EN BANC

[G.R. No. 117472. June 25, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LEO ECHEGARAY y PILO, accusedappellant.
DECISION
PER CURIAM:
Amidst the endless debates on whether or not the reimposition of the death penalty is indeed a
deterrent as far as the commission of heinous crimes is concerned and while the attendant details
pertaining to the execution of a death sentence remain as yet another burning issue, we are tasked with
providing a clear-cut resolution of whether or not the herein accused-appellant deserves to forfeit his
place in human society for the infliction of the primitive and bestial act of incestuous lust on his own blood.
Before us for automatic review is the judgment of conviction, dated September 7, 1994, for the crime
of Rape, rendered after marathon hearing by the Regional Trial Court of Quezon City, Branch 104, the
dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered finding accused LEO ECHEGARAY Y PILO guilty beyond
reasonable doubt of the crime of RAPE as charged in the complaint, aggravated by the fact that the same was
committed by the accused who is the father/stepfather of the complainant, he is hereby sentenced to suffer the
penalty of DEATH, as provided for under RA. No. 7659; to pay the complainant Rodessa Echegaray the sum of
P50,000.00 as damages, plus all the accessory penalties provided by law, without subsidiary imprisonment in case of
insolvency, and to pay the costs."[1]
We note, however, that the charge had been formulated in this manner:
"C O M P L A I N T
The undersigned accuses LEO ECHEGARAY Y PILO of the crime of RAPE, committed as follows:
That on or about the month of April 1994, in Quezon City, Philippines, the above-named accused, by means of force
and intimidation, did then and there, wilfully, unlawfully and feloniously have carnal knowledge of the undersigned
complainant his daughter, a minor, 10 years of age, all against her will and without her consent, to her damage and
prejudice.
CONTRARY TO LAW."[2]
Upon being arraigned on August 1, 1994, the accused-appellant, assisted by his counsel de oficio,
entered the plea of "not guilty."
These are the pertinent facts of the case as summarized by the Solicitor-General in his brief:
"This is a case of rape by the father of his ten-year old daughter.

Complainant RODESSA ECHEGARAY is a ten-year old girl and a fifth-grader, born on September 11,
1983. Rodessa is the eldest of five siblings. She has three brothers aged 6, 5 and 2, respectively, and a 3-month old
baby sister. Her parents are Rosalie and Leo Echegaray, the latter being the accused-appellant himself.The victim
lives with her family in a small house located at No. 199 Fernandez St., Barangay San Antonio, San Francisco Del
Monte, Quezon City (pp. 5-9, Aug. 9, 1994, TSN).
Sometime in the afternoon of April 1994, while Rodessa was looking after her three brothers in their house as her
mother attended a gambling session in another place, she heard her father, the accused-appellant in this case, order
her brothers to go out of the house (pp. 10-11, ibid.). As soon as her brothers left, accused-appellant Leo Echegaray
approached Rodessa and suddenly dragged her inside the room (p. 12, ibid). Before she could question the appellant,
the latter immediately removed her panty and made her lie on the floor (p. 13, ibid.). Thereafter, appellant likewise
removed his underwear and immediately placed himself on top of Rodessa. Subsequently, appellant forcefully
inserted his penis into Rodessa's organ causing her to suffer intense pain (pp. 14-15, ibid.). While appellant was
pumping on her, he even uttered: 'Masarap ba, masarap ba?' and to which Rodessa answered: 'Tama na Papa,
masakit' (p. 16, ibid.). Rodessa's plea proved futile as appellant continued with his act. After satisfying his bestial
instinct, appellant threatened to kill her mother if she would divulge what had happened. Scared that her mother
would be killed by appellant, Rodessa kept to herself the ordeal she suffered. She was very afraid of appellant
because the latter, most of the time, was high on drugs (pp. 17-18, ibid.). The same sexual assault happened up to the
fifth time and this usually took place when her mother was out of the house (p. 19, ibid.).However, after the fifth
time, Rodessa decided to inform her grandmother, Asuncion Rivera, who in turn told Rosalie, Rodessa's
mother. Rodessa and her mother proceeded to the Barangay Captain where Rodessa confided the sexual assaults she
suffered. Thereafter, Rodessa was brought to the precinct where she executed an affidavit (p. 21, ibid.). From there,
she was accompanied to the Philippine National Police Crime Laboratory for medical examination (p. 22, ibid.).
Rodessa testified that the said sexual assaults happened only during the time when her mother was
pregnant. Rodessa added that at first, her mother was on her side.However, when appellant was detained, her mother
kept on telling her: 'Kawawa naman ang Tatay mo, nakakulong' (pp. 39-40, ibid.).
When Rodessa was examined by the medico-legal officer in the person of Dra. Ma. Cristina B. Preyna, [3] the
complainant was described as physically on a non-virgin state, as evidenced by the presence of laceration of the
hymen of said complainant (TSN., Aug. 22,1995, pp. 8-9)."[4]
On the other hand, the accused-appellant's brief presents a different story:
"x x x the defense presented its first witness, Rosalie Echegaray. She asserted that the RAPE charge against the
accused was only the figment of her mother's dirty mind. That her daughter's complaint was forced upon her by her
grandma and the answers in the sworn statement of Rodessa were coached. That the accusation of RAPE was
motivated by Rodessa's grandmother's greed over the lot situated at the Madrigal Estate-NHA Project, Barangay San
Antonio, San Francisco del Monte, Quezon City, which her grandmother's paramour, Conrado Alfonso gave to the
accused in order to persuade the latter to admit that Rodessa executed an affidavit of desistance after it turned out
that her complaint of attempted homicide was substituted with the crime of RAPE at the instance of her mother. That
when her mother came to know about the affidavit of desistance, she placed her granddaughter under the custody of
the Barangay Captain. That her mother was never a real mother to her.
She stated that her complaint against accused was for attempted homicide as her husband poured alcohol on her
body and attempted to burn her. She identified the certification issued by the NHA and Tag No. 87-0393 (Exh.
2). That the Certification based on the Masterlist (Exh. 3) indicates that the property is co-owned by accused and
Conrado Alfonso. That Rodessa is her daughter sired by Conrado Alfonso, the latter being the paramour of her

mother. That Conrado Alfonso waived his right and participation over the lot in favor of the accused in consideration
of the latter's accepting the fact that he is the father of Rodessa to simulate the love triangle and to conceal the
nauseating sex orgies from Conrado Alfonso's real Wife.
Accused testified in his behalf and stated that the grandmother of the complainant has a very strong motive in
implicating him to the crime of RAPE since she was interested to become the sole owner of a property awarded to
her live-in partner by the Madrigal Estate-NHA Project. That he could not have committed the imputed crime
because he considers Rodessa as his own daughter. That he is a painter-contractor and on the date of the alleged
commission of the crime, he was painting the house of one Divina Ang of Barangay Vitalis, Paraaque, Metro Manila
(Exh 4). The travel time between his work place to his residence is three (3) hours considering the condition of
traffic. That the painting contract is evidenced by a document denominated 'Contract of Services' duly accomplished
(see submarkings of Exh. 4). He asserted that he has a big sexual organ which when used to a girl 11 years old like
Rodessa, the said female organ will be 'mawawarak.' That it is abnormal to report the imputed commission of the
crime to the grandmother of the victim.
Accused further stated that her(sic) mother-in-law trumped-up a charge of drug pushing earlier and he pleaded guilty
to a lesser offense of using drugs. The decretal portion of the judgment of conviction ordering the accused to be
confined at the Bicutan Rehabilitation Center irked the grandmother of Rodessa because it was her wish that accused
should be meted the death penalty.
Accused remain steadfast in his testimony perorating the strong motive of Rodessa's grandmother in implicating him
in this heinous crime because of her greed to become the sole owner of that piece of property at the National
Housing Authority-Madrigal Project, situated at San Francisco del Monte, Quezon City, notwithstanding rigid crossexamination. He asserted that the imputed offense is far from his mind considering that he treated Rodessa as his
own daughter. He categorically testified that he was in his painting job site on the date and time of the alleged
commission of the crime.
Mrs. Punzalan was presented as third defense witness. She said that she is the laundry woman and part time baby
sitter of the family of accused. That at one time, she saw Rodessa reading sex books and the Bulgar newspaper. That
while hanging washed clothes on the vacant lot she saw Rodessa masturbating by tinkering her private parts. The
masturbation took sometime.
This sexual fling of Rodessa were corroborated by Silvestra Echegaray, the fourth and last witness for the
defense. She stated that she tried hard to correct the flirting tendency of Rodessa and that she scolded her when she
saw Rodessa viewing an X-rated tape. Rodessa according to her was fond of going with friends of ill-repute. That
(sic) she corroborated the testimony of Mrs Punzalan by stating that she herself saw Rodessa masturbating inside the
room of her house."[5]
In finding the accused-appellant guilty beyond reasonable doubt of the crime of rape, the lower court
dismissed the defense of alibi and lent credence to the straightforward testimony of the ten-year old victim
to whom no ill motive to testify falsely against accused-appellant can be attributed. The lower court
likewise regarded as inconsequential the defense of the accused-appellant that the extraordinary size of
his penis could not have insinuated itself into the victim's vagina and that the accused is not the real
father of the said victim.
The accused-appellant now reiterates his position in his attempt to seek a reversal of the lower
court's verdict through the following assignment of errors:

1. THE LOWER COURT FAILED TO APPRECIATE THE SINISTER MOTIVE OF PRIVATE

COMPLAINANT'S GRANDMOTHER THAT PRECIPITATED THE FILING OF THE CHARGE
OF RAPE, HENCE IT ERRED IN HOLDING ACCUSED GUILTY AS CHARGED.
2. THE COURT BELOW OVERLOOKED THE FACT THAT THE HEALED LACERATIONS AT 3
AND 7 O'CLOCK COULD NOT HAVE BEEN DUE TO THE PUMPING OF THE PENIS OF
ACCUSED TO THE VAGINA OF PRIVATE COMPLAINANT, HENCE IT ERRED IN
HOLDING THAT ACCUSED COMMITTED THE CRIME CHARGED, NOTWITHSTANDING
VEHEMENT DENIAL.
3. THE COURT A QUO WHIMSICALLY IGNORED THE DEFENSE OF ALIBI THAT ACCUSED
WAS IN PARAAQUE ON THE DATE AND TIME OF THE IMPUTED CRIME HENCE, IT
ERRED IN HOLDING THAT ALIBI IS NOT SUSTAINABLE IN THE CASE AT BAR." [6]
Considering that a rape charge, in the light of the reimposition of the death penalty, requires a
thorough and judicious examination of the circumstances relating thereto, this Court remains guided by
the following principles in evaluating evidence in cases of this nature: (a) An accusation for rape can be
made with facility; it is difficult to prove but more difficult for the accused though innocent to disprove; (b)
In view of the intrinsic nature of the crime of rape where only two persons are involved, the testimony of
the complainant must be scrutinized with extreme caution; and (c) The evidence for the prosecution must
stand and fall on its own merits, and cannot be allowed to draw strength from the weakness of the
evidence for the defense."[7]
Anent the first assigned error, no amount of persuasion can convince this Court to tilt the scales of
justice in favor of the accused-appellant notwithstanding that he cries foul insisting that the rape charge
was merely concocted and strongly motivated by greed over a certain lot situated at the NHA-Madrigal
Estate Housing Project, Barangay San Antonio, San Francisco del Monte, Quezon City. The accusedappellant theorizes that prosecution witness Asuncion Rivera, the maternal grandmother of the victim
Rodessa, concocted the charge of rape so that, in the event that the accused-appellant shall be meted
out a death sentence, title to the lot will be consolidated in her favor. Indeed, the lot in question is coowned by the accused-appellant and Conrado Alfonso, the live-in partner of Asuncion Rivera, according
to the records of the National Housing Authority (Exh. "3"). The accused-appellant would want us to
believe that the rape charge was fabricated by Asuncion Rivera in order to eliminate the accusedappellant from being a co-owner. So, the live-in partners would have the property for their own. [8]
We believe, as did the Solicitor-General, that no grandmother would be so callous as to instigate her
10-year old granddaughter to file a rape case against her own father simply on account of her alleged
interest over the disputed lot.[9]
It is a well-entrenched jurisprudential rule that the testimony of a rape victim is credible where she
has no motive to testify against the accused.[10]
We find no flaws material enough to discredit the testimony of the ten-year old Rodessa which the
trial court found convincing enough and unrebutted by the defense. The trial court not surprisingly noted
that Rodessa's narration in detail of her father's monstrous acts had made her cry. [11] Once again, we rule
that:

"x x x The testimony of the victim who was only 12 years old at the time of the rape as to the circumstances of the
rape must be given weight for testimony of young and immature rape victims are credible (People v. Guibao, 217
SCRA 64 [1993]). No woman especially one of tender age, practically only a girl, would concoct a story of
defloration, allow an examination of her private parts and thereafter expose herself to a public trial, if she were not
motivated solely by the desire to have the culprit apprehended and punished (People v. Guibao, supra)."[12]
The accused-appellant points out certain inconsistencies in the testimonies of the prosecution
witnesses in his attempt to bolster his claim that the rape accusation against him is malicious and
baseless. Firstly, Rodessa's testimony that the accused-appellant was already naked when he dragged
her inside the room is inconsistent with her subsequent testimony that the said accused-appellant was still
wearing short pants when she was dragged inside the room. Secondly, Rodessa's sworn statement
before the police investigator which indicated that, while the accused was executing pumping acts, he
uttered the words "Masarap ba?", differ from her testimony in court wherein she related that when the
accused took out his penis from her vagina, the accused said "Masarap, tapos na." Thirdly, the victim's
grandmother, Asuncion Rivera, recounted in her sworn statement that it was the accused who went to see
her to apprise her of the rape committed on her granddaughter. However, in her testimony in court,
Asuncion Rivera claimed that she was the one who invited the accused-appellant to see her in her house
so as to tell her a secret. [13] These alleged discrepancies merely pertain to minor details which in no way
pose serious doubt as to the credibility of the prosecution witnesses. Whether or not the accused was
naked when he dragged Rodessa inside the room where he sexually assaulted her bears no significant
effect on Rodessa's testimony that she was actually raped by the accused-appellant. Moreover, a
conflicting account of whatever words were uttered by the accused-appellant after he forcefully inserted
his penis into Rodessa's private organ against her will cannot impair the prosecution's evidence as a
whole. A determination of which version earmarks the truth as to how the victim's grandmother learned
about the rape is inconsequential to the judgment of conviction.
As we have pronounced in the case of People v. Jaymalin:[14]
"This Court has stated time and again that minor inconsistencies in the narration of a witness do not detract from
its essential credibility as long as it is on the whole coherent and intrinsically believable. Inaccuracies may in fact
suggest that the witness is telling the truth and has not been rehearsed as it is not to be expected that he will be able
to remember every single detail of an incident with perfect or total recall."
After due deliberation, this Court finds that the trial judge's assessment of the credibility of the
prosecution witnesses deserves our utmost respect in the absence of arbitrariness.
With respect to the second assigned error, the records of the instant case are bereft of clear and
concrete proof of the accused-appellant's claim as to the size of his penis and that if that be the fact, it
could not have merely caused shallow healed lacerations at 3:00 and 7:00 o'clock. [15] In his testimony, the
accused- appellant stated that he could not have raped Rodessa because of the size of his penis which
could have ruptured her vagina had he actually done so. [16] This Court gives no probative value on the
accused-appellant's self-serving statement in the light of our ruling in the case of People v. Melivo, supra,
[17]
that:
"The vaginal wall and the hymenal membrane are elastic organs capable of varying degrees of distensibility. The
degree of distensibility of the female reproductive organ is normally limited only by the character and size of the
pelvic inlet, other factors being minor. The female reproductive canal being capable of allowing passage of a regular

fetus, there ought to be no difficulty allowing the entry of objects of much lesser size, including the male
reproductive organ, which even in its largest dimensions, would still be considerably smaller than the full-term fetus.
xxx xxx xxx
In the case at bench, the presence of healed lacerations in various parts of the vaginal wall, though not as extensive
as appellant might have expected them to be, indicate traumatic injury to the area within the period when the
incidents were supposed to have occurred." (At pp. 13-14, Italics supplied)
In rape cases, a broken hymen is not an essential element thereof. [18] A mere knocking at the doors
of the pudenda, so to speak, by the accused's penis suffices to constitute the crime of rape as full entry
into the victim's vagina is not required to sustain a conviction. [19] In the case, Dr. Freyra, the medico-legal
examiner, categorically testified that the healed lacerations of Rodessa on her vagina were consistent
with the date of the commission of the rape as narrated by the victim to have taken place in April, 1994. [20]
Lastly, the third assigned error deserves scant consideration. The accused-appellant erroneously
argues that the Contract of Services (Exhibit 4) offered as evidence in support of the accused-appellant's
defense of alibi need not be corroborated because there is no law expressly requiring so. [21] In view of our
finding that the prosecution witnesses have no motive to falsely testify against the accused-appellant, the
defense of alibi, in this case, uncorroborated by other witnesses, should be completely disregarded.
[22]
More importantly, the defense of alibi which is inherently weak becomes even weaker in the face of
positive identification of the accused-appellant as perpetrator of the crime of rape by his victim, Rodessa.
[23]

The Contract of Services whereby the accused-appellant obligated himself to do some painting Job
at the house of one Divina Ang in Paranaque, Metro Manila, within 25 days from April 4, 1994, is not proof
of the whereabouts of the accused-appellant at the time of the commission of the offense.
The accused-appellant in this case is charged with Statutory Rape on the basis of the complaint,
dated July 14, 1994. The gravamen of the said offense, as stated in paragraph 3, Article 335 of the
Revised Penal Code, is the carnal knowledge of a woman below twelve years old. [24]Rodessa positively
identified his father accused-appellant, succeeded in consummating his grievous and odious sexual
assault on her is free from any substantial self-contradiction. It is highly inconceivable that it is rehearsed
and fabricated upon instructions from Rodessa's maternal grandmother Asuncion Rivera as asserted by
the accused-appellant. The words of Chief Justice Enrique M. Fernando, speaking for the Court, more
than two decades ago, are relevant and worth reiterating, thus:
"x x x it is manifest in the decisions of this Court that where the offended parties are young and immature girls like
the victim in this case, (Cited cases omitted) there is marked receptivity on its part to lend credence to their version
of what transpired. It is not to be wondered at. The state, as parens patria, is under the obligation to minimize the
risk of harm to those, who, because of their minority, are as yet unable to take care of themselves fully. Those of
tender years deserve its utmost protection. Moreover, the injury in cases of rape is not inflicted on the unfortunate
victim alone. The consternation it causes her family must also be taken into account. It may reflect a failure to abide
by the announced concern in the fundamental law for such institution. There is all the more reason then for the
rigorous application of the penal law with its severe penalty for this offense, whenever warranted. It has been aptly
remarked that with the advance in civilization, the disruption in public peace and order it represents defies
explanation, much more so in view of what currently appears to be a tendency for sexual permissiveness. Where the
prospects of relationship based on consent are hardly minimal, self-restraint should even be more marked." [25]

Under Section 11 of Republic Act No. 7659 often referred to as the Death Penalty Law, Art. 335 of
the Revised Penal Code was amended, to wit:
"The death penalty shall also be imposed if the crime of rape is committed with any of the following attendant
circumstances:
1. When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian,
relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the
victim.
xxx xxx xxx
(Italics supplied)
Apparently, as a last glimpse of hope, the accused-appellant questions the penalty imposed by the
trial court by declaring that he is neither a father, stepfather or grandfather of Rodessa although he was a
confirmed lover of Rodessa's mother.[26] On direct examination, he admitted that before the charge of rape
was filed against him, he had treated Rodessa as his real daughter and had provided for her food,
clothing, shelter and education.[27] The Court notes that Rodessa uses the surname of the accusedappellant, not Rivera (her mother's maiden name) nor Alfonso (her grandmother's live-in
partner). Moreover, Rodessa's mother stated during the cross-examination that she, the accusedappellant and her five children, including Rodessa, had been residing in one house only. [28] At any rate,
even if he were not the father, stepfather or grandfather of Rodessa, this disclaimer cannot save him from
the abyss where perpetrators of heinous crimes ought to be, as mandated by law. Considering that the
accused-appellant is a confirmed lover of Rodessa's mother,[29] he falls squarely within the aforequoted
portion of the Death Penalty Law under the term "common-law spouse of the parent of the victim."
The fact that the ten-year old Rodessa referred to the accused-appellant as "Papa" is reason enough
to conclude that accused-appellant is either the father or stepfather of Rodessa. Thus, the act of sexual
assault perpetrated by the accused on his young victim has become all the more repulsive and
perverse. The victim's tender age and the accused-appellant's moral ascendancy and influence over her
are factors which forced Rodessa to succumb to the accused's selfish and bestial craving. The law has
made it inevitable under the circumstances of this case that the accused-appellant face the supreme
penalty of death.
WHEREFORE, we AFFIRM the decision of the Regional Trial Court of Quezon City, Branch 104.
SO ORDERED.

[G.R. No. 175888 : January 12, 2010]

SUZETTE NICOLAS Y SORNBILON VS. ALBERTO RORNULO, ET AL); G.R. NO. 176051 (JOVITO R.
SALONGA, ET AL. VS. DANIEL SMITH, ET AL); AND G.R. NO. 176222 (BAGONG ALYANSANG
MAKABAYAN, ET AL. VS. PRESIDENT GLORIA MACAPAGAL-ARROYO, ET AL.

DECISION
AZCUNA, J.:
These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court
of Appeals inLance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212,
dated January 2, 2007.
The facts are not disputed.
Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was
charged with the crime of rape committed against a Filipina, petitioner herein, sometime on November 1, 2005, as
follows:
The undersigned accused LCpl. Daniel Smith, Ssgt. Chad Brian Carpentier, Dominic
Duplantis, Keith Silkwood and Timoteo L. Soriano, Jr. of the crime of Rape under Article 266-A
of the Revised Penal Code, as amended by Republic Act 8353, upon a complaint under oath filed
by Suzette S. Nicolas, which is attached hereto and made an integral part hereof as Annex A,
committed as follows:
That on or about the First (1st) day of November 2005, inside the Subic
Bay Freeport Zone, Olongapo City and within the jurisdiction of this Honorable
Court, the above-named accuseds (sic), being then members of the United States
Marine Corps, except Timoteo L. Soriano, Jr., conspiring, confederating together
and mutually helping one another, with lewd design and by means of force,
threat and intimidation, with abuse of superior strength and taking advantage of
the intoxication of the victim, did then and there willfully, unlawfully and
feloniously sexually abuse and have sexual intercourse with or carnal knowledge
of one Suzette S. Nicolas, a 22-year old unmarried woman inside a Starex Van
with Plate No. WKF-162, owned by Starways Travel and Tours, with Office
address at 8900 P. Victor St., Guadalupe, Makati City, and driven by accused
Timoteo L. Soriano, Jr., against the will and consent of the said Suzette S.
Nicolas, to her damage and prejudice.
CONTRARY TO LAW.[1]
Pursuant to the Visiting Forces Agreement (VFA) between the Republic of the Philippines and the United
States, entered into on February 10, 1998, the United States, at its request, was granted custody of defendant Smith
pending the proceedings.
During the trial, which was transferred from the Regional Trial Court (RTC) of Zambales to the RTC of
Makati for security reasons, the United States Government faithfully complied with its undertaking to bring
defendant Smith to the trial court every time his presence was required.
On December 4, 2006, the RTC of Makati, following the end of the trial, rendered its Decision, finding
defendant Smith guilty, thus:
WHEREFORE, premises considered, for failure of the prosecution to adduce sufficient
evidence against accused S/SGT. CHAD BRIAN CARPENTER, L/CPL. KEITH SILKWOOD
AND L/CPL. DOMINIC DUPLANTIS, all of the US Marine Corps assigned at the USS Essex,
are hereby ACQUITTED to the crime charged.

