemmed in by the police power. and he appealed to the Supreme Court. 626. The conclusive presumption. The Court held that the questioned statute was a valid exercise of the police power and declared in part as follows: To justify the State in thus interposing its authority in behalf of the public. as distinguished from those of a particular class" and that the prohibition of the slaughter of carabaos for human consumption. . any more than moving them to another province will make it easier to kill them there. we cannot say with equal certainty that it complies with the second requirement. we hold with the Toribio Case that the carabao. not to be flippant dead meat. 20 In the exceptional cases accepted. The measure struck at once and pounced upon the petitioner without giving him a chance to be heard. by the measure itself. the prohibition is made to apply to it as otherwise. it should follow that there is no reason either to prohibit their transfer as. no such trial is prescribed. if the movement of the live animals for the purpose of preventing their slaughter cannot be prohibited. The executive order defined the prohibition. the carabaos were arbitrarily confiscated by the police station commander. Obviously. that there be a lawful method. The reasonable connection between the means employed and the purpose sought to be achieved by the questioned measure is missing We do not see how the prohibition of the inter-provincial transport of carabaos can prevent their indiscriminate slaughter. Executive Order No. However. thus denying him the centuries-old guaranty of elementary fair play. viz. physical condition or purpose (sic) and no carabeef shall be transported from one province to another. considering that they can be killed anywhere.. has a direct relevance to the public welfare and so is a lawful subject of Executive Order No. however. retaining the carabaos in one province will not prevent their slaughter there. The penalty is outright confiscation of the carabao or carabeef being transported. It has already been remarked that there are occasions when notice and hearing may be validly dispensed with notwithstanding the usual requirement for these minimum guarantees of due process. there is a justification for the omission of the right to a previous hearing. the executive order will be conserving those still fit for farm work or breeding and preventing their improvident depletion.In the light of the tests mentioned above. 626-A imposes an absolute ban not on the slaughter of the carabaos but on their movement. as forfeited to the government. the statute was sustained because the penalty prescribed was fine and imprisonment. Under the challenged measure. providing that "no carabao regardless of age. sex. It is also conceded that summary action may be validly taken in administrative proceedings as procedural due process is not necessarily judicial only. we would still have to reckon with the sanction that the measure applies for violation of the prohibition.000. which was carried out forthright. which was ordered confiscated upon his failure to produce the carabaos when ordered by the trial court. and the property being transported is immediately impounded by the police and declared. were returned to the petitioner only after he had filed a complaint for recovery and given a supersedeas bond of P12. The method chosen in the basic measure is also reasonably necessary for the purpose sought to be achieved and not unduly oppressive upon individuals. We note that to strengthen the original measure. significantly. it could be easily circumvented by simply killing the animal. as the poor man's tractor. so says executive order." The object of the prohibition escapes us. . with no less difficulty in one province than in another. 626.00. But while conceding that the amendatory measure has the same lawful subject as the original executive order. so to speak. In the Toribio Case. Even if a reasonable relation between the means and the end were to be assumed. to be meted out by the executive authorities. convicted the petitioner and immediately imposed punishment. the immediacy of the problem sought to be corrected and the urgency of the need to correct it. There is no doubt that by banning the slaughter of these animals except where they are at least seven years old if male and eleven years old if female upon issuance of the necessary permit. usually the police only. Perhaps so. As for the carabeef. to be imposed by the court after trial and conviction of the accused. again following the above-cited doctrine. to wit. In the instant case. In the case before us, there was no such pressure of time or action calling for the petitioner's peremptory treatment. The properties involved were not even inimical per se as to require their instant destruction. There certainly was no reason why the offense prohibited by the executive order should not have been proved first in a court of justice, with the accused being accorded all the rights safeguarded to him under the Constitution. Considering that, as we held in Pesigan v. Angeles, 21 Executive Order No. 626-A is penal in nature, the violation thereof should have been pronounced not by the police only but by a court of justice, which alone would have had the authority to impose the prescribed penalty, and only after trial and conviction of the accused. We also mark, on top of all this, the questionable manner of the disposition of the confiscated property as prescribed in the questioned executive order. It is there authorized that the seized property shall "be distributed to charitable institutions and other similar institutions as the Chairman of the National Meat Inspection Commission may see fit, in the case of carabeef, and to deserving farmers through dispersal as the Director of Animal Industry may see fit, in the case of carabaos." (Emphasis supplied.) The phrase "may see fit" is an extremely generous and dangerous condition, if condition it is. It is laden with perilous opportunities for partiality and abuse, and even corruption. One searches in vain for the usual standard and the reasonable guidelines, or better still, the limitations that the said officers must observe when they make their distribution. There is none. Their options are apparently boundless. Who shall be the fortunate beneficiaries of their generosity and by what criteria shall they be chosen? Only the officers named can supply the answer, they and they alone may choose the grantee as they see fit, and in their own exclusive discretion. Definitely, there is here a "roving commission," a wide and sweeping authority that is not "canalized within banks that keep it from overflowing," in short, a clearly profligate and therefore invalid delegation of legislative powers. To sum up then, we find that the challenged measure is an invalid exercise of the police power because the method employed to conserve the carabaos is not reasonably necessary to the purpose of the law and, worse, is unduly oppressive. Due process is violated because the owner of the property confiscated is denied the right to be heard in his defense and is immediately condemned and punished. The conferment on the administrative authorities of the power to adjudge the guilt of the supposed offender is a clear encroachment on judicial functions and militates against the doctrine of separation of powers. There is, finally, also an invalid delegation of legislative powers to the officers mentioned therein who are granted unlimited discretion in the distribution of the properties arbitrarily taken. For these reasons, we hereby declare Executive Order No. 626-A unconstitutional. We agree with the respondent court, however, that the police station commander who confiscated the petitioner's carabaos is not liable in damages for enforcing the executive order in accordance with its mandate. The law was at that time presumptively valid, and it was his obligation, as a member of the police, to enforce it. It would have been impertinent of him, being a mere subordinate of the President, to declare the executive order unconstitutional and, on his own responsibility alone, refuse to execute it. Even the trial court, in fact, and the Court of Appeals itself did not feel they had the competence, for all their superior authority, to question the order we now annul. The Court notes that if the petitioner had not seen fit to assert and protect his rights as he saw them, this case would never have reached us and the taking of his property under the challenged measure would have become a faitaccompli despite its invalidity. We commend him for his spirit. Without the present challenge, the matter would have ended in that pump boat in Masbate and another violation of the Constitution, for all its obviousness, would have been perpetrated, allowed without protest, and soon forgotten in the limbo of relinquished rights. The strength of democracy lies not in the rights it guarantees but in the courage of the people to invoke them whenever they are ignored or violated. Rights are but weapons on the wall if, like expensive tapestry, all they do is embellish and impress. Rights, as weapons, must be a promise of protection. They become truly meaningful, and fulfill the role assigned to them in the free society, if they are kept bright and sharp with use by those who are not afraid to assert them. WHEREFORE, Executive Order No. 626-A is hereby declared unconstitutional. Except as affirmed above, the decision of the Court of Appeals is reversed. The supersedeas bond is cancelled and the amount thereof is ordered restored to the petitioner. No costs. SO ORDERED. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-5272 March 19, 1910 THE UNITED STATES, plaintiff-appellee, vs. AH CHONG, defendant-appellant. Gibb & Gale, for appellant. Attorney-General Villamor, for appellee. CARSON, J.: The evidence as to many of the essential and vital facts in this case is limited to the testimony of the accused himself, because from the very nature of these facts and from the circumstances surrounding the incident upon which these proceedings rest, no other evidence as to these facts was available either to the prosecution or to the defense. We think, however, that, giving the accused the benefit of the doubt as to the weight of the evidence touching those details of the incident as to which there can be said to be any doubt, the following statement of the material facts disclose by the record may be taken to be substantially correct: The defendant, Ah Chong, was employed as a cook at "Officers' quarters, No. 27," Fort Mc Kinley, Rizal Province, and at the same place Pascual Gualberto, deceased, was employed as a house boy or muchacho. "Officers' quarters No. 27" as a detached house situates some 40 meters from the nearest building, and in August, 19087, was occupied solely as an officers' mess or club. No one slept in the house except the two servants, who jointly occupied a small room toward the rear of the building, the door of which opened upon a narrow porch running along the side of the building, by which communication was had with the other part of the house. This porch was covered by a heavy growth of vines for its entire length and height. The door of the room was not furnished with a permanent bolt or lock, and occupants, as a measure of security, had attached a small hook or catch on the inside of the door, and were in the habit of reinforcing this somewhat insecure means of fastening the door by placing against it a chair. In the room there was but one small window, which, like the door, opened on the porch. Aside from the door and window, there were no other openings of any kind in the room. On the night of August 14, 1908, at about 10 o'clock, the defendant, who had received for the night, was suddenly awakened by some trying to force open the door of the room. He sat up in bed and called out twice, "Who is there?" He heard no answer and was convinced by the noise at the door that it was being pushed open by someone bent upon forcing his way into the room. Due to the heavy growth of vines along the front of the porch, the room was very dark, and the defendant, fearing that the intruder was a robber or a thief, leaped to his feet and called out. "If you enter the room, I will kill you." At that moment he was struck just above the knee by the edge of the chair which had been placed against the door. In the darkness and confusion the defendant thought that the blow had been inflicted by the person who had forced the door open, whom he supposed to be a burglar, though in the light of after events, it is probable that the chair was merely thrown back into the room by the sudden opening of the door against which it rested. Seizing a common kitchen knife which he kept under his pillow, the defendant struck out wildly at the intruder who, it afterwards turned out, was his roommate, Pascual. Pascual ran out upon the porch and fell down on the steps in a desperately wounded condition, followed by the defendant, who immediately recognized him in the moonlight. Seeing that Pascual was wounded, he called to his employers who slept in the next house, No. 28, and ran back to his room to secure bandages to bind up Pascual's wounds. There had been several robberies in Fort McKinley not long prior to the date of the incident just described, one of which took place in a house in which the defendant was employed as cook; and as defendant alleges, it was because of these repeated robberies he kept a knife under his pillow for his personal protection. The deceased and the accused, who roomed together and who appear to have on friendly and amicable terms prior to the fatal incident, had an understanding that when either returned at night, he should knock at the door and acquiant his companion with his identity. Pascual had left the house early in the evening and gone for a walk with his friends, Celestino Quiambao and Mariano Ibañez, servants employed at officers' quarters No. 28, the nearest house to the mess hall. The three returned from their walk at about 10 o'clock, and Celestino and Mariano stopped at their room at No. 28, Pascual going on to his room at No. 27. A few moments after the party separated, Celestino and Mariano heard cries for assistance and upon returning to No. 27 found Pascual sitting on the back steps fatally wounded in the stomach, whereupon one of them ran back to No. 28 and called Liuetenants Jacobs and Healy, who immediately went to the aid of the wounded man. The defendant then and there admitted that he had stabbed his roommate, but said that he did it under the impression that Pascual was "a ladron" because he forced open the door of their sleeping room, despite defendant's warnings. No reasonable explanation of the remarkable conduct on the part of Pascuals suggests itself, unless it be that the boy in a spirit of mischief was playing a trick on his Chinese roommate, and sought to frightened him by forcing his way into the room, refusing to give his name or say who he was, in order to make Ah Chong believe that he was being attacked by a robber. Defendant was placed under arrest forthwith, and Pascual was conveyed to the military hospital, where he died from the effects of the wound on the following day. The defendant was charged with the crime of assassination, tried, and found guilty by the trial court of simple homicide, with extenuating circumstances, and sentenced to six years and one day presidio mayor, the minimum penalty prescribed by law. At the trial in the court below the defendant admitted that he killed his roommate, Pascual Gualberto, but insisted that he struck the fatal blow without any intent to do a wrongful act, in the exercise of his lawful right of self-defense. if the intruder who forced open the door of his room had been in fact a dangerous thief or "ladron. 596. 500. except in those cases where the circumstances demand a conviction under the penal provisions touching criminal negligence. Law. McClain's Crim. People. In broader terms. without waiting for the thief to discover his whereabouts and deliver the first blow. 213. Commonwealth vs. 7 Met. Under these provisions we think that there can be no doubt that defendant would be entitle to complete exception from criminal liability for the death of the victim of his fatal blow. That there was no such "unlawful aggression" on the part of a thief or "ladron" as defendant believed he was repelling and resisting. 7 Met. animus furendi. does an act for which he would be exempt from criminal liability if the facts were as he supposed them to be.. The question then squarely presents it self. 32 N.Article 8 of the Penal Code provides that — The following are not delinquent and are therefore exempt from criminal liability: xxx xxx xxx 4 He who acts in defense of his person or rights. in crimes intent) "cancels the presumption of intent. with the thief advancing upon him despite his warnings defendant would have been wholly justified in using any available weapon to defend himself from such an assault." as the defendant believed him to be. 509. Rogers. (2) Reasonable necessity of the means employed to prevent or repel it. provided always that the alleged ignorance or mistake or fact was not due to negligence or bad faith.. 133 and cases cited. (3) Lack of sufficient provocation on the part of the person defending himself. 240. in a small room.Y. 87 and cases cited. in larcerny. Isham vs. if such ignorance or mistake of fact is sufficient to negative a particular intent which under the law is a necessary ingredient of the offense charged (e. sec." That neither the defendant nor his property nor any of the property under his charge was in real danger at the time when he struck the fatal blow. (Wharton's Criminal Law. would doubt the right of the defendant to resist and repel such an intrusion.) . No one. But the evidence clearly discloses that the intruder was not a thief or a "ladron. in murder. under such circumstances. State. 38 Ala. malice. To this question we think there can be but one answer." and works an acquittal. by reason of a mistake as to the facts. provided there are the following attendant circumstances: (1) Illegal aggression.. it will not be questioned that in the darkness of the night. under the provisions of article 1 of the Penal Code one voluntarily committing a crime or misdeamor incurs criminal liability for any wrongful act committed by him. 28 Tex. and his threat that he would kill the intruder if he persisted in his attempt.. but which would constitute the crime of homicide or assassination if the actor had known the true state of the facts at the time when he committed the act. and in striking promptly. Commonwealth vs. Power. sec. and that there was no real "necessity" for the use of the knife to defend his person or his property or the property under his charge. and we hold that under such circumstances there is no criminal liability. S. and in cases where. Ap.g. whether in this jurisdiction one can be held criminally responsible who. and the thief having forced open the door notwithstanding defendant's thrice-repeated warning to desist. ignorance or mistake of fact. Yates vs. Pettit vs. even though it be different from that which he intended to commit.. with no means of escape... their use in the former code was redundant. for "There is little distinction. And it is to be observed that even these exceptions are more apparent than real. is an essential requisite of all crimes and offense therein defined. An person voluntarily committing a crime or misdemeanor shall incur criminal liability. the definitions of crimes and offenses as set out in the Penal Code rarely contain provisions expressly declaring that malice or criminal intent is an essential ingredient of the crime. But while it is true that contrary to the general rule of legislative enactment in the United States. therefore. vol. nevertheless. while insisting that the absence of intention to commit the crime can only be said to exempt from criminal responsibility when the act which was actually intended to be done was in itself a lawful one. as it has been otherwise stated. and that the word "voluntary" implies and includes the words "con malicia. Article 1 of the Penal Code is as follows: Crimes or misdemeanors are voluntary acts and ommissions punished by law. the commission of the acts set out in the various definitions subjects the actor to the penalties described therein. and the only question worthy of consideration is whether malice or criminal intent is an essential element or ingredient of the crimes of homicide and assassination as defined and penalized in the Penal Code. The celebrated Spanish jurist Pacheco. such as are those touching liability resulting from acts negligently or imprudently committed. having proceeded from a corrupt mid. C. which treats of exemption. 313). discussing the meaning of the word "voluntary" as used in this article. "There is so little difference between a disposition to do a great harm and a disposition to do harm that one of them may very well be looked upon as the measure of the other. intelligent. and since this disposition is greater or less in proportion to the harm which is done by the crime. and. 11).) Viada. and intentional act. is to be viewed the same whether the corruption was of one particular form or another. where the act committed is different from that which he intended to commit. or. the general provisions of article 1 of the code clearly indicate that malice. Since. Codigo Penal. which the criminal shows by committing it. s. It has been said that since the definitions there given of these as well as most other crimes and offense therein defined. as Pacheco insists. and in the absence of negligence or imprudence. between a will to do a wrongful thing and indifference whether it is done or not." which were expressly set out in the definition of the word "crime" in the code of 1822. the thing done. or criminal intent in some form. but omitted from the code of 1870. 18. Acts and omissions punished by law are always presumed to be voluntarily unless the contrary shall appear. p.The general proposition thus stated hardly admits of discussion. in the absence of express provisions modifying the general rule. because. p. 1. it is greater or less according as the crime in its own nature does greater or less harm" (Ruth. 1. the consequence is that the guilt of the crime follows the same proportion. except in degree. even though the wrongful act committed be different from that which he had intended to commit. nevertheless admits and recognizes in his discussion of the provisions of this article of the code that in general without intention there can be . and roundly asserts that without intention (intention to do wrong or criminal intention) there can be no crime. unless it appears that he is exempted from liability under one or other of the express provisions of article 8 of the code. Ints. do not specifically and expressly declare that the acts constituting the crime or offense must be committed with malice or with criminal intent in order that the actor may be held criminally liable. and within limits supplies the place of the affirmative criminal intent" (Bishop's New Criminal Law. 74." (Pacheco. vol. again. and acts done by one voluntarily committing a crime or misdemeanor. Therefore carelessness is criminal. the guilt of a crime consists in the disposition to do harm. being implied and included in the word "voluntary. say that a voluntary act is a free. negligence. 2.) And to the same effect are various decisions of the supreme court of Spain. vol. . made by the appellant in the civil registry and in the parochial church. And again in its sentence of March 16. without fear of mistake. That the author of the Penal Code deemed criminal intent or malice to be an essential element of the various crimes and misdemeanors therein defined becomes clear also from an examination of the provisions of article 568. 1896. Considering that the moral element of the crime. says: In fact. .no crime. in order to affirm. shall be punished with the penalty of arresto mayor in its maximum degree. does not impose any criminal liability on the actor. He who in violation of the regulations shall commit a crime through simple imprudence or negligence shall incur the penalty of arresto mayor in its medium and maximum degrees. that under our code there can be no crime if there is no act. (Vol. . 16. wherein it held that "considering that. p." and the direct inference from its provisions is that the commission of the acts contemplated therein. Silvela. if done with malice. that is. as we have shown above. which declared that where there is no intention there is no crime . the exceptions insisted upon by Viada are more apparent than real. to prision correccional in its minimum degrees if it shall constitute a less grave crime. nor is he guilty of criminal negligence. without being subject to the rules prescribed in article 81. as. (Viada. and imprudence. 1882. an act which must fall within the sphere of ethics if there is no moral injury. would constitute a grave crime. . The provisions of this article shall not be applicable if the penalty prescribed for the crime is equal to or less than those contained in the first paragraph thereof. in the absence of malice (criminal intent). . 1892. it made use of the following language: . 1. is not a necessary question of fact submitted to the exclusive judgment and decision of the trial court. The word "malice" in this article is manifestly substantially equivalent to the words "criminal intent. it is sufficient to remember the first article. folio 169. in which case the courts shall apply the next one thereto in the degree which they may consider proper. in which it made use of the following language: It is necessary that this act. which characterizes every action or ommission punished by law. for example in its sentence of May 31." And to the same effect in its sentence of December 30. intent or malice or their absence in the commission of an act defined and punished by law as criminal. involve all the malice which is supposed from the operation of the will and an intent to cause the injury which may be the object of the crime.) And. the Criminal Law. which are as follows: He who shall execute through reckless negligence an act that. In the application of these penalties the courts shall proceed according to their discretion. whatever may be the civil effects of the inscription of his three sons. in discussing the doctrine herein laid down. there can be no crime because of the lack of the necessary element or criminal intention. in order to constitute a crime. In times of excitement." but "the difference between them is not great." in another. And neither in philosophical speculation nor in religious or mortal sentiment would any people in any age allow that a man should be deemed guilty unless his mind was so. In controversies between private parties the quo animo with which a thing was done is sometimes important. criminal jurisprudence differs from civil. setting out a condition in the definition of a crime that it be committed "voluntarily.. "By reference to the intention. it elevates him to the seat of the martyr. not always. So also — Moral science and moral sentiment teach the same thing. so far from its placing an evil mark upon him. we hold him innocent. and cases cited. no one deems another to deserve punishment for what he did from an upright mind. Bishop. And whenever a person is made to suffer a punishment which the community deems not his due. and signifying rather the intent from our legal justification. that the essence of an offense is the wrongful intent. it signifies an evil intent without justifiable excuse. in other words." Actus me incito factus non est meus actus. or." or in one of the various modes generally construed to imply a criminal intent.The word "voluntary" as used in article 1 of the Penal Code would seem to approximate in meaning the word "willful" as used in English and American statute to designate a form of criminal intent. "wantonly" or "causelessly. It is therefore a principle of our legal system. large or small. we think that reasoning from general principles it will always be found that with the rare exceptions hereinafter mentioned. Mr. corruptly. "without reasonable grounds to believe the thing lawful. yet it is more frequently understood to extent a little further and approximate the idea of the milder kind of legal malice. as probably it is of every other. In this." willfully. — The ancient wisdom of the law. thus forcely present this doctrine: In no one thing does criminal jurisprudence differ more from civil than in the rule as to the intent. It consequently has supplied to us such maxims as Actus non facit reum nisi mens sit rea. as just said. 1. (Bishop's New Criminal Law. but crime proceeds only from a criminal mind. 428 and 429. as employed in a statute in contemplation. So that — There can be no crime. vol." "malicious. punishment is the sentence of wickedness. to constitute a crime evil intent must combine with an act. once said that ordinarily in a statute it means "not merely `voluntarily' but with a bad purpose." the word "malice" not often being understood to require general malevolence toward a particular individual.) But even in the absence of express words in a statute. we hold a man guilty simply on the ground of intention. In one case it was said to mean. Let the result of an action be what it may. Even infancy itself spontaneously pleads the want of bad intent in . We find this doctrine confirmed by — Legal maxims." And Shaw. every guard around the innocent is cast down. In other words. when vengeance takes the place of justice. without an evil mind. is distinct on this subject. And — In the spontaneous judgment which springs from the nature given by God to man. It has been said that while the word "willful" sometimes means little more than intentionally or designedly. "the act itself does not make man guilty unless his intention were so. more purely technical than "willful" or willfully. secs. "an act done by me against my will is not my act. equally with the modern." The calm judgment of mankind keeps this doctrine among its jewels. he who differs in act from his neighbors does not offend." "maliciously. J. without which it can not exists. C. But with the return of reason comes the public voice that where the mind is pure." and "malice aforethought" are words indicating intent." and others of the like sort. we inculpate or exculpate others or ourselves without any respect to the happiness or misery actually produced." In English and the American statutes defining crimes "malice. that is. destitute of every form of evil. without which it can not be." "maliciously" "with malice aforethought. on the dame ground. who supports his position with numerous citations from the decided cases. 387.. "The guilt of the accused must depend on the circumstances as they appear to him. 46 Barb. it is sufficient here to say that the courts have always held that unless the intention of the lawmaker to make the commission of certain acts criminal without regard to the intent of the doer is clear and beyond question the statute will not be so construed (cases cited in Cyc. secs. C. requiring mistake in fact to be dealt with otherwise that in strict accord with the principles of abstract justice. and so the life of an innocent person is unfortunately extinguished. upon which he acted. without which justice could not be administered in our tribunals. 305. a sufficient excuse"). and as laid down by Baron Parke. Nalley vs. Y. 44 Cal. On the contrary. 1 Den. 41.. P. and he was really no occassion for the extreme measures.. and the rule that ignorance of the law excuses no man has been said not to be a real departure from the law's fundamental principle that crime exists only where the mind is at fault. S. any such mistake of fact as shows the act committed to have proceeded from no sort of evil in the mind necessarily relieves the actor from criminal liability provided always there is no fault or negligence on his part. 54 Barb. and defends himself correctly according to what he thus supposes the facts to be the law will not punish him though they are in truth otherwise. notes 76 and 77). vs. C. 286 to 290. though he mistook the facts. then. vol.) Compelled by necessity. justification of what has the appearance of wrong. Anderson. Ap.. P." (Reg. 2d ed. vs. and compelled also by the same doctrine of necessity. (Bishop's New Criminal Law. p. Max. and without fault or negligence fell into the mistake is to be determined by the circumstances as they appeared to him at the time when the mistake was made. 55 Cal. "the great master of all things. it is the doctrine of reason and sufficiently sustained in adjudication. vs. 387. the question as to whether he honestly.. however this may be. and to make their commission criminal without regard to the intent of the doer. (Bishop's New Criminal Law.. sec. 12. Reg. 509.. because "the evil purpose need not be to break the law. in good faith. 28 Tex. and with reference to the right of self-defense and the not quite harmonious authorities. in language not uncommon in the cases. (Brown's Leg. Cohen. If. there is no technical rule." (Bishop's New Criminal Law. vs. 207. vol.. he is misled concerning them. 300. It is. whenever a man undertakes self-defense. and large array of cases there cited. the maxim here is Ignorantia facti excusat ("Ignorance or mistake in point of fact is.) . superior to all other doctrines. Without discussing these exceptional cases at length. in a limited class of cases. criminal or other wise. Yates vs. 65. 32 N. that notwithstanding some decisions apparently adverse. vs.. if without fault or carelessness he does believe them — he is legally guiltless of the homicide. and if suffices if it is simply to do the thing which the law in fact forbids. because first in nature from which the law itself proceeds. in forming the intent.) Since evil intent is in general an inseparable element in every crime. and the effect which the surrounding circumstances might reasonably be expected to have on his mind. the courts have recognized the power of the legislature to forbid. Patterson vs. without fault or carelessness. and no pressing necessity therefore. 342. Thurborn. Miles. the doing of certain acts.) That is to say. If. one has reasonable cause to believe the existence of facts which will justify a killing — or. 158. 209. that no man is to be punished as a criminal unless his intent is wrong. with the utmost confidence that the plea.) But.. In other words. 8 Cox C. sec. P. he is justified in acting on the facts as they appear to him. the doctrine of the law." an apparent departure from this doctrine of abstract justice result from the adoption of the arbitrary rule that Ignorantia juris non excusat ("Ignorance of the law excuses no man"). in terms more nicely in accord with the principles on which the rule is founded. Lamb.... and cases cited. 190. Now these facts are only the voice of nature uttering one of her immutable truths.. in all cases of supposed offense. P.. if its truth is credited. 1. will be accepted as good. 625. P. to whom he rendered assistance as soon as he learned his identity.The common illustration in the American and English textbooks of the application of this rule is the case where a man. stop and ascertain how the pistol is loaded — a doctrine which would entirely take away the essential right of self- defense. and left the house. according to the degree of caution used and the probable grounds of such belief. in company only of his wife. whom he . that the pistol leveled at his head is loaded. When it is shown that the accused was sitting at his hearth. leaving the unknown lying on the floor. are to judge of the reasonable grounds of his apprehension. 417. strikes B over the head before or at the instant the pistol is discharged. QUESTION III. because of which he turned. "holds up" his friends in a spirit of mischief. No one will doubt that if the facts were such as the slayer believed them to be he would be innocent of the commission of any crime and wholly exempt from criminal liability. Having approached near enough in the same attitude." Parson. The accused. and that the real design of B was only to terrify A. producing a contusion on the shoulder. with an outstretched arms and a pistol in his hand. and (since malice or criminal intent is a necessary ingredient of the "act punished by law" in cases of homicide or assassination) overcomes at the same time the presumption established in article 1 of the code. And when it is considered that the jury who try the cause.) In this case.. Will any reasonable man say that A is more criminal that he would have been if there had been a bullet in the pistol? Those who hold such doctrine must require that a man so attacked must. there suddenly entered a person whom he did not see or know. in the Massachusetts court. and of the wound B dies. It turns out the pistol was loaded with powder only. at night. (Charge to the grand jury in Selfridge's case. enforced the doctrine as follows: A. 160. and using violent menaces against his life as he advances. no danger can be supposed to flow from this principle. and with leveled pistol demands his money or his life.) To the same effect are various decisions of the supreme court of Spain. Under such circumstances. and under that supposition killed him. who has a club in his hand. although it should afterwards appear that there was no such design.J. p. J. It turned out the unknown person was his father-in-law.. at night and on a lonely road. once said: If the party killing had reasonable grounds for believing that the person slain had a felonious design against him. Whart. before he strikes the assailant. that the "act punished by law" was committed "voluntarily. but it will be either manslaughter or excusable homicide. masked and disguised as a footpad. and that his life and property are in imminent danger at the hands of the aggressor. although if he knew the real state of the facts when he took the life of his friend he would undoubtedly be guilty of the crime of homicide or assassination. and who died in about six days in consequence of cerebral congestion resulting from the blow. and that the man with his back to the door was attending to the fire.. cited by Viada. had always sustained pleasant relations with his father-in-law. seized the person and took from his the stick with which he had undoubtedly been struck. proof of his innocent mistake of the facts overcomes the presumption of malice or criminal intent. who confessed the facts. it will not be murder. but is killed by his friend under the mistaken belief that the attack is a real one. A. p. and gave the unknown person a blow. without other light than reflected from the fire. sees B rushing rapidly toward him. charging the petit jury. 418. Hom. (Lloyd's Rep. in the peaceable pursuit of his affairs. C.. and afterwards striking him another blow on the head. Parker. Lloyd's report of the case. a few of which are here set out in full because the facts are somewhat analogous to those in the case at bar.7. who struck him one or two blows. knocking him to the floor. and not the party killing. by a large stone thrown against his window — at this. Vol. and observing in an alley adjacent to the mill four individuals. that the accused was surprised from behind. without being able to distinguish with which they might have executed their criminal intent. to his house. I.) QUESTION VI. of the Penal Code? The criminal branch of the Audiencia of Valladolid found that he was an illegal aggressor. is awakened. as having acted in self-defense. finding the body lying upon the ground. article 8. not that which they might accomplish. he fired two shots from his pistol. at a distance of some 8 paces. he cried. 266. without sufficient provocation. he did not exceed the limits of self- defense. he fired his pistol at one the men." realizing that he had been the victim of a joke. but not that of the reasonableness of the means employed to repel the attack." and hastening to his assistance. distinguishing immediately the voice of one of his friends (who had before simulated a different voice) saying. A person returning. 136. and that it did not apply paragraph 4 of article 8 of the Penal Code. therefore. heard the voice of a man. and that under the circumstances. or I am ruined.) (Viada. it was not given him to known or distinguish whether there was one or more assailants. at night. Miguel. "Miguel. with all the circumstances related in paragraph 4. upon arriving at a point where there was no light. 1876. Shall this man be declared exempt from criminal responsibility as having acted in just self-defense with all of . for God's sake. who. at night. he was acquitted by the supreme court. etc. Shall he be considered free from criminal responsibility. and beaten. Shall he be declared exempt in toto from responsibility as the author of this homicide. p. from the facts found by the sentence to have been proven. and almost at the same money.. and considering that in such a situation and when the acts executed demonstrated that they might endanger his existence. March 17. with accessory penalty and costs. he should have defended himself. holding that the accused was acting under a justifiable and excusable mistake of fact as to the identity of the person calling to him.visited during his sickness. and possibly that of his wife and child. and in doing so with the same stick with which he was attacked. p. on the next morning was found dead on the same spot. but only found in favor of the accused two of the requisites of said article. he retired from the place. and considering that the lower court did not find from the accepted facts that there existed rational necessity for the means employed. etc. situated in a remote spot. he puts his head out of the window and inquires what is wanted. the means employed were rational and the shooting justifiable. Vol. and in accordance with articles 419 and 87 of the Penal Code condemned him to twenty months of imprisonment. it erred. and that there did not exists rational necessity for the employment of the force used. condemned the accused to eight years and one day of prison mayor. "Oh! they have killed me. and is answered "the delivery of all of his money. and observing that his friend was a corpse. which was situated in a retired part of the city. more especially because his assailant was unknown. The supreme court acquitted the accused on his appeal from this sentence. hand over you money!" because of which.) (Viada. etc. particularly because the instrument with which he killed was the one which he took from his assailant. was attacked. Upon appeal by the accused. and not receiving a reply. The owner of a mill. saying: "Face down. the darkness and remoteness. because of the there was no other than fire light in the room. and. speak. and was capable of producing death. as having acted in just self-defense under the circumstances defined in paragraph 4. under the following sentence: "Considering. nor did he use means which were not rationally necessary. I. struck. at night. demonstrating great grief over the occurrence. article 8. one of whom addressed him with blasphemy. nor the arms which they might bear. Penal Code? The criminal branch of the Audiencia of Malaga did not so find. 1885. and in the darkness of the house and the consteration which naturally resulted from such strong aggression. otherwise his house would be burned" — because of which. QUESTION XIX." (Sentence of supreme court of Spain.) . (Sentence supreme court. in his house beside his wife who was nursing her child. February 28. J. finding that the accused. believes that. defined and punishes in article 568 of the Penal Code. the supreme court acquitted the condemned. Johnson Moreland and Elliott. Arellano. L-14639 March 25. with the costs of both instance de oficio. By reason of the nature of the crime committed. (Sentence of May 23. in the opinion of the undersigned the accused should be sentenced to the penalty of one year and one month of prision correctional.. thereby reversing the judgment appealed from. and Mapa. he acted in good faith. So ordered. or in the means adopted by him to defend himself from the imminent danger which he believe threatened his person and his property and the property under his charge. as they must have presented themselves to the defendant at the time. for the acts committed by the deceased could not warrant the aggression by the defendant under the erroneous belief on the part of the accused that the person who assaulted him was a malefactor. inasmuch as the victim was wilfully (voluntariomente) killed.J. dissent. that in view of all the circumstances. was committed. in firing at the malefactors. p. 1919 . in the belief that he was doing no more than exercising his legitimate right of self-defense.) A careful examination of the facts as disclosed in the case at bar convinces us that the defendant Chinaman struck the fatal blow alleged in the information in the firm belief that the intruder who forced open the door of his sleeping room was a thief. and family. No.. and that he can not be said to have been guilty of negligence or recklessness or even carelessness in falling into his mistake as to the facts. The judgment of conviction and the sentence imposed by the trial court should be reversed. and condemned the accused to twelve months of prision correctional for the homicide committed. employed. to suffer the accessory penalties provided in article 61. J. concur. executed with real negligence. that had the facts been as he believed them to be he would have been wholly exempt from criminal liability on account of his act. Upon appeal. however. and to pay an indemnify of P1. (I Viada. the defendant therefore incurred responsibility in attacking with a knife the person who was accustomed to enter said room. but not that of reasonable necessity for the means. was acting in just self-defense of his person. without malice. the requisites of law? The criminal branch of the requisites of law? The criminal branch of the Audiencia of Zaragoza finds that there existed in favor of the accused a majority of the requisites to exempt him from criminal responsibility.. property..R. and the defendant acquitted of the crime with which he is charged and his bail bond exonerated. both of his life and of his property and of the property committed to his charge. Separate Opinions TORRES. without any justifiable motive. C. the crime of homicide by reckless negligence. or criminal intent. from whose assault he was in imminent peril. JJ. who attack his mill at night in a remote spot by threatening robbery and incendiarism. and while the act was done without malice or criminal intent it was. G. with the costs of both instances. with due respect to the opinion of the majority of the court. dissenting: The writer.000 to the heirs of the deceased. 1877). according to the merits of the case. 128. for the best of all reasons. the application will be .. through stipulation of the parties. provincial governor of Davao. but are not essential to the disposition of this case. were constituted. the police. the application. Between October 16 and October 25. J. had no previous notification that the women were prostitutes who had been expelled from the city of Manila. just about the time the Corregidor and the Negros were putting in to Davao. after all. with some government office for the use of the coastguard cutters Corregidor and Negros. yet. vs. petitioners. Alfonso Mendoza for petitioners. others assumed a life unknown and disappeared. as an independent power of such a government. closed. that some of the women married. as laborers. ET AL. Presumably. hustled some 170 inmates into patrol wagons. about midnight of October 25. Subsequently. The vessels reached their destination at Davao on October 29. 1918. the city authorities quietly perfected arrangements with the Bureau of Labor for sending the women to Davao. Mindanao. Justo Lukban. generally. the women were kept confined to their houses in the district by the police.. others went to work in different capacities. While hardly to be expected to be met with in this modern epoch of triumphant democracy. MALCOLM. ET AL. Anton Hohmann and the Mayor of the city of Manila. City Fiscal Diaz for respondents. as the same questions concerned them all. of no moment to these proceedings. acting pursuant to orders from the chief of police. The women were given no opportunity to collect their belongings. was made to include all of the women who were sent away from Manila to Davao and. At any rate. The involuntary guests were received on board the steamers by a representative of the Bureau of Labor and a detachment of Constabulary soldiers. and placed them aboard the steamers that awaited their arrival.: The annals of juridical history fail to reveal a case quite as remarkable as the one which this application for habeas corpus submits for decision. 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. and if we give expression to the paramount purpose for which the courts. respondents. The governor and the hacendero Yñigo. and by Feliciano Yñigo and Rafael Castillo. ordered the segregated district for women of ill repute. The women were landed and receipted for as laborers by Francisco Sales. others assumed more or less clandestine relations with men. descended upon the houses. Justo Lukban. They had no knowledge that they were destined for a life in Mindanao. Suffice it to say. to exterminate vice. The further happenings to these women and the serious charges growing out of alleged ill- treatment are of public interest. the attorney for the relatives and friends of a considerable number of the deportees presented an application for habeas corpus to a member of the Supreme Court. and a goodly portion found means to return to Manila.ZACARIAS VILLAVICENCIO. The two steamers with their unwilling passengers sailed for Davao during the night of October 25. To turn back in our narrative. and with the Constabulary for a guard of soldiers. the cause presents no great difficulty if there is kept in the forefront of our minds the basic principles of popular government. which had been permitted for a number of years in the city of Manila. JUSTO LUKBAN. but which might prove profitable reading for other departments of the government. who appear as parties in the case. the facts are these: The Mayor of the city of Manila. 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. during this period. and apparently were under the impression that they were being taken to a police station for an investigation. in written statements voluntarily made before the judge of first instance of Davao or the clerk of that court. an hacendero of Davao. On motion of counsel for petitioners. Department of Mindanao and Sulu. In substance. by their returns. On January 13. and because their jurisdiction did not extend beyond the boundaries of the city of Manila. after due deliberation. transportation fee. and Yñigo on January 13. and offered certain affidavits showing that the women were contained with their life in Mindanao and did not wish to return to Manila. on notice that if they desired they could return to Manila. 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. which need not be repeated. repeated the facts more comprehensively. The application set forth the salient facts. and telegrams that had passed between the Director of Labor and the attorney for that Bureau then in Davao. and therefore directed that those of the women not in Manila be brought before the court by respondents Lukban. Hohmann. The city fiscal appeared for the respondents. The court awarded the writ. and alleged that the women were illegally restrained of their liberty by Justo Lukban. Before the date mentioned.considered as including them. or unless the respondents should demonstrate some other legal motives that made compliance impossible. on December 10. of certain detectives and policemen. 1918. that eighty-one women were found in Davao who. alleged to be deprived of their liberty. promulgated a second order. 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. 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 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. and because they had married or signed contracts as laborers. governor of the province of Davao. because they were at liberty in the Province of Davao. Lukban and Hohmann. Anton Hohmann. seven of the women had returned to Manila at their own expense. The fiscal appeared. chief of police of the city of Manila. 1918. none of the persons in whose behalf the writ was issued were produced in court by the respondents. at good salaries. 1918. because the respondents did not have any of the women under their custody or control. that these women had been sent out of Manila without their consent. were notified by the police and the secret service to appear before the court. further testimony including that of a number of the women. The court. 1919. 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 fiscal admitted. Mayor of the city of Manila. On the day named in the order. Anton Hohmann. According to an exhibit attached to the answer of the fiscal. chief of police of the city of Manila. Francisco Sales. on the haciendas of Yñigo and Governor Sales. It has been shown that three of those who had been able to come back to Manila through their own efforts. Sales. in answer to question of a member of the court. and by certain unknown parties. admitted certain facts relative to sequestration and deportation. renounce the right. in an order of November 4. 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. December 2nd. 1919. their testimony was taken before the clerk of the Supreme Court sitting as commissioners. to bring before the court the persons therein named. Mayor of the city of Manila. It was further stated that the question of whether the respondents were in contempt of court would later be decided and the reasons for the order announced in the final decision. Before January 13. had succeeded in bringing from Davao with their consent eight women. . on December 2. once again recounted the facts and further endeavored to account for all of the persons involved in the habeas corpus. that directed Justo Lukban. and Feliciano Yñigo. the 170 women were destined to be laborers. 1919. Attorneys for the respondents. through their representatives and agents. the respondents technically presented before the Court the women who had returned to the city through their own efforts and eight others who had been brought to Manila by the respondents. and of the provincial governor of Davao. The writ was made returnable before the full court. it was stated that the respondents. In open court. unless the women should. renounced the right through sworn statements. compels any person to change his residence. be struck from the record. Even the Governor-General of the Philippine Islands. But one can search in vain for any law. has the executive of a municipality. an hacendero of Davao. members of the police force of the city of Manila. at their mere behest or even for the most praiseworthy of motives. In the second order. order. and that despite all efforts to find them twenty-six could not be located. The city fiscal requested that the replica al memorandum de los recurridos. Act No. fiscal of the city of Manila. the privilege of domicile is deemed so important as to be found in the Bill of Rights of the Constitution. need be recalled — these one hundred and seventy women were isolated from society. Much less. One fact. who has often been said to exercise more power than any king or potentate. On the contrary. as in Spain and Japan. Always a law! Even when the health authorities compel vaccination. in contempt of court. Modesto Joaquin. Feliciano Yñigo. this is a fact impossible to refute and practically admitted by the respondents. If the mayor and the chief of police could. Jose Rodriguez and Fernando Ordax. 899 authorizes the return of any citizen of the United States. that fifty-nine had already returned to Manila by other means. has no such arbitrary prerogative. chief of police of the city of Manila. Both counsel for petitioners and the city fiscal were permitted to submit memoranda. and Anacleto Diaz. or establish a quarantine. or regulation. who acts within a sphere of delegated powers. who may have been convicted of vagrancy. 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. We will now proceed to do so. Mayor of the city of Manila. Act No. (reply to respondents' memorandum) dated January 25. the attorney for the Bureau of Labor. therefore. it is done pursuant to some law or order. 1919. 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. and one fact only. were forcibly hustled on board steamers for transportation to regions unknown. and then at night. With this situation. without their consent and without any opportunity to consult with friends or to defend their rights. Indeed. Philippine penal law specifically punishes any public officer who. then the presidents and chiefs of police of one thousand other . even the President of the United States. render the liberty of the citizen so insecure. the court promised to give the reasons for granting the writ of habeas corpus in the final decision. not being expressly authorized by law or regulation. Anton Hohmann. New York and other States have statutes providing for the commitment to the House of Refuge of women convicted of being common prostitutes. or place a leprous person in the Culion leper colony. 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. 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. to the homeland. The first formally asked the court to find Justo Lukban. The Governor-General can order the eviction of undesirable aliens after a hearing from the Islands. 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. In other countries. either inherent or express. Despite the feeble attempt to prove that the women left voluntarily and gladly. Under the American constitutional system. And if a prostitute could be sent against her wishes and under no law from one locality to another within the country.) We entertain no doubt but that. Centuries ago Magna Charta decreed that — "No freeman shall be taken. as being the essence of slavery itself. And if any official can exercise the power.S. "that one man may be compelled to hold his life. or be outlawed. or exiled." said Justice Matthews of the same high tribunal in another case. vs. the proper prosecuting officers find that any public officer has violated this provision of law. The courts are the forum which functionate to safeguard individual liberty and to punish official transgressors. 7. or liberties. and (3) habeas corpus. is above the law.S." said Justice Miller.. We will sell to no man. Nevertheless. 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. then officialdom can hold the same club over the head of any citizen. ta be restored to his liberty. 220. "is the only supreme power in our system of government. What are the remedies of the unhappy victims of official oppression? The remedies of the citizen are three: (1) Civil action. at the mere will of another. then any other official can do the same. As to criminal responsibility. 370. but by lawful judgment of his peers or by the law of the land. or free customs. 356. 106 U. 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. 9 Hen. or the means of living. no matter how high." (U. (2) criminal action. is no bar to the instant proceedings. Hopkins [1886].. or any other wise destroyed. 196. 111. 211. stat." (Yick Wo vs. Cap. or be disseized of his freehold. 1 eng. or imprisoned. 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. 29. 118 U. but it was never intended effectively and promptly to meet any such situation as that now before us.. seems to be intolerable in any country where freedom prevails. we will not deny or defer to any man either justice or right. 1225. "The law. these prosecutors will institute and press a criminal prosecution just as vigorously as they have defended the same official in this action.S. Lee [1882]. (Art. Law defines power. and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy. delivering the opinion of the Supreme Court of the United States. that the act may be a crime and that the persons guilty thereof can be proceeded against. if. or any material right essential to the enjoyment of life.municipalities of the Philippines have the same privilege. If these officials can take to themselves such power. then all persons would have just as much right to do so. 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. after due investigation.) No official. It may still rest with the parties in interest to pursue such an action. except it be by virtue of the judgment of a court." (Magna Charta. nor will we pass upon him nor condemn him. Any public officer not thereunto expressly authorized by law or by regulation of a general character in force in the Philippines who shall compel any person to change his domicile or residence shall suffer the penalty of destierro and a fine of not less than six hundred and twenty-five and not more than six thousand two hundred and fifty pesetas.) All this explains the motive in issuing the writ of habeas corpus. it could be a sufficient answer that the confinement .) "The very idea. The first is an optional but rather slow process by which the aggrieved party may recoup money damages. at Large. and to observe the limitations which it imposes upon the exercise of the authority which it gives. was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure." (In the matter of Jackson [1867], 15 Mich., 416, 434.) The writ of habeas corpus was devised and exists as a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient defense of personal freedom. Any further rights of the parties are left untouched by decision on the writ, whose principal purpose is to set the individual at liberty. Granted that habeas corpus is the proper remedy, respondents have raised three specific objections to its issuance in this instance. The fiscal has argued (l) that there is a defect in parties petitioners, (2) that the Supreme Court should not a assume jurisdiction, and (3) that the person in question are not restrained of their liberty by respondents. It was finally suggested that the jurisdiction of the Mayor and the chief of police of the city of Manila only extends to the city limits and that perforce they could not bring the women from Davao. The first defense was not presented with any vigor by counsel. The petitioners were relatives and friends of the deportees. The way the expulsion was conducted by the city officials made it impossible for the women to sign a petition for habeas corpus. It was consequently proper for the writ to be submitted by persons in their behalf. (Code of Criminal Procedure, sec. 78; Code of Civil Procedure, sec. 527.) The law, in its zealous regard for personal liberty, even makes it the duty of a court or judge to grant a writ of habeas corpus if there is evidence that within the court's jurisdiction a person is unjustly imprisoned or restrained of his liberty, though no application be made therefor. (Code of Criminal Procedure, sec. 93.) Petitioners had standing in court. The fiscal next contended that the writ should have been asked for in the Court of First Instance of Davao or should have been made returnable before that court. It is a general rule of good practice that, to avoid unnecessary expense and inconvenience, petitions for habeas corpus should be presented to the nearest judge of the court of first instance. But this is not a hard and fast rule. The writ of habeas corpus may be granted by the Supreme Court or any judge thereof enforcible anywhere in the Philippine Islands. (Code of Criminal Procedure, sec. 79; Code of Civil Procedure, sec. 526.) Whether the writ shall be made returnable before the Supreme Court or before an inferior court rests in the discretion of the Supreme Court and is dependent on the particular circumstances. In this instance it was not shown that the Court of First Instance of Davao was in session, or that the women had any means by which to advance their plea before that court. On the other hand, it was shown that the petitioners with their attorneys, and the two original respondents with their attorney, were in Manila; it was shown that the case involved parties situated in different parts of the Islands; it was shown that the women might still be imprisoned or restrained of their liberty; and it was shown that if the writ was to accomplish its purpose, it must be taken cognizance of and decided immediately by the appellate court. The failure of the superior court to consider the application and then to grant the writ would have amounted to a denial of the benefits of the writ. The last argument of the fiscal is more plausible and more difficult to meet. When the writ was prayed for, says counsel, the parties in whose behalf it was asked were under no restraint; the women, it is claimed, were free in Davao, and the jurisdiction of the mayor and the chief of police did not extend beyond the city limits. At first blush, this is a tenable position. On closer examination, acceptance of such dictum is found to be perversive of the first principles of the writ of habeas corpus. A prime specification of an application for a writ of habeas corpus is restraint of liberty. The essential object and purpose of the writ of habeas corpus is to inquire into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person therefrom if such restraint is illegal. Any restraint which will preclude freedom of action is sufficient. The forcible taking of these women from Manila by officials of that city, who handed them over to other parties, who deposited them in a distant region, deprived these women of freedom of locomotion just as effectively as if they had been imprisoned. Placed in Davao without either money or personal belongings, they were prevented from exercising the liberty of going when and where they pleased. The restraint of liberty which began in Manila continued until the aggrieved parties were returned to Manila and released or until they freely and truly waived his right. Consider for a moment what an agreement with such a defense would mean. The chief executive of any municipality in the Philippines could forcibly and illegally take a private citizen and place him beyond the boundaries of the municipality, and then, when called upon to defend his official action, could calmly fold his hands and claim that the person was under no restraint and that he, the official, had no jurisdiction over this other municipality. We believe the true principle should be that, if the respondent is within the jurisdiction of the court and has it in his power to obey the order of the court and thus to undo the wrong that he has inflicted, he should be compelled to do so. Even if the party to whom the writ is addressed has illegally parted with the custody of a person before the application for the writ is no reason why the writ should not issue. If the mayor and the chief of police, acting under no authority of law, could deport these women from the city of Manila to Davao, the same officials must necessarily have the same means to return them from Davao to Manila. The respondents, within the reach of process, may not be permitted to restrain a fellow citizen of her liberty by forcing her to change her domicile and to avow the act with impunity in the courts, while the person who has lost her birthright of liberty has no effective recourse. The great writ of liberty may not thus be easily evaded. It must be that some such question has heretofore been presented to the courts for decision. Nevertheless, strange as it may seem, a close examination of the authorities fails to reveal any analogous case. Certain decisions of respectable courts are however very persuasive in nature. A question came before the Supreme Court of the State of Michigan at an early date as to whether or not a writ of habeas corpus would issue from the Supreme Court to a person within the jurisdiction of the State to bring into the State a minor child under guardianship in the State, who has been and continues to be detained in another State. The membership of the Michigan Supreme Court at this time was notable. It was composed of Martin, chief justice, and Cooley, Campbell, and Christiancy, justices. On the question presented the court was equally divided. Campbell, J., with whom concurred Martin, C. J., held that the writ should be quashed. Cooley, J., one of the most distinguished American judges and law-writers, with whom concurred Christiancy, J., held that the writ should issue. Since the opinion of Justice Campbell was predicated to a large extent on his conception of the English decisions, and since, as will hereafter appear, the English courts have taken a contrary view, only the following eloquent passages from the opinion of Justice Cooley are quoted: I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. . . . It would be strange indeed if, at this late day, after the eulogiums of six centuries and a half have been expended upon the Magna Charta, and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that "Magna Charta was such a fellow that he will have no sovereign," and after the extension of its benefits and securities by the petition of right, bill of rights and habeas corpus acts, it should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy, as I can not doubt they would, on the subject being brought to their notice. . . . The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was never the case in England that the court of king's bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. . . . The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to and served upon, not the person confined, but his jailor. It does not reach the former except through the latter. The officer or person who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent, and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief, and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is, therefore, not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where the power of control exercised? And I am aware of no other remedy. (In the matter of Jackson [1867], 15 Mich., 416.) The opinion of Judge Cooley has since been accepted as authoritative by other courts. (Rivers vs. Mitchell [1881], 57 Iowa, 193; Breene vs. People [1911], Colo., 117 Pac. Rep., 1000; Ex parte Young [1892], 50 Fed., 526.) The English courts have given careful consideration to the subject. Thus, a child had been taken out of English by the respondent. A writ of habeas corpus was issued by the Queen's Bench Division upon the application of the mother and her husband directing the defendant to produce the child. The judge at chambers gave defendant until a certain date to produce the child, but he did not do so. His return stated that the child before the issuance of the writ had been handed over by him to another; that it was no longer in his custody or control, and that it was impossible for him to obey the writ. He was found in contempt of court. On appeal, the court, through Lord Esher, M. R., said: A writ of habeas corpus was ordered to issue, and was issued on January 22. That writ commanded the defendant to have the body of the child before a judge in chambers at the Royal Courts of Justice immediately after the receipt of the writ, together with the cause of her being taken and detained. That is a command to bring the child before the judge and must be obeyed, unless some lawful reason can be shown to excuse the nonproduction of the child. If it could be shown that by reason of his having lawfully parted with the possession of the child before the issuing of the writ, the defendant had no longer power to produce the child, that might be an answer; but in the absence of any lawful reason he is bound to produce the child, and, if he does not, he is in contempt of the Court for not obeying the writ without lawful excuse. Many efforts have been made in argument to shift the question of contempt to some anterior period for the purpose of showing that what was done at some time prior to the writ cannot be a contempt. But the question is not as to what was done before the issue of the writ. The question is whether there has been a contempt in disobeying the writ it was issued by not producing the child in obedience to its commands. (The Queen vs. Bernardo [1889], 23 Q. B. D., 305. See also to the same effect the Irish case of In re Matthews, 12 Ir. Com. Law Rep. [N. S.], 233; The Queen vs. Barnardo, Gossage's Case [1890], 24 Q. B. D., 283.) No. The court held the return to be evasive and insufficient. and if it be found that they did not. 622. (United States vs. Anton Hohmann. and they did not present writings that waived the right to be present by those interested. Cas. the Magistrate in referring to an earlier decision of the Court. and Davis being present in court.) We find. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. and that they were then beyond his control and out of his custody. As far as the record discloses. The respondents were thus given ample time. they were removed beyond the District of Columbia before the service of the writ of habeas corpus. three optional courses were open: (1) They could have produced the bodies of the persons according to the command of the writ. Their excuses for the non-production of the persons were far from sufficient. in his return to the writ. For the respondents to have fulfilled the court's order. The court. The court afterwards ordered that Davis be released upon the production of two of the negroes. and that Davis was bound to produce the negroes. and that about this number either returned at their own expense or were produced at the second hearing by the respondents.. whether the contempt should be punished or be taken as purged. said: "We thought that. supra. Davis produced the two negroes on the last day of the term. Fed. both on reason and authority..C. A habeas corpus was directed to the defendant to have before the circuit court of the District of Columbia three colored persons. at the time the return to its first order was made. 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. some of which have since been repudiated by the signers. The evidence tended to show that Davis had removed the negroes because he suspected they would apply for a writ of habeas corpus. they did not show impossibility of performance.) They did not produce the bodies of the persons in whose behalf the writ was granted. Francisco Sales. Davis [1839]. or be otherwise discharged in due course of law. 170. having brought about that state of things by his . and refusing to produce them. therefore. and in sending them to jail until they obeyed the order.S. to comply with the writ. 2nd ed. in Gossage's case. 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. stated on oath that he had purchased the negroes as slaves in the city of Washington.A decision coming from the Federal Courts is also of interest. 1918. 1918. Davis. the Mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. that. that no one of the defense offered by the respondents constituted a legitimate bar to the granting of the writ of habeas corpus. See also Robb vs. would have been warranted summarily in finding the respondents guilty of contempt of court. (Code of Criminal Procedure. could have been brought back to Manila is demonstrated to be found in the municipality of Davao. at least sixty. were appended to the return. authorities cited herein pertaining to somewhat similar facts all tend to indicate with what exactitude a habeas corpus writ must be fulfilled. 111 U. Church on Habeas. p. 5 Cranch C. practically one month. 87. sec. for one of the negroes had run away and been lodged in jail in Maryland. The. with the cause of their detention. The order was dated November 4. ordered that he be committed to the custody of the marshall until he should produce the negroes. The first order. but who should not be permitted to do so because of having contracted debts. as he believed. 624. directed Justo Lukban. Connolly [1883]. and Feliciano Yñigo to present the persons named in the writ before the court on December 2. That through ordinary diligence a considerable number of the women. For example. it will be recalled. Instead a few stereotyped affidavits purporting to show that the women were contended with their life in Davao.. 14926. or (3) they could have presented affidavits to show that the parties in question or their attorney waived the right to be present. There remains to be considered whether the respondent complied with the two orders of the Supreme Court awarding the writ of habeas corpus. and because it desired to give the respondents another chance to demonstrate their good faith and to mitigate their wrong. that he must advertise in America. an hacendero of Davao. and Anacleto Diaz. with the possible exception of the first named. The power to punish for contempt of court should be exercised on the preservative and not on the vindictive principle. 77 Cal. Jose Rodriguez. his counter-motion to strike from the record the memorandum of attorney for the petitioners. The city fiscal. which brings him into this undesirable position. 156.own illegal act. 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." In other words. In re Patterson [1888]. a court must. Agents were dispatched to Mindanao. Anton Hohmann. Our finding to this effect may be influenced somewhat by our sincere desire to see this unhappy incident finally closed. the official who was primarily responsible for the unlawful deportation. When all is said and done. under the law of public officers. (Ex parte Sterns [1888]. and does not offer a valid excuse. who ordered the police to accomplish the same. and . must be granted. that he must do much more than write letters for the purpose. this does not exonerate them entirely. and Joaquin only followed the orders of their chiefs. Fiscal of the city of Manila. C. who made arrangements for the steamers and the constabulary. members of the police force of the city of Manila. Rodriguez. Feliciano Yñigo. In response to the second order of the court. The attorney for the petitioners asks that we find in contempt of court Justo Lukban. it can be made the object of separate habeas corpus proceedings. it is nevertheless a powerful mitigating circumstance. and while. he must take the consequences. the attorney for the Bureau of Labor. to vindicate its authority. we come to conclude that there is a substantial compliance with it. we cannot say that any of the respondents. While charges and counter-charges in such a bitterly contested case are to be expected.. adjudge the respondent to be guilty of contempt..) With all the facts and circumstances in mind. would seem to have done no more than to fulfill his duty as the legal representative of the city government. and we said that he was bound to use every effort to get the child back. Modesto Joaquin. Since the writ has already been granted. and Fernando Ordax. 407. The hacendero Yñigo appears to have been drawn into the case through a misconstruction by counsel of telegraphic communications. and since we find a substantial compliance with it. Respondents Hohmann. and a steamer with free transportation to Manila was provided. Finding him innocent of any disrespect to the court. chief of police of the city of Manila. the constabulary and the municipal police joined in rounding up the women. nothing further in this connection remains to be done. and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate. it should receive an executive investigation. and even if necessary himself go after the child. placards were posted. If any particular individual is still restrained of her liberty. Nevertheless when one is commanded to produce a certain person and does not do so. and that the court would only accept clear proof of an absolute impossibility by way of excuse. Ordax. If any wrong is now being perpetrated in Davao. and with judicial regard for human imperfections. 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. the return did not show that every possible effort to produce the women was made by the respondents. is a contempt committed in the face of the court. as far as this record discloses. and do everything that mortal man could do in the matter. who conducted the negotiations with the Bureau of Labor. 99 N. 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. Mayor of the city of Manila. has flatly disobeyed the court by acting in opposition to its authority. and must order him either imprisoned or fined. the respondents appear to have become more zealous and to have shown a better spirit. Anacleto Diaz. and in addition to deal with him as for a contempt. Yñigo. he has purged his contempt of the first order.. acted . Arellano. Rodriguez. Respondent Lukban is found in contempt of court and shall pay into the office of the clerk of the Supreme Court within five days the sum of one hundred pesos (P100). and Street. JJ. 1919. 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. It would be possible to turn to the provisions of section 546 of the Code of Civil Procedure. in proceeding in the manner shown. Johnson. We know no express law. In resume — as before stated. concur. It would also be possible to find that since respondent Lukban did comply substantially with the second order of the court. concur in the result.. it is undeniable that the mayor of the city. His regard for the writ of habeas corpus issued by the court was only tardily and reluctantly acknowledged. when more than one hundred and fifty women were assembled and placed aboard a steamer and transported to Davao. J. and in pursuance thereof to require respondent Lukban to forfeit to the parties aggrieved as much as P400 each. district of Sampaloc.. Separate Opinions TORRES. His intention to suppress the social evil was commendable. which relates to the penalty for disobeying the writ. Some members of the court are inclined to this merciful view. as the head of the city government. Some members of the court are inclined to this stern view. which would reach to many thousands of pesos. no further action on the writ of habeas corpus is necessary. The failure of respondent Lukban to obey the first mandate of the court tended to belittle and embarrass the administration of justice to such an extent that his later activity may be considered only as extenuating his conduct. regulation. is granted.who later. the Mayor of the city of Manila.. JJ. 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. Ordax. considering that the existence of the said houses of prostitution has been tolerated for so long a time. Joaquin. was Justo Lukban. So ordered. inmates of the houses of prostitution situated in Gardenia Street. the mayor of this city. A nominal fine will at once command such respect without being unduly oppressive — such an amount is P100. had it within his power to facilitate the return of the unfortunate women to Manila. dissenting: The undersigned does not entirely agree to the opinion of the majority in the decision of the habeas corpus proceeding against Justo Lukban. His methods were unlawful. Costs shall be taxed against respondents. In concluding this tedious and disagreeable task. Between the two extremes appears to lie the correct finding. and Diaz are found not to be in contempt of court. There is nothing in the record that shows the motive which impelled Mayor Lukban to oblige a great number of women of various ages. For this reason. Sampaloc. Avanceña and Moir. or ordinance which clearly prohibits the opening of public houses of prostitution. The respondents Hohmann.J. C. to change their residence. as those in the said Gardenia Street. hence the said official is obliged to bring back the women who are still in Davao so that they may return to the places in which they lived prior to their becoming inmates of certain houses in Gardenia Street. If the material and moral interests of the community as well as the demands of social morality are to be taken into account. if we take into account the difficulties encountered in bringing the said women who were free at Davao and presenting them before this court within the time fixed. could have obliged the said women to return to their former residences in this city or in the provinces. To determine whether or not the mayor acted with a good purpose and legal object and whether he has acted in good or bad faith in proceeding to dissolve the said community of prostitutes and to oblige them to change their domicile. The same reasons exist or stand good with respect to the unfortunate women dedicated to prostitution. neither do we believe in the necessity of taking them to the distant district of Davao. or any other person affected by a known contagious disease cannot invoke in his favor the constitutional law which guarantees his liberty and individual rights. should the administrative authority order his hospitalization. in exercising the inevitable duty of ordering the closing and abandonment of a house of prostitution ostensibly open to the public. and such reasons become stronger because the first persons named have contracted their diseases without their knowledge and even against their will. inasmuch as it does not appear that the said women were living together in a given place. in carrying out his intention to suppress the segregated district or the community formed by those women in Gardenia Street.without authority of any legal provision which constitutes an exception to the laws guaranteeing the liberty and the individual rights of the residents of the city of Manila. although such a house is inhabited by its true owner who invokes in his behalf the protection of the constitutional law guaranteeing his liberty. the dictates of common sense and dictates of conscience of its inhabitants are sufficient to warrant the public administration. reclusion. and his right to property. or concentration in a certain island or distant point in order to free from contagious the great majority of the inhabitants of the country who fortunately do not have such diseases. knowing positively that their constant intercourse with men of all . we do not find any apparent disobedience and marked absence of respect in the steps taken by the mayor of the city and his subordinates. It was not because they were really detained. his individual rights. The said governmental authority. We do not believe in the pomp and obstentation of force displayed by the police in complying with the order of the mayor of the city. live in the same place with so many unfortunate women dedicated to prostitution. whereas the unfortunate prostitutes voluntarily adopted such manner of living and spontaneously accepted all its consequences. and of obliging the inmates thereof to leave it. As regards the manner whereby the mayor complied with the orders of this court. although there were no positive laws prohibiting the existence of such houses within a district of Manila. without the necessity of transporting them to Mindanao. it is not possible to sustain that it is legal and permissible to establish a house of pandering or prostitution in the midst of an enlightened population. the inhabitants thereof being more than three hundred thousand (300. for. and as a proof that they were free a number of them returned to Manila and the others succeeded in living separate from their companions who continued living together. acting correctly. with indifference and without repugnance. a leper. A cholera patient. but because on the first days there were no houses in which they could live with a relative independent from one another. it is necessary to consider not only the rights and interests of the said women and especially of the patrons who have been directing and conducting such a reproachable enterprise and shameful business in one of the suburbs of this city.000) who can not. but also the rights and interests of the very numerous people of Manila where relatively a few transients accidentally and for some days reside. more or less rigorous. the exercise of which they have voluntarily renounced in exchange for the free practice of their shameful profession. nor is it possible for her to live within the community or society with the same liberty and rights enjoyed by every citizen. which houses have been constituting for years a true center for the propagation of general diseases and other evils derived therefrom. that is. Considering her dishonorable conduct and life. and seriousness as cholera. with the problematical hope that they adopt another manner of living which is better and more useful to themselves and to society. the latter could take the step he had taken. in ordering the dissolution and abandonment of the said houses of prostitution and the change of the domicile of the inmates thereof. If a young woman. because it is evident that she can not join the society of decent women nor can she expect to get the same respect that is due to the latter. For the foregoing reasons. she should therefore be comprised within that class which is always subject to the police and sanitary regulations conducive to the maintenance of public decency and morality and to the conservation of public health. In very highly advanced and civilized countries. fortiter in re et suaviter in forma. although it is true that in the execution of such measures more humane and less drastic procedures. gives way to the spread or multiplication of the disease known as syphilis.classes. a venereal disease. typhoid. the mayor did not in bad faith violate the constitutional laws which guarantees the liberty and the individual rights of every Filipino. which can give her sufficient remuneration for her subsistence. availing himself of the services of the police in good faith and only with the purpose of protecting the immense majority of the population from the social evils and diseases which the houses of prostitution situated in Gardenia Street have been producing. pest. have failed to consider with due reflection the interests of the inhabitants of this city in general and particularly the duties and responsibilities weighing upon the authorities which administer and govern it. inasmuch as the women petitioners do not absolutely enjoy the said liberty and rights. but such procedures have always had in view the ultimate object of the Government for the sake of the community. is still prejudicial to the human species in the same degree. . Hence. have been adopted. scope. prefers to put herself under the will of another woman who is usually older than she is and who is the manager or owner of a house of prostitution. which. because of the abnormal life they assumed. and for this reason it should not permitted that the unfortunate women dedicated to prostitution evade the just orders and resolutions adopted by the administrative authorities. although it constitutes a secret disease among men and women. which being a very drastic remedy may be considered arbitrary. It is regrettable that unnecessary rigor was employed against the said poor women. they have forgotten that many of those who criticize and censure the mayor are fathers of families and are in duty bound to take care of their children. it is undeniable that she voluntarily and with her own knowledge renounces her liberty and individual rights guaranteed by the Constitution. considering them prejudicial to the people. were obliged to change their residence not by a private citizen but by the mayor of the city who is directly responsible for the conservation of public health and social morality. there have been adopted by the administrative authorities similar measures. notwithstanding the cleanliness and precaution which they are wont to adopt. putting an end to the living together in a certain place of women dedicated to prostitution and changing their domicile. and other contagious diseases which produce great mortality and very serious prejudice to poor humanity. we reach the conclusion that when the petitioners. tuberculosis. leprosy. or spontaneously dedicates herself to this shameful profession. respecting prostitutes. but those who have been worrying so much about the prejudice resulting from a governmental measure. instead of engaging in an occupation or works suitable to her sex. (1) produced the bodies of the persons according to the command of the writ. The respondents were thus given ample time. the said respondents "." The majority opinion also recognized that. as we hereby hold. it will be recalled. ARAULLO. as said in the same decision. we should hold. (2) shown by affidavits that on account of sickness or infirmity the said women could not safely be brought before this court. 1918. According to the same decision. there were then in Davao women who desired to return to Manila. the mayor of the city of Manila waited until the 21st of November before sending a telegram to the provincial governor of Davao. would have been warranted summarily in finding the respondent guilty of contempt of court. . and the consequent imposition upon him of a nominal fine of P100. and in sending them to jail until they obeyed the order. to comply with the writ. but who should not be permitted to do so because of having contracted debts. 283) and added "that the return did not show that every possible effort to produce the women was made by the respondents. Mayor of the city of Manila." When the said return by the respondents was made to this court in banc and the case discussed. my opinion was that Mayor Lukban should have been immediately punished for contempt. were appended to the return. that Mayor Justo Lukban is obliged to take back and restore the said women who are at present found in Davao. by Justo Lukban. some of which have since been repudiated by the signers.. practically one month. Instead. could have been brought back to Manila is demonstrated by the fact that during this time they were easily to be found in the municipality of Davao. with the exception of the prostitutes who should expressly make known to the clerk of court their preference to reside in Davao. and (3) presented affidavits to show that the parties in question or their lawyers waived their right to be present. Anton Hohmann. a few stereotyped affidavits purporting to show that the women were contented with their life in Davao. The costs shall be charged de officio. Gossage's Case ([1890]. not in Gardenia Street. and who desire to return to their former respective residences. dissenting in part: I regret to dissent from the respectable opinion of the majority in the decision rendered in these proceedings. that waived the right to be present by those interested. the respondents. . for the purpose of complying with the order of the court. Their excuses for the non production of the persons were far from sufficient. with respect to the finding as to the importance of the contempt committed. The order was dated November 4. did not produce the bodies of the persons in whose behalf the writ was granted. Nevertheless. 24 Q. at least sixty. Francisco Sales. The half-hearted effort naturally resulted in none of the parties in question being brought before the court on the day named. In the said decision. 58. J. and did not present writings. . and that about this number either returned at their own expense or were produced at the second hearing by the respondents. According to the response of the Attorney for the Bureau of Labor to the telegram of his chief.In view of the foregoing remarks. In accordance with section 87 of General Orders No. did not show impossibility of performance. and Feliciano Yñigo to present the persons named in the writ before the court on December 2. the majority decision cites the case of the Queen vs. could have. 1918.. at the time the return to its first order was made. "That court. Barnardo. D. B." To corroborate this. which manifestation must be made under oath. directed Justo Lukban. it is said: The first order. according to the same decision. As far as the record disclosed. Sampaloc District. That through ordinary diligence a considerable number of the women. This resolution must be transmitted to the mayor within the shortest time possible for its due compliance. Agents were dispatched to Mindanao. twenty-six of whom were brought by the attorney for the petitioners. Adding to these numbers the other seven (7) women who returned to this city at their own expense before January 13 we have a total of sixty-six (66). presented technically the seven (7) women above-mentioned who had returned to the city at their own expense and the other eight (8) women whom the respondents themselves brought to Manila. The respondent mayor of the city of Manila. the said order was not complied with. when asked if they desired to return to Manila with free transportation. resulted in that none of the women appeared before this court on December 2nd. on January 13th. in short. were not produced before the court by the respondents nor did the latter show any effort to present them. the date of the first hearing of the case. Fifty-nine (59) of them have returned to Manila through other means not furnished by the respondents. the day fixed for the protection of the women before this court. let 17 days elapse from the date of the issuance of the first order on November 4th till the 21st of the same month before taking the first step for compliance with the mandate of the said order. who was then present at the trial and to the attorney for the respondents. on the other hand. Thus. and a steamer with free transportation to Manila was provided. renounced such a right. 1918. unless they could show that it was impossible to comply with the said order on the two grounds previously mentioned. While charges and countercharges in such a bitterly contested case are to be expected. placards were posted. that is Mayor Justo Lukban. The result of the said second order was. Justo Lukban. that the respondents. could bring before December 2nd. on his return from Davao. if not the seventy-four (74) women already . 1919. that in Davao they found eighty-one (81) women who. that. especially the first named. 1918. With respect to this second order. as the decision says. before he sent a telegram to the provincial governor o f Davao and naturally this half- hearted effort. as is shown in the affidavits presented by the respondents to this effect. as well as before January 13th. we come to conclude that there is a substantial compliance with it. the constabulary and the municipal police joined in rounding up the women. which fact was known to Chief of Police Hohmann. I do not agree to this conclusion. alleging moreover that their agents and subordinates succeeded in bringing them from Davao with their consent. as has been previously said. only eight (8) have been brought to Manila and presented before this court by the respondents in compliance with the said two orders. Thus. Mendoza. out of the one hundred and eighty-one (181) women who. The said attorney paid out of his own pocket the transportation of the said twenty-six women. he waited till the 21st of November. through other means. but notwithstanding the efforts made to find them it was not possible to locate the whereabouts of twenty-six (26) of them. on January 13. the date fixed for the compliance with the second order. as is so qualified in the decision. fifty-nine (59) women have already returned to Manila. and while a critical reading of the record might reveal a failure of literal fulfillment with our mandate. on the one hand. have been illegally detained by Mayor Lukban and Chief of Police Hohmann and transported to Davao against their will. requiring the respondents to produce before the court. the falsity of the allegation by the respondents in their first answer at the trial of December 2. as is said in the same decision. the respondents appear to have become more zealous and to have shown a better spirit. who acted as chief and principal in all that refers to the compliance with the orders issued by this court. the same decision has the following to say: In response to the second order of the court. and. in spite of the fact that their attention was called to this particular by the undersigned. that the respondents.a second order referred to in the decision was issued on December 10. giving as one of the reasons for their inability to present any of the said women that the latter were content with their life in Mindanao and did not desire to return to Manila. which evidently proves. the women who were not in Manila. and in addition to this noncompliance there was the circumstances that seven of the said women having returned to Manila at their own expense before the said second day of December and being in the antechamber of the court room. of enforcing respect for the law and for the means it has provided in civilized communities for establishing justice. 502. In the American states the power to punish for contempt. in my judgment. . because of the production of only eight (8) of the one hundred and eighty-one (181) women who have been illegally detained by virtue of his order and transported to Davao against their will. p. inasmuch as the said respondent could count upon the aid of the Constabulary forces and the municipal police. so much to excite individual respect as to compel obedience or to remove an unlawful or unwarranted interference with the administration of justice.indicated. unless the defendant is unable to comply therewith. (Ruling Case Law. the respondent has not given due attention to the same nor has he made any effort to comply with the second order. 6. 6. . justice. however. a necessity arises for the use of compulsion. and has been exercised from the earliest times. the law-making power. p. and had transportation facilities for the purpose. or the courts. or dignity of the court. as is said in the majority decision. (Ruling Case Law. as the courts often do. the resolution of the said proceeding with the promptness which the nature of the same required. principally responsible for the contempt. 487. (Ruling Case Law. he has disobeyed the said two orders. 488. If a person hinders or prevents the service of process by deceiving the officer or circumventing him by any means. Mayor of the city of Manila. vol. who is. This fact can not. Therefore it may be said generally that where due respect for the courts as ministers of the law is wanting. 6. to which conclusion I agree.) It is a general principle that a disobedience of any valid order of the court constitutes contempt. so far as the executive department and the ministers of state are concerned. that neither of the said orders has been complied with by the respondent Justo Lukban. demonstrates in my opinion that. but on the other hand demonstrates that he had not complied with the mandate of this court in its first and second orders. or at least sixty (60) of them. has failed to give the respect due to justice.) While it may seem somewhat incongruous to speak. at least a great number of them. The conduct of the said respondent with respect to the second order confirms the contempt committed by non-compliance with the first order and constitutes a new contempt because of non-compliance with the second. In other words. . vol. and in some degree so far as the legislative department is concerned.) The power to punish for contempt is as old as the law itself. and lastly. Contempt of court has been defined as a despising of the authority. committing the twenty-six (26) women who could not be found in Davao. or to obstruct or attempt to obstruct the service of legal process. not. according to the majority decision. since true respect never comes in that way. has despised the authority of this court. 503. vol. In England it has been exerted when the contempt consisted of scandalizing the sovereign or his ministers. presented by the petitioners and involving the question whether they should or not be granted their liberty. vol. But the said respondent mayor brought only eight (8) of the women before this court on January 13th. . justify the conclusion that the said respondent has substantially complied with the second order of this court. thus preventing. p. because of his notorious disobedience. with due respect to the majority opinion." (Ruling Case Law. the result is the same as though he had obstructed by some direct means. he has created and placed obstacles to the administration of justice in the said habeas corpus proceeding. p. and he is guilty of contempt whose conduct is such as tends to bring the authority and administration of the law into disrespect or disregard. it is apparent nevertheless that the power to enforce decorum in the courts and obedience to their orders and just measures is so essentially a part of the life of the courts that it would be difficult to conceive of their usefulness or efficiency as existing without it.) It is contempt to employ a subterfuge to evade the judgment of the court. 6. notwithstanding the nature of the case which deals with the remedy of habeas corpus. in view of the fact that they were not brought to Manila by the respondents to be presented before the court and of the further fact that some of them were obliged to come to this city at their own expense while still others were brought to Manila by the attorney for the petitioners. I believe it to be my duty to state here that the records of this proceeding should be transmitted to the Attorney-General in order that. JOVITO R.) The undisputed importance of the orders of this court which have been disobeyed. according to section 236 of the Code of Civil Procedure. No. and consequently. p. and HON. that in the Philippine Islands there should exist a government of laws and not a government of men and that this decision may serve to bulwark the fortifications of an orderly Government of laws and to protect individual liberty from illegal encroachments. 1991 RENATO CAYETANO. The power which the courts have of vindicating their own authority is a necessary incident to every court of justice. 6. stands upon the same immemorial usage as supports the whole fabric of the common law. SALONGA. and all the costs should be charged against him. GUILLERMO CARAGUE. and the authority for issuing attachments in a proper case for contempts out of court. there should also be taken into consideration the special circumstance that the contempt was committed by a public authority. or both such fine and imprisonment.000 or imprisonment not exceeding months. (Ruling Case Law. which loss might have been caused by noncompliance with the same orders on the part of the respondent Justo Lukban. the person obliged to be the first in giving an example of obedience and respect for the laws and the valid and just orders of the duly constituted authorities as well as for the orders emanating from the courts of justice. In the imposition of the penalty. This will be one of the means whereby the just hope expressed in the majority decision will be realized. are circumstances which should be taken into account in imposing upon the respondent Justo Lukban the penalty corresponding to the contempt committed by him. but it has been almost universally preserved so far as regards the judicial department. 489. therefore. . Lastly. vs. CHRISTIAN MONSOD. 100113 September 3. . that instead of the fine of one hundred pesos (P100). after a study of the same and deduction from the testimony which he may deem necessary. the first executive authority of the city.R. both the latter shall present the corresponding informations for the prosecution and punishment of the crimes which have been committed on the occasion when the illegal detention of the women was carried into effect by Mayor Justo Lukban of the city of Manila and Chief of Police Anton Hohmann. is obsolete. HON. the loss of the prestige of the authority of the court which issued the said orders. in his capacity as Secretary of Budget and Management. and in giving help and aid to the said courts in order that justice may be administered with promptness and rectitude. should consist of a fine not exceeding P1. and the proper transmittal of the same to the fiscal of the city of Manila and to the provincial fiscal of Davao. I believe. and the delay which was necessarily incurred in the resolution of the petition interposed by the said petitioners and which was due to the fact that the said orders were not opportunately and duly obeyed and complied with. who paid out of his own pocket the transportation of the said women. that is. the mayor of the city of Manila. and also of those crimes committed by reason of the same detention and while the women were in Davao. it has been declared. COMMISSION ON APPOINTMENT. there should be imposed upon the respondent Justo Lukban a fine of five hundred pesos (P500). the damages which might have been suffered by some of the women illegally detained. respondents. petitioner. G. . a penalty which. vol. . whether of record or not. 3rd ed. there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive office. PARAS. It is not limited to appearing in court.:p We are faced here with a controversy of far-reaching proportions. however. negotiating with opposing counsel about pending litigation. Black defines "practice of law" as: The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another with his consent. However. and the giving of all legal advice to clients. 650) A person is also considered to be in the practice of law when he: . including the Chairman. shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. and other papers incident to actions and special proceedings. including the Chairman. J. While ostensibly only legal issues are involved. a majority thereof. using a letterhead describing himself as an attorney. conveyancing. (Emphasis supplied) The aforequoted provision is patterned after Section l(l). or advising and assisting in the conduct of litigation. but embraces the preparation of pleadings. at least thirty-five years of age. 129 Ohio St. Cayetano for and in his own behalf. and must not have been candidates for any elective position in the immediately preceding -elections. at least thirty-five years of age and holders of a college degree.) The practice of law is not limited to the conduct of cases in court. and fixing and collecting fees for services rendered by his associate. the Court's decision in this case would indubitably have a profound effect on the political aspect of our national existence. 193 N.E. Sabina E. at the time of their appointment. Dworken. Acut.Renato L. at the time of their appointment. Article XII-C of the 1973 Constitution which similarly provides: There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born citizens of the Philippines and. An attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney. The 1987 Constitution provides in Section 1 (1). However. counseling clients in legal matters. Article IX-C: There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of the Philippines and. 23. holders of a college degree. (Black's Law Dictionary. a majority thereof. v. shall be members of the Philippine Bar who have been engaged in the practice of law for at least ten years. the preparation of legal instruments of all kinds. It embraces all advice to clients and all actions taken for them in matters connected with the law. and Mylene Garcia-Albano co-counsel for petitioner. Jr.' (Emphasis supplied) Regrettably. (Land Title Abstract and Trust Co. the giving of legal advice on a large variety of subjects. 852) This Court in the case of Philippine Lawyers Association v.]. and the preparation and execution of legal instruments covering an extensive field of business and trust relations and other affairs.. they are always subject to become involved in litigation.W. in such representative capacity performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. v. for valuable consideration engages in the business of advising person. p. Otherwise stated. associations or corporations as to their rights under the law. and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. the management of such actions and proceedings on behalf of clients before judges and courts.. It embraces conveyancing. . 665-666.Agrava. can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. the foreclosure of a mortgage. 194 N. p. In general.C. 263). a wide experience with men and affairs. (Emphasis supplied) Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court. 173. where the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. Jr. Comments on the Rules of Court. 340 Mo. 139. enforcement of a creditor's claim in bankruptcy and insolvency proceedings.] 179 A. one who. conveying.. (Moran.144). so far as concerns the question set forth in the order. engages in the business of advising clients as to their rights under the law. 262. 3 [1953 ed. it embraces the preparation of pleadings and other papers incident to actions and special proceedings.E. commissioner.] . [R. committee. rel. (105 Phil. It is of importance to the welfare of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill. referee. is engaged in the practice of law. 2d 895. . These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts. assessment and condemnation services contemplating an appearance before a judicial body. or appears in a representative capacity as an advocate in proceedings pending or prospective. 313. quoted in Rhode Is. board.176-177) stated: The practice of law is not limited to the conduct of cases or litigation in court. Automobile Service Assoc. or commission constituted by law or authorized to settle controversies and there.I. before any court. Dudley and Co. (State ex. and great capacity for adaptation to difficult and complex situations. and all action taken for them in matters connected with the law incorporation services. and in matters of estate and guardianship have been held to constitute law practice.S. Vol. Although these transactions may have no direct connection with court proceedings. body. (Emphasis ours) The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the practice of law in even broader terms as advocacy. (5 Am. Bar Assoc. No valid distinction. as do the preparation and drafting of legal instruments. all advice to clients. counselling and public service. in a representative capacity. Mckittrick v. citing In re Opinion of the Justices [Mass. of sound moral character. and in addition. and conducting proceedings in attachment. They require in many aspects a high degree of legal skill. or while so engaged performs any act or acts either in court or outside of court for that purpose. firms.. 102 S. may I make a manifestation which I forgot to do during our review of the provisions on the Commission on Audit. Will Commissioner Foz yield to just one question. FOZ. The Commissioner will please proceed. This has to do with the qualifications of the members of the Commission on Audit." (111 ALR 23) The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law. Cardell. which device or service requires the use in any degree of legal knowledge or skill. Among others. to practice law is to give notice or render any kind of service. MR. One may be a practicing attorney in following any line of employment in the profession. OPLE. MR. MR. Before we suspend the session. Mr. (Barr v. which requires the application of law. If what he does exacts knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession. even chairman. Yes. of the Commission on Audit. FOZ. To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the COA or Commission on Audit. Jamir). legal procedure. . May I be allowed to make a very brief statement? THE PRESIDING OFFICER (Mr. FOZ. This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important to take it up on the floor so that this interpretation may be made available whenever this provision on the qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken up. the qualifications provided for by Section I is that "They must be Members of the Philippine Bar" — I am quoting from the provision — "who have been engaged in the practice of law for at least ten years"." MR. then they are qualified to be considered for appointment as members or commissioners. "To engage in the practice of law is to perform those acts which are characteristics of the profession. we would like to make the clarification that this provision on qualifications regarding members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent in their respective work within COA. in or out of court. Presiding Officer. Generally. and he follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of the statute. 155 NW 312) Practice of law means any activity. training and experience. knowledge. 145 Conn. it will involve legal work. saying that service in the COA by a lawyer is equivalent to the requirement of a law practice that is set forth in the Article on the Commission on Audit? MR.. MR. will necessarily involve legal work. (Gary Munneke. means "an individual or organization engaged in the business of delivering legal services. OPLE. that the Chairman and two Commissioners of the Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice..). among others. OPLE. in effect.). Most lawyers spend little time in courtrooms. [1986]. Wolfram." Today. 626 [1941]). and a large percentage spend their entire practice without litigating a case. it is still a fact that the majority of lawyers are private practitioners. although it is auditing." (Ibid.). (Charles W. (emphasis supplied) Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer. In either case. Opportunities in Law Careers [VGM Career Horizons: Illinois]. Yes. p. ( Emphasis supplied) Section 1(1). The test that defines law practice by looking to traditional areas of law practice is essentially tautologous..). in or out of court. v. So that the construction given to this is that this is equivalent to the practice of law. 593). there are younger or more inexperienced salaried attorneyscalled "associates. (State Bar Ass'n v. The practice of law is defined as the performance of any acts . 870 [1958] [quoting Grievance Comm. it might be helpful to define private practice. lawyers who are employed in COA now would have the necessary qualifications in accordance with the Provision on qualifications under our provisions on the Commission on Audit.2d 863. FOZ. 15). (Ibid.2d 623. 140 A. 593). 222. Payne. therefore.: Minnesota.(Wolfram. provides. MR. Article IX-D of the 1987 Constitution. Is he. many lawyers do continue to litigate and the litigating lawyer's role colors much of both the public image and the self perception of the legal profession.. as commonly understood. . FOZ. In most firms. 325. Yes. Some firms may be organized as professional corporations and the members called shareholders. Because lawyers perform almost every function known in the commercial and governmental realm. (Ibid. . op. The term. OPLE. commonly understood to be the practice of law. or members of the Philippine Bar who have been engaged in the practice of law for at least ten years. MR. such a definition would obviously be too global to be workable. the members of the firm are the experienced attorneys. cit." Groups of lawyers are called "firms." (Ibid. And." The firm is usually a partnership and members of the firm are the partners. unhelpful defining the practice of law as that which lawyers do. the answer is yes. Presiding Officer. therefore. although many lawyers do not engage in private practice. . MR. Thank you. p. The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an uncommon role for the average lawyer. Nonetheless. . Connecticut Bank & Trust Co. Modern Legal Ethics [West Publishing Co. 128 Conn. 1986]. Lawyers who practice alone are often called "sole practitioners. p. Mr. At this point. We must consider the fact that the work of COA. 22 A. And. unless the lawyer is one of the relatively rare types — a litigator who specializes in this work to the exclusion of much else. each involving different legal doctrines. legal skills. and other interested parties. a departure from the traditional concept of practice of law. "Corporate Finance Law. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized into a social unit to perform that work. herein below quoted are emerging trends in corporate law practice. the sorting and weighing of significant conditional factors. 687). Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways. and negotiation.). We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. the most prominent is that of prosecutor. as in medicine." Jan. are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decision-making.). Why is this so? Recall that the late Alexander SyCip. And even within a narrow specialty such as tax practice. General practitioners of law who do both litigation and non-litigation work also know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in trying cases. clients. advice-giving. know that in most developed societies today. the diagnostician and the trial lawyer. Of these special roles. The most common of these roles are those of corporate practice and government legal service. The recognition of the need for such improved corporate legal policy formulation. In the course of a working day the average general practitioner wig engage in a number of legal tasks. I[t] need not [be] stress[ed] that in law. 4). (Ibid. not reality." (Business Star. By no means will most of this work involve litigation. The members of the bench and bar and the informed laymen such as businessmen. In a complex legal problem the mass of information to be processed. the appraisal of major trends. particularly "model- making" and "contingency planning.). a business daily. a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a client before an administrative agency. there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. 11. Lawyers and other professional groups. a corporate lawyer. surgery should be avoided where internal medicine can be effective. Even the increasing numbers of lawyers in specialized practice wig usually perform at least some legal services outside their specialty. at least theoretically. The business lawyer has been described as the planner. legal institutions. in particular those members participating in various legal-policy decisional contexts. legal processes. (Wolfram. the . And increasingly lawyers find that the new skills of evaluation and mediation are both effective for many clients and a source of employment. Instead. so as to remove from it some of the salient features of adversarial litigation. the work will require the lawyer to have mastered the full range of traditional lawyer skills of client counselling. p. document drafting. 1989.In this regard thus. Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of the corporate law research function accompanied by an accelerating rate of information accumulation. supra. the dominance of litigation in the public mind reflects history. substantially more legal work is transacted in law offices than in the courtrooms. p. (Ibid. once articulated on the importance of a lawyer as a business counselor in this wise: "Even today." has impressed upon us the inadequacy of traditional procedures in many decisional contexts. (Ibid. In several issues of the Business Star. the surgeon. is a lawyer who handles the legal affairs of a corporation." Jan. In our litigation-prone country. 11. These include such matters as determining policy and becoming involved in management. 1989. Despite the growing number of corporate lawyers. acting out as corporate secretary (in board meetings). of the decisional context or a segment thereof is developed to test projected alternative courses of action in terms of futuristic effects flowing therefrom. appearances in both courts and other adjudicatory agencies (including the Securities and Exchange Commission). the general orientation for productive contributions by those trained primarily in the law can be improved through an early introduction to multi-variable decisional context and the various approaches for handling such problems. Understandably. Many smaller and some large corporations farm out all their legal problems to private law firms. a corporate lawyer is assiduously referred to as the "abogado de campanilla. inter alia: corporate legal research. A corporate lawyer. 4). ( Emphasis supplied. (Business Star. Many others have in-house counsel only for certain matters. earning big money and with a clientele composed of the tycoons and magnates of business and industry. the subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal education. "Corporate Finance Law. particularly with either a master's or doctorate degree in business administration or management. p. many situations involving corporate finance problems would require the services of an astute attorney because of the complex legal implications that arise from each and every necessary step in securing and maintaining the business issue raised." He is the "big-time" lawyer.) . and in other capacities which require an ability to deal with the law.necessity of estimating the consequences of given courses of action. tax laws research. Nonetheless. Certainly. an improved decisional structure must stress the predictive component of the policy-making process. functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of complex decision-making. Other corporation have a staff large enough to handle most legal problems in-house. a cross-disciplinary approach to legal research has become a vital necessity. Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law. Lawyers. operational analysis. wherein a "model". Truth to tell. For one. automatic data processing. a corporate lawyer may assume responsibilities other than the legal affairs of the business of the corporation he is representing. and electronic computing equipment. many people could not explain what it is that a corporate lawyer does. At any rate. for all intents and purposes. and the need for fast decision and response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory. the number of attorneys employed by a single corporation will vary with the size and type of the corporation. His areas of concern or jurisdiction may include. the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. and the excellent lawyer is one who surmounts them.e. p." Jan. the study of corporate law practice direly needs a "shot in the arm. 4). This can be frustrating to someone who needs to see the results of his work first hand." (Business Star. These three subject areas may be thought of as intersecting circles. Moreover.. (Business Star. 1989. The modem corporate lawyer has gained a new role as a stakeholder — in some cases participating in the organization and operations of governance through participation on boards and other decision-making roles. To borrow the lines of Harvard-educated lawyer Bruce Wassertein. Because working in a foreign country is perceived by many as glamorous. international law is practiced in a relatively small number of companies and law firms. Also. Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into current advances which are of particular significance to the corporate counsel. Some current advances in behavior and policy sciences affect the counsel's role." May 25. 11. for example. p. with a shared area linking them. or not understanding how one's work actually fits into the work of the orgarnization. No longer are we talking of the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code but an incursion as well into the intertwining modern management issues. "Corporate Finance Law. Firms increasingly collaborate not only with public entities but with each other — often with those who are competitors in other arenas.In a big company. Otherwise known as "intersecting managerial jurisprudence. the corporate lawyer reviews the globalization process. Today. Some large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field. In short. (2) an introduction to usable disciplinary skins applicable to a corporate counsel's management responsibilities. tills is an area coveted by corporate lawyers. including the resulting strategic repositioning that the firms he provides counsel for are required to make. After all. i. The salience of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with sub-national governmental units. one may have a feeling of being isolated from the action. to wit: "A bad lawyer is one who fails to spot problems." so to speak. "Corporate Law Practice. and (3) a devotion to the organization and management of the legal function itself. the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice" in law libraries. a corporate lawyer is sometimes offered this fortune to be more closely involved in the running of the business. a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). In most cases. For that matter.1990. Often these new patterns develop alongside existing legal institutions and laws are . a good lawyer is one who perceives the difficulties. This brings us to the inevitable. 4). however. strategy at multiple levels. and the need to think about a corporation's. the role of the lawyer in the realm of finance." it forms a unifying theme for the corporate counsel's total learning. economic. inventory levels. They differ from those of remedial .] the organization and management of the legal function. the office of the Corporate Counsel comprises a distinct group within the managerial structure of all kinds of organizations. An understanding of the role of feedback loops. New programming techniques now make the system dynamics principles more accessible to managers — including corporate counsels. Eureka and Race are examples of collaborative efforts between governmental and business Japan's MITI is world famous. [Be this as it may. concern three pointed areas of consideration. (Emphasis supplied) Following the concept of boundary spanning. three factors are apropos: First System Dynamics. Esprit. (Emphasis supplied) Regarding the skills to apply by the corporate counsel. This enables users to make better decisions involving complexity and uncertainty. (Emphasis supplied) Second Decision Analysis. social. All integrated set of such tools provide coherent and effective negotiation support. And there are lessons to be learned from other countries. managerial. more adversarial relationships and traditional forms of seeking to influence governmental policies. thus: Preventive Lawyering. including hands-on on instruction in these techniques. In Europe. Effectiveness of both long-term and temporary groups within organizations has been found to be related to indentifiable factors in the group- context interaction such as the groups actively revising their knowledge of the environment coordinating work with outsiders. such external activities are better predictors of team performance than internal group processes. and rates of flow. In the context of a law department. the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of corporations are challenged. In a crisis situation.perceived as barriers. In general. it can be used to appraise the settlement value of litigation. promoting team achievements within the organization. and psychological. aid in negotiation settlement. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both planning and pressing immediate problems. Computer-based models can be used directly by parties and mediators in all lands of negotiations. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. These trends are complicated as corporations organize for global operations. New collaborative arrangements for promoting specific technologies or competitiveness more generally require approaches from industry that differ from older. (Emphasis supplied) Third Modeling for Negotiation Management. ( Emphasis supplied) The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of technology. and minimize the cost and risk involved in managing a portfolio of cases. enable users to simulate all sorts of systematic problems — physical. A simulation case of an international joint venture may be used to illustrate the point. Current research is seeking ways both to anticipate effective managerial procedures and to understand relationships of financial liability and insurance considerations. at the very least. 1991. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are being considered and made. On June 5. he must. What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?." Jan. p. 1989. including structuring its global operations. On June 18. "Business Star". 4). having passed the bar examinations of 1960 with a grade of 86-55%." April 10. managing improved relationships with an increasingly diversified body of employees. petitioner as a citizen and taxpayer. 1991. Atty. The corporate counsel hear responsibility for key aspects of the firm's strategic issues. managing expanded liability exposure. Petitioner opposed the nomination because allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years. Yet. coping internally with more complex make or by decisions. law. Christian Monsod is a member of the Philippine Bar. On the same day. The practice and theory of "law" is not adequate today to facilitate the relationships needed in trying to make a global economy work. he took his oath of office. Respondent Christian Monsod was nominated by President Corazon C. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitive in a global. The general counsel has emerged in the last decade as one of the most vibrant subsets of the legal profession. p. also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal "constitution' or makeup of the modem corporation. Managerial Jurisprudence. interdependent environment. many would admit to ignorance of vast tracts of the financial law territory. "The Corporate Counsel. "Corporate Finance law. 1991. 11. This is the framework within which are undertaken those activities of the firm to which legal consequences attach. And even if the corporate lawyer's aim is not the understand all of the law's effects on corporate activities. Aquino to the position of Chairman of the COMELEC in a letter received by the Secretariat of the Commission on Appointments on April 25. creating new and varied interactions with public decision-makers. the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. He has been a dues paying member of the Integrated Bar of the . 1991. Organization and Functioning of the Corporate Counsel's Office. he assumed office as Chairman of the COMELEC. filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Monsod as Chairman of the Commission on Elections be declared null and void. 4). Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination. The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspect of their work. or will he feign understanding and risk exposure? (Business Star. For aside from performing the tasks of legislative drafting and legal advising. economic. and (5) events of default." submitted by L. Atty. Monsod worked as an operations officer for about two years in Costa Rica and Panama. (3) conditions of closing. Soliven. Justice Cecilia Muñoz-Palma for "innumerable amendments to reconcile government functions with individual freedoms and public accountability and the party-list system for the House of Representative. Monsod worked in the law office of his father. (Emphasis supplied) After a fashion. He appeared for NAMFREL in its accreditation hearings before the Comelec.Philippines since its inception in 1972-73.. Monsod. the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1) business terms. entitled "Wanted: Development Lawyers for Developing Nations. which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal. "Loan Negotiating Strategies for Developing Country Borrowers. and project work of the Bank. He has also been paying his professional license fees as lawyer for more than ten years. served as chief executive officer of an investment bank and subsequently of a business conglomerate. and Chairman of its Committee on Accountability of Public Officers. 2. Upon returning to the Philippines in 1970. Thus. a quast judicial body. Monsod also made use of his legal knowledge as a member of the Davide Commission. which conducted numerous hearings (1990) and as a member of the Constitutional Commission (1986-1987).) and having hurdled the bar. regional legal adviser of the United States Agency for International Development. Besides top officials of the Borrower concerned. a negotiating panel acts as a team. ( Emphasis supplied) . 124. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL. and which is adequately constituted to meet the various contingencies that arise during a negotiation. p. 128-129 Rollo) ( Emphasis supplied) Just a word about the work of a negotiating team of which Atty. it lays down the law as far as the loan transaction is concerned.P. Monsod's work involved being knowledgeable in election law. Monsod used to be a member. during the Session on Law for the Development of Nations at the Abidjan World Conference in Ivory Coast. In the field of advocacy. the finance manager. he worked with the Meralco Group. Manila. sponsored by the World Peace Through Law Center on August 26-31. During his stint in the World Bank Group (1963-1970). the loan agreement is like a country's Constitution. p. there are the legal officer (such as the legal counsel). has worked with the under privileged sectors. such as the farmer and urban poor groups. in his personal capacity and as former Co-Chairman of the Bishops Businessmen's Conference for Human Development. for instance. and since 1986. for which he was cited by the President of the Commission. and an operations officer (such as an official involved in negotiating the contracts) who comprise the members of the team. 1982. lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. 13). they score national development policies as key factors in maintaining their countries' sovereignty. In the same vein. Rollo) After graduating from the College of Law (U. (Ibid. Michael Hager. 11). (Condensed from the work paper." Staff Paper No. In a loan agreement. (2) borrower's representation. lawyers play an important role in any debt restructuring program. (Guillermo V. in initiating. 1973). (pp. (p. has rendered services to various companies as a legal and economic consultant or chief executive officer. (4) covenants. Central Bank of the Philippines. U. p. An appointment is essentially within the . Jr. 3 and 4. If he does. the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. A good agreement must not only define the responsibilities of both parties. perhaps even more so than purely renegotiation policies. then the appointment cannot be faulted on the ground that there are others better qualified who should have been preferred. Necessarily. Supreme Court Justice Oliver Wendell Holmes. Nos. The Commission has no authority to revoke an appointment on the ground that another person is more qualified for a particular position. and all the other legal requirements are satisfied. Besides in the leading case of Luego v. Civil Service Commission. an unpublished dissertation. a lawyer-manager.S. "The Role of Lawyers in Foreign Investments. It also has no authority to direct the appointment of a substitute of its choice. the only condition being that the appointee should possess the qualifications required by law. 1977. the Court said: Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best lights. but must also state the recourse open to either party when the other fails to discharge an obligation. 15. Graduate School of Law. once said: "They carry no banners. a sovereign lawyer may work with an international business specialist or an economist in the formulation of a model loan agreement. To do so would be an encroachment on the discretion vested upon the appointing authority." Integrated Bar of the Philippine Journal. 171 SCRA 744) where it stated: It is well-settled that when the appointee is qualified. (emphasis supplied) No less emphatic was the Court in the case of (Central Bank v. a lawyer-negotiator of contracts. and taking into consideration the liberal construction intended by the framers of the Constitution." (See Ricardo J. Debt restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support personnel.S. Monsod's past work experiences as a lawyer-economist. Loan concessions and compromises. men learn that bustle and bush are not the equal of quiet genius and serene mastery. 1987. and a lawyer-legislator of both the rich and the poor — verily more than satisfy the constitutional requirement — that he has been engaged in the practice of law for at least ten years. particularly the modern concept of law practice. in legislation and agreement drafting and in renegotiation. they beat no drums. (See International Law Aspects of the Philippine External Debts. Third and Fourth Quarters. ( Emphasis supplied) A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which determines the contractual remedies for a failure to perform one or more elements of the contract. demand expertise in the law of contracts. 143 SCRA 327. 321). Interpreted in the light of the various definitions of the term Practice of law". but where they are. Romulo. a lawyer-entrepreneur of industry. Civil Service Commission.T. This is a political question involving considerations of wisdom which only the appointing authority can decide. p. Atty. For a compleat debt restructuring represents a devotion to that principle which in the ultimate analysis is sine qua non for foreign loan agreements-an adherence to the rule of law in domestic and international affairs of whose kind U. Vol. as in this case. 265). In that sense. are actually practicing law. say. most individuals. For one thing. Law on Public Officers. two Members for five years. Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines. or in advising others on what the law means. .g. but we should not lose sight of the fact that Mr. is what people ordinarily mean by the practice of law. three Members shall hold office for seven years. perhaps practised two or three times a week and would outlaw say. the President issues the permanent appointment. . Monsod is a lawyer. upon submission by the Commission on Appointments of its certificate of confirmation. how can an action or petition be brought against the President? And even assuming that he is indeed disqualified. I greatly doubt. consists of four (4) stages: (1) nomination. Of those first appointed. . Anent Justice Teodoro Padilla's separate opinion. which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. 200) The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elections is mandated by Section 1(2) Sub-Article C. This matter. perhaps. posting of bond. Article IX of the Constitution which provides: The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term of seven years without reappointment. Clearly. and the last Members for three years. etc. Justice Padilla's definition would require generally a habitual law practice. 1949. . oath-taking. without reappointment. Appointment to any vacancy shall be only for the unexpired term of the predecessor. and (4) acceptance e. This is different from the acts of persons practising law. p. how can the action be entertained since he is the incumbent President? We now proceed: .. ( Emphasis supplied) The appointing process in a regular appointment as in the case at bar. on the ground that he lacks one or more qualifications. Gonzales. who has been practising law for over ten years. In no case shall any Member be appointed or designated in a temporary or acting capacity. a member of the Philippine Bar. Justice Cruz goes on to say in substance that since the law covers almost all situations. Upon the other hand. October 14. L-3081. Moreover." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined. as distinguished from the modern concept of the practice of law. (3) issuance of a commission (in the Philippines. in making use of the law. I made use of a definition of law practice which really means nothing because the definition says that law practice " . discretionary power of whomsoever it is vested. No. suffice it to say that his definition of the practice of law is the traditional or stereotyped notion of law practice. this is far from the constitutional intent. subject to the only condition that the appointee should possess the qualifications required by law. (2) confirmation by the Commission on Appointments. the separate opinion of Justice Isagani Cruz states that in my written opinion. law practice once or twice a year for ten consecutive years. Romero. . (Lacson v. without first becoming lawyers. much less a grave abuse of discretion. This blinded the man. Once. since no abuse. but by the spirit that giveth life. Senate. (2) In the same vein.S. I certify that he voted to dismiss the petition. (Art. (3) If the United States Senate (which is the confirming body in the U. there is no occasion for the exercise of the Court's corrective power. JJ. may the Supreme Court reverse the Commission. J. Take this hypothetical case of Samson and Delilah. for has been clearly shown... Sec. consider the following: (1) If the Commission on Appointments rejects a nominee by the President. Additionally. this petition is hereby DISMISSED.S. VIII. not the spirit of the agreement. Congress) decides to confirm a Presidential nominee. In the instant case. In view of the foregoing. the procurator placed an iron rod burning white-hot two or three inches away from in front of Samson's eyes. and fuming with righteous fury. J. SO ORDERED. No blood shall flow from his veins. Griño-Aquino and Medialdea. The procurator calmly replied: "Did any blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter. concur. Feliciano. Delilah agreed on condition that — No blade shall touch his skin. the procurator of Judea asked Delilah (who was Samson's beloved) for help in capturing Samson. Upon hearing of what had happened to her beloved. and thus in effect confirm the appointment? Clearly. only where such grave abuse of discretion is clearly shown shall the Court interfere with the Commission's judgment. that would amount to lack or excess of jurisdiction and would warrant the issuance of the writs prayed. implicitly determined that he possessed the necessary qualifications as required by law.J. The judgment rendered by the Commission in the exercise of such an acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack or excess of jurisdiction. Thus. the answer is in the negative. . one significant legal maxim is: We must interpret not by the letter that killeth. 1 Constitution). (Fernan.. Delilah was beside herself with anger. it would be incredible that the U. C. whom the Commission has confirmed? The answer is likewise clear.J.The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation. Supreme Court would still reverse the U.) Sarmiento. accused the procurator of reneging on his word. may the Court reject the nominee. C.S.. When Samson (his long hair cut by Delilah) was captured. Finally. Fernan. is on leave. IX(C).. J.Regalado. concurring: I concur with the decision of the majority written by Mr. Separate Opinions NARVASA. Jr. Electoral Commission. (63 Phil. a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification. albeit only in the result. that is. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries. while the Court deliberated on his constitutional qualification for the office. it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should. J. but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman.. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met. 1987 Constitution). As declared in Angara v. J. including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art.. I voted not only to require the respondents to comment on the Petition. dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar. PADILLA. ultimately. Section 1(1). took no part." . the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC. he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. The procedural barriers interposed by respondents deserve scant consideration because. After considering carefully respondent Monsod's comment. be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1. Questions involving the construction of constitutional provisions are best left to judicial resolution. Article VIII of the Constitution. on the basis of his stated qualifications and after due assessment thereof.. Justice Paras. and Davide. I therefore vote to DENY the petition. Moreover. In the same way. 102 Phil. supra). In other words. it is a habitual exercise (People v. Boyen. 87 Kan. Therefore. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs. M. 4 S. Hence. p. Among these are that he must have been "engaged in the practice of law for at least ten (10) years. other than as head or attorney of a Legal Department of a corporation or a governmental agency.C. 8 Phil. Bryan. habitual.E. 4 S.B. (emphasis supplied). 42 LRA." It is the bounden duty of this Court to ensure that such standard is met and complied with. It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared. p. 1988 ed. 176 N. 522. Villanueva. enumerated several factors determinative of whether a particular activity constitutes "practice of law. it connotes an active. cannot be said to be in the "practice of medicine. 87 Kan. Habituality. 14 SCRA 109 citing State v. 644. 1 To "practice" law. to exercise or pursue an employment or profession actively. Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. 968).. 98 N. a succession of acts of the same kind. As aptly held by this Court in the case of People vs. cannot be said to practice his profession as an accountant. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U. Bar Reviewer in Legal and Judicial Ethics. Ney Bosque. 127. Cotner. De Luna. habitually.E. What constitutes practice of law? As commonly understood.S. Villanueva: 2 Practice is more than an isolated appearance for it consists in frequent or customary actions. 8 citing People v. 127. charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Paño. one who renders an opinion as to the proper interpretation of a . 864.. 1. it is frequent habitual exercise (State vs.The Constitution has imposed clear and specific standards for a COMELEC Chairman.) . or when one takes the oath of office as a lawyer before a notary public. 1. 522." It states: 1. cannot be said to be in the practice of law. and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide.C. People's Stockyards State Bank. 14 SCRA 109 citing State v. 901) and. 864).S. (People v. Villanueva. 98 N. as a service of his livelihood or in consideration of his said services. or any profession for that matter." A certified public accountant who works as a clerk. "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge. p. Practice is more than an isolated appearance for it consists in frequent or customary action.Cotner. a succession of acts of the same kind. repeated or customary action. v. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation. Compensation. 146). means. repeatedly or customarily. In other words. a lawyer who is employed as a business executive or a corporate manager.647. Villanueva. 2.. 768). training and experience is within the term "practice of law". be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. statute. As observed by the Solicitor General in People vs. The following relevant questions may be asked: 1. Assuming that he performed any of such tasks habitually. supra. did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman? Given the employment or job history of respondent Monsod as appears from the records. all advice to clients and all action taken for them in matters connected with the law. the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation. There are certain points on which I must differ with him while of course respecting hisviewpoint.. 290 N. he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. Villanueva: 4 Essentially. as a source of his livelihood or in consideration of his said services. I believe. 3 The above-enumerated factors would. 806 citing Mendelaun v. are practicing law. Application of law legal principle practice or procedure which calls for legal knowledge. p. (Martin supra) 4. he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo.. and receives pay for it. where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship. .Y. 30).. my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. I am persuaded that if ever he did perform any of the tasks which constitute the practice of law. there must be a continuity. 1989 ed. Did respondent perform such tasks customarily or habitually? 3. such as teaching law or writing law books or articles. (Elwood Fitchette et al. Attorney-client relationship.S. CRUZ. Legal Ethics. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Gilbert and Barket Mfg." To become engaged in the practice of law. such were isolated transactions or activities which do not qualify his past endeavors as "practice of law. v. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. Taylor. like the drafting of legal documents and the rendering of legal opinion or advice. J. Co.R. 462) If compensation is expected. practicing law (Martin. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law. p. 356- 359) 3. ACCORDINGLY. dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same.. Arthur C. or a succession of acts. is to that extent. 94A-L. Hence. I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. It was that kind of discretion that we said could not be reviewed. It is enough that his activities are incidentally (even if only remotely) connected with some law. ordinance. this is not a political question that we are barred from resolving. I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation. Coming now to the qualifications of the private respondent. the exercise of that discretion would still be subject to our review. He can be so deemed when. Even if it were. he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. which is cited in the ponencia. again going by the definition." The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. In fact. a lawyer does not even have to be part of a business concern to be considered a practitioner. however peripherally. or regulation. . The ponencia quotes an American decision defining the practice of law as the "performance of any acts . in or out of court. as a lawyer." which tells us absolutely nothing. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications.To begin with. he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry..D. That covers every company organized under the Corporation Code and regulated by the SEC under P. If he operates a public utility vehicle as his main source of livelihood. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm.. there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place. From the numerous activities accepted as embraced in the term." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living. what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. Determination of the appointee's credentials is made on the basis of the established facts. or at least part of it. not the discretion of that body. on his own. commonly understood to be the practice of law. Considering the ramifications of the modern society. such a definition would obviously be too global to be workable. 902-A. In my view. In Luego. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. Unfortunately. if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. serving in fact- finding committee. 5 are of the view that Mr. dissenting: When this petition was filed. Justice Paras. What is before us is compliance with a specific requirement written into the Constitution. whether in Government or private practice. except that in one joyful moment in the distant past. Even if the Commission errs. It is conceded that he has been engaged in business and finance. experience in international banking and finance. but as an executive and economist and not as a practicing lawyer. I have much admiration for respondent Monsod. there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms. no less than for Mr. managing a business corporation. Monsod. proficiency in management. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter). in which areas he has distinguished himself. He has never engaged in the practice of law for even one year. The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform. and instant recognition by the public. J. to be sure. and 2 not taking part in the deliberations and the decision. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission. But if he has not dedicated his life to the law.The respondent's credentials are impressive. What kind of Judges or Justices will we have if there main occupation is selling real estate. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. this was not the result. Monsod possesses superior qualifications in terms of executive ability. A person may have passed the bar examinations. We can look only into grave abuse of discretion or whimsically and arbitrariness. he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. but I must regretfully vote to grant the petition. Inspite of my high regard for Mr. one of official leave with no instructions left behind on how he viewed the issue. 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion. GUTIERREZ. Of the fourteen (14) member Court. Second is our belief that Mr. or operating a farm with no active involvement in the law. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. educational background. 4 categorically stating that he did not practice law. working in media. JR.. they happened to pass the bar examinations? . but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. There are two key factors that make our task difficult. I cannot shirk my constitutional duty. His integrity and competence are not questioned by the petitioner.. we have no power to set aside error. b. i. in Economics (Ph. 1963-1970: World Bank Group — Economist. and Ph. Operations. To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice.A. Industry Department. seasonal.e. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows: 1. Philippine SUNsystems Products. 1976-1978: Finaciera Manila — Chief Executive Officer 6.1. 1978-1986: Guevent Group of Companies — Chief Executive Officer 7. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a." The deliberate choice of words shows that the practice envisioned is active and regular. 1961-1963: M. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member 9. It means that one is occupied and involved in the enterprise. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. accidental. if appears that Mr. incidental. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments. Philippines c. Fil-Capital Development Corporation and affiliated companies 5. Philippine Electric Corporation 4.A. International Finance Corporation 3. candidate). Inc. Latin American Department.. degrees in Economics at the University of Pennsylvania during that period. one is obliged or pledged to carry it out with intent and attention during the ten-year period. not isolated. occasional. Meralco Securities Corporation. or extemporaneous. the latter has not been engaged in the practice of law for at least ten years. Inc.15. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. In fact.The Constitution uses the phrase "engaged in the practice of law for at least ten years. ACE Container Philippines. Even then his law practice must have been extremely limited because he was also working for M. D. D. Philippine Petroleum Corporation. University of Pennsylvania 2. South Asia and Middle East. intermittent. Dataprep. . 1986-1987: Philippine Constitutional Commission — Member 8. 1970-1973: Meralco Group — Executive of various companies. Division Chief. 1973-1976: Yujuico Group — President. fisherman. d. blue ribbon investigations. 21-22) There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. and student to name only a few. Visayan Aquaculture Corporation l. CBL Timber Corporation Member of the Board of the Following: a. or apply the law at various times in his life. they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years. he has lawyers working for him. Instead of giving receiving that legal advice of legal services. Manila Electric Company g. can these people honestly assert that as such. he was the oneadvice and those services as an executive but not as a lawyer. First Philippine Holdings Corporation d. h. legislator. agrarian reform. which even an ordinary layman accepts as having a familiar and customary well-defined meaning. where such knowledge would be helpful. market vendor. etc. Inc. civic work. Tarlac Reforestation and Environment Enterprises j. The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce. barangay captain. mayor. Instead of working as a lawyer. pp." It is not satisfied with having been "a member of the Philippine bar for at least ten years. First Philippine Industrial Corporation e. Tolong Aquaculture Corporation k. Engineering Construction Corporation of the Philippines b. I regret that I cannot join in playing fast and loose with a term." . Every resident of this country who has reached the age of discernment has to know. teacher. And yet. policeman. Legal knowledge is useful if not necessary for the business executive. Philippine Commercial Capital. First Philippine Energy Corporation c. farmer. Graphic Atelier f. Guimaras Aquaculture Corporation (Rollo. follow. industry. Semirara Coal Corporation e. Philippine Electric Corporation i. 176 N. that is not a practice.E. 344 Ill. (People v. especially in drawing of real-estate contracts.Some American courts have defined the practice of law. People's Stock Yards State Bank. is the giving of advice or rendition of any sort of service by any person." When asked if he did not remember saying that he had made a practice of preparing deeds.E. 77 N. People ex rel. habitually. Schafer.2d 693. It would be difficult.176 N.E. Tinkoff. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts. He answered: "Very seldom." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions. contract or other instrument.E. he answered: "Well. 901.. as follows: The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court. Illinois State Bar Ass'n v. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances. 2d 773. he answered: "I don't recall exactly what was said. he finally answered: "I have done about everything that is on the books as far as real estate is concerned. Chicago Bar Ass'n v. notes and the like. (People v. the legal effect of which. deeds. I don't believe so.E. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. People's Stock Yards State Bank. . must be carefully determined. if not impossible to lay down a formula or definition of what constitutes the practice of law. 2d 773) xxx xxx xxx . 344 Ill. People ex rel. 87 N.. mortgages. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. we referred to it as being substantially correct in People ex rel. mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal. 776) For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer. and cases cited." Without adopting that definition. 399 Ill. 462. 901. Illinois State Bar Ass'n v. 282. such as preparing a will." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business. 87 N. under the facts and conditions involved. Schafer. to wit: xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge. he said: "I have no Idea. firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker. frequently or customarily. 462." When asked if it would be more than half a dozen times his answer was I suppose. they should also be performed. In other words. 42 LRA. Villanueva. 522. without being an attorney at law. as a profession.. 522. tit. Bryan.' etc. . Cotner.. p. "Attorney. Practice is more than an isolated appearance.. 102 Phil.E. is an officer of a court of law." but the single word is much used as meaning an attorney at law. as a theory. (2) to manage the business of his client with care. to wit: l. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 . 768). these professional persons are attorneys at law. it is frequent habitual exercise (State v. . "The principal duties of an attorney are (1) to be true to the court and to his client. 127. Thus. Cotner. 1. 1.. 1 27. trade. or attorney at law. is a person designated or employed by another to act in his stead. we have ruled that the practice of law denotes frequency or a succession of acts. skill. Bryan. or when one takes the oath of office as a lawyer before a notary public. Abb. Noy Bosque. p. we stated in the case of People v.E. 98 N. 4 S. 87 Kan.C.S.. S. (4) to keep his secrets confided to him as such. an agent. A person may be an attorney in facto for another. An attorney. to practice law or medicine. .. to exercise.. De Luna.. and integrity. Villanueva. 146). 14 SCRA 1 09 citing State v. Strictly. Habituality. In other words.. as. His rights are to be justly compensated for his services. v. 864). it is a habitual exercise (People v." (State v.. Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public. Practice is more than an isolated appearance. means 'to do or perform frequently. and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. says Webster.. "Attorney. . 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it. 14 SCRA 109 citing State v. for it consists in frequent or customary actions. to practice gaming. customarily. Villanueva (14 SCRA 109 [1965]): xxx xxx xxx .S.. . 8 Phil. the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Emphasis supplied) In this jurisdiction. as." A public attorney. legally qualified to prosecute and defend actions in such court on the retainer of clients. 968)." The transitive verb "practice. more especially. 115) xxx xxx xxx While the career as a businessman of respondent Monsod may have profited from his legal knowledge." (Rollo." as defined by Webster. to apply. to perform by a succession of acts.. 523." Bouv. a succession of acts of the same kind. or habitually. as a lawyer and demanding payment for such services. 864. to real life. Law Dict. etc. to carry on in practice. 87 Kan. in the most general sense. Law Dict. a succession of acts of the same kind. (at p. or repeated action.. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U. p. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. art. one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings. (3) to keep his client informed as to the state of his business. for it consists in frequent or customary action. and non-professional agents are properly styled "attorney's in fact. M. Justice Paras.Coup Attempt. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. PADILLA... 143 SCRA 288 [1986]). corporate executive. J. integrity. but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from assuming the position of COMELEC Chairman. v. believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. I. J. incidental and casual transactions are not within the context of doing business. he had not engaged in the practice of law for at least ten (10) years prior to his appointment as COMELEC Chairman. Inc. on the basis of his stated qualifications and after due assessment thereof. This was our ruling in the case of Antam Consolidated. competence. Court of appeals. albeit only in the result. My purpose in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide for respondent Monsod's disqualification. Article VIII of the Constitution. while the Court deliberated on his constitutional qualification for the office. concur. dissent Separate Opinions NARVASA. Isolated business transactions or occasional. to qualify for such high offices as President. Any specific legal activities which may have been assigned to Mr. concurring: I concur with the decision of the majority written by Mr. Respondent Monsod. I voted not only to require the respondents to comment on the Petition. I therefore vote to DENY the petition. a reading of the Petition then in relation to established jurisprudence already showed prima facie that respondent Monsod did not possess the needed qualification. J. . Senator. dissenting: The records of this case will show that when the Court first deliberated on the Petition at bar. The Constitution charges the public respondents no less than this Court to obey its mandate. I vote to GRANT the petition.. Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. and member of the Constitutional Commission may possess the background. and dedication. civic leader. J. therefore. Vice-President. doing business also should be active and continuous.. Bidin. Moreover. that is. Melencio-Herrera. be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by this Court in accordance with the second paragraph of Section 1. As in the practice of law. it does not appear to me that there has been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent Monsod as Chairman of the Commission on Elections should. Villanueva. to exercise or pursue an employment or profession actively. Electoral Commission.S. 42 LRA." It states: 1. (emphasis supplied). habitual. cannot be said to practice his profession as an accountant. De Luna.. including the Chairman thereof to "have been engaged in the practice of law for at least ten (10) years. . repeatedly or customarily. 644. (63 Phil.. 522.Cotner. 864. What constitutes practice of law? As commonly understood. As aptly held by this Court in the case of People vs. Villanueva: 2 Practice is more than an isolated appearance for it consists in frequent or customary actions. Ney Bosque." It is the bounden duty of this Court to ensure that such standard is met and complied with.C. 1. Among these are that he must have been "engaged in the practice of law for at least ten (10) years.647. Bryan. 98 N. Therefore." A certified public accountant who works as a clerk. 102 Phil. 4 S.C. 127. In other words. enumerated several factors determinative of whether a particular activity constitutes "practice of law. cannot be said to be in the "practice of medicine. IX(C). it connotes an active. M. It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared. Habituality. or when one takes the oath of office as a lawyer before a notary public. Boyen. The procedural barriers interposed by respondents deserve scant consideration because. or any profession for that matter. 8 Phil. 4 S. 98 N.S. habitually. 146). a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide. v.E. As declared in Angara v. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U.E. means. a succession of acts of the same kind." The Constitution has imposed clear and specific standards for a COMELEC Chairman. a lawyer who is employed as a business executive or a corporate manager. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the Constitution and defining constitutional boundaries.) . Section 1(1). it is frequent habitual exercise (State vs. repeated or customary action. 1 To "practice" law. p. the core issue to be resolved in this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC. The term "practice of law" implies customarily or habitually holding one's self out to the public as a lawyer (People vs.After considering carefully respondent Monsod's comment. 1987 Constitution). cannot be said to be in the practice of law. 968). 768). In the same way. 522. "practice" refers to the actual performance or application of knowledge as distinguished from mere possession of knowledge. ultimately." (Art. other than as head or attorney of a Legal Department of a corporation or a governmental agency. and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. I am even more convinced that the constitutional requirement of "practice of law for at least ten (10) years" has not been met. 87 Kan. Questions involving the construction of constitutional provisions are best left to judicial resolution. 14 SCRA 109 citing State v. Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public as a lawyer and demanding payment for such services (State vs. 1988 ed. (Elwood Fitchette et al. or a succession of acts. Co. 1. 2. as a service of his livelihood or in consideration of his said services. While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the practice of law. 14 SCRA 109 citing State v. (People v. there must be a continuity. p. p. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law? 2. one who renders an opinion as to the proper interpretation of a statute. I believe. are practicing law. Hence. 3 The above-enumerated factors would.. Attorney-client relationship. Villanueva: 4 . 864). The following relevant questions may be asked: 1. Cotner. As observed by the Solicitor General in People vs. p. be useful aids in determining whether or not respondent Monsod meets the constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman. 462) If compensation is expected. (Martin supra) 4. Did respondent perform such tasks customarily or habitually? 3. charging for services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice of law" (Ernani Paño. People's Stockyards State Bank. practicing law (Martin. a succession of acts of the same kind. 356- 359) 3. Legal Ethics.. it is a habitual exercise (People v. 290 N. and receives pay for it. Practice is more than an isolated appearance for it consists in frequent or customary action. supra. Assuming that he performed any of such tasks habitually. where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client relationship.B. 87 Kan. Application of law legal principle practice or procedure which calls for legal knowledge. Gilbert and Barket Mfg. p. training and experience is within the term "practice of law". he cannot be said to be engaged in the practice of his profession or a lawyer (Agpalo. supra).. is to that extent.R. 8 citing People v. Engaging in the practice of law presupposes the existence of lawyer-client relationship. Arthur C. 901) and. like the drafting of legal documents and the rendering of legal opinion or advice." To become engaged in the practice of law. Hence. Bar Reviewer in Legal and Judicial Ethics. 30). did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his appointment as COMELEC Chairman? Given the employment or job history of respondent Monsod as appears from the records. 806 citing Mendelaun v. I am persuaded that if ever he did perform any of the tasks which constitute the practice of law. 1989 ed. Practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for compensation. Villanueva. 127. 176 N. In other words. Villanueva. v. 94A-L. such as teaching law or writing law books or articles. Taylor.. all advice to clients and all action taken for them in matters connected with the law.Y. he did not do so HABITUALLY for at least ten (10) years prior to his appointment as COMELEC Chairman. Compensation. such were isolated transactions or activities which do not qualify his past endeavors as "practice of law.S. the word private practice of law implies that one must have presented himself to be in the active and continued practice of the legal profession and that his professional services are available to the public for a compensation. Essentially. Determination of the appointee's credentials is made on the basis of the established facts. on his own. CRUZ. That covers every company organized under the Corporation Code and regulated by the SEC under P. J. If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications. what was involved was the discretion of the appointing authority to choose between two claimants to the same office who both possessed the required qualifications. Even if it were. It was that kind of discretion that we said could not be reviewed. which is cited in the ponencia. I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his activities involve the application of some law. He can be so deemed when.D. again going by the definition. In my view. In Luego.. In fact. not the discretion of that body. The stock broker and the insurance adjuster and the realtor could come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation. dissenting: I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. he rents a house or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. To begin with. a lawyer does not even have to be part of a business concern to be considered a practitioner. There are certain points on which I must differ with him while of course respecting hisviewpoint. Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has been found acceptable by no less than the enfranchised citizenry. I fear that the ponencia may have been too sweeping in its definition of the phrase "practice of law" as to render the qualification practically toothless. I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has been confirmed by the Commission on Appointments. Considering the ramifications of the modern society. there is hardly any activity that is not affected by some law or government regulation the businessman must know about and observe. this is not a political question that we are barred from resolving. as a source of his livelihood or in consideration of his said services." The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies some law only as an incident of such business. the exercise of that discretion would still be subject to our review. . The reason is that what we would be examining is not the wisdom of his election but whether or not he was qualified to be elected in the first place. If he operates a public utility vehicle as his main source of livelihood. I see no reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments. ACCORDINGLY. Coming now to the qualifications of the private respondent. however peripherally. 902-A. he would still be deemed engaged in the practice of law because he must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board. From the numerous activities accepted as embraced in the term. my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position. He is doubtless eminently qualified for many other positions worthy of his abundant talents but not as Chairman of the Commission on Elections. First is our reviewing the work of a constitutional Commission on Appointments whose duty is precisely to look into the qualifications of persons appointed to high office. and 2 not taking part in the deliberations and the decision. in which areas he has distinguished himself. this was not the result. There are two key factors that make our task difficult. 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion. but as an executive and economist and not as a practicing lawyer. and instant recognition by the public. His integrity and competence are not questioned by the petitioner. commonly understood to be the practice of law. The respondent's credentials are impressive. I have much admiration for respondent Monsod. as a lawyer. .. dissenting: When this petition was filed. to be sure. experience in international banking and finance. ordinance. Even if the Commission errs. such a definition would obviously be too global to be workable. he has not proved that his activities in these capacities extended over the prescribed 10-year period of actual practice of the law. or regulation. proficiency in management.The ponencia quotes an American decision defining the practice of law as the "performance of any acts . Justice Paras. The possible exception is the lawyer whose income is derived from teaching ballroom dancing or escorting wrinkled ladies with pubescent pretensions. Monsod possesses superior qualifications in terms of executive ability. J. or at least part of it. We can look only into grave abuse of discretion or whimsically and arbitrariness. ." which tells us absolutely nothing. in or out of court. served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and was a member of the Davide Commission. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian and urban reform.. Second is our belief that Mr. no less than for Mr. JR. What is before us is compliance with a specific requirement written into the Constitution. The decision goes on to say that "because lawyers perform almost every function known in the commercial and governmental realm. educational background. GUTIERREZ. It is enough that his activities are incidentally (even if only remotely) connected with some law. 5 are of the view that Mr. . there was hope that engaging in the practice of law as a qualification for public office would be settled one way or another in fairly definitive terms." The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he does not earn his living. we have no power to set aside error. It is conceded that he has been engaged in business and finance. but they do not persuade me that he has been engaged in the practice of law for ten years as required by the Constitution. one of official leave with no instructions left behind on how he viewed the issue. Christian Monsod engaged in the practice of law (with one of these 5 leaving his vote behind while on official leave but not expressing his clear stand on the matter). The plain fact is that he has occupied the various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose principal attention is focused on the law. Unfortunately. Of the fourteen (14) member Court. 4 categorically stating that he did not practice law. but I must regretfully vote to grant the petition. 1961-1963: M. managing a business corporation. D. candidate). To be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. one is obliged or pledged to carry it out with intent and attention during the ten-year period. if he has not engaged in an activity where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law. 1976-1978: Finaciera Manila — Chief Executive Officer 6. He has never engaged in the practice of law for even one year." The deliberate choice of words shows that the practice envisioned is active and regular. In fact. Monsod has never practiced law except for an alleged one year period after passing the bar examinations when he worked in his father's law firm. Operations. serving in fact- finding committee. Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all lower courts. i. University of Pennsylvania 2. 1970-1973: Meralco Group — Executive of various companies. A person may have passed the bar examinations. accidental.1. Division Chief. occasional. Monsod.15. Industry Department. seasonal. I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments. It means that one is occupied and involved in the enterprise. whether in Government or private practice. 1978-1986: Guevent Group of Companies — Chief Executive Officer .Inspite of my high regard for Mr. and Ph.. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits. in Economics (Ph.A. intermittent.A. degrees in Economics at the University of Pennsylvania during that period.e. incidental. What kind of Judges or Justices will we have if there main occupation is selling real estate. they happened to pass the bar examinations? The Constitution uses the phrase "engaged in the practice of law for at least ten years. How could he practice law in the United States while not a member of the Bar there? The professional life of the respondent follows: 1. South Asia and Middle East. or extemporaneous. International Finance Corporation 3. or operating a farm with no active involvement in the law. D. 1963-1970: World Bank Group — Economist. Meralco Securities Corporation. if appears that Mr. Even then his law practice must have been extremely limited because he was also working for M. Philippine Electric Corporation 4. But if he has not dedicated his life to the law. I cannot shirk my constitutional duty. 1973-1976: Yujuico Group — President. the latter has not been engaged in the practice of law for at least ten years. working in media. except that in one joyful moment in the distant past. Fil-Capital Development Corporation and affiliated companies 5. not isolated. Philippine Petroleum Corporation. Latin American Department. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following: 1. Engineering Construction Corporation of the Philippines b. h. Visayan Aquaculture Corporation l. 1986-1987: Philippine Constitutional Commission — Member 8. he has lawyers working for him. Philippines c. Graphic Atelier f. d. Instead of working as a lawyer. Tarlac Reforestation and Environment Enterprises j. ACE Container Philippines. Inc. Guimaras Aquaculture Corporation (Rollo. Philippine Commercial Capital. Manila Electric Company g. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt — Member 9. 21-22) There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the law enough attention or a certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice for at least ten years. pp. CBL Timber Corporation Member of the Board of the Following: a. Presently: Chairman of the Board and Chief Executive Officer of the following companies: a. Dataprep. b. he was the oneadvice and those services as an executive but not as a lawyer. 7. Tolong Aquaculture Corporation k. First Philippine Holdings Corporation d. Instead of giving receiving that legal advice of legal services. Semirara Coal Corporation e. First Philippine Industrial Corporation e. Inc. Philippine SUNsystems Products. . Philippine Electric Corporation i. First Philippine Energy Corporation c. Inc. He was asked whether or not he ever prepared contracts for the parties in real-estate transactions where he was not the procuring agent. Legal knowledge is useful if not necessary for the business executive. teacher." When asked if he did not remember saying that he had made a practice of preparing deeds. (People v. which even an ordinary layman accepts as having a familiar and customary well-defined meaning. "Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and customs of our courts. etc. such as preparing a will.E. follow. farmer. People's Stock Yards State Bank. 901.176 N. can these people honestly assert that as such. he answered: "I don't recall exactly what was said. contract or other instrument. 2d 773. industry.E. I regret that I cannot join in playing fast and loose with a term. under the facts and conditions involved. to wit: xxx xxx xxx Respondent's answers to questions propounded to him were rather evasive. or apply the law at various times in his life. Every resident of this country who has reached the age of discernment has to know. 776) For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer. 87 N. fisherman. barangay captain. he answered: "Well. blue ribbon investigations. as follows: The practice of law involves not only appearance in court in connection with litigation but also services rendered out of court. we referred to it as being substantially correct in People ex rel." Some American courts have defined the practice of law. Illinois State Bar Ass'n v. they should also be performed. Chicago Bar Ass'n v." It is not satisfied with having been "a member of the Philippine bar for at least ten years. 344 Ill. agrarian reform. mortgages and contracts and charging a fee to the parties therefor in instances where he was not the broker in the deal. and student to name only a few. policeman. legislator. 901. People ex rel. And yet.176 N. he said: "I have no Idea." When asked if it would be more than half a dozen times his answer was I suppose.E. People ex rel." Without adopting that definition. and cases cited. must be carefully determined. if not impossible to lay down a formula or definition of what constitutes the practice of law. 462. market vendor. 344 Ill. is the giving of advice or rendition of any sort of service by any person. and it includes the giving of advice or the rendering of any services requiring the use of legal skill or knowledge. Illinois State Bar Ass'n v. People's Stock Yards State Bank." In answer to the question as to how many times he had prepared contracts for the parties during the twenty-one years of his business. where such knowledge would be helpful. Tinkoff. 282. they are engaged in the practice of law? The Constitution requires having been "engaged in the practice of law for at least ten years. mayor. I don't .2d 693. habitually. 77 N. 462.The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of legal knowledge in various fields of endeavor such as commerce. firm or corporation when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill.E. the legal effect of which. 399 Ill. Schafer. He answered: "Very seldom. frequently or customarily. civic work. It would be difficult. Asked if he did not recall making the statement to several parties that he had prepared contracts in a large number of instances. . Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public. skill. we stated in the case of People v. His rights are to be justly compensated for his services. to wit: l. it is frequent habitual exercise (State v. to perform by a succession of acts.C.. . 87 Kan. Thus. 4 S. Practice is more than an isolated appearance. to exercise. 42 LRA. that is not a practice.. believe so. 112) It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of law in a Memorandum prepared and issued by it. to practice gaming. without being an attorney at law.. and non-professional agents are properly styled "attorney's in fact." xxx xxx xxx Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in connection with real-estate transactions. Strictly. especially in drawing of real-estate contracts. customarily. as a profession.. "Attorney. Schafer. 1. as a theory. "Attorney.E. says Webster. one of a class of persons authorized to appear and act for suitors or defendants in legal proceedings.E. as a lawyer and demanding payment for such services." A public attorney.. deeds. 522. or repeated action. . art. or attorney at law. we have ruled that the practice of law denotes frequency or a succession of acts. 522. is an officer of a court of law. trade. tit. or habitually. notes and the like. 523. as. Law Dict. .S. Bryan. Habituality. these professional persons are attorneys at law.. ." Bouv." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where he was not the broker." as defined by Webster. 8 ... he finally answered: "I have done about everything that is on the books as far as real estate is concerned. (4) to keep his secrets confided to him as such.. etc. Noy Bosque. means 'to do or perform frequently.. Cotner. to real life. S. a succession of acts of the same kind. to practice law or medicine. A person may be an attorney in facto for another. v. Villanueva." (State v.E. An attorney. to carry on in practice. M.." but the single word is much used as meaning an attorney at law. 768). mortgages. legally qualified to prosecute and defend actions in such court on the retainer of clients. an agent. to apply... Emphasis supplied) In this jurisdiction." The transitive verb "practice. more especially. p. (People v. Law Dict. 14 SCRA 109 citing State v. for it consists in frequent or customary actions. (3) to keep his client informed as to the state of his business. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer (People v. . as.' etc. Villanueva (14 SCRA 109 [1965]): xxx xxx xxx .S. Abb. There is no doubt but that he has engaged in these practices over the years and has charged for his services in that connection. Bryan. 644) such as when one sends a circular announcing the establishment of a law office for the general practice of law (U. in the most general sense. 864.. is a person designated or employed by another to act in his stead. and integrity. In other words.. 98 N. 87 N. (2) to manage the business of his client with care. (at p. 127. "The principal duties of an attorney are (1) to be true to the court and to his client. 2d 773) xxx xxx xxx . corporate executive. Any specific legal activities which may have been assigned to Mr. 968). 1948 CIPRIANO P. I vote to GRANT the petition. J. L-1800 January 27. a succession of acts of the same kind. dissent G. Bengzon and Assistant City Fiscal Julio Villamor for respondent. the use of such legal knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. integrity. This was our ruling in the case of Antam Consolidated. 864). Isolated business transactions or occasional. 102 Phil.R. Practice is more than an isolated appearance. 87 Kan. . Mayor of City of Manila. p. for it consists in frequent or customary action. Vice-President. PRIMICIAS. 1 27. p. 1. and dedication. Cotner. VALERIANO E. to compel the latter to issue a permit for the holding of a public meeting at Plaza Miranda on Sunday afternoon.: This is an action of mandamus instituted by the petitoner. De Luna. civic leader. Court of appeals. or when one takes the oath of office as a lawyer before a notary public. 115) xxx xxx xxx While the career as a businessman of respondent Monsod may have profited from his legal knowledge. 146). 143 SCRA 288 [1986]). respondent. General Campaign Manager of Coalesced Minority Parties. vs. Inc. doing business also should be active and continuous. Congressman or Governor but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the position of COMELEC Chairman has ordered that he may not be confirmed for that office. As in the practice of law. In other words. as Mayor of the City of Manila. Admission to the practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup Attempt. and member of the Constitutional Commission may possess the background. Villanueva. I." (Rollo. Cipriano Primicias. Senator. believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of respondent Monsod as Chairman of the COMELEC. City Fiscal Jose P. FERIA. to qualify for such high offices as President. Monsod while a member may be likened to isolated transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the Philippines. v. and files a manifestation with the Supreme Court informing it of his intention to practice law in all courts in the country (People v. therefore. No. Ramon Diokno for petitioner. petitioner. a campaig manager of the Coalesced Minority Parties against Valeraino Fugoso. The Constitution charges the public respondents no less than this Court to obey its mandate. incidental and casual transactions are not within the context of doing business. competence.. 14 SCRA 1 09 citing State v. it is a habitual exercise (People v. FUGOSO. Respondent Monsod. J. Bidin. Phil. without prejudice to writing later an extended and reasoned decision. good order or safety. may be permitted by means of a permit issued by the Mayor. Due to urgency of the case. (u) to regulate the use of streets. the furtherance of prosperity and the promotion of morality. and it may be delegated to political subdivisions. where such athletic games. affrays.. But it a casettled principle growing out of the nature of well- ordered civil societies that the exercise of those rights is not absolute for it may be so regulated that it shall not be injurious to the equal enjoyment of others having equal rights. That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor who shall. the Municipal Board of the City of Manila. The Philippine legislature has delegated the exercise of the police power to the Municipal Board of the City of Manila. as prayed for in the petition of November 15. further. determine or specify the streets or public places for the formation. parks. not injurious to the rights of the community or society. to wit: "(p) to provide for the prohibition and suppression of riots. which according to section 2439 of the Administrative Code is the legislative body of the City. 1947. municipalities. peace. are fundamental personal rights of the people recognized and guaranteed by the Constitutions of democratic countries. route. called municipal and city councils to enact ordinances for the purpose. and disorderly assemblies." and "(ee) to enact all ordinances it may deem necessary and proper for sanitation and safety. The right of freedom of speech and to peacefully assemble and petition the government for redress of grievances.. the following legislative power. and the sidewalks and crossings for the pedestrians. good order. or exercises may be held: And provided. The power to regulate the exercise of such and other constitutional rights is termed the sovereign "police power" which is the power to prescribe regulations. cemeteries and other public places" and "for the abatement of nuances in the same. convenience. 1947. enacted sections 844 and 1119. meeting. Section 2444 of the same Code grants the Municipal Board. avenues . education. such as towns. and the same shall only be used or occupied for other purposes as provided by ordinance or regulation: Provided.November 16. among others. the provisions of saif section . on every such ocassion. in any public place. and section 1262 of the same Revised Ordinance penalizes as a misdemeanor. peace. who shall determine the streets or public places or portions thereof. that the holding of athletic games. morals. sports. and cities authorizing their legislative bodies. or disturb or disquiet any congregation engaged in any lawful assembly. This sovereign police power is exercised by the government through its legislative branch by the enactment of laws regulating those and other constitutional and civil rights. sports." As there is no express and separate provision in the Revised Ordinance of the City regulating the holding of public meeting or assembly at any street or public places. comfort. after mature deliberation. and dismissal of such parade or procession: And provided. disturbances. this Court. 1119 Free for use of public — The streets and public places of the city shall be kept free and clear for the use of the public. and general welfare of the city and its inhabitants. or collect with other persons in a body or crowd for any unlawful purpose. That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession. "any act. tending to disturb the peace or excite a riot. finally. Section of the Revised Ordinances of 1927 prohibits as an offense against public peace. or exercise during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question." Under the above delegated power. issued a writ of mandamus. for the purpose of petitioning the government for redress to grievances on the groun that the respondent refused to grant such permit. and general welfare of the people." And section 1119 provides the following: "SEC. to promote the health. or procession. but can not be construed a synonimous with construed "suppressed" or "prohibit" (Kwong Sing vs. subject only to the latter's reasonable discretion to determine or specify the streets or public places to be used for the purpose. City of Manila." as used in section 2444 of the Revised Administrative Code. we have arrived at the conclusion that we must adopt the second construction. the powers and duties of the Mayor as the Chief Executive of the City are executive and one of them is "to comply with and enforce and give the necessary orders for the faithful performance and execution of laws and ordinances" (section 2434 [b] of the Revised Administrative Code). shall be permitted unless a special license therefor shall first be obtained from the select men of the town or from licensing committee. with a view to conserving the public convenience and of affording an opportunity to provide proper policing and are not invested with arbitrary discretion to issue or refuse license. because such a construction would make the ordinance invalid and void or violative of the constitutional limitations. providing that "no parade or procession upon any ground abutting thereon. to determine or specify the streets or public places where the parade or procession may pass or the meeting may be held. but only the discretion. State of New Hampshire. the licensing authorities are strictly limited. And the Supreme Court of the United States in its decision (1941) penned by Chief Justice Hughes firming the judgement of the State Supreme Court. held that " a statute requiring pewrsons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or a freedom of speech and press.S. the time. the statute of New Hampshire P. . Our conclusions find support in the decision in the case of Willis Cox vs. and to provide adequate and proper policing to minimize the risk of disorder." We can not adopt the alternative construction or constru the ordinance under consideration as conferring upon the Mayor power to grant or refuse to grant the permit. .L. that is construe the provisions of the said ordinance to mean that it does not confer upon the Mayor the power to refuse to grant the permit. Besides. in issuing the permit.. After a mature deliberation. and the word "regulate. and the other is that the applicant has the right to a permit which shall be granted by the Mayor. As the Municipal Boards is empowered only to regulate the use of streets. which would be tantamount to authorizing him to prohibit the use of the streets and other public places for holding of meetings. in the issuance of licenses. as the statute is construed by the state courts. the ligislative police power of the Municipal Board to enact ordinances regulating reasonably the excercise of the fundamental personal rights of the citizens in the streets and other public places. with the view to prevent confusion by overlapping. 145. Chap. section 2. 41 Phil. and held valid. and manner of the parade and procession. 103). parks.. and to restrain.. to secure convenient use of the streets and public places by others. means and includes the power to control. Said provision is susceptible to two constructions: one is that the Mayor of the City of Manila is vested with unregulated discretion to grant or refuse. where. In that case. . parade. can not be delgated to the Mayor or any other officer by conferring upon him unregulated discretion or without laying down rules to guide and control his action by which its impartial execution can be secured or partiality and oppression prevented. the Municipal Board can not grant the Mayor a power that it does not have.. parades or processions. to a consideration." was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfetted discretion to refuse to grant the license. or procession in the streets and other public places of the City of Manila. to govern. to grant permit for the holding of a lawful assembly or meeting. 569.1119 regarding the holding of any parade or procession in any street or public paces may be applied by analogy to meeting and assembly in any street or public places. place. 312 U. and the other public places. . . The discretion with which the council is vested is a legal discretion.. or associations or organizations shall march. were also. and social demonstrations are resorted to for the express purpose of keeping unity of feeling and enthusiasm. 430. to be exercised within the limits of the law. 72. by day or reasonable hours at night. from time immemorial. 84 Wis. held the following: "The objections urged in the case of City of Baltimore vs. 54 N. for the ordinance in that case upon its face committed to the unrestrained will of a single public officer the power to determine the rights of parties under it." was held by the Supreme Court of Michigan to be unreasonable and void. and no inference can extend beyond the fair scope of powers granted for such a purpose. and not a discretion to transcend it or to confer upon any city officer and arbitrary authority. an ordinance which clothes a single individual with such power hardly falls within the domain of law. . 217. and the powers it assumes to grant. making him in its exercise a petty tyrant.. in accordance with the limitations and conditions required by the rights of the people themselves. flags. in its discretion. with banners and other paraphernalia.. 1104. article 5 section 1. This may justify reasonable precautionary measures.. without first having obtained the consent of the mayor or common council of said city. from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed. under Rev. Trotter. religious. or partiality and oppression prevented. We must therefore construe this charter. 30 N. Said Supreme Court in the course of the decision held: ". but can not suppress them. Garrabad vs. regulate the exercise of such rights in a reasonable manner.. banners. but nothing further. in all free countries.. and no grant of absolute discretion to suppress lawful action altogther can be granted at all. . from partisan zeal or animosity. In fact. a city or ordinance providing that "no person or persons. and we are constrained to pronounce it inoperative and void. ride or drive.W. the council has no power to ordain that no processions shall be allowed upon the streets until a permit shall be obtained from the superintendent of police. the council may. as secured by the principles of law.. so far as it is not plainly unconstitutional. ST. The Supreme COurt of Wisconsin in State ex rel. for people who are assembled for common purposes to parade together. ." "It is quite possible that some things have a greater tendency to produce danger and disorder in cities than in smaller towns or in rural places. 49 Md. which cannot be less careful of private rights under the constitution than under the common law. it was held by the Supreme Court of Illinois that. it becomes unnecessary to suggest or to comment upon the injustice capable of being wrought under cover of such a power. which empowers city councils to regulate the use of public streets. and frequently to produce . ." "It has been customary. and with music of various kinds. and suppress mischief. 24.. when there was nothing in the ordinance to guide or cintrol his action. In the exercise of police power. since the powers conferred on the council cannot be delegated by them. by attempting to commit the power of doing so to the mayor or any other officer. parade. Dering. in ou upon or through the public streets of the City of Grand Rapids with musical instrument. directly or indirectly. Ill. 63 Michigan 399. c. Radecke. 136 Ill." and that "when we remember that action or nonaction may proceed from enmity or prejudice. These processions for political. for that becomes apparent to every one who gives to the subject a moment's consideration. as only conferring such power over the subjects referred to as will enable the city to keep order. .W. and in most civilized countries.. 585." ." In re Frazee. leaving the issuance of such permits to his discretion. and it was held void because "it lays down no rules by which its impartial execution can be secured. in substance. the same.In City of Chicago vs. . to regulate the use of public streets is conceded.R. because it suppresses what is in general perfectly lawful. 273 of the City of Walsenburg. . 59 S.. Colorado for any parade. chapter 163. 133 A. . Ct. App. The law abhors partiality and discrimination. and were prosecuted for a violation of the ordinance. p. or other musical instruments. 762. section 10....R. . and valuable factors in furthering them. 42 Ill. drums.. 516." "This by-law is unreasonable." Hague... Where the granting of the permit is left to the unregulated discretion of a small body of city eldermen. 307 U. City of Walsenburg." In Rich vs." "It is only when political. they must not be oppressive. and the court in holding the ordinance invalid said. the ordinance cannot be other than partial and discriminating in its practical operation.S. [2. subparagraph 7. and move for purposes opposed to private or public security. 312 U.A.. Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship accordingto the dictates of one's conscience. . When men in authority are permitted in their discretion to exercise power so arbitrary. 1081. legal provisions. New Hampshire. or association of any kind. 954. 765. 1049. in which the following appears. Mayor vs. liberty is subverted. when the whole matter. When people assemble in riotous mobs.A. 964. and the right to parade in a peaceable manner and for a lawful purpose. have been fostered and regarded as among the fundamental rights of a free people. and the spirit of of our free institutions violated. and their members and abettors become punishable. operating generally and impartially.S. or create or manifestly threaten some tangible public or private mischief. then may the city council shut off the parades of those whose nations do not suit their views and tastes in politics or religion. 61 S. [2d]. in construing the provision of section 1 of Ordinance No. Committee for Industrial Organization.. some effect on the public mind by the spectacle of union and numbers.. Ct. if regualted at all. society or club. be abridged or denied. 861) In the case of Trujillo vs. banners. they must not be so framed as to allow their enforcement to rest on official discretion .. with flags. they must be fair and impartial. procession or assemblage without first obtaining a permit from the Chief of Police of the City of Walsenburg so to do. 1936. must be permanent. 108 Col. The spirit of our free institutions allows great latitude in public parades and emonstrations whether religious or political . may be regulated in the interest of all. 569. They are a natural product and exponent of common aims. or other demonstrations create public disturbances. ed. horns. 118 P. social. The appellants were members of the Salvation Army. or transparencies..S. or operate as a nuisance. . it is not absolute. 83 Law. but relative.. 496.L.. to parade any of the streets. the question was raised as to the validity of the city ordinance which made it unlawful for any person.. and permit like parades of those whose nations do. that the law interferes. 3] An excellent statement of the power of a municipality to impose regulations in the use of public streets is found in the recent case of Cox vs.. ed. and must be excercised in subordination to the general. which provides: "That it shall be unlawful for any person or persons or association to use the street of the City of Walsenburg. and thier courses. religious.. to an unregulated official discretion.. they become unlawful. under our state law. 427. 85 Law.. 1423.. "The privilege of a citizen of the United States to use the streets . (19 L. and because it leaves the power of permitting or restraining processions. "Ordinances to be valid must be reasonable... the Supreme Court of Colorado." held the following: "[1] The power of municipalities. "The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order . "35 C. 222. Napervill. If this ordinance is held valid. without the permission of the city council first had and obtained. It does not make comfort or convenience in the use of streets or parks the standard of official action.R. 308 U. S. 1352. 451. under the ordinance as drawn. 160. ed. from ancient times.S. 964. in the guise of regulation. to refuse to issue a permit when after investigation of all the facts and circumstances pertinent to the application he believes it to be proper to refuse to issue a permit. but relative.L. but it must not. Said Court in the course of its opinion in support of the conclusion said: ". public parks.. it is not absolute. 515. 128 A. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all. State of New Jersey [Town of Irvington]. declared that a municipal ordinance requiring the obtaining of a permit for a public assembly in or upon the public streets. is not a valid exercise of the police power. Hague vs. 150. 307. in Cox vs. ed. 963. rights. 312 U. 307 U. the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. the chief of police may for any reason which he may entertain arbitrarily deny this privelege to any group.. 1423 [1436. 515. or disorderly assemblage. 904. 83 Law. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all. 569. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.' It can thus. . for the purpose of preventing riots. highways. 296. 60 S. time out of mind..." The Supreme Court of the United States in Hague vs.. 155 [164]. 516. Cantwell vs. 60 S. 1423.. 496. Wherever the title of streets and parks may rest. Committee for Industrial Organization. ed. and in consonance with peace and good order. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots. be abridged or denied. New Hampshire. Connecticut. 1054. it cannot be disregarded by the attempted excercise of some civil right which in other circumstances would be entitled to protection. communicating thoughts between citizens.. Scheneider vs. said: "In the instant case the uncontrolled official suppression of the privilege of using the public streets in a lawful manner clearly is apparent from the face of the ordinance before us. Committee for Industrial Organization. been a part of the privileges. Moreover.." [4] Our concern here is the validity or nonvalidity of an ordinance which leaves to the uncontrolled official discretion of the chief of police of the municipal corporation to say who shall. S. Such use of the streets and public places has. 496. ed. be accorded the privilege of parading on its public streets. 900. Ct. Ct. and must be exercised in subordination to the general comfort and convenience. No standard of regulation is even remotely suggested. 85 Law. 516. have been used for purposes of assembly. 954. . and we therefore hold it null and void. 303 U.. ed. 949 [953]. 147. 1220]. disturbances.58 S. disturbances or disorderly assemblage. 444. who shall not.. immunities.. they have immemorially been held in trust for the use of the public and. 306. 59 S. 84 Law. upon which they ultimately depend. Ct. 1437]. 84 Law. Lovell vs.. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions. Criffin. "We think the court below was right in holding the ordinance quoted in Note 1 void upon its face. 83 Law. Ct. 146. as the ... ed. S. 307 U. As regulation of the use of the streets for parades and processions is a traditional excercise of control by local government. 668. 310 U.S. 82 Law. 666. 1213 [1219. 1049.. and discussing public questions. and liberties of citizens.. S. or public buildings of the city and authorizing the director of public safety. or meetings. delivered. For. Garrabad vs. for it was not necessary for the decision rendered. which provides that the Mayor shall have the power to grant and refuse municipal licenses or permits of all classes. Besides. New Hampshire. such grant of unregulated and unlimited power to grant or refuse a permit for the use of streets and other public places for processions. Justice Ostrand cited said provision of article 2434 (m) of the Administrative Code apparently in support of the decision in the case of Evangelista vs. which is punishable as misdemeanor by section 1262 of the Revised Ordinances of the City of Manila. a part of the Charter of the City of Manila. assuming arguendo that the Legislature has the power to confer. for the simple reason that said general power is predicated upon the ordinances enacted by the Municipal Board requiring licenses or permits to be issued by the Mayor. and that the police power to regulate the use of streets and other public places has been delegated or rather conferred by the Legislature upon the Municipal Board of the City (section 2444 [u] of the Administrative Code) it is to be presumed that the Legislature has not. "the doctrine and principles advocated and urged in the Constitution and by-laws of the said Communist Party of the Philippines." . specially if we take into account that its exercise may be in conflict with the exercise of the same power by the Municipal Board. Because the same constitutional limitations applicable to ordinances apply to statutes. specially in Willis Cox vs. "The discretion with which the council is vested is a legal discretion to be exercised within the limits of the law. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. but evidently the quotation of said provision was made by the writer of the decision under a mistaken conception of its purview and is an obiter dictum. conferred upon the Mayor in section 2434 (m) the same power. specially of police regulation which are conferred upon the legislative body of a municipal corporation. 255. it was his duty to have the promoters thereof prosecuted for violation of section 844. as above stated. parades. in the same breath. and made by its members in the public meetings or gatherings. Earnshaw. independent from ordinances enacted by the Municipal Board on the matter. and the same objections to a municipal ordinance which grants unrestrained discretion upon a city officer are applicable to a law or statute that confers unlimited power to any officer either of the municipal or state governments. Taking this into consideration.261. record discloses. supra. wherein the question involved was also the validity of a similar statute of New Hamsphire. would be null and void. except perhaps in cases of national emergency. according to the decision. are highly seditious. Dering. as Chief Executive of the City. and therefore the Mayor of the City of Manila had no power to grant the permit applied for. upon the Mayor the power to grant or refuse licenses and permits of all classes. 57 Phil. and the provisions of section 2444 (u) of the same Code and of section 1119 of the Revised Ordinances to the contrary notwithstanding. had the meeting been held. and not a discretion to transcend it or to confer upon any city officer an arbitrary authority making in its exercise a petty tyrant.. supra. Moreover "one of the settled maxims in constitutional law is that the power conferred upon the Legislature to make laws cannot be delegated by that department to any other body or authority. and the speeches uttered. is required to enforce under the same section 2434. cannot be cited as an authority for the Mayor to deny the application of the petitioner. in that they suggest and incite rebelious conspiracies and disturb and obstruct the lawful authorities in their duty. Under our democratic system of government no such unlimited power may be validly granted to any officer of the government. be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. such as those found in Chapters 40 to 87 of the Revised Ordinances of the City of Manila. It is not a specific or substantive power independent from the corresponding municipal ordinances which the Mayor." Section 2434 of the Administrative Code. As stated in State ex rel." It is true that Mr." except certain powers of local government. for the same reasons stated in the decisions in the cases above quoted. On the contrary. The popular meeting or assemblage intended to be held therein by the Communist Party of the Philippines was clearly an unlawful one. and in fact has conferred. which might threaten breaches of the peace and a disruption of public order. Under Act No. "Those who won our independence by revolution were not cowards. specially on the part of the losing groups. pp. ed. disturbances or disorderly assemblage. As stated in the portion of the decision in Hague vs. They did not exalt order at the cost of liberty. U. Ct. J. . Sup. Separate Opinions PARAS. There must be the probability of serious injury to the state.. So ordered. paragraph (m) of the Revised Administrative Code. the deterrents ordinarily to be applied to prevent crimes are education and punishment for violations of the law. . Men feared witches and burned women. It is the function of speech to free men from the bondage of irrational fears.) In view of all the foregoing. concur. "that there is a reasonable ground to believe. California. as the record discloses. even imminent danger cannot justify resort to prohibition of these functions essential effective democracy." Whitney vs. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. Pablo. . JJ. not abridgment of the rights of free speech and assembly.The reason alleged by the respondent in his defense for refusing the permit is. They did not fear political change. amending section 2434.). J. unless the evil apprehended is relatively serious. "Moreover. that similar speeches will be delivered tending to undermine the faith and confidence of the people in their government. . as requested. . for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. There must be reasonable ground to believe that the danger apprehended is imminent. the Mayor has . There must be reasonable ground to believe that the evil to be prevented is a serious one .. . C. California." and there is no denial of that fact or any doubt that it was to be a lawful assemblage.. S. and in the duly constituted authorities. concurring: The subject-matter of the petition is not new in this jurisdiction. "It does not make comfort and convenience in the use of streets or parks the standard of official action. said by Mr." As the request of the petition was for a permit "to hold a peaceful public meeting. ed. Quiapo. 2774. The fact that speech is likely to result in some violence or in destruction of property is not enough to justify its suppression. Rep. remains bitter and high. . the petition for mandamus is granted and. S. supra. 71 Law. the reason given for the refusal of the permit can not be given any consideration. Perfecto. the respondent is ordered to issue the corresponding permit. there appearing no reasonable objection to the use of the Plaza Miranda. Committee on Industrial Organization. Justice Brandeis in his concurring opinion in Whitney vs. basing upon previous utterances and upon the fact that passions. .. It can thus. Among freemen. which we make our own. for the meeting applied for. 1106-1107. section 4. (Law. 1105-1107: "Fear of serious injury cannot alone justify suppression of free speech and assembly. Moran. Prohibition of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to a society.. It enables the Director of Safety to refuse the permit on his mere opinion that such refusal will prevent riots.." To this we may add the following. Bengzon and Briones. be made the instrument of arbitrary suppression of free expression of views on national affairs. 71 U. and the greater the grievance and the more intense the feeling. I believe that the fear which caused the Mayor to deny it was not well founded and his action was accordingly far from being a sound exercise of his discretion. a fin de pedir al gobierno el remedio de ciertos agravios. because on such occasions feeling is always wrought to a high pitch of excitement. As the petition comes from a responsible party. . S. as a rule. solicito del Alcalde de Manila en comunicacion de fecha 14 de Noviembre. 7 Phil. But if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as a seditious and tumultuous rising against the authorities. conforme: En nombre del Partido Nacionalista y de los grupos oposicionistas aliados. M. 426. 57 Phil. 1947. Primicias... de que usted (el solicitante) sera responsable del mantenimiento de la paz y orden durante la celebracion del mitin. the guilty individuals should be sought out and punished therefor.m. this Court said: "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary. (See Evangelista vs. BRIONES. "en la inteligencia de que no se pronunciaran discursos subversivos." Tambien se pedia en la comunicacion licencia para usar la plataforma ya levantada en dicha Plaza. in the case of U.discretion to grant or deny the petition to hold the meeting. permiso "para celebrar un mitin publico en la Plaza Miranda el Domingo. El Vice-Alcalde Cesar Miraflor actuo sobre la solicitud en aquel mismo dia dando permiso tanto para la celebracion del mitin como para el uso de la plataforma.m. al dia siguiente.) And. then the right to assemble and to petition for redress of grievances would become a delusion and snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest and most unmerited punishment. Fugoso revoco el permiso concedido. 1947. "Sirvase dar por informado — dice el Alcalde Fugoso en su carta — que despues de haber leido los periodicos metropolitanos da esta mañana en que aparece que vuestro mitin va a ser un 'rally' de indignacion en donde se denunciaran ante el pueblo los supuestos fraudes electorales perpetrados en varias partes de Filipinas para anular la voluntad popular. 15 de Noviembre. 422. expresandose los motivos de la revocacion en su carta de tal fecha dirigida al Rep. Primicias. the less perfect. 255. Cipriano P. 16 de Noviembre. in contrast to Evangelista's Communist Party which was considered subversive. vs. por la presente se revoca dicho permiso. Earnshaw. el Alcalde Valeriano E. y ademas. Apurado. director general de campaña de las minorias coaligadas en las ultimas elecciones y "Floor Leader" de dichas minorias en la Camara de Representantes.. if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities.." Sin embargo. desde las 5:00 p. hasta la 1:00 a. If instances of disorderly conduct occur on such occasions." The petitioner is a distinguished member of the bar and Floor Leader of the Nacionalista Party in the House of Representatives. he was the chief campaigner of the said party in the last elections. will be the disciplinary control of the leaders over their irresponsible followers. Se alega que como Alcalde de la Ciudad de Manila tiene plena discrecion para conceder o denegar el uso de la Plaza Miranda. pues no se puede asegurar que concurriran alli solamente elementos de la oposicion. respecto de su aspecto civil. el orden queda en peligro una vez que al publico se le excite. el cual dispone que "la pena de prision correccional en su periodo minimo. de conformidad con las exigencias del interes general tal como el las interpreta. Desde el momento en que se mezclen entre la multitud gentes de diferentes matices politicos. calles y demas lugares publicos. teniendo en cuenta los fines del mitin tal como han sido anunciados en los periodicos mencionados. Especificamente se citan dos disposiciones. No hay base para este proceder toda vez que los resultados todavia no han sido oficialmente anunciados. or if acts prohibited by law or municipal ordinance are being committed under the protection of such licenses or in the premises in which the business for which the same have been granted is carried on. "Se dice que los resultados de las ultimas elecciones seran protestados.1 El recurso se funda." La ordenanza municipal indicada reza lo siguiente: La ordenanza municipal indicada reza lo siguiente: . o disolviere la misma. capitulo 118 de la Compilacion de las Ordenanzas Revisadas de la Ciudad de Manila. Se pide tambien que ordenemos al Procurador General para que investigue la fase criminal del caso y formule la accion que justifiquen las circunstancias. a saber: el articulo 2434 (b)." Con respecto al posible aspecto criminal del caso se invoca el articulo 131 del Codigo Penal Revisado. Dada la premura del asunto. se impondra al funcionario publico o empleado que." La defensa del recurrido invoca a su favor los llamados poderes de policia que le asisten como guardian legal de las plazas. para la celebracion de un mitin o reunion. or for any other good reason of general interest. no haria mas que causar disturbios." De ahi el presente recurso de mandamus para que se ordene al Alcalde recurrido a que expida inmediatamente el permiso solicitado. se llamo inmediatamente a vista arguyendo extensamente los abogados de ambas partes ante esta Corte en sus informes orales. "Por tanto — termina el Alcalde su orden revocatoria — la accion de esta oficina se toma en interes del orden publico y para prevenir la perturbacion de la paz en Manila. el cual preceptua "que no se aprobara ninguna ley que coarte la libertad de la palabra. inciso 8 de la Constitucion de Filipinas. "Segun los mismos periodicos. edicion de 1927. a mi juicio. en el articulo III. o de la prensa. seccion 1. prohibiere o interrumpiere una reunion pacifica.' lo cual. y el articulo 1119. inciso (m) del Codigo Administrativo Revisado. "Se cree — añade el Alcalde — que la paz y el orden en Manila sufriran daño en dicho 'rally' considerando que las pasiones todavia no se han calmado y la tension sigue alta como resultado de la ultima contienda politica. El articulo aludido del Codigo Administrativo Revisado se lee como sigue: xxx xxx xxx "(m) To grant and refuse municipal license or permits of all classes and to revoke the same for violation of the conditions upon which they were granted. delegados venidos de provincias y estudiantes de las universidades locales participaran en el 'rally. sin fundamento legal. o el derecho del pueblo de reunirse pacificamente y dirigir petiticiones al gobierno para remedio de sus agravios. como creo que sera excitado. que es una plaza publica. que es lo que probablemente va a ocurrir. . and dismissal of such parade or procession: And provided. La prevencion de esta clase de conflictos es precisamente uno de los ingredientes que entran en la motivacion de la facultad reguladora del Estado o del municipio con relacion al uso de calles. la mera aprension. "SEC. absolutamente legal. teniendo en cuenta las serias responsabilidades del recurrente como jefe de campaña electoral de las minorias aliadas y como "Floor Leader" en el Congreso de dichas minorias. ocurridos en las elecciones de 11 de Noviembre. llamar la atencion del Gobierno hacia tales anomalias y abusos. que cuando se trata de un mitin en una plaza o lugar publico. de ciudadanos conscientes. sports. on every occasion. plazas y demas lugares publicos. and the same shall only be used or occupied for other purposes as provided by the ordinance or regulation: Provided.2 Se ha llamado nuestra atencion a que en el articulo arriba citado y transcrito de las Ordenanzas Revisadas de Manila no figura el mitin entre las materias reglamentadas. es tambien perfectamente licito condicionar el permiso atendiendo a su relacion con el movimiento general del trafico tanto de peatones como de vehiculos. determine or specify the streets or public places for the formation. Por ejemplo. claro. and the sidewalks and crossings for the pedestrians. That all applications to hold a parade or procession shall be submitted to the Mayor not less than twenty-four hours prior to the holding of such parade or procession. Creo no debe haber inconveniente en admitir que el mitin esta incluido en la reglamentacion. or portions thereof. who shall determine the streets or public places. sin embargo. que no es necesario llegar a este extremo. En realidad. el leit-motif de toda ley u ordenanza encaminada a reglamentar el uso de parques. El recurrente admite. or exercises may be held: And provided. That the holding of athletic games. responsables y amantes de la ley y del orden. where such athletic games. el temor mas o menos exagerado de que el mitin. Free for use of public. para que sea atendible. escandalosos fraudes. y con relacion a los hechos consumados urgir la pronta persecucion y castigo inmediato de los culpables y malhechores. or exercises during the celebration of national holidays in any streets or public places of the city and on the patron saint day of any district in question. may be permitted by means of a permit issued by the Mayor. sino solo la procesion o parada por las calles. plazas y calles. pero mas adelante veremos que este ultimo. Desde luego que la regla no excluye la consideracion a veces de la paz y del buen orden. actos vandalicos de terrorismo politico. etc. sino solamente en las columnas informativas de la prensa metropolitana. route. further. La simple conjetura. real. se sostiene. That the holding of any parade or procession in any streets or public places is prohibited unless a permit therefor is first secured from the Mayor. etc. asamblea o reunion pueda ser motivo de desorden o perturbacion de la paz no es . y pedir su pronta. El mitin o "rally" de indignacion de que habla el Alcalde recurrido en su carta revocando el permiso ya concedido no consta en la peticion del recurrente ni en ningun documenmento o manifestacion verbal atribuida al mismo. Pareceme. Verbigracia. 1119. inminente y substancial. es perfectamente licito denegar el permiso para celebrar un mitin en una plaza publica en un dia y una hora determinados cuando ya previamente se ha concedido de buena fe el uso del mismo lugar a otro a la misma hora. requiere que exista una situacion de peligro verdadero. Esto demuestra. o provocar una rebelion o siquiera un motin.. que el objeto del mitin era comunicar al pueblo la infinidad de telegramas y comunicaciones que como jefe de campaña de las oposiciones habia recibido de varias partes del archipielago denunciando tremendas anomalias. De esto resulta evidente que el objeto del mitin era completamente pacifico. Estas consideraciones de comfort y conveniencia publica son por lo regular la base. finally." Parece conveniente poner en claro ciertos hechos. positivo. sports. eficaz y honrada intervencion para evitar lo que todavia se podia evitar. parecia que esta consideracion debia pesar decisivamente en favor de la presuncion de que el mitin seria una asamblea pacifica. who shall. No hay ni la menor insinuacion de que el recurrente y los partidos oposicionistas coaligados que representa tuvieran el proposito de utilizar el mitin para derribar violentamente al presente gobierno. por razones de conveniencia publica. la concesion del permiso es ineludible y el Alcalde no tiene ninguna facultad discrecional. sin embargo. — The streets and public places of the city shall be kept free and clear for the use of the public. uno podria facilmente imaginar los resultados desastrosos de semejante proposicion. un discurso violento. de autos. momentos antes de subir al cadalso y colocar su hermoso cuello bajo la cuchilla de la guillotina." o de aquel notorio cabecilla politico de uno de los Estados del Sur de America que asombro al resto de su pais con este nefasto pronunciamiento: "I am the only Constitution around here"? Es inconcebible que la facultad de reglamentar o el llamado poder de policia deba interpretarse en el sentido de justificar y autorizar la anulacion de un derecho. pudiera de una sola plumada o de un solo gesto de repulsa anular o poner en suspenso los privilegios y garantias constitucionales? ¿No seria esto retornar a los dias de aquel famoso Rey que dijo: "El Estado soy yo.. ora bajo la carta organica de Manila. es infinitamente superior a toda facultad reguladora en relacion con el uso de los parques. La cuestion." temiendo que el mitin solicitado iba a poner en peligro la paz y el orden publico en Manila. a las minorias.motivo bastante para denegar el permiso. sino en una simple conjetura. Si la vigencia de tales privilegios y garantias hubiera de depender de las suspicacias. que tenemos que resolver en el presente recurso es bien sencilla. garantizado por la Constitucion. para no estorbar el trafico. o para prevenir un conflicto con otro mitin ya previamente solicitado y concedido. dado el tremendo hervor de los animos resultante de una lucha electoral harto reñida y apasionada. ahogar todo movimiento legitimo de protesta o peticion. Elevar tales motivos a la categoria de razon legal equivaldria practicamente a sancionar o legitimar cualquier pretexto. un partido mayoritario dirigido por caudillos y liders sin escrupulos y sin conciencia podria facilmente anular todas las libertades. No se fundo la denegacion en razones de "comfort" o conveniencia publica. atropellar todos los derechos incluso los mas sagrados. expresado en el inciso 8. en una palabra. orden publico. temor o aprension? Es obvio que la contestacion tiene que ser decididamente negativa. ora bajo los terminos de la ordenanza pertinente. hizo historica esta exclamacion: "¡Libertad. por razon de esta clase de conjetura. un desengañado de la democracia en nuestro pais acaso exprese entonces su suprema desilusion parafraseando la historica exclamacion de la siguiente manera: "¡Interes general. paz. seccion 1. bajo el precepto categorico. una arenga incendiaria podria amotinar a la gente y provocar serios desordenes. temores. invocando probables peligros o amagos de peligro. ya para que los ciudadanos discutan los asuntos publicos o se comuniquen entre si su pensamiento sobre ellos. ¿Tenia razon el Alcalde recurrido para denegar el permiso solicitado por el recurrente. a colocar los privilegios y garantias constitucionales a merced del capricho y de la arbitrariedad. aprensiones. y sobre todo. del Articulo III de la Constitucion? ¿No constituye la denegacion del permiso una seria conculcacion de ciertos privilegios fundamentales garantizados por la Constitucion al ciudadano y al pueblo? Resulta evidente. cuantos atentados se cometen en vuestro nombre contra la libertad!" . Una mujer famosa de Francia 3 en la epoca del terror. Sin embargo. de la cual los derechos de reunion y de peticion son nada mas que complemento logico y necesario. privilegio o garantia constitucional. que el recurrido denego el permiso bajo lo que el mismo llama "all- pervading power of the state to regulate. plazas y calles. La cuestion en orden es la siguiente: ¿se puede anular o siquiera poner en suspenso el derecho fundamentalisimo de reunion o asamblea pacifica. en un mero temor o aprension — la aprension de que. tal seria el resultado si en nombre de un concepto tan vago y tan elastico como es el "interes general" se permitiera in terdecir la libertad de la palabra. vgr. las cuales — como sabe todo estudiante de ciencia politica — en el juego y equilibrio de fuerzas que integran el sistema democratico son tan indispensables como las mayorias. o hasta humor del gobernante. terminante. ¿Que es lo que todavia podria detener a un partido o a un hombre que estuviera en el poder y que no quisiera oir nada desagradable de sus adversarios si se le dejara abiertas las puertas para que. por tanto. pues el derecho constitucional de reunirse pacificamente. ya para ejecer el derecho de peticion recabando del gobierno el remedio a ciertos agravios. cuantos crimenes se cometen en tu nombre!" Si se denegara el presente recurso legitimando la accion del recurrido y consiguientemente autorizando la supresion de los mitines so pretexto de que la paz y el orden publico corren peligro con ellos. estrangular. (b) que el uso de las calles y plazas publicas para tales fines ha sido siempre. por fundamentos constitucionales. a saber: La CIO trataba de celebrar mitines y asambleas publicas en Jersey City a fin de comunicar a los ciudadanos sus puntos de vista sobre la "National Labor Relations Act. y conforme lo demuestra el record. es en tal sentido absoluto pero relativo. plazas y calles para el intercambio de impresiones y puntos de vista sobre cuestiones nacionales si bien es absoluto es tambien relativo en el sentido de que se puede regular. desde la antiguedad. casi la misma alegacion que en el presente caso. pues no hace del "comfort" o conveniencia en el uso de calles y plazas la norma y patron de la accion official. particularmente en Estados Unidos. ha venido a ser clasico en la jurisprudencia americana sobre casos del mismo tipo que el que nos ocupa. planteo una queja ante los tribunales de New Jersey contra las autoridades de Jersey City. Los hechos del caso. inmunidades. y (b) tachando de inconstitucionales los metodos y medios en virtud de los cuales ponian en vigor la ordenanza las referidas autoridades. y debe ser ejercitado con sujecion al "comfort" y conveniencia generales y en consonancia con la paz y el buen orden. Los tribunales de New Jersey. por el contrario. aun a riesgo de incurrir en un anglicismo. time out of mind. Committee for Industrial Organization. derechos y libertades de los ciudadanos. S. son. rehusaron consistentemente conceder licencia para dichos mitines bajo la especiosa alegacion de que los miembros de la organizacion obrera solicitante eran comunistas y del orden publico corria peligro de grave perturbacion. trastornos o reuniones turbulentas y desordenadas. una parte importante y esencial de los privilegios. La denegacion de la licencia se fundaba en una ordenanza municipal que trataba de reglamentar el derecho constitucional de reunion y asamblea pacifica. declarando inconstitucionales la ordenanza en cuestion y los metodos por los cuales se trataba de poner en vigor. brevemente expuestos. casi. de esta manera. plazas y parques para la comunicacion de impresiones y puntos de vista sobre cuestiones nacionales puede ser regulado en interes de todos. En otras palabras. planteado y decidido en 1938. 515-517).. asi como para la libre discusion de los asuntos publicos. desde tiempo inmemorial los mismos siempre se han considerado como un fideicomiso para uso del publico. es decir. 307 U. la validez de una ordenanza municipal que regulaba y restringia el derecho de reunion.El consenso general de las autoridades en los paises constitucionalmente regidos como Filipinas. pero no puede ser coartado o denegado so pretexto y forma de regulacion. sentenciaron a favor de la CIO permitiendole celebrar los mitines solicitados. (a) atacando. la denegacion puede ser utilizada como instrumento para la supresion arbitraria de la libre expression de opiniones sobre asuntos nacionales. Regulation of parks and streets. por ultimo. they have immemorially been held in trust for the use of the public and. comenzando por el Alcalde Hague el famoso cabecilla de la muy notoria maquina politica de New Jersey. pues la prohibicion de hablar producira indudablemente tal efecto: (f) y. traduciendo literalmente la fraseologia de la sentencia. pero jamas se puede denegar o coartar so pretexto o a guisa de regulacion (Hague vs." Las autoridades de la ciudad. La formidable asociacion obrera Committee for Industrial Organization conocida mas popularmente por la famosa abreviatura CIO. "no puede hacerse de la supresion official incontrolada del privilegio un sustituto del deber de mantener el orden en relacion con el ejercicio del derecho. (d) que el tribunal inferior estuvo acertado al declarar invalida la ordenanza en su faz. Elevado el asunto en casacion e la Corte Suprema Federal. es que el privilegio del ciudadano de usar los parques. have . Entre otros pronunciamientos se dijo que: (a) donde quiera este alojado el titulo sobre las calles. y desde tiempos remotos que la memoria no alcanza se han usado siempre para fines de reunion y de intercambio de impresiones y puntos de vista entre los ciudadanos." He aqui ad verbatim la doctrina: "5. esta confirmo la sentencia con solo una ligera modificacion. que no puede echarse mano de la supresion official del privilegio para ahorrarse el trabajo y el deber de mantener el orden en relacion con el ejercicio del derecho. (e) que. (c) que el privilegio del ciudadano de los Estados Unidos de usar las calles. faculta al Director de Seguridad a rehusar el permiso en virtud de su simple opinion de que la denegacion es para prevenir motines. parques y plazas. Este asunto. — "Wherever the title of streets and parks may rest. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right. 515-516. it is not absolute. Such use of the streets and public places has. been used for purposes of assembly." (Hague vs. admitio francamente la legalidad de la coalicion y de sus fines. 496. disturbances. and liberties of citizens. lo demuestra. Ni siquiera se ha hecho la mas pequeña insinuacion de que las minorias coaligadas en cuyo nombre se ha pedido la celebracion del mitin en cuestion tuvieran el proposito de derribar al gobierno por metodos y procedimientos violentos. and in consonance with peace and good order. be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly 'prevent' such eventualities. al proletariado filipino de las garras del imperialismo capitalista. abusos y anomalias de diferentes clases. or disorderly assemblage. no la bala. sustantivo — ingrediente unico y excepcionalisimo que permite una salvedad suspensiva singularisima en el ejercicio de los privilegios constitucionales de que se trata. immunities. como el instrumento normal y democratico para cambiar los gobiernos y las administraciones. It can thus. no busco la violencia ni recurrio a la accion . en su informe oral. y en 5 ciudades con carta especial de las 8 que existen. 255. sino en la existencia de un peligro inminente. but relative. Que la coalicion minoritaria no es una organizacion subversiva como la que fue proscripta en el caso de Evangelista contra Earnshaw. Pero la similitud es solo en el hecho de que el entonces Alcalde D. Fil. ademas del hecho ya apuntado de que lucho en las ultimas elecciones prevaliendose de las armas proveidas por la legalidad y sacando partido de los medios de que disponia frente a la natural superioridad del partido gobernante.) Durante la audiencia del presente asunto se hizo mencion del caso de Evangelista contra Earnshaw. The privilege of the citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all. segun ellos. y de que su candidatura senatorial triunfo en 21 provincias de las 50 que componen el mapa electoral. como un precedente en apoyo de la accion del Alcalde recurrido. pero las circunstancias en ambos casos son enteramente diferentes. . but it must not in the guise of regulation be abridged or denied. Committee for Industrial Organization. and must be exercised in subordination to the general comfort and convenience. rights. segun ella. ¿Existe ese ingrediente en el caso que nos ocupa? Indudablemente que no. capital del archipielago. Tomas Earnshaw tambien revoco el permiso previamente concedido al partido comunista que representaba Crisanto Evangelista para celebrar mitines en Manila. . claro. been a part of the privileges. as the record discloses. La accion. del Alcalde Earnshaw se fundo no en una simple conjetura. por tanto. from ancient times. and discussing public questions. communicating thoughts between citizens. real. 57 Jur. la circunstancia de que despues de hechas las votaciones y mientras se estaban contando los votos y cuando vio que. sino que por el contrario propugna la balota. en un mero temor o aprension. void upon its face. S. incluyendose entre dichas 5 la de Manila. El Alcalde Earnshaw revoco el permiso despues de una minuciosa investigacion en que se habian encontrado pruebas indubitables no solo de que en los estatutos y documentos del partido comunista se preconizaba como uno de sus primordiales objetivos el derribar al gobierno americano en Filipinas — gobierno que ellos calificaban de imperialista y capitalistico — sino que de hecho en mitines celebrados con anterioridad los comunistas habian pronunciado discursos clara y positivamente sediciosos predicando una abierta rebelion e incitando un alzamiento para liberar. 307 U. El mismo Fiscal Villamor. We think the court below was right in holding the ordinance . It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent riots. provinciales y locales.. se habia escamoteado o se estaba escamoteando la voluntad popular en varias partes mediante engaños. repito. lo demuestra. It does not make comfort or convenience in the use of streets or parks the standard of official action. Podemos tomar conocimiento judicial de que esas minorias coaligadas lucharon en todas las provincias y municipios de Filipinas presentando candidatos para todos los cargos — nacionales. entre ellos el Presidente de Filipinas. con todas las rubricas del protocolo. Creo que entre ambas politicas la eleccion no es dudosa. Y esto lo hizo la coalicion oficialmente. . la amplia avenida de la libertad. sobre todo de parte de los grupos perdidosos y derrotados. cuando no lo agita ningun viento. por otro lado. suscitandose contra ellos la animadversion y el desprecio del pueblo mediante la acusacion de que han estado malversando propiedades y fondos publicos con grave detrimento del bienestar e interes generales. que. y un peligro perpetuo? En realidad. En otras palabras. el Alcalde recurrido habia concedido a las minorias coaligadas permisos para celebrar varios mitines politicos en diferentes sitios de Manila. el Presidente del Senado y el mismo recurrido. de todas las formas de gobierno la democracia no solo es la mas dificil y compleja. la supresion incontrolada del privilegio constitucional no puede utilizarse como sustituto de la operacion de dichas leyes. las circunstancias han venido a situar al gobierno en una encrucijada: por un lado. dado este antecedente. dia de las elecciones. que en dichos mitines se habian pronunciado discursos altamente inflamatorios y calumniosos llamandose ladrones y chanchulleros a varios funcionarios del gobierno nacional y de la Ciudad de Manila. y entonces resulta horrible. exigiendo. estricta cuenta al que abusase de ella. Committee for Industrial Organization. con la espantabilidad de las fuerzas elementales que se desencadenan liberrimamente. Rizal tiene en uno de sus libros inmortales una hermosa imagen que es perfectamente aplicable a la democracia. o que la desesperacion lo arrastre a conspirar en la sombra o a confiar su suerte a los azares de una cruenta discordia civil. Pero — cabe preguntar — ¿de cuando aca la libertad. es de represion y castigo sobre la base de los hechos consumados. minandose de tal manera la fe y la confianza del pueblo en su gobierno y exponiendose consiguientemente la paz y el orden a serias perturbaciones. Puede decirse que esta es como la mar: serena. sin embargo.directa para hallar remedio a sus agravios o vengarlos. la democracia no ha sido un peligro. una politica que consista en abrir espitas y valvulas por donde pueda extravasarse no ya la protesta sino inclusive la indignacion del pueblo. de una politica de fuerza y de cordon ferreo policiaco. sino que trato de cobijarse bajo la Constitucion reuniendo al pueblo en asamblea magna al aire libre para comunicar y discutir sus quejas y recabar del gobierno el correspondiente remedio. Se alega que antes del 11 de Noviembre. formulando la peticion del mitin el hombre que mejor podia representarla y ofrecer garantias de legalidad y orden ante los poderes constituidos — el recurrente en este caso. teniendo en cuenta la temperatura elevadisima de las pasiones. Pero cuando sopla el huracan — lease. Vientos de la Libertad — sus aguas se alborotan. sus olas se encrespan. Estas alegaciones son evidentemente insostenibles. previniendo de esta manera que los vapores mal reprimidos hagan estallar la caldera. y otros delitos semejantes. el cual no solo es extraño sino que es enteramente repulsivo e incompatible con nuestro sistema de gobierno. espantosa. Nuestro sistema. el camino angosto de la represion. Y parafraseando lo dicho en el citado asunto de Hague vs. ¿Que mejor prueba de legalidad y de propositos pacificos y ordenados? Por tanto. sino que es la mas peligrosa. es un sistema que permite el amplio juego de la libertad. la difamacion oral y escrita. sin siquiera ningun rizo que arrugue su superficie. inmovil. mas que de prevencion. Darles valor equivaldria a instituir aqui un regimen de previa censura. habia motivo razonable para creer que semejantes discursos se pronunciarian de nuevo. Se temia — dice el recurrido en su contestacion — que la probable virulencia de los discursos y la fuerte tension de los animos pudiesen alterar seriamente la paz y el orden publico. cuya solvencia moral y politica esta doblemente garantida por su condicion de lider de las minorias en el Congreso y jefe de campaña de las mismas en las pasadas elecciones. Este es el espiritu que informa nuestras leyes que castigan criminalmente la calumnia. Menos cuando de la pusilanimidad se hace pretexto para imponer un regimen de fuerza fundado en el miedo. Y luego. Fueron esas libertades las que despues informaron los documentos politicos de Mabini y la celebre Constitucion de Malolos. Fueron esas libertades las que cristalizaron en la carta organizacional de Bonifacio. al mas severo e inmerecido castigo si los fines que perseguian no fueron del agrado de los representantes del ministerio fiscal. y mientras mayor sea el agravio y mas intenso el resentimiento. harto metidos en el corazon y alma de nuestro pueblo para ser tratados negligentemente. defensor del recurrido. Se trata de derechos demasiado sagrados. para historiar el proceso de esas libertades que los atinados y elocuentes pronunciamientos del Magistrado Sr. La democracia no es para pusilanimes. a saber: "Es de esperar que haya mas o menos desorden en una reunion publica del pueblo para protestar contra agravios ya sean reales o imaginarios porque en esos casos los animos siempre estan excesivamente exaltados. con su cordura. Si en tales asociaciones ocurren casos de desorden debe averiguarse quienes son los culpables y castigarseles por este motivo. Nada mejor. Ejemplo: los Zares de Rusia. expuestas en la causa de Estados Unidos contra Apurado. y el ejercicio de ese derecho en la ocasion mas propia y en la forma mas pacifica expondria a todos los que tomaron parte en ella. con un simple encogimiento de hombros. probo ser superior a las aprensiones. tanto menos perfecto sera por regla general el control disciplinario de los directores sobre sus secuaces irresponsables. 764 (1918)." En el curso de los informes se pregunto al Fiscal. Porque entonces el absolutismo se disfraza bajo la careta odiosa de la hipocresia. con todos sus peligros. y de pedir reparacion de agravios seria completamente ilusorio. Fueron esas libertades la base del programa politico de los laborantes precursores del '96. Fueron esas libertades las que inspiraron a nuestros antepasados en sus luchas contra la opresion y el despotismo. durante cerca de medio siglo de colaboracion filipino — americana. tolerancia y amplitud de criterio. Y ya se sabe como terminaron. sin embargo. Fil. que el pueblo de Manila. Pero si se permitiese al ministerio fiscal agarrarse de cada acto aislado de desorden cometido por individuos o miembros de una multitud como pretexto para caracterizar la reunion como un levantamiento sedicioso y tumultuoso contra las autoridades. Los que temen la libertad no merecen vivirla. por no llamarlos fantasticos. 440 (1907). entonces el derecho de asociacion. Es dificil mejorarlos... 7 Fur. si con motivo de los discursos que se dicen calumniosos y difamatorios pronunciados en los mitines de la oposicion antes de las elecciones ocurrio algun serio desorden: la contestacion fue negativa. y entre la reunion esencialmente pacifica y un levantamiento tumultuoso. Carson describio con mano maestra los peligros de la libertad y democracia y previno el temor a ellos con las luminosas observaciones que se transcriben a continuacion. ¿Que demuestra esto? Que los temores eran exagerados. La democracia filipina no puede ni debe sufrir un retroceso en la celosa observancia de las garantias constitucionales sobre la libertad de la palabra y los derechos concomitantes — el de reunion y peticion.¿Ha dejado. temores y suspicacias de sus gobernantes. creo yo. El Magistrado Sr. la espina dorsal del regimen constitucional y practicamente republicano aqui establecido. Malcolm en la causa de Estados Unidos contra Bustos. lo mismo puede decirse de la democracia: hay que tomarla con todos sus inconvenientes. generando luego el famoso Grito de Balintawak. pero debe procederse con la mayor discrecion al trazar la linea divisoria entre el desorden y la sedicion. 37 Jur. el hombre de cruzar los mares tan solo porque pueden encresparse y enfurecerse a veces? Pues bien. Fil. Como se dice mas arriba. fueron esas mismas libertades la esencia de nuestras instituciones. en el mitin monstruo que despues se celebro en virtud de nuestra decision en el presente asunto tampoco ocurrio nada. asi que opto por transcribirlos ad verbatim a continuacion: . "Despues sigue el periodo de la mutua colaboracion americano-filipina. debe ampararse ahora y llevarse adelante en la misma forma en que se protegeria y defenderia el derecho a la libertad. no decimos nada nuevo al afirmar que la libertad de la palabra. "Estos parrafos que figuran insertos en el Bill de Derechos de Filipinas no son una huera palabreria. Completa libertad de comentar los actos de los . porque estan calcadas de la Primera Enmienda a la Constitucion de los Estados Unidos que el pueblo americano pidio antes de otorgar su aprobacion a la Constitucion. de cultos y de asociacion. "Tan solo se mencionan los datos que anteceden para deducir la afirmacion de que una reforma tan sagrada para el pueblo de estas Islas y a tan alto precio conseguida. . 'La Revolucion Filipina.') La Constitucion de Malolos. y por crear diputados filipinos. Las palabras entre comillas no son extrañas para los estudiantes de derecho constitucional. y la Ley Jones. Las palabras que alli se emplean llevan consigo toda la jurisprudencia que es de aplicacion a los grandes casos constitucionales de Inglaterra y America.' en que insistian los filipinos. 470. por medio de las columnas de La Solidaridad y por otros medios. S. 195 U.. Mortiga [1917]. que por su naturaleza son leyes organicas de las Islas Filipinas. . sus Instrucciones a la Segunda Comision de Filipinas."Hojeando las paginas de la historia. era desconocida en las Islas Filipinas antes de 1900. "Los patriotas filipinos que estaban en España. de 7 de abril de 1900. de que las mencionadas garantias constituyen parte integrante de la Ley Organica — La Constitucion — de las Islas Filipinas. Pero entre aquellos estan los siguientes: "Los intereses de la sociedad y la conservacion de un buen gobierno requieren una discusion plena de los asuntos publicos." "El Bill de Filipinas. al exponer los deseos del Pueblo Filipino. Jose Rizal en su obra 'Filipinas Dentro de Cien Años' (paginas 62 y siguientes) describiendo 'las reformas sine quibus non. siguen otorgando esta garantia. en su Bill de Derechos. [1904]. 100. o sea la Ley del Congreso de 29 de Agosto de 1916. (Kepner vs. pidieron invariablemente la 'libertad de prensa. obra del Congreso Revolucionario. garantizaba celosamente la libertad de la palabra y de la prensa y los derechos de reunion y de peticion. Por lo tanto. S. debe principiar por declarar la prensa libre en Filipinas. que quiera que sus reformas sean reformas. tal y como la han defendido siempre todos los paises democraticos. existia latente la principal causa de la revolucion. dijo: "El ministro. que no debe olvidarse por un solo instante. o sea la Ley del Congreso de 1.' (Vease Mabini. Serra vs. .° de Julio de 1902. La Constitucion de los Estados Unidos y las de los diversos Estados de la Union garantizan el derecho de la libertad y de la palabra y de la prensa y los derechos de reunion y de peticion. no nos sorprende encontrar consignadas en la Carta Magna de la Libertad Filipina del Presidente McKinley. 214 U. que sientan el siguiente inviolable principio: "Que no se aprobara ninguna ley que coarte la libertad de la palabra o de la prensa o de los derechos del pueblo para reunirse pacificamente y dirigir peticiones al Gobierno para remedio de sus agravios.. U.) Y ¿cuales son estos principios? Volumen tras volumen no bastaria a dar una contestacion adecuada. S. "Mencionamos los hechos expuestos tan solo para deducir la afirmacion. Por tanto. Butterworth. que el Jefe Ejecutivo. No nos compete determinar el grado de certeza de los fraudes e irregularidades electorales que la coalicion minoritaria trataba de airear en el mitin en cuestion con vistas a recabar del gobierno y del pueblo el propio y correspondiente remedio. But. Seria como renegar de lo mejor de nuestro pasado: Rizal. al amparo de caciquillos y despotillas que pondrian en ridiculo el pais ante el mundo . Pudieran ser reales o pudieran ser imaginarios. no hay mejor profilaxis. funcionarios publicos viene a ser un escalpelo cuando se trata de la libertad de la palabra. del Pilar. D. . sino que debe ser alentado. sino que. debe esperarse que sobrelleve la critica en beneficio de la comunidad.. en general para la salud de la republica. B. Pero de una cosa estamos absolutamente seguros y es que la democracia no puede sobrevivir a menos que este fundada sobre la base de un sufragio efectivo. Walter. Carden. sincero. Sir R. tiene que ser muchisimo mas activa y militante. whenever and wherever properly exercisable. y otros padres inmortales de la patria. Elevandose a mayor altura que todos los funcionarios o clases de funcionarios. que el Poder Judicial — que cualesquiera o sobre todas las dependencias del Gobierno — la opinion publica debe ser el constante manantial de la libertad y de la democracia. Solamente se pueden corregir los abusos permitiendo que se denuncien publicamente sin trabas sin miedo. Los hombres que se dedican a la vida publica podran ser victimas de una acusacion injusta y hostil. 5 Q. la censura desembarazada. no hay mejor higiene que la critica libre. I arrived at a different conclusion from that of the majority. Mabini. Desde luego que la critica no debe autorizar la difamacion. en una palabra. libre. Y para esto.. 372. R. en la trabajosa ascension hacia la cumbre de nuestros destinos.5 Esta es la mejor manera de asegurar el imperio de la ley por encima de la violencia. como si de un golpe catastrofico se echara abajo la recia fabrica de la democracia filipina que tanta sangre y tantos sacrificios ha costado a nuestro pueblo. pero podra calmarse la herida con el balsamo que proporciona una conciencia tranquila. por el contrario. Quezon. y la democracia resulta una farsa. The Queen vs. HILADO. B. El funcionario publico no debe ser demasiado quisquilloso con respecto a los comentarios de sus actos oficiales. 73. as I had to. 3 F. J. Tan solo en esta forma puede exaltarse la mente y la dignidad de los individuos. Asi que todo lo que tienda a establecer un sufragio efectivo4 no solo no debe ser reprimido. Bonifacio. . Obrar de otra manera seria como borrar de una plumada nuestras mas preciosas conquistas en las jornadas mas brillantes de nuestra historia. 1.. it has been considered doubly necessary to expound at length the grounds of my dissent. Con todo. in considering the legal problem here presented serenely and dispassionately. como el individuo es menos que el Estado. dissenting: Because the constitutional right of assembly and petition for redress of grievances has been here invoked on behalf of petitioner. L.) Ahora que ya somos independientes es obvio que la republica no solo no ha de ser menos celosa que la antigua colonia en la tenencia y conservacion de esas libertades. (Veanse los casos perfectamente estudiados de Wason vs. para permitir que ocurra esa tragedia. y en su lugar se erigiera el tinglado de una dictadura de opera bufa. el baluarte de la democracia. Marcelo H.. limpio y ordenado. que la Legislatura. 4 Q. . mejor todavia. El colegio electoral es el castillo. & F. Es evidente que no hemos llegado a estas alturas. We are all ardent advocates of this right. Seria. La penetrante incision de la tinta libra a la burocracia del absceso. Suprimid eso. Seymour vs. en todo o en parte. Still. and "to comply with and enforce and give the necessary orders for the faithful enforcement and execution of the laws and ordinances in effect within the jurisdiction of the city.. the Supreme Judicial Court of Massachusetts considered and decided a case involving a regulation by the Board of Park Commissioners forbidding all persons "to make orations. — It should be recognized that this right is not absolute and is subject to reasonable regulations. . (Philippine Constitutional Law by Malcolm and Laurel. redress of the wrongs done them. The same reasons apply to any particular park. . the Mayor of Manila had the duty and the power. inter alia. and of the grievances they suffer. The defendant requested permission to deliver an oration in the park. 57. give instructions to their representatives. . permits of all classes . whose ordinances the said Mayor was at once bound and empowered to comply with and enforce. and of the grievances they suffer. .. Malcolm and Laurel say: "The right of peaceful assemblage is not an absolute one. Commonwealth vs. and delivered an "oration or harangue" about ten or fifteen minutes in length. 79. section 2434 [b]-[m]. and to request of the legislative body. section 2444 (u). . Abrahams. which is cited in support of the text on page 407 of the above cited work on Philippine Constitutional Law by Malcolm and Laurel. and among the general powers and duties of the Municipal Board. and whether the use of any park or a part of any park can be temporarily set aside for the use of any portion of the public. providing that "the people have a right. because such an assembly would or might be inconsistent with the public use for which these places are held. by the way of addresses. . redress of the wrongs done them. . give instructions to their representatives. and was delivered in an ordinary oratorical tone. In a criminal trial of said defendant for violating the rules promulgated by the Board of Park Commissioners. . and that no injury of any kind was done to the park.] . Abrahams. Assemblies are subject to reasonable regulations. in an orderly and peaceable manner. and thereafter entered the park. and might not have such right in the public gardens or on the common. in the exercise of a wise discretion. and not inconsistent with article 19 of the Bill of Rights (of the Massachusetts Constitution). The parks of Boston are designed for the use of the public generally. 3d ed." [Ibid. . it was held that the regulation under which the Board of Park Commissioners denied the permission to deliver said oration requested by the defendant was valid and was not inconsistent with that provision of the Massachusetts Bill of Rights guaranteeing to the people the "right. 30 N. and to request of the legislative body. p. in an orderly and peaceable manner. petitions. And the Supreme Court of Massachusetts said: ". were such as "regulate the use of streets. which was refused by the board. were large areas not devoted to any special purpose and not having any shrubbery that would be injured by the gathering thereon of a large concourse of people.." In that case the defendant admitted that the people would not have the right to assemble for the purposes specified in the public streets." [Ibid. for any (other) good reason of general interest" (Rev. said rules were held valid and reasonable. . Code." In the above cited case of Commonwealth vs. or loud outcries" in a certain park. 156 Mass. and other public places.) Messers. by the way of addresses.E. that defendant's speech contained nothing inflammatory or seditious. italics ours. is for the park commissioners to decide. or remonstrances. "to grant and refuse municipal .. Ad. . 407. harangues. under penalty of $20." In the above-quoted case it appears from the statement of facts preceding the opinion that within the limits of Franklin Park. or remonstrances. there involved. to assemble to consult upon the common good.(a) Right not absolute but subject to regulation. . . section 2434 (b)-(a)]. petitions. that at the close of the oration the audience quietly dispersed. except upon prior consent of the board. to assemble to consult upon the common good. parks. italics ours)." In the case at bar. and the power and duty of the Municipal Board "to regulate the use ." and therefore does not abridge or deny the right. and that laws and ordinances aimed at preventing such abuses are valid regulations of the right. Among these is the duty and power of said Mayor "to grant and refuse municipal ." (Italics ours. assembly or rally of the size and nature of that contemplated by petitioner and those belonging to the Coalesced Minority Parties when the permit in question was requested from the City Mayor. and in another sense. but relative. has conferred certain powers pertinent to the subject under consideration upon the City Mayor. It is one of the centers of the city where a heavy volume of traffic during those hours converges and from which it again proceeds in all directions.. we have the example of the instant case involving Plaza Miranda or any other public place. while people have the right to assemble peaceably on the highways and to parade on streets. 307 U. by way of regulation of the right of free speech. and other public places . parks. already above discussed. . it seems evident. 1423. . for example.. The rule may perhaps be more aptly stated by saying that the right of peaceful assembly and petition is not absolute but subject to regulation as regards the time. J. And as to manner. . p. ." as in the instant case. permits of all classes . the government may regulate the use of places — public places — wholly within its control. In our government the state. is a public place devoted to traffic between several streets which empty into it within the district of Quiapo. and in consonance with peace and good order.) I construe this declaration of principles by the United States Supreme Court to imply that where the regulatory action is predicated upon the "general comfort and convenience. ." and is "in consonance with peace and good order." (italics ours). cited in the majority opinion and from which the following passage is copied from the quotation therefrom in the said opinion: ". . both for vehicular and for pedestrian traffic. it is a familiar rule that the freedom of speech does not authorize the speaker to commit slander or defamation. . The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all. 496. through the Charter of Manila. . in the guise of regulation. S. we have that of Hague vs. . (b) No constitutional right to use public places under government control. and upon the Municipal Board. of street. As to place. . S. must have been expected to greatly inconvenience and interfere with the right of the public in general to devote said plaza to the public uses for which it has been destined since time immemorial. may validly prohibit the delivery of speeches on public streets near private residences between midnight and dawn. Among other cases which may be cited on the same point. Committee on Industrial Organization. for exercise of right of assembly and petition. .Another legal doctrine which should not be lost sight of is that. — . that the State. . for any good reason of general interest" (italics ours). and the holding during those hours of a meeting. and must be exercised in subordination to the general comfort and convenience. 83 Law. Plaza Miranda in a way is a public square or plaza. it is not absolute. such action is regulation and not "guise of regulation. directly or through the local government of the city or municipality. without abridging the right of assembly and petition. but it must not. ed. nevertheless the state may regulate the use of the streets by requiring a permit (16 C. .. 642). etc. and manner of its exercise. place. be abridged or denied. in view of its more frequent public use. As to time. . and that the state or municipality may require a permit for public gatherings in public parks and that. . It is a fact of common knowledge and within the judicial notice of this Court that said plaza is one of the public places constantly used by an usually great number of people during all hours of the day and up to late hours of the night. . or for holding a public meeting. used the following eloquent language:. ed. the City Mayor did not attempt to have anything to do with the holding of the "indignation rally" or the delivery of speeches thereat on the date desired at any place over which said mayor had no control — his action was exclusively confined to the regulation of the use of Plaza Miranda for such a purpose and at such a time. 1052). supra. Among other things. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. a public place under the complete control of the city government. I submit.. as well as that of the assembly. is a distinction which must be clearly maintained throughout this discussion. 569. S. In the same case of Cox vs.. particularly if such use is a deviation from those for which said public places have been by their nature and purpose immemorially dedicated. in his opinion. One would not be justified in ignoring the familiar red lightbecause he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinion.). without unfair discrimination. to time. Chief Justice Hughes. imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. of for maintaining or expressing religious beliefs. ed. Chief Justice Hughes. and manner in relation to the other proper uses of the streets. I may that in the instant case the constitutional rights of free speech. In other words. the action taken by the City Mayor was not even a regulation of the constitutional right of assembly and petition. Their right to do any of these things apart from engaging in a "parade or procession. New Hampshire." upon a public street was not involved in the case. the United States Supreme Court said that the appellants were not prosecuted for distributing leaflets. or for issuing invitations to a public meeting.. ." (85 Law. We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constituional right. 312 U. The judgment of the municipal court was affirmed by the Supreme Court of New Hampshire and that of the latter was affirmed by the United States Supreme Court... 1052-1053. 1054. place. 1049. By analogy. The question of the validity of a statute addressed to any other sort of conduct than that complained of was declared not to be before the court (85 Law.. The appellants invoked the constitutional right of free speech and press. it can not be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protectio. speaking for a unanimous court in Cox vs. or for conveying information by placards or otherwise. assmebly. as it undoubtedly has. or free speech. 85 Law. it can not be denied authority to give consideration. "Civil liberties. ed. and petition are not before the court but merely the privilege of petitioner and the Coalesced Minorities to exercise any or all of said rights by using Plaza Miranda. That case was concerened with a prosecution of sixty-eigth "Jehovah's Witnesses" in a municipal court in the State of New Hampshire for violation of a state statute prohibiting a "parade or procession" upon a public street without a special license.. This. (emphasis ours). as guaranteed by the Constitution. said: If a municipality has authority to control the uses of its public streets for parades or processions.Indeed. but rather of the use of a public place under the exclusive control of the city government for the exercise of that right. claimed by petitioner. No political party or section of our people has any constitutional right to freely and without government control make use of such a public place as Plaza Miranda. carefully analyzed. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all. New Hampshire. 312 U. thus completely failing to confer the discretion. Commonwealth. the right of free speech. is unconstitutional or void. Most of the cases therin cited are. A "permit" which under no conditions or circumstances and at no time can be refused needs a different name... the United States Supreme Court. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. 43. 72. If.. For if the citizen asserting the civil right were to override the right of the general public to the use of such streets or places.In other words. State of New Hampshire. Armstrong.. does not guarantee their exercise upon public places.. secs. conferring the discretion. 234.". any more than upon private premises.. and it may and does delegate more or less of such control to the city or town immediately concerned. Rep. 651. I have examined the citations of authorities in the majority opinion.. just because it is guaranteed by the constitution. I believe reinforce this dissent. inapplicable to the oune under consideration. assembly or the like. without government regulation in both cases. public safety and public order take precedence over even particular civil rights. the mandamus suit becomes entirely idle. He who has the power to grant permission for the doing of an act necessarily has the correlative power to deny the permission. S. for example. Mun. then of the latter tribunal. Willis Cox vs. for the very idea of a permit is something which may be granted or witheld. 45 N. in such case. in affirming the decision of the Supreme Judicial Court of Massachusetts written by Justice Oliver Wendell Holmes. For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of the member of the public than for the owner of a private house to forbid it in his house. section 2434 (b)-(m) of the Revised Administrative Code does not confer upon the Mayor of Manila an unfettered discretion to grant or refuse the permit--his power to grant or to refuse . 167 U. The fact that a law or municipal ordinance under which a person had been prosecuted for delivering a speech without the required permit. None of them was for mandamus to compel the granting of a permit for holding a meeting. ed. does not mean that such person has the right by mandamus to force said authority to grant him the permit. was declared unconstitutional or otherwise void for delegating an unfettered or arbitrary discretion upon the lisencing authority... public convenience.. 42 Law. was concerned with a statute of the State of New Hampshire which was construed by the Supreme Court of the same State as not conferring upon the licensing board unfettered discretion to refuse the license.. In our case. in guaranteeing the right of peaceful assembly and petition. quoted from said decision as follows:. 569. Y. 656. and was held valid both by said Supreme Court and the Supreme Court of the United States. Brooklyn Park Comrs. So it may take the lesser step of limiting the public use to certain purposes.--. vs. the law or ordinance. 666.. 244 (6 Am. it would be hard to conceive how upon the same principle that citizen be prevented from using the private property of his neighbor for the exercise of the asserted right. of the owners' consent in the second. upon a public place within the control of the general or local government. and those which may have some application. when the use of public streets or places is involved.As representatives of the public it (legislature) may and does excercise control over the use which the public may make of such places (public parks and streets). In Davis vs. 393. (c) Authorities cited. S. See Dill. 243. etc. 70). The constitution. I think. 71. Corp. ". Such a suit would involve self- contradictory proposition. 407. as secured by the principles of law.. it should be "for any good reason of general interest. the city mayor received his power from the State through the Legislature which enacted the Revised Administrative Code.. and the public officer who was being called upon to act on the petition for permit was the chief executive of the city who was by reason of his office the officer most directly responsible for the keeping and maintenance of peace and public order for the common good. "It is quite possible that some things have a greater tendency to produce danger and disorder in the cities than in smaller towns or in rural places.. limitation or guide and. and therefore could not be delegated to the superintendent of police. 42 Ill. but nothing further.. 84 Wis.) In our case. what was involved was a city ordinance committing to the unrestrained will of public officer the power to determine the rights of parties under the ordinance without anything (to guide or control his action. Rich vs. and no inference can extend beyond the fair scope of powers granted for such a purpose and no grant of absolute discretion to suppress lawful action altogether can be granted at all.. 222. his action therein provided to be guided and controlled by the already mentioned requirement that whether he grants or refuses a municipal premit of any class it shall be for some "good reason of general interest.We must therefore construe this Charter and the powers it assumes to grant.. the Supreme Court of the State of Illinois held that the power of City councils under the state law to regulate the use of the public streets could not be delegated by them. and moreover.. which cannot be less careful of private rights under a constitution than under the common law. Garrabad vs.. the action taken by him was not an absolute suppression of the right claimed but was merely a postponement of the use of a public place for the excercise of that right when popular passions should have calmed down and public excitement cooled off sufficiently to better insure the avoidance of public peace and order being undermined. the ordinance prohibiting certain uses of the public streets of the City of Grand Rapids "without having first obtained the consent of the Mayor or Common Council of said City." and not as his unfettered will may dictate. 430. And as stated elsewhere in this dissent. involved a city ordinance declared unreasonable and void by the Supreme Court of Michigan."." The ordinance did not prescribe any guide. ". The case of In re Fradzee.. 399. had to do with another city ordinance. In City of Chicago vs. Mapervill." (emphasis ours. 136 Ill.. The following passage from the quotation from the decision of the Supreme Court of Michigan made in the majority opinion would seem to reinforce the stand taken in this dissent... But in our case. Dering. Trotter. lastly. the exercise of the power thus conferred upon the mayor or common council. with a present population estimated to be 150 per cent larger than its prewar population. as already stated.) The instant case is concerned with an "indignation rally" to be held at one of the busiest and most frequented public places in this big cosmopolitan city. liberty is . as only conferring such power over the subjects referred to as will enable the city to keep order. The court there held that when men in authority are permitted in their discretion to excercise "power so arbitrary . in accordance with the limitations and conditions required by the rights of the people themselves. . In State ex rel. and suppress mischief. and to.. his power in the premises was not without control. of. Ap. This may justify reasonable precautionary measures. the power of the City Mayor under the Revised Administrative Code has not been delegated by the Municipal Board of Manila but has been directly conferred by the State through its legislature.the permit is controlled and limited by the all important requirement of the same section that whatever his determination. so far as it is not plainly unconstitutional. control or limitation for. 63 Mich. 585. th ordinance can not be other than partial and discriminating in its practical operation.) This is not our case. ed. since the respondent Mayor neither denied not unwarrantedly abridged the right asserted by petitioner and his companions. 312 U.. the discretion of the City Mayor here is not unregulated. in the issuance of licenses. and is not a general measure to promote the public convenience in the use of the streets or parks" (83 Law. consideration being had of his grave responsibilities as the immediate keeper of peace and public order in the city. "A statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgement of the rights of assembly or of freedom of speech and press. The above rule means that if the control exerted does not deny or unwarrantedly abridge the right of assembly. but are required to exercise their discretion free from the improper or inappropriate consideration and from unfair discrimination. such control is legally valid." . for one who cannot even postpone the granting of such permit much less can altogether refuse it. S. On page 13 of the majority opinion there is aquotation of anothe passage from the case of Cox vs. addressed to petitioner and in his affidavit Annex 1. while in the instant case section 2434 (b)-(m) of the Revised Administrative Code is not solely aimed at prhibition of any particular act for it likewise provides permission. as already shown. and the spirit of our free institution violated. 569.). apart from being clearly distinguishable from the instant case as later demonstrated. 2 of the syllabus therein:. . then we would practically be denying the discretion of the proper official for it would be tantamount to compelling him to grant the permit outright. . 1436). Elsewhere in this dissent we quote from said documents textually. 83 Law." (Emphasis ours. the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. the licensing authorities are strictly limited. to a consideration of time. 1423. Hague vs. If the postponement of the granting of the permit should be taken as a denial of the right.. for the phrase "any good reason of general interest" is certainly an effective regulatory condition precedent to the exercise of the power one way or the other. "As regualtion of the use of the streets for parades or processions is a traditional exercise of control by local government. 496. It was further held in that case that where the granting of the permit is left to the unregulated discretion of a small body of city alderman. ed. of the parade or procession. and are not invested with arbitrary discretion to issue or refuse licenses. seem entirely well founded and well taken.. And just as certainly the reasons alleged by the respondent Mayor for his action stated in his letters dated November 15 and 17. where. with a view to conserving the public convenience and of affording an opportunity to provide proper policing. S. contains the passage quoted on page 7 of this dissent. Cox vs.subverted. This is precisely our case. which decidedly supports it. The distinction between that case and this is that there "the ordinance deals only with the exercise of the right of assembly for the purpose of communicating views entertained by speakers. place. and manner... State of New Hampshire. as the power of the Manila Mayor now under consideration is not at all arbitrary. 1947. which could necessarily mean that he can never refuse the permit. Committee for Industrial Organization. The case at bar is radically different for. as the statute is construed by the state courts. 95 Law. and in both cases is expressly aimed at promoting the "general interest. 1049.". ed. 307 U." (Emphasis ours. is equally in solid support of this dissent as appears from No. which says:. supra. New Hampshire. as between Hague vs. expresses the rule obtaining in the United States that the immunity from judicial control appertaining to the Office of the Governor of the State. "SEC. ha has the following to say on the unavailability of mandamus to compel the granting of licenses and permits by municipal officers:. or to the Presidency of the United States. one who seeks to compel a city to issue to him a permit for the erection of a buiding must show compliance with all valid requirements of the building ordinances and regulations. subscribed the opinion from which the majority here quote.please be advised that upon reading the metropolitan newspapers this morning wherein it appears that your meeting will be an indignation rally at which all the supposed election frauds allegedly perpetrated in many parts of the Philippines for the purpose of overriding the popular will. depart from this well established rule. (d) Mandamus unavailable. this office hereby revokes the said permit. The cases rarely... For example. however. State of New Hampshire) the decision was unanimous. Lastly. as mentioned. Revised. ". "The granting of licenses or permits by municipal or other public authorities.good reason of general interest. As already stated. supra." . 2nd ed.. Justices Roberts and Black. "It is believed that public peace and order in Manila will be undermined at the proposed rally considering the passions have not as yet subsided and tension remains high as an aftermath of the last political contest.In empowering and directing the City Mayor to grant or refuse permits "for any.. Mc Quillin on Municipal Cororations." the Revised Administrative Code plainly has in view only the common good and excludes all "improper or inappropriate considerations" and "unfair discrimination" in the exercise of the granted discretion. section 2728. while in the latter (Cox vs. p. . Volume 6. and hence..--If the issuance of the license or permit is discretionary with the officer or municipal board. All the court can do is to see that the licensing authorities have proceeded according to law. as said above. does not attach to the mayoralty of a city... 2728. especially where it is not alleged and shown that the exercise of such discretion was arbitrary.. Their decision will not be reviewed on its merits. To my mind. State of New Hampshire supra. negative all element of arbitrariness in his official action:..--. Where. the choice is obvious with regard to their authoritative force.. refusal to grant a license or to issue a permit. if ever. But on page 878. will be bared before the people. the fundamental condition is that the petition must show a clear legal right to the writ and a plain neglect of duty on the part of the public officer to perform the act sought to be enforced. section 2714. and in consequence in doubtful cases the judicial decisions uniformly disclose a denial of the remedy.. To compel the granting of licenses and permits.. 848. alleged by the respondent mayor. the following reasons. is arbitrary or capricious mandamus will lie to compel the appropriate official action. it is clear that it cannot be compelled by mandamus.. is usually regarded as a discretionary duty. ordinarily mandamus will not lie to compel them to grant a license or issue a permit to one claiming to be entitled thereto. Committee fro Industrial Organization. when it is considered that in the former out of the nine Justices of the United States Supreme Court two did not take part and of the seven who dis only two. and Cox vs. "According to the same newspapers, delegates from the provinces and students from local universities will particpate in the said rally which, in my opinion, would only precipitate trouble since no guarantee can be given that only the opposition elements will be there. The moment the crowd becomes mixed with people of different political colors which is most likely to happen, public order is exposed to danger once the people are incited, as they will be incited, considering the purposes for which the meeting will be held as reported in the newspapers above mentioned.. "...." (Mayor's letter dated November 15, 1947.). "I have the honor to acknowledge receipt of your letter of November 7, 1947, requesting for a permit to hold a public meeting at Plaza Miranda, Quiapo, on Saturday, November 22, 1947, for the purpose of denouncing the alleged fraudulent manner in which the last elections have been conducted and the alleged nationwide flagrant violation of the Election Law, and of seeking redress therefor. It is regretted that for the same reasons stated in my letter of November 15, 1947, your request can not be granted for the present. This Office has adopted the policy of not permitting meetings of this nature which are likely to incite the people and disrupt the peace until the results of the elections shall have been officially announced. After this announcement, requests similar to yours will be granted.. "...." (Mayor's letter dated November 17, 1947.). "That according to Congressman Primicias, the meeting will be an indignation rally for the purpose of denouncing the alleged fraudulent manner the said elections were conducted and the nationwide falgrant violations of the Election Law;. "2. That it is a fact that the returns of the last elections are still being recounted in the City of Manila in the Commission on Elections, and pending the final announcement of the results thereof, passions, especially on the part of the losing groups, remain bitter and high;. "3. That allusions have been made in the metropolitan newspapers that in the case of defeat, there will be minority resignations in Congress, rebellion and even revolution in the country;. "4. That I am sure that the crowd that will attend said meeting will be a multitude of people of different and varied political sentiments;. "5. ....... . "6. That judging from the tenor of the request for permit and taking into consideration the circumstances under which said meeting will be held, it is safe to state that once the people are gathered thereat are incited, there will surely be trouble between the opposing elements, commotion will follow, and then peace and order in Manila will be disrupted; and. "7. That the denial of said request for permit has been made for no other reasons except to perform my duty as Mayor of Manila to maintain and preserve peace and order in this City.. 8. That I have assured Congressman Primicias that immediately after the election returns shall have been officially announced, the Nacionalista Party or any party will be granted permit to hold meetings of indignation and to denounce alleged faruds." (Annex 1, Answer.). For these and other reasons which could be advanced in corroboration, I am of the considered opinion that the respondent Mayor had under the law the requisite discretion to grant or refuse the permit requested, and therefore to revoke that which had previously been granted, and that the reasons for such revocation alleged in his letters dated November 15 and 17, 1947, to petitioner and in his affidavit Annex 1 were amply sufficient to justify his last action. And be it distinctly observed that this last action was not an absolute denial of the permit, but a mere postponement of the time for holding the "rally" for good reasons "of general interest" in the words of section 2434 (b)-(m) of the Revised Admninistrative Code.. [G.R. No. 135981. January 15, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. MARIVIC GENOSA, appellant. DECISION PANGANIBAN, J.: Admitting she killed her husband, appellant anchors her prayer for acquittal on a novel theory -- the battered woman syndrome (BWS), which allegedly constitutes self-defense. Under the proven facts, however, she is not entitled to complete exoneration because there was no unlawful aggression -- no immediate and unexpected attack on her by her batterer-husband at the time she shot him. Absent unlawful aggression, there can be no self-defense, complete or incomplete. But all is not lost. The severe beatings repeatedly inflicted on appellant constituted a form of cumulative provocation that broke down her psychological resistance and self-control. This psychological paralysis she suffered diminished her will power, thereby entitling her to the mitigating factor under paragraphs 9 and 10 of Article 13 of the Revised Penal Code. In addition, appellant should also be credited with the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. The acute battering she suffered that fatal night in the hands of her batterer-spouse, in spite of the fact that she was eight months pregnant with their child, overwhelmed her and put her in the aforesaid emotional and mental state, which overcame her reason and impelled her to vindicate her life and her unborn childs. Considering the presence of these two mitigating circumstances arising from BWS, as well as the benefits of the Indeterminate Sentence Law, she may now apply for and be released from custody on parole, because she has already served the minimum period of her penalty while under detention during the pendency of this case. The Case For automatic review before this Court is the September 25, 1998 Decision[1] of the Regional Trial Court (RTC) of Ormoc City (Branch 35) in Criminal Case No. 5016-0, finding Marivic Genosa guilty beyond reasonable doubt of parricide. The decretal portion of the Decision reads: WHEREFORE, after all the foregoing being duly considered, the Court finds the accused, Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of Parricide as provided under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after finding treachery as a generic aggravating circumstance and none of mitigating circumstance, hereby sentences the accused with the penalty of DEATH. The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty thousand pesos (P50,000.00), Philippine currency as moral damages.[2] The Information[3] charged appellant with parricide as follows: That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel, Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her legitimate husband, with the use of a hard deadly weapon, which the accused had provided herself for the purpose, [causing] the following wounds, to wit: Cadaveric spasm. Body on the 2nd stage of decomposition. Face, black, blownup & swollen w/ evident post-mortem lividity. Eyes protruding from its sockets and tongue slightly protrudes out of the mouth. spontaneous rupture of the blood vessels on the posterior surface of the brain. appellant and Ben rented from Steban Matiga a house at Barangay Bilwang. waiting until 9:00 in the evening for the masiao runner to place a bet. When they arrived at the house of Ben. Leyte. Thereafter. Isabel. 1997. while Arturo went to a store across it. Arturo did not see appellant arrive but on his way home passing the side of the Genosas rented house. trunk w/ shedding of the epidermis.[4] With the assistance of her counsel. Abdomen distended w/ gas. They each had two (2) bottles of beer before heading home. The Facts Version of the Prosecution The Office of the Solicitor General (OSG) summarizes the prosecutions version of the facts in this wise: Appellant and Ben Genosa were united in marriage on November 19. Sometime in 1995. Trunk bloated. depressed. circular located at the occipital bone of the head. Arturo also noticed that since then. Leyte to look for him. they lived with the parents of Ben in their house at Isabel. he found out that appellant had gone to Isabel. On November 15. and his wife lived with them too. however. Blisters at both extrem[i]ties. Alex. which caused his death. she was tried for and convicted of parricide. he heard her say I wont hesitate to kill you to which Ben replied Why kill me when I am innocent? That was the last time Arturo saw Ben alive. anterior chest. Ben and Arturo Basobas went to a cockfight after receiving their salary. the Genosas rented house appeared uninhabited and was always closed. 1983 in Ormoc City. For a time. 1995. laceration of the dura and meningeal vessels producing severe intracranial hemorrhage. Arturo would pass Bens house before reaching his. Ben went inside his house. Fracture. resulting [in] laceration of the brain. .[6] In due course. Bens younger brother.[5] appellant pleaded not guilty during her arraignment on March 3. Leyte where they lived with their two children. namely: John Marben and Earl Pierre. posterior chest. open. in the morning of the same day. Joseph Valida was waiting for a bus going to Ormoc when he saw appellant going out of their house with her two kids in tow. Steban destroyed the gate padlock with a borrowed steel saw. Together with SPO1 Millares. SPO3 Acodesin proceeded to the house and went inside the bedroom where they found the dead body of Ben lying on his side wrapped with a bedsheet. SPO1 Colon. Steban went there to find out the cause of the stench but the house was locked from the inside. 1995. Leyte responsible for medico-legal cases. Steban went out of the house and sent word to the mother of Ben about his sons misfortune. There was blood at the nape of Ben who only had his briefs on.On November 16. about 12:15 in the afternoon. appellant asked Erlinda Paderog. her close friend and neighbor living about fifty (50) meters from her house. The bedroom was not in disarray. A municipal health officer at Isabel. Cerillo yielded the findings quoted in the Information for parricide . On November 18. SPO3 Leo Acodesin. He was only in his briefs with injuries at the back of his head. Alone. Cerillo in the presence of the police. He was able to get inside through the kitchen door but only after destroying a window to reach a hook that locked it. There. locking the gate and taking her children to the waiting area where he was. Dr. Since he did not have a duplicate key with him. Steban went inside the unlocked bedroom where the offensive smell was coming from. the neighbors of Steban Matiga told him about the foul odor emanating from his house being rented by Ben and appellant. Later that day. leaning against a wall. About 10:00 that same morning. It had an open end without a stop valve with a red stain at one end. received a report regarding the foul smell at the Genosas rented house. identified the dead body as that of [her] son. each one carrying a bag. Joseph lived about fifty (50) meters behind the Genosas rented house. Cerillo found that Ben had been dead for two to three days and his body was already decomposing. The metal pipe measured three (3) feet and six (6) inches long with a diameter of one and half (1 1/2) inches. 1995. The postmortem examination of Dr. the cadaver of Ben. then assigned at the police station at Isabel. and Dr. That same day. Iluminada Genosa. Joseph. had to be taken outside at the back of the house before the postmortem examination was conducted by Dr. They had no conversation as Joseph noticed that appellant did not want to talk to him. Meanwhile. the mother of Ben. Appellant likewise asked Erlinda to sell her motorcycle to their neighbor Ronnie Dayandayan who unfortunately had no money to buy it. appellant and her children rode the same bus to Ormoc. because of its stench. Leyte. SPO3 Acodesin found in one corner at the side of an aparador a metal pipe about two (2) meters from where Ben was. Refelina Cerillo. Seeing this. he saw the lifeless body of Ben lying on his side on the bed covered with a blanket. to look after her pig because she was going to Cebu for a pregnancy check-up. 1995. She concluded that the cause of Bens death was cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed fracture of the occipital [bone]. Marivic and Ben Genosa were allegedly married on November 19. but in the bedroom. They found Ben drunk upon their return at the Genosas house. obtaining a degree of Bachelor of Science in Business Administration. With her cousin Ecel Arao. At this point.later filed against appellant. Appellant testified that she was aware that there was a gun inside the drawer but since Ben did not have the key to it. She allegedly ignored him and instead attended to their children who were doing their homework. Cebu City. however. He did not die on the spot. She testified that going home after work on November 15. Appellant. Then. She fell on the side of the bed and screamed for help. and told her You might as well be killed so nobody would nag me. smashed the arm of Ben with a pipe. though. Ben was about to attack her so she ran to the bedroom. She supposedly distorted the drawer where the gun was and shot Ben. appellant went to look for Ben at the marketplace and taverns at Isabel. Appellant admitted killing Ben. Ben left. Marivic had graduated from San Carlos. with the use of a chopping knife. 1983. but he got hold of her hands and whirled her around. dragged appellant outside of the bedroom towards a drawer holding her by the neck. appellant packed his clothes because she wanted him to leave. insisted that she ended the life of her husband by shooting him. even challenging her to a fight. Apparently disappointed with her reaction. Ecel went home despite appellants request for her to sleep in their house. Ben purportedly nagged appellant for following him. Prior to her marriage.[7] (Citations omitted) Version of the Defense Appellant relates her version of the facts in this manner: 1. and was working. She thereafter ran inside the bedroom. Seeing his packed clothes upon his return home. causing him to drop the blade and his wallet. at the time of . Ben allegedly flew into a rage. she got worried that her husband who was not home yet might have gone gambling since it was a payday. Appellant then smashed Ben at his nape with the pipe as he was about to pick up the blade and his wallet. She however. Ben switched off the light and. cut the television antenna or wire to keep her from watching television. he got a three-inch long blade cutter from his wallet. Leyte but did not find him there. According to appellant. But apparently. they were classmates. Iluminada Genosa. 5. Bens brother. a co-worker of Ben. Iluminada Genosa said that after the birth of Marivics two sons. in Isabel. 1994. 3. Marivics mother-in-law. Both mother and son claimed they brought Ben to a Pasar clinic for medical intervention. 2. Mrs. Arturo Basobas. as a Secretary to the Port Managers in Ormoc City. Marivic would inflict injuries on him. The first was when Marivic stabbed Ben with a table knife through his left arm. saying that Ben and Marivic married in 1986 or 1985 more or less here in Fatima. Marivic left the house but after a week. Alex and his father apparently rushed to Bens aid again and saw blood from Bens forehead and Marivic holding an empty bottle. together with Bens brother. they lived first in the home of Bens parents. Ben and Marivic reconciled after Marivic had apparently again asked for Bens forgiveness. early morning. she returned apparently having asked for Bens forgiveness. and they were third degree cousins. Alex. and the third incident was in 1995 when the couple had already transferred to the house in Bilwang and she saw that Bens hand was plastered as the bone cracked. after which they went to Uniloks and drank beer allegedly only . Both sets of parents were against their relationship. He said that in one incident in 1993 he saw Marivic holding a kitchen knife after Ben had shouted for help as his left hand was covered with blood. They stayed there for three (3) hours. She said as the marriage went along. testified that on November 15. Alex. After their marriage.her husbands death. there were three (3) misunderstandings. He said that when Ben and Marivic quarreled. Marivic and Ben had known each other since elementary school. Ormoc City. Mrs. testified too. The couple had three (3) children: John Marben. It was wounded and also the ear and her husband went to Ben to help. 4. 1994. the couple would quarrel often and their fights would become violent. In another incident in May 22. soon thereafter. Earl Pierre and Marie Bianca. generally when Ben would come home drunk. they were neighbors in Bilwang. Their closeness developed as he was her constant partner at fiestas. Marivic and Ben lived happily. but Ben was persistent and tried to stop other suitors from courting her. Leyte. 1995 After we collected our salary. the second incident was on November 15. In the first year of marriage. when Marivic struck Ben on the forehead using a sharp instrument until the eye was also affected. Marivic became already very demanding. we went to the cock-fighting place of ISCO. testified for the prosecution that he could not remember when Ben and Marivic married. (Please note this was the same night as that testified to by Arturo Busabos. conveniently overheard by him was Marivic saying I will never hesitate to kill you. at least three times a week. Marivic was shouting for help and through the open jalousies. Basobas admitted that he and Ben were always at the cockpits every Saturday and Sunday. He claims that he once told Ben before when he was stricken with a bottle by Marivic Genosa that he should leave her and that Ben would always take her back after she would leave him so many times. He stayed a while talking with Ben. Basobas testimony on the root of the quarrel. In her defense. promising to change and would ask for her forgiveness. He had known the couple for only one (1) year. he saw the spouses grappling with each other. but Ben would follow her and seek her out. the hearing on masiao numbers was rampant. but had come voluntarily to testify. whilst Ben replied Why kill me when I am innocent. Ben became cruel to her and was a habitual drinker. 7. These incidents happened several times and she would often run home to her parents. testified that on November 15. a fisherman. he overheard a quarrel between Ben and Marivic. They were quarreling loudly. Outside their house was one Fredo who is used by Ben to feed his fighting cocks. who was a [neighbor] of the Genosas. Lucero and Dra. she would seek medical help from Dr. After drinking they bought barbeque and went to the Genosa residence. 1995. These doctors would enter the injuries inflicted upon her by Ben into their reports.two (2) bottles each. testified as to the abuse and violence she received at the hands of Ben. Dr. after which he went across the road to wait for the runner and the usher of the masiao game because during that time. Mr. He did not do anything. Marivic said Ben would beat her or quarrel with her every time he was drunk. 6. he would slap her. sometimes he would pin her down on the bed. He did not hear them quarreling while he was across the road from the Genosa residence. 7.[8]) . Joe Barrientos. witnesses who were not so closely related to Marivic. he heard the Genosas arguing. Marivic was not there.1. Ben had Marivic in a choke hold. Basobas could not remember when Marivic had hit Ben. She said after she would be beaten. Dino Caing. Basobas thought they were joking. Cerillo. Marivic testified that after the first year of marriage. and sometimes beat her. He said Ben even had a wound on the right forehead. but it was a long time that they had been quarreling. She said he provoked her. I was waiting for the ushers and runners so that I can place my bet. On his way home at about 9:00 in the evening. After that. and the brother of Mr. he went back to work as he was to go fishing that evening. Sarabia also said that once he saw Ben had been injured too. He testified that while Ben was alive he used to gamble and when he became drunk. Marivic entered the house and she heard them quarrel noisily. Ben was so angry. also a fisherman. When they got to the Genosa house at about 7:00 in the evening. she was awakened at 10:00 in the evening when Ben arrived because the couple were very noisy in the sala and I had heard something was broken like a vase. 7. Mr. but no one came. One time. Marivic is his niece and he knew them to be living together for 13 or 14 years. She said Marivic ran into her room and they locked the door.4. please note that this is the same night as that testified to by Arturo Basobas) Miss Arano testified that this was not the first time Marivic had asked her to sleep in the house as Marivic would be afraid every time her husband would come home drunk. He returned at 8:00 the next morning. He said after a while. On cross- . Sarabia further testified that Ben would box his wife and I would see bruises and one time she ran to me. I noticed a wound (the witness pointed to his right breast) as according to her a knife was stricken to her. At one time when she did sleep over.7. but could not find him. Marivic went to her house and asked her help to look for Ben. testified that he heard his neighbor Marivic shouting on the night of November 15. testified that in the afternoon of November 15. Mr. he would go to our house and he will say. but would be pacified if somebody would come. mokimas ta. please note that this was the same night as that testified to by Arturo Basobas). Marivic was able to extricate he[r]self and enter the room of the children. He peeped through the window of his hut which is located beside the Genosa house and saw the spouses grappling with each other then Ben Genosa was holding with his both hands the neck of the accused. He said he voluntarily testified only that morning. They searched in the market place. Junnie Barrientos. (Again. She accompanied Marivic home. When Ben couldnt get in he got a chair and a knife and showed us the knife through the window grill and he scared us. Marivic Genosa. 1995. Mr. an 18-year old student. which means lets go and look for a whore. who is a cousin of Marivic. His house was located about fifty (50) meters from theirs. He said the couple was always quarreling. She said that Marivic shouted for help. he went to their house and they were quarreling. Miss Ecel Arano. Miss Arano knew he was drunk because of his staggering walking and I can also detect his face.2. 7. Teodoro Sarabia was a former neighbor of the Genosas while they were living in Isabel. several taverns and some other places. 1995. Marivic wanted her to sleep with her in the Genosa house because she might be battered by her husband. Marivic confided in him that Ben would pawn items and then would use the money to gamble. Joe Barrientos. Miss Arano said that her husband was already there and was drunk. Teody because that was what he used to call me.3. (Again. Mr. Leyte. 7. 1995. and the baby was born prematurely on December 1. the barangay captain in the place where the Genosas resided. there were six (6) episodes of physical injuries inflicted upon Marivic. Marivic had to be admitted later at the Rizal Medical Centre as she was suffering from eclampsia and hypertension. Caing said that he is not a psychiatrist. These injuries were reported in his Out-Patient Chart at the PHILPHOS Hospital. He told Marivic to return in the morning. the couple were still quarreling. but that Ben would always follow her and they would reconcile. Marivic said she was frightened that her husband would hurt her and she wanted to make sure she would deliver her baby safely. She sought his help to settle or confront the Genosa couple who were experiencing family troubles. Marivic went to his office past 8:00 in the evening. Dr.5. whether she is capable of committing a crime or not. The OPD Chart of Marivic at the Philphos Clinic which reflected all the consultations made by Marivic and the six (6) incidents of physical injuries reported was marked as Exhibit 3. 7. 1995. Marivic testified that during her marriage she had tried to leave her husband at least five (5) times. In fact. Isabel. he could not say whether the injuries were directly related to the crime committed. she said that when she left Marivics house on November 15. Dino Caing. The prosecution admitted the qualifications of Dr. Caing and considered him an expert witness. xxxxxxxxx Dr. a physician testified that he and Marivic were co-employees at PHILPHOS.examination. testified that about two (2) months before Ben died. . xxxxxxxxx Marivic said she did not provoke her husband when she got home that night it was her husband who began the provocation. Leyte. Dr. 1995.6 Mr. Dr. Caings clinical history of the tension headache and hypertention of Marivic on twenty-three (23) separate occasions was marked at Exhibits 2 and 2-B. On cross-examination. 1989 until November 9. but he did not hear from her again and assumed that they might have settled with each other or they might have forgiven with each other. Panfilo Tero. He said it is only a psychiatrist who is qualified to examine the psychological make-up of the patient. Caing testified that from July 6. Marivic was his patient many times and had also received treatment from other doctors. she saw some police officer and neighbor around. Cerillo. and that she was arrested in San Pablo. a physician. unlawfully and feloniously attack. filed against Marivic Genosa charged her with the crime of PARRICIDE committed with intent to kill. covered by a blanket. that their quarrels could be heard by anyone passing their house. Ben had been dead 2 or 3 days. 1995. The body of Ben Genosa was found on November 18. x x x wilfully. The Information. that she did not bother anyone in Manila. This fact was testified to by all the prosecution witnesses and some defense witnesses during the trial. that she was wounded by Ben on her wrist with the bolo. dated November 14. was the Municipal Health Officer of Isabel. she did not tell anyone that she was leaving Leyte. he kicked her ass and dragged her towards the drawer when he saw that she had packed his things. Cerillo said that there is only one injury and that is the injury involving the skeletal area of the head which she described as a fracture. that Basobas lied in his testimony. hit . and got herself a job as a field researcher under the alias Marvelous Isidro. Dra. that she did not know what happened to the pipe she used to smash him once. 10. she just wanted to have a safe delivery of her baby. She merely took the medical board exams and passed in 1986. Answering questions from the Court. Marivic insisted she shot Ben with a gun. rented herself a room. Cerillo was not cross-examined by defense counsel.Marivic said that the reason why Ben was violent and abusive towards her that night was because he was crazy about his recent girlfriend. Laguna. Dra. Refelina Y. lying in a semi-prone position with his back to the door. and among her responsibilities as such was to take charge of all medico-legal cases. 11. And that based on her examination. Marivic said that she threw the gun away. and that two (2) hours after she was whirled by Ben. 9. 1995 after an investigation was made of the foul odor emitting from the Genosa residence. assault. November 16. she said that he died in the bedroom. Lulu x x x Rubillos. xxxxxxxxx Dra. On cross-examination. She was called by the police to go to the Genosa residence and when she got there. She saw Ben Genosa. He was wearing only a brief. Cerillo is not a forensic pathologist. that she left for Manila the next day. with treachery and evidence premeditation. Leyte at the time of the incident. Cerillo did not testify as to what caused his death. such as the examination of cadavers and the autopsy of cadavers. 1996. Dra. Dra. and wound x x x her legitimate husband, with the use of a hard deadly weapon x x x which caused his death. 12. Trial took place on 7 and 14 April 1997, 14 May 1997, 21 July 1997, 17, 22 and 23 September 1997, 12 November 1997, 15 and 16 December 1997, 22 May 1998, and 5 and 6 August 1998. 13. On 23 September 1998, or only fifty (50) days from the day of the last trial date, the Hon. Fortunito L. Madrona, Presiding Judge, RTC-Branch 35, Ormoc City, rendered a JUDGMENT finding Marivic guilty beyond reasonable doubt of the crime of parricide, and further found treachery as an aggravating circumstance, thus sentencing her to the ultimate penalty of DEATH. 14. The case was elevated to this Honorable Court upon automatic review and, under date of 24 January 2000, Marivics trial lawyer, Atty. Gil Marvel P. Tabucanon, filed a Motion to Withdraw as counsel, attaching thereto, as a precautionary measure, two (2) drafts of Appellants Briefs he had prepared for Marivic which, for reasons of her own, were not conformed to by her. The Honorable Court allowed the withdrawal of Atty. Tabucanon and permitted the entry of appearance of undersigned counsel. 15. Without the knowledge of counsel, Marivic Genosa wrote a letter dated 20 January 2000, to the Chief Justice, coursing the same through Atty. Teresita G. Dimaisip, Deputy Clerk of Court of Chief Judicial Records Office, wherein she submitted her Brief without counsels to the Court. This letter was stamp-received by the Honorable Court on 4 February 2000. 16. In the meantime, under date of 17 February 2000, and stamp-received by the Honorable Court on 19 February 2000, undersigned counsel filed an URGENT OMNIBUS MOTION praying that the Honorable Court allow the exhumation of Ben Genosa and the re-examination of the cause of his death; allow the examination of Marivic Genosa by qualified psychologists and psychiatrists to determine her state of mind at the time she killed her husband; and finally, to allow a partial re-opening of the case a quo to take the testimony of said psychologists and psychiatrists. Attached to the URGENT OMNIBUS MOTION was a letter of Dr. Raquel Fortun, then the only qualified forensic pathologist in the country, who opined that the description of the death wound (as culled from the post-mortem findings, Exhibit A) is more akin to a gunshot wound than a beating with a lead pipe. 17. In a RESOLUTION dated 29 September 2000, the Honorable Court partly granted Marivics URGENT OMNIBUS MOTION and remanded the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea, within ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings taken, together with the copies of the TSN and relevant documentary evidence, if any, submitted. 18. On 15 January 2001, Dra. Natividad A. Dayan appeared and testified before the Hon. Fortunito L. Madrona, RTC-Branch 35, Ormoc City. Immediately before Dra. Dayan was sworn, the Court a quo asked if she had interviewed Marivic Genosa. Dra. Dayan informed the Court that interviews were done at the Penal Institution in 1999, but that the clinical interviews and psychological assessment were done at her clinic. Dra. Dayan testified that she has been a clinical psychologist for twenty (20) years with her own private clinic and connected presently to the De La Salle University as a professor. Before this, she was the Head of the Psychology Department of the Assumption College; a member of the faculty of Psychology at the Ateneo de Manila University and St. Josephs College; and was the counseling psychologist of the National Defense College. She has an AB in Psychology from the University of the Philippines, a Master of Arts in Clinical [Counseling], Psychology from the Ateneo, and a PhD from the U.P. She was the past president of the Psychological Association of the Philippines and is a member of the American Psychological Association. She is the secretary of the International Council of Psychologists from about 68 countries; a member of the Forensic Psychology Association; and a member of the ASEAN [Counseling] Association. She is actively involved with the Philippine Judicial Academy, recently lecturing on the socio-demographic and psychological profile of families involved in domestic violence and nullity cases. She was with the Davide Commission doing research about Military Psychology. She has written a book entitled Energy Global Psychology (together with Drs. Allan Tan and Allan Bernardo). The Genosa case is the first time she has testified as an expert on battered women as this is the first case of that nature. Dra. Dayan testified that for the research she conducted, on the socio-demographic and psychological profile of families involved in domestic violence, and nullity cases, she looked at about 500 cases over a period of ten (10) years and discovered that there are lots of variables that cause all of this marital conflicts, from domestic violence to infidelity, to psychiatric disorder. Dra. Dayan described domestic violence to comprise of a lot of incidents of psychological abuse, verbal abuse, and emotional abuse to physical abuse and also sexual abuse. xxxxxxxxx Dra. Dayan testified that in her studies, the battered woman usually has a very low opinion of herself. She has a self-defeating and self-sacrificing characteristics. x x x they usually think very lowly of themselves and so when the violence would happen, they usually think that they provoke it, that they were the one who precipitated the violence, they provoke their spouse to be physically, verbally and even sexually abusive to them. Dra. Dayan said that usually a battered x x x comes from a dysfunctional family or from broken homes. Dra. Dayan said that the batterer, just like the battered woman, also has a very low opinion of himself. But then emerges to have superiority complex and it comes out as being very arrogant, very hostile, very aggressive and very angry. They also had (sic) a very low tolerance for frustrations. A lot of times they are involved in vices like gambling, drinking and drugs. And they become violent. The batterer also usually comes from a dysfunctional family which over-pampers them and makes them feel entitled to do anything. Also, they see often how their parents abused each other so there is a lot of modeling of aggression in the family. Dra. Dayan testified that there are a lot of reasons why a battered woman does not leave her husband: poverty, self-blame and guilt that she provoked the violence, the cycle itself which makes her hope her husband will change, the belief in her obligations to keep the family intact at all costs for the sake of the children. xxxxxxxxx Dra. Dayan said that abused wives react differently to the violence: some leave the house, or lock themselves in another room, or sometimes try to fight back triggering physical violence on both of them. She said that in a normal marital relationship, abuses also happen, but these are not consistent, not chronic, are not happening day in [and] day out. In an abnormal marital relationship, the abuse occurs day in and day out, is long lasting and even would cause hospitalization on the victim and even death on the victim. xxxxxxxxx Dra. Dayan said that as a result of the battery of psychological tests she administered, it was her opinion that Marivic fits the profile of a battered woman because inspite of and the Philippine Association of Military Surgeons. Dr. on an E. Squibb grant. the Cagayan Medical Society. On 9 February 2001. After that. he obtained the rank of Brigadier General. Dr. and he published the use of the drug Zopiclom in 1985-86. He authored The Comparative Analysis of Nervous Breakdown in the Philippine Military Academy from the Period 1954 1978 which was presented twice in international congresses. It was at the time of the tragedy that Marivic then thought of herself as a victim. is a bachelor degree and a doctorate degree. Pajarillo explained that psychiatry deals with the functional disorder of the mind and neurology deals with the ailment of the brain and spinal cord enlarged. Ormoc City. the Quezon City Medical Society. while one has to finish medicine to become a specialist in psychiatry. He also authored The Mental Health of the Armed Forces of the Philippines 2000. Luna Medical Center for twenty six (26) years. such feelings of humiliation which she sees herself as damaged and as a broken person. he was called to active duty in the Armed Forces of the Philippines. He was in the practice of psychiatry for thirty-eight (38) years. He was also a member of the World Association of Military Surgeons. xxxxxxxxx Dra. Pajarillo was a Diplomate of the Philippine Board of Psychiatry. appeared and testified before RTC-Branch 35. Dr. Prior to his retirement from government service. on the other hand. Alfredo Pajarillo. a physician. Psychology. And at the same time she still has the imprint of all the abuses that she had experienced in the past. Dayan said Marivic thought of herself as a loving wife and did not even consider filing for nullity or legal separation inspite of the abuses. which was likewise published internationally and locally. He obtained his medical degree from the University of Santo Tomas. was the first to use Enanthate (siquiline). xxxxxxxxx 19. . He had a medical textbook published on the use of Prasepam on a Parke-Davis grant. a Fellow of the Philippine Board of Psychiatry and a Fellow of the Philippine Psychiatry Association.R.her feeling of self-confidence which we can see at times there are really feeling (sic) of loss. who has since passed away. assigned to the V. he was connected with the Veterans Memorial Medical Centre where he gained his training on psychiatry and neurology. Prior to being in private practice. In those days. In the Armed Forces of the Philippines. xxxxxxxxx A woman who suffers battery has a tendency to become neurotic. He is very competitive. violent family disputes abound. the primordial intention of therapy was reconciliation. Dr. xxxxxxxxx . pushing. he normally internalizes what is around him within the environment. and he has seen probably ten to twenty thousand cases. the victim relives the beating or trauma as if it were real. verbal abuse. he had seen around forty (40) cases of severe domestic violence. trauma. he became a consultant of the Battered Woman Office in Quezon City under Atty. As a result of his experience with domestic violence cases. The affliction of Post-Traumatic Stress Disorder depends on the vulnerability of the victim. xxxxxxxxx Dr. And it becomes his own personality. Pajarillo explained that with neurotic anxiety.Even only in his 7th year as a resident in V. although she is not actually being beaten at that time. he shows his strong faade but in it there are doubts in himself and prone to act without thinking. In psychiatry. if the psychological stamina and physiologic constitutional stamina of the victim is stronger. Luna Medical Centre. As such consultant. Nenita Deproza. It is produced by overwhelming brutality. her emotional tone is unstable. Dr. and she is irritable and restless. As to the batterer. Pajarillo said that if the victim is not very healthy. Pajarillo had already encountered a suit involving violent family relations. She thinks of nothing but the suffering. the post-traumatic stress disorder is incorporated under the anxiety neurosis or neurologic anxcietism. Pajarillo said that an abnormal family background relates to an individuals illness. it will take more repetitive trauma to precipitate the post-traumatic stress disorder and this x x x is very dangerous. She has higher sensitivity and her self-world is damaged. and testified in a case in 1964. Dr. battering and boxing a woman even to an unconscious state such that the woman is sometimes confined. where there is physical abuse: such as slapping. such as the deprivation of the continuous care and love of the parents. She tends to become hard-headed and persistent. perhaps one episode of violence may induce the disorder. he is aiming high all the time. he is so macho. [9] Ruling of the Trial Court Finding the proffered theory of self-defense untenable. He came out with a Psychiatric Report. It will just come up in her mind or in his mind. dated 22 January 2001. He used the psychological evaluation and social case studies as a help in forming his diagnosis. xxxxxxxxx Dr. He said that we are trying to explain scientifically that the re-experiencing of the trauma is not controlled by Marivic. Thus. xxxxxxxxx On cross-examination by the private prosecutor. Pajarillo testified that he met Marivic Genosa in his office in an interview he conducted for two (2) hours and seventeen (17) minutes. and primarily with knives. At the time he interviewed Marivic she was more subdued. she was not super alert anymore x x x she is mentally stress (sic) because of the predicament she is involved. Pajarillo said that a woman suffering post traumatic stress disorder try to defend themselves. Pajarillo said that at the time she killed her husband Marivicc mental condition was that she was re-experiencing the trauma. He said a victim resorts to weapons when she has reached the lowest rock bottom of her life and there is no other recourse left on her but to act decisively. xxxxxxxxx Dr. No rebuttal evidence or testimony was presented by either the private or the public prosecutor. Usually pointed weapons or any weapon that is available in the immediate surrounding or in a hospital x x x because that abound in the household. It will just come in flashes and probably at that point in time that things happened when the re-experiencing of the trauma flashed in her mind. the records of the partially re-opened trial a quo were elevated. xxxxxxxxx 20.Dr. Dr. in accord with the Resolution of this Honorable Court. Pajarillo emphasized that even though without the presence of the precipator (sic) or the one who administered the battering. the RTC gave credence to the prosecution evidence that appellant had killed the deceased . that re-experiencing of the trauma occurred (sic) because the individual cannot control it. Drs.[11] supposedly experts on domestic violence. [12] The Issues Appellant assigns the following alleged errors of the trial court for this Courts consideration: 1. were then presented to and admitted by the lower court before finally being submitted to this Court to form part of the records of the case. Natividad Dayan [10] and Alfredo Pajarillo. appellant filed an Urgent Omnibus Motion praying that this Court allow (1) the exhumation of Ben Genosa and the reexamination of the cause of his death. the trial judge authorized the examination of Marivic by two clinical psychologists. and (3) the inclusion of the said experts reports in the records of the case for purposes of the automatic review or.while he was in bed sleeping. 2000. (2) the examination of appellant by qualified psychologists and psychiatrists to determine her state of mind at the time she had killed her spouse.lying in bed asleep when Marivic smashed him with a pipe at the back of his head. Supervening Circumstances On February 19. and requiring the lower court to report thereafter to this Court the proceedings taken as well as to submit copies of the TSN and additional evidence. if any. remanding the case to the trial court for the reception of expert psychological and/or psychiatric opinion on the battered woman syndrome plea. this Court issued a Resolution granting in part appellants Motion. 2000. Further. Acting on the Courts Resolution. On September 29. in the alternative. a partial reopening of the case for the lower court to admit the experts testimonies. Their testimonies. The trial court gravely erred in promulgating an obviously hasty decision without reflecting on the evidence adduced as to self-defense. . The capital penalty having been imposed. along with their documentary evidence. the case was elevated to this Court for automatic review. the trial court appreciated the generic aggravating circumstance of treachery. because Ben Genosa was supposedly defenseless when he was killed -. As consistently held by this Court. instead of a clear attempt to save the life of her unborn child.[13] In the main. The trial court gravely erred in concluding that Marivics flight to Manila and her subsequent apologies were indicia of guilt. a gambler. The trial court gravely erred finding the cause of death to be by beating with a pipe. The trial court gravely erred in refusing to re-evaluate the traditional elements in determining the existence of self-defense and defense of foetus in this case. The trial court gravely erred in not requiring testimony from the children of Marivic Genosa. the findings of the trial court on the credibility of witnesses and their testimonies are entitled to a high degree of respect and will not be disturbed . 8. 7. and (2) whether treachery attended the killing of Ben Genosa. The Courts Ruling The appeal is partly meritorious. 4. 3. if not collateral to the resolution of the principal issues. Collateral Factual Issues The first six assigned errors raised by appellant are factual in nature. and further gravely erred in concluding that Ben Genosa was a battered husband. 6. The trial court gravely erred in ignoring and disregarding evidence adduced from impartial and unbiased witnesses that Ben Genosa was a drunk. thereby erroneously convicting Marivic Genosa of the crime of parricide and condemning her to the ultimate penalty of death. a womanizer and wife-beater. 5. The trial court gravely erred in finding as a fact that Ben and Marivic Genosa were legally married and that she was therefore liable for parricide. the following are the essential legal issues: (1) whether appellant acted in self-defense and in defense of her fetus. The trial court gravely erred in concluding that there was an aggravating circumstance of treachery. 2. we will now briefly dispose of these alleged errors of the trial court. Neither do we find the appealed Decision to have been made in an obviously hasty manner.attested in court that Ben had been married to Marivic. Thereafter. despite the non-presentation of their marriage contract. In any event.[17] The defense raised no objection to these testimonies. we find no grave abuse of discretion. we do not agree that the lower court promulgated an obviously hasty decision without reflecting on the evidence adduced as to self-defense. Madrona summarized the testimonies of both the prosecution and the defense witnesses and -. That he conducted the trial and resolved the case with dispatch should not be taken against him. He wrote a 3-page discourse assessing the testimony and the self-defense theory of the accused. absent substantial evidence. Two of the prosecution witnesses -. the mother and the brother of appellants deceased spouse -. It took the trial judge about two months from the conclusion of trial to promulgate his judgment. findings and conclusions.namely.[16] this Court held: The key element in parricide is the relationship of the offender with the victim. Judge Fortunito L. Malabago. much less used to condemn him for being unduly hasty. the dispatch with which he handled the case should be lauded. First. Moreover.on appeal in the absence of any showing that the trial judge gravely abused his discretion or overlooked. In the absence of a marriage certificate.[14] In appellants first six assigned items. however. 1996. the best proof of the relationship between the accused and the deceased is the marriage certificate. we cannot peremptorily conclude. trial began and at least 13 hearings were held for over a year. misunderstood or misapplied material facts or circumstances of weight and substance that could affect the outcome of the case. oral evidence of the fact of marriage may be considered by the trial court if such proof is not objected to. In the case of parricide of a spouse. While she. In People v. may not agree with the trial judges conclusions. the lower court did not err in finding as a fact that Ben Genosa and appellant had been legally married. We note that in his 17-page Decision. The Information had been filed with the lower court on November 14. .made his evaluation. In any case. we find his actions in substantial compliance with his constitutional obligation.[15] Second. that he failed to reflect on the evidence presented. reversible error or misappreciation of material facts that would reverse or modify the trial courts disposition of the case.on the basis of those and of the documentary evidence on record -. or even this Court. If at all. Third. Fourth. Her theory of self-defense was then the crucial issue before the trial court. the defense offered no proof that the admission made by appellant in court as to the fact of her marriage to the deceased was made through a palpable mistake. merely collateral or corroborative is the matter of whether the flight of Marivic to Manila and her subsequent apologies to her brother-in-law are indicia of her guilt or are attempts to save the life of her unborn child. 2000 Resolution. the legal requisites of self-defense under prevailing jurisprudence ostensibly appear inconsistent with the surrounding facts that led to the death of the victim. As the Court elucidated in its September 29. the specific or direct cause of Bens death -. As correctly elucidated by the solicitor general. for which such evidence may have been relevant.[18] Axiomatic is the rule that a judicial admission is conclusive upon the party making it. womanizer and wife-beater.[20] As the former further points out. Hence. if not immaterial. except only when there is a showing that (1) the admission was made through a palpable mistake. Until this case came to us for automatic review. we cannot fault the trial court for not fully appreciating evidence that Ben was a drunk.whether by a gunshot or by beating with a pipe -. Any reversible error as to the trial courts appreciation of these circumstances has little bearing on the final resolution of the case. appellant herself made a judicial admission of her marriage to Ben. did not constitute vital evidence at the time. neither the trial court nor the prosecution prevented appellant from presenting her children as witnesses. in whom lies the discretion to determine which witnesses and evidence are necessary to present. Finally. to determine which of said acts actually caused the victims death. she cannot now fault the lower court for not requiring them to testify. As will be discussed shortly.[19] Other than merely attacking the non-presentation of the marriage contract.during her direct examination. or (2) no admission was in fact made. Thus.has no legal consequence. under the circumstances of this case. gambler. Fifth. Determining which of these admitted acts caused the death is not dispositive of the guilt or defense of appellant. [c]onsidering that the appellant has admitted the fact of killing her husband and the acts of hitting his nape with a metal pipe and of shooting him at the back of his head. all criminal actions are prosecuted under the direction and control of the public prosecutor. . the trial court surely committed no error in not requiring testimony from appellants children. his personal character. the Court believes that exhumation is unnecessary. especially his past behavior. appellant had not raised the novel defense of battered woman syndrome. the battered woman syndrome is characterized by the so-called cycle of violence.[26] More graphically. traditional beliefs about the home.[23] By appreciating evidence that a victim or defendant is afflicted with the syndrome. such as low self- esteem. emotional dependence upon the dominant male. and she remains in the situation. Battered women include wives or women in any form of intimate relationship with men. invokes self-defense and/or defense of her unborn child. (2) the acute battering incident. the concept has been recognized in foreign jurisdictions as a form of self-defense or. in order to be classified as a battered woman. loving (or. the family and the female sex role.[22] The Battered Woman Syndrome In claiming self-defense. and false hopes that the relationship will improve. the tendency to accept responsibility for the batterers actions. it is incumbent upon her to prove any claimed justifying circumstance by clear and convincing evidence. First Legal Issue: Self-Defense and Defense of a Fetus Appellant admits killing Ben Genosa but. nonviolent) phase.[25] Battered women exhibit common personality traits. foreign courts convey their understanding of the justifiably fearful state of mind of a person who has been cyclically abused and controlled over a period of time. at the least. When the accused admits killing the victim. and (3) the tranquil. While new in Philippine jurisprudence.[24] A battered woman has been defined as a woman who is repeatedly subjected to any forceful physical or psychological behavior by a man in order to coerce her to do something he wants her to do without concern for her rights. self-defense (and similarly. to avoid criminal liability.[27] which has three phases: (1) the tension-building phase. at least. appellant raises the novel theory of the battered woman syndrome.[21] Well-settled is the rule that in criminal cases. Any woman may find herself in an abusive relationship with a man once. she is defined as a battered woman.[28] . defense of a stranger or third person) shifts the burden of proof from the prosecution to the defense. Furthermore. incomplete self-defense. the couple must go through the battering cycle at least twice. If it occurs a second time. minor battering occurs -. and that resistance would only exacerbate her condition. destructiveness and. the batterer may show a tender and nurturing behavior towards his partner. Acute battering incidents are often very savage and out of control. Exhausted from the persistent stress.it could be verbal or slight physical abuse or another form of hostile behavior. All she wants is to prevent the escalation of the violence exhibited by the batterer. at some unpredictable point. On the one hand. nurturing behavior. begging for her forgiveness and promising never to beat her again. the battered woman soon withdraws emotionally. Often. only the batterer may put an end to the violence. Each partner senses the imminent loss of control and the growing tension and despair. This wish. death. oppressive and abusive. the techniques adopted by the woman in her effort to placate him are not usually successful.[30] The final phase of the cycle of violence begins when the acute battering incident ends. that her partner will change . because her placatory and passive behavior legitimizes his belief that he has the right to abuse her in the first place. proves to be double-edged. Her apparent passivity in the face of acute violence may be rationalized thus: the batterer is almost always much stronger physically. or by simply staying out of his way. although she may later clearly remember every detail. However. the more the batterer becomes angry. But the more she becomes emotionally unavailable. yet also inevitable. During the tension-building phase. the couple experience profound relief. During this tranquil period. and she knows from her past painful experience that it is futile to fight back. On the other hand. and so are his reasons for ending it. are comparatively minor. the battered woman also tries to convince herself that the battery will never happen again. The battered woman deems this incident as unpredictable. however. she has no control. During this phase.[29] The acute battering incident is said to be characterized by brutality. and the verbal and/or physical abuse worsens. He knows that he has been viciously cruel and tries to make up for it. to her. The woman usually tries to pacify the batterer through a show of kind. such that innocent bystanders or intervenors are likely to get hurt. sometimes. The battered woman usually realizes that she cannot reason with him. At this stage. What actually happens is that she allows herself to be abused in ways that. she has a sense of detachment from the attack and the terrible pain. the violence spirals out of control and leads to an acute battering incident. Its nature can be as unpredictable as the time of its explosion. after that he sought after me. In this phase. it is in this phase of remorseful reconciliation that she is most thoroughly tormented psychologically. Underneath this miserable cycle of tension. he for her forgiveness. gentle and caring man is the real person whom she loves. she and her batterer are indeed emotionally dependent on each other -.for the better. I lived with him happily but in the subsequent year he was cruel to me and a behavior of habitual drinker. A battered woman usually believes that she is the sole anchor of the emotional stability of the batterer. and that this good. he always slap me and sometimes he pinned me down on the bed and sometimes beat me. In what way was this abusive and cruelty manifested to you? A He always provoke me in everything. Q How many times did this happen? A Several times already. only after she leaves him does he seek professional help as a way of getting her back. TABUCANON Q How did you describe your marriage with Ben Genosa? A In the first year. are very slim.she for his nurturant behavior. The illusion of absolute interdependency is well-entrenched in a battered womans psyche. The truth. the defense presented several witnesses. she feels responsible for his well-being. or seeking or receiving professional help. violence and forgiveness. Q You said that in the subsequent year of your marriage. your husband was abusive to you and cruel. especially if she remains with him. Generally. each partner may believe that it is better to die than to be separated. She herself described her heart-rending experience as follows: ATTY. Neither one may really feel independent. . Sensing his isolation and despair. capable of functioning without the other. Q What did you do when these things happen to you? A I went away to my mother and I ran to my father and we separate each other.[31] History of Abuse in the Present Case To show the history of violence inflicted upon appellant. is that the chances of his reforming. Yet. Q What was the action of Ben Genosa towards you leaving home? A He is following me. though. . from the time that you said the cruelty or the infliction of injury inflicted on your occurred. Dr. Q No. Caing bolstered her foregoing testimony on chronic battery in this manner: Q So. sir. Dr. Q Who are these doctors? A The company physician. Q Do you mean three times a week he would beat you? A Not necessarily that he would beat me but sometimes he will just quarrel me. sir. Dino Caing. xxxxxxxxx Q You said that you saw a doctor in relation to your injuries? A Yes. Q What will happen when he follow you? A He said he changed. xxxxxxxxx [Court] /to the witness Q How frequent was the alleged cruelty that you said? A Everytime he got drunk. how frequent was the occurrence? A Everytime he got drunk. sir. [32] Referring to his Out-Patient Chart[33] on Marivic Genosa at the Philphos Hospital. Cerillo. Dino D. he asked for forgiveness and I was convinced and after that I go to him and he said sorry. do you have a summary of those six (6) incidents which are found in the chart of your clinic? A Yes. from that time on. monthly or how many times in a month or in a week? A Three times a week. Q Is it daily. were you able to see a doctor? A Yes. Dr. sir. Lucero and Dra. Q You mean Ben Genosa? A Yes. Q During those times that you were the recipient of such cruelty and abusive behavior by your husband. Q Who inflicted these injuries? A Of course my husband. after your marriage. weekly. sir. 1993 . pain and contusion (R) breast. Furuncle (L) Axilla. Attending physician: Dr. 3 where you were the one who attended the patient. there is tenderness pain. 1995 . . 2 to trauma. there were two (2) incidents wherein you were the attending physician. 1990 . 1992 . Q Among the findings. Caing.Abrasion. When your breast is traumatized. mastitis (L) breast. So. these are objective physical injuries.Contusion-Hematoma (L) lower arbital area.Pain. March 10. [pain] meaning there is tenderness. Lucero. Q Will you please read the physical findings together with the dates for the record. Doctor? xxxxxxxxx Q Were you able to talk with the patient? A Yes. Q What is meant by furuncle axilla? A It is secondary of the light infection over the abrasion. Q What is meant by pain mastitis secondary to trauma? A So. going to your finding no. Q Now. 4. Doctor? A I did.Swelling Abrasion (L) leg. And she told me that it was done to her by her husband. Attending physician: Dr. tenderness (R) Shoulder. is that correct? A Yes. sir. sir. Canora.physical findings are as follows: Hematoma (R) lower eyelid and redness of eye. 5. 2. A 1. June 5. 3. August 1. March 26. Canora. April 17. Attending physician: Dr. What do you mean by abrasion furuncle left axilla? A Abrasion is a skin wound usually when it comes in contact with something rough substance if force is applied. Attending physician: Dr.Q Who prepared the list of six (6) incidents. May 12. 1994 . Q Did you actually physical examine the accused? A Yes. Canora. and 6. 1995 . we need to know the cause of these injuries. multiple contusion Pregnancy. in this 4th episode of physical injuries there is an inflammation of left breast. Q So.Trauma. Attending physician: Dr. Q What did she tell you? A As a doctor-patient relationship. You said that you were able to examine her personally on November 6. Q On November 6. it was an advance stage of pregnancy? A Yes. can you more engage at what stage of pregnancy was she? A Eight (8) months pregnant. 1995 examination. Q So in other words. 1995. sir. What is this all about? . TABUCANON: Q By the way Doctor.Q You mean. sir. xxxxxxxxx Q Lets go back to the clinical history of Marivic Genosa. meaning she was confined? A Yes. was the patient pregnant? A Yes. Q When you said admitted. will you please tell this Honorable Court. was it an examination about her pregnancy or for some other findings? A No. xxxxxxxxx ATTY. sir. Q What was the date? A It was on November 6. yes. Ben Genosa? A Yes. 1995 and she was 8 months pregnant. were you able to physical examine the accused sometime in the month of November. 1995. did you actually see the accused physically? A Yes. sir. sir. Q Where? A At PHILPHOS Hospital. Q What was your November 6. Q So. she was admitted for hypertension headache which complicates her pregnancy. Q Being a doctor. 1995 when this incident happened? A As per record. Q For how many days? A One day. On one occasion that Ecel did sleep over.[35] Ecel Arano also testified[36] that for a number of times she had been asked by Marivic to sleep at the Genosa house. that the patient had hypertension? A The patient definitely had hypertension. also the same period from 1989 to 1995. So. the blood pressure was 180/120. Q Considering that she was 8 months pregnant. [34] Another defense witness. you mean this is dangerous level of blood pressure? A It was dangerous to the child or to the fetus. Leyte. Ben showed up by the window grill atop a chair. because the latter feared that Ben would come home drunk and hurt her. Q You mean problem in her household? A Probably. 1995. Q For what? A Tension headache. and that on some occasions Marivic would run to him with bruises. Q Can we say that specially during the latter consultation. severe. did you take the blood pressure of the accused? A On November 6. Teodoro Sarabia. She does not response when the medication was given to her. because the couple were very noisy and I heard something was broken like a vase. Q Can family trouble cause elevation of blood pressure. scaring them with a knife. Then Marivic came running into Ecels room and locked the door. from the moment you ask to the patient all comes from the domestic problem. Doctor? A Yes. A Because she has this problem of tension headache secondary to hypertension and I think I have a record here. It was refractory to our treatment. testified that he had seen the couple quarreling several times. . Q Is this considered hypertension? A Yes. Q In November 6. Q What did you deduce of tension headache when you said is emotional in nature? A From what I deduced as part of our physical examination of the patient is the family history in line of giving the root cause of what is causing this disease. sir. if it is emotionally related and stressful it can cause increases in hypertension which is unfortunately does not response to the medication. confiding that the injuries were inflicted upon her by Ben. a former neighbor of the Genosas in Isabel. 1995 consultation. because tension headache is more or less stress related and emotional in nature. the date of the incident. she was awakened about ten oclock at night. she had a consultation for twenty-three (23) times. where they found him already drunk. I prepared dinner for my children. Q This is evening of November 15. Ecel hesitated. she decided to leave. Seeing his state of drunkenness. On that same night that culminated in the death of Ben Genosa. Q What time were you able to come back in your residence at Bilwang? A I went back around almost 8:00 oclock.but they were unable to. Q What happened when you arrived in your residence? A When I arrived home with my cousin Ecel whom I requested to sleep with me at that time because I had fears that he was again drunk and I was worried that he would . my eldest son arrived from school. 1995? A Yes. On the afternoon of November 15. he was not home yet. showing in the process a vivid picture of his cruelty towards her: ATTY. Q By the way. where was your conjugal residence situated this time? A Bilwang. I was in Isabel looking for him. 1995 in the evening? A Whole morning and in the afternoon. I was worried because that was payday. Q Is this your house or you are renting? A Renting. sir. Marivic asked her to sleep at their house. They returned to the Genosa home. I boarded the service bus and went to Bilwang. can you recall the incident in November 15. at least three other witnesses saw or heard the couple quarreling. TABUCANON: Q Please tell this Court. Marivic again asked her help -- this time to find Ben -. Q So when he arrived you were in Isabel looking for him? A Yes. I was in the office working then after office hours. I was not there. Q What time did Ben Genosa arrive? A When he arrived. where was his father. then my second child said. 1995. Again afraid that he might hurt her. sir. When I reached Bilwang. Q Did you come back to your house? A Yes. and when she heard the couple start arguing.[37] Marivic relates in detail the following backdrop of the fateful night when life was snuffed out of him. I immediately asked my son. sir. So while waiting for him. I was anticipating that he was gambling. looking for him. Q What was he yelling all about? A His usual attitude when he got drunk. she said her father would not allow her because of Ben. Q You said that he was yelling at you. Q Did Ecel sleep with you in your house on that evening? A No. sir. 8 months. again beat me so I requested my cousin to sleep with me. Q What time? A When I arrived home. did he do to you if any? A He was nagging at me at that time and I just ignore him because I want to avoid trouble for fear that he will beat me again. Q Whats the name of the baby you were carrying at that time? A Marie Bianca. Q Who was this cousin of yours who you requested to sleep with you? A Ecel Arao. Q Was the baby subsequently born? A Yes. I was just worried he might be overly drunk and he would beat me again. because she expressed fears. Q During this period November 15. he was there already in his usual behavior. Perhaps he was disappointed because I just ignore him of his provocation and he switch off the light and I said to him. he was yelling in his usual unruly behavior. sir. Q What was the cause of his nagging or quarreling at you if you know? A He was angry at me because I was following x x x him. Q Will you tell this Court what was his disposition? A He was drunk again. what else. Q How advance was your pregnancy? A Eight (8) months. He was angry with me . why did you switch off the light when the children were there. were you pregnant? A Yes. 1995. the one who testified. Q You said that when you arrived. Q What time were you able to meet personally your husband? A Yes. but she resisted because she had fears that the same thing will happen again last year. he was drunk and yelling at you? What else did he do if any? A He is nagging at me for following him and he dared me to quarrel him. At that time I was also attending to my children who were doing their assignments. . then he dragged me again of the bedroom holding my neck. so he went to the kitchen and [got] a bolo and cut the antenna wire to stop me from watching television. he went back again and he got angry with me for packing his clothes. what else happened as Ben was carrying that bolo? A He was about to attack me so I run to the room. Q You said earlier that he whirled you and you fell on the bedside? A Yes. sir. Q When he left what did you do in that particular time? A I packed all his clothes. what happened to you? A I screamed for help and then he left. Q You said the children were scared. what were their reactions? A After a couple of hours. Q You screamed for help and he left. Q What did he do with the bolo? A He cut the antenna wire to keep me from watching T. Q During this time. Q What else happened after he cut the wire? A He switch off the light and the children were shouting because they were scared and he was already holding the bolo.V. do you know where he was going? A Outside perhaps to drink more. he dragged you? How did he drag you? COURT INTERPRETER: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward. Q You said that when Ben came back to your house. Q What was the bolo used for usually? A For chopping meat. Q How do you described this bolo? A 1 1/2 feet. Q What do you mean that he was about to attack you? A When I attempt to run he held my hands and he whirled me and I fell to the bedside. Q So when he whirled you. where were your children. for not answering his challenge. Q What was your reason in packing his clothes? A I wanted him to leave us. Q In what part of the house? A Dining. then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic. COURT INTERPRETER: (The witness at this juncture is crying intensely). ATTY. sir. . Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. it was a pipe about that long. The one he used to open the drawer I saw. I was about to vomit. xxxxxxxxx ATTY.ATTY. TABUCANON: Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me. Q What is there in the drawer? A I was aware that it was a gun. Q So you said that he dragged you towards the drawer? A Yes. sir. is this drawer outside your room? A Outside. I smashed him then I ran to the other room. COURT INTERPRETER: (At this juncture the witness started crying). and when he was about to pick-up the wallet and the blade. sir. TABUCANON: Q Talking of drawer. TABUCANON: Q Were you actually brought to the drawer? A Yes. Q Where were the children during that time? A My children were already asleep. Q You mean they were inside the room? A Yes. and on that very moment everything on my mind was to pity on myself. Dra. to verbal abuse and to physical abuse. [39] In cross-examining Dra. The husband had a very meager income. The most important information were escalating abuses that she had experienced during her marital life. how does it look like? A Three (3) inches long and 1/2 inch wide. Q Is it a flexible blade? A Its a cutter. because he once used it to me. So she was very angry. what was the most relevant information did you gather? A The most relevant information was the tragedy that happened. Natividad Dayan was called by the RTC to testify as an expert witness to assist it in understanding the psyche of a battered person. the former briefly related the latters ordeal to the court a quo as follows: Q: What can you say. is it sharp both edges? A Yes. she was at the same time very depressed because she was also aware. . There were a lot of instances of abuses. to emotional abuse. Q With the same blade? A Yes. sir. she was the one who was practically the bread earner of the family. the public prosecutor not merely elicited. drinking. Q How do you describe the blade. for the record will you please describe this blade about 3 inches long. additional supporting evidence as shown below: Q In your first encounter with the appellant in this case in 1999. Q How did he do it? A He wanted to cut my throat. She had met with Marivic Genosa for five sessions totaling about seventeen hours. Q You said that he dropped the blade. The husband was involved in a lot of vices. She also had the experience a lot of taunting from the husband for the reason that the husband even accused her of infidelity. that she was suffering emotional anguish. that was the object used when he intimidate me. going out with barkadas. the husband was saying that the child she was carrying was not his own. but wittingly or unwittingly put forward. that you found Marivic as a battered wife? Could you in laymans term describe to this Court what her life was like as said to you? A: What I remember happened then was it was more than ten years. even womanizing being involved in cockfight and going home very angry and which will trigger a lot of physical abuse. Dayan. where you talked to her about three hours. Based on their talks. [38] In addition. almost like living in purgatory or even hell when it was happening day in and day out. sir. but I do not know whether I can consider them as substantial. Q Several times in that room? A Yes. Q Did you ask for a complete example who are the relatives of her husband that were fond of battering their wives? A What I remember that there were brothers of her husband who are also battering their wives. sir. Q Did she not inform you that there was an instance that she stayed in a hotel in Ormoc where her husband followed her and battered [her] several times in that room? A She told me about that. Q Being an expert witness. xxxxxxxxx Q Did you gather an information from Marivic that on the side of her husband they were fond of battering their wives? A I also heard that from her? Q You heard that from her? A Yes. Yes.[40] Parenthetically. Q Did she inform you in what hotel in Ormoc? A Sir. I could not remember but I was told that she was battered in that room. I think that is the first time that we have this in the Philippines. we presume that you already knew of the facts of the case or at least you have substantial knowledge of the facts of the case? A I believe I had an idea of the case. Was she extremely battered? A Sir.Q Before you met her in 1999 for three hours. What I remember was that there is no problem about being battered. what is your opinion? A Sir. emotional battering. all the psychological abuses that she had experienced from her husband. it was really a self-defense. it is an extreme form of battering. Q I do believe that she is a battered wife. it really happened. what x x x [is this] all about? . my opinion is. She had to suffer anxiety reaction because of all the battering that happened and so she became an abnormal person who had lost shes not during the time and that is why it happened because of all the physical battering. she is really a battered wife and in this kind happened. the credibility of appellant was demonstrated as follows: Q And you also said that you administered [the] objective personality test. I also believe that there had been provocation and I also believe that she became a disordered person. our jurisprudence is not complete on saying this matter. But incessant battering became more and more frequent and more severe. It was a painful ordeal Marivic had to anticipate whenever she suspected that her husband went for a drinking [spree]. The Report continued: At first. her state of mind metamorphoses. or is she someone who can exaggerate or x x x [will] tell a lie[?] Q And what did you discover on the basis of this objective personality test? A She was a person who passed the honesty test. particularly to his wife. he became physically abusive. Meaning she is a person that I can trust. [s]he also sought the advice and help of close relatives and well-meaning friends in spite of her feeling ashamed of what was happening to her. there is indeed no doubt in the Courts mind that Appellant Marivic Genosa was a severely abused person. The drinking sprees of Ben greatly changed the attitude he showed toward his family. A The objective personality test is the Millon Clinical Multiaxial Inventory. Alfredo Pajarillo.] especially cockfighting. Marivic sought the help of her mother-in-law. Dr. she was battered and maltreated relentlessly and mercilessly by her husband whenever he was drunk. am I dealing with a client who is telling me the truth.[41] The other expert witness presented by the defense.[42] which was based on his interview and examination of Marivic Genosa. They had been married for twelve years[. reasonable person who is evaluating the events immediately surrounding the incident. testified on his Psychiatric Report. Effect of Battery on Appellant Because of the recurring cycles of violence experienced by the abused woman. The purpose of that test is to find out about the lying prone[ne]ss of the person. In determining her state of mind. x x x. That the data that Im gathering from her are the truth. Further quoting from the Report. The Report said that during the first three years of her marriage to Ben.[43] From the totality of evidence presented.the atmosphere was fine.until Ben started to be attracted to other girls and was also enticed in[to] gambling[.] and practically more than eight years. At the same time Ben was often joining his barkada in drinking sprees. everything looked good -. x x x. Q What do you mean by that? A Meaning. Marivic claimed that the viciousness of her husband was progressive every time he got drunk. but her efforts were in vain. A Canadian . it was verbal and emotional abuses but as time passed. normal and happy -. we cannot rely merely on the judgment of an ordinary. that they were the one[s] who precipitated the violence[. Dayan. having .[44] To understand the syndrome properly. and that she is the only hope for her spouse to change.[46] In her years of research.[45] The theory of BWS formulated by Lenore Walker. Dra. Dr. How can the mental state of the appellant be appreciated without it? The average member of the public may ask: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalization? We would expect the woman to pack her bags and go.[49] The testimony of another expert witness. severe beatings may not be consistent with -.court has aptly pointed out that expert evidence on the psychological effect of battering on wives and common law partners are both relevant and necessary. Where is her self-respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so- called battered wife syndrome. She has x x x self-defeating and self-sacrificing characteristics. reasonable person. there are a lot of reasons why a battered woman does not readily leave an abusive partner -. however. that she has an obligation to keep the family intact at all cost for the sake of their children. ones viewpoint should not be drawn from that of an ordinary. is also helpful. Dayan said that the battered woman usually has a very low opinion of herself. Dr. Walker found that the abuse often escalates at the point of separation and battered women are in greater danger of dying then. He had previously testified in suits involving violent family relations. Expert opinion is essential to clarify and refute common myths and misconceptions about battered women.those who have not been through a similar experience. that] they provoke[d] their spouse to be physically.[47] Corroborating these research findings. The psychologist explains that the cyclical nature of the violence inflicted upon the battered woman immobilizes the latters ability to act decisively in her own interests. Pajarillo.poverty. making her feel trapped in the relationship with no means of escape. comprehensible to -. self-blame and guilt arising from the latters belief that she provoked the violence. x x x [W]hen the violence would happen. has had a significant impact in the United States and the United Kingdom on the treatment and prosecution of cases. they usually think that they provoke[d] it. in which a battered woman is charged with the killing of her violent partner. verbally and even sexually abusive to them. What goes on in the mind of a person who has been subjected to repeated. as well as her research on domestic violence.[48] According to Dra.nay. but believes that she does not. just as the battered woman believes that she is somehow responsible for the violent behavior of her partner. due to the repeated abuse she had suffered from her spouse over a long period of time. in which the physical abuse on the woman would sometimes even lead to her loss of consciousness. found that even if a person has control over a situation. she stays with her husband. x x x the victim ceases to believe that anything she can do will have a predictable positive effect. We. a psychologist at the University of Pennsylvania. and that there is no escape. More specifically. we meticulously scoured the records for specific evidence establishing that appellant.that proved all-important. As such. because they cannot predict their own safety. became afflicted with the battered woman syndrome. she also believes that he is capable of killing her. x x x [A]cute battering incidents can have the effect of stimulating the development of coping responses to the trauma at the expense of the victims ability to muster an active response to try to escape further trauma.[54] Thus. lacking power to change their situation. Pajarillo explained that overwhelming brutality. failed to find sufficient evidence that would support such a conclusion.the individuals thoughts -. and usually fail to leave the relationship. suffer from pervasive anxiety. a form of anxiety neurosis or neurologic anxietism.[52] A study[53] conducted by Martin Seligman. [T]he truth or facts of a situation turn out to be less important than the individuals set of beliefs or perceptions concerning the situation. wherein such cases abounded. even when it may seem to outsiders that escape is possible. He said that it was the cognitive aspect -. but also because she fears that if she leaves she would be found and hurt even more.evaluated probably ten to twenty thousand violent family disputes within the Armed Forces of the Philippines.[57] In the instant case.[50] Dr.[55] Battered women feel unsafe. however.[51] After being repeatedly and severely abused. not only because she typically lacks a means of self-support. he got involved in about forty (40) cases of severe domestic violence. battered persons may believe that they are essentially helpless. she will be more likely to respond to that situation with coping responses rather than trying to escape. As a result of his experience with domestic violence cases. we failed to find ample . trauma could result in posttraumatic stress disorder. Battered women dont attempt to leave the battering situation. he became a consultant of the Battered Woman Office in Quezon City. He referred to this phenomenon as learned helplessness. they believe that nothing they or anyone else does will alter their terrible circumstances. Furthermore.[56] Unless a shelter is available. evidence that would confirm the presence of the essential characteristics of BWS. she would return to their common abode. . Marivic perfectly described the tension-building phase of the cycle. she failed to prove that in at least another battering episode in the past. How did the tension between the partners usually arise or build up prior to acute battering? How did Marivic normally respond to Bens relatively minor abuses? What means did she employ to try to prevent the situation from developing into the next (more violent) stage? Neither did appellant proffer sufficient evidence in regard to the third phase of the cycle. they were able to explain fully. She simply mentioned that she would usually run away to her mothers or fathers house. albeit merely theoretically and scientifically. In relating to the court a quo how the fatal incident that led to the death of Ben started. Indeed. and that believing his words. She was able to explain in adequate detail the typical characteristics of this stage. The Court appreciates the ratiocinations given by the expert witnesses for the defense.if at all -. The defense fell short of proving all three phases of the cycle of violence supposedly characterizing the relationship of Ben and Marivic Genosa. Did she ever feel that she provoked the violent incidents between her and her spouse? Did she believe that she was the only hope for Ben to reform? And that she was the sole support of his emotional stability and well-being? Conversely. the defense failed to elicit from appellant herself her factual experiences and thoughts that would clearly and fully demonstrate the essential characteristics of the syndrome. They corroborated each others testimonies. However. However. In other words.[58] that Ben would seek her out.based on which they concluded that she had BWS. ask for her forgiveness and promise to change. No doubt there were acute battering incidents. they failed to present in court the factual experiences and thoughts that appellant had related to them -. which were culled from their numerous studies of hundreds of actual cases. how the personality of the battered woman usually evolved or deteriorated as a result of repeated and severe beatings inflicted upon her by her partner or spouse. that single incident does not prove the existence of the syndrome. she had gone through a similar pattern. how dependent was she on him? Did she feel helpless and trapped in their relationship? Did both of them regard death as preferable to separation? In sum. Evidence must still be considered in the context of self-defense. The reality or even the imminence of the danger he .[59] From the expert opinions discussed earlier. is the rule that the one who resorts to self-defense must face a real threat on ones life. Reasonable necessity of the means employed to prevent or repel it. Unlawful aggression. sudden and unexpected attack -. She had already been able to withdraw from his violent behavior and escape to their childrens bedroom. Anyone who acts in defense of his person or rights. Settled in our jurisprudence. -. Unlawful aggression is the most essential element of self-defense. We emphasize that in criminal cases.she must have actually feared imminent harm from her batterer and honestly believed in the need to kill him in order to save her life. however. provided that the following circumstances concur. Second.on the life or safety of a person. Third.or an imminent danger thereof -. BWS as Self-Defense In any event. To repeat.[64] In the present case. Justifying circumstances. the Court reckons further that crucial to the BWS defense is the state of mind of the battered woman at the time of the offense[60] -. 11. however.[63] It presupposes actual. the records lack supporting evidence that would establish all the essentials of the battered woman syndrome as manifested specifically in the case of the Genosas. Lack of sufficient provocation on the part of the person defending himself. the Revised Penal Code provides the following requisites and effect of self- defense:[62] Art. not merely imaginary. there was a sufficient time interval between the unlawful aggression of Ben and her fatal attack upon him.The following do not incur any criminal liability: 1. and the peril sought to be avoided must be imminent and actual. First.[61] Thus. all the elements of a modifying circumstance must be proven in order to be appreciated. he apparently ceased his attack and went to bed. according to the testimony of Marivic herself. the existence of the syndrome in a relationship does not in itself establish the legal right of the woman to kill her abusive partner. During that time. Marivic truly experienced at the hands of her abuser husband a state of psychological paralysis which can only be ended by an act of violence on her part.[67] In the absence of such aggression.and based on past violent incidents. [70] .[66] Considering such circumstances and the existence of BWS. Marivics killing of Ben was not completely justified under the circumstances. Had Ben still been awaiting Marivic when she came out of their childrens bedroom -. does not warrant self-defense. including that which has not been raised by the parties.then. all is not lost for appellant. there was a great probability that he would still have pursued her and inflicted graver harm -. Mitigating Circumstances Present In any event. there can be no self-defense -. Incidents of domestic battery usually have a predictable pattern. It is very clear that she developed heightened sensitivity to sight of impending danger her husband posed continuously. self-defense may be appreciated. To require the battered person to await an obvious.[69] From several psychological tests she had administered to Marivic. Where the brutalized person is already suffering from BWS. We reiterate the principle that aggression.on the part of the victim. further evidence of actual physical assault at the time of the killing is not required. if not continuous. opined as follows: This is a classic case of a Battered Woman Syndrome. Dra. deadly attack before she can defend her life would amount to sentencing her to murder by installment. While she did not raise any other modifying circumstances that would alter her penalty. The repeated battering Marivic experienced with her husband constitutes a form of [cumulative] provocation which broke down her psychological resistance and natural self-control. Threatening behavior or communication can satisfy the required imminence of danger.posed had ended altogether. He was no longer in a position that presented an actual threat on her life or safety. in her Psychological Evaluation Report dated November 29. Dayan.[65] Still.[68] Thus. the imminence of the real threat upon her life would not have ceased yet. we deem it proper to evaluate and appreciate in her favor circumstances that mitigate her criminal liability. It is a hornbook doctrine that an appeal in a criminal case opens it wholly for review on any issue. impending danger (based on the conduct of the victim in previous battering episodes) prior to the defendants use of deadly force must be shown.complete or incomplete -. 2000. she is also to protect the fetus. the expert witness clarified further: Q But just the same[. Third. Witness? A What causes the trauma is probably the repetitious battering. suffocating the individual. Others are suffocating the victim like holding a pillow on the face. After this six (6) months you become chronic. The [a]typical one is the repetitious battering but the individual who is abnormal and then become normal. He explained that the effect of repetitious pain taking. Witness? A The chronic cases is this repetitious battering. repetitious maltreatment.. Q And in chronic cases. What are the qualifications in terms of severity of the postraumatic stress disorder. repetitious battering. [72] Answering the questions propounded by the trial judge. how do you classify? A We classify the disorder as [acute]. The [acute] is only the first day to six (6) months. Dayan. banging of the head like that. she is very susceptible because the woman will not only protect herself. and fear and probably in most [acute] cases the first thing will be happened to the individual will be thinking of suicide. In this situation therefore. Dr. like for example she is pregnant. higher irritability remorse. Mr. Mr. and boxing the individual. he said: Q What causes the trauma. Q But in terms of the gravity of the disorder. it is longer than six (6) months.[71] Expounding thereon. or chronic or delayed or [a]typical. the severity of the battering. [and] repetitious maltreatment as well as the severity and the prolonged administration of the battering is posttraumatic stress disorder. strangulating the individual. If nobody is interceding. So the anxiety is heightened to the end [sic] degree.. Pajarillo corroborates the findings of Dra. Q Can you please describe this pre[-]classification you called delayed or [atypical]? A The acute is the one that usually require only one battering and the individual will manifest now a severe emotional instability. the more she will go to that disorder. Mr. xxxxxxxxx Q You referred a while ago to severity. It is usually the very very severe stimulus that precipitate this post[t]raumatic stress disorder. Witness. It is stated in the book specifically that after six (6) months is chronic.] neurosis especially on battered woman syndrome x x x affects x x x his or her mental capacity? . the victim is heightened to painful stimulus. restlessness.. any prolonged. This is how you get neurosis from neurotic personality of these cases of post[t]raumatic stress disorder. Pajarillo? A The severity is the most severe continuously to trig[g]er this post[t]raumatic stress disorder is injury to the head. Dr. Second. the prolonged administration of battering or the prolonged commission of the battering and the psychological and constitutional stamina of the victim and another one is the public and social support available to the victim. psychological paralysis. Q As you were saying[. It has been held that this state of mind is present when a crime is committed as a result of an uncontrollable burst of passion provoked by prior unjust or improper acts or by a legitimate stimulus so powerful as to overcome reason.[78] Here. the cyclical nature and the severity of the violence inflicted upon appellant resulted in cumulative provocation which broke down her psychological resistance and natural self-control. A Yes. naturally produced passion and obfuscation overcoming her reason. depriving her of consciousness of her acts. we also find in favor of appellant the extenuating circumstance of having acted upon an impulse so powerful as to have naturally produced passion and obfuscation. thus.[77] To appreciate this circumstance. a resulting diminution of her freedom of action. your Honor. Based on the explanations of the expert witnesses. The attempt on her life was likewise on that of her fetus. The confluence of these events brings us to the conclusion that there was no considerable period of time within which Marivic could have recovered her . In a fit of indignation. then she took the weapon and used it to shoot him. wherein Ben Genosa was the unlawful aggressor. she pried open the cabinet drawer where Ben kept a gun.[73] In sum. and (2) this act is not far removed from the commission of the crime by a considerable length of time. the following requisites should concur: (1) there is an act. According to her. and difficulty in concentrating or impairment of memory. however. she felt her blood pressure rise. an aggression which was directed at the lives of both Marivic and her unborn child. intelligence or intent. [76] In addition. this circumstance should be taken in her favor and considered as a mitigating factor. such manifestations were analogous to an illness that diminished the exercise by appellant of her will power without. Even though she was able to retreat to a separate room. an acute battering incident.[79] His abusive and violent acts. It should also be recalled that she was eight months pregnant at the time. Pursuant to paragraphs 9[74] and 10[75] of Article 13 of the Revised Penal Code. preceded his being killed by Marivic. There was.] it x x x obfuscated her rationality? A Of course obfuscated. her emotional and mental state continued. both unlawful and sufficient to produce such a condition of mind. during which the accused might recover her normal equanimity. she was filled with feelings of self-pity and of fear that she and her baby were about to die. He had further threatened to kill her while dragging her by the neck towards a cabinet in which he had kept a gun. on the other hand.[83] Ruling that treachery was present in the instant case. the most vicious and the trauma that she suffered. they cannot be deduced from mere inferences. Second Legal Issue: Treachery There is treachery when one commits any of the crimes against persons by employing means. the circumstances invoked must be proven as indubitably as the killing itself. She cannot control re- experiencing the whole thing. That the incident occurred when she was eight months pregnant with their child was deemed by her as an attempt not only on her life.[82] Because of the gravity of the resulting offense. resulted from the violent aggression he had inflicted on her prior to the killing. Such perception naturally produced passion and obfuscation on her part. which have no place in the appreciation of evidence. although she is not actually being beaten at the time. methods or forms in the execution thereof without risk to oneself arising from the defense that the offended party might make. Accordingly.[81] In order to qualify an act as treacherous.the victim relives the beating or trauma as if it were real. That is. circular fracture located at the . the first circumstance arose from the cyclical nature and the severity of the battery inflicted by the batterer-spouse upon appellant. which was analogous to an illness diminishing the exercise of her will power without depriving her of consciousness of her acts. She thinks of nothing but the suffering.did not arise from the same set of facts. Such reliving which is beyond the control of a person under similar circumstances.normal equanimity. treachery must be proved as conclusively as the killing itself. but likewise on that of their unborn child. Pajarillos testimony[80] that with neurotic anxiety -.a psychological effect on a victim of overwhelming brutality [or] trauma -. she should further be credited with the mitigating circumstance of passion and obfuscation. the repeated beatings over a period of time resulted in her psychological paralysis. the trial court imposed the penalty of death upon appellant. It inferred this qualifying circumstances merely from the fact that the lifeless body of Ben had been found lying in bed with an open. The second circumstance. or conjectures. depressed. On the one hand.psychological paralysis as well as passion and obfuscation -. Helpful is Dr. It should be clarified that these two circumstances -. must have been what Marivic experienced during the brief time interval and prevented her from recovering her normal equanimity. sir. however. I smashed him then I ran to the other room. and when he was about to pick-up the wallet and the blade. The one he used to open the drawer I saw. and on that very moment everything on my mind was to pity on myself. ATTY. the prosecution failed to establish indubitably. TABUCANON: Q Where did he bring you? A Outside the bedroom and he wanted to get something and then he kept on shouting at me that you might as well be killed so there will be nobody to nag me Q So you said that he dragged you towards the drawer? A Yes. Only the following testimony of appellant leads us to the events surrounding his death: Q You said that when Ben came back to your house. it was a pipe about that long. xxxxxxxxx . As to exactly how and when he had been fatally attacked. TABUCANON: Q Were you actually brought to the drawer? A Yes. he dragged you? How did he drag you? COURT: The witness demonstrated to the Court by using her right hand flexed forcibly in her front neck) A And he dragged me towards the door backward. then the feeling I had on that very moment was the same when I was admitted in PHILPHOS Clinic. COURT INTERPRETER (The witness at this juncture is crying intensely). COURT INTERPRETER (At this juncture the witness started crying) ATTY. I was about to vomit. sir.back of his head. Q What is there in the drawer? A I was aware that it was a gun. Q What happened when you were brought to that drawer? A He dragged me towards the drawer and he was about to open the drawer but he could not open it because he did not have the key then he pulled his wallet which contained a blade about 3 inches long and I was aware that he was going to kill me and I smashed his arm and then the wallet and the blade fell. I was frightened I was about to die because of my blood pressure. sir. I took pity on myself and I felt I was about to die also because of my blood pressure and the baby. TABUCANON: Q You said you went to the room. Q It is a flexible blade? A Its a cutter. that was the object used when he intimidate me. Q What happened? A Ben tried to pick-up the wallet and the blade. for the record will you please describe this blade about 3 inches long. I pick-up the pipe and I smashed him and I ran to the other room. I was about to vomit. I distorted the drawer. Q How did he do it? A He wanted to cut my throat. the witness at the same time pointed at the back of her neck or the nape). COURT INTERPRETER: (Upon the answer of the witness getting the pipe and smashed him. because I smashed him. Q What else happened? A When I was in the other room. Q How do you describe the blade. TABUCANON: Q You said that this blade fell from his grip. is it sharp both edges? A Yes. xxxxxxxxx ATTY. is it correct? A Yes.Q You said that he dropped the blade. because he once used it to me. I felt the same thing like what happened before when I was admitted in PHILPHOS Clinic. what else happened? A Considering all the physical sufferings that Ive been through with him.[84] . Tabucanon Q You shot him? A Yes. Q With the same blade? A Yes. I know my blood pressure was raised. COURT /to Atty. how does it look like? A Three (3) inches long and inch wide. so I got that gun and I shot him. ATTY. because the deceased may be said to have been forewarned and to have anticipated aggression from the assailant. treachery cannot be appreciated as a qualifying circumstance. The above testimony is insufficient to establish the presence of treachery. and no other modifying circumstances were shown to have attended the commission of the offense.and the maximum shall be within the range of the medium period of reclusion temporal. The penalty [88] [89] of reclusion temporal in its medium period is imposable. though. Since two mitigating circumstances and no aggravating circumstance have been found to have attended the commission of the offense. Considering all the circumstances of the instant case. this Court resolves the doubt in her favor. we deem it just and proper to impose the penalty of prision mayor in its minimum period. the minimum of the penalty shall be within the range of that which is next lower in degree -. to reclusion temporal in its medium period. or 14 years 8 months and 1 day as maximum. pursuant to Article 64 of paragraph 5 of the same Code.prision mayor -. it appears that the thought of using the gun occurred to her only at about the same moment when she decided to kill her batterer-spouse.[85] Moreover. In the absence of any convincing proof that she consciously and deliberately employed the method by which she committed the crime in order to ensure its execution. the penalty shall be lowered by one (1) degree. To the contrary. she may now apply for and be released from detention on parole. Noting that appellant has already served the minimum period.[91] . equally axiomatic is the rule that when a killing is preceded by an argument or a quarrel. Besides.[87] Proper Penalty The penalty for parricide imposed by Article 246 of the Revised Penal Code is reclusion perpetua to death. There is no showing of the victims position relative to appellants at the time of the shooting.[86] There is no showing. or six (6) years and one (1) day in prison as minimum. Under the Indeterminate Sentence [90] Law. in order to appreciate alevosia. the method of assault adopted by the aggressor must have been consciously and deliberately chosen for the specific purpose of accomplishing the unlawful act without risk from any defense that might be put up by the party attacked. that the present appellant intentionally chose a specific means of successfully attacking her husband without any risk to herself from any retaliatory act that he might make. considering that two mitigating circumstances are to be taken into account in reducing the penalty by one degree. have helped it in such learning process. to 14 years. there being two (2) mitigating circumstances and no aggravating circumstance attending her commission of the offense. the conviction of Appellant Marivic Genosa for parricide is hereby AFFIRMED. However. Neither can we amend the Revised Penal Code.on the basis of existing law and jurisprudence applicable to the proven facts. It took great effort beyond the normal manner in which decisions are made -. we can only work within the limits of law. the batterer must have posed probable -. Atty. the solicitor general and appellants counsel. Taken altogether. not all of these elements were duly established. We cannot make or invent them. Under the existing facts of the present case. The Court. Second. each of the phases of the cycle of violence must be proven to have characterized at least two battering episodes between the appellant and her intimate partner.grave harm to the accused. these circumstances could satisfy the requisites of self-defense. the Court has learned much. the final acute battering episode preceding the killing of the batterer must have produced in the battered persons mind an actual fear of an imminent harm from her batterer and an honest belief that she needed to use force in order to save her life. the director of the Bureau of Corrections may . Certainly. her penalty is REDUCED to six (6) years and one (1) day of prision mayor as minimum. it endeavored to take a good look at studies conducted here and abroad in order to understand the intricacies of the syndrome and the distinct personality of the chronically abused person. in its wisdom. We now sum up our main points. jurisprudence and given facts. Katrina Legarda. First. however. the battered woman syndrome was neither easy nor simple to analyze and recognize vis--vis the given set of facts in the present case. 8 months and 1 day of reclusion temporal as maximum. While our hearts empathize with recurrently battered persons. Third. based on the history of violence perpetrated by the former against the latter. Only Congress. WHEREFORE. Inasmuch as appellant has been detained for more than the minimum penalty hereby imposed upon her. Epilogue Being a novel concept in our jurisprudence. is not discounting the possibility of self-defense arising from the battered woman syndrome. at the time of the killing.not necessarily immediate and actual -. To give a just and proper resolution of the case. And definitely. The Court agonized on how to apply the theory as a modern-day reality. however. may do so. and with business and occupations.S. To this fundamental aim of our Government the rights of the individual are subordinated. in the interest and convenience of the public. nor despotism. Gomer Jesus. nor anarchy. The citizen should achieve the required balance of liberty and authority in his mind through education and. personal discipline.. is not the determination of what the law shall be. Liberty is a blessing without which life is a misery. 548 was passed by the National Assembly in the exercise of the paramount police power of the state. a menace to public safety. Costs de oficio. POLICE POWER. — The provisions of section 1 of Commonwealth Act No. "to promote safe transit upon. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. 2. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation. 1940. therefore. and the state in order to promote the general welfare may interfere with personal liberty. In enacting said law. It was inspired by a desire to relieve congestion of traffic. SYLLABUS 1. — Social justice is "neither communism. and prosperity of the state (U. SO ORDERED. Maximo Calalang in his own behalf. ID... in order to secure the general comfort. December 2." but the humanization of laws and the equalization of social and economic forces by the State so . SOCIAL JUSTICE. It must depend on the discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists for executing the law. but liberty should not be made to prevail over authority because then society will fall into anarchy. in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest. therefore. health. The authority therein conferred upon them and under which they promulgated the rules and regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act. Solicitor General Ozaeta and Assistant Solicitor General Amparo for respondents Williams. WILLIAMS... A. by virtue of which the rules and regulations complained of were promulgated. v. to wit. AUTHORITY OF DIRECTOR OF PUBLIC WORKS AND SECRETARY OF PUBLIC WORKS AND COMMUNICATIONS TO PROMULGATE RULES AND REGULATIONS. 47800. Persons and property may be subjected to all kinds of restraints and burdens. unless she is being held for some other lawful cause. 218). which is. CONSTITUTIONAL LAW. ET AL. To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic. and avoid obstructions on. ID. ID. 3. lies at the bottom of the enactment of said law. Public welfare." The delegated power. is an administrative function which cannot be directly discharged by the National Assembly. aims to promote safe transit upon and avoid obstructions on national roads. then. Fragante and Bayan City Fiscal Mabanag for the other respondents. DELEGATION OF LEGISLATIVE POWER.. so that there may be established the resultant equilibrium. with property. But it cannot be said that the exercise of such discretion is the making of the law. v. which means peace and order and happiness for all.immediately RELEASE her from custody upon due determination that she is eligible for parole. Petitioner. No. CONSTITUTIONALITY OF COMMONWEALTH ACT No. logically so much is withdrawn from the residuum of liberty which resides in the people. Respondents. 648 do not confer legislative power upon the Director of Public Works and the Secretary of Public Works and Communications. if at all. nor atomism. ID.] MAXIMO CALALANG. — Commonwealth Act No. but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated. the National Assembly was prompted by considerations of public convenience and welfare. 31 Phil.R. [G. 648. roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines" and to close them temporarily to any or all classes of traffic "whenever the condition of the road or the traffic thereon makes such action necessary or advisable in the public convenience and interest. D. Said Act. GOVERNMENTAL AUTHORITY. to say the least. The moment greater authority is conferred upon the government. PERSONAL LIBERTY. with the approval of the Secretary of Public Works and Communications. This contention is untenable. recommended to the latter the approval of the recommendation made by the Chairman of the National Traffic Commission as aforesaid. 548 which authorizes said Director of Public Works. in his capacity as a private citizen and as a taxpayer of Manila. that on August 2. Comm’rs. that the Chairman of the National Traffic Commission. that as a consequence of such enforcement. with the modification that the closing of Rizal Avenue to traffic to animal-drawn vehicles be limited to the portion thereof extending from the railroad crossing at Antipolo Street to Azcarraga Street. from 7 a. through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community. therefore. and conferring an authority or discretion as to its execution. Provincial Board of Mindoro (39 Phil. to the latter no valid objection can be made. and quiet of all persons. is authorized to promulgate rules and regulations for the regulation and control of the use of and traffic on national roads and streets is unconstitutional because it constitutes an undue delegation of legislative power. 88. or extra-constitutionally. must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. all animal-drawn vehicles are not allowed to pass and pick up passengers in the places above-mentioned to the detriment not only of their owners but of the riding public as well. the Director of Public Works. to 5:30 p. Williams. 660. in pursuance of the provisions of Commonwealth Act No. on July 18. brought before this court this petition for a writ of prohibition against the respondents. the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society. in his first indorsement to the Secretary of Public Works and Communications. comfort. through the adoption of measures legally justifiable. as Mayor of the City of Manila. constitutionally. approved the recommendation of the latter that Rosario Street and Rizal Avenue be closed to traffic of animal-drawn vehicles. to be exercised under and in pursuance of the law.. the Secretary of Public Works and Communications. "The rule has nowhere been better stated than in the early Ohio case decided by Judge Ranney." DECISION LAUREL. J. 1940 recommended to the Director of Public Works the adoption of the measure proposed in the resolution aforementioned. as Director of Public Works. for a period of one year from the date of the opening of the Colgante Bridge to traffic. Vicente Fragante. The first cannot be done. to promulgate rules and regulations to regulate and control the use of and traffic on national roads. R. Clinton County.’ (Cincinnati. as Chairman of the National Traffic Commission. between the points and during the hours as above indicated. and along Rizal Avenue extending from the railroad crossing at Antipolo Street to Echague Street. Social justice. 1 Ohio St.) Discretion. 1940.. 548 by which the Director of Public Works. to 11 p. from a period of one year from the date of the opening of the Colgante Bridge to traffic. to 12:30 p. in its resolution of July 17. Eulogio Rodriguez. with the approval of the Secretary of Public Works and Communications. Southard (10 Wheat. v. It is contended by the petitioner that Commonwealth Act No. Social justice means the promotion of the welfare of all the people. resolved to recommend to the Director of Public Works and to the Secretary of Public Works and Communications that animal-drawn vehicles be prohibited from passing along Rosario Street extending from Plaza Calderon de la Barca to Dasmariñas Street. and since followed in a multitude of cases.. As was observed by this court in Rubi v. A. D. 700). and from 1:30 p. 1940. that justice in its rational and objectively secular conception may at least be approximated. from 7:30 a. 1940. and Juan Dominguez.. that the Mayor of Manila and the Acting Chief of Police of Manila have enforced and caused to be enforced the rules and regulations thus adopted. and of bringing about "the greatest good to the greatest number. W. that on August 10. Co. It is alleged in the petition that the National Traffic Commission.m. Sergio Bayan. The Legislature may make decisions of . which necessarily involves a discretion as to what it shall be.m. namely: ’The true distinction therefore is between the delegation of power to make the law. as Acting Secretary of Public Works and Communications. & Z.m. as held by Chief Justice Marshall in Wayman v. through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex.m.m. in his second indorsement addressed to the Director of Public Works. as Acting Chief of Police of Manila. consistent with the fundamental and paramount objective of the state of promoting the health.m. 1) may be committed by the Legislature to an executive department or official.: Maximo Calalang. 1939. But it cannot be said that the exercise of such discretion is the making of the law. but also in the promulgation of certain rules and regulations calculated to promote public interest. Ed."cralaw virtua1aw l ibra ry Section 1 of Commonwealth Act No. to a large extent." The proper distinction the court said was this: "The Legislature cannot delegate its power to make the law. Accordingly. or to things future and impossible to fully know." (Field v. roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines" and to close them temporarily to any or all classes of traffic "whenever the condition of the road or the traffic makes such action necessary or advisable in the public convenience and interest. within certain limits. 548 was passed by the National Assembly in the exercise of the paramount police power of the state. S. to whom it has committed the execution of certain acts. with the approval of the President. is an administrative function which cannot be directly discharged by the National Assembly. but it can make a law to delegate a power to determine some fact or state of things upon which the law makes. and the increased difficulty of administering the laws. shall promulgate the necessary rules and regulations to regulate and control the use of and traffic on such roads and streets. 649. giving rise to the adoption. The petitioner further contends that the rules and regulations promulgated by the respondents pursuant to the provisions of Commonwealth Act No. 46076 and 46077. Nos. To deny this would be to stop the wheels of government.p h "SECTION 1. therefore. There are many things upon which wise and useful legislation must depend which cannot be known to the law-making power. with the growing complexity of modern life. No. Such rules and regulations. 694. G. 141. aims to promote safe transit upon and avoid obstructions on national roads. with the approval of the Secretary of Public Works and Communications. therefore. by virtue of which the rules and regulations complained of were promulgated. The authority therein conferred upon them and under which they promulgated the rules and regulations now complained of is not to determine what public policy demands but merely to carry out the legislative policy laid down by the National Assembly in said Act. and in Pangasinan Transportation v. promulgated June 12. The Public Service Commission. Kinkead. In . To promulgate rules and regulations on the use of national roads and to determine when and how long a national road should be closed to traffic. 36 L. not only in the execution of the laws. and avoid obstructions on.S. G. 548 constitute an unlawful interference with legitimate business or trade and abridge the right to personal liberty and freedom of locomotion. the multiplication of the subjects of governmental regulations. 548 reads as follows: jgc:chan roble s. promulgated June 26. Commonwealth Act No. "to promote safe transit upon and avoid obstructions on. final on questions of fact. the Director of Public Works. and. been relaxed by permitting the delegation of greater powers by the legislative and vesting a larger amount of discretion in administrative and executive officials. may contain provisions controlling or regulating the construction of buildings or other structures within a reasonable distance from along the national roads. v. the rigidity of the theory of separation of governmental powers has." The delegated power. or intends to make. of the principle of "subordinate legislation. or for a specified period.R. but merely the ascertainment of the facts and circumstances upon which the application of said law is to be predicated." not only in the United States and England but in practically all modern governments. is to rob the Legislature of the power to act wisely for the public welfare whenever a law is passed relating to a state of affairs not yet developed. To promote safe transit upon. (U. is not the determination of what the law shall be. if at all. this Court had occasion to observe that the principle of separation of powers has been made to adapt itself to the complexities of modern governments. 294." cralaw virt ua1aw li bra ry The above provisions of law do not confer legislative power upon the Director of Public Works and the Secretary of Public Works and Communications. its own action depend. in view of the condition of the road or the traffic thereon and the requirements of public convenience and interest.) In the case of People v. 1940. 248 Fed. Said Act. because it is made to depend on a future event or act. As was said in Locke’s Appeal (72 Pa. Clark. Such roads may be temporarily closed to any or all classes of traffic by the Director of Public Works and his duly authorized representatives whenever the condition of the road or the traffic thereon makes such action necessary or advisable in the public convenience and interest.R. 143 U.. Rosenthal and Osmeña. It must depend on the discretion of some other government official to whom is confided the duty of determining whether the proper occasion exists for executing the law.com. to wit.executive departments or subordinate officials thereof. with the approval of the Secretary of Public Works and Communications. 491): "To assert that a law is less than a law. roads and streets designated as national roads by acts of the National Assembly or by executive orders of the President of the Philippines. must. in the interest and convenience of the public. 47065.) The growing tendency in the decisions is to give prominence to the ’necessity’ of the case. be a subject of inquiry and determination outside of the halls of legislation. " but the humanization of laws and the equalization of social and economic forces by the State so that justice in its rational and objectively secular conception may at least be approximated. respondents. with costs against the petitioner. Social justice means the promotion of the welfare of all the people. with property. The citizen should achieve the required balance of liberty and authority in his mind through education and personal discipline. 169). or extra-constitutionally. concur. As was said in the case of Dobbins v. Liberty is a blessing without which life is a misery. the writ of prohibition prayed for is hereby denied. 49549 August 30. JJ." And in People v. through the exercise of powers underlying the existence of all governments on the time-honored principle of salus populi est suprema lex. Los Angeles (195 U. consistent with the fundamental and paramount objective of the state of promoting the health. vs. William C. become a menace to the public health and welfare.R. comfort.S. 49 L. the growth of public opinion. Social justice. 238. the rapidly increasing population. but liberty should not be made to prevail over authority because then society will fall into anarchy. 440). The development of civilization. in his capacity as Presidential Executive Assistant. is to be achieved not through a mistaken sympathy towards any given group. health. JACOBO C. HON. nor despotism.. nor anarchy. through the maintenance of a proper economic and social equilibrium in the interrelations of the members of the community. The moment greater authority is conferred upon the government. Neither should authority be made to prevail over liberty because then the individual will fall into slavery. constitutionally. and with business and occupations. .enacting said law. Diaz. through the adoption of measures legally justifiable. the National Assembly was prompted by considerations of public convenience and welfare. and prosperity of the state (U. Imperial. because of the changed situation. Persons and property may be subjected to all kinds of restraints and burdens. to say the least." cralaw vi rtua 1aw lib rary The petitioner finally avers that the rules and regulations complained of infringe upon the constitutional precept regarding the promotion of social justice to insure the well-being and economic security of all the people. nor atomism. which means peace and order and happiness for all. the growth of population or other causes. 31 Phil. It was inspired by a desire to relieve congestion of traffic. 218). then. in order to secure the general comfort. "the right to exercise the police power is a continuing one. and a business lawful today may in the future. and the state in order to promote the general welfare may interfere with personal liberty. therefore. The paradox lies in the fact that the apparent curtailment of liberty is precisely the very means of insuring its preservation. must be founded on the recognition of the necessity of interdependence among divers and diverse units of a society and of the protection that should be equally and evenly extended to all groups as a combined force in our social and economic life. Gunitang and Jaime Opinion for petitioner. and TAY TUNG HIGH SCHOOL. ed.. Avanceña. and Horrilleno. 1990 EVELYN CHUA-QUA. v. CLAVE. To this fundamental aim of our Government the rights of the individual are subordinated. it was observed that "advancing civilization is bringing within the police power of the state today things which were not thought of as being within such power yesterday.S.. however." cralaw virt ua1aw lib rary In view of the foregoing. Social justice is "neither communism. which is. C. No. have brought within the police power many questions for regulation which formerly were not so considered. Pomar (46 Phil.J. 223.. Public welfare. petitioner. The scope of police power keeps expanding as civilization advances. logically so much is withdrawn from the residuum of liberty which resides in the people. lies at the bottom of the enactment of said law. therefore. Gomez Jesus. so that there may be established the resultant equilibrium. with an increasing desire on the part of the masses and of the government to look after and care for the interests of the individuals of the state. G. a menace to public safety. and be required to yield to the public good. and of bringing about "the greatest good to the greatest number. So ordered. The promotion of social justice. the adoption by the Government of measures calculated to insure economic stability of all the competent elements of society. INC. and quiet of all persons. 1976. J. it is however enough for a sane and credible mind to imagine and conclude what transpired and took place during these times. 9 ." 8 More specifically. Since it was the policy of the school to extend remedial instructions to its students. Jr. in 1976 when this dispute arose. Cornelio G. to her student who was fourteen (14) years her junior. 3 Their marriage was ratified in accordance with the rites of their religion in a church wedding solemnized by Fr. 1 In the course thereof. Petitioner had been employed therein as a teacher since 1963 and. On September 17. consent and advice to the marriage was given by his mother. Lazaro. City Judge of Iloilo. they got married in a civil ceremony solemnized in Iloilo City by Hon. recklessly took advantage of her position as school teacher. Aguirre. required the parties to submit their position papers and supporting evidence. was the class adviser in the sixth grade where one Bobby Qua was enrolled. Bobby Qua was imparted such instructions in school by petitioner. Nick Melicor at Bacolod City on January 10. lured a Grade VI boy under her advisory section and 15 years her junior into an amorous relation. 6 Executive Labor Arbiter Jose Y. . In the absence of evidence to the contrary. of the National Labor Relations Commission. 956 in favor of private respondent granting the clearance to terminate the employment of petitioner. 1976. is an educational institution in Bacolod City. rendered an "Award" in NLRC Case No. the undisputed written testimonies of several witnesses convincingly picture the circumstances under which such amorous relationship was manifested within the premises of the school. was considered by the school authorities as sufficient basis for terminating her services. "defying all standards of decency. fourteen (14) years her junior and during her employment with petitioner.. While no direct evidences have been introduced to show that immoral acts were committed during these times. private respondent raised issues on the fact that petitioner stayed alone with Bobby Qua in the classroom after school hours when everybody had gone home. Bacolod City. private respondent filed with the sub-regional office of the Department of Labor at Bacolod City an application for clearance to terminate the employment of petitioner on the following ground: "For abusive and unethical conduct unbecoming of a dignified school teacher and that her continued employment is inimical to the best interest. and within the sight of some employees.Laogan Law Offices for private respondent. without conducting any formal hearing. 4 On February 4. REGALADO. and would downgrade the high moral values. Aguirre. the couple fell in love and on December 24. to whom the case was certified for resolution. 1976. Jr. an amorous relationship existed between them. with one door allegedly locked and the other slightly open. then a classroom teacher. of the school. 1975. 2 Petitioner was then thirty (30) years of age but Bobby Qua being sixteen (16) years old. Executive Labor Arbiter Jose Y." 5 Petitioner was placed under suspension without pay on March 12. . although self-serving but were never disputed by the respondent pointed out that before the marriage of respondent to Bobby Qua. . Affidavits 7 were submitted by private respondent to bolster its contention that petitioner. inside the classroom. Mrs. It was held therein that — The affidavits . 1976. Concepcion Ong. Private respondent Tay Tung High School. .: This would have been just another illegal dismissal case were it not for the controversial and unique situation that the marriage of herein petitioner. . Inc. xxx xxx xxx Petitioner-appellee naively insisted that the clearance application was precipitated by immoral acts which did not lend dignity to the position of appellant. xxx xxx xxx Even if we have to strain our sense of moral values to accommodate the conclusion of the Arbiter. The depositions of affiants Despi and Chin are of the same tenor. . The petitioner was. this time giving due course to the application of Tay Tung High School. . nor was it abusive and unethical conduct unbecoming of a dignified school teacher. No statements whatever were sworn by them that they were eyewitnesses to immoral or scandalous acts. for a teacher to enter into lawful wedlock with her student. through Presidential Executive Assistant Jacobo C. 10 On October 7. 1978 said office. Inc. Private respondent was ordered to reinstate petitioner to her former position without loss of seniority rights and other privileges and with full back wages from the time she was not allowed to work until the date of her actual reinstatement. 15 Having run the gamut of three prior adjudications of the case with alternating reversals. 1978. however. on September 1. 1976. we could not deduce anything immoral or scandalous about a girl and a boy talking inside a room after classes with lights on and with the door open. the National Labor Relations Commission unanimously reversed the Labor Arbiter's decision and ordered petitioner's reinstatement with backwages. with the following specific findings: Affiant Maselliones deposed and said that he saw appellant and Qua sitting on the student desk inside a classroom after classes. petitioner appealed to the National Labor Relations Commission claiming denial of due process for not having been furnished copies of the aforesaid affidavits relied on by the labor arbiter. in a resolution dated December 6. She further contended that there was nothing immoral. Aside from such gratuitous assertions of immoral acts or conduct by herein appellant. awarded six (6) months salary as financial assistance. petitioner appealed the said decision to the Office of the President of the Philippines. acting on a motion for reconsideration 16 of herein private respondent and despite opposition thereto. 1977. 13 On May 20. one would think that this decision of public respondent wrote finis to petitioner's calvary. . However. rendered its decision reversing the appealed decision. public respondent. 14 After the corresponding exchanges. however.Petitioner. no evidence to support such claims was introduced by petitioner-appellee. 1977. 11 On December 27. on March 30. Clave. 1976. 17 reconsidered and modified the aforesaid decision. We reviewed the the sequence of events from the beginning of the relationship between appellant Evelyn Chua and Bobby Qua up to the date of the filing of the present application for clearance in search of evidence that could have proved detrimental to the image and dignity of the school but none has come to our attention. to terminate the services of petitioner as classroom teacher but giving her separation pay equivalent to her six (6) months salary. 12 The case was elevated by private respondent to the Minister of Labor who. reversed the decision of the National Labor Relations Commission. 18 . denied having received any copy of the affidavits referred to. petitioner had moral ascendancy over Bobby Qua and. and on this basis. Also. Besides. said affidavits were also cited and discussed by her in the proceedings before the Ministry of Labor. Pina D. had spawned ugly rumors that had cast serious doubts on her integrity. We do not agree. The dismissal or termination of petitioner's employment. a breach of trust and confidence reposed upon her and. public respondent reasoned out in his manifestation/comment filed on August 14. despite Tay Tung's claim to the contrary. petitioner maintains that there was no ground to terminate her services as there is nothing wrong with a teacher falling in love with her pupil and. it charged petitioner with having allegedly violated the Code of Ethics for teachers the pertinent provision of which states that a "school official or teacher should never take advantage of his/her position to court a pupil or student. a situation which was considered by them as not healthy for a school campus. She argued that she was dismissed because of her marriage with Bobby Qua . in the belief of the school authorities. therefore. viz. if not an immoral act. private respondent submits that petitioner's actuations as a teacher constitute serious misconduct. but went further to view the matter from the standpoint of policy which involves the delicate task of rearing and educating of children whose interest must be held paramount in the school community. petitioner relies on the following grounds for the reversal of the aforesaid resolution of public respondent. Eleuterio Despi. Chiu. contracting a lawful marriage with him. thus. this Office deemed it wise to uphold the judgment and action of the school authorities in terminating the services of a teacher whose actuations and behavior. therefore. 1979 in this Court in the present case: That this Office did not limit itself to the legal issues involved in the case.: 1. affidavits and other documentary evidence is recognized as not violative of such right. on the merits. she must not abuse such authority and respect extended to her. There is no denial of due process where a party was afforded an opportunity to present his side. Petitioner's right to due process under the Constitution was violated when the hearsay affidavits of Laddy Maselliones. Citing its upright intention to preserve the respect of the community toward the teachers and to strengthen the educational system. No sufficient proofs were adduced to show that petitioner committed serious misconduct or breached the trust reposed on her by her employer or committed any of the other grounds enumerated in Article 283 (Now Article 282) of the Labor Code which will justify the termination of her employment. Now. 3. 2. illegal. It argues that as a school teacher who exercises substitute parental authority over her pupils inside the school campus. the procedure by which issues are resolved based on position papers. subsequently. believing that a school teacher should at all times act with utmost circumspection and conduct herself beyond reproach and above suspicion. 20 We first dispose of petitioner's claim that her right to due process was violated. Moreover." 21 On the other hand. were admitted and considered in evidence without presenting the affiants as witnesses and affording the petitioner the right to confront and cross-examine them. obviously because she was convinced that the case involves a question of law.In thus reconsidering his earlier decision. and Ong Lee Bing. petitioner could have insisted on a hearing to confront and cross-examine the affiants but she did not do so. was actually based on her marriage with her pupil and is. 19 In this petition for certiorari. Furthermore. a valid and just ground to terminate her services. 1976 filed by appellee at the arbitration proceedings) in arriving at his decision are unbelievable and unworthy of credit. But the records of the case present a ready answer: appellant was giving remedial instruction to her student and the school was the most convenient place to serve the purpose. The affidavits heavily relied upon by appellee are clearly the product of after-thought. As vividly and forcefully observed by him in his original decision: Indeed. For one thing. were prepared by appellee or its counsel. the affidavits refer to certain times of the day during off school hours when appellant and her student were found together in one of the classrooms of the school. 1975. on the question. and to nullify his decision through the extraordinary writ of certiorari if the same is tainted by absence or excess of jurisdiction or grave abuse of discretion. The action pursued by appellee in dismissing appellant over one month after her marriage. such belated application for clearance weakens instead of strengthening the cause of petitioner-appellee. then why was the present application for clearance not filed at that time when the alleged demoralizing effect was still fresh and abrasive? 22 After a painstaking perusal of the records. otherwise. . leaving many question unanswered by a rational mind. has not escaped our observation: That the application for clearance was filed only after more than one month elapsed from the date of appellant's marriage to Bobby Qua Certainly. 1976. The basis of the action sought is seriously doubted. this Court is not bound thereby. One thing. To constitute immorality. What is glaring in the affidavits is the complete absence of specific immoral acts allegedly committed by appellant and her student. Considering that there was no formal hearing conducted. 23 We rule that public respondent acted with grave abuse of discretion. the resolution of which is better left to the trier of facts. For another. we are more inclined to believe that appellee had certain selfish. on the contrary. . . Contrary to what petitioner had insisted on from the very start. ulterior and undisclosed motives known only to itself.This contention was sustained in the aforesaid decision of the National Labor Relations Commission thus: . the records relied upon by the Acting Secretary of Labor (actually the records referred to are the affidavits attached as Annexes "A" to "D" of the position paper dated August 10. and what is more. the affidavits were executed only in August. The alleged immoral acts transpired before the marriage and if it is these alleged undignified conduct that triggered the intended separation. allegedly based on immoral acts committed even much earlier. but the disciplinenary action imposed by appellee was sought only in February. we are constrained to review the factual conclusions arrived at by public respondent. . the alleged acts complained of invariably happened from September to December. we are of the considered view that the determination of the legality of the dismissal hinges on the issue of whether or not there is substantial evidence to prove that the antecedent facts which culminated in the marriage between petitioner and her student constitute immorality and/or grave misconduct. however. what is before us is a factual question. 1976 and from all indications. 24 . is open to basis of the action sought seriously doubted. and very important at that. the circumstances of each particular case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law. The findings of fact must be supported by substantial evidence. . however.R. the burden of proving just and valid cause for dismissing an employee rests on the employer and his failure to do so would result in a finding that the dismissal is unjustified. ROBERTA NICOLE SADIUA. despite the disparity in their ages and academic levels. minor. 1993 JUAN ANTONIO. and represented by their parents ANTONIO and RIZALINA OPOSA. without any deduction or qualification. If the two eventually fell in love. which we hereby reject. from the outset even the labor arbiter conceded that there was no direct evidence to show that immoral acts were committed. Private respondent utterly failed to show that petitioner took advantage of her position to court her student. Private respondent Tay Tung High School. 26 a finding which herein public respondent himself shared. What is revealing however. It would seem quite obvious that the avowed policy of the school in rearing and educating children is being unnecessarily bannered to justify the dismissal of petitioner. therefore. In termination cases. . despite his prior trenchant observations hereinbefore quoted. 101083 July 30. No. and separation pay in the amount of one (1) month for every year of service. this only lends substance to the truism that the heart has reasons of its own which reason does not know. is that the reversal of his original decision is inexplicably based on unsubstantiated surmises and non sequiturs which he incorporated in his assailed resolution in this wise: . that the relationship between petitioner and private respondent has been inevitably and severely strained. indulging in a patently unfair conjecture. G. we believe that it would neither be to the interest of the parties nor would any prudent purpose be served by ordering her reinstatement. . This policy. But. 27 With the finding that there is no substantial evidence of the imputed immoral acts. no one directly saw Evelyn Chua and Bobby Qua doing immoral acts inside the classroom it seems obvious and this Office is convinced that such a happening indeed transpired within the solitude of the classrom after regular class hours. however. 1978 is ANNULLED and SET ASIDE. CARLO. it follows that the alleged violation of the Code of Ethics governing school teachers would have no basis. is not at odds with and should not be capitalized on to defeat the security of tenure granted by the Constitution to labor. . While admittedly. is hereby ORDERED to pay petitioner backwages equivalent to three (3) years. AMANDA SALUD . SO ORDERED. represented by her parents CALVIN and ROBERTA SADIUA. the National Labor Relations Commission observed that the assertions of immoral acts or conducts are gratuitous and that there is no direct evidence to support such claim. The deviation of the circumstances of their marriage from the usual societal pattern cannot be considered as a defiance of contemporary social mores. minors. all surnamed OPOSA. WHEREFORE. we declare her dismissal as unwarranted and illegal. dated December 6. . the petition for certiorari is GRANTED and the resolution of public respondent.As earlier stated. at a loss as to how public respondent could adopt the volte-face in the questioned resolution. he concluded that "it is however enough for a sane and credible mind to imagine and conclude what transpired during those times." 25 In reversing his decision. It being apparent. definitely. Nonetheless. ANNA ROSARIO and JOSE ALFONSO. . Inc. We are. yielding to this gentle and universal emotion is not to be so casually equated with immorality. The charge against petitioner not having been substantiated. The marriage between Evelyn Chua and Bobby Qua is the best proof which confirms the suspicion that the two indulged in amorous relations in that place during those times of the day. J. and MARIETTE. and THE PHILIPPINE ECOLOGICAL NETWORK. and IMEE LYN. CARLO JOAQUIN T. minors. minors. JR. MARGARITA. minor. then Secretary of the Department of Environment and Natural Resources (DENR). represented by his parents GREGORIO II and CRISTINE CHARITY NARVASA. CONCEPCION. minor. represented by their parents ANTONIO and MARICA ABAYA. NAGEL. Metro Manila) of the Regional Trial Court (RTC).. The Solicitor General for respondents. STEPHEN JOHN and ISAIAH JAMES. represented by her parents JOSE and MARIA VIOLETA ALFARO." The controversy has its genesis in Civil Case No. Jr. ANGELA and MARIE GABRIELLE. minors. represented by their parents FRANCISCO. Inc. all surnamed MISA. CRISANTO. represented by their parents MARIO and LINA CARDAMA. CASTRO. it touches on the issue of whether the said petitioners have a cause of action to "prevent the misappropriation or impairment" of Philippine rainforests and "arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth. FORTUN. MA. vs. The principal plaintiffs therein. all surnamed ENDRIGA.and PATRISHA. petitioners. represented by her parents SIGRID and DOLORES FORTUN. CLARISSA. Oposa Law Office for petitioners. represented by his parents ANTONIO and ALICE PESIGAN. minors. in his capacity as the Secretary of the Department of Environment and Natural Resources. JOHANNA DESAMPARADO. GEORGE II and MA. minor. NARVASA. (PENI). non-stock and non-profit corporation organized for the purpose of. represented by their parents MARIO and HAYDEE KING. represented by their parents ROBERTO and AURORA SAENZ. MA. National Capital Judicial Region.. all surnamed BIBAL. and REGINA MA." Specifically. THE HONORABLE FULGENCIO S. FRANCISCO and THERESE VICTORIA. JR. DAVID. respondents. all surnamed ABAYA. minor. Factoran. Impleaded as an additional plaintiff is the Philippine Ecological Network. all surnamed SAENZ. PHILIP JOSEPH. The original defendant was the Honorable Fulgencio S. minors and represented by their parents RICARDO and MARISSA OPOSA. minors. all surnamed CARDAMA. this petition bears upon the right of Filipinos to a balanced and healthful ecology which the petitioners dramatically associate with the twin concepts of "inter-generational responsibility" and "inter-generational justice. minors and represented by their parents ENRICO and NIDA FLORES. are all minors duly represented and joined by their respective parents. ROSARIO. GOLDA MARTHE and DAVID IAN.: In a broader sense. JOVIE MARIE ALFARO. minor. FACTORAN. ANN MARIE. Branch 66. DAVIDE.. all surnamed OPOSA. MARILIN. MARIA CONCEPCION T. represented by their parents BALTAZAR and TERESITA ENDRIGA. represented by her parents FREDENIL and JANE CASTRO. Presiding Judge of the RTC. represented by their parents JOSE MAX and VILMI QUIPIT. all surnamed FLORES. Makati. BUGHAW CIELO. MARIO. DANIEL and FRANCISCO. represented by her parents JOSE and ANGELA DESAMPRADO.. MAY. all surnamed QUIPIT. BENJAMIN ALAN V. JESUS IGNACIO. JOSE MA. and THE HONORABLE ERIBERTO U.. now the principal petitioners. JR. all surnamed KING. INC. His substitution in this petition by the . MARY ELLEN. engaging in concerted action geared for the protection of our environment and natural resources. minors. minors. KRISTINE. ANNA. and MILAGROS BIBAL. minors and represented by their parents GEORGE and MYRA MISA. GIANINA DITA R. JR. a domestic. PESIGAN. inter alia. minor. 90-77 which was filed before Branch 66 (Makati. with the volume of soil eroded estimated at one billion (1. including the disappearance of the Filipino's indigenous cultures." 5 The complaint starts off with the general averments that the Philippine archipelago of 7." The same was filed for themselves and others who are equally concerned about the preservation of said resource but are "so numerous that it is impracticable to bring them all before the Court. it is prayed for that judgment be rendered: .000. otherwise known as the "greenhouse effect. taxpayers. such as (a) water shortages resulting from drying up of the water table. renewing or approving new timber license agreements. photographic and film evidence in the course of the trial. lush and verdant rainforests in which varied. they expressed their intention to present expert witnesses as well as documentary. the country's land area should be utilized on the basis of a ratio of fifty-four per cent (54%) for forest cover and forty-six per cent (46%) for agricultural. 1 The complaint 2 was instituted as a taxpayers' class suit 3 and alleges that the plaintiffs "are all citizens of the Republic of the Philippines. and (k) the reduction of the earth's capacity to process carbon dioxide gases which has led to perplexing and catastrophic climatic changes such as the phenomenon of global warming. irrigation and the generation of electric power. was subsequently ordered upon proper motion by the petitioners. rare and varied flora and fauna. the distortion and disturbance of this balance as a consequence of deforestation have resulted in a host of environmental tragedies. . (g) recurrent spells of drought as is presently experienced by the entire country. This notwithstanding. scientific evidence reveals that in order to maintain a balanced and healthful ecology. .new Secretary. (e) the disturbance and dislocation of cultural communities." 4 Consequently." Plaintiffs further assert that the adverse and detrimental consequences of continued and deforestation are so capable of unquestionable demonstration that the same may be submitted as a matter of judicial notice. (2) Cease and desist from receiving. processing. commercial and other uses.000. and granting the plaintiffs ". (c) massive erosion and the consequential loss of soil fertility and agricultural productivity. residential. . and entitled to the full benefit. (d) the endangering and extinction of the country's unique.000) hectares and is endowed with rich. (b) salinization of the water table as a result of the intrusion therein of salt water. such other reliefs just and equitable under the premises. use and enjoyment of the natural resource treasure that is the country's virgin tropical forests." as well as of rivers. .000) cubic meters per annum — approximately the size of the entire island of Catanduanes. the Honorable Angel C. (i) the floodings of lowlands and agricultural plains arising from the absence of the absorbent mechanism of forests. these rainforests contain a genetic. endured and flourished since time immemorial. industrial. ordering defendant. Alcala. otherwise known as the "aquifer. they are also the habitat of indigenous Philippine cultures which have existed. . representatives and other persons acting in his behalf to — (1) Cancel all existing timber license agreements in the country. brooks and streams. incontrovertible examples of which may be found in the island of Cebu and the Municipality of Bacoor. (h) increasing velocity of typhoon winds which result from the absence of windbreakers. biological and chemical pool which is irreplaceable. rare and unique species of flora and fauna may be found.100 islands has a land area of thirty million (30. (j) the siltation and shortening of the lifespan of multi-billion peso dams constructed and operated for the purpose of supplying water for domestic uses.000. his agents. accepting. Cavite." The minors further asseverate that they "represent their generation as well as generations yet unborn. (f) the siltation of rivers and seabeds and consequential destruction of corals and other aquatic life leading to a critical reduction in marine resource productivity. 8% of the entire land mass of the Philippine archipelago and about 3.000 hectares per annum or 25 hectares per hour — nighttime. disastrous consequences. 11. As a matter of fact. Sundays and holidays included — the Philippines will be bereft of forest resources after the end of this ensuing decade. Public records reveal that the defendant's. .e. 14. they specifically allege that: CAUSE OF ACTION 7. The adverse effects. Plaintiffs have a clear and constitutional right to a balanced and healthful ecology and are entitled to protection by the State in its capacity as the parens patriae. the environmental damages enumerated in paragraph 6 hereof are already being felt. about 200. Satellite images taken in 1987 reveal that there remained no more than 1. Plaintiff have exhausted all administrative remedies with the defendant's office. if not earlier. 1990. Saturdays.As their cause of action. Twenty-five (25) years ago. 12. 13. plaintiffs served upon defendant a final demand to cancel all logging permits in the country. serious injury and irreparable damage of this continued trend of deforestation to the plaintiff minor's generation and to generations yet unborn are evident and incontrovertible. benefit from and enjoy this rare and unique natural resource treasure. the Philippines had some sixteen (16) million hectares of rainforests constituting roughly 53% of the country's land mass. barely 2. predecessors have granted timber license agreements ('TLA's') to various corporations to cut the aggregate area of 3. On March 2.89 million hectares for commercial logging purposes. More recent surveys reveal that a mere 850.0%) of the country's land area. This act of defendant constitutes a misappropriation and/or impairment of the natural resource property he holds in trust for the benefit of plaintiff minors and succeeding generations. Plaintiffs replead by reference the foregoing allegations.2 million hectares of said rainforests or four per cent (4. experienced and suffered by the generation of plaintiff adults. A copy of the TLA holders and the corresponding areas covered is hereto attached as Annex "A". 15. use. i. 10. 8. The continued allowance by defendant of TLA holders to cut and deforest the remaining forest stands will work great damage and irreparable injury to plaintiffs — especially plaintiff minors and their successors — who may never see. 9. 16. At the present rate of deforestation.000 hectares of virgin old-growth rainforests are left.0 million hectares of immature and uneconomical secondary growth forests. d. Secretary Factoran. (c) to ensure the attainment of an environmental quality that is conductive to a life of dignity and well-being. b. bare. In their 12 July 1990 Opposition to the Motion. develop. the petitioners maintain that (1) the complaint shows a clear and unmistakable cause of action. (2) the . income and wealth" and "make full and efficient use of natural resources (sic).) 21. c. fails and refuses to cancel the existing TLA's to the continuing serious damage and extreme prejudice of plaintiffs. Defendant. A copy of the plaintiffs' letter dated March 1. however. in pertinent part. "protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. There is no other plain.). Article II. Furthermore. id." (Section 2. especially plaintiff minors who may be left with a country that is desertified (sic). Finally. 17." (Section 1. 22. defendant's continued refusal to cancel the aforementioned TLA's is contradictory to the Constitutional policy of the State to — a. speedy and adequate remedy in law other than the instant action to arrest the unabated hemorrhage of the country's vital life support systems and continued rape of Mother Earth.D. The continued failure and refusal by defendant to cancel the TLA's is an act violative of the rights of plaintiffs. 6 June 1977) 20. the original defendant. Defendant's refusal to cancel the aforementioned TLA's is manifestly contrary to the public policy enunciated in the Philippine Environmental Policy which. fauna and indigenous cultures which the Philippines had been abundantly blessed with. ibid). Jr. states that it is the policy of the State — (a) to create." (Section 16. 18. 1990 is hereto attached as Annex "B". Article XII of the Constitution). Article XIV. 19. (b) to fulfill the social. 1151. maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other. namely: (1) the plaintiffs have no cause of action against him and (2) the issue raised by the plaintiffs is a political question which properly pertains to the legislative or executive branches of Government. "protect the nation's marine wealth. id. economic and other requirements of present and future generations of Filipinos and.. barren and devoid of the wonderful flora. effect "a more equitable distribution of opportunities. filed a Motion to Dismiss the complaint based on two (2) grounds. defendant's act is contrary to the highest law of humankind — the natural law — and violative of plaintiffs' right to self-preservation and perpetuation. (P. 6 On 22 June 1990. "conserve and promote the nation's cultural heritage and resources (sic)" (Section 14. O. after due notice and hearing. We resolved to give due course to the petition and required the parties to submit their respective Memoranda after the Office of the Solicitor General (OSG) filed a Comment in behalf of the respondents and the petitioners filed a reply thereto. It is further claimed that the issue of the respondent Secretary's alleged grave abuse of discretion in granting Timber License Agreements (TLAs) to cover more areas for logging than what is available involves a judicial question. the same can neither be revised nor cancelled unless the holder has been found. On the other hand. 192.D. according to them. Article II of the 1987 Constitution recognizing the right of the people to a balanced and healthful ecology. respondents submit that the same cannot be done by the State without due process of law. Section 16. They then reiterate the theory that the question of whether logging should be permitted in the country is a political question which should be properly addressed to the executive or legislative branches of Government. On 18 July 1991. to safeguard the people's right to a healthful environment. No.) No. Section 4 of Executive Order (E. the respondent Judge further ruled that the granting of the relief prayed for would result in the impairment of contracts which is prohibited by the fundamental law of the land. Again." Such allegations. They see nothing in the complaint but vague and nebulous allegations concerning an "environmental right" which supposedly entitles the petitioners to the "protection by the state in its capacity as parens patriae. a TLA remains effective for a certain period of time — usually for twenty-five (25) years.motion is dilatory and (3) the action presents a justiciable question as it involves the defendant's abuse of discretion. to have violated the terms of the agreement or other forestry laws and regulations. the respondents aver that the petitioners failed to allege in their complaint a specific legal right violated by the respondent Secretary for which any relief is provided by law.O. 7 In the said order. the concept of generational genocide in Criminal Law and the concept of man's inalienable right to self-preservation and self-perpetuation embodied in natural law. They therefore assert that the petitioners' resources is not to file an action to court. respondent Judge issued an order granting the aforementioned motion to dismiss. Once issued. Anent the invocation by the respondent Judge of the Constitution's non-impairment clause. petitioners maintain that the same does not apply in this case because TLAs are not contracts. 20 and 21 of the Civil Code (Human Relations). During its effectivity. the parents of the plaintiffs-minors not only represent their children. not only was the defendant's claim — that the complaint states no cause of action against him and that it raises a political question — sustained. Petitioners' proposition to have all the TLAs . As to the matter of the cancellation of the TLAs. 8 On 14 May 1992. Petitioners contend that the complaint clearly and unmistakably states a cause of action as it contains sufficient allegations concerning their right to a sound environment based on Articles 19. do not reveal a valid cause of action. but to lobby before Congress for the passage of a bill that would ban logging totally. They likewise submit that even if TLAs may be considered protected by the said clause. Plaintiffs thus filed the instant special civil action for certiorari under Rule 65 of the Revised Rules of Court and ask this Court to rescind and set aside the dismissal order on the ground that the respondent Judge gravely abused his discretion in dismissing the action. Section 3 of Presidential Decree (P. 1151 (Philippine Environmental Policy). Petitioners likewise rely on the respondent's correlative obligation per Section 4 of E. but have also joined the latter in this case.) No. it is well settled that they may still be revoked by the State when the public interest so requires. 192 creating the DENR. We find no difficulty in ruling that they can. For although we believe that plaintiffs have but the noblest of all intentions. inter alia. with sufficient definiteness. may not be taken cognizance of . The subject matter of the complaint is of common and general interest not just to several. the judicious disposition. Consequently. if not totally impossible. every generation has a responsibility to the next to preserve that rhythm and harmony for the full enjoyment of a balanced and healthful ecology. considers the "rhythm and harmony of nature. the Court notes that the Complaint is replete with vague assumptions and vague conclusions based on unverified data. plaintiffs fail to state a cause of action in its Complaint against the herein defendant. Put a little differently. or a specific legal wrong they are seeking to prevent and redress (Sec. Petitioners instituted Civil Case No. renewal and conservation of the country's forest." Nature means the created world in its entirety. We do not hesitate to find for the petitioners and rule against the respondent Judge's challenged order for having been issued with grave abuse of discretion amounting to lack of jurisdiction. to bring all of them before the court. file a class suit. Furthermore. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. The pertinent portions of the said order reads as follows: xxx xxx xxx After a careful and circumspect evaluation of the Complaint. RRC). a specific legal right they are seeking to enforce and protect. This case. Furthermore. In fine. We must first focus on some procedural matters. for others of their generation and for the succeeding generations. Hence. Rule 3 of the Revised Rules of Court are present both in the said civil case and in the instant petition. 10 Needless to say.indiscriminately cancelled without the requisite hearing would be violative of the requirements of due process. Nevertheless. Petitioners minors assert that they represent their generation as well as generations yet unborn. for themselves. as hereinafter expounded. waters. land. becomes impracticable. all the requisites for the filing of a valid class suit under Section 12. however. but to all citizens of the Philippines. it (sic) fell short of alleging. mineral. the Court cannot help but agree with the defendant. fisheries. The locus standi of the petitioners having thus been addressed. We likewise declare that the plaintiffs therein are numerous and representative enough to ensure the full protection of all concerned interests. off-shore areas and other natural resources to the end that their exploration. management. Such a right. development and utilization be equitably accessible to the present as well as future generations. since the parties are so numerous. We shall now proceed to the merits of the petition. 1. We hereby rule that the said civil case is indeed a class suit. the latter being but an incident to the former. 90-777 as a class suit. it. Before going any further. 9 Such rhythm and harmony indispensably include. the minors' assertion of their right to a sound environment constitutes. has a special and novel element. utilization. at the same time. After a careful perusal of the complaint in question and a meticulous consideration and evaluation of the issues raised and arguments adduced by the parties. the performance of their obligation to ensure the protection of that right for the generations to come. The original defendant and the present respondents did not take issue with this matter. Rule 2. wildlife. being impressed with political color and involving a matter of public policy. the Court firmly believes that the matter before it. 16.e. This right unites with the right to health which is provided for in the preceding section of the same article: Sec. If they are now explicitly mentioned in the fundamental charter. renewing or approving new timber license agreements. no matter how we stretch our jurisdiction. accepting. A reading of the complaint itself belies these conclusions. by this Court without doing violence to the sacred principle of "Separation of Powers" of the three (3) co-equal branches of the Government. these basic rights need not even be written in the Constitution for they are assumed to exist from the inception of humankind. grant the reliefs prayed for by the plaintiffs. While the right to a balanced and healthful ecology is to be found under the Declaration of Principles and State Policies and not under the Bill of Rights. 15. is solemnly incorporated in the fundamental law. but also for those to come — generations which stand to inherit nothing but parched earth incapable of sustaining life. During the debates on this right in one of the plenary sessions of the 1986 Constitutional Commission. Such a right belongs to a different category of rights altogether for it concerns nothing less than self-preservation and self-perpetuation — aptly and fittingly stressed by the petitioners — the advancement of which may even be said to predate all governments and constitutions. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. thereby highlighting their continuing importance and imposing upon the state a solemn obligation to preserve the first and protect and advance the second. i. to cancel all existing timber license agreements in the country and to cease and desist from receiving. As a matter of fact. the day would not be too far when all else would be lost not only for the present generation. it is because of the well-founded fear of its framers that unless the rights to a balanced and healthful ecology and to health are mandated as state policies by the Constitution itself. water and noise pollution? . The State shall protect and promote the right to health of the people and instill health consciousness among them. and that the complaint is replete with vague assumptions and conclusions based on unverified data. Section 16. 11 We do not agree with the trial court's conclusions that the plaintiffs failed to allege with sufficient definiteness a specific legal right involved or a specific legal wrong committed. the following exchange transpired between Commissioner Wilfrido Villacorta and Commissioner Adolfo Azcuna who sponsored the section in question: MR. VILLACORTA: Does this section mandate the State to provide sanctions against all forms of pollution — air. The Court is likewise of the impression that it cannot.. Article II of the 1987 Constitution explicitly provides: Sec. The complaint focuses on one specific fundamental legal right — the right to a balanced and healthful ecology which. The right to a balanced and healthful ecology carries with it the correlative duty to refrain from impairing the environment. for the first time in our nation's constitutional history. it does not follow that it is less important than any of the civil and political rights enumerated in the latter. processing. The State shall protect and advance the right of the people to a balanced and healthful ecology in accord with the rhythm and harmony of nature. therefore." Section 3 thereof makes the following statement of policy: Sec. among many other things. utilization. wildlife. management. mineral. This policy declaration is substantially re-stated it Title XIV. 15specifically in Section 1 thereof which reads: Sec. (2) The State shall likewise recognize and apply a true value system that takes into account social and environmental cost implications relative to the utilization.O. consistent with the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment and the objective of making the exploration. development and utilization of such natural resources equitably accessible to the different segments of the present as well as future generations. mineral. as well as the other related provisions of the Constitution concerning the conservation. management. — It is hereby declared the policy of the State to ensure the sustainable use. the judicious management and conservation of the country's forests. renewal. MR. and lands of the public domain. for the benefit of the Filipino people. and conservation of the country's forest. fisheries. not only for the present generation but for future generations as well. management. 14 Section 4 of which expressly mandates that the Department of Environment and Natural Resources "shall be the primary government agency responsible for the conservation. development and proper use of the country's environment and natural resources. land. development and conservation of our natural resources. . renewal and conservation of the country's forest. resources. 12 The said right implies. No. Declaration of Policy. It is also the policy of the state to recognize and apply a true value system including social and environmental cost implications relative to their utilization. 192. off-shore areas and other natural resources. 1. Declaration of Policy. off-shore areas and other natural resources. development and utilization of the country's natural resources. as well as the licensing and regulation of all natural resources as may be provided for by law in order to ensure equitable sharing of the benefits derived therefrom for the welfare of the present and future generations of Filipinos. Book IV of the Administrative Code of 1987. the ecological or environmental balance would be irreversiby disrupted. land. 13 then President Corazon C. including those in reservation and watershed areas. sanctions may be provided for impairment of environmental balance. development. including the protection and enhancement of the quality of the environment. the full exploration and development as well as the judicious disposition. The right to healthful (sic) environment necessarily carries with it the correlative duty of not impairing the same and. waters. Madam President. AZCUNA: Yes. Without such forests. specifically forest and grazing lands. 3. and equitable access of the different segments of the population to the development and the use of the country's natural resources. Aquino promulgated on 10 June 1987 E. mineral. Conformably with the enunciated right to a balanced and healthful ecology and the right to health. development and conservation of our natural resources. — (1) The State shall ensure. Edrosolano. and have defined the powers and functions of the DENR. (b) to fulfill the social. hence. be in charge of carrying out the State's constitutional mandate to control and supervise the exploration. Petitioners maintain that the granting of the TLAs. which they claim was done with grave abuse of discretion. and conservation of the country's natural resources. No other matter should be considered. 192 and the Administrative Code of 1987 have set the objectives which will serve as the bases for policy formulation. 1152 (Philippine Environment Code) were issued. the right of the petitioners (and all those they represent) to a balanced and healthful ecology is as clear as the DENR's duty — under its mandate and by virtue of its powers and functions under E. . specifically speaks of the mandate of the DENR. — (1) The Department of Environment and Natural Resources shall be primarily responsible for the implementation of the foregoing policy. and (c) to insure the attainment of an environmental quality that is conducive to a life of dignity and well-being. be recalled that even before the ratification of the 1987 Constitution.D. development. A cause of action is defined as: . 21 this Court laid down the rule that the judiciary should "exercise the utmost care and circumspection in passing upon a motion to dismiss on the ground of the absence thereof [cause of action] lest. gave flesh to the said policy. by its failure to manifest a correct appreciation of the facts alleged and deemed hypothetically . On 6 June 1977. . violated their right to a balanced and healthful ecology. No. subject to law and higher authority. correlative obligation of the defendant. the truth of falsity of the said allegations is beside the point for the truth thereof is deemed hypothetically admitted. No. P.O. The only issue to be resolved in such a case is: admitting such alleged facts to be true. an act or omission of one party in violation of the legal right or rights of the other. it speaks of the "responsibilities of each generation as trustee and guardian of the environment for succeeding generations. 18 It is settled in this jurisdiction that in a motion to dismiss based on the ground that the complaint fails to state a cause of action. The former "declared a continuing policy of the State (a) to create. specific statutes already paid special attention to the "environmental right" of the present and future generations. Thus. Said section provides: Sec. economic and other requirements of present and future generations of Filipinos." Section 2 of the same Title. maintain and improve conditions under which man and nature can thrive in productive and enjoyable harmony with each other. and act or omission of the defendant in violation of said legal right. It may. (2) It shall.O. utilization.The above provision stresses "the necessity of maintaining a sound ecological balance and protecting and enhancing the quality of the environment. it makes particular reference to the fact of the agency's being subject to law and higher authority. Mandate. may the court render a valid judgment in accordance with the prayer in the complaint? 20 In Militante vs." 17 The latter statute. 1151 (Philippine Environmental Policy) and P. No. 19 the question submitted to the court for resolution involves the sufficiency of the facts alleged in the complaint itself. Both E. on the other hand. A denial or violation of that right by the other who has the corelative duty or obligation to respect or protect the same gives rise to a cause of action.D. on the other hand. however. furthermore. NO." 16 As its goal. however. 192 and the Administrative Code of 1987 — to protect and advance the said right. the full protection thereof requires that no further TLAs should be renewed or granted. 2. and its essential elements are legal right of the plaintiff. develop. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.admitted. the jurisdictional objection becomes even less tenable and decisive.. of the Constitution clearly provides: . we would still not be precluded from revolving it under the expanded jurisdiction conferred upon us that now covers. prima facie. noted: In the case now before us. the power to rule upon even the wisdom of the decisions of the executive and the legislature and to declare their acts invalid for lack or excess of jurisdiction because tainted with grave abuse of discretion. involving the settlement of conflicting rights as conferred as law. that insofar as the cancellation of the TLAs is concerned. In Daza vs. to wit. there is the need to implead. nonetheless. 90-777 be said to raise a political question. As worded. Singson. the claimed violation of their rights. they may thus be granted. a distinguished member of this Court. is the meaning of "grave abuse of discretion. On the basis thereof. What is principally involved is the enforcement of a right vis-a-vis policies already formulated and expressed in legislation. says: The first part of the authority represents the traditional concept of judicial power. If that happens. The last ground invoked by the trial court in dismissing the complaint is the non-impairment of contracts clause found in the Constitution. however. The second part of the authority represents a broadening of judicial power to enable the courts of justice to review what was before forbidden territory. Section 1. there is a blot on the legal order. It bears stressing." which is a very elastic phrase that can expand or contract according to the disposition of the judiciary. what the law grants or recognizes is effectively nullified. Civil Case No. Policy formulation or determination by the executive or legislative branches of Government is not squarely put in issue. the reliefs prayed for. even the political question. The second paragraph of section 1. even if we were to assume that the issue presented before us was political in nature. We find the statements under the introductory affirmative allegations. as well as the specific averments under the sub-heading CAUSE OF ACTION. and particularly the Supreme Court. Justice Cruz. The catch. of course. in proper cases. as party defendants. The reason is that. wholly or partly. Commenting on this provision in his book. The foregoing considered. Cruz. now speaking for this Court. 22 Mr. The court a quo declared that: . the insurmountable obstacle to the exercise of judicial power or the impenetrable shield that protects executive and legislative actions from judicial inquiry or review. Article VII. the new provision vests in the judiciary. Article VIII of the Constitution states that: Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. 23 Mr. to be adequate enough to show.. the grantees thereof for they are indispensable parties. be emphasized that the political question doctrine is no longer. The law itself stands in disrepute." After careful examination of the petitioners' complaint. Philippine Political Law. the discretion of the political departments of the government. It must. Justice Isagani A. . renewing or approving new timber license agreements. Thus. A timber license is an instrument by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. 54 O. Decree No. which can be validly withdrawn whenever dictated by public interest or public welfare as in this case. nor does it create a vested right. vs. . 168). L-24548. 1983. they are not deemed contracts within the purview of the due process of law clause [See Sections 3(ee) and 20 of Pres. .e.. neither is it property or property rights (People vs. 7576). he would have acted with utmost infidelity to the Government by providing undue and unwarranted benefits and advantages to the timber license holders because he would have forever bound the Government to strictly respect the said licenses according to their terms and conditions regardless of changes in policy and the demands of public interest and welfare. No. on the contrary. No. even invoke in his motion to dismiss the non-impairment clause. permit. Tan v. licenses or any other form of privilege granted herein . the President may amend. We are amazed.R. For to do otherwise would amount to "impairment of contracts" abhored (sic) by the fundamental law. into every timber license must be read Section 20 of the Forestry Reform Code (P. or municipal. as amended. it is only a license or privilege. Needless to say. modified. no matter how we stretch our jurisdiction. to cancel all existing timber license agreements in the country and to cease and desist from receiving. That when the national interest so requires. The Court is likewise of the impression that it cannot. Timber licenses. i.D. this Court held that the granting of license does not create irrevocable rights. state. replaced or rescinded by the Chief Executive when national interests so require. Deputy Executive Secretary: 26 .J. granting it and the person to whom it is granted. 25 this Court held: . federal. Director of Forestry. 125 SCRA 302]. 705) which provides: . grant the reliefs prayed for by the plaintiffs. 24 We are not persuaded at all. If he had done so. Director of Forestry. Jr. We reiterated this pronouncement in Felipe Ysmael. permits and license agreements are the principal instruments by which the State regulates the utilization and disposition of forest resources to the end that public welfare is promoted. G. A timber license is not a contract within the purview of the due process clause. and is not a contract between the authority. Provided. . concession. replace or rescind any contract. & Co. modify. all licenses may thus be revoked or rescinded by executive action. Also. Ong Tin. In the first place. nor is it taxation (37 C.G. 705. by such a sweeping pronouncement.. They may be validly amended. And it can hardly be gainsaid that they merely evidence a privilege granted by the State to qualified entities. Inc. and do not vest in the latter a permanent or irrevocable right to the particular concession area and the forest products therein. . . processing. neither is it property or a property right. the respondent Secretary did not. for obvious reasons. In Tan vs. if not shocked. October 27. He was aware that as correctly pointed out by the petitioners. . It is not a contract. Thus. A license is merely a permit or privilege to do what otherwise would be unlawful. . property or a property right protested by the due process clause of the Constitution. . accepting. the non-impairment clause must yield to the police power of the state. renewing or approving new timber licenses for. The reason for this is emphatically set forth in Nebia vs. the same cannot still be stigmatized as a violation of the non-impairment clause. This is because by its very nature and purpose. processing. even if it is to be assumed that the same are contracts. the non-impairment clause cannot as yet be invoked. as the trial court did. save in cases of renewal. No law impairing. granting further that a law has actually been passed mandating cancellations or modifications. such as law could have only been passed in the exercise of the police power of the state for the purpose of advancing the right of the people to a balanced and healthful ecology. . it is difficult to imagine. accepting. for government cannot exist if the citizen may at will use his property to the detriment of his fellows. In the second place. The same is understood to be subject to reasonable legislative regulation aimed at the promotion of public health. Moreover. the instant case does not involve a law or even an executive issuance declaring the cancellation or modification of existing timber licenses. In other words. moral and general welfare. promoting their health and enhancing the general welfare. In Abe vs. 29 quoted in Philippine American Life Insurance Co. 90-777 is hereby set aside. In short. No pronouncement as to costs. vs. The petitioners may therefore amend their complaint to implead as defendants the holders or grantees of the questioned timber license agreements. no contract would have as of yet existed in the other instances.Since timber licenses are not contracts. 30 to wit: Under our form of government the use of property and the making of contracts are normally matters of private and not of public concern. Hence. SO ORDERED. the instant Petition is hereby GRANTED. New York. being impressed with merit. is not meant to be absolute. The general rule is that both shall be free of governmental interference. 10. 27 cannot be invoked. the holder is not entitled to it as a matter of right. safety. Auditor General. how the non-impairment clause could apply with respect to the prayer to enjoin the respondent Secretary from receiving. the non-impairment clause. with respect to renewal. 28 this Court stated: The freedom of contract. and the challenged Order of respondent Judge of 18 July 1991 dismissing Civil Case No. in the interest of public health. Nevertheless. safety and welfare. 31 Finally. Equally fundamental with the private right is that of the public to regulate it in the common interest. the constitutional guaranty of non-impairment of obligations of contract is limited by the exercise of the police power of the State. moral. the obligation of contracts shall be passed. under our system of government. WHEREFORE. which reads: Sec. or exercise his freedom of contract to work them harm. But neither property rights nor contract rights are absolute. Foster Wheeler Corp. of discharge of oil. Nocon. accordingly. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and. which of course embraces the utilization of all the natural resources in the territorial base of our polity. Separate Opinions FELICIANO. Romero. p. garbage and raw sewage into rivers. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment. took no part. Regalado. chemical effluents. Griño-Aquino. streets and thoroughfares. C." without doing excessive violence to language." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles. failure to rehabilitate land after strip-mining or open-pit .. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit.. that it cannot be characterized as "specific. is one of the most important cases decided by this Court in the last few years. on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies"). of dumping of organic and inorganic wastes on open land.." But although it is fundamental in character. J. J. JJ. in the first instance. what the Court appears to be saying. is vested with the necessary locus standi. Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take. mines and whole communities. pp. it has been "constitutionalized. Bellosillo. basically to myself.. 11-12). oil rigs. concur. or whether some failure to act. Whether such beneficiaries' right of action may be found under any and all circumstances. concurring I join in the result reached by my distinguished brother in the Court. 14). There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that. Bidin. to my mind. with very great respect. in this case which. JJ. I have therefore sought to clarify.Cruz. Melo and Quiason. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology. factories. Padilla. Davide. as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Puno and Vitug. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection.. I suggest. Jr. is not discussed in the decision and presumably is left for future determination in an appropriate case. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision. Narvasa. inland and coastal waters by vessels. maintenance of this suit (Decision. Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit.J.. Preamble) relating to an extremely wide range of topics: (a) air quality management. The other statements pointed out by the Court: Section 3. and so on.D. upon the other hand. Section 1. a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause. (iv) flood control and natural calamities. Title XIV. 1151. No. entitled "The Philippine Environment Code. Executive Order No.D. No. neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce.mining. (c) land use management. The Philippine Environment Code does not. appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. . (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources. (b) water quality management. the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted. (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. those implications are too large and far-reaching in nature even to be hinted at here. and P. Firstly. (ii) wild life. in other words. 1152. 192 dated 10 June 1987. the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. contamination of ground water resources." is. P. (iii) forestry and soil conservation. as general and abstract as the constitutional statements of basic policy in Article II. Book IV of the 1987 Administrative Code. (v) energy development. Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). destruction of fisheries. loss of certain species of fauna and flora. As a matter of logic. also dated 6 June 1977. Secondly. The implications of this doctrine will have to be explored in future cases. dated 6 June 1977 — all appear to be formulations of policy. coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals. kaingin or slash-and-burn farming. under all the circumstances which exist. before the trial court. our courts have no claim to special technical competence and experience and professional qualification. . (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction. if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this.. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable. then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners. rather than a constitutional or statutory policy. . it is respectfully submitted. to propel courts into the uncharted ocean of social and economic policy making. Jr. considering the general policy principles found in the Constitution and the existence of the Philippine Environment Code. in other words. and that the trial court should have given petitioners an effective opportunity so to demonstrate. defendants may well be unable to defend themselves intelligently and effectively. To my mind. . My learned brother Davide. rightly insists that the timber companies. J. and to implement them before the courts should intervene. It might be asked that. must be impleaded in the proceedings below. imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. operable norms and standards are shown to exist. there are due process dimensions to this matter. whose concession agreements or TLA's petitioners demand public respondents should cancel. or failures to act. operable legal right. At least in respect of the vast area of environmental protection and management.My suggestion is simply that petitioners must. show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions. as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. . The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved.. for at least two (2) reasons. the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law. Where no specific. petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. instead of aborting the proceedings on a motion to dismiss. petitioners implicitly assume). One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms." the result will be. It seems to me important that the legal right which is an essential component of a cause of action be a specific. what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege. . J. of discharge of oil. p. The seminal principles laid down in this decision are likely to influence profoundly the direction and course of the protection and management of the environment. is not discussed in the decision and presumably is left for future determination in an appropriate case." The list of particular claims which can be subsumed under this rubic appears to be entirely open-ended: prevention and control of emission of toxic fumes and smoke from factories and motor vehicles. Davide. in this case which. to my mind.. loss of certain species of fauna and flora. J. and so on. and P. 192 dated 10 June 1987. There is no question that "the right to a balanced and healthful ecology" is "fundamental" and that. The other statements pointed out by the Court: Section 3. which of course embraces the utilization of all the natural resources in the territorial base of our polity. be subjected to closer examination. destruction of fisheries. as against both the public administrative agency directly concerned and the private persons or entities operating in the field or sector of activity involved. Title XIV. including the forest cover of our territory. The Court has also declared that the complaint has alleged and focused upon "one specific fundamental legal right — the right to a balanced and healthful ecology" (Decision. factories. kaingin or slash-and-burn farming. Locus standi is not a function of petitioners' claim that their suit is properly regarded as a class suit. contamination of ground water resources. Section 1. streets and thoroughfares. on the part of the governmental agency concerned must be shown ("prior exhaustion of administrative remedies")." without doing excessive violence to language. basically to myself. Jr. I understand locus standi to refer to the legal interest which a plaintiff must have in the subject matter of the suit. pp. oil rigs. it has been "constitutionalized. is one of the most important cases decided by this Court in the last few years. is vested with the necessary locus standi. I have therefore sought to clarify. 1151. in the first instance. of dumping of organic and inorganic wastes on open land. coral reefs and other living sea resources through the use of dynamite or cyanide and other chemicals. however. No. garbage and raw sewage into rivers. is of extreme importance for the country. The Court may be seen therefore to be recognizing a beneficiaries' right of action in the field of environmental protection.. maintenance of this suit (Decision. # Separate Opinions FELICIANO. I suggest. concurring I join in the result reached by my distinguished brother in the Court. what the Court appears to be saying. dated 6 June 1977 — all appear to be . failure to rehabilitate land after strip-mining or open-pit mining. Book IV of the 1987 Administrative Code. mines and whole communities. 11-12). Because of the very broadness of the concept of "class" here involved — membership in this "class" appears to embrace everyone living in the country whether now or in the future — it appears to me that everyone who may be expected to benefit from the course of action petitioners seek to require public respondents to take. 14). accordingly. Whether such beneficiaries' right of action may be found under any and all circumstances. The doctrines set out in the Court's decision issued today should. or whether some failure to act. chemical effluents. The Court explicitly states that petitioners have the locus standi necessary to sustain the bringing and. with very great respect.D." But although it is fundamental in character. inland and coastal waters by vessels. It is in fact very difficult to fashion language more comprehensive in scope and generalized in character than a right to "a balanced and healthful ecology. that it cannot be characterized as "specific. Executive Order No.I vote to grant the Petition for Certiorari because the protection of the environment. the Court should be understood as simply saying that such a more specific legal right or rights may well exist in our corpus of law.formulations of policy. (vi) conservation and utilization of surface and ground water (vii) mineral resources Two (2) points are worth making in this connection. as general and abstract as the constitutional statements of basic policy in Article II. neither petitioners nor the Court has identified the particular provision or provisions (if any) of the Philippine Environment Code which give rise to a specific legal right which petitioners are seeking to enforce.D. (iii) forestry and soil conservation. (b) water quality management. entitled "The Philippine Environment Code. The Philippine Environment Code does not. No. the Court is in effect saying that Section 15 (and Section 16) of Article II of the Constitution are self-executing and judicially enforceable even in their present form. Preamble) relating to an extremely wide range of topics: (a) air quality management. appear to contemplate action on the part of private persons who are beneficiaries of implementation of that Code. To my mind. considering the general policy . also dated 6 June 1977. Firstly. (d) natural resources management and conservation embracing: (i) fisheries and aquatic resources. upon the other hand. (ii) wild life. a compendious collection of more "specific environment management policies" and "environment quality standards" (fourth "Whereas" clause. P. show a more specific legal right — a right cast in language of a significantly lower order of generality than Article II (15) of the Constitution — that is or may be violated by the actions. the Philippine Environment Code identifies with notable care the particular government agency charged with the formulation and implementation of guidelines and programs dealing with each of the headings and sub-headings mentioned above. those implications are too large and far-reaching in nature even to be hinted at here. The implications of this doctrine will have to be explored in future cases. My suggestion is simply that petitioners must. in other words. 1152." is. (c) land use management. Secondly. (v) energy development. As a matter of logic. by finding petitioners' cause of action as anchored on a legal right comprised in the constitutional statements above noted. Section 16 ("the right — to a balanced and healthful ecology") and 15 ("the right to health"). before the trial court. imputed to the public respondent by petitioners so that the trial court can validly render judgment granting all or part of the relief prayed for. (iv) flood control and natural calamities. or failures to act. . J. I vote to grant the Petition for Certiorari because the protection of the environment. At least in respect of the vast area of environmental protection and management. however. The second is a broader-gauge consideration — where a specific violation of law or applicable regulation is not alleged or proved. including the forest cover of our territory. My learned brother Davide. under all the circumstances which exist. petitioners implicitly assume). operable legal right. if petitioners' entitlement to the relief demanded is not dependent upon proof of breach by the timber companies of one or more of the specific terms and conditions of their concession agreements (and this. and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable.principles found in the Constitution and the existence of the Philippine Environment Code. whose concession agreements or TLA's petitioners demand public respondents should cancel... It might be asked that. petitioners can be expected to fall back on the expanded conception of judicial power in the second paragraph of Section 1 of Article VIII of the Constitution which reads: Section 1. it is respectfully submitted. ." the result will be. and that the trial court should have given petitioners an effective opportunity so to demonstrate. rightly insists that the timber companies. The doctrines set out in the Court's decision issued today should. . to propel courts into the uncharted ocean of social and economic policy making. there are due process dimensions to this matter. must be impleaded in the proceedings below. rather than a constitutional or statutory policy. Where no specific. One is that unless the legal right claimed to have been violated or disregarded is given specification in operational terms. as well as the reality of the claimed factual nexus between petitioners' specific legal rights and the claimed wrongful acts or failures to act of public respondent administrative agency. It seems to me important that the legal right which is an essential component of a cause of action be a specific. our courts have no claim to special technical competence and experience and professional qualification. be subjected to closer examination. operable norms and standards are shown to exist. They may also controvert the appropriateness of the remedy or remedies demanded by petitioners. . and to implement them before the courts should intervene. instead of aborting the proceedings on a motion to dismiss. then the policy making departments — the legislative and executive departments — must be given a real and effective opportunity to fashion and promulgate those norms and standards. for at least two (2) reasons. Jr. what will those companies litigate about? The answer I suggest is that they may seek to dispute the existence of the specific legal right petitioners should allege. in other words. is of extreme importance for the country. defendants may well be unable to defend themselves intelligently and effectively. (Emphasis supplied) When substantive standards as general as "the right to a balanced and healthy ecology" and "the right to health" are combined with remedial standards as broad ranging as "a grave abuse of discretion amounting to lack or excess of jurisdiction.