The prosecution having presented sufficient evidence against accused L/CPL. DANIEL J.
SMITH, also of the US Marine Corps at the USS Essex, this Court hereby finds him GUILTY
BEYOND REASONABLE DOUBT of the crime of RAPE defined under Article 266-A,
paragraph 1 (a) of the Revised Penal Code, as amended by R.A. 8353, and, in accordance with
Article 266-B, first paragraph thereof, hereby sentences him to suffer the penalty of reclusion
perpetua together with the accessory penalties provided for under Article 41 of the same Code.
Pursuant to Article V, paragraph No. 10, of the Visiting Forces Agreement entered into by
the Philippines and the United States, accused L/CPL. DANIEL J. SMITH shall serve his sentence
in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States
authorities. Pending agreement on such facilities, accused L/CPL. DANIEL J. SMITH is hereby
temporarily committed to the Makati City Jail.
Accused L/CPL. DANIEL J. SMITH is further sentenced to indemnify complainant
SUZETTE S. NICOLAS in the amount of P50,000.00 as compensatory damages plus P50,000.00
as moral damages.
SO ORDERED.[2]
As a result, the Makati court ordered Smith detained at the Makati jail until further orders.
On December 29, 2006, however, defendant Smith was taken out of the Makati jail by a contingent of
Philippine law enforcement agents, purportedly acting under orders of the Department of the Interior and Local
Government, and brought to a facility for detention under the control of the United States government, provided for
under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement
of December 19, 2006 which states:
The Government of the Republic of the Philippines and the Government of the United States of
America agree that, in accordance with the Visiting Forces Agreement signed between our two
nations, Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military
custody at the U.S. Embassy in Manila.
(Sgd.) KRISTIE A. KENNEY (Sgd.) ALBERTO G. ROMULO
Representative of the United States Representative of the Republic
of America of the Philippines
DATE: 12-19-06 DATE: December 19, 2006__
and the Romulo-Kenney Agreement of December 22, 2006 which states:
The Department of Foreign Affairs of the Republic of the Philippines and the Embassy of
the United States of America agree that, in accordance with the Visiting Forces Agreement signed
between the two nations, upon transfer of Lance Corporal Daniel J. Smith, United States Marine
Corps, from the Makati City Jail, he will be detained at the first floor, Rowe (JUSMAG) Building,
U.S. Embassy Compound in a room of approximately 10 x 12 square feet. He will be guarded
round the clock by U.S. military personnel. The Philippine police and jail authorities, under the
direct supervision of the Philippine Department of Interior and Local Government (DILG) will
have access to the place of detention to ensure the United States is in compliance with the terms of
the VFA.
The matter was brought before the Court of Appeals which decided on January 2, 2007, as follows:

WHEREFORE, all the foregoing considered, we resolved to DISMISS the petition for
having become moot.[3]
Hence, the present actions.
The petitions were heard on oral arguments on September 19, 2008, after which the parties submitted their
memoranda.
Petitioners contend that the Philippines should have custody of defendant L/CPL Smith because, first of all,
the VFA is void and unconstitutional.
This issue had been raised before, and this Court resolved in favor of the constitutionality of the VFA. This
was in Bayan v. Zamora,[4] brought by Bayan, one of petitioners in the present cases.
Against the barriers of res judicata vis--vis Bayan, and stare decisis vis--vis all the parties, the reversal of
the previous ruling is sought on the ground that the issue is of primordial importance, involving the sovereignty of
the Republic, as well as a specific mandate of the Constitution.
The provision of the Constitution is Art. XVIII, Sec. 25 which states:
Sec. 25. After the expiration in 1991 of the Agreement between the Philippines and the
United States of America concerning Military Bases, foreign military bases, troops, or facilities
shall not be allowed in the Philippines except under a treaty duly concurred in by the Senate and,
when the Congress so requires, ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognized as a treaty by the other contracting State.
The reason for this provision lies in history and the Philippine experience in regard to the United
States military bases in the country.
It will be recalled that under the Philippine Bill of 1902, which laid the basis for the Philippine
Commonwealth and, eventually, for the recognition of independence, the United States agreed to cede to the
Philippines all the territory it acquired from Spain under the Treaty of Paris, plus a few islands later added to its
realm, except certain naval ports and/or military bases and facilities, which the United States retained for itself.
This is noteworthy, because what this means is that Clark and Subic and the other places in
the Philippines covered by the RP-US Military Bases Agreement of 1947 were not Philippine territory, as they were
excluded from the cession and retained by the US.
Accordingly, the Philippines had no jurisdiction over these bases except to the extent allowed by the United
States.Furthermore, the RP-US Military Bases Agreement was never advised for ratification by the United States
Senate, a disparity in treatment, because the Philippines regarded it as a treaty and had it concurred in by our Senate.
Subsequently, the United States agreed to turn over these bases to the Philippines; and with the expiration
of the RP-US Military Bases Agreement in 1991, the territory covered by these bases were finally ceded to
the Philippines.
To prevent a recurrence of this experience, the provision in question was adopted in the 1987 Constitution.
The provision is thus designed to ensure that any agreement allowing the presence of foreign military
bases, troops or facilities in Philippine territory shall be equally binding on the Philippines and the foreign sovereign
State involved. The idea is to prevent a recurrence of the situation in which the terms and conditions governing the
presence of foreign armed forces in our territory were binding upon us but not upon the foreign State.

Applying the provision to the situation involved in these cases, the question is whether or not the presence
of US Armed Forces in Philippine territory pursuant to the VFA is allowed under a treaty duly concurred in by the
Senate xxx and recognized as a treaty by the other contracting State.
This Court finds that it is, for two reasons.
First, as held in Bayan v. Zamora,[5] the VFA was duly concurred in by the Philippine Senate and has been
recognized as a treaty by the United States as attested and certified by the duly authorized representative of
the United States government.
The fact that the VFA was not submitted for advice and consent of the United States Senate does not detract
from its status as a binding international agreement or treaty recognized by the said State. For this is a matter of
internal United States law. Notice can be taken of the internationally known practice by the United States of
submitting to its Senate for advice and consent agreements that are policymaking in nature, whereas those that carry
out or further implement these policymaking agreements are merely submitted to Congress, under the provisions of
the so-called CaseZablocki Act, within sixty days from ratification.[6]
The second reason has to do with the relation between the VFA and the RP-US Mutual Defense Treaty
of August 30, 1951.This earlier agreement was signed and duly ratified with the concurrence of both the Philippine
Senate and the United States Senate.
The RP-US Mutual Defense Treaty states:[7]
MUTUAL DEFENSE TREATY BETWEEN THE REPUBLIC OF THE PHILIPPINES AND
THE UNITED STATES OF AMERICA. Signed atWashington, August 30, 1951.
The Parties of this Treaty
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to live in peace with all peoples and all governments, and desiring to strengthen the
fabric of peace in the Pacific area.
Recalling with mutual pride the historic relationship which brought their two peoples together in a
common bond of sympathy and mutual ideals to fight side-by-side against imperialist aggression
during the last war.
Desiring to declare publicly and formally their sense of unity and their common
determination to defend themselves against external armed attack, so that no potential
aggressor could be under the illusion that either of them stands alone in the Pacific area.
Desiring further to strengthen their present efforts for collective defense for the preservation
of peace and security pending the development of a more comprehensive system of regional
security in the Pacific area.
Agreeing that nothing in this present instrument shall be considered or interpreted as in any way or
sense altering or diminishing any existing agreements or understandings between the Republic of
the Philippines and the United States of America.
Have agreed as follows:
ARTICLE I. The parties undertake, as set forth in the Charter of the United Nations, to settle any
international disputes in which they may be involved by peaceful means in such a manner that
international peace and security and justice are not endangered and to refrain in their international
relation from the threat or use of force in any manner inconsistent with the purposes of the United
Nations.

ARTICLE II. In order more effectively to achieve the objective of this Treaty, the Parties
separately and jointly by self-help and mutual aid will maintain and develop their individual
and collective capacity to resist armed attack.
ARTICLE III. The Parties, through their Foreign Ministers or their deputies, will consult together
from time to time regarding the implementation of this Treaty and whenever in the opinion of
either of them the territorial integrity, political independence or security of either of the Parties is
threatened by external armed attack in the Pacific.
ARTICLE IV. Each Party recognizes that an armed attack in the Pacific area on either of the
parties would be dangerous to its own peace and safety and declares that it would act to meet the
common dangers in accordance with its constitutional processes.
Any such armed attack and all measures taken as a result thereof shall be immediately reported to
the Security Council of the United Nations. Such measures shall be terminated when the Security
Council has taken the measures necessary to restore and maintain international peace and security.
ARTICLE V. For the purpose of Article IV, an armed attack on either of the Parties is deemed to
include an armed attack on the metropolitan territory of either of the Parties, or on the island
territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in
the Pacific.
ARTICLE VI. This Treaty does not affect and shall not be interpreted as affecting in any way the
rights and obligations of the Parties under the Charter of the United Nations or the responsibility
of the United Nations for the maintenance of international peace and security.
ARTICLE VII. This Treaty shall be ratified by the Republic of the Philippines and the United
Nations of America in accordance with their respective constitutional processes and will come into
force when instruments of ratification thereof have been exchanged by them at Manila.
ARTICLE VIII. This Treaty shall remain in force indefinitely. Either Party may terminate it one
year after notice has been given to the other party.
IN WITHNESS WHEREOF the undersigned Plenipotentiaries have signed this Treaty.
DONE in duplicate at Washington this thirtieth day of August, 1951.
For the Republic of the Philippines:
(Sgd.) CARLOS P. ROMULO
(Sgd.) JOAQUIN M. ELIZALDE
(Sgd.) VICENTE J. FRANCISCO
(Sgd.) DIOSDADO MACAPAGAL
For the United States of America:
(Sgd.) DEAN ACHESON
(Sgd.) JOHN FOSTER DULLES
(Sgd.) TOM CONNALLY
(Sgd.) ALEXANDER WILEY[8]
Clearly, therefore, joint RP-US military exercises for the purpose of developing the capability to resist an
armed attack fall squarely under the provisions of the RP-US Mutual Defense Treaty. The VFA, which is the
instrument agreed upon to provide for the joint RP-US military exercises, is simply an implementing agreement to
the main RP-US Military Defense Treaty. The Preamble of the VFA states:

The Government of the United States of America and the Government of the Republic of
the Philippines,
Reaffirming their faith in the purposes and principles of the Charter of the United Nations and
their desire to strengthen international and regional security in the Pacific area;
Reaffirming their obligations under the Mutual Defense Treaty of August 30, 1951;
Noting that from time to time elements of the United States armed forces may visit the
Republic of the Philippines;
Considering that cooperation between the United States and
the Philippines promotes their common security interests;

the

Republic

of

Recognizing the desirability of defining the treatment of United States personnel visiting the
Republic of the Philippines;
Have agreed as follows:[9]
Accordingly, as an implementing agreement of the RP-US Mutual Defense Treaty, it was not necessary to
submit the VFA to the US Senate for advice and consent, but merely to the US Congress under the CaseZablocki Act
within 60 days of its ratification.It is for this reason that the US has certified that it recognizes the VFA as a binding
international agreement, i.e., a treaty, and this substantially complies with the requirements of Art. XVIII, Sec. 25 of
our Constitution.[10]
The provision of Art. XVIII, Sec. 25 of the Constitution, is complied with by virtue of the fact that the
presence of the US Armed Forces through the VFA is a presence allowed under the RP-US Mutual Defense
Treaty. Since the RP-US Mutual Defense Treaty itself has been ratified and concurred in by both the Philippine
Senate and the US Senate, there is no violation of the Constitutional provision resulting from such presence.
The VFA being a valid and binding agreement, the parties are required as a matter of international law to
abide by its terms and provisions.
The VFA provides that in cases of offenses committed by the members of the US Armed Forces in
the Philippines, the following rules apply:
Article V
Criminal Jurisdiction
xxx
6. The custody of any United States personnel over whom the Philippines is to exercise
jurisdiction shall immediately reside with United States military authorities, if they so request,
from the commission of the offense until completion of all judicial proceedings. United
States military authorities shall, upon formal notification by the Philippine authorities and without
delay, make such personnel available to those authorities in time for any investigative or judicial
proceedings relating to the offense with which the person has been charged. In extraordinary
cases, the Philippine Government shall present its position to the United States Government
regarding custody, which the United States Government shall take into full account. In the event
Philippine judicial proceedings are not completed within one year, the United States shall be
relieved of any obligations under this paragraph. The one year period will not include the time
necessary to appeal. Also, the one year period will not include any time during which scheduled
trial procedures are delayed because United States authorities, after timely notification by
Philippine authorities to arrange for the presence of the accused, fail to do so.

Petitioners contend that these undertakings violate another provision of the Constitution, namely, that
providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art.
VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a
different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art.
III, Sec. 1.).
Again, this Court finds no violation of the Constitution.
The equal protection clause is not violated, because there is a substantial basis for a different treatment of a
member of a foreign military armed forces allowed to enter our territory and all other accused.[11]
The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from
local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military
units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect
their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of
the sending State only to the extent agreed upon by the parties.[12]
As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is
curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules
of procedure) of one State do not extend or apply except to the extent agreed upon to subjects of another State due
to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces.
Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some
aspects of jurisdiction (such as custody), in relation to long-recognized subjects of such immunity like Heads of
State, diplomats and members of the armed forces contingents of a foreign State allowed to enter another States
territory. On the contrary, the Constitution states that thePhilippines adopts the generally accepted principles of
international law as part of the law of the land. (Art. II, Sec. 2).
Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes
to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that
governs is the following provision of the VFA:
Article V
Criminal Jurisdiction
xxx
Sec. 10. The confinement or detention by Philippine authorities of United
States personnel shall be carried out in facilities agreed on by appropriate Philippines and United
States authorities. United States personnel serving sentences in the Philippines shall have the right
to visits and material assistance.
It is clear that the parties to the VFA recognized the difference between custody during the trial and
detention after conviction, because they provided for a specific arrangement to cover detention. And this specific
arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both
parties, but also that the detention shall be by Philippine authorities. Therefore, the Romulo-Kenney Agreements of
December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy,
are not in accord with the VFA itself because such detention is not by Philippine authorities.
Respondents should therefore comply with the VFA and negotiate with representatives of the United
States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the
VFA.
Next, the Court addresses the recent decision of the United States Supreme Court in Medellin v. Texas ( 552
US ___ No. 06-984, March 25, 2008), which held that treaties entered into by the United States are not

automatically part of their domestic law unless these treaties are self-executing or there is an implementing
legislation to make them enforceable.
On February 3, 2009, the Court issued a Resolution, thus:
G.R. No. 175888 (Suzette Nicolas y Sombilon v. Alberto Romulo, et al.); G.R. No. 176051 (Jovito
R. Salonga, et al. v. Daniel Smith, et al.); and G.R. No. 176222 (Bagong Alyansang
Makabayan [BAYAN], et al. v. President Gloria Macapagal-Arroyo, et al.).
The parties, including the Solicitor General, are required to submit within three (3) days a
Comment/Manifestation on the following points:
1.

What is the implication on the RP-US Visiting Forces Agreement of the recent US
Supreme Court decision in Jose Ernesto Medellin v. Texas, dated March 25, 2008, to the
effect that treaty stipulations that are not self-executory can only be enforced pursuant to
legislation to carry them into effect; and that, while treaties may comprise international
commitments, they are not domestic law unless Congress has enacted implementing
statutes or the treaty itself conveys an intention that it be self-executory and is ratified on
these terms?

2.

Whether the VFA is enforceable in the US as domestic law, either because it is selfexecutory or because there exists legislation to implement it.

3.

Whether the RP-US Mutual Defense Treaty of August 30, 1951 was concurred in by
the US Senate and, if so, is there proof of the US Senate advice and consent resolution?
Peralta, J., no part.

After deliberation, the Court holds, on these points, as follows:

First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties
intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and
executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the
trial.
Secondly, the VFA is covered by implementing legislation, namely, the Case-Zablocki Act, USC Sec. 112(b) ,
inasmuch as it is the very purpose and intent of the US Congress that executive agreements registered under this Act
within 60 days from their ratification be immediately implemented. The parties to these present cases do not
question the fact that the VFA has been registered under the Case-Zablocki Act.
In sum, therefore, the VFA differs from the Vienna Convention on Consular Relations and the Avena decision of the
International Court of Justice (ICJ), subject matter of the Medellin decision. The Convention and the ICJ decision
are not self-executing and are not registrable under the Case-Zablocki Act, and thus lack legislative implementing
authority.
Finally, the RP-US Mutual Defense Treaty was advised and consented to by the US Senate on March 20,
1952, as reflected in the US Congressional Record, 82nd Congress, Second Session, Vol. 98 Part 2, pp. 2594-2595.
The framers of the Constitution were aware that the application of international law in domestic courts
varies from country to country.
As Ward N. Ferdinandusse states in his Treatise, DIRECT APPLICATION OF INTERNATIONAL
CRIMINAL LAW IN NATIONAL COURTS, some countries require legislation whereas others do not.
It was not the intention of the framers of the 1987 Constitution, in adopting Article XVIII, Sec. 25, to
require the other contracting State to convert their system to achieve alignment and parity with ours. It was simply

required that the treaty be recognized as a treaty by the other contracting State. With that, it becomes for both parties
a binding international obligation and the enforcement of that obligation is left to the normal recourse and processes
under international law.
Furthermore, as held by the US Supreme Court in Weinberger v. Rossi,[13] an executive agreement is a treaty
within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United
States. Thus, the US Supreme Court in Weinberger enforced the provisions of the executive agreement granting
preferential employment to Filipinos in the US Bases here.
Accordingly, there are three types of treaties in the American system:
1.

Art. II, Sec. 2 treaties These are advised and consented to by the US Senate in accordance with
Art. II, Sec. 2 of theUS Constitution.

2.

ExecutiveCongressional Agreements: These are joint agreements of the President and Congress
and need not be submitted to the Senate.

3.

Sole Executive Agreements. These are agreements entered into by the President. They are to be
submitted to Congress within sixty (60) days of ratification under the provisions of the CaseZablocki Act, after which they are recognized by the Congress and may be implemented.

As regards the implementation of the RP-US Mutual Defense Treaty, military aid or assistance has been
given under it and this can only be done through implementing legislation. The VFA itself is another form of
implementation of its provisions.
WHEREFORE, the petitions are PARTLY GRANTED, and the Court of Appeals Decision in CA-G.R.
SP No. 97212 dated January 2, 2007 is MODIFIED. The Visiting Forces Agreement (VFA) between the Republic
of the Philippines and the United States, entered into on February 10, 1998, is UPHELD as constitutional, but the
Romulo-Kenney Agreements of December 19 and 22, 2006 are DECLARED not in accordance with the VFA,
and respondent Secretary of Foreign Affairs is hereby ordered to forthwith negotiate with the United States
representatives for the appropriate agreement on detention facilities under Philippine authorities as provided in Art.
V, Sec. 10 of the VFA, pending which the status quo shall be maintained until further orders by this Court.
The Court of Appeals is hereby directed to resolve without delay the related matters pending therein,
namely, the petition for contempt and the appeal of L/CPL Daniel Smith from the judgment of conviction.
No costs.
SO ORDERED.

FIRST DIVISION
[G.R. No. 125865. March 26, 2001]
JEFFREY LIANG (HUEFENG), petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.
R ES OLUTION
YNARES-SANTIAGO, J.:
This resolves petitioners Motion for Reconsideration of our Decision dated January 28, 2000, denying the
petition for review.
The Motion is anchored on the following arguments:
1) THE DFAS DETERMINATION OF IMMUNITY IS A POLITICAL QUESTION TO BE MADE BY
THE EXECUTIVE BRANCH OF THE GOVERNMENT AND IS CONCLUSIVE UPON THE
COURTS.
2) THE IMMUNITY OF INTERNATIONAL ORGANIZATIONS IS ABSOLUTE.
3) THE IMMUNITY EXTENDS TO ALL STAFF OF THE ASIAN DEVELOPMENT BANK (ADB).
4) DUE PROCESS WAS FULLY AFFORDED THE COMPLAINANT TO REBUT THE DFA
PROTOCOL.
5) THE DECISION OF JANUARY 28, 2000 ERRONEOUSLY MADE A FINDING OF FACT ON THE
MERITS, NAMELY, THE SLANDERING OF A PERSON WHICH PREJUDGED PETITIONERS
CASE BEFORE THE METROPOLITAN TRIAL COURT (MTC)-MANDALUYONG.
6) THE VIENNA CONVENTION ON DIPLOMATIC RELATIONS IS NOT APPLICABLE TO THIS
CASE.
This case has its origin in two criminal Informations [1] for grave oral defamation filed against petitioner, a
Chinese national who was employed as an Economist by the Asian Development Bank (ADB), alleging that on
separate occasions on January 28 and January 31, 1994, petitioner allegedly uttered defamatory words to Joyce V.
Cabal, a member of the clerical staff of ADB. On April 13, 1994, the Metropolitan Trial Court of Mandaluyong City,
acting pursuant to an advice from the Department of Foreign Affairs that petitioner enjoyed immunity from legal
processes, dismissed the criminal Informations against him. On a petition for certiorari and mandamus filed by the
People, the Regional Trial Court of Pasig City, Branch 160, annulled and set aside the order of the Metropolitan
Trial Court dismissing the criminal cases.[2]
Petitioner, thus, brought a petition for review with this Court. On January 28, 2000, we rendered the assailed
Decision denying the petition for review. We ruled, in essence, that the immunity granted to officers and staff of the
ADB is not absolute; it is limited to acts performed in an official capacity. Furthermore, we held that the immunity
cannot cover the commission of a crime such as slander or oral defamation in the name of official duty.

On October 18, 2000, the oral arguments of the parties were heard. This Court also granted the Motion for
Intervention of the Department of Foreign Affairs.Thereafter, the parties were directed to submit their respective
memorandum.
For the most part, petitioners Motion for Reconsideration deals with the diplomatic immunity of the ADB, its
officials and staff, from legal and judicial processes in the Philippines, as well as the constitutional and political
bases thereof. It should be made clear that nowhere in the assailed Decision is diplomatic immunity denied, even
remotely. The issue in this case, rather, boils down to whether or not the statements allegedly made by petitioner
were uttered while in the performance of his official functions, in order for this case to fall squarely under the
provisions of Section 45 (a) of the Agreement Between the Asian Development Bank and the Government of the
Republic of the Philippines Regarding the Headquarters of the Asian Development Bank, to wit:
Officers ands staff of the Bank, including for the purpose of this Article experts and consultants performing missions
for the Bank, shall enjoy the following privileges and immunities:
(a) Immunity from legal process with respect to acts performed by them in their official capacity except when the
Bank waives the immunity.
After a careful deliberation of the arguments raised in petitioners and intervenors Motions for Reconsideration,
we find no cogent reason to disturb our Decision of January 28, 2000. As we have stated therein, the slander of a
person, by any stretch, cannot be considered as falling within the purview of the immunity granted to ADB officers
and personnel. Petitioner argues that the Decision had the effect of prejudging the criminal case for oral defamation
against him. We wish to stress that it did not. What we merely stated therein is that slander, in general, cannot be
considered as an act performed in an official capacity. The issue of whether or not petitioners utterances constituted
oral defamation is still for the trial court to determine.
WHEREFORE, in view of the foregoing, the Motions for Reconsideration filed by petitioner and intervenor
Department of Foreign Affairs are DENIED with FINALITY.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 203335

February 11, 2014

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, JANETTE TORAL and
ERNESTO SONIDO, JR., Petitioners,
vs.
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT, THE EXECUTIVE DIRECTOR OF THE INFORMATION AND
COMMUNICATIONS TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE
and THE DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203299
LOUIS "BAROK" C. BIRAOGO, Petitioner,
vs.
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL POLICE, Respondents.
x-----------------------x
G.R. No. 203306
ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MOVEMENT, INC., JERRY S.
YAP, BERTENI "TOTO" CAUSING, HERNANI Q. CUARE, PERCY LAPID, TRACY CABRERA,
RONALDO E. RENTA, CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners,
vs.
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon Aquino III, SENATE OF
THE PHILIPPINES, and HOUSE OF REPRESENTATIVES, Respondents.
x-----------------------x
G.R. No. 203359

SENATOR TEOFISTO DL GUINGONA III, Petitioner,

vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, and DIRECTOR OF THE NATIONAL BUREAU OF
INVESTIGATION, Respondents.
x-----------------------x
G.R. No. 203378
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES-CASCOLAN, H. HARRY L.
ROQUE, JR., ROMEL R. BAGARES, and GILBERT T. ANDRES, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND MANAGEMENT, THE
DEPARTMENT OF JUSTICE, THE DEPARTMENT OF THE INTERIOR AND LOCAL GOVERNMENT,
THE NATIONAL BUREAU OF INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-DEPARTMENT OF SCIENCE AND
TECHNOLOGY, Respondents.
x-----------------------x
G.R. No. 203391
HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI CRISOSTOMO OF
ANAKBAYAN, MA. KATHERINE ELONA OF THE PHILIPPINE COLLEGIAN, ISABELLE THERESE
BAGUISI OF THE NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET AL., Petitioners,
vs.
PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-ego of President
Benigno Simeon Aquino III, LEILA DE LIMA in her capacity as Secretary of Justice, Respondents.
x-----------------------x
G.R. No. 203407
BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO M. REYES, JR., National
Artist BIENVENIDO L. LUMBERA, Chairperson of Concerned Artists of the Philippines, ELMER C.
LABOG, Chairperson of Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B. MAGLUNSOD, Vice
President of Anakpawis Party-List, LANA R. LINABAN, Secretary General Gabriela Women's Party,
ADOLFO ARES P. GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the Philippines, PAQUITO N.
OCHOA, JR., Executive Secretary, SENATE OF THE PHILIPPINES, represented by SENATE
PRESIDENT JUAN PONCE ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department of Justice, LOUIS
NAPOLEON C. CASAMBRE, Executive Director of the Information and Communications
Technology Office, NONNATUS CAESAR R. ROJAS, Director of the National Bureau of
Investigation, D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police, MANUEL
A. ROXAS II, Secretary of the Department of the Interior and Local Government,Respondents.
x-----------------------x

G.R. No. 203440

MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA. MARIA, RAY PAOLO J.
SANTIAGO, GILBERT V. SEMBRANO, and RYAN JEREMIAH D. QUAN (all of the Ateneo Human
Rights Center),Petitioners,
vs.
HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary, HONORABLE LEILA DE
LIMA in her capacity as Secretary of Justice, HONORABLE MANUEL ROXAS in his capacity as
Secretary of the Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all of the Executive
Department of Government),Respondents.
x-----------------------x
G.R. No. 203453
NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP), PHILIPPINE PRESS
INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM AND RESPONSIBILITY, ROWENA CARRANZA
PARAAN, MELINDA QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND THE
PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-ra10175/, Petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF THE
INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF BUDGET AND MANAGEMENT, THE
DIRECTOR GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF THE
NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME INVESTIGATION AND
COORDINATING CENTER, AND ALL AGENCIES AND INSTRUMENTALITIES OF GOVERNMENT
AND ALL PERSONS ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN RELATION
TO THE IMPLEMENTATION OF REPUBLIC ACT NO. 10175, Respondents.
x-----------------------x
G.R. No. 203454
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners,
vs.
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF INTERIOR AND LOCAL
GOVERNMENT,Respondents.
x-----------------------x
G.R. No. 203469
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A. ESPINA; MARCK
RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER RICHARD V. ROBILLO; AARON ERICK A.
LOZADA; GERARD ADRIAN P. MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S. REMENTILLA; MARICEL
O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH S. YU; CEBU BLOGGERS SOCIETY, INC.
PRESIDENT RUBEN B. LICERA, JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR
PEDRO E. RAHON; Petitioners,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of the Republic of the
Philippines; SENATE OF THE PHILIPPINES, represented by HON. JUAN PONCE ENRILE, in his
capacity as Senate President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R.
BELMONTE, JR., in his capacity as Speaker of the House of Representatives; HON. PAQUITO N.

OCHOA, JR., in his capacity as Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as
Secretary of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as Executive
Director, Information and Communications Technology Office; HON. NONNATUS CAESAR R.
ROJAS, in his capacity as Director, National Bureau of Investigation; and P/DGEN. NICANOR A.
BARTOLOME, in his capacity as Chief, Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203501
PHILIPPINE BAR ASSOCIATION, INC., Petitioner,
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as President of the Republic of
the Philippines; HON. PAQUITO N. OCHOA, JR., in his official capacity as Executive Secretary;
HON. LEILA M. DE LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON C.
CASAMBRE, in his official capacity as Executive Director, Information and Communications
Technology Office; NONNATUS CAESAR R. ROJAS, in his official capacity as Director of the
National Bureau of Investigation; and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his
official capacity as Chief of the Philippine National Police, Respondents.
x-----------------------x
G.R. No. 203509
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner,
vs.
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent.
x-----------------------x
G.R. No. 203515
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by BENNY D. ANTIPORDA in his
capacity as President and in his personal capacity, Petitioner,
vs.
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, DEPARTMENT OF JUSTICE,
DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, PHILIPPINE NATIONAL POLICE,
NATIONAL BUREAU OF INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN THE PASSAGE AND/OR
IMPLEMENTATION OF REPUBLIC ACT 10175, Respondents.
x-----------------------x
G.R. No. 203518
PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-PHILIPPINE COLLECTIVE
FOR MODERN HEROISM, represented by Leni Velasco, PARTIDO LAKAS NG MASA, represented
by Cesar S. Melencio, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA TONSON,
TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA ORALES, JAMES MATTHEW B.
MIRAFLOR, JUAN G.M. RAGRAGIO, MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR.,
LAUREN DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS NOEL T. DELIZO,
CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN, NAOMI L. TUPAS, KENNETH KENG, ANA
ALEXANDRA C. CASTRO, Petitioners,

vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE SECRETARY OF INTERIOR
AND LOCAL GOVERNMENT, THE SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE DIRECTOR OF THE NATIONAL
BUREAU OF INVESTIGATION, THE CHIEF, PHILIPPINE NATIONAL POLICE, THE HEAD OF THE
DOJ OFFICE OF CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
INVESTIGATION AND COORDINATING CENTER, Respondents.
DECISION
ABAD, J.:
These consolidated petitions seek to declare several provisions of Republic Act (R.A.) 10175, the
Cybercrime Prevention Act of 2012, unconstitutional and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace. Using his laptop or computer,
a person can connect to the internet, a system that links him to other computers and enable him, among
other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that he needs for
research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for the general public or
for special audiences like associates, classmates, or friends and read postings from them;
3. Advertise and promote goods or services and make purchases and payments;
4. Inquire and do business with institutional entities like government agencies, banks, stock
exchanges, trade houses, credit card companies, public utilities, hospitals, and schools; and
5. Communicate in writing or by voice with any person through his e-mail address or telephone.
This is cyberspace, a system that accommodates millions and billions of simultaneous and ongoing
individual accesses to and uses of the internet. The cyberspace is a boon to the need of the current
generation for greater information and facility of communication. But all is not well with the system since it
could not filter out a number of persons of ill will who would want to use cyberspace technology for
mischiefs and crimes. One of them can, for instance, avail himself of the system to unjustly ruin the
reputation of another or bully the latter by posting defamatory statements against him that people can
read.
And because linking with the internet opens up a user to communications from others, the ill-motivated
can use the cyberspace for committing theft by hacking into or surreptitiously accessing his bank account
or credit card or defrauding him through false representations. The wicked can use the cyberspace, too,
for illicit trafficking in sex or for exposing to pornography guileless children who have access to the
internet. For this reason, the government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings.
Notably, there are also those who would want, like vandals, to wreak or cause havoc to the computer
systems and networks of indispensable or highly useful institutions as well as to the laptop or computer
programs and memories of innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs, and memories. The

government certainly has the duty and the right to prevent these tomfooleries from happening and punish
their perpetrators, hence the Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for regulating undesirable cyberspace
activities violate certain of their constitutional rights. The government of course asserts that the law
merely seeks to reasonably put order into cyberspace activities, punish wrongdoings, and prevent hurtful
attacks on the system.
Pending hearing and adjudication of the issues presented in these cases, on February 5, 2013 the Court
extended the original 120-day temporary restraining order (TRO) that it earlier issued on October 9, 2012,
enjoining respondent government agencies from implementing the cybercrime law until further orders.
The Issues Presented
Petitioners challenge the constitutionality of the following provisions of the cybercrime law that regard
certain acts as crimes and impose penalties for their commission as well as provisions that would enable
the government to track down and penalize violators. These provisions are:
a. Section 4(a)(1) on Illegal Access;
b. Section 4(a)(3) on Data Interference;
c. Section 4(a)(6) on Cyber-squatting;
d. Section 4(b)(3) on Identity Theft;
e. Section 4(c)(1) on Cybersex;
f. Section 4(c)(2) on Child Pornography;
g. Section 4(c)(3) on Unsolicited Commercial Communications;
h. Section 4(c)(4) on Libel;
i. Section 5 on Aiding or Abetting and Attempt in the Commission of Cybercrimes;
j. Section 6 on the Penalty of One Degree Higher;
k. Section 7 on the Prosecution under both the Revised Penal Code (RPC) and R.A. 10175;
l. Section 8 on Penalties;
m. Section 12 on Real-Time Collection of Traffic Data;
n. Section 13 on Preservation of Computer Data;
o. Section 14 on Disclosure of Computer Data;
p. Section 15 on Search, Seizure and Examination of Computer Data;
q. Section 17 on Destruction of Computer Data;

r. Section 19 on Restricting or Blocking Access to Computer Data;

s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC); and
u. Section 26(a) on CICCs Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354, 361, and 362 of the RPC on
the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
(1) Illegal Access. The access to the whole or any part of a computer system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard required of laws that
interfere with the fundamental rights of the people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American constitutional construct, 1 useful in
determining the constitutionality of laws that tend to target a class of things or persons. According to this
standard, a legislative classification that impermissibly interferes with the exercise of fundamental right or
operates to the peculiar class disadvantage of a suspect class is presumed unconstitutional. The burden
is on the government to prove that the classification is necessary to achieve a compelling state interest
and that it is the least restrictive means to protect such interest. 2 Later, the strict scrutiny standard was
used to assess the validity of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal protection. 3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the application of the strict
scrutiny standard since no fundamental freedom, like speech, is involved in punishing what is essentially
a condemnable act accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical hackers, professionals who
employ tools and techniques used by criminal hackers but would neither damage the target systems nor
steal information. Ethical hackers evaluate the target systems security and report back to the owners the
vulnerabilities they found in it and give instructions for how these can be remedied. Ethical hackers are
the equivalent of independent auditors who come into an organization to verify its bookkeeping records. 5
Besides, a clients engagement of an ethical hacker requires an agreement between them as to the extent
of the search, the methods to be used, and the systems to be tested. This is referred to as the "get out of
jail free card."6Since the ethical hacker does his job with prior permission from the client, such permission
would insulate him from the coverage of Section 4(a)(1).

Section 4(a)(3) of the Cybercrime Law

Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(3) Data Interference. The intentional or reckless alteration, damaging, deletion or deterioration of
computer data, electronic document, or electronic data message, without right, including the introduction
or transmission of viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it seeks to discourage data
interference, it intrudes into the area of protected speech and expression, creating a chilling and deterrent
effect on these guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose, constitutionally subject to state
regulation, may not be achieved by means that unnecessarily sweep its subject broadly, thereby invading
the area of protected freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It simply
punishes what essentially is a form of vandalism,8 the act of willfully destroying without right the things
that belong to others, in this case their computer data, electronic document, or electronic data message.
Such act has no connection to guaranteed freedoms. There is no freedom to destroy other peoples
computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling effect, an in terrorem effect 9 or
the fear of possible prosecution that hangs on the heads of citizens who are minded to step beyond the
boundaries of what is proper. But to prevent the State from legislating criminal laws because they instill
such kind of fear is to render the state powerless in addressing and penalizing socially harmful
conduct.10 Here, the chilling effect that results in paralysis is an illusion since Section 4(a)(3) clearly
describes the evil that it seeks to punish and creates no tendency to intimidate the free exercise of ones
constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden of proving that under no set of
circumstances will Section 4(a)(3) be valid.11 Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer data and systems:
xxxx
(6) Cyber-squatting. The acquisition of domain name over the internet in bad faith to profit, mislead,
destroy the reputation, and deprive others from registering the same, if such a domain name is:

(i) Similar, identical, or confusingly similar to an existing trademark registered with the appropriate
government agency at the time of the domain name registration;
(ii) Identical or in any way similar with the name of a person other than the registrant, in case of a
personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal protection clause 12 in that, not
being narrowly tailored, it will cause a user using his real name to suffer the same fate as those who use
aliases or take the name of another in satire, parody, or any other literary device. For example, supposing
there exists a well known billionaire-philanthropist named "Julio Gandolfo," the law would punish for
cyber-squatting both the person who registers such name because he claims it to be his pseudo-name
and another who registers the name because it happens to be his real name. Petitioners claim that,
considering the substantial distinction between the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which happens to be his real name or
use it as a pseudo-name for it is the evil purpose for which he uses the name that the law condemns. The
law is reasonable in penalizing him for acquiring the domain name in bad faith to profit, mislead, destroy
reputation, or deprive others who are not ill-motivated of the rightful opportunity of registering the same.
The challenge to the constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable
under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse, transfer, possession,
alteration, or deletion of identifying information belonging to another, whether natural or juridical, without
right: Provided: that if no damage has yet been caused, the penalty imposable shall be one (1) degree
lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due process and to privacy and
correspondence, and transgresses the freedom of the press.
The right to privacy, or the right to be let alone, was institutionalized in the 1987 Constitution as a facet of
the right protected by the guarantee against unreasonable searches and seizures. 13 But the Court
acknowledged its existence as early as 1968 in Morfe v. Mutuc, 14 it ruled that the right to privacy exists
independently of its identification with liberty; it is in itself fully deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the "Zones of Privacy." The
Court explained in "In the Matter of the Petition for Issuance of Writ of Habeas Corpus of Sabio v. Senator
Gordon"15 the relevance of these zones to the right to privacy:

Zones of privacy are recognized and protected in our laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in accordance with customary legal process. The meticulous
regard we accord to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also from our adherence to the
Universal Declaration of Human Rights which mandates that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right against unreasonable
searches16 and seizures, which is the basis of the right to be let alone, and (b) the right to privacy of
communication and correspondence.17 In assessing the challenge that the State has impermissibly
intruded into these zones of privacy, a court must determine whether a person has exhibited a reasonable
expectation of privacy and, if so, whether that expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his name, his citizenship, his residence
address, his contact number, his place and date of birth, the name of his spouse if any, his occupation,
and similar data.19 The law punishes those who acquire or use such identifying information without right,
implicitly to cause damage. Petitioners simply fail to show how government effort to curb computer-related
identity theft violates the right to privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth doctrine will not hold water since
the specific conducts proscribed do not intrude into guaranteed freedoms like speech. Clearly, what this
section regulates are specific actions: the acquisition, use, misuse or deletion of personal identifying data
of another. There is no fundamental right to acquire anothers personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in that journalists would be
hindered from accessing the unrestricted user account of a person in the news to secure information
about him that could be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended for an illegitimate
purpose. Moreover, acquiring and disseminating information made public by the user himself cannot be
regarded as a form of theft.
The Court has defined intent to gain as an internal act which can be established through the overt acts of
the offender, and it may be presumed from the furtive taking of useful property pertaining to another,
unless special circumstances reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear since a special
circumstance is present to negate intent to gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex. The willful engagement, maintenance, control, or operation, directly or indirectly, of any
lascivious exhibition of sexual organs or sexual activity, with the aid of a computer system, for favor or
consideration.

Petitioners claim that the above violates the freedom of expression clause of the Constitution. 21 They
express fear that private communications of sexual character between husband and wife or consenting
adults, which are not regarded as crimes under the penal code, would now be regarded as crimes when
done "for favor" in cyberspace. In common usage, the term "favor" includes "gracious kindness," "a
special privilege or right granted or conceded," or "a token of love (as a ribbon) usually worn
conspicuously."22 This meaning given to the term "favor" embraces socially tolerated trysts. The law as
written would invite law enforcement agencies into the bedrooms of married couples or consenting
individuals.
But the deliberations of the Bicameral Committee of Congress on this section of the Cybercrime
Prevention Act give a proper perspective on the issue. These deliberations show a lack of intent to
penalize a "private showing x x x between and among two private persons x x x although that may be a
form of obscenity to some."23 The understanding of those who drew up the cybercrime law is that the
element of "engaging in a business" is necessary to constitute the illegal cybersex. 24 The Act actually
seeks to punish cyber prostitution, white slave trade, and pornography for favor and consideration. This
includes interactive prostitution and pornography, i.e., by webcam. 25
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual activityis not novel.
Article 201 of the RPC punishes "obscene publications and exhibitions and indecent shows." The AntiTrafficking in Persons Act of 2003 penalizes those who "maintain or hire a person to engage in
prostitution or pornography."26 The law defines prostitution as any act, transaction, scheme, or design
involving the use of a person by another, for sexual intercourse or lascivious conduct in exchange for
money, profit, or any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can regulate materials that serve
no other purpose than satisfy the market for violence, lust, or pornography.29 The Court weighed the
property rights of individuals against the public welfare. Private property, if containing pornographic
materials, may be forfeited and destroyed. Likewise, engaging in sexual acts privately through internet
connection, perceived by some as a right, has to be balanced with the mandate of the State to eradicate
white slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence delineating the bounds of
obscenity.30The Court will not declare Section 4(c)(1) unconstitutional where it stands a construction that
makes it apply only to persons engaged in the business of maintaining, controlling, or operating, directly
or indirectly, the lascivious exhibition of sexual organs or sexual activity with the aid of a computer system
as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. The unlawful or prohibited acts defined and punishable by Republic Act No.
9775 or the Anti-Child Pornography Act of 2009, committed through a computer system: Provided, That
the penalty to be imposed shall be (1) one degree higher than that provided for in Republic Act No. 9775.

It seems that the above merely expands the scope of the Anti-Child Pornography Act of 2009 31 (ACPA) to
cover identical activities in cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a computer system. Actually,
ACPAs definition of child pornography already embraces the use of "electronic, mechanical, digital,
optical, magnetic or any other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime is committed in cyberspace.
But no one can complain since the intensity or duration of penalty is a legislative prerogative and there is
rational basis for such higher penalty.32 The potential for uncontrolled proliferation of a particular piece of
child pornography when uploaded in the cyberspace is incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any person to "produce, direct,
manufacture or create any form of child pornography" 33 clearly relates to the prosecution of persons who
aid and abet the core offenses that ACPA seeks to punish. 34 Petitioners are wary that a person who
merely doodles on paper and imagines a sexual abuse of a 16-year-old is not criminally liable for
producing child pornography but one who formulates the idea on his laptop would be. Further, if the
author bounces off his ideas on Twitter, anyone who replies to the tweet could be considered aiding and
abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it will be discussed elsewhere
below. For now the Court must hold that the constitutionality of Section 4(c)(2) is not successfully
challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. The transmission of commercial electronic communication
with the use of computer system which seeks to advertise, sell, or offer for sale products and services are
prohibited unless:
(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or administrative announcements
from the sender to its existing users, subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and reliable way
for the recipient to reject receipt of further commercial electronic messages (opt-out) from
the same source;
(bb) The commercial electronic communication does not purposely disguise the source of
the electronic message; and

(cc) The commercial electronic communication does not purposely include misleading
information in any part of the message in order to induce the recipients to read the
message.
The above penalizes the transmission of unsolicited commercial communications, also known as "spam."
The term "spam" surfaced in early internet chat rooms and interactive fantasy games. One who repeats
the same sentence or comment was said to be making a "spam." The term referred to a Monty Pythons
Flying Circus scene in which actors would keep saying "Spam, Spam, Spam, and Spam" when reading
options from a menu.35
The Government, represented by the Solicitor General, points out that unsolicited commercial
communications or spams are a nuisance that wastes the storage and network capacities of internet
service providers, reduces the efficiency of commerce and technology, and interferes with the owners
peaceful enjoyment of his property. Transmitting spams amounts to trespass to ones privacy since the
person sending out spams enters the recipients domain without prior permission. The OSG contends that
commercial speech enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited electronic ads reduce the
"efficiency of computers." Secondly, people, before the arrival of the age of computers, have already been
receiving such unsolicited ads by mail. These have never been outlawed as nuisance since people might
have interest in such ads. What matters is that the recipient has the option of not opening or reading
these mail ads. That is true with spams. Their recipients always have the option to delete or not to read
them.
To prohibit the transmission of unsolicited ads would deny a person the right to read his emails, even
unsolicited commercial ads addressed to him. Commercial speech is a separate category of speech
which is not accorded the same level of protection as that given to other constitutionally guaranteed forms
of expression but is nonetheless entitled to protection. 36 The State cannot rob him of this right without
violating the constitutionally guaranteed freedom of expression. Unsolicited advertisements are legitimate
forms of expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on libel as well as Section 4(c)
(4) of the Cybercrime Prevention Act on cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.
Art. 354. Requirement for publicity. Every defamatory imputation is presumed to be malicious, even if it
be true, if no good intention and justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance of any legal, moral
or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any judicial,
legislative or other official proceedings which are not of confidential nature, or of any statement,

report or speech delivered in said proceedings, or of any other act performed by public officers in
the exercise of their functions.
Art. 355. Libel means by writings or similar means. A libel committed by means of writing, printing,
lithography, engraving, radio, phonograph, painting, theatrical exhibition, cinematographic exhibition, or
any similar means, shall be punished by prision correccional in its minimum and medium periods or a fine
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which may be brought by the
offended party.
The libel provision of the cybercrime law, on the other hand, merely incorporates to form part of it the
provisions of the RPC on libel. Thus Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of cybercrime punishable under
this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of the Revised Penal Code,
as amended, committed through a computer system or any other similar means which may be devised in
the future.
Petitioners lament that libel provisions of the penal code 37 and, in effect, the libel provisions of the
cybercrime law carry with them the requirement of "presumed malice" even when the latest jurisprudence
already replaces it with the higher standard of "actual malice" as a basis for conviction. 38 Petitioners argue
that inferring "presumed malice" from the accuseds defamatory statement by virtue of Article 354 of the
penal code infringes on his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be stricken down as
unconstitutional for otherwise good jurisprudence requiring "actual malice" could easily be overturned as
the Court has done in Fermin v. People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d) existence of malice. 40
There is "actual malice" or malice in fact41 when the offender makes the defamatory statement with the
knowledge that it is false or with reckless disregard of whether it was false or not. 42 The reckless
disregard standard used here requires a high degree of awareness of probable falsity. There must be
sufficient evidence to permit the conclusion that the accused in fact entertained serious doubts as to the
truth of the statement he published. Gross or even extreme negligence is not sufficient to establish actual
malice.43
The prosecution bears the burden of proving the presence of actual malice in instances where such
element is required to establish guilt. The defense of absence of actual malice, even when the statement
turns out to be false, is available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First National Conference on
Land Transportation). Since the penal code and implicitly, the cybercrime law, mainly target libel against
private persons, the Court recognizes that these laws imply a stricter standard of "malice" to convict the
author of a defamatory statement where the offended party is a public figure. Societys interest and the
maintenance of good government demand a full discussion of public affairs. 44

Parenthetically, the Court cannot accept the proposition that its ruling in Fermin disregarded the higher
standard of actual malice or malice in fact when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make defamatory imputations
against complainants. Thus, petitioner cannot, by simply making a general denial, convince us that there
was no malice on her part. Verily, not only was there malice in law, the article being malicious in itself, but
there was also malice in fact, as there was motive to talk ill against complainants during the electoral
campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to utterances against public figures in
the above case, cinema and television personalities, when it modified the penalty of imprisonment to just
a fine ofP6,000.00.
But, where the offended party is a private individual, the prosecution need not prove the presence of
malice. The law explicitly presumes its existence (malice in law) from the defamatory character of the
assailed statement.45 For his defense, the accused must show that he has a justifiable reason for the
defamatory statement even if it was in fact true. 46
Petitioners peddle the view that both the penal code and the Cybercrime Prevention Act violate the
countrys obligations under the International Covenant of Civil and Political Rights (ICCPR). They point
out that in Adonis v. Republic of the Philippines,47 the United Nations Human Rights Committee (UNHRC)
cited its General Comment 34 to the effect that penal defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory statement should constitute an allencompassing defense. As it happens, Article 361 recognizes truth as a defense but under the condition
that the accused has been prompted in making the statement by good motives and for justifiable ends.
Thus:
Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth may be given in evidence to
the court and if it appears that the matter charged as libelous is true, and, moreover, that it was published
with good motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a crime shall not be admitted,
unless the imputation shall have been made against Government employees with respect to facts related
to the discharge of their official duties.
In such cases if the defendant proves the truth of the imputation made by him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge, to decriminalize libel. It
simply suggested that defamation laws be crafted with care to ensure that they do not stifle freedom of
expression.48Indeed, the ICCPR states that although everyone should enjoy freedom of expression, its
exercise carries with it special duties and responsibilities. Free speech is not absolute. It is subject to
certain restrictions, as may be necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally protected speech and that
the government has an obligation to protect private individuals from defamation. Indeed, cyberlibel is
actually not a new crime since Article 353, in relation to Article 355 of the penal code, already punishes it.
In effect, Section 4(c)(4) above merely affirms that online defamation constitutes "similar means" for
committing libel.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes the author of the libelous
statement or article. Cyberlibel brings with it certain intricacies, unheard of when the penal code
provisions on libel were enacted. The culture associated with internet media is distinct from that of print.
The internet is characterized as encouraging a freewheeling, anything-goes writing style. 50 In a sense,
they are a world apart in terms of quickness of the readers reaction to defamatory statements posted in
cyberspace, facilitated by one-click reply options offered by the networking site as well as by the speed
with which such reactions are disseminated down the line to other internet users. Whether these reactions
to defamatory statement posted on the internet constitute aiding and abetting libel, acts that Section 5 of
the cybercrime law punishes, is another matter that the Court will deal with next in relation to Section 5 of
the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. The following acts shall also constitute an offense:
(a) Aiding or Abetting in the Commission of Cybercrime. Any person who willfully abets or aids
in the commission of any of the offenses enumerated in this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. Any person who willfully attempts to commit any
of the offenses enumerated in this Act shall be held liable.
Petitioners assail the constitutionality of Section 5 that renders criminally liable any person who willfully
abets or aids in the commission or attempts to commit any of the offenses enumerated as cybercrimes. It
suffers from overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of jurisprudence and laws on aiding and
abetting sufficiently protects the freedom of expression of "netizens," the multitude that avail themselves
of the services of the internet. He points out that existing laws and jurisprudence sufficiently delineate the
meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement agencies in enforcing the
law.51 The legislature is not required to define every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in existing laws. When a person
aids or abets another in destroying a forest,52 smuggling merchandise into the country,53 or interfering in
the peaceful picketing of laborers,54 his action is essentially physical and so is susceptible to easy
assessment as criminal in character. These forms of aiding or abetting lend themselves to the tests of
common sense and human experience.
But, when it comes to certain cybercrimes, the waters are muddier and the line of sight is somewhat
blurred. The idea of "aiding or abetting" wrongdoings online threatens the heretofore popular and
unchallenged dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of Filipinos have accessed the
internet within a year, translating to about 31 million users. 55 Based on a recent survey, the Philippines
ranks 6th in the top 10 most engaged countries for social networking. 56 Social networking sites build
social relations among people who, for example, share interests, activities, backgrounds, or real-life
connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late 2012, 1.2 billion people with
shared interests use Facebook to get in touch.58 Users register at this site, create a personal profile or an

open book of who they are, add other users as friends, and exchange messages, including automatic
notifications when they update their profile.59 A user can post a statement, a photo, or a video on
Facebook, which can be made visible to anyone, depending on the users privacy settings.
If the post is made available to the public, meaning to everyone and not only to his friends, anyone on
Facebook can react to the posting, clicking any of several buttons of preferences on the programs screen
such as "Like," "Comment," or "Share." "Like" signifies that the reader likes the posting while "Comment"
enables him to post online his feelings or views about the same, such as "This is great!" When a
Facebook user "Shares" a posting, the original "posting" will appear on his own Facebook profile,
consequently making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging service that enables its
users to send and read short text-based messages of up to 140 characters. These are known as
"Tweets." Microblogging is the practice of posting small pieces of digital contentwhich could be in the
form of text, pictures, links, short videos, or other mediaon the internet. Instead of friends, a Twitter user
has "Followers," those who subscribe to this particular users posts, enabling them to read the same, and
"Following," those whom this particular user is subscribed to, enabling him to read their posts. Like
Facebook, a Twitter user can make his tweets available only to his Followers, or to the general public. If a
post is available to the public, any Twitter user can "Retweet" a given posting. Retweeting is just reposting
or republishing another persons tweet without the need of copying and pasting it.
In the cyberworld, there are many actors: a) the blogger who originates the assailed statement; b) the
blog service provider like Yahoo; c) the internet service provider like PLDT, Smart, Globe, or Sun; d) the
internet caf that may have provided the computer used for posting the blog; e) the person who makes a
favorable comment on the blog; and f) the person who posts a link to the blog site. 60 Now, suppose Maria
(a blogger) maintains a blog on WordPress.com (blog service provider). She needs the internet to access
her blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain married public official has an
illicit affair with a movie star. Linda, one of Marias friends who sees this post, comments online, "Yes, this
is so true! They are so immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is a stranger to both Maria
and Linda, comes across this blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nenas "Followers" then "Retweet" the link to that blog site.
Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas original tweet and posts
this on her Facebook account. Immediately, Pamelas Facebook Friends start Liking and making
Comments on the assailed posting. A lot of them even press the Share button, resulting in the further
spread of the original posting into tens, hundreds, thousands, and greater postings.
The question is: are online postings such as "Liking" an openly defamatory statement, "Commenting" on
it, or "Sharing" it with others, to be regarded as "aiding or abetting?" In libel in the physical world, if Nestor
places on the office bulletin board a small poster that says, "Armand is a thief!," he could certainly be
charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that could not be libel since he did
not author the poster. If Arthur, passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking site. Would a reader and
his Friends or Followers, availing themselves of any of the "Like," "Comment," and "Share" reactions, be
guilty of aiding or abetting libel? And, in the complex world of cyberspace expressions of thoughts, when
will one be liable for aiding or abetting cybercrimes? Where is the venue of the crime?

Except for the original author of the assailed statement, the rest (those who pressed Like, Comment and
Share) are essentially knee-jerk sentiments of readers who may think little or haphazardly of their
response to the original posting. Will they be liable for aiding or abetting? And, considering the inherent
impossibility of joining hundreds or thousands of responding "Friends" or "Followers" in the criminal
charge to be filed in court, who will make a choice as to who should go to jail for the outbreak of the
challenged posting?
The old parameters for enforcing the traditional form of libel would be a square peg in a round hole when
applied to cyberspace libel. Unless the legislature crafts a cyber libel law that takes into account its
unique circumstances and culture, such law will tend to create a chilling effect on the millions that use this
new medium of communication in violation of their constitutionally-guaranteed right to freedom of
expression.
The United States Supreme Court faced the same issue in Reno v. American Civil Liberties Union, 61 a
case involving the constitutionality of the Communications Decency Act of 1996. The law prohibited (1)
the knowing transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of age; and (2) the knowing use of
an interactive computer service to send to a specific person or persons under 18 years of age or to
display in a manner available to a person under 18 years of age communications that, in context, depict
or describe, in terms "patently offensive" as measured by contemporary community standards, sexual or
excretory activities or organs.
Those who challenged the Act claim that the law violated the First Amendments guarantee of freedom of
speech for being overbroad. The U.S. Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, is a matter of
special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness
of such a regulation raises special U.S. Const. amend. I concerns because of its obvious chilling effect on
free speech. Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal
conviction, the CDA threatens violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to remain silent rather than
communicate even arguably unlawful words, ideas, and images. As a practical matter, this increased
deterrent effect, coupled with the risk of discriminatory enforcement of vague regulations, poses greater
U.S. Const. amend. I concerns than those implicated by certain civil regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents a great threat of
censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage
of the statute, it unquestionably silences some speakers whose messages would be entitled to
constitutional protection. That danger provides further reason for insisting that the statute not be overly
broad. The CDAs burden on protected speech cannot be justified if it could be avoided by a more
carefully drafted statute. (Emphasis ours)
Libel in the cyberspace can of course stain a persons image with just one click of the mouse. Scurrilous
statements can spread and travel fast across the globe like bad news. Moreover, cyberlibel often goes
hand in hand with cyberbullying that oppresses the victim, his relatives, and friends, evoking from mild to
disastrous reactions. Still, a governmental purpose, which seeks to regulate the use of this cyberspace
communication technology to protect a persons reputation and peace of mind, cannot adopt means that
will unnecessarily and broadly sweep, invading the area of protected freedoms. 62
If such means are adopted, self-inhibition borne of fear of what sinister predicaments await internet users
will suppress otherwise robust discussion of public issues. Democracy will be threatened and with it, all

liberties. Penal laws should provide reasonably clear guidelines for law enforcement officials and triers of
facts to prevent arbitrary and discriminatory enforcement. 63 The terms "aiding or abetting" constitute broad
sweep that generates chilling effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial challenge grounded on the voidfor-vagueness doctrine is acceptable. The inapplicability of the doctrine must be carefully delineated. As
Justice Antonio T. Carpio explained in his dissent in Romualdez v. Commission on Elections, 65 "we must
view these statements of the Court on the inapplicability of the overbreadth and vagueness doctrines to
penal statutes as appropriate only insofar as these doctrines are used to mount facial challenges to
penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his constitutional right can raise any
constitutional ground absence of due process, lack of fair notice, lack of ascertainable standards,
overbreadth, or vagueness. Here, one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. It prohibits one from assailing the constitutionality of the statute based solely on
the violation of the rights of third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a "facial" challenge to the
constitutionality of a statute even if he claims no violation of his own rights under the assailed statute
where it involves free speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected speech that comes from
statutes violating free speech. A person who does not know whether his speech constitutes a crime under
an overbroad or vague law may simply restrain himself from speaking in order to avoid being charged of a
crime. The overbroad or vague law thus chills him into silence. 67
As already stated, the cyberspace is an incomparable, pervasive medium of communication. It is
inevitable that any government threat of punishment regarding certain uses of the medium creates a
chilling effect on the constitutionally-protected freedom of expression of the great masses that use it. In
this case, the particularly complex web of interaction on social media websites would give law enforcers
such latitude that they could arbitrarily or selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a posting on the internet by liking
it? Netizens are not given "fair notice" or warning as to what is criminal conduct and what is lawful
conduct. When a case is filed, how will the court ascertain whether or not one netizens comment aided
and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but creates an altogether new
defamatory story against Armand like "He beats his wife and children," then that should be considered an
original posting published on the internet. Both the penal code and the cybercrime law clearly punish
authors of defamatory publications. Make no mistake, libel destroys reputations that society values.
Allowed to cascade in the internet, it will destroy relationships and, under certain circumstances, will
generate enmity and tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google procures, stores, and indexes child
pornography and facilitates the completion of transactions involving the dissemination of child
pornography," does this make Google and its users aiders and abettors in the commission of child
pornography crimes?68 Byars highlights a feature in the American law on child pornography that the
Cybercrimes law lacksthe exemption of a provider or notably a plain user of interactive computer
service from civil liability for child pornography as follows:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider and cannot be held civilly liable for any
action voluntarily taken in good faith to restrict access to or availability of material that the provider or user
considers to be obscene...whether or not such material is constitutionally protected. 69
When a person replies to a Tweet containing child pornography, he effectively republishes it whether
wittingly or unwittingly. Does this make him a willing accomplice to the distribution of child pornography?
When a user downloads the Facebook mobile application, the user may give consent to Facebook to
access his contact details. In this way, certain information is forwarded to third parties and unsolicited
commercial communication could be disseminated on the basis of this information. 70 As the source of this
information, is the user aiding the distribution of this communication? The legislature needs to address
this clearly to relieve users of annoying fear of possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness raises apprehension on the
part of internet users because of its obvious chilling effect on the freedom of expression, especially since
the crime of aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
more, as the petitioners point out, formal crimes such as libel are not punishable unless
consummated.71 In the absence of legislation tracing the interaction of netizens and their level of
responsibility such as in other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3)
on Unsolicited Commercial Communications, and Section 4(c)(2) on Child Pornography, cannot stand
scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under Section 5 should be permitted to
apply to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data
Interference, Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)
(6) on Cyber-squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on Computerrelated Fraud, Section 4(b)(3) on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the same reason not objectionable.
A hacker may for instance have done all that is necessary to illegally access another partys computer
system but the security employed by the systems lawful owner could frustrate his effort. Another hacker
may have gained access to usernames and passwords of others but fail to use these because the system
supervisor is alerted.72 If Section 5 that punishes any person who willfully attempts to commit this specific
offense is not upheld, the owner of the username and password could not file a complaint against him for
attempted hacking. But this is not right. The hacker should not be freed from liability simply because of
the vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could cover the innocent. 73 While this
may be true with respect to cybercrimes that tend to sneak past the area of free expression, any attempt
to commit the other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4),
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section 4(b)(3), and Section 4(c)(1) as
well as the actors aiding and abetting the commission of such acts can be identified with some
reasonable certainty through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as amended, and special laws, if
committed by, through and with the use of information and communications technologies shall be covered
by the relevant provisions of this Act: Provided, That the penalty to be imposed shall be one (1) degree

higher than that provided for by the Revised Penal Code, as amended, and special laws, as the case may
be.
Section 6 merely makes commission of existing crimes through the internet a qualifying circumstance. As
the Solicitor General points out, there exists a substantial distinction between crimes committed through
the use of information and communications technology and similar crimes committed using other means.
In using the technology in question, the offender often evades identification and is able to reach far more
victims or cause greater harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be without prejudice to any
liability for violation of any provision of the Revised Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled doctrine that a single set of
acts may be prosecuted and penalized simultaneously under two laws, a special law and the Revised
Penal Code. When two different laws define two crimes, prior jeopardy as to one does not bar prosecution
of the other although both offenses arise from the same fact, if each crime involves some important act
which is not an essential element of the other.74 With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the determination of the correct application of Section 7
to actual cases.
Online libel is different. There should be no question that if the published material on print, said to be
libelous, is again posted online or vice versa, that identical material cannot be the subject of two separate
libels. The two offenses, one a violation of Article 353 of the Revised Penal Code and the other a violation
of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact one and the same
offense. Indeed, the OSG itself claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the computer system as another
means of publication.75 Charging the offender under both laws would be a blatant violation of the
proscription against double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2) merely expands the ACPAs
scope so as to include identical activities in cyberspace. As previously discussed, ACPAs definition of
child pornography in fact already covers the use of "electronic, mechanical, digital, optical, magnetic or
any other means." Thus, charging the offender under both Section 4(c)(2) and ACPA would likewise be
tantamount to a violation of the constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. Any person found guilty of any of the punishable acts enumerated in Sections 4(a)
and 4(b) of this Act shall be punished with imprisonment of prision mayor or a fine of at least Two hundred
thousand pesos (PhP200,000.00) up to a maximum amount commensurate to the damage incurred or
both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be punished with imprisonment
of prision mayor or a fine of not more than Five hundred thousand pesos (PhP500,000.00) or both.

If punishable acts in Section 4(a) are committed against critical infrastructure, the penalty of reclusion
temporal or a fine of at least Five hundred thousand pesos (PhP500,000.00) up to maximum amount
commensurate to the damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(1) of this Act shall be
punished with imprisonment of prision mayor or a fine of at least Two hundred thousand pesos
(PhP200,000.00) but not exceeding One million pesos (PhP1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(2) of this Act shall be
punished with the penalties as enumerated in Republic Act No. 9775 or the "Anti-Child Pornography Act
of 2009:" Provided, That the penalty to be imposed shall be one (1) degree higher than that provided for
in Republic Act No. 9775, if committed through a computer system.
Any person found guilty of any of the punishable acts enumerated in Section 4(c)(3) shall be punished
with imprisonment of arresto mayor or a fine of at least Fifty thousand pesos (PhP50,000.00) but not
exceeding Two hundred fifty thousand pesos (PhP250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section 5 shall be punished with
imprisonment one (1) degree lower than that of the prescribed penalty for the offense or a fine of at least
One hundred thousand pesos (PhP100,000.00) but not exceeding Five hundred thousand pesos
(PhP500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on Offenses Against the
Confidentiality, Integrity and Availability of Computer Data and Systems; 4(b) on Computer-related
Offenses; 4(a)(5) on Misuse of Devices; when the crime punishable under 4(a) is committed against
critical infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on Unsolicited
Commercial Communications; and Section 5 on Aiding or Abetting, and Attempt in the Commission of
Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a legislative prerogative. Here the
legislature prescribed a measure of severe penalties for what it regards as deleterious cybercrimes. They
appear proportionate to the evil sought to be punished. The power to determine penalties for offenses is
not diluted or improperly wielded simply because at some prior time the act or omission was but an
element of another offense or might just have been connected with another crime. 77 Judges and
magistrates can only interpret and apply them and have no authority to modify or revise their range as
determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities, with due cause, shall be
authorized to collect or record by technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communications origin, destination, route, time, date, size, duration, or type
of underlying service, but not content, nor identities.
All other data to be collected or seized or disclosed will require a court warrant.

Service providers are required to cooperate and assist law enforcement authorities in the collection or
recording of the above-stated information.
The court warrant required under this section shall only be issued or granted upon written application and
the examination under oath or affirmation of the applicant and the witnesses he may produce and the
showing: (1) that there are reasonable grounds to believe that any of the crimes enumerated hereinabove
has been committed, or is being committed, or is about to be committed; (2) that there are reasonable
grounds to believe that evidence that will be obtained is essential to the conviction of any person for, or to
the solution of, or to the prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to collect or record traffic data in
real time as tending to curtail civil liberties or provide opportunities for official abuse. They claim that data
showing where digital messages come from, what kind they are, and where they are destined need not be
incriminating to their senders or recipients before they are to be protected. Petitioners invoke the right of
every individual to privacy and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental purpose since a law may
require the disclosure of matters normally considered private but then only upon showing that such
requirement has a rational relation to the purpose of the law,79 that there is a compelling State interest
behind the law, and that the provision itself is narrowly drawn. 80 In assessing regulations affecting privacy
rights, courts should balance the legitimate concerns of the State against constitutional guarantees. 81
Undoubtedly, the State has a compelling interest in enacting the cybercrime law for there is a need to put
order to the tremendous activities in cyberspace for public good. 82 To do this, it is within the realm of
reason that the government should be able to monitor traffic data to enhance its ability to combat all sorts
of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of traffic data is a part, aims to
provide law enforcement authorities with the power they need for spotting, preventing, and investigating
crimes committed in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno
points out, the Budapest Convention on Cybercrimes requires signatory countries to adopt legislative
measures to empower state authorities to collect or record "traffic data, in real time, associated with
specified communications."83 And this is precisely what Section 12 does. It empowers law enforcement
agencies in this country to collect or record such data.
But is not evidence of yesterdays traffic data, like the scene of the crime after it has been committed,
adequate for fighting cybercrimes and, therefore, real-time data is superfluous for that purpose? Evidently,
it is not. Those who commit the crimes of accessing a computer system without right, 84 transmitting
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or consideration; 86 and
producing child pornography87 could easily evade detection and prosecution by simply moving the
physical location of their computers or laptops from day to day. In this digital age, the wicked can commit
cybercrimes from virtually anywhere: from internet cafs, from kindred places that provide free internet
services, and from unregistered mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses and can neither be located
nor identified. There are many ways the cyber criminals can quickly erase their tracks. Those who peddle
child pornography could use relays of computers to mislead law enforcement authorities regarding their
places of operations. Evidently, it is only real-time traffic data collection or recording and a subsequent
recourse to court-issued search and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad and do not provide ample
safeguards against crossing legal boundaries and invading the peoples right to privacy. The concern is
understandable. Indeed, the Court recognizes in Morfe v. Mutuc 88 that certain constitutional guarantees

work together to create zones of privacy wherein governmental powers may not intrude, and that there
exists an independent constitutional right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe, 90 the United States Supreme Court classified privacy
into two categories: decisional privacy and informational privacy. Decisional privacy involves the right to
independence in making certain important decisions, while informational privacy refers to the interest in
avoiding disclosure of personal matters. It is the latter rightthe right to informational privacythat those
who oppose government collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private information disclosed, and the right to
live freely without surveillance and intrusion.91 In determining whether or not a matter is entitled to the
right to privacy, this Court has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain matter. The second is an
objective test, where his or her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to its application to a particular
person or group, petitioners challenge to Section 12 applies to all information and communications
technology (ICT) users, meaning the large segment of the population who use all sorts of electronic
devices to communicate with one another. Consequently, the expectation of privacy is to be measured
from the general publics point of view. Without reasonable expectation of privacy, the right to it would
have no basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his communication through a
service provider, must of necessity disclose to the latter, a third person, the traffic data needed for
connecting him to the recipient ICT user. For example, an ICT user who writes a text message intended
for another ICT user must furnish his service provider with his cellphone number and the cellphone
number of his recipient, accompanying the message sent. It is this information that creates the traffic
data. Transmitting communications is akin to putting a letter in an envelope properly addressed, sealing it
closed, and sending it through the postal service. Those who post letters have no expectations that no
one will read the information appearing outside the envelope.
Computer datamessages of all kindstravel across the internet in packets and in a way that may be
likened to parcels of letters or things that are sent through the posts. When data is sent from any one
source, the content is broken up into packets and around each of these packets is a wrapper or header.
This header contains the traffic data: information that tells computers where the packet originated, what
kind of data is in the packet (SMS, voice call, video, internet chat messages, email, online browsing data,
etc.), where the packet is going, and how the packet fits together with other packets. 93 The difference is
that traffic data sent through the internet at times across the ocean do not disclose the actual names and
addresses (residential or office) of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where their contents are pieced
back together.
Section 12 does not permit law enforcement authorities to look into the contents of the messages and
uncover the identities of the sender and the recipient.
For example, when one calls to speak to another through his cellphone, the service providers
communications system will put his voice message into packets and send them to the other persons
cellphone where they are refitted together and heard. The latters spoken reply is sent to the caller in the
same way. To be connected by the service provider, the sender reveals his cellphone number to the
service provider when he puts his call through. He also reveals the cellphone number to the person he
calls. The other ways of communicating electronically follow the same basic pattern.

In Smith v. Maryland,94 cited by the Solicitor General, the United States Supreme Court reasoned that
telephone users in the 70s must realize that they necessarily convey phone numbers to the telephone
company in order to complete a call. That Court ruled that even if there is an expectation that phone
numbers one dials should remain private, such expectation is not one that society is prepared to
recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate or exchange data with one
another over cyberspace except through some service providers to whom they must submit certain traffic
data that are needed for a successful cyberspace communication. The conveyance of this data takes
them out of the private sphere, making the expectation to privacy in regard to them an expectation that
society is not prepared to recognize as reasonable.
The Court, however, agrees with Justices Carpio and Brion that when seemingly random bits of traffic
data are gathered in bulk, pooled together, and analyzed, they reveal patterns of activities which can then
be used to create profiles of the persons under surveillance. With enough traffic data, analysts may be
able to determine a persons close associations, religious views, political affiliations, even sexual
preferences. Such information is likely beyond what the public may expect to be disclosed, and clearly
falls within matters protected by the right to privacy. But has the procedure that Section 12 of the law
provides been drawn narrowly enough to protect individual rights?
Section 12 empowers law enforcement authorities, "with due cause," to collect or record by technical or
electronic means traffic data in real-time. Petitioners point out that the phrase "due cause" has no
precedent in law or jurisprudence and that whether there is due cause or not is left to the discretion of the
police. Replying to this, the Solicitor General asserts that Congress is not required to define the meaning
of every word it uses in drafting the law.
Indeed, courts are able to save vague provisions of law through statutory construction. But the cybercrime
law, dealing with a novel situation, fails to hint at the meaning it intends for the phrase "due cause." The
Solicitor General suggests that "due cause" should mean "just reason or motive" and "adherence to a
lawful procedure." But the Court cannot draw this meaning since Section 12 does not even bother to
relate the collection of data to the probable commission of a particular crime. It just says, "with due
cause," thus justifying a general gathering of data. It is akin to the use of a general search warrant that
the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will be used. Will the law
enforcement agencies use the traffic data to identify the perpetrator of a cyber attack? Or will it be used to
build up a case against an identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and lacks restraint. While it
says that traffic data collection should not disclose identities or content data, such restraint is but an
illusion. Admittedly, nothing can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains. This will unnecessarily
expose the citizenry to leaked information or, worse, to extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic data to those "associated with specified
communications." But this supposed limitation is no limitation at all since, evidently, it is the law
enforcement agencies that would specify the target communications. The power is virtually limitless,
enabling law enforcement authorities to engage in "fishing expedition," choosing whatever specified
communication they want. This evidently threatens the right of individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection of traffic data "in real time"
because it is not possible to get a court warrant that would authorize the search of what is akin to a

"moving vehicle." But warrantless search is associated with a police officers determination of probable
cause that a crime has been committed, that there is no opportunity for getting a warrant, and that unless
the search is immediately carried out, the thing to be searched stands to be removed. These
preconditions are not provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides minimal protection to internet
users and that the procedure envisioned by the law could be better served by providing for more robust
safeguards. His bare assurance that law enforcement authorities will not abuse the provisions of Section
12 is of course not enough. The grant of the power to track cyberspace communications in real time and
determine their sources and destinations must be narrowly drawn to preclude abuses. 95
Petitioners also ask that the Court strike down Section 12 for being violative of the void-for-vagueness
doctrine and the overbreadth doctrine. These doctrines however, have been consistently held by this
Court to apply only to free speech cases. But Section 12 on its own neither regulates nor punishes any
type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and kindred institutions to monitor
individuals and place them under surveillance in ways that have previously been impractical or even
impossible. "All the forces of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this enclave of private life marks
the difference between a democratic and a totalitarian society." 96 The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity and definiteness as to ensure
respect for the rights that the Constitution guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. The integrity of traffic data and subscriber information relating
to communication services provided by a service provider shall be preserved for a minimum period of six
(6) months from the date of the transaction. Content data shall be similarly preserved for six (6) months
from the date of receipt of the order from law enforcement authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six (6) months: Provided, That
once computer data preserved, transmitted or stored by a service provider is used as evidence in a case,
the mere furnishing to such service provider of the transmittal document to the Office of the Prosecutor
shall be deemed a notification to preserve the computer data until the termination of the case.
The service provider ordered to preserve computer data shall keep confidential the order and its
compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue deprivation of the right to
property. They liken the data preservation order that law enforcement authorities are to issue as a form of
garnishment of personal property in civil forfeiture proceedings. Such order prevents internet users from
accessing and disposing of traffic data that essentially belong to them.
No doubt, the contents of materials sent or received through the internet belong to their authors or
recipients and are to be considered private communications. But it is not clear that a service provider has
an obligation to indefinitely keep a copy of the same as they pass its system for the benefit of users. By
virtue of Section 13, however, the law now requires service providers to keep traffic data and subscriber
information relating to communication services for at least six months from the date of the transaction and
those relating to content data for at least six months from receipt of the order for their preservation.

Actually, the user ought to have kept a copy of that data when it crossed his computer if he was so
minded. The service provider has never assumed responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service providers preserve on
orders of law enforcement authorities are not made inaccessible to users by reason of the issuance of
such orders. The process of preserving data will not unduly hamper the normal transmission or use of the
same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon securing a court warrant,
shall issue an order requiring any person or service provider to disclose or submit subscribers
information, traffic data or relevant data in his/its possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially docketed and assigned for investigation and
the disclosure is necessary and relevant for the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a subpoena. Petitioners
objection is that the issuance of subpoenas is a judicial function. But it is well-settled that the power to
issue subpoenas is not exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers. 98
Besides, what Section 14 envisions is merely the enforcement of a duly issued court warrant, a function
usually lodged in the hands of law enforcers to enable them to carry out their executive functions. The
prescribed procedure for disclosure would not constitute an unlawful search or seizure nor would it violate
the privacy of communications and correspondence. Disclosure can be made only after judicial
intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. Where a search and seizure warrant is
properly issued, the law enforcement authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage medium; and
(e) To render inaccessible or remove those computer data in the accessed computer or computer
and communications network.
Pursuant thereof, the law enforcement authorities may order any person who has knowledge about the
functioning of the computer system and the measures to protect and preserve the computer data therein

to provide, as is reasonable, the necessary information, to enable the undertaking of the search, seizure
and examination.
Law enforcement authorities may request for an extension of time to complete the examination of the
computer data storage medium and to make a return thereon but in no case for a period longer than thirty
(30) days from date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant established search and seizure
procedures. On its face, however, Section 15 merely enumerates the duties of law enforcement
authorities that would ensure the proper collection, preservation, and use of computer system or data that
have been seized by virtue of a court warrant. The exercise of these duties do not pose any threat on the
rights of the person from whom they were taken. Section 15 does not appear to supersede existing
search and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. Upon expiration of the periods as provided in Sections 13 and
15, service providers and law enforcement authorities, as the case may be, shall immediately and
completely destroy the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation or examination, destroyed or
deleted upon the lapse of the prescribed period. The Solicitor General justifies this as necessary to clear
up the service providers storage systems and prevent overload. It would also ensure that investigations
are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous preservation or examination
violates the users right against deprivation of property without due process of law. But, as already stated,
it is unclear that the user has a demandable right to require the service provider to have that copy of the
data saved indefinitely for him in its storage system. If he wanted them preserved, he should have saved
them in his computer when he generated the data or received it. He could also request the service
provider for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to computer data:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer data is prima facie found
to be in violation of the provisions of this Act, the DOJ shall issue an order to restrict or block access to
such computer data.
Petitioners contest Section 19 in that it stifles freedom of expression and violates the right against
unreasonable searches and seizures. The Solicitor General concedes that this provision may be
unconstitutional. But since laws enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including malware, as well as files that
contain texts, images, audio, or video recordings. Without having to go into a lengthy discussion of
property rights in the digital space, it is indisputable that computer data, produced or created by their
writers or authors may constitute personal property. Consequently, they are protected from unreasonable
searches and seizures, whether while stored in their personal computers or in the service providers
systems.

Section 2, Article III of the 1987 Constitution provides that the right to be secure in ones papers and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable. Further, it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes and places the computer
data under its control and disposition without a warrant. The Department of Justice order cannot
substitute for judicial search warrant.
The content of the computer data can also constitute speech. In such a case, Section 19 operates as a
restriction on the freedom of expression over cyberspace. Certainly not all forms of speech are protected.
Legislature may, within constitutional bounds, declare certain kinds of expression as illegal. But for an
executive officer to seize content alleged to be unprotected without any judicial warrant, it is not enough
for him to be of the opinion that such content violates some law, for to do so would make him judge, jury,
and executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also disregards jurisprudential
guidelines established to determine the validity of restrictions on speech. Restraints on free speech are
generally evaluated on one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule. 101 Section 19, however, merely requires
that the data to be blocked be found prima facie in violation of any provision of the cybercrime law. Taking
Section 6 into consideration, this can actually be made to apply in relation to any penal provision. It does
not take into consideration any of the three tests mentioned above.
The Court is therefore compelled to strike down Section 19 for being violative of the constitutional
guarantees to freedom of expression and against unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV hereof specifically the
orders from law enforcement authorities shall be punished as a violation of Presidential Decree No. 1829
with imprisonment of prision correctional in its maximum period or a fine of One hundred thousand pesos
(Php100,000.00) or both, for each and every noncompliance with an order issued by law enforcement
authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The argument is that the mere failure
to comply constitutes a legislative finding of guilt, without regard to situations where non-compliance
would be reasonable or valid.
But since the non-compliance would be punished as a violation of Presidential Decree (P.D.)
1829,102 Section 20 necessarily incorporates elements of the offense which are defined therein. If
Congress had intended for Section 20 to constitute an offense in and of itself, it would not have had to
make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine ranging from 1,000 to 6,000
pesos, or both, shall be imposed upon any person who knowingly or willfully obstructs, impedes,
frustrates or delays the apprehension of suspects and the investigation and prosecution of criminal cases
by committing any of the following acts:
x x x.

Thus, the act of non-compliance, for it to be punishable, must still be done "knowingly or willfully." There
must still be a judicial determination of guilt, during which, as the Solicitor General assumes, defense and
justifications for non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to the
provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby created, within thirty (30)
days from the effectivity of this Act, an inter-agency body to be known as the Cybercrime Investigation
and Coordinating Center (CICC), under the administrative supervision of the Office of the President, for
policy coordination among concerned agencies and for the formulation and enforcement of the national
cybersecurity plan.
Sec. 26. Powers and Functions. The CICC shall have the following powers and functions:
(a) To formulate a national cybersecurity plan and extend immediate assistance of real time commission
of cybercrime offenses through a computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when it gave the Cybercrime
Investigation and Coordinating Center (CICC) the power to formulate a national cybersecurity plan without
any sufficient standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power, the Court has adopted two
tests: the completeness test and the sufficient standard test. Under the first test, the law must be
complete in all its terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The second test mandates adequate
guidelines or limitations in the law to determine the boundaries of the delegates authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to formulate and implement a
national cybersecurity plan. Also, contrary to the position of the petitioners, the law gave sufficient
standards for the CICC to follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management approaches, actions, training,
best practices, assurance and technologies that can be used to protect cyber environment and
organization and users assets.104 This definition serves as the parameters within which CICC should work
in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy of the law to "prevent and
combat such [cyber] offenses by facilitating their detection, investigation, and prosecution at both the
domestic and international levels, and by providing arrangements for fast and reliable international
cooperation."105 This policy is clearly adopted in the interest of law and order, which has been considered
as sufficient standard.106 Hence, Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited commercial
communications;

b. Section 12 that authorizes the collection or recording of traffic data in real-time; and
c. Section 19 of the same Act that authorizes the Department of Justice to restrict or
block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name over the
internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of identifying
information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of sexual organs or
sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined under the
Revised Penal Code are committed with the use of information and communications
technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service providers to
preserve traffic data and subscriber information as well as specified content data for six
months;
j. Section 14 that authorizes the disclosure of computer data under a court-issued
warrant;
k. Section 15 that authorizes the search, seizure, and examination of computer data
under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved computer data after
the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating Center
(CICC);
o. Section 26(a) that defines the CICCs Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes libel.
Further, the Court DECLARES:

1. Section 4(c)(4) that penalizes online libel as VALID and CONSTITUTIONAL with respect to the
original author of the post; but VOID and UNCONSTITUTIONAL with respect to others who
simply receive the post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission of cybercrimes as VA
L I D and CONSTITUTIONAL only in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2)
on Illegal Interception, Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on
Computer-related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on Computerrelated Identity Theft, and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with respect
to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited Commercial Communications, and 4(c)
(4) on online Libel.1wphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct application of Section 7 that
authorizes prosecution of the offender under both the Revised Penal Code and Republic Act 10175 to
actual cases, WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4) of Republic Act
10175 and Article 353 of the Revised Penal Code constitutes a violation of the proscription
against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender under both Section 4(c)
(2) of Republic Act 10175 and Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
constitutes a violation of the same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.

EN BANC
[G.R. No. 142675. July 22, 2005]
VICENTE AGOTE Y MATOL, petitioner, vs. HON. MANUEL F. LORENZO, Presiding Judge, RTC,
Branch 43, Manila and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
GARCIA, J.:
In this appeal by way of a petition for review on certiorari under Rule 45 of the Rules of Court,
petitioner Vicente Agote y Matol seeks to annul and set aside the following resolutions of the Court of
Appeals in CA-G.R. SP No. 2991-UDK, to wit:
1. Resolution dated September 14, 1999, [1] dismissing the Petition for Certiorari with Prayer
for the Issuance of a Temporary Restraining Order filed by the petitioner against the
Honorable Manuel F. Lorenzo, Presiding Judge, Regional Trial Court, Manila, Branch 43 for
refusing to retroactively apply in his favor Republic Act No. 8294[2]; and,
2. Resolution dated February 8, 2000,[3] denying petitioners motion for reconsideration.
As culled from the pleadings on record, the following are the undisputed factual antecedents:
Petitioner Vicente Agote y Matol was earlier charged before the sala of respondent judge with Illegal
Possession of Firearms under Presidential Decree No. 1866 [4] and violation of COMELEC Resolution No.
2826[5] (Gun Ban), docketed as Criminal Cases No. 96-149820 and 96-149821, respectively, allegedly
committed, as follows:
CRIMINAL CASE NO. 96-149820
That on or about April 27, 1996 in the City of Manila, Philippines, the said accused did then and there willfully,
unlawfully, knowingly have in possession and under his custody and control, One (1) .38 cal. Rev. without serial no.
with four (4) live bullets. Without first having secured from the proper authorities the necessary license therefor.

CONTRARY TO LAW.
CRIMINAL CASE NO. 96-149821
That on or about April 27, 1996, in the City of Manila, Philippines, the said accused did then and there, willfully,
unlawfully and knowingly have in his possession and under his custody and control one (1) .38 cal. Rev. without
serial number, with four (4) live ammunition/bullets in the chamber, by then and there carrying the same along V.
Mapa Ext. Sta. Mesa, this City, which is a public place on the aforesaid date which is covered by an election period,
without first securing the written authority from the COMELEC, as provided for by the COMELEC Resolution No.
2828, in relation to RA No. 7166 (Gun Ban).
CONTRARY TO LAW.
On arraignment, petitioner pleaded Not Guilty to both charges. Thereafter, the two (2) cases were
tried jointly.
Eventually, in a decision dated May 18, 1999, the trial court rendered a judgment of conviction in
both cases, separately sentencing petitioner to an indeterminate penalty of ten (10) years and one (1) day
of prision mayor, as minimum, to eighteen (18) years eight (8) months and one (1) day of reclusion
temporal, as maximum, in accordance with PD. No. 1866 in Crim. Case No. 96-149820 (illegal
possession of firearm), and to a prison term of one (1) year in Crim. Case No. 96-149821 (violation of the
COMELEC Resolution on gun ban).
Meanwhile, on June 6, 1997, Republic Act No. 8294[6] was approved into law.
Pointing out, among others, that the penalty for illegal possession of firearms under P.D. No. 1866
has already been reduced by the subsequent enactment of Rep. Act No. 8294, hence, the latter law,
being favorable to him, should be the one applied in determining his penalty for illegal possession of
firearms, petitioner moved for a reconsideration of the May 18, 1999 decision of the trial court.
In its order dated July 15, 1999,[7] however, the trial court denied petitioners motion, saying:
While the law (R.A. 8294) is indeed favorable to the accused and therefore should be made retroactive we are also
guided by Art. 4 of the Civil Code which states that laws shall have no retroactive effect, unless the contrary is
provided. Republic Act 8294 did not so provide that it shall have a retroactive effect. The Supreme Court likewise in
the case of Padilla vs. CA declared: The trial court and the respondent court are bound to apply the governing law at
the time of the appellants commission of the offense for it is a rule that laws are repealed only by subsequent ones.
Indeed, it is the duty of judicial officers to respect and apply the law as it stands.
Therefrom, petitioner went to the Court of Appeals on a petition for certiorari with prayer for a
temporary restraining order, thereat docketed as CA-G.R. SP No. 2991-UDK.
In the herein assailed resolution dated September 14, 1999,[8] the appellate court dismissed
petitioners recourse on two (2) grounds, to wit: (a) the remedy of certiorari availed of by petitioner is
improper since he should have appealed from the July 15, 1999 order of the trial court; and (b) lack of
jurisdiction, as the issue involved is a pure question of law cognizable by the Supreme Court.

With his motion for reconsideration having been denied by the appellate court in its
subsequent resolution of February 8, 2000,[9]petitioner is now with us, submitting for resolution the
following issues: (1) whether the Court of Appeals erred in dismissing his petition forcertiorari; and (2)
whether the courts below erred in not giving Rep. Act No. 8294 a retroactive application.
The petition is partly meritorious.
At the outset, it must be stressed that petitioner never put in issue the factual findings of the trial
court. What he questions is said courts legal conclusion that Rep. Act No. 8294 cannot be retroactively
applied to him. Unquestionably, the issue raised is one purely of law. As we have said in Macawiwili Gold
Mining and Development Co., Inc. v. Court of Appeals:[10]
For a question to be one of law, the same must not involve an examination of the probative value of the evidence
presented by the litigants or any one of them. And the distinction is well-known: there is a question of law in a given
case when the doubt or difference arises as to what the law is on a certain state of facts; there is a question of fact
when the doubt or difference arises as to the truth or the falsehood of the facts alleged.
Considering that judgments of regional trial courts in the exercise of their original jurisdiction are to
be elevated to the Court of Appeals in cases when appellant raises questions of fact or mixed questions
of fact and law, while appeals from judgments of the [same courts] in the exercise of their original
jurisdiction must be brought directly to the Supreme Court in cases where the appellant raises only
questions of law[11], petitioner should have appealed the trial courts ruling to this Court by way of a petition
for review on certiorari in accordance with Rule 45 of the 1997 Rules of Civil Procedure, as amended,
[12]
pursuant to Rule 41, Section 2 (c) of the same Rules, viz:
SEC. 2. Modes of appeal.
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) Appeal by certiorari. In all cases where only questions of law are raised or involved, the
appeal shall be to the Supreme Court by petition for review on certiorari in accordance with
Rule 45.
By reason, then, of the availability to petitioner of the remedy of a petition for review under Rule 45,
his right to resort to a petition forcertiorari under Rule 65 was effectively foreclosed, precisely because
one of the requirements for the availment of the latter remedy is that there should be no appeal, or any
plain, speedy and adequate remedy in the ordinary course of law,[13] the remedies of appeal
and certiorari being mutually exclusive and not alternative or successive. [14]
As correctly observed by the Court of Appeals, what petitioner should have done was to take an
appeal from the trial courts order of July 15, 1999 which denied his motion for reconsideration of the May
18, 1999 judgment of conviction.
Petitioners case is worse compounded by the fact that even his period for appeal had already
prescribed when he filed with the Court of Appeals his certiorari petition in CA-G.R. SP No. 2991-UDK.
The Rollo of said case reveals that petitioner received his copy of the trial courts order denying his motion

for reconsideration on July 20, 1999. As the same Rollo shows, it was only on August 23, 1999, or after
more than fifteen (15) days when petitioner filed his wrong remedy of certiorari with the appellate court.
Be that as it may, the Court feels that it must squarely address the issue raised in this case regarding
the retroactivity of Rep. Act No. 8294, what with the reality that the provisions thereof are undoubtedly
favorable to petitioner. For this purpose, then, we shall exercise our prerogative to set aside technicalities
in the Rules and hold the bull by its horns, so to speak. After all, the power of this Court to suspend its
own rules whenever the interest of justice requires is not without legal authority or precedent. In Solicitor
General, et. al. vs. The Metropolitan Manila Authority,[15] we held:
Unquestionably, the Court has the power to suspend procedural rules in the exercise of its inherent power, as
expressly recognized in the Constitution, to promulgate rules concerning pleading, practice and procedure in all
courts. In proper cases, procedural rules may be relaxed or suspended in the interest of substantial justice, which
otherwise may be miscarried because of a rigid and formalistic adherence to such rules. xxx
xxx xxx xxx
We have made similar rulings in other cases, thus:
Be it remembered that rules of procedure are but mere tools designed to facilitate the attainment of justice. Their
strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial
justice, must always be avoided. xxx Time and again, this Court has suspended its own rules and excepted a
particular case from their operation whenever the higher interests of justice so require.
We shall now proceed to determine whether the provisions of Rep. Act No. 8294 amending P.D. No.
1866 can be retroactively applied to this case.
Here, the two (2) crimes for which petitioner was convicted by the trial court, i.e., (1) illegal
possession of firearms under P.D. No. 1866 and (2) violation of COMELEC Resolution No. 2826 on gun
ban, were both committed by the petitioner on April 27, 1996. For the crime of illegal possession of
firearms in Crim. Case No. 96-149820, he was sentenced to suffer a prison term ranging from ten (10)
years and one (1) day ofprision mayor, as minimum, to (18) eighteen years, eight (8) months and one (1)
day of reclusion temporal, as maximum, in accordance with P.D. No. 1866, Section 1 of which reads:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms of Ammunition. The penalty of reclusion
temporal in its maximum period to reclusion perpetua shall be imposed upon any person who shall unlawfully
manufacture, deal in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition. (Emphasis supplied)
When Rep. Act No. 8294 took effect on July 6, 1997, [16] the penalty for illegal possession of firearms
was lowered, depending on the class of firearm possessed, viz:
SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition or
Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. The penalty of prision
correccional in its maximum period and a fine of not less than Fifteen thousand pesos (P15,000) shall be imposed

upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm,
such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or
machinery, tool or instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed.
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed
if the firearm is classified as high powered firearm which includes those with bores bigger in diameter than .38
caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful
such as caliber .357 and caliber .22 center-fire magnum and other firearms with firing capability of full automatic
and by burst of two or three:Provided, however, That no other crime was committed by the person
arrested. (Emphasis supplied)
Based on the foregoing, petitioner contends that the reduced penalty under Rep. Act No. 8294
should be the one imposed on him. Significantly, in its Manifestation In Lieu of Comment,[17] the Office
of the Solicitor General agrees with the petitioner, positing further that the statement made by this Court
in People vs. Jayson[18] to the effect that the provisions for a lighter penalty under Rep. Act No. 8294 does
not apply if another crime has been committed, should not be applied to this case because the proviso in
Section 1 of said law that no other crime was committed must refer only to those crimes committed with
the use of an unlicensed firearm and not when the other crime is not related to the use thereof or where
the law violated merely criminalizes the possession of the same, like in the case of election gun ban, as
here.
As early as August 1997, the month after Rep. Act No. 8294 took effect, [19] this Court has pronounced
in Gonzales vs. Court of Appeals [20]that said law must be given retroactive effect in favor of those accused
under P.D. No. 1866. Since then, this Court had consistently adhered to the Gonzales ruling.[21]
For sure, in People vs. Valdez,[22] where the accused was charged with the complex crime of multiple
murder with double frustrated murder and illegal possession of firearms and ammunitions under two
separate informations, this Court even took a bolder stance by applying Rep. Act No. 8294 retroactively
so that the accused therein may not be convicted of the separate crime of illegal possession of firearms,
but refused to apply the same retroactively so as to aggravate the crime of murder. The Valdez ruling had
been applied in a host of subsequent cases.[23]
Yet, in other cases,[24] although the Court had given Rep. Act No. 8294 retroactive effect so as to
prevent the conviction of an accused of the separate crime of illegal possession of firearm when the said
unlicensed firearm was used to commit the crime of murder or homicide, the Court did not appreciate this
use of such unlicensed firearm as an aggravating circumstance as provided therein, when the use of an
unlicensed firearm was not specifically alleged in the information, as required by the Rules on Criminal
Procedure.
In the light of the existing rulings and jurisprudence on the matter, the present case takes center
stage presenting, this time, another twist, so to speak. Petitioner, who was charged of illegal possession
of firearms was also charged of another offense: Violation of COMELEC Resolution No. 2826 (Gun Ban),
but the unlicensed firearm was not used or discharged in this case. The question then which appears to
be of first impression, is whether or not the unlicensed firearm should be actually used and discharged in
the course of committing the other crime in order that Sec. 1, Rep. Act No. 8294 will apply so that no
separate crime of illegal possession of firearms may be charged.

Let us take a look at the jurisprudence once again. In Cupcupin vs. People,[25] the accused was
charged and convicted for two (2) separate crimes of illegal possession of firearms, and illegal possession
of prohibited drugs. In the more recent case of People vs. Almeida,[26] however, although the accused was
acquitted of the separate charge of illegal possession of firearm for lack of evidence, the Court
nevertheless made the following clear pronouncement:
Furthermore, in any event, the Court has ruled in previous cases that in view of the enactment of Republic Act No.
8294, there can be no separate offense of illegal possession of firearms and ammunition if there is another
crime committed such as, in this case, that of illegal possession of dangerous drugs.(Emphasis supplied)
In Almeida, it should be noted that the unlicensed firearm was merely found lying around, together
with the prohibited drugs, and therefore, was not being used in the commission of an offense.
Given this Courts aforequoted pronouncement in Almeida, can the accused in the present case still
be separately convicted of two (2) offenses of illegal possession of firearms and violation of gun ban,
more so because as in Almeida, the unlicensed firearm was not actually used or discharged in committing
the other offense?
In People vs. Walpan M. Ladjaalam,[27] this Court, interpreting the subject proviso in Section 1 of
Rep. Act No. 8294, applied the basic principles in criminal law, and categorically held:
xxx A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there
can be no separate offense of simple illegal possession of firearms. Hence, if the other crime is murder or
homicide, illegal possession of firearms becomes merely an aggravating circumstance, not a separate offense. Since
direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable
for illegal possession of firearms.
Moreover, penal laws are construed liberally in favor of the accused. In this case, the plain meaning of RA 8294s
simple language is most favorable to herein appellant. Verily, no other interpretation is justified, for the language of
the new law demonstrates the legislative intent to favor the accused. Accordingly, appellant cannot be convicted of
two separate offenses of illegal possession of firearms and direct assault with attempted homicide. xxx
xxx xxx xxx
xxx The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that no other
crime was committed by the person arrested. If the intention of the law in the second paragraph were to refer only
to homicide and murder, it should have expressly said so, as it did in the third paragraph. Verily, where the law does
not distinguish, neither should we.(Emphasis supplied).
The aforementioned ruling was reiterated and applied in the subsequent cases of People vs. Garcia,
where the judgment of conviction of the accused-appellants for illegal possession of firearms was set
aside there being another crime kidnapping for ransom which they were perpetrating at the same
time; People vs. Bernal,[29] where the Court retroactively applied Rep. Act No. 8294 in accused-appellants
favor because it would mean his acquittal from the separate offense of illegal possession of firearms;
and People vs. Bustamante,[30] where, in refusing to convict the accused-appellant of the separate offense
of illegal possession of firearms, the Court declared that insofar as it is favorable to the appellant, the
provisions of Rep. Act No. 8294 should be applied liberally and retroactively in that appellant must be
acquitted of the charge of illegal possession of firearms.
[28]

Guided by the foregoing, the Court cannot but set aside petitioners conviction in Criminal Case No.
96-149820 for illegal possession of firearm since another crime was committed at the same time, i.e.,
violation of COMELEC Resolution No. 2826 or the Gun Ban.
Admittedly, this ruling is not without misgivings considering that it would mean petitioners acquittal of
the more serious offense of illegal possession of firearms which carries a much heavier penalty than
violation of the COMELEC gun-ban resolution. However, as we have rationalized in Ladjaalam:[31]
xxx Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in
committing an even lighter offense, like alarm and scandal or slight physical injuries, both of which are punishable
by arresto menor. This consequence, however, necessarily arises from the language of RA 8294, whose wisdom is
not subject to the Courts review. Any perception that the result reached here appears unwise should be addressed to
Congress. Indeed, the Court has no discretion to give statutes a new meaning detached from the manifest intendment
and language of the legislature. Our task is constitutionally confined only to applying the law and jurisprudence to
the proven facts, and we have done so in this case.
The solemn power and duty of the Court to interpret and apply the law does not include the power to
correct by reading into the law what is not written therein. While we understand
respondent Peoples contention that the use of the firearm seemed to have been the main consideration
during the deliberations of the subject provision of Rep. Act No. 8294, the fact remains that the word use
never found its way into the final version of the bill which eventually became Rep. Act No. 8294. The
Courts hands are now tied and it cannot supply the perceived deficiency in the final version without
contravening the most basic principles in the interpretation of penal laws which had always leaned in
favor of the accused. Under our system of government where powers are allocated to the three (3) great
branches, only the Legislature can remedy such deficiency, if any, by proper amendment of Sec. 1 of
Rep. Act No. 8294.
As written, Sec. 1, Rep. Act No. 8294 restrains the Court from convicting petitioner of the separate
crime of illegal possession of firearm despite the fact that, as in Almeida, the unlicensed firearm was not
actually used. For sure, there is, in this case, closer relation between possession of unlicensed firearm
and violation of the COMELEC gun-ban than the illegal possession of unlicensed firearm to the crime of
illegal possession of prohibited drugs in Almeida.
WHEREFORE, Criminal Case No. 96-149820 for illegal possession of firearms is hereby
DISMISSED while the judgment of conviction in Criminal Case No. 96-149821 for violation of COMELEC
Resolution No. 2826 in relation to Rep. Act No. 7166 (Gun Ban), is AFFIRMED.
Since petitioner has already served more than the penalty imposed upon him by the trial court in
Criminal Case No. 96-149821, his immediate release from custody is hereby ORDERED unless detained
for some other lawful cause.
SO ORDERED.

EN BANC
[G.R. No. 149453. April 1, 2003]
PEOPLE OF THE PHILIPPINES, THE SECRETARY OF JUSTICE, DIRECTOR GENERAL OF THE
PHILIPPINE NATIONAL POLICE, CHIEF STATE PROSECUTOR JOVENCITO ZUO, STATE
PROSECUTORS PETER L. ONG and RUBEN A. ZACARIAS; 2ND ASSISTANT CITY
PROSECUTOR CONRADO M. JAMOLIN and CITY PROSECUTOR OF QUEZON CITY CLARO
ARELLANO, petitioners, vs. PANFILO M. LACSON,respondent.
RESOLUTION
CALLEJO, SR., J.:
Before the Court is the petitioners Motion for Reconsideration [1] of the Resolution[2] dated May 28,
2002, remanding this case to the Regional Trial Court (RTC) of Quezon City, Branch 81, for the
determination of several factual issues relative to the application of Section 8 of Rule 117 of the Revised
Rules of Criminal Procedure on the dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 filed
against the respondent and his co-accused with the said court. In the aforesaid criminal cases, the
respondent and his co-accused were charged with multiple murder for the shooting and killing of eleven
male persons identified as Manuel Montero, a former Corporal of the Philippine Army, Rolando Siplon,
Sherwin Abalora, who was 16 years old, Ray Abalora, who was 19 years old, Joel Amora, Jevy Redillas,
Meleubren Sorronda, who was 14 years old, [3] Pacifico Montero, Jr., of the 44th Infantry Batallion of the
Philippine Army, Welbor Elcamel, SPO1 Carlito Alap-ap of the Zamboanga PNP, and Alex Neri, former
Corporal of the 44th Infantry Batallion of the Philippine Army, bandied as members of the Kuratong
Baleleng Gang. The respondent opposed petitioners motion for reconsideration. [4]
The Court ruled in the Resolution sought to be reconsidered that the provisional dismissal of Criminal
Cases Nos. Q-99-81679 to Q-99-81689 were with the express consent of the respondent as he himself
moved for said provisional dismissal when he filed his motion for judicial determination of probable cause
and for examination of witnesses. The Court also held therein that although Section 8, Rule 117 of the
Revised Rules of Criminal Procedure could be given retroactive effect, there is still a need to determine
whether the requirements for its application are attendant. The trial court was thus directed to resolve the
following:
... (1) whether the provisional dismissal of the cases had the express consent of the accused; (2) whether it was
ordered by the court after notice to the offended party; (3) whether the 2-year period to revive it has already lapsed;
(4) whether there is any justification for the filing of the cases beyond the 2-year period; (5) whether notices to the
offended parties were given before the cases of respondent Lacson were dismissed by then Judge Agnir; (6) whether
there were affidavits of desistance executed by the relatives of the three (3) other victims; (7) whether the multiple
murder cases against respondent Lacson are being revived within or beyond the 2-year bar.

The Court further held that the reckoning date of the two-year bar had to be first determined whether
it shall be from the date of the order of then Judge Agnir, Jr. dismissing the cases, or from the dates of
receipt thereof by the various offended parties, or from the date of effectivity of the new rule. According to
the Court, if the cases were revived only after the two-year bar, the State must be given the opportunity to
justify its failure to comply with the said time-bar. It emphasized that the new rule fixes a time-bar to
penalize the State for its inexcusable delay in prosecuting cases already filed in court. However, the State
is not precluded from presenting compelling reasons to justify the revival of cases beyond the two-year
bar.
In support of their Motion for Reconsideration, the petitioners contend that (a) Section 8, Rule 117 of
the Revised Rules of Criminal Procedure is not applicable to Criminal Cases Nos. Q-99-81679 to Q-9981689; and (b) the time-bar in said rule should not be applied retroactively.
The Court shall resolve the issues seriatim.
I. SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL PROCEDURE IS NOT APPLICABLE TO
CRIMINAL CASES NOS. Q-99-81679 TO Q-99-81689.
The petitioners aver that Section 8, Rule 117 of the Revised Rules of Criminal Procedure is not
applicable to Criminal Cases Nos. Q-99-81679 to Q-99-81689 because the essential requirements for its
application were not present when Judge Agnir, Jr., issued his resolution of March 29, 1999. Disagreeing
with the ruling of the Court, the petitioners maintain that the respondent did not give his express consent
to the dismissal by Judge Agnir, Jr., of Criminal Cases Nos. Q-99-81679 to Q-99-81689. The respondent
allegedly admitted in his pleadings filed with the Court of Appeals and during the hearing thereat that he
did not file any motion to dismiss said cases, or even agree to a provisional dismissal thereof. Moreover,
the heirs of the victims were allegedly not given prior notices of the dismissal of the said cases by Judge
Agnir, Jr.According to the petitioners, the respondents express consent to the provisional dismissal of the
cases and the notice to all the heirs of the victims of the respondents motion and the hearing thereon are
conditions sine qua non to the application of the time-bar in the second paragraph of the new rule.
The petitioners further submit that it is not necessary that the case be remanded to the RTC to
determine whether private complainants were notified of the March 22, 1999 hearing on the respondents
motion for judicial determination of the existence of probable cause. The records allegedly indicate clearly
that only the handling city prosecutor was furnished a copy of the notice of hearing on said motion. There
is allegedly no evidence that private prosecutor Atty. Godwin Valdez was properly retained and authorized
by all the private complainants to represent them at said hearing. It is their contention that Atty. Valdez
merely identified the purported affidavits of desistance and that he did not confirm the truth of the
allegations therein.
The respondent, on the other hand, insists that, as found by the Court in its Resolution and Judge
Agnir, Jr. in his resolution, the respondent himself moved for the provisional dismissal of the criminal
cases. He cites the resolution of Judge Agnir, Jr. stating that the respondent and the other accused filed
separate but identical motions for the dismissal of the criminal cases should the trial court find no
probable cause for the issuance of warrants of arrest against them.
The respondent further asserts that the heirs of the victims, through the public and private
prosecutors, were duly notified of said motion and the hearing thereof. He contends that it was sufficient
that the public prosecutor was present during the March 22, 1999 hearing on the motion for judicial

determination of the existence of probable cause because criminal actions are always prosecuted in the
name of the People, and the private complainants merely prosecute the civil aspect thereof.
The Court has reviewed the records and has found the contention of the petitioners meritorious.
Section 8, Rule 117 of the Revised Rules of Criminal Procedure reads:
Sec. 8. Provisional dismissal. A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party.
The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any
amount, or both, shall become permanent one (1) year after issuance of the order without the case having been
revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance of the order without the case having been revived.
Having invoked said rule before the petitioners-panel of prosecutors and before the Court of Appeals,
the respondent is burdened to establish the essential requisites of the first paragraph thereof, namely:
1. the prosecution with the express conformity of the accused or the accused moves for a provisional (sin perjuicio)
dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case;
2. the offended party is notified of the motion for a provisional dismissal of the case;
3. the court issues an order granting the motion and dismissing the case provisionally;
4. the public prosecutor is served with a copy of the order of provisional dismissal of the case.
The foregoing requirements are conditions sine qua non to the application of the time-bar in the
second paragraph of the new rule. Theraison d etre for the requirement of the express consent of the
accused to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the
revival of the criminal case will place him in double jeopardy for the same offense or for an offense
necessarily included therein.[5]
Although the second paragraph of the new rule states that the order of dismissal shall become
permanent one year after the issuance thereof without the case having been revived, the provision should
be construed to mean that the order of dismissal shall become permanent one year after service of the
order of dismissal on the public prosecutor who has control of the prosecution [6] without the criminal case
having been revived. The public prosecutor cannot be expected to comply with the timeline unless he is
served with a copy of the order of dismissal.
Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive,
direct, unequivocal consent requiring no inference or implication to supply its meaning. [7] Where the
accused writes on the motion of a prosecutor for a provisional dismissal of the caseNo objection or With
my conformity, the writing amounts to express consent of the accused to a provisional dismissal of the
case.[8] The mere inaction or silence of the accused to a motion for a provisional dismissal of the case [9] or
his failure to object to a provisional dismissal[10] does not amount to express consent.

A motion of the accused for a provisional dismissal of a case is an express consent to such
provisional dismissal.[11] If a criminal case is provisionally dismissed with the express consent of the
accused, the case may be revived only within the periods provided in the new rule. On the other hand, if a
criminal case is provisionally dismissed without the express consent of the accused or over his objection,
the new rule would not apply. The case may be revived or refiled even beyond the prescribed periods
subject to the right of the accused to oppose the same on the ground of double jeopardy [12] or that such
revival or refiling is barred by the statute of limitations. [13]
The case may be revived by the State within the time-bar either by the refiling of the Information or
by the filing of a new Information for the same offense or an offense necessarily included therein. There
would be no need of a new preliminary investigation. [14] However, in a case wherein after the provisional
dismissal of a criminal case, the original witnesses of the prosecution or some of them may have recanted
their testimonies or may have died or may no longer be available and new witnesses for the State have
emerged, a new preliminary investigation[15]must be conducted before an Information is refiled or a new
Information is filed. A new preliminary investigation is also required if aside from the original accused,
other persons are charged under a new criminal complaint for the same offense or necessarily included
therein; or if under a new criminal complaint, the original charge has been upgraded; or if under a new
criminal complaint, the criminal liability of the accused is upgraded from that as an accessory to that as a
principal. The accused must be accorded the right to submit counter-affidavits and evidence.After all, the
fiscal is not called by the Rules of Court to wait in ambush; the role of a fiscal is not mainly to prosecute
but essentially to do justice to every man and to assist the court in dispensing that justice. [16]
In this case, the respondent has failed to prove that the first and second requisites of the first
paragraph of the new rule were present when Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-9981679 to Q-99-81689. Irrefragably, the prosecution did not file any motion for the provisional dismissal of
the said criminal cases. For his part, the respondent merely filed a motion for judicial determination of
probable cause and for examination of prosecution witnesses alleging that under Article III, Section 2 of
the Constitution and the decision of this Court in Allado v. Diokno,[17] among other cases, there was a
need for the trial court to conduct a personal determination of probable cause for the issuance of a
warrant of arrest against respondent and to have the prosecutions witnesses summoned before the court
for its examination. The respondent contended therein that until after the trial court shall have personally
determined the presence of probable cause, no warrant of arrest should be issued against the respondent
and if one had already been issued, the warrant should be recalled by the trial court. He then prayed
therein that:
1) a judicial determination of probable cause pursuant to Section 2, Article III of the Constitution be conducted by
this Honorable Court, and for this purpose, an order be issued directing the prosecution to present the private
complainants and their witnesses at a hearing scheduled therefor; and
2) warrants for the arrest of the accused-movants be withheld, or, if issued, recalled in the meantime until the
resolution of this incident.
Other equitable reliefs are also prayed for.[18]
The respondent did not pray for the dismissal, provisional or otherwise, of Criminal Cases Nos. Q99-81679 to Q-99-81689. Neither did he ever agree, impliedly or expressly, to a mere provisional
dismissal of the cases. In fact, in his reply filed with the Court of Appeals, respondent emphasized that:

... An examination of the Motion for Judicial Determination of Probable Cause and for Examination of Prosecution
Witnesses filed by the petitioner and his other co-accused in the said criminal cases would show that the petitioner
did not pray for the dismissal of the case. On the contrary, the reliefs prayed for therein by the petitioner are: (1) a
judicial determination of probable cause pursuant to Section 2, Article III of the Constitution; and (2) that warrants
for the arrest of the accused be withheld, or if issued, recalled in the meantime until the resolution of the motion. It
cannot be said, therefore, that the dismissal of the case was made with the consent of the petitioner. A copy of the
aforesaid motion is hereto attached and made integral part hereof as Annex A.[19]
During the hearing in the Court of Appeals on July 31, 2001, the respondent, through counsel,
categorically, unequivocally, and definitely declared that he did not file any motion to dismiss the criminal
cases nor did he agree to a provisional dismissal thereof, thus:
JUSTICE SALONGA:
And it is your stand that the dismissal made by the Court was provisional in nature?
ATTY. FORTUN:
It was in (sic) that the accused did not ask for it. What they wanted at the onset was
simply a judicial determination of probable cause for warrants of arrest
issued. Then Judge Agnir, upon the presentation by the parties of their witnesses,
particularly those who had withdrawn their affidavits, made one further conclusion that not
only was this case lacking in probable cause for purposes of the issuance of an arrest
warrant but also it did not justify proceeding to trial.
JUSTICE SALONGA:
And it is expressly provided under Section 8 that a case shall not be provisionally dismissed
except when it is with the express conformity of the accused.
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
And with notice to the offended party.
ATTY. FORTUN:
That is correct, Your Honor.
JUSTICE SALONGA:
Was there an express conformity on the part of the accused?
ATTY. FORTUN:

There was none, Your Honor. We were not asked to sign any order, or any statement,
which would normally be required by the Court on pre-trial or on other matters,
including other provisional dismissal. My very limited practice in criminal courts, Your
Honor, had taught me that a judge must be very careful on this matter of provisional
dismissal. In fact they ask the accused to come forward, and the judge himself or herself
explains the implications of a provisional dismissal. Pumapayag ka ba dito. Puwede bang
pumirma ka?
JUSTICE ROSARIO:
You were present during the proceedings?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE ROSARIO:
You represented the petitioner in this case?
ATTY. FORTUN:
That is correct, Your Honor. And there was nothing of that sort which the good Judge
Agnir, who is most knowledgeable in criminal law, had done in respect of
provisional dismissal or the matter of Mr. Lacson agreeing to the provisional
dismissal of the case.
JUSTICE GUERRERO:
Now, you filed a motion, the other accused then filed a motion for a judicial determination of
probable cause?
ATTY. FORTUN:
Yes, Your Honor.
JUSTICE GUERRERO:
Did you make any alternative prayer in your motion that if there is no probable cause what
should the Court do?
ATTY. FORTUN:
That the arrest warrants only be withheld. That was the only prayer that we asked. In
fact, I have a copy of that particular motion, and if I may read my prayer before the Court,
it said: Wherefore, it is respectfully prayed that (1) a judicial determination of probable
cause pursuant to Section 2, Article III of the Constitution be conducted, and for this
purpose, an order be issued directing the prosecution to present the private complainants

and their witnesses at the scheduled hearing for that purpose; and (2) the warrants for the
arrest of the accused be withheld, or, if issued, recalled in the meantime until resolution of
this incident.
JUSTICE GUERRERO:
There is no general prayer for any further relief?
ATTY. FORTUN:
There is but it simply says other equitable reliefs are prayed for.
JUSTICE GUERRERO:
Dont you surmise Judge Agnir, now a member of this Court, precisely addressed your prayer
for just and equitable relief to dismiss the case because what would be the net effect of a
situation where there is no warrant of arrest being issued without dismissing the case?
ATTY. FORTUN:
Yes, Your Honor. I will not second say (sic) yes the Good Justice, but what is plain is we
did not agree to the provisional dismissal, neither were we asked to sign any
assent to the provisional dismissal.
JUSTICE GUERRERO:
If you did not agree to the provisional dismissal did you not file any motion for reconsideration
of the order of Judge Agnir that the case should be dismissed?
ATTY. FORTUN:
I did not, Your Honor, because I knew fully well at that time that my client had already
been arraigned, and the arraignment was valid as far as I was concerned. So, the
dismissal, Your Honor, by Judge Agnir operated to benefit me, and therefore I did
not take any further step in addition to rocking the boat or clarifying the matter
further because it probably could prejudice the interest of my client.
JUSTICE GUERRERO:
Continue.[20]
In his memorandum in lieu of the oral argument filed with the Court of Appeals, the respondent
declared in no uncertain terms that:
Soon thereafter, the SC in early 1999 rendered a decision declaring the Sandiganbayan without jurisdiction over the
cases. The records were remanded to the QC RTC: Upon raffle, the case was assigned to Branch 81. Petitioner and
the others promptly filed a motion for judicial determination of probable cause (Annex B). He asked that warrants

for his arrest not be issued. He did not move for the dismissal of the Informations, contrary to respondent
OSGs claim.[21]
The respondents admissions made in the course of the proceedings in the Court of Appeals are
binding and conclusive on him. The respondent is barred from repudiating his admissions absent
evidence of palpable mistake in making such admissions. [22]
To apply the new rule in Criminal Cases Nos. Q-99-81679 to Q-99-81689 would be to add to or make
exceptions from the new rule which are not expressly or impliedly included therein. This the Court cannot
and should not do.[23]
The Court also agrees with the petitioners contention that no notice of any motion for the provisional
dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 or of the hearing thereon was served on the
heirs of the victims at least three days before said hearing as mandated by Rule 15, Section 4 of the
Rules of Court. It must be borne in mind that in crimes involving private interests, the new rule requires
that the offended party or parties or the heirs of the victims must be given adequate a priori notice of any
motion for the provisional dismissal of the criminal case.Such notice may be served on the offended party
or the heirs of the victim through the private prosecutor, if there is one, or through the public prosecutor
who in turn must relay the notice to the offended party or the heirs of the victim to enable them to confer
with him before the hearing or appear in court during the hearing. The proof of such service must be
shown during the hearing on the motion, otherwise, the requirement of the new rule will become
illusory. Such notice will enable the offended party or the heirs of the victim the opportunity to seasonably
and effectively comment on or object to the motion on valid grounds, including: (a) the collusion between
the prosecution and the accused for the provisional dismissal of a criminal case thereby depriving the
State of its right to due process; (b) attempts to make witnesses unavailable; or (c) the provisional
dismissal of the case with the consequent release of the accused from detention would enable him to
threaten and kill the offended party or the other prosecution witnesses or flee from Philippine jurisdiction,
provide opportunity for the destruction or loss of the prosecutions physical and other evidence and
prejudice the rights of the offended party to recover on the civil liability of the accused by his concealment
or furtive disposition of his property or the consequent lifting of the writ of preliminary attachment against
his property.
In the case at bar, even if the respondents motion for a determination of probable cause and
examination of witnesses may be considered for the nonce as his motion for a provisional dismissal of
Criminal Cases Nos. Q-99-81679 to Q-99-81689, however, the heirs of the victims were not notified
thereof prior to the hearing on said motion on March 22, 1999. It must be stressed that the respondent
filed his motion only on March 17, 1999 and set it for hearing on March 22, 1999 or barely five days from
the filing thereof. Although the public prosecutor was served with a copy of the motion, the records do not
show that notices thereof were separately given to the heirs of the victims or that subpoenae were issued
to and received by them, including those who executed their affidavits of desistance who were residents
of Dipolog City or Pian, Zamboanga del Norte or Palompon, Leyte. [24] There is as well no proof in the
records that the public prosecutor notified the heirs of the victims of said motion or of the hearing thereof
on March 22, 1999. Although Atty. Valdez entered his appearance as private prosecutor, [25] he did so only
for some but not all the close kins of the victims, namely, Nenita Alap-ap, Imelda Montero, Margarita
Redillas, Rufino Siplon, Carmelita Elcamel, Myrna Abalora, and Leonora Amora who (except for Rufino
Siplon)[26] executed their respective affidavits of desistance.[27] There was no appearance for the heirs of
Alex Neri, Pacifico Montero, Jr., and Meleubren Sorronda. There is no proof on record that all the heirs of
the victims were served with copies of the resolution of Judge Agnir, Jr. dismissing the said cases. In fine,

there never was any attempt on the part of the trial court, the public prosecutor and/or the private
prosecutor to notify all the heirs of the victims of the respondents motion and the hearing thereon and of
the resolution of Judge Agnir, Jr. dismissing said cases. The said heirs were thus deprived of their right to
be heard on the respondents motion and to protect their interests either in the trial court or in the
appellate court.
Since the conditions sine qua non for the application of the new rule were not present when Judge
Agnir, Jr. issued his resolution, the State is not barred by the time limit set forth in the second paragraph
of Section 8 of Rule 117 of the Revised Rules of Criminal Procedure. The State can thus revive or refile
Criminal Cases Nos. Q-99-81679 to Q-99-81689 or file new Informations for multiple murder against the
respondent.
II. THE TIME-BAR IN SECTION 8, RULE 117 OF THE REVISED RULES OF CRIMINAL
PROCEDURE SHOULD NOT BE APPLIED RETROACTIVELY.
The petitioners contend that even on the assumption that the respondent expressly consented to a
provisional dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 and all the heirs of the victims
were notified of the respondents motion before the hearing thereon and were served with copies of the
resolution of Judge Agnir, Jr. dismissing the eleven cases, the two-year bar in Section 8 of Rule 117 of the
Revised Rules of Criminal Procedure should be applied prospectively and not retroactively against the
State. To apply the time limit retroactively to the criminal cases against the respondent and his coaccused would violate the right of the People to due process, and unduly impair, reduce, and diminish the
States substantive right to prosecute the accused for multiple murder. They posit that under Article 90 of
the Revised Penal Code, the State had twenty years within which to file the criminal complaints against
the accused. However, under the new rule, the State only had two years from notice of the public
prosecutor of the order of dismissal of Criminal Cases Nos. Q-99-81679 to Q-99-81689 within which to
revive the said cases. When the new rule took effect on December 1, 2000, the State only had one year
and three months within which to revive the cases or refile the Informations. The period for the State to
charge respondent for multiple murder under Article 90 of the Revised Penal Code was considerably and
arbitrarily reduced. They submit that in case of conflict between the Revised Penal Code and the new
rule, the former should prevail. They also insist that the State had consistently relied on the prescriptive
periods under Article 90 of the Revised Penal Code. It was not accorded a fair warning that it would
forever be barred beyond the two-year period by a retroactive application of the new rule. [28] Petitioners
thus pray to the Court to set aside its Resolution of May 28, 2002.
For his part, the respondent asserts that the new rule under Section 8 of Rule 117 of the Revised
Rules of Criminal Procedure may be applied retroactively since there is no substantive right of the State
that may be impaired by its application to the criminal cases in question since [t]he States witnesses were
ready, willing and able to provide their testimony but the prosecution failed to act on these cases until it
became politically expedient in April 2001 for them to do so. [29] According to the respondent, penal laws,
either procedural or substantive, may be retroactively applied so long as they favor the accused. [30] He
asserts that the two-year period commenced to run on March 29, 1999 and lapsed two years thereafter
was more than reasonable opportunity for the State to fairly indict him. [31] In any event, the State is given
the right under the Courts assailed Resolution to justify the filing of the Information in Criminal Cases Nos.
01-101102 to 01-101112 beyond the time-bar under the new rule.
The respondent insists that Section 8 of Rule 117 of the Revised Rules of Criminal Procedure does
not broaden the substantive right of double jeopardy to the prejudice of the State because the prohibition

against the revival of the cases within the one-year or two-year periods provided therein is a legal concept
distinct from the prohibition against the revival of a provisionally dismissed case within the periods stated
in Section 8 of Rule 117. Moreover, he claims that the effects of a provisional dismissal under said rule do
not modify or negate the operation of the prescriptive period under Article 90 of the Revised Penal
Code. Prescription under the Revised Penal Code simply becomes irrelevant upon the application of
Section 8, Rule 117 because a complaint or information has already been filed against the accused,
which filing tolls the running of the prescriptive period under Article 90. [32]
The Court agrees with the respondent that the new rule is not a statute of limitations. Statutes of
limitations are construed as acts of grace, and a surrender by the sovereign of its right to prosecute or of
its right to prosecute at its discretion. Such statutes are considered as equivalent to acts of amnesty
founded on the liberal theory that prosecutions should not be allowed to ferment endlessly in the files of
the government to explode only after witnesses and proofs necessary for the protection of the accused
have by sheer lapse of time passed beyond availability. [33]The periods fixed under such statutes are
jurisdictional and are essential elements of the offenses covered. [34]
On the other hand, the time-bar under Section 8 of Rule 117 is akin to a special procedural limitation
qualifying the right of the State to prosecute making the time-bar an essence of the given right or as an
inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to
prosecute the accused.[35]
The time-bar under the new rule does not reduce the periods under Article 90 of the Revised Penal
Code, a substantive law.[36] It is but a limitation of the right of the State to revive a criminal case against
the accused after the Information had been filed but subsequently provisionally dismissed with the
express consent of the accused. Upon the lapse of the timeline under the new rule, the State is
presumed, albeit disputably, to have abandoned or waived its right to revive the case and prosecute the
accused. The dismissal becomes ipso facto permanent. He can no longer be charged anew for the same
crime or another crime necessarily included therein. [37] He is spared from the anguish and anxiety as well
as the expenses in any new indictments. [38] The State may revive a criminal case beyond the one-year or
two-year periods provided that there is a justifiable necessity for the delay. [39] By the same token, if a
criminal case is dismissed on motion of the accused because the trial is not concluded within the period
therefor, the prescriptive periods under the Revised Penal Code are not thereby diminished. [40] But
whether or not the prosecution of the accused is barred by the statute of limitations or by the lapse of the
time-line under the new rule, the effect is basically the same. As the State Supreme Court of Illinois held:
This, in effect, enacts that when the specified period shall have arrived, the right of the state to prosecute shall be
gone, and the liability of the offender to be punishedto be deprived of his libertyshall cease. Its terms not only strike
down the right of action which the state had acquired by the offense, but also remove the flaw which the crime had
created in the offenders title to liberty. In this respect, its language goes deeper than statutes barring civil remedies
usually do. They expressly take away only the remedy by suit, and that inferentially is held to abate the right which
such remedy would enforce, and perfect the title which such remedy would invade; but this statute is aimed directly
at the very right which the state has against the offenderthe right to punish, as the only liability which the offender
has incurred, and declares that this right and this liability are at an end. [41]
The Court agrees with the respondent that procedural laws may be applied retroactively. As applied
to criminal law, procedural law provides or regulates the steps by which one who has committed a crime
is to be punished. In Tan, Jr. v. Court of Appeals,[42] this Court held that:

Statutes regulating the procedure of the courts will be construed as applicable to actions pending and undetermined
at the time of their passage. Procedural laws are retroactive in that sense and to that extent. The fact that procedural
statutes may somehow affect the litigants rights may not preclude their retroactive application to pending
actions. The retroactive application of procedural laws is not violative of any right of a person who may feel that he
is adversely affected. Nor is the retroactive application of procedural statutes constitutionally objectionable. The
reason is that as a general rule no vested right may attach to, nor arise from, procedural laws. It has been held that a
person has no vested right in any particular remedy, and a litigant cannot insist on the application to the trial of his
case, whether civil or criminal, of any other than the existing rules of procedure.
It further ruled therein that a procedural law may not be applied retroactively if to do so would work
injustice or would involve intricate problems of due process or impair the independence of the Court. In
a per curiam decision in Cipriano v. City of Houma,[43] the United States Supreme Court ruled that where a
decision of the court would produce substantial inequitable results if applied retroactively, there is ample
basis for avoiding the injustice of hardship by a holding of nonretroactivity. [44] A construction of which a
statute is fairly susceptible is favored, which will avoid all objectionable, mischievous, indefensible,
wrongful, and injurious consequences.[45] This Court should not adopt an interpretation of a statute which
produces absurd, unreasonable, unjust, or oppressive results if such interpretation could be avoided.
[46]
Time and again, this Court has decreed that statutes are to be construed in light of the purposes to be
achieved and the evils sought to be remedied. In construing a statute, the reason for the enactment
should be kept in mind and the statute should be construed with reference to the intended scope and
purpose.[47]
Remedial legislation, or procedural rule, or doctrine of the Court designed to enhance and implement
the constitutional rights of parties in criminal proceedings may be applied retroactively or prospectively
depending upon several factors, such as the history of the new rule, its purpose and effect, and whether
the retrospective application will further its operation, the particular conduct sought to be remedied and
the effect thereon in the administration of justice and of criminal laws in particular. [48] In a per
curiam decision in Stefano v. Woods,[49] the United States Supreme Court catalogued the factors in
determining whether a new rule or doctrine enunciated by the High Court should be given retrospective or
prospective effect:
(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on
the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.
In this case, the Court agrees with the petitioners that the time-bar of two years under the new rule
should not be applied retroactively against the State.
In the new rule in question, as now construed by the Court, it has fixed a time-bar of one year or two
years for the revival of criminal cases provisionally dismissed with the express consent of the accused
and with a priori notice to the offended party. The time-bar may appear, on first impression, unreasonable
compared to the periods under Article 90 of the Revised Penal Code. However, in fixing the time-bar, the
Court balanced the societal interests and those of the accused for the orderly and speedy disposition of
criminal cases with minimum prejudice to the State and the accused. It took into account the substantial
rights of both the State and of the accused to due process. The Court believed that the time limit is a
reasonable period for the State to revive provisionally dismissed cases with the consent of the accused
and notice to the offended parties. The time-bar fixed by the Court must be respected unless it is shown
that the period is manifestly short or insufficient that the rule becomes a denial of justice. [50] The
petitioners failed to show a manifest shortness or insufficiency of the time-bar.

The new rule was conceptualized by the Committee on the Revision of the Rules and approved by
the Court en banc primarily to enhance the administration of the criminal justice system and the rights to
due process of the State and the accused by eliminating the deleterious practice of trial courts of
provisionally dismissing criminal cases on motion of either the prosecution or the accused or jointly, either
with no time-bar for the revival thereof or with a specific or definite period for such revival by the public
prosecutor. There were times when such criminal cases were no longer revived or refiled due to causes
beyond the control of the public prosecutor or because of the indolence, apathy or the lackadaisical
attitude of public prosecutors to the prejudice of the State and the accused despite the mandate to public
prosecutors and trial judges to expedite criminal proceedings. [51]
It is almost a universal experience that the accused welcomes delay as it usually operates in his
favor,[52] especially if he greatly fears the consequences of his trial and conviction. He is hesitant to disturb
the hushed inaction by which dominant cases have been known to expire. [53]
The inordinate delay in the revival or refiling of criminal cases may impair or reduce the capacity of
the State to prove its case with the disappearance or nonavailability of its witnesses. Physical evidence
may have been lost. Memories of witnesses may have grown dim or have faded. Passage of time makes
proof of any fact more difficult.[54] The accused may become a fugitive from justice or commit another
crime. The longer the lapse of time from the dismissal of the case to the revival thereof, the more difficult
it is to prove the crime.
On the other side of the fulcrum, a mere provisional dismissal of a criminal case does not terminate a
criminal case. The possibility that the case may be revived at any time may disrupt or reduce, if not derail,
the chances of the accused for employment, curtail his association, subject him to public obloquy and
create anxiety in him and his family. He is unable to lead a normal life because of community suspicion
and his own anxiety. He continues to suffer those penalties and disabilities incompatible with the
presumption of innocence.[55] He may also lose his witnesses or their memories may fade with the
passage of time. In the long run, it may diminish his capacity to defend himself and thus eschew the
fairness of the entire criminal justice system.[56]
The time-bar under the new rule was fixed by the Court to excise the malaise that plagued the
administration of the criminal justice system for the benefit of the State and the accused; not for the
accused only.
The Court agrees with the petitioners that to apply the time-bar retroactively so that the two-year
period commenced to run on March 31, 1999 when the public prosecutor received his copy of the
resolution of Judge Agnir, Jr. dismissing the criminal cases is inconsistent with the intendment of the new
rule. Instead of giving the State two years to revive provisionally dismissed cases, the State had
considerably less than two years to do so. Thus, Judge Agnir, Jr. dismissed Criminal Cases Nos. Q-9981679 to Q-99-81689 on March 29, 1999. The new rule took effect on December 1, 2000. If the Court
applied the new time-bar retroactively, the State would have only one year and three months or until
March 31, 2001 within which to revive these criminal cases. The period is short of the two-year period
fixed under the new rule. On the other hand, if the time limit is applied prospectively, the State would have
two years from December 1, 2000 or until December 1, 2002 within which to revive the cases. This is in
consonance with the intendment of the new rule in fixing the time-bar and thus prevent injustice to the
State and avoid absurd, unreasonable, oppressive, injurious, and wrongful results in the administration of
justice.

The period from April 1, 1999 to November 30, 1999 should be excluded in the computation of the
two-year period because the rule prescribing it was not yet in effect at the time and the State could not be
expected to comply with the time-bar. It cannot even be argued that the State waived its right to revive the
criminal cases against respondent or that it was negligent for not reviving them within the two-year period
under the new rule. As the United States Supreme Court said, per Justice Felix Frankfurter, in Griffin v.
People:[57]
We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those
who did not avail themselves of it waived their rights .
The two-year period fixed in the new rule is for the benefit of both the State and the accused. It
should not be emasculated and reduced by an inordinate retroactive application of the time-bar therein
provided merely to benefit the accused. For to do so would cause an injustice of hardship to the State and
adversely affect the administration of justice in general and of criminal laws in particular.
To require the State to give a valid justification as a condition sine qua non to the revival of a case
provisionally dismissed with the express consent of the accused before the effective date of the new rule
is to assume that the State is obliged to comply with the time-bar under the new rule before it took
effect. This would be a rank denial of justice. The State must be given a period of one year or two years
as the case may be from December 1, 2000 to revive the criminal case without requiring the State to
make a valid justification for not reviving the case before the effective date of the new rule. Although in
criminal cases, the accused is entitled to justice and fairness, so is the State. As the United States
Supreme Court said, per Mr. Justice Benjamin Cardozo, in Snyder v. State of Massachussetts, [58] the
concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance
true. In Dimatulac v. Villon,[59] this Court emphasized that the judges action must not impair the substantial
rights of the accused nor the right of the State and offended party to due process of law. This Court
further said:
Indeed, for justice to prevail, the scales must balance; justice is not to be dispensed for the accused alone. The
interests of society and the offended parties which have been wronged must be equally considered. Verily, a verdict
of conviction is not necessarily a denial of justice; and an acquittal is not necessarily a triumph of justice, for, to the
society offended and the party wronged, it could also mean injustice. Justice then must be rendered even-handedly to
both the accused, on one hand, and the State and offended party, on the other.
In this case, the eleven Informations in Criminal Cases Nos. 01-101102 to 01-101112 were filed with
the Regional Trial Court on June 6, 2001 well within the two-year period.
In sum, this Court finds the motion for reconsideration of petitioners meritorious.
IN THE LIGHT OF ALL THE FOREGOING, the petitioners Motion for Reconsideration is
GRANTED. The Resolution of this Court, dated May 28, 2002, is SET ASIDE. The Decision of the Court
of Appeals, dated August 24, 2001, in CA-G.R. SP No. 65034 is REVERSED. The Petition of the
Respondent with the Regional Trial Court in Civil Case No. 01-100933 is DISMISSED for being moot and
academic. The Regional Trial Court of Quezon City, Branch 81, is DIRECTED to forthwith proceed with
Criminal Cases Nos. 01-101102 to 01-101112 with deliberate dispatch.
No pronouncements as to costs.

SO ORDERED.

THIRD DIVISION
[G.R. No. 151876. June 21, 2005]
SUSAN

GO and the PEOPLE

DIMAGIBA, respondent.

OF

THE

PHILIPPINES, petitioners,

vs.

FERNANDO

L.

DECISION
PANGANIBAN, J.:
Administrative Circular 12-2000, as clarified by Administrative Circular 13-2001, merely establishes a
rule of preference in imposing penalties for violations of Batas Pambansa Blg. 22 (BP 22), the Bouncing
Checks Law. When the circumstances of both the offense and the offender indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of a fine alone -- instead of imprisonment -- is
the preferred penalty. As the Circular requires a review of the factual circumstances of a given case, it
applies only to pending or future litigations. It is not a penal law; hence, it does not have retroactive effect.
Neither may it be used to modify final judgments of conviction.
The Case
Before us is a Petition for Review [1] under Rule 45 of the Rules of Court, assailing the October 10,
2001[2] and the October 11, 2001[3]Orders of the Regional Trial Court (RTC) (Branch 5), Baguio City.[4] The
October 10, 2001 Order released Respondent Fernando L. Dimagiba from confinement and required him
to pay a fine of P100,000 in lieu of imprisonment. The October 11, 2001 Order disposed as follows:
WHEREFORE, [in] applying the doctrine as held in the above-entitled cases in this case, the instant petition for
Habeas Corpus should be, as it is hereby,GRANTED. The Baguio City Jail Warden is hereby ordered to
IMMEDIATELY RELEASE the petitioner from confinement unless he is being held for some other lawful cause
other than by virtue of the Sentence Mittimus dated September 28, 2001 issued by CESAR S. VIDUYA, Clerk of

Court, MTC 4, Baguio City. Further, the petitioner is required to pay a fine in the amount of P100,000.00 in lieu of
his imprisonment, in addition to the civil aspect of the Joint Judgment rendered by MTC 4 dated July 16, 1999. [5]
The Facts
The pertinent facts are not disputed. Respondent Fernando L. Dimagiba issued to Petitioner Susan
Go thirteen (13) checks which, when presented to the drawee bank for encashment or payment on the
due dates, were dishonored for the reason account closed. [6] Dimagiba was subsequently prosecuted for
13 counts of violation of BP 22 [7] under separate Complaints filed with the Municipal Trial Court in Cities
(MTCC) in Baguio City.[8] After a joint trial, the MTCC (Branch 4) rendered a Decision on July 16, 1999,
convicting the accused in the 13 cases. The dispositive portion reads as follows:
WHEREFORE, in view of the foregoing disquisition, this Court finds the evidence of the prosecution to have
established the guilt of the accused beyond reasonable doubt of the offenses charged and imposes upon the accused
the penalty of 3 months imprisonment for each count (13 counts) and to indemnify the offended party the amount of
One Million Two Hundred Ninety Five Thousand Pesos (P1,295,000.00) with legal interest per annum commencing
from 1996 after the checks were dishonored by reason ACCOUNT CLOSED on December 13, 1995, to pay
attorneys fees of P15,000.00 and to pay the costs.[9]
The appeal of Dimagiba was raffled to Branch 4 of the RTC in Baguio City. [10] On May 23, 2000, the
RTC denied the appeal and sustained his conviction. [11] There being no further appeal to the Court of
Appeals (CA), the RTC issued on February 1, 2001, a Certificate of Finality of the Decision. [12]
Thus, on February 14, 2001, the MTCC issued an Order directing the arrest of Dimagiba for the
service of his sentence as a result of his conviction. The trial court also issued a Writ of Execution to
enforce his civil liability.[13]
On February 27, 2001, Dimagiba filed a Motion for Reconsideration of the MTCC Order. He prayed
for the recall of the Order of Arrest and the modification of the final Decision, arguing that the penalty of
fine only, instead of imprisonment also, should have been imposed on him. [14]The arguments raised in that
Motion were reiterated in a Motion for the Partial Quashal of the Writ of Execution filed on February 28,
2001.[15]
In an Order dated August 22, 2001, the MTCC denied the Motion for Reconsideration and directed
the issuance of a Warrant of Arrest against Dimagiba. [16] On September 28, 2001, he was arrested and
imprisoned for the service of his sentence.
On October 9, 2001, he filed with the RTC of Baguio City a Petition [17] for a writ of habeas corpus.
The case was raffled to Branch 5, which scheduled the hearing for October 10, 2001. Copies of the Order
were served on respondents counsels and the city warden. [18]
Ruling of the Regional Trial Court
Right after hearing the case on October 10, 2001, the RTC issued an Order directing the immediate
release of Dimagiba from confinement and requiring him to pay a fine of P100,000 in lieu of
imprisonment. However, the civil aspect of the July 16, 1999 MTCC Decision was not touched upon. [19] A
subsequent Order, explaining in greater detail the basis of the grant of the writ of habeas corpus, was
issued on October 11, 2001.[20]

In justifying its modification of the MTCC Decision, the RTC invoked Vaca v. Court of Appeals [21] and
Supreme Court Administrative Circular (SC-AC) No. 12-2000, [22] which allegedly required the imposition of
a fine only instead of imprisonment also for BP 22 violations, if the accused was not a recidivist or a
habitual delinquent. The RTC held that this rule should be retroactively applied in favor of Dimagiba. [23] It
further noted that (1) he was a first-time offender and an employer of at least 200 workers who would be
displaced as a result of his imprisonment; and (2) the civil liability had already been satisfied through the
levy of his properties.[24]
On October 22, 2001, Petitioner Go filed a Motion for Reconsideration of the RTC Orders dated
October 10 and 11, 2001.[25] That Motion was denied on January 18, 2002.[26]
Hence, this Petition filed directly with this Court on pure questions of law.[27]
The Issues
Petitioner raises the following issues for this Courts consideration:
1. [The RTC] Judge was utterly devoid of jurisdiction in amending a final and conclusive decision of the Municipal
Trial Court, Branch 4, dated July 16, 1999, in nullifying the Sentence Mittimus, dated September 28, 2001, issued
by x x x [the] Municipal Trial Court, Branch 4, Baguio City, and in ordering the release of [Dimagiba] from
confinement in jail for the service of his sentence under the said final and conclusive judgment;
2. Assuming only for the sake of argument that habeas corpus is the proper remedy, the Petition for Habeas Corpus
is utterly devoid of merit as [Dimagiba was] not entitled to the beneficent policy enunciated in the Eduardo
Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000; x x x
3. Granting for the sake of argument that [Dimagiba was] entitled to the beneficent policy enunciated in the Eduardo
Vaca and Rosa Lim cases and reiterated in the Supreme Court Circular No. 12-2000, the minimum fine that should
be imposed on [Dimagiba] is one million and two hundred ninety five thousand pesos (P1,295,000.00) up to double
the said amount or (P2,590,000), not just the measly amount of P100,000; and
4. [The RTC] judge committed grave abuse of discretion amounting to lack or excess of jurisdiction in hearing and
deciding [Dimagibas] Petition for Habeas Corpus without notice and without affording procedural due process to the
People of the Philippines through the Office of [the] City Prosecutor of Baguio City or the Office of the Solicitor
General.[28]
In the main, the case revolves around the question of whether the Petition for habeas corpus was
validly granted. Hence, the Court will discuss the four issues as they intertwine with this main question. [29]
The Courts Ruling
The Petition is meritorious.
Main Issue:
Propriety of the
Writ of Habeas Corpus

The writ of habeas corpus applies to all cases of illegal confinement or detention in which individuals
are deprived of liberty.[30] It was devised as a speedy and effectual remedy to relieve persons from
unlawful restraint; or, more specifically, to obtain immediate relief for those who may have been illegally
confined or imprisoned without sufficient cause and thus deliver them from unlawful custody.[31] It is
therefore a writ of inquiry intended to test the circumstances under which a person is detained. [32]
The writ may not be availed of when the person in custody is under a judicial process or by virtue of
a valid judgment.[33] However, as a post-conviction remedy, it may be allowed when, as a consequence of
a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a
deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to
impose the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to
such excess.[34]
In the present case, the Petition for a writ of habeas corpus was anchored on the ruling in Vaca and
on SC-AC No. 12-2000, which allegedly prescribed the imposition of a fine, not imprisonment, for
convictions under BP 22. Respondent sought the retroactive effect of those rulings, thereby effectively
challenging the penalty imposed on him for being excessive. From his allegations, the Petition appeared
sufficient in form to support the issuance of the writ.
However, it appears that respondent has previously sought the modification of his sentence in a
Motion for Reconsideration[35] of the MTCCs Execution Order and in a Motion for the Partial Quashal of
the Writ of Execution.[36] Both were denied by the MTCC on the ground that it had no power or authority to
amend a judgment issued by the RTC.
In his Petition for habeas corpus, respondent raised the same arguments that he had invoked in the
said Motions. We believe that his resort to this extraordinary remedy was a procedural infirmity. The
remedy should have been an appeal of the MTCC Order denying his Motions, in which he should have
prayed that the execution of the judgment be stayed. But he effectively misused the action he had
chosen, obviously with the intent of finding a favorable court. His Petition for a writ of habeas corpus was
clearly an attempt to reopen a case that had already become final and executory. Such an action
deplorably amounted to forum shopping. Respondent should have resorted to the proper, available
remedy instead of instituting a different action in another forum.
The Court also finds his arguments for his release insubstantial to support the issuance of the writ of
habeas corpus.
Preference in the
Application of Penalties
for Violation of BP 22
The following alternative penalties are imposable under BP 22: (1) imprisonment of not less than 30
days, but not more than one year; (2) a fine of not less or more than double the amount of the check, a
fine that shall in no case exceed P200,000; or (3) both such fine and imprisonment, at the discretion of
the court.[37]

SC-AC No. 12-2000, as clarified by SC-AC No. 13-2001, [38] established a rule of preference in
imposing the above penalties.[39] When the circumstances of the case clearly indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of a fine alone may be considered as the
preferred penalty.[40] The determination of the circumstances that warrant the imposition of a fine rests
upon the trial judge only.[41] Should the judge deem that imprisonment is appropriate, such penalty may be
imposed.[42]
SC-AC No. 12-2000 did not delete the alternative penalty of imprisonment. The competence to
amend the law belongs to the legislature, not to this Court. [43]
Inapplicability of
SC-AC No. 12-2000
Petitioners argue that respondent is not entitled to the benevolent policy enunciated in SC-AC No.
12-2000, because he is not a first time offender.[44] This circumstance is, however, not the sole factor in
determining whether he deserves the preferred penalty of fine alone. The penalty to be imposed depends
on the peculiar circumstances of each case. [45] It is the trial courts discretion to impose any penalty within
the confines of the law. SC-AC No. 13-2001 explains thus:
x x x. Administrative Circular No. 12-2000 establishes a rule of preference in the application of the penal provisions
of BP 22 such that where the circumstances of both the offense and the offender clearly indicate good faith or a clear
mistake of fact without taint of negligence, the imposition of a fine alone should be considered as the more
appropriate penalty. Needless to say, the determination of whether the circumstances warrant the imposition of a fine
alone rests solely upon the Judge. x x x.
It is, therefore, understood that:
xxxxxxxxx
2. The Judges concerned, may in the exercise of sound discretion, and taking into consideration the peculiar
circumstances of each case, determine whether the imposition of a fine alone would best serve the interests of
justice, or whether forbearing to impose imprisonment would depreciate the seriousness of the offense, work
violence on the social order, or otherwise be contrary to the imperatives of justice;
The Court notes that the Petition for a writ of habeas corpus relied mainly on the alleged retroactivity
of SC-AC No. 12-2000, which supposedly favored BP 22 offenders. [46] On this point, Dimagiba contended
that his imprisonment was violative of his right to equal protection of the laws, since only a fine would be
imposed on others similarly situated.[47]
The rule on retroactivity states that criminal laws may be applied retroactively if favorable to the
accused. This principle, embodied in the Revised Penal Code, [48] has been expanded in certain instances
to cover special laws.[49]
The issue of retroactivity of SC-AC No. 12-2000 was settled in De Joya v. Jail Warden of Batangas
City, which we quote:
[50]

Petitioner's reliance of our ruling in Ordoez v. Vinarao that a convicted person is entitled to benefit from the
reduction of penalty introduced by the new law, citingPeople v. Simon, is misplaced. Thus, her plea that as provided
for in Article 22 of the Revised Penal Code, SC Admin. Circular No. 12-2000 as modified by SC Admin. Circular
No. 13-2001 should benefit her has no basis.
First. SC Admin. Circular No. 12-2000 is not a penal law; hence, Article 22 of the Revised Penal Code is not
applicable. The circular applies only to those cases pending as of the date of its effectivity and not to cases already
terminated by final judgment.
Second. As explained by the Court in SC Admin. Circular No. 13-2001, SC Admin. Circular No. 12-2000 merely
lays down a rule of preference in the application of the penalties for violation of B.P. Blg. 22. It does not amend B.P.
Blg. 22, nor defeat the legislative intent behind the law. SC Admin. Circular No. 12-2000 merely urges the courts to
take into account not only the purpose of the law but also the circumstances of the accused -- whether he acted in
good faith or on a clear mistake of fact without taint of negligence -- and such other circumstance which the trial
court or the appellate court believes relevant to the penalty to be imposed. [51]
Because the Circular merely lays down a rule of preference, it serves only as a guideline for the trial
courts. Thus, it is addressed to the judges, who are directed to consider the factual circumstances of each
case prior to imposing the appropriate penalty. In other words, the Administrative Circular does not confer
any new right in favor of the accused, much less those convicted by final judgment.
The competence to determine the proper penalty belongs to the court rendering the decision against
the accused.[52] That decision is subject only to appeal on grounds of errors of fact or law, or grave abuse
of discretion amounting to lack or excess of jurisdiction. Another trial court may not encroach upon this
authority. Indeed, SC-AC No. 12-2000 necessarily requires a review of all factual circumstances of each
case. Such a review can no longer be done if the judgment has become final and executory.
In the present case, the MTCC of Baguio City had full knowledge of all relevant circumstances from
which respondents conviction and sentence were based. The penalty imposed was well within the
confines of the law. Upon appeal, the conviction was sustained by RTC-Branch 4 of Baguio City.
Eventually, the Decision attained finality. Hence, RTC-Branch 5 did not have the jurisdiction to modify the
lawful judgment in the guise of granting a writ of habeas corpus.
The doctrine of equal protection of laws [53] does not apply for the same reasons as those on
retroactivity. Foremost of these reasons is that the Circular is not a law that deletes the penalty of
imprisonment. As explained earlier, it is merely a rule of preference as to which penalty should be
imposed under the peculiar circumstances of a case. At any rate, this matter deserves scant
consideration, because respondent failed to raise any substantial argument to support his contention. [54]
Modification of Final
Judgment Not Warranted
The Court is not unmindful of So v. Court of Appeals,[55] in which the final judgment of conviction for
violation of BP 22 was modified by the deletion of the sentence of imprisonment and the imposition of a
fine. That case proceeded from an Urgent Manifestation of an Extraordinary Supervening Event, [56] not
from an unmeritorious petition for a writ of habeas corpus, as in the present case. The Court exercised in
that case its authority to suspend or to modify the execution of a final judgment when warranted or made

imperative by the higher interest of justice or by supervening events. [57] The supervening event in that
case was the petitioners urgent need for coronary rehabilitation for at least one year under the direct
supervision of a coronary care therapist; imprisonment would have been equivalent to a death sentence.
[58]

The peculiar circumstances of So do not obtain in the present case. Respondents supposed
unhealthy physical condition due to a triple by-pass operation, and aggravated by hypertension, cited by
the RTC in its October 10, 2001 Order,[59] is totally bereft of substantial proof. The Court notes that
respondent did not make any such allegation in his Petition for habeas corpus. Neither did he mention his
physical state in his Memorandum and Comment submitted to this Court.
Respondent seeks the retroactive application of SC-AC No. 12-2000 in his favor on the basis alone
of the alleged settlement of his civil liability.[60] Citing Griffith v. Court of Appeals,[61] he theorizes that
answering for a criminal offense is no longer justified after the settlement of the debt.
Respondent, however, misreads Griffith. The Court held in that case that convicting the accused
who, two years prior to the filing of the BP 22 cases, had already paid his debt (from which the checks
originated) was contrary to the basic principles of fairness and justice. [62] Obviously, that situation is not
attendant here.
The civil liability in the present case was satisfied through the levy and sale of the properties of
respondent only after the criminal case had been terminated with his conviction. [63] Apparently, he had
sufficient properties that could have been used to settle his liabilities prior to his conviction. Indeed, such
an early settlement would have been an indication that he was in good faith, a circumstance that could
have been favorably considered in determining his appropriate penalty.
At any rate, civil liability differs from criminal liability.[64] What is punished in the latter is not the failure
to pay the obligation, but the issuance of checks that subsequently bounced or were dishonored for
insufficiency or lack of funds.[65] The Court reiterates the reasons why the issuance of worthless checks is
criminalized:
The practice is prohibited by law because of its deleterious effects on public interest. The effects of the increase of
worthless checks transcend the private interest of the parties directly involved in the transaction and touches the
interest of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an
injury to the public. The harmful practice of putting valueless commercial papers in circulation multiplied a
thousand-fold can very well pollute the channels of trade and commerce, injure the banking system and eventually
hurt the welfare of society and the public interest. The law punishes the act not as an offense against property but an
offense against public order.[66]
WHEREFORE, the Petition is GRANTED and the assailed Orders NULLIFIED. Respondents Petition
for habeas corpus is herebyDENIED. Let this case be REMANDED to MTCC of Baguio City for the rearrest of respondent and the completion of his sentence.
No pronouncement as to costs.
SO ORDERED.

SECOND DIVISION
[G.R. No. 138962. October 4, 2002]
PRESCILLA TUATES and ANDRES DE LA PAZ, petitioners, vs. HON. LUCAS P. BERSAMIN, as
Presiding Judge, Branch 96, RTC Quezon City, People of the Philippines and I.C.
Construction, Inc.,respondents.
DECISION
AUSTRIA-MARTINEZ, J.:
Before us is a petition for review on certiorari under Rule 45 of the Rules of Court, seeking to annul
the following: (1) Decision dated April 30, 1999 and Resolution dated June 9, 1999, rendered by the Court
of Appeals in CA-G.R. SP No. 46845; [1] (2) Decision dated September 10, 1997 and the Order dated
January 28, 1998 issued by the Regional Trial Court of Quezon City (Branch 96) in Criminal Cases Nos.
Q-97-70428 and Q-97-70429;[2] and (3) Decision dated December 16, 1996 of the Metropolitan Trial Court
of Quezon City (Branch 38) in Criminal Cases Nos. 38-0130 and 38-0131. [3]
The facts are as follows:
Convicted by the MTC-Quezon City (Branch 38) of the crime of Violation of Presidential Decree No.
772 or the Anti-Squatting Law, petitioners Prescilla Tuates and Andres de la Paz, appealed to the RTC of
Quezon City (Branch 96). Their conviction was affirmed in toto by the RTC in its decision dated
September 10, 1997. Pending resolution of their motion for reconsideration, however, Republic Act No.
8368, An Act Repealing Presidential Decree No. 772, entitled Penalizing Squatting and Other Similar Acts
was enacted.
In its Order, dated January 28, 1998, the RTC ruled that only petitioners criminal convictions were
extinguished by R.A. 8368, and the civil aspect, i.e., the removal of petitioners illegally constructed house
and improvements, shall remain executory against them. [4]
On a petition for review, the Court of Appeals sustained the ruling of the RTC and denied due course
to the petition per its Decision, dated April 30, 1999. [5] Petitioners motion for reconsideration was likewise
denied by the CA in its Resolution dated June 9, 1999. [6]
Hence, the present recourse taken by petitioners, raising the following issues:
1. That petitioners, being charged with Violation of Presidential Decree No. 772, the express repeal of said decree
absolves the petitioners of any criminal or civil liability;
2. That public respondent erred in holding that the civil aspect of the judgment rendered x x x shall be executory
against the accused; and
3. That the Honorable Court of Appeals, in affirming the Order of the Regional Trial Court of Quezon City (Branch
96), dated June 9, 1999, grossly erred in ignoring applicable laws and jurisprudence. [7]

Petitioners argue that the repeal of P.D. 772 by R.A. 8368 carries with it the extinction of both the
criminal and civil aspects of the crime.Private respondent, however, insists that public respondents were
correct in ruling that only the criminal liability was absolved and the civil liability remains inasmuch as it
was not extinguished in accordance with Article 113 of the Revised Penal Code, which reads:
ART. 113. Obligation to satisfy civil liability. -- Except in case of extinction of his civil liability as provided in the
next preceding article, the offender shall continue to be obliged to satisfy the civil liability resulting from the crime
committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or
other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or
any other reason.
In its Motion to Deny Due Course, private respondent also argues that the petition should now be
denied as its title to the land subject of this case has already been adjudged in its favor. [8]
In its Comment, the Office of the Solicitor General, in behalf of public respondents, agrees with
petitioners that both the criminal and civil liability were rendered extinct with the repeal of P.D. 772, and
recommended that the assailed issuances be reversed and set aside.
We find the petition to be meritorious.
Republic Act No. 8368, otherwise known as the Anti-Squatting Law Repeal Act of 1997, provides:
SECTION 1. Title. -- This Act shall be known as the Anti-Squatting Law Repeal Act of 1997.
SEC. 2. Repeal. -- Presidential Decree No. 772, entitled Penalizing Squatting and Other Similar Acts is hereby
repealed.
SEC. 3. Effect on Pending Cases. -- All pending cases under the provisions of Presidential Decree No. 772 shall be
dismissed upon the effectivity of this Act.
SEC. 4. Effect on Republic Act No. 7279. -- Nothing herein shall be construed to nullify, eliminate or diminish in any
way Section 27 of Republic Act No. 7279 or any of its provisions relative to sanctions against professional squatters
and squatting syndicates.
SEC. 5. Effectivity. -- This Act shall take effect thirty (30) days after its publication in two (2) newspapers of
national circulation.
Approved, October 27, 1997.[9]
The repeal of P.D. No. 772 under Section 2 of R.A. No. 8368 is explicit, categorical, definite and
absolute. As such, the act that was penalized by P.D. 772, i.e., squatting, ceases to be criminal under
R.A. 8368, and the previous offense is obliterated. [10]
In the same vein, the absolute repeal of P.D. 772 has the effect of depriving a court of its authority to
punish a person charged with violation of the old law prior to its repeal. This is because an unqualified
repeal of a penal law constitutes a legislative act of rendering legal what had been previously declared as
illegal, such that the offense no longer exists and it is as if the person who committed it never did so.
[11]
Specially so, as in the present case where it is unconditionally stated in Section 3 of R.A. No.

8368 that: (A)ll pending cases under the provisions of Presidential Decree No. 772 shall be dismissed
upon the effectivity of this Act. [12] Obviously, it was the clear intent of the law to decriminalize or do away
with the crime of squatting. Hence, there being no criminal liability, there is likewise no civil liability
because the latter is rooted in the former. Where an act or omission is not a crime, no person can be held
liable for such act or omission. There being no delict, logically, civil liability ex delicto is out of the
question. [13]
In fact, in People v. Leachon, Jr.[14] we implicitly recognized the unconditional repeal of P.D. 772 by
R.A. 8368 when we ordered the dismissal of the petition filed in said case, without any qualification
whatsoever, because of the enactment of R.A. 8368, viz.:
But the foregoing antecedent facts and proceedings notwithstanding, the petition cannot now prosper because on
October 27, 1997, Republic Act No. 8368, entitled An Act Repealing Presidential Decree No. 772 Entitled
Penalizing Squatting and Other Similar Acts was enacted. Section 3 of the said Act provides that all pending cases
under the provisions of Presidential Decree No. 772 shall be dismissed upon the effectivity of this Act. [15]
This is not to say, however, that people now have the unbridled license to illegally occupy lands they
do not own. R.A. No. 8368[16] was unanimously approved by the members of the Senate of the Philippines
present on its third reading. [17] The legislature considered it a major piece of legislation on the countrys
anti-poverty program[18] as it sought to confront the perennial problem of poverty at its root, abolish an
otherwise inutile and oppressive law, and pave the way for a genuine urban housing and land reform
program. Senate records reveal that it is the manifest intent of the authors of R.A. 8368 to decriminalize
squatting but does not encourage or protect acts of squatting on somebody elses land. [19] The law is not
intended to compromise the property rights of legitimate landowners. [20] Recourse may be had in cases of
violation of their property rights, such as those provided for in Republic Act No. 7279 or the Urban
Development and Housing Act, penalizing professional squatters and squatting syndicates as defined
therein, who commit nefarious and illegal activities [21]; the Revised Penal Code providing for criminal
prosecution in cases of Trespass to Property,[22] Occupation of Real Property or Usurpation of Real Rights
in Property,[23] and similar violations, and, cases for Forcible Entry and Unlawful Detainer under the Rules
of Court,[24] as well as civil liability for Damages under the Civil Code.
Considering that prosecution for criminal as well as civil liability under P.D. 772 has been rendered
nugatory with the passage of R.A. 8368, both criminal and civil aspects of Criminal Cases Nos. Q-9770428 and Q-97-70429 in the RTC as well as Criminal Cases Nos. 38-0130 and 38-0131 in the MTC filed
against petitioners should be dismissed.
WHEREFORE, finding the petition for review to be with merit, the Decision dated April 30, 1999 of
the Court of Appeals in CA-G.R. SP No. 46845, is REVERSED and SET ASIDE. A new judgment is
hereby entered modifying the Decision dated September 10, 1997 of the Regional Trial Court of Quezon
City (Branch 96) in Criminal Cases No. Q-97-70428 and Q-97-70429 and the Decision dated December
16, 1996 issued by the Metropolitan Trial Court of Quezon City (Branch 38), to the effect that the
dismissal of the aforementioned criminal cases likewise include the dismissal of the civil aspects thereof,
without prejudice to the filing of civil and/or criminal actions under the prevailing laws.
No costs.
SO ORDERED